[Federal Register Volume 84, Number 21 (Thursday, January 31, 2019)]
[Proposed Rules]
[Pages 627-633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00277]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AQ47


Urgent Care

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its regulations that govern VA health care. This rule would grant 
eligible veterans access to urgent care from qualifying non-VA entities 
or providers without prior approval from VA. This rulemaking would 
implement the mandates of the VA MISSION Act of 2018 and increase 
veterans' access to health care in the community.

DATES: Comments must be received on or before March 4, 2019.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to: Director, Regulation 
Policy and Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue, North West, Room 1063B, Washington, DC 20420; or by fax 
to (202) 273-9026. (This is not a toll-free telephone number.) Comments 
should indicate that they are submitted in response to ``RIN 2900-AQ47 
Urgent Care.'' Copies of comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday 
(except holidays). Please call (202) 461-4902 for an appointment. (This 
is not a toll-free telephone number.) In addition, during the comment 
period, comments may be viewed online through the Federal Docket 
Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director of Policy and 
Planning. 3773 Cherry Creek North Drive, Denver, CO 80209. 
<a href="/cdn-cgi/l/email-protection#5c16332f392c347218292e3d326e1c2a3d723b332a"><span class="__cf_email__" data-cfemail="c18baeb2a4b1a9ef85b4b3a0aff381b7a0efa6aeb7">[email protected]</span></a>. (303) 370-1637. (This is not a toll-free number.)

[[Page 628]]


