Custom Federal Regulations Service™

**This is supplemental material**

**for Book I of your set of**

**Federal Regulations**

Title 38, Parts 17, 46, 47, 51--52, 58--61, and 70

*Medical*

**Veterans Benefits Administration**

Supplement No. 41

Covering period of *Federal Register* issues

through July 4, 2008

Copyright © 2008 Jonathan Publishing

**Need Assistance?**

Questions concerning **[missing supplements]{.smallcaps}**, need for
**[additional books]{.smallcaps}**, and other **[distribution
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directed to:

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Mail Code: 20M33

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Washington DC 20420

Telephone: 202/273-7588

Fax: 202/275-5947

E-mail: coarms@vba.va.gov

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Copyright © 2008 Jonathan Publishing

> **GENERAL INSTRUCTIONS**

Custom Federal Regulations Service™

**Supplemental Materials for *Book I***

**Code of Federal Regulations**

**Title 38, Parts 17, 46, 47, 51--52, 58--61, and 70**

***Medical***

**Veterans Benefits Administration**

**Supplement No. 41**

5 July 2008

Covering the period of Federal Register issues

through July 3, 2008

When **Book I** was originally prepared, it was current through final
regulations published in the *Federal Register* of 15 January 2000.
These supple­mental materials are designed to keep your regulations up to
date. You should file the attached pages immediately, and record the
fact that you did so on the *Supplement Filing Record* which is at page
I-8 of Book I, *Medical*.

> **To ensure accuracy and timeliness of your materials,**
>
> **it is important that you follow these simple procedures:**
>
> 1\. Always file your supplemental materials immediately upon receipt.
>
> 2\. Before filing, always check the Supplement Filing Record (page
> I-8) to be sure that all prior supplements have been filed. If you are
> missing any supple­ments, contact the Veterans Benefits Administration
> at the address listed on page I-2.
>
> 3\. After filing, enter the relevant information on the Supplement
> Filing Record sheet (page I-8)---the date filed, name/initials of
> filer, and date through which the *Federal Register* is covered.
>
> 4\. If as a result of a failure to file, or an undelivered supplement,
> you have more than one supplement to file at a time, be certain to
> file them in chronological order, lower number first.
>
> 5\. Always retain the filing instructions (simply insert them at the
> back of the book) as a backup record of filing and for reference in
> case of a filing error.
>
> 6\. Be certain that you *permanently discard* any pages indicated for
> removal in the filing instructions in order to avoid confusion later.

To execute the filing instructions, simply remove *and throw away* the
pages listed under *Remove These Old Pages,* and replace them in each
case with the corres­pond­ing pages from this supplement listed under *Add
These New Pages*. Occasionally new pages will be added without removal
of any old material (reflecting new regulations), and occasionally old
pages will be removed with­out addition of any new material (reflecting
rescinded regulations)---in these cases the word *None* will appear in
the appropriate column.

> **FILING INSTRUCTIONS**

**Book I, Supplement No. 41**

**July 5, 2008**

*Remove these Add these Section(s)*

*[old pages]{.underline} [new pages]{.underline} [Affected]{.underline}*

**Do not file this supplement until you confirm that**

**all prior supplements have been filed**

I-13 to I-14 I-13 to I-14 Index to Book I

I-23 to I-24 I-23 to I-24 Index to Book I

**17.[index]{.smallcaps}-7 to 17. [index]{.smallcaps} --8
17.[index]{.smallcaps}-7 to 17. [index]{.smallcaps} --8 Index to Part
17**

17.38-1 to 17.39-1 17.38-1 to 17.39-1 §17.38

17.140-1 to 17.149-1 17.140-1 to 17.149-1 §§17.143--17.145

removed

**None 70.Title-1 to 70.50-1 New Part 70**

**(§§70.1--70.50);**

**add after Part 65**

**Be sure to complete the**

***Supplement Filing Record* (page I-8)**

**when you have finished filing this material.**

> **HIGHLIGHTS**

**Book I, Supplement No. 41**

**July 5, 2008**

***Supplement* Highlights *references***: Where substantive changes are
made in the text of regulations, the paragraphs of *Highlights* sections
are cited at the end of the relevant section of text. Thus, if you are
reading §17.100, you will see a note at the end of that section which
reads: "Supplement *Highlights* references---37(1)." This means that
paragraph 1 of the *Highlights* section in Supplement No. 37 contains
information about the changes made in §17.100. By keeping and filing the
*Highlights* sections, you will have a reference source explaining all
substantive changes in the text of the regulations.

***Supplement frequency***: Beginning 1 January 2000, supplements for
this Book I will be issued *every month* during which a final rule
addition or modification is made to the parts of Title 38 covered by
this book. Supplements will be numbered consecutively as issued.

**Modifications in this supplement include the following:**

1\. On 30 June 2008, the VA published a final rule, effective 30 July
2008, to amend VA beneficiary travel regulations that provide a
mechanism for payment of travel expenses within the United States under
38 U.S.C. 111 to help veterans and other persons obtain care and
services from VA**'**s Veterans Health Administration. Changes:

In §17.38, revised paragraph (a)(1)(xii);

Removed §§17.143--17.145; and

Added a new Part 70 (§§70.1--70.50).

