[Federal Register Volume 89, Number 163 (Thursday, August 22, 2024)]
[Rules and Regulations]
[Pages 67863-67865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18651]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17


Processing Certain Claims for Payment for Transportation, Care, 
and Services

AGENCY: Department of Veterans Affairs.

ACTION: Notification of guidance.

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SUMMARY: This notification informs the public of the Department of 
Veterans Affairs' (VA) interpretation of law and regulations regarding 
timely filing for certain claims for payment for transportation, care 
and services affected by a cybersecurity incident.

DATES: The guidance is effective August 22, 2024. Claims submitted 
pursuant to this document must be received by VA by October 31, 2024.

FOR FURTHER INFORMATION CONTACT: Joseph Duran, Policy Directorate, 
16IVCEO3, Veterans Health Administration, Department of Veterans 
Affairs, 810 Vermont Avenue NW, Washington, DC 20420; 303-370-1637. 
This is not a toll-free number.

SUPPLEMENTARY INFORMATION: 
    Factual Background: On February 21, 2024, a cybersecurity incident 
impacted Change Healthcare (CHC). CHC serves as a clearinghouse for a 
number of claims for payment related to ambulance transportation and 
health care services under a contract with VA. This incident prevented 
providers and entities from submitting claims electronically to VA. As 
of May 8, 2024, VA is able to receive all claims electronically. 
Between February 21, 2024, and May 8, 2024, VA had limited or no 
ability to receive and process claims because of this incident. During 
this period of more than 70 days, providers and entities were unable 
to, or were limited in their ability to, submit claims to VA for 
services for which VA would normally have processed payment that were 
provided either before or during this period.
    Legal Background: Entities seeking payment from VA for ambulance 
transportation and health care services are required to comply with 
timely filing requirements established by several different provisions 
of law and regulation.
    Section 1703D(b) of title 38, United States Code (U.S.C.), requires 
health care entities or providers that furnish hospital care, medical 
services, or extended care services under chapter 17, title 38, U.S.C., 
to submit to VA claims for payment for furnishing such services not 
later than 180 days after the date on which the entity or provider 
furnished the services.
    Section 17.126 requires claimants to file a claim for reimbursement 
for emergency services for service-connected care within 2 years of the 
date the care or services were rendered, or, in the case of care or 
services rendered prior to VA adjudication allowing service-connection, 
within two years of the date the veteran was notified by VA of the 
allowance of the award of service connection.
    Section 17.1004(d) of title 38, Code of Federal Regulations (CFR), 
requires claimants to file a claim for reimbursement for emergency 
services for non-service-connected care within 90 days of the latest of 
the date the veteran was discharged from the facility that furnished 
emergency treatment; the date of death (but only if death occurred 
during transportation to a facility for emergency treatment or if the 
death occurred during the stay in the facility that included the 
provision of emergency treatment); or the date the veteran finally 
exhausted, without success, action to obtain payment or reimbursement 
for the treatment from a third-party.
    Sections 17.1225 and 17.1230 of title 38, CFR, require providers of 
emergent suicide care and emergency transportation for emergent suicide 
care, respectively, to submit to VA a standard billing form and other 
information as required no later than 180 calendar days from the date 
the services or transportation was furnished.
    Section 70.20(b) of title 38, CFR, requires claimants to apply for 
payment of beneficiary travel within 30 calendar days after completing 
beneficiary travel that does not include a special mode of 
transportation. For travel that includes a special mode of 
transportation (including ambulances), claimants must apply for payment 
of beneficiary travel and obtain approval from VA prior to the travel; 
if prior approval has not been granted, claimants must apply for 
payment within 30 calendar days after the travel is completed. VA may 
pay for transportation for emergency treatment under separate 
authorities as well.
    Section 17.276 of title 38, CFR, requires claims under the Civilian 
Health and Medical Program of VA (CHAMPVA) program to be filed not 
later than one year after the date of service or the date of discharge 
(for inpatient care), or within 180 days following beneficiary 
notification of authorization in the case of retroactive approval for 
medical services or supplies, generally. Requests for extensions must 
be submitted in writing, and VA may grant exceptions if it determines 
there was good cause for missing the filing deadline.
    Section 17.903 of title 38, CFR, requires claims for the Children 
of Women Vietnam Veterans and the Spina Bifida program to be filed not 
later than one year after the date of service or the date of discharge 
(for inpatient care), or within 180 days following beneficiary 
notification of authorization in the case of retroactive approval for 
medical services or supplies, generally.
    Other claims, including those for medical care provided through 
reimbursement agreements with the Indian Health Service, Tribal health 
programs, and Urban Indian Organizations under 25 U.S.C. 1645 and 38 
U.S.C. 8153, are subject to timely filing requirements and were also 
affected by the CHC outage. Timely filing under these reimbursement 
agreements generally requires claims submission within one year of the 
date of service.
    Legal Issue: The plain text of these statutes and regulations, with 
the exception of 17.276, does not include exceptions for established 
timely filing requirements. If VA applied these statutes and 
regulations without exception, it would be forced to deny claims 
affected by the CHC outage as not timely filed and thus not payable. 
This would expose veterans to personal liability in some cases for 
these services through no fault of their own. It also would result in 
inequitable outcomes, where entities and providers furnished services 
on behalf of VA but were unable to be paid for reasons beyond either 
VA's or their control.
    Legal Interpretation: In light of this issue, VA is publicly 
stating its