SUPPLEMENTARY INFORMATION: On June 6, 2018, section 105 of Public Law 
115-182, the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson 
VA Maintaining Internal Systems and Strengthening Integrated Outside 
Networks Act of 2018, or the VA MISSION Act of 2018, amended title 38 
of the United States Code (U.S.C.) by adding a new section 1725A, 
Access to walk-in care. The new section 1725A was further amended 
through the Department of Veterans Affairs Expiring Authorities Act of 
2018 (Pub. L. 115-251). This benefit is intended to offer eligible 
veterans convenient care for certain, limited, non-emergent health care 
needs. Section 1725A(a) and (g) direct the Secretary to establish 
procedures and regulations to ensure eligible veterans are able to 
access such care from qualifying non-VA entities or providers to ensure 
their access to care when minor injury or illness arises. VA is 
required to develop procedures to ensure eligible veterans are able to 
access this care from qualifying non-VA entities or providers. Eligible 
veterans would include any enrolled veteran who has received care under 
chapter 17 of title 38 United States Code (U.S.C.) within the 24-month 
period preceding the furnishing of care under this section. Care under 
chapter 17 of title 38, U.S.C., would include any of the following: 
Care provided in a VA facility, care authorized by VA performed by a 
community provider, care furnished by a State Veterans home, or urgent 
care under this proposed section. Qualifying non-VA entities or 
providers would include any non-VA entity or provider that has entered 
into a contract, agreement, or other arrangement with VA to provide 
services under this section.
    VA proposes to refer to this benefit as urgent care, instead of 
walk-in care. As explained in further detail below, this benefit will 
include care provided at both urgent care facilities and walk-in retail 
health clinics. We believe referring to this type of care as ``urgent 
care'' would be consistent with industry practice.
    This proposed rule would implement the mandates of section 1725A, 
as added by the VA MISSION Act of 2018 as amended, by establishing a 
new Sec.  17.4600.
    Proposed paragraph (a) would establish the purpose for this 
section. We would state that this section establishes procedures for 
accessing urgent care, which would be available to eligible veterans 
from qualifying non-VA entities or providers under the requirements 
established by this rulemaking. This would be consistent with sections 
1725A(a) and (g).
    Proposed paragraph (b) would define the terms for this section. We 
would define the term ``eligible veteran'' in proposed paragraph (b)(1) 
as a veteran described in 38 U.S.C. 1725A(b). Section 1725A(b) defines 
eligible veterans as those who are enrolled under section 1705(a) of 
title 38, U.S.C. and who have received medical care under chapter 17 of 
title 38, U.S.C., within the 24-month period preceding the furnishing 
of urgent care under this new program. We would not restate the 
definition in section 1725A in the event that this section is amended 
in the future. As stated earlier, veterans have received care under 
chapter 17 of title 38, U.S.C., when they have received care provided 
in a VA facility, care authorized by VA and performed by a community 
provider, care furnished by a State Veterans home, or urgent care under 
this proposed section.
    The term ``episodic care'' appears, but is not defined, in section 
1725A(h). We propose to define the term ``episodic care'' in proposed 
paragraph (b)(2) as care or services provided to an eligible veteran 
for a particular health condition, or a limited set of particular 
health conditions, without an ongoing relationship being established 
between the eligible veteran and qualifying non-VA entities or 
providers. Episodic care would be only for a particular health 
condition (or a flu shot) or a limited set of particular health 
conditions, to be addressed in a single visit. For example, an eligible 
veteran could seek episodic care for a sore throat, an ankle sprain, or 
both in a single visit. There would be no further relationship between 
the qualifying non-VA entity or provider and the eligible veteran for 
the treatment of those health conditions. VA believes that flu shots, 
as well as therapeutic vaccines that are furnished in the course of 
treatment of another condition, would be clinically appropriate because 
the risk of an adverse reaction would be minimal for a flu shot, and 
therapeutic vaccines would be necessary for the treatment of certain 
conditions. For example, a veteran seeking treatment for a wound caused 
by rusted metal requires treatment for the wound and may require a 
tetanus vaccine as part of the course of treatment. VA acknowledges 
that there may be other preventive treatments with minimal risk of 
adverse action, however, VA considers these preventive care treatments 
to be part of the veteran's longitudinal care, as such, these other 
treatments should be provided by the veteran's primary care provider 
and not as part of urgent care. As stated in section 1725A(h), urgent 
care should not be used for the longitudinal management of health care. 
These requirements are consistent with the general model of urgent care 
where patients seek health care for the treatment of minor injuries and 
illnesses through a single visit.
    We propose to define the term ``longitudinal management of 
conditions'' in proposed paragraph (b)(3) as outpatient care that 
addresses important disease prevention and treatment goals and is 
dependent upon bidirectional communications that are ongoing over an 
extended period of time. Section 1725A(h) excludes from the definition 
of walk-in care the longitudinal management of conditions; while we 
would define the term ``longitudinal management of conditions,'' we 
would also state that, for purposes of this section, the term 
``longitudinal care'' is synonymous with longitudinal management of 
conditions because we believe ``longitudinal care'' is better 
understood and would be clearer in the context of the regulation. We 
would only refer to outpatient care because urgent/walk-in care 
providers do not provide inpatient care or extended care services. The 
reference to bidirectional communications that are ongoing over an 
extended period of time is intended to reflect that longitudinal care 
occurs within the context of an ongoing relationship between the 
provider and patient.
    Proposed paragraph (b)(4) would define the term ``qualifying non-VA 
entities or providers'' consistent with the definition in section 
1725A(c), but we have specifically included Federally-qualified health 
centers based on section 1725A(d). We would define ``qualifying non-VA 
entity or provider'' as a non-VA entity or provider, including 
Federally-qualified health centers as defined in 42 U.S.C. 
1396d(l)(2)(B), that has entered into a contract, agreement, or other 
arrangement with the Secretary to furnish urgent care under the 
section. VA currently furnishes care in the community through networks 
of providers that are maintained by third-party administrators. The 
third-party administrator meets the definition of the qualifying non-VA 
entity or provider--they are non-VA entities or providers that have 
entered into a contract or agreement with the Secretary to furnish care 
and services under this section--and it is through these administrators 
that the urgent care benefit primarily will be provided.
    We propose to define the term ``urgent care'' in proposed paragraph 
(b)(5). This definition would include several key

[[Page 629]]