**Disciplinary Control of Beneficiaries Receiving Hospital,**

**Domiciliary or Nursing Home Care**

17.106 Authority for disciplinary action. 17.106-1

**Copayments**

17.108 Copayments for inpatient hospital care and outpatient medical
care. 17.108-1

17.110 Copayments for medication 17.110-1

17.111 Copayments for Extended care services 17.111-1

**Ceremonies**

17.112 Services or ceremonies on Department of Veterans Affairs hospital

or center reservations. 17.112-1

**Reimbursement for Loss by Natural Disaster of Personal Effects of**

**Hospitalized or Nursing Home Patients**

17.113 Conditions of custody. 17.113-1

17.114 Submittal of claim for reimbursement. 17.114-1

17.115 Claims in cases of incompetent patients. 17.115-1

**Reimbursement to Employees for the Cost of Repairing or Replacing**

**Certain Personal Property Damaged or Destroyed By Patients or
Members**

17.116 Adjudication of claims. 17.116-1

**Payment and Reimbursement of the Expenses of Medical Services not**

**Previously Authorized**

17.120 Payment or reimbursement of the expenses of hospital care and
other

medical services not previously authorized. 17.120-1

17.121 Limitations On payment or reimbursement of the costs of emergency

hospital care and medical services not previously authorized. 17.121-1

17.122 Payment or reimbursement of the expenses of repairs to

prosthetic appliances and similar devices furnished

without prior authorization. 17.122-1

17.123 Claimants. 17.123-1

17.124 Preparation of claims. 17.124-1

17.125 Where to file claims. 17.125-1

17.126 Timely filing. 17.126-1

17.127 Date of filing claims. 17.127-1

17.128 Allowable rates and fees. 17.128-1

17.129 Retroactive payments prohibited. 17.129-1

17.130 Payment for treatment dependent upon preference prohibited.
17.130-1

17.131 Payment of abandoned claims prohibited. 17.131-1

17.132 Appeals. 17.132-1

**Reconsideration of Denied Claims**

17.133 Procedures 17.133-1

**Delegations of Authority**

17.140 Authority to adjudicate reimbursement claims. 17.140-1

17.141 Authority to adjudicate foreign reimbursement claims. 17.141-1

17.142 Authority to approve sharing agreements, contracts for scarce
medical

specialist services and contracts for other medical services 17.142-1

**Prosthetic, Sensory, and Rehabilitative Aids**

17.149 Sensori-neural Aids. 17.149-1

17.150 Prosthetic and similar appliances. 17.150-1

17.151 Invalid lifts for recipients of aid and attendance allowance or
special

monthly compensation. 17.151-1

17.152 Devices to assist in overcoming the handicap of deafness.
17.152-1

17.153 Training in the use of appliances. 17.153-1

17.154 Dog-guides and equipment for blind. 17.154-1

**Automotive Equipment and Driver Training**

17.155 Minimum standards of safety and quality for automotive adaptive

equipment. 17.155-1

17.156 Eligibility for automobile adaptive equipment. 17.156-1

17.157 Definition-adaptive equipment. 17.157-1

17.158 Limitations on assistance 17.158-1

17.159 Obtaining vehicles for special driver training courses 17.159-1

**Dental Services**

17.160 Authorization of dental examinations. 17.160-1

59.140 Nursing home care requirements 59.140-1

59.150 Domiciliary care requirements 59.150-1

59.160 Adult day health care requirements 59.160-1

59.170 Forms 59.170-1

**Part 60---Fisher Houses and Other Temporary Lodging**

60.1 Purpose 60.1-1

60.2 Definitions 60.2-1

60.3 Eligible persons 60.3-1

60.4 Application 60.4-1

60.5 Travel 60.5-1

60.6 Condition of veteran 60.6-1

60.7 Duration of temporary lodging 60.7-1

60.8 Lodging availability 60.8-1

60.9 Decisionmaker 60.9-1

60.10 Costs 60.10-1

**Part 61---VA Homeless Providers Grant and Per Diem Program**

61.0 Purpose 61.0-1

61.1 Definitions 61.1-1

61.10 Capital grants---general 61.10-1

61.11 Applications for capital grants 61.11-1

61.12 Threshold requirements for capital grant applications 61.12-1

61.13 Rating criteria for capital grant applications 61.13-1

61.14 Selecting applications for capital grants 61.14-1

61.15 Obtaining additional information and awarding capital grants
61.15-1

61.16 Matching funds for capital grants 61.16-1

61.17 Site control for capital grants 61.17-1

61.20 Life Safety Code capital grants 61.20-1

61.30 Per diem---general 61.30-1

61.31 Application for per diem 61.31-1

61.32 Ranking non-capital grant recipients for per diem 61.32-1

61.33 Payment of per diem 61.33-1

61.40 Special needs grants---general 61.40-1

61.41 Special needs grants application 61.41-1

61.42 Threshold requirements for special needs grant applications
61.42-1

61.43 Rating criteria for special needs grant applications 61.43-1

61.44 Awarding special needs grants 61.44-1

61.50 Technical assistance grants---general 61.50-1

61.51 Applications for technical assistance grants 61.51-1

61.52 Threshold requirements for technical assistance grant applications
61.52-1

61.53 Rating criteria for technical assistance grant applications
61.53-1

61.54 Awarding technical assistance grants 61.54-1

61.55 Technical assistance reports 61.55-1

61.60 Notice of Fund Availability 61.60-1

61.61 Agreement and funding actions 61.61-1

61.62 Program changes 61.62-1

61.63 Procedural error 61.63-1

61.64 Religious organizations 61.64-1

61.65 Inspections 61.65-1

61.66 Financial management 61.66-1

61.67 Recovery provisions 61.67-1

61.80 General operation requirements for supportive housing and service
centers 61.80-1

61.81 Outreach activities 61.81-1

61.82 Resident rent for supportive housing 61.82-1

**Part 70---VHA Beneficiary Travel Under 38 U.S.C. 111**

70.1 Purpose and scope 70.1-1

70.2 Definitions 70.2-1

70.3 Determination of Secretary 70.3-1

70.4 Criteria for approval 70.4-1

70.10 Eligible persons 70.10-1

70.20 Application 70.20-1

70.21 Where to apply 70.21-1

70.30 Payment principles 70.30-1

70.31 Deductibles 70.31-1

70.32 Reimbursement or prior payment 70.32-1

70.40 Administrative procedures 70.40-1

70.41 Recovery of payments 70.41-1

70.42 False statements 70.42-1

70.50 Reduced fare requests 70.50-1

\-

Filing claims 17.1004-1

Independent right of recovery 17.1007-1

Payment limitations 17.1005-1

Payment or reimbursement for emergency services for

nonservice-connected conditions in non-VA facilities 17.1000-1

Substantive conditions for payment or reimbursement 17.1002-1

**Prosthetic, Sensory, and Rehabilitative Aids**

Devices to assist in overcoming the handicap of deafness 17.152-1

Dog-guides and equipment for blind 17.154-1