[[Page 67864]]

interpretation of these statutes and regulations that affected 
providers and entities are not subject to the timely filing 
requirements established by the statutes and regulations described in 
this document, subject to the terms and conditions articulated in this 
document.
    VA's legal basis for this position is its interpretation of these 
statutes and regulations in light of the common law. The Supreme Court 
has noted that, ``where a common law principle is well established . . 
. the courts may take it as given that Congress has legislated with an 
expectation that the principle will apply except `when a statutory 
purpose to the contrary is evident'.'' See Astoria Fed. Sav. & Loan 
Ass'n v. Solimino, 501 U.S. 104, 108 (1991).
    The common law principle of force majeure refers to situations that 
free parties from obligations if an extraordinary event directly 
preventing one or both parties from performing occurs. Impossibility is 
another provision in common law that generally provides relief from 
requirements under similar conditions and would apply here as well. 
Under the doctrines of both force majeure and impossibility, the event 
precipitating that state must have been unanticipated and beyond the 
control of the parties. VA has determined the CHC outage satisfies 
these requirements.
    The concepts of force majeure and impossibility originated in the 
common law and still apply today. VA finds no evidence that in section 
1703D(b), for example, Congress intended a statutory purpose 
inconsistent with the application of these common law principles. The 
purpose of section 1703D broadly was to ensure prompt payment of 
entities or providers furnishing care and services on VA's behalf. 
Congress stated clearly that ``VA's ability to timely and accurately 
process payments to community providers is critical to the [Community 
Care] Program's success and to ensuring access to community care for 
the increasing number of veterans who rely on it.'' H. Rpt. 115-671, 
Part 1, May 11, 2018, p. 7. Interpreting provisions in this statute to 
deny the timely and accurate payment of entities or providers when 
submission delays were not the fault of VA or the entities or providers 
would be plainly contrary to this intent and would damage the 
credibility and reliability of the Veterans Community Care Program and 
VA benefits more broadly.
    VA similarly interprets its regulations regarding timely filing by 
applying the same canon of statutory interpretation described above. 
The Supreme Court has held that the canons of statutory interpretation 
should be applied to Federal regulations as well. See, e.g. Kisor v. 
Wilkie, 588 U.S. __ (2019) (``And before concluding that a rule is 
genuinely ambiguous, a court must exhaust all the `traditional tools' 
of construction.'')
    VA has contracts or agreements for much of the care and services 
that are furnished on its behalf, and these contracts or agreements 
generally include well-established exceptions for situations of force 
majeure or impossibility. Where applicable, VA is exercising its 
contractual flexibility, but where not, VA's interpretation here should 
provide appropriate relief to entities or providers affected by the CHC 
outage.
    In determining that force majeure and impossibility precluded the 
timely submission of claims, we similarly interpret that VA is relieved 
of obligations it may have otherwise incurred, as the common law 
relieved both parties of their obligations. In general, if VA fails to 
pay a valid, submitted claim, it owes interest for late payment. 
However, because VA was unable to accept claims, no late payment period 
could begin that would result in interest liability. Consequently, VA 
will not pay interest on any claims a provider attempted to submit to 
VA during the outage described above. However, if VA fails to pay 
claims submitted now, it will be liable for interest payments under 
relevant provisions of law.
    The vast majority of provisions in law and regulation concerning VA 
health care benefits do not affect or implicate common law principles, 
but the timely filing requirements do. Consequently, VA's 
interpretation here that common law principles apply are limited to the 
statutes and regulations identified in this document.
    Requirements for Timely Filing: Impacted entities or providers 
seeking payment may submit impacted claims for payment by October 31, 
2024. Impacted claims covered by this document that are received after 
October 31, 2024, will not be considered timely filed and will be 
denied. This will provide Impacted entities or providers approximately 
60 days' notice from publication of this document to file claims, which 
VA believes to be a sufficient period of time for claims submission in 
this situation.
    For purposes of this document, ``impacted entities and providers'' 
are those who submit medical (including transportation) or dental 
claims directly to VA for payment. ``Impacted claims'' are claims from 
impacted entities and providers that would be considered not timely 
filed based on the dates of service and the dates of the claim 
submission. Impacted entities and providers may submit impacted 
medical, (including transportation) claims, to electronic data 
interchange (EDI) payor ID 12115 for services provided to veterans, 
dental claims to EDI payor ID 12116 for services provided to veterans, 
medical claims to EDI payor ID 84146 for services provided to family 
members of veterans, and dental claims to EDI payor ID 84147 for 
services provided to family members of veterans. Transportation claims 
that are not submitted to payor ID 12115 are not applicable to this 
document and should continue to be submitted according to normal 
procedures and requirements. Medical claims whose timely filing period 
expired between February 21, 2024, and March 23, 2024, for payor IDs 
12115 and 84146, and dental claims whose timely filing period expired 
between February 21, 2024, and May 8, 2024, for payor IDs 12116 and 
84147, will be considered timely filed if such claims are submitted to 
VA by October 31, 2024.
    Claims must be submitted to VA as they normally would be (e.g., 
location, content, etc.) in accordance with standard submission 
protocols.
    Impacted claims may include: claims for non-emergent medical care 
furnished to veterans with a date of service between February 21, 2023, 
and March 23, 2024; claims for dental care furnished to veterans with a 
date of service between February 21, 2023, and May 8, 2024; claims for 
emergency care furnished to veterans with a date of service between 
February 21, 2022, and March 23, 2024; claims for transportation 
furnished to veterans with a date of service between February 21, 2022, 
and March 23, 2024; claims for medical care furnished to eligible 
family members under the Civilian Health and Medical Program of VA 
(CHAMPVA), Spina Bifida Health Care Benefits Program (SBHCBP) or 
Children of Women Vietnam Veterans (CWVV) Health Care Benefits Program 
with a date of service between February 21, 2023, and March 23, 2024; 
and claims for dental care furnished to eligible family members under 
CHAMPVA, SBHCBP or CWVV with a date of service between February 21, 
2023, and May 8, 2024.
    The dates of service identified above reflect the earliest and 
latest possible qualifying dates. The general descriptions above 
reflect various legal authorities, each of which may include additional 
requirements regarding timely filing, and VA will apply additional 
requirements as needed. For