conditions as follows. This definition would only apply to this 
section; other uses of the term ``urgent care'' or ``urgent services'' 
in other VA regulations, specifically Sec. Sec.  17.101, 17.106, and 
70.71, would not refer to this benefit. Section 1725A(h) defines the 
term ``walk-in care'' as non-emergent care provided by a qualifying 
non-Department entity or provider that furnishes episodic care and not 
longitudinal management of conditions and is otherwise defined through 
regulations the Secretary shall promulgate. However, VA proposes to use 
the term ``urgent care'' instead of ``walk-in care.'' Urgent care is an 
industry standard description of the services described below available 
at specific provider locations, including Federally Qualified Health 
Centers (FQHCs) as required under section 1725A(h). VA prefers to use 
an industry standard name for the benefit.
    First, VA proposes to provide in proposed paragraph (b)(5) that 
urgent care is those services being provided by walk-in retail health 
clinics or urgent care facilities, as designated by the Centers for 
Medicare and Medicaid Services, furnished by a qualifying non-VA entity 
or provider, and as further defined in the paragraph. We believe that 
defining urgent care to include those services that are furnished by 
walk-in retail health clinics or urgent care facilities, as designated 
by the Centers for Medicare and Medicaid Services, would be in 
alignment with public expectations of the types of urgent care services 
that are otherwise available under other health care plans. The Centers 
for Medicare and Medicaid Services currently describes the services 
that walk-in retail health clinics and urgent care facilities furnish 
at the following website: https://www.cms.gov/Medicare/Coding/place-of-service-codes/Place_of_Service_Code_Set.html. VA's proposed definition 
would also allow the benefit available under this section to evolve 
based upon advances in the industry regarding the types of services 
offered by these clinics and facilities. A qualifying non-VA entity or 
provider would have to enter into a contract, agreement, or other 
arrangement with VA to furnish services under this section. This is a 
requirement of section 1725A(c), and is also a critical part of the 
definition of a ``qualifying non-VA entity or provider'' under 
paragraph (b)(4). We note that, while we propose to define the scope of 
services available as urgent care in paragraph (b)(5), because of our 
reliance on contracts, agreements, or other arrangements, the actual 
services available at a particular qualifying non-VA entity or provider 
may vary. We further note that any care that is provided to an eligible 
veteran that does not meet this definition, whether it be that the care 
was provided by a non-qualifying entity or provider or that the care 
provided was beyond the scope of urgent care as defined in this 
section, will not be covered by VA. In these situations, the eligible 
veteran would be liable for the cost of such care.
    In proposed paragraph (b)(5)(i)(A), however, VA would not, except 
as provided for in paragraph (b)(5)(i)(B) or (b)(5)(iii), include 
preventive health services, as defined in 38 U.S.C. 1701(9). We would 
exclude generally preventive services because, consistent with the 
statutory requirement in section 1725A(e), the best way to ensure 
continuity of care is to have preventive health services coordinated 
and managed by a primary care provider furnishing longitudinal care. 
Section 1725A(e) requires that the Secretary ensure continuity of care 
for eligible veterans receiving this benefit. Preventive health 
services are a critical component to VA's health care management 
system. VA believes that urgent care is fundamentally distinct from 
providing longitudinal health care within VA or the community. The best 
way to address a veteran's health care needs would be to manage a 
veteran's preventive health services as part of their overall health 
care rather than attempting to furnish such services on an episodic and 
uncoordinated basis. As such, we believe that to ensure continuity of 
care, as required by section 1725A(e), VA should exclude generally 
preventive health services from the definition of urgent care.
    We would further define urgent care in proposed paragraph 
(b)(5)(i)(B) to include immunizations against influenza (flu shots), as 
well as therapeutic vaccines that are necessary in the course of 
treatment of an otherwise included service. Vaccinations are included 
within the definition of preventive health services in 38 U.S.C. 
1701(9)(G) (which refers to immunizations) and as such would have been 
excluded under paragraph (b)(5)(i)(A).
    We would also add in paragraph (b)(5)(ii) another requirement of 
urgent care: It must be furnished as ``episodic care for eligible 
veterans needing immediate non-emergent medical attention, but does not 
include longitudinal care.'' This is based on the definition of walk-in 
care in section 1725A(h).
    Finally, we propose to state in paragraph (b)(5)(iii) that VA may 
provide additional services it determines to be appropriate if it is in 
the interest of eligible veterans', based on identified health needs. 
VA would inform the public via Federal Register document, published as 
soon as practicable, and other communication as VA determines 
appropriate. VA's determination that additional services are in the 
interest of eligible veterans could be made to expand services 
regionally or nationally and for specified periods of time. This 
authority would only allow for the provision of services that 
qualifying non-VA entities or providers would otherwise furnish, but 
that would be excluded by our definition of the benefit of urgent care. 
Principally, these services would include preventive health services, 
including immunizations that are not for influenza or therapeutic 
vaccines. For example, if there is a localized outbreak of an 
infectious disease, VA could provide eligible veterans immunizations to 
prevent this disease as part of urgent care until the outbreak is 
contained.
    Proposed paragraph (c) would establish procedures for urgent care. 
Procedures are required pursuant to section 1725A(a). We would state in 
proposed paragraph (c)(1) that eligible veterans may ``receive urgent 
care from a qualifying non-VA entity or provider without prior approval 
from VA.'' We believe this would be consistent with the general 
understanding of urgent and walk-in care, as well as the structure of 
the statute, which authorizes this benefit outside of the general 
Veterans Community Care Program under the amendments to section 1703, 
as made by section 101 of the VA MISSION Act of 2018. The general 
Veterans Community Care Program requires authorization for services, 
see amendments to section 1703(a)(3), while there is no similar 
requirement in section 1725A. This arrangement, combined with the 
Senate Committee's report on this language, suggest that the purpose of 
this provision is to ensure that eligible veterans have access to 
convenient care. See S. Rpt. 115-212, p. 18.
    We would provide in proposed paragraph (c)(2) that VA will publish 
a website containing information on urgent care, including the names, 
locations, and contact information for qualifying non-VA entities or 
providers within an eligible veteran's community. The website would 
also include a list of services and other general information on the 
urgent care program established under this section.
    Proposed paragraph (c)(3) would provide, in general, eligibility 
under the