Invalid lifts for recipients of aid and attendance allowance or special

monthly compensation 17.151-1

Prosthetic and similar appliances 17.150-1

Sensori-neural Aids 17.149-1

Training in the use of appliances 17.153-1

**Protection of Patient Rights**

Informed consent and advance health care planning 17.32-1

Patients' rights 17.33-1

**Reconsideration of Denied Claims**

Procedures 17.133-1

**Reimbursement for Loss by Natural Disaster of Personal Effects of**

**Hospitalized or Nursing Home Patients**

Claims in cases of incompetent patients 17.115-1

Conditions of custody 17.113-1

Submittal of claim for reimbursement 17.114-1

**Reimbursement to Employees for the Cost of Repairing or Replacing**

**Certain Personal Property Damaged or Destroyed By Patients or
Members**

Adjudication of claims 17.116-1

**Research-related Injuries**

Treatment of research-related injuries to human subjects 17.85-1

**Sharing of Medical Facilities, Equipment, and Information**

Contingency backup to the Department of Defense 17.230-1

Coordination of programs with Department of Health and

Human Services 17.242-1

Sharing medical information services 17.241-1

Sharing specialized medical resources 17.240-1

**Tentative Eligibility Determinations**

Tentative eligibility determinations 17.34-1

**Transitional Housing Loan Program**

Additional terms of loans 17.805-1

Application provisions 17.802-1

Definitions 17.801-1

Loan approval criteria 17.804-1

Order of consideration 17.803-1

Purpose 17.800-1

**Use of Community Nursing Home Care Facilities**

Extensions of community nursing home care beyond six months 17.60-1

Use of community nursing homes 17.57-1

**Use of Department of Defense, Public Health Service or Other Federal
Hospitals**

Emergency use of Department of Defense, Public Health Service or

other Federal hospitals 17.51-1

Use of Department of Defense, Public Health Service, or other

Federal hospitals with beds allocated to the Department of

Veterans Affairs 17.50-1

**Use of Public or Private Hospitals**

Hospital care and medical services in non-VA facilities 17.52-1

Limitations on use of public or private hospitals 17.53-1

Necessity for prior authorization 17.54-1

**§17.38 Medical benefits package.**

\(a\) Subject to paragraphs (b) and (c) of this section, the following
hospital, outpatient, and extended care services constitute the "medical
benefits package" (basic care and preventive care):

\(1\) *Basic care*.

> \(i\) Outpatient medical, surgical, and mental healthcare, including
> care for substance abuse.
>
> \(ii\) Inpatient hospital, medical, surgical, and mental healthcare,
> including care for substance abuse.
>
> \(iii\) Prescription drugs, including over-the-counter drugs and
> medical and surgical supplies available under the VA national
> formulary system.
>
> \(iv\) Emergency care in VA facilities; and emergency care in non-VA
> facilities in accordance with sharing contracts or if authorized by
> §§17.52(a)(3), 17.53, 17.54, 17.120--132.
>
> \(v\) Bereavement counseling as authorized in §17.98.
>
> \(vi\) Comprehensive rehabilitative services other than vocational
> services provided under 38 U.S.C. chapter 31.
>
> \(vii\) Consultation, professional counseling, training, and mental
> health services for the members of the immediate family or legal
> guardian of the veteran or the individual in whose household the
> veteran certifies an intention to live, if needed to treat:
>
> \(A\) The service-connected disability of a veteran; or
>
> \(B\) The nonservice-connected disability of a veteran where these
> services were first given during the veteran's hospitalization and
> continuing them is essential to permit the veteran's release from
> inpatient care.
>
> \(viii\) Durable medical equipment and prosthetic and orthotic
> devices, including eyeglasses and hearing aids as authorized under
> §17.149.
>
> \(ix\) Home health services authorized under 38 U.S.C. 1717 and 1720C.
>
> \(x\) Reconstructive (plastic) surgery required as a result of disease
> or trauma, but not including cosmetic surgery that is not medically
> necessary.
>
> \(xi\) (A) Hospice care, palliative care, and institutional respite
> care; and
>
> \(B\) Noninstitutional geriatric evaluation, noninstitutional adult
> day health care, and noninstitutional respite care.
>
> \(xii\) Payment of beneficiary travel as authorized under 38 CFR part
> 70.
>
> \(xiii\) Pregnancy and delivery services, to the extent authorized by
> law.
>
> \(xiv\) Completion of forms (e.g., Family Medical Leave forms, life
> insurance applications, Department of Education forms for loan
> repayment exemptions based on disability, non-VA disability program
> forms) by healthcare professionals based on an examination or
> knowledge of the veteran's condition, but not including the completion
> of forms for examinations if a third party customarily will pay health
> care practitioners for the examination but will not pay VA.

\(2\) *Preventive care, as defined in 38 U.S.C. 1701(9), which
includes*:

> \(i\) Periodic medical exams.
>
> \(ii\) Health education, including nutrition education.
>
> \(iii\) Maintenance of drug-use profiles, drug monitoring, and drug
> use education.
>
> \(iv\) Mental health and substance abuse preventive services.
>
> \(v\) Immunizations against infectious disease.
>
> \(vi\) Prevention of musculoskeletal deformity or other gradually
> developing disabilities of a metabolic or degenerative nature.
>
> \(vii\) Genetic counseling concerning inheritance of genetically
> determined diseases.
>
> \(viii\) Routine vision testing and eye-care services.
>
> \(ix\) Periodic reexamination of members of high-risk groups for
> selected diseases and for functional decline of sensory organs, and
> the services to treat these diseases and functional declines.

\(b\) *Provision of the "medical benefits package"*. Care referred to in
the "medical benefits package" will be provided to individuals only if
it is determined by appropriate healthcare professionals that the care
is needed to promote, preserve, or restore the health of the individual
and is in accord with generally accepted standards of medical practice.

\(1\) *Promote health*. Care is deemed to promote health if the care
will enhance the quality of life or daily functional level of the
veteran, identify a predisposition for development of a condition or
early onset of disease which can be partly or totally ameliorated by
monitoring or early diagnosis and treatment, and prevent future disease.