[[Page 67865]]

example, VA can reimburse claims for emergency care furnished to 
veterans under several different statutory authorities, including 38 
U.S.C. 1703, 1720J, 1725, and 1728. VA's regulations provide for 
different timely filing requirements under these authorities. Section 
1728 and its implementing regulations require eligible entities or 
providers to submit a claim within two years of the date of service. 
Given the outage for medical claims between February 21, 2024, and 
March 23, 2024, for such claims, a provider could have attempted to 
submit a claim on February 21, 2024, for emergency care furnished to a 
veteran on February 21, 2022, and that claim could have been considered 
timely and potentially approved by VA (if other conditions were met). 
However, under section 1725 and its implementing regulations 
(specifically, 17.1004, as described above), claims must be submitted 
to VA within 90 days of the later of any of several dates or events. If 
VA determined that a claim for services furnished on February 21, 2022, 
that is submitted based on this document is not payable under section 
1728 but only payable under section 1725, that claim would be 
considered not timely filed. VA does not expect providers to know under 
what authority they are filing claims; VA will process received claims, 
as it does today, to determine which authority is appropriate. If 
providers believe VA has denied a claim incorrectly, they are free to 
appeal that decision, as they can today.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on August 15, 2024, and authorized the undersigned to 
sign and submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
General Counsel, Department of Veterans Affairs.
[FR Doc. 2024-18651 Filed 8-21-24; 8:45 am]
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