[[Page 630]]

section does not affect eligibility for hospital care or medical 
services under the medical benefits package, as defined in Sec.  17.38, 
or other benefits addressed in title 38. Nothing in the section waives 
the eligibility requirements established in other statutes or 
regulations. This proposed paragraph would address the effect of urgent 
care on other provisions and programs administered by VA. Proposed 
paragraph (c)(3) would provide that, generally, eligibility for urgent 
care does not affect eligibility for hospital care or medical services 
under the medical benefits package or other benefits addressed in title 
38. If particular services have unique eligibility standards, only 
veterans who are eligible under this section and who meet the 
eligibility standards for those services can elect to receive urgent 
care for them. Additionally, nothing in this section waives the 
eligibility requirements established in other statutes or regulations. 
However, eligibility for urgent care could affect eligibility for other 
benefits indirectly. For example, section 1725(b)(2)(B) provides that 
to be eligible for reimbursement for emergency treatment, a veteran 
must have received care under chapter 17 of title 38, U.S.C., within 
the 24-month period preceding the furnishing of such emergency 
treatment. If a veteran's only care within the 24-month period 
preceding the furnishing of such emergency treatment was for urgent 
care pursuant to these regulations, the veteran would satisfy this 
eligibility requirement and could be eligible for reimbursement for 
emergency treatment under section 1725.
    Proposed paragraph (d) would establish the copayment obligations 
for eligible veterans. Section 1725A(f)(1)(A) authorizes the Secretary 
to require an eligible veteran to pay the United States a copayment for 
each episode of hospital care or medical services provided under the 
section if the eligible veteran would be required to pay a copayment 
under this title. Section 1725A(f)(1)(B) states that an eligible 
veteran not required to pay a copayment under the title may access 
walk-in care without a copayment for the first two visits in a calendar 
year. For any additional visits, a copayment at an amount determined by 
the Secretary may be required. Section 1725A(f)(1)(C) further states 
that an eligible veteran required to pay a copayment under the title 
may be required to pay a regular copayment for the first two walk-in 
care visits in a calendar year. For any additional visits, a higher 
copayment at an amount determined by the Secretary may be required. 
Similarly, section 1725A(f)(2) states that after the first two episodes 
of care furnished to an eligible veteran under the section, the 
Secretary may adjust the copayment required of the veteran under the 
subsection based upon the priority group of enrollment of the eligible 
veteran, the number of episodes of care furnished to the eligible 
veteran during a year, and other factors the Secretary considers 
appropriate under the section.
    In this rulemaking, we propose to establish a regular copayment for 
urgent care of $30. An eligible veteran's liability for the $30 regular 
copayment would depend on the veteran's enrollment category and the 
number of visits in a calendar year, as further explained below. We 
note that section 1725A(f)(3), which allows the Secretary to prescribe 
by rule the amount or amounts of copayments required under this 
section, allows the Secretary to establish unique regular copayments 
applicable to urgent care when provided under this section. We further 
note that section 1725A(f)(4) states that sections 8153(c) and 1703A(j) 
do not apply to section 1725A(f). Sections 8153(c) and 1703A(j) 
stipulate that care furnished pursuant to an agreement authorized by 
one of these sections is subject to the same terms as though provided 
in a facility of the Department, and that provisions of chapter 17 
applicable to veterans receiving such care and services in a VA medical 
facility shall apply to veterans treated under this section. We 
interpret these exemptions, along with section 1725A(f)(3), to permit 
the Secretary to establish unique copayment amounts applicable to 
urgent care.
    Copayments are a common feature of health care, including VA health 
care. They are an important mechanism for guiding behavior to ensure 
that patients receive care at an appropriate location. As previously 
stated in this rulemaking, urgent care does not include longitudinal 
care. Urgent care is considered to be a convenient option for care, but 
is not intended to be used as a substitute for