\(2\) *Preserve health*. Care is deemed to preserve health if the care
will maintain the current quality of life or daily functional level of
the veteran, prevent the progression of disease, cure disease, or extend
life span.

\(3\) *Restoring health*. Care is deemed to restore health if the care
will restore the quality of life or daily functional level that has been
lost due to illness or injury.

\(c\) In addition to the care specifically excluded from the "medical
benefits package" under paragraphs (a) and (b) of this section, the
"medical benefits package" does not include the following:

> \(1\) Abortions and abortion counseling.
>
> \(2\) In vitro fertilization.
>
> \(3\) Drugs, biologicals, and medical devices not approved by the Food
> and Drug Administration unless the treating medical facility is
> conducting formal clinical trials under an Investigational Device
> Exemption (IDE) or an Investigational New Drug (IND) application, or
> the drugs, biologicals, or medical devices are prescribed under a
> compassionate use exemption.
>
> \(4\) Gender alterations.
>
> \(5\) Hospital and outpatient care for a veteran who is either a
> patient or inmate in an institution of another government agency if
> that agency has a duty to give the care or services.
>
> \(6\) Membership in spas and health clubs. (Authority: 38 U.S.C. 101,
> 501, 1701, 1705, 1710, 1710A, 1721, 1722)

\[64 FR 54217, Oct. 6, 1999, as amended at 67 FR 35039, May 17, 2002; 73
FR 36798, June 30, 2008\]

**Supplement *Highlights* references**: 37(1). Book I, 9(1), 41(1).

**§17.39 Certain Filipino veterans.**

\(a\) Any Filipino Commonwealth Army veteran, including one who was
recognized by authority of the U.S. Army as belonging to organized
Filipino guerilla forces, or any new Philippine Scout is eligible for
hospital care, nursing home care, and outpatient medical services within
the United States in the same manner and subject to the same terms and
conditions as apply to U.S. veterans, if such veteran or scout resides
in the United States and is a citizen or lawfully admitted to the United
States for permanent residence. For purposes of these VA health care
benefits, the standards described in 38 CFR 3.42(c) will be accepted as
proof of U.S. citizenship or lawful permanent residence.

\(b\) Commonwealth Army Veterans, including those who were recognized by
authority of the U.S. Army as belonging to organized Filipino guerilla
forces, and new Philippine Scouts are not eligible for VA health care
benefits if they do not meet the residency and citizenship requirements
described in §3.42(c). (Authority: 38 U.S.C. 501, 1734 )

(The Office of Management and Budget has approved the information
collection requirements in this section under control number 2900-0091.)

\[67 FR 41179, June 17, 2002, as amended at 71 FR 6680, Feb. 9, 2006\]

**Supplement *Highlights* references**: Book I, 10(1), 32(1).

**Delegations of Authority**

**§17.140 Authority to adjudicate reimbursement claims.**

The Department of Veterans Affairs medical installation having
responsibility for the fee basis program in the region or territory
(including the Republic of the Philippines) served by such medical
installation shall adjudicate all claims for the payment or
reimbursement of the expenses of services not previously authorized
rendered in the region or territory.

\[39 FR 1844, Jan. 15, 1974. Redesignated at 61 FR 21966, May 13, 1996\]

**§17.141 Authority to adjudicate foreign reimbursement claims.**

The Health Administration Center in Denver, CO, shall adjudicate claims
for the payment or reimbursement of the expenses of services not
previously authorized rendered in any foreign country except Canada
which will be referred to the VA Medical Center in White River Junction,
VT, and the Republic of the Philippines which will be referred to the VA
Outpatient Clinic in Pasay City.

\[39 FR 1844, Jan. 15, 1974, as amended at 45 FR 6938, Jan. 31, 1980.
Redesignated and amended at 61 FR 21966, 21968, May 13, 1996\]

**§17.142 Authority to approve sharing agreements, contracts for scarce
medical specialist services and contracts for other medical services.**

The Under Secretary for Health is delegated authority to enter into

\(a\) Sharing agreements authorized under the provisions of 38 U.S.C.
8153 and §17.210 and which may be negotiated pursuant to the provisions
of 41 CFR 8-3.204(c);

\(b\) Contracts with schools and colleges of medicine, osteopathy,
dentistry, podiatry, optometry, and nursing, clinics, and any other
group or individual capable of furnishing such services to provide
scarce medical specialist services at Department of Veterans Affairs
health care facilities (including, but not limited to, services of
physicians, dentists, podiatrists, optometrists, nurses, physicians'
assistants, expanded function dental auxiliaries, technicians, and other
medical support personnel); and

\(c\) When a sharing agreement or contract for scarce medical specialist
services is not warranted, contracts authorized under the provisions of
38 U.S.C. 513 for medical and ancillary services. The authority under
this section generally will be exercised by approval of proposed
contracts or agreements negotiated at the health care facility level.
Such approval, however, will not be necessary in the case of any
purchase order or individual authorization for which authority has been
delegated in §17.99. All such contracts and agreements will be
negotiated pursuant to 41 CFR chapters 1 and 8. (Authority: 38 U.S.C.
512, 513, 7409, 8153)

\[45 FR 6938, Jan. 31, 1980. Redesignated at 61 FR 21966, May 13, 1996,
as amended at 62 FR 17072, Apr. 9, 1997\]

Next Section is s17.149

**Prosthetic, Sensory, and Rehabilitative Aids**

**§17.149 Sensori-neural aids.**

\(a\) Notwithstanding any other provision of this part, VA will furnish
needed sensori-neural aids (i.e., eyeglasses, contact lenses, hearing
aids) only to veterans otherwise receiving VA care or services and only
as provided in this section.

\(b\) VA will furnish needed sensori-neural aids (i.e., eyeglasses,
contact lenses, hearing aids) to the following veterans:

> \(1\) Those with a compensable service-connected disability;
>
> \(2\) Those who are former prisoners of war;

\(3\) Those awarded a Purple Heart;

> \(4\) Those in receipt of benefits under 38 U.S.C. 1151;
>
> \(5\) Those in receipt of increased pension based on the need for
> regular aid and attendance or by reason of being permanently
> housebound;
>
> \(6\) Those who have a visual or hearing impairment that resulted from
> the existence of another medical condition for which the veteran is
> receiving VA care, or which resulted from treatment of that medical
> condition;
>
> \(7\) Those with a significant functional or cognitive impairment
> evidenced by deficiencies in activities of daily living, but not
> including normally occurring visual or hearing impairments; and
>
> \(8\) Those visually or hearing impaired so severely that the
> provision of sensori-neural aids is necessary to permit active
> participation in their own medical treatment.

\(c\) VA will furnish needed hearing aids to those veterans who have
service-connected hearing disabilities rated 0 percent if there is
organic conductive, mixed, or sensory hearing impairment, and loss of
pure tone hearing sensitivity in the low, mid, or high-frequency range
or a combination of frequency ranges which contribute to a loss of
communication ability; however, hearing aids are to be provided only as
needed for the service-connected hearing disability. (Authority: 38
U.S.C. 501, 1707(b))

\[62 FR 30242, June 3, 1997, as amended at 62 FR 64722, Dec. 9, 1997; 69
FR 33575, June 16, 2004\]

**Supplement *Highlights* reference**: 23(2)

**Part 70**

**VHA Beneficiary Travel**

**Under 38 U.S.C. 111**

Reserved

**Part 70**

**VHA Beneficiary Travel Under 38 U.S.C. 111**

**Authority**: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782,
1783, E.O. 11302.

**Source**: 73 Fed. Reg. 36798, June 30, 2008, and as stated in specific
sections.

**--- Index ---**

Administrative procedures 70.40-1

Application 70.20-1

Deductibles 70.31-1

False statements 70.42-1

Payment principles 70.30-1

Purpose and scope 70.1-1

Definitions 70.2-1

Determination of Secretary 70.3-1

Criteria for approval 70.4-1

Eligible persons 70.10-1

Recovery of payments 70.41-1

Reduced fare requests 70.50-1

Reimbursement or prior payment 70.32-1

Where to apply 70.21-1

Reserved

**Part 70**

**VHA Beneficiary Travel Under 38 U.S.C. 111**

*Authority*: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782,
1783, E.O. 11302.

*Source*: 73 Fed. Reg. 36798, June 30, 2008, and as stated in specific
sections.

*Supplement Highlights Reference for Part 70*: Book I -- 41(1), unless
otherwise indicated.

**§70.1 Purpose and scope.**

\(a\) This part provides a mechanism under 38 U.S.C. 111 for the
Veterans Health Administration (VHA) to make payments for travel
expenses incurred in the United States to help veterans and other
persons obtain care or services from VHA.

\(b\) This part does not cover payment for emergency transportation of
veterans for non-service-connected conditions in non-VA facilities when
the payment for transportation is covered by §§17.1000 through 17.1008
of this chapter, as authorized by 38 U.S.C. 1725. (Authority: 38 U.S.C.
101, 111, 501, 1701, 1714, 1720, 1728, 1782, 1783, E.O. 11302)

**§70.2 Definitions.**

For purposes of this part:

*Attendant* means an individual traveling with a beneficiary who is
eligible for beneficiary travel and requires the aid and/or physical
assistance of another person.

*Beneficiary* means a person determined eligible for VHA benefits.

*Claimant* means a veteran who received services (or his/her guardian)
or the hospital, clinic, or community resource that provided the
services, or the person other than the veteran who paid for the
services.

*Clinician* means a Physician, Physician Assistant (PA), Nurse
Practitioner (NP), Psychologist, or other independent licensed
practitioner.

*Emergency treatment* means treatment for a condition of such a nature
that a prudent layperson would have reasonably expected that delay in
seeking immediate medical attention would have been hazardous to life or
health (this standard would be met if there were an emergency medical
condition manifesting itself by acute symptoms of sufficient severity
(including severe pain) that a prudent layperson who possesses an
average knowledge of health and medicine could reasonably expect the
absence of immediate medical attention to result in placing the health
of the individual in serious jeopardy, serious impairment to bodily
functions, or serious dysfunction of any bodily organ or part).

*Irregular discharge* means the release of a competent patient from a VA
or VA-authorized hospital, nursing home, or domiciliary care due to:
refusal, neglect or obstruction of examination or treatment; leaving
without the approval of the treating health care clinician; or
disorderly conduct and discharge is the appropriate disciplinary action.

*Special mode of transportation* means an ambulance, ambulette, air
ambulance, wheelchair van, or other mode of transportation specially
designed to transport disabled persons (this would not include a mode of
transportation not specifically designed to transport disabled persons,
such as a bus, subway, taxi, train, or airplane). A modified,
privately-owned vehicle, with special adaptive equipment and/or capable
of transporting disabled persons is not a special mode of transportation
for the purposes of this part.

*United States* means each of the several States, Territories, and
possessions of the United States, the District of Columbia, and the
Commonwealth of Puerto Rico.

*VA* means the Department of Veterans Affairs.

*VA-authorized health care facility* means a non-VA health care facility
where VA has approved care for an eligible beneficiary at VA expense.

*VA facility* means VA Medical Center (VAMC), VA Outpatient Clinic
(OPC), or VA Community Based Outpatient Clinic (CBOC).

*VHA* means the Veterans Health Administration, a principal unit within
VA (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782,
1783, E.O. 11302)

**§70.3 Determination of Secretary.**

For each fiscal year, the Secretary of Veterans Affairs will determine
whether funds are available for paying expenses of VHA beneficiary
travel under 38 U.S.C. 111. If the Secretary determines that funds are
available for such purpose, VA will make payment for expenses of such
travel in accordance with the provisions of this part. (Authority: 38
U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 1783, E.O. 11302)

**§70.4 Criteria for approval.**

\(a\) VA will approve payment for beneficiary travel under this part if:

\(1\) The travel was made to obtain care or services for a person who is
eligible for beneficiary travel payments under §70.10,

\(2\) The travel was in connection with care or services for which such
person was eligible under the laws administered by VA,

\(3\) Application was made in accordance with §70.20,

\(4\) All of the requirements of this part for payment are met, and

\(5\) Any failure to obtain the care or services was due to actions by
officials of VA or persons acting on behalf of VA.

\(b\) When a claimant requests payment for beneficiary travel after the
provision of care or services and the travel did not include a special
mode of transportation, VA will approve round-trip payment under this
part only if the travel was:

\(1\) In connection with care or services that were scheduled with VHA
prior to arrival at the VHA-designated facility, or

\(2\) For emergency treatment.

\(c\) When a claimant requests payment for beneficiary travel for care
or services that were not scheduled with VHA prior to arrival at the
facility and were not emergency treatment and the travel did not include
a special mode of transportation, VA will not approve round-trip payment
under this part but will approve payment for the return trip if VHA
actually provided care or services.

\(d\) Except as provided in §70.32 concerning reimbursement or prior
payment, when payment for beneficiary travel is requested for travel
that includes a special mode of transportation, VA will approve payment
under this part if:

\(1\) The travel is medically required,

\(2\) The beneficiary is unable to defray the cost of such
transportation, and

\(3\) VHA approved the travel prior to travel in the special mode of
transportation or the travel was undertaken in connection with a medical
emergency. (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728,
1782, 1783, E.O. 11302)

*Next Section is §70.10*

**§70.10 Eligible persons.**

\(a\) The following listed persons are eligible for beneficiary travel
payments under this part:

\(1\) A veteran who travels to or from a VA facility or VA-authorized
health care facility in connection with treatment or care for a
service-connected disability (regardless of percent of disability).

\(2\) A veteran with a service-connected disability rated at 30 percent
or more who travels to or from a VA facility or VA-authorized health
care facility for examination, treatment, or care for any condition.

\(3\) A veteran who travels to a VA facility or VA-authorized health
care facility for a scheduled compensation and pension examination.

\(4\) A veteran receiving pension under 38 U.S.C. 1521, who travels to
or from a VA facility or VA-authorized health care facility for
examination, treatment, or care.

\(5\) A veteran whose annual income (as determined under 38 U.S.C. 1503)
does not exceed the maximum annual rate of pension that the veteran
would receive under 38 U.S.C. 1521 (as adjusted under 38 U.S.C. 5312) if
the veteran was eligible for pension and travels to or from a VA
facility or VA-authorized health care facility for examination,
treatment, or care.

\(6\) A veteran who travels to or from a VA facility or VA-authorized
health care facility for examination, treatment, or care, and who is
unable to defray the expenses of that travel as defined in paragraph (c)
of this section.

\(7\) A member of a veteran**'**s immediate family, a veteran**'**s
legal guardian, or a person in whose household the veteran certifies an
intention to live, if such person is traveling for consultation,
professional counseling, training, or mental health services concerning
a veteran who is receiving care for a service-connected disability; or a
member of a veteran**'**s immediate family, if such person is traveling
for bereavement counseling relating to the death of such veteran in the
active military, naval, or air service in the line of duty and under
circumstances not due to the veteran**'**s own misconduct.

\(8\) An attendant other than a VA employee, who is accompanying and
assisting a beneficiary eligible for beneficiary travel payments under
this section, when such beneficiary is medically determined to require
the presence of the attendant because of a physical or mental condition.

\(9\) Beneficiaries of other Federal agencies, incident to medical
services rendered upon requests of those agencies, subject to
reimbursement agreement by those agencies.

\(10\) Allied beneficiaries as defined by 38 U.S.C. 109 subject to
reimbursement agreement by the government concerned.

\(b\) For purposes of this section, the term **"**examination,
treatment, or care**"** means the care services provided under the
Medical Benefits Package in §17.38 of this chapter.

\(c\) For purposes of this section, a beneficiary shall be considered
unable to defray the expenses of travel if the beneficiary:

\(1\) Has an income for the year (as defined under 38 U.S.C. 1503)
immediately preceding the application for beneficiary travel that does
not exceed the maximum annual rate of pension that the beneficiary would
receive under 38 U.S.C. 1521 (as adjusted under 38 U.S.C. 5312) if the
beneficiary were eligible for pension during that year; or

\(2\) Is able to demonstrate that due to circumstances such as loss of
employment, or incurrence of a disability, his or her income in the year
of travel will not exceed the maximum annual rate of pension that the
beneficiary would receive under 38 U.S.C. 1521 (as adjusted under 38
U.S.C. 5312) if the beneficiary were eligible for pension; or

\(3\) Has a service-connected disability rated at least 30 percent; or

\(4\) Is traveling in connection with treatment of a service-connected
disability. (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728,
1782, 1783, E.O. 11302)

*Next Section is §70.20*

**§70.20 Application.**

\(a\) A claimant may apply for beneficiary travel orally or in writing
but must provide VA the receipt for each expense other than for mileage.

\(b\) A claimant must apply for payment of beneficiary travel within 30
calendar days after completing beneficiary travel that does not include
a special mode of transportation.

\(c\) For beneficiary travel that includes a special mode of
transportation, a claimant must apply for payment of beneficiary travel
and obtain approval from VA prior to the travel; however, if the travel
included a special mode of transportation and the claimant without prior
approval applies for payment of the beneficiary travel within 30
calendar days after the travel is completed, the application will be
considered timely submitted if the travel was for emergency treatment.

\(d\) Notwithstanding other provisions of this section, for travel that
includes meals and/or lodging, a claimant must apply for and receive
approval prior to obtaining the meals and/or lodging in order to receive
payment in accordance with §70.30(a)(3) for the meals and/or lodging.

\(e\) If VA determines that additional information is needed to make a
determination concerning an application under this part, VA will notify
the claimant in writing of the deficiency and request additional
information. If the claimant has not responded to the request within 30
days, VA may decide the claim prior to the expiration of the 1-year
submission period required by 38 U.S.C. 5103(b)(1) based on all the
information contained in the file, including any information it has
obtained on behalf of the claimant. If VA does so, however, and the
claimant subsequently provides the information within 1 year of the date
of the request, VA must readjudicate the claim.

\(f\) Notwithstanding other provisions of this section, if a person
becomes eligible for payment of beneficiary travel after the travel
takes place, payment may be made if the person applies for travel
benefits within 30 days of the date when the person became eligible for
travel benefits.

\(g\) The date of an application for beneficiary travel is the postmark
date, if mailed; or the date of submission if hand delivered, provided
by electronic means, or provided orally. (Authority: 38 U.S.C. 101, 111,
501, 1701, 1714, 1720, 1728, 1782, 1783, E.O. 11302)

(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-0080.)

**§70.21 Where to apply.**

Claimants for beneficiary travel must submit the information required in
§70.20 to the Chief of the Business Office or other designee at the VA
medical facility responsible for the medical care or services being
provided and for which travel is required. (Authority: 38 U.S.C. 101,
111, 501, 1701, 1714, 1720, 1728, 1782, 1783, E.O. 11302)

*Next Section is §70.30*

**§70.30 Payment principles.**

\(a\) Subject to the other provisions of this section and subject to the
deductibles required under §70.31, VA will pay the following for
beneficiary travel by an eligible beneficiary when travel expenses are
actually incurred:

\(1\) The per mile rate established by the Secretary for the period of
travel for use of privately owned vehicle or the actual cost for use of
the most economical common carrier (bus, train, taxi, airplane, etc.),
for travel to and from VA or VA-authorized health care subject to the
following:

\(i\) Travel by a privately owned vehicle for a compensation and pension
examination that is solely for the convenience of the Government (e.g.,
repeat a laboratory test, redo a poor quality x-ray) may have a
different per mile rate if deemed appropriate by the Secretary.

\(ii\) Per mile payment for use of privately owned vehicle may not
exceed the cost of such travel by public transportation (even if it is
for the convenience of the government) unless determined to be medically
necessary.

\(iii\) Payment for a common carrier may not exceed the amount allowed
for a privately owned vehicle unless travel by a privately owned vehicle
is not reasonably accessible or travel by a common carrier is determined
to be medically necessary.

\(iv\) As required by law, each time the Federal government makes a
change in mileage rates payable under 5 U.S.C. 5702 and 5704 for Federal
employee travel by privately owned vehicle, but not less frequently than
annually, the Secretary shall conduct an investigation of the actual
costs of travel, including lodging and subsistence. In conducting the
investigation, the Secretary shall consult with the Administrator of the
General Services Administration, the Secretary of Transportation, the
Comptroller General of the United States, and veterans**'** service
organizations. As part of the investigation, the Secretary shall review
and consider various factors including vehicle depreciation, State and
Federal vehicle taxes and the costs of gasoline, oil, maintenance,
accessories, parts, tires, and insurance. However, to the extent that
the Administrator of General Services has, within a reasonable period of
time, conducted an investigation of travel costs that included the
factors described in this paragraph, the Secretary may consider that
investigation in lieu of conducting a separate investigation with
respect to the findings of those individual factors. The Secretary is
not obligated to accept or rely on any conclusions of the
Administrator**'**s investigation. Based on the investigation required
by this subsection, VA shall determine whether there is a need to change
the mileage rates payable under paragraph (a) of this section. If a
determination is made that a change is warranted the new rate(s) will be
published in the notices section of the *Federal Register*. Current
rate(s) can be found at
*http://www.va.gov/healtheligibility/Library/pubs/BeneficiaryTravel/BeneficiaryTravel.pdf*
or by contacting the Beneficiary Travel office at the closest VA health
care facility.

\(2\) The actual cost of ferry fares, bridge tolls, road tolls, and
tunnel tolls (supported by receipts for such expenses as required by
§70.20(a)).

\(3\) The actual cost for meals, lodging, or both, not to exceed 50
percent of the amount allowed for government employees under 5 U.S.C.
5702, when VA determines that an overnight stay is required. Factors VA
may consider in making that determination include, but are not limited
to the following:

\(i\) The distance the veteran must travel.

\(ii\) The time of day when VA scheduled the veteran**'**s appointment.

\(iii\) The weather conditions or congestion conditions affecting the
travel.

\(iv\) The veteran**'**s medical condition and its impact on the ability
to travel.

\(4\) The actual cost of a special mode of transportation.

\(b\) Payments under this section are subject to the following:

\(1\) Except as otherwise allowed under this section, payment is limited
to travel from the beneficiary**'**s residence to the nearest VA
facility where the care or services could be provided and from such VA
facility to the beneficiary**'**s residence.

\(2\) Payment may be made for travel from the beneficiary**'**s
residence to the nearest non-VA facility where the care or services
could be provided and from such facility to the beneficiary**'**s
residence if VA determines that it is necessary to obtain the care or
services at a non-VA facility.

\(3\) Payment may be made for travel from or to a place where the
beneficiary is staying (if the beneficiary is not staying at the
beneficiary**'**s residence) but the payment may not exceed the amount
that would be payable for travel under paragraph (b)(1) or (b)(2) of
this section, as applicable.

\(4\) If the beneficiary**'**s residence changed while receiving care or
services, payment for the return trip will be for travel to the new
residence, except that payment may not exceed the amount that would be
allowed from the facility where the care or services could have been
provided that is nearest to the new residence (for example, if during a
period of care or services in Baltimore, a beneficiary changed his or
her address from Baltimore to Detroit, payment for the return trip would
be limited to that allowed for traveling to the new residence from the
nearest facility to the new residence in Detroit where the care or
services could have been provided).

\(5\) If the beneficiary is in a terminal condition at a VA facility or
other facility under VA auspices and travels to a non-VA medical
facility for the purpose of being nearer to his or her residence,
payment may be made for travel to the medical facility receiving the
beneficiary for such purpose.

\(6\) Payment may be made for travel from a non-VA health care facility
where the beneficiary is receiving care or services to the nearest VA
facility where the appropriate care or services could be provided.

\(7\) Payment will not be made for return travel for a beneficiary
receiving an irregular discharge.

\(8\) On a case-by-case basis, payment for travel may be paid for any
distance if it is financially favorable to the government (for example,
payment for travel could be allowed to a more distant nursing home when
admission to that nursing home is a prerequisite to qualify for
community assistance that would more than offset the additional travel
payment).

\(c\) Payment for travel of an attendant under this section will be
calculated on the same basis as for the beneficiary.

\(d\) For shared travel in a privately-owned vehicle, payments are
limited to the amount for one beneficiary (for example, if a beneficiary
and an attendant travel in the same automobile or if two beneficiaries
travel in the same automobile, the amount for mileage will be limited to
the amount for one beneficiary).

\(e\) Beneficiary travel will not be paid under the following
circumstances:

\(1\) The payment of the travel allowance would be counterproductive to
the therapy being provided and such determination is recorded in the
patient**'**s medical records, and

\(2\) The chief of the service or a designee reviewed and approved the
determination by signature in the patient**'**s medical record.
(Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 1783,
E.O. 11302)

**§70.31 Deductibles.**

\(a\) VA shall deduct an amount established by the Secretary for each
one-way trip from the amount otherwise payable under this part for such
one-way trip, except that:

\(1\) VA shall not deduct any amounts in a calendar month after the
completion of six one-way trips for which deductions were made in such
calendar month, and

\(2\) Whenever the Secretary adjusts the mileage rates as a result of
the investigation described in §70.30(a)(1)(iv), the Secretary shall,
effective on the date such mileage rate change should occur, adjust
proportionally the deductible amount in effect at the time of the
adjustment. If a determination is made that a change is warranted, the
new deductible(s) will be published in the notice section of the
*Federal Register*. Current deductible(s) can be found at
*http://www.va.gov/healtheligibility/Library/pubs/BeneficiaryTravel/BeneficiaryTravel.pdf*
or by contacting the Beneficiary Travel office at the closest VA health
care facility.

\(b\) The provisions under this section for making deductions shall not
apply to:

\(1\) Travel that includes travel by a special mode of transportation,

\(2\) Travel to a VA facility for a scheduled compensation and pension
examination, and

\(3\) Travel by a non-veteran.

\(c\) VA shall waive the deductible under this section when it would
cause the beneficiary severe financial hardship. For purposes of this
section, severe financial hardship occurs if the beneficiary:

\(1\) Is in receipt of a VA pension;

\(2\) Has income for the year prior to the year in which application is
made pursuant to §70.20 that does not exceed the household income
threshold determined under 38 U.S.C. 1722(a) (the current income
thresholds can be found at
*http://www.va.gov/healtheligibility/Library/pubs/VAIncomeThresholds/VAIncomeThresholds.pdf*);
or

\(3\) Has circumstances in the year the application is made pursuant to
§70.20 that cause his or her projected income not to exceed the
household income threshold determined under 38 U.S.C. 1722(a).

\(d\) Waivers granted under this section are valid:

\(1\) Through the end of the calendar year of the application made
pursuant to §70.20; or

\(2\) Until there is a change in the beneficiary**'**s household income
during the calendar year of the application made pursuant to §70.20 that
results in the beneficiary no longer meeting the terms of paragraph (c)
of this section.

\(e\) A beneficiary granted a waiver under this section must promptly
inform VA of any household income status change during the waiver period
that results in the beneficiary no longer meeting the terms of paragraph
(c) of this section. (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714,
1720, 1728, 1782, 1783, E.O. 11302)

(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-0091.)

**§70.32 Reimbursement or prior payment.**

\(a\) Payment will be made on a reimbursement basis after the travel has
occurred, except that:

> \(1\) Upon completion of examination, treatment, or care, payment may
> be made before the return travel has occurred, and
>
> \(2\) In the case of travel by a person to or from a VA facility by
> special mode of transportation, VA may provide payment for beneficiary
> travel to the provider of the transportation before determining
> eligibility of such person for such payment if VA determines that the
> travel is for emergency treatment and the beneficiary or other person
> made a claim that the beneficiary is eligible for payment for the
> travel.
>
> \(b\) Payment under this part will be made to the beneficiary, except
> that VA may make a beneficiary travel payment under this part to a
> person or organization other than the beneficiary upon satisfactory
> evidence that the person or organization actually provided or paid for
> the travel. (Authority: 38 U.S.C. 101, 111, 501, 1701, 1714, 1720,
> 1728, 1782, 1783, E.O. 11302)

*Next Section is §70.40*

**§70.40 Administrative procedures.**

Upon denial of an initial claim for beneficiary travel, VA will provide
the claimant written notice of the decision and advise the claimant of
reconsideration and appeal rights. A claimant who disagrees with the
initial decision denying the claim for beneficiary travel, in whole or
in part, may obtain reconsideration under §17.133 of this chapter and
may file an appeal to the Board of Veterans**'** Appeals under parts 19
and 20 of this chapter. An appeal may be made directly to the Board of
Veterans**'** Appeals without requesting reconsideration. (Authority: 38
U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 1783, E.O. 11302)

**§70.41 Recovery of payments.**

Payments for beneficiary travel made to persons ineligible for such
payment are subject to recapture under applicable law, including the
provisions of §§1.900 through 1.953 of this chapter. (Authority: 38
U.S.C. 101, 111, 501, 1701, 1714, 1720, 1728, 1782, 1783, E.O. 11302)

**§70.42 False statements.**

A person who makes a false statement for the purpose of obtaining
payments for beneficiary travel may be prosecuted under applicable laws,
including 18 U.S.C. 1001. (Authority: 38 U.S.C. 101, 111, 501, 1701,
1714, 1720, 1728, 1782, 1783, E.O. 11302)

*Next Section is §70.50*

**§70.50 Reduced fare requests.**

Printed reduced-fare requests for use by eligible beneficiaries and
their attendants when traveling at their own expense to or from any VA
facility or VA-authorized facility for authorized VA health care are
available from any VA medical facility. Beneficiaries may use these
request forms to ask transportation providers, such as bus companies,
for a reduced fare. Whether to grant a reduced fare is determined by the
transportation provider. (Authority: 38 U.S.C. 101, 111, 501, 1701,
1714, 1720, 1728, 1782, 1783, E.O. 11302)

*End of Part 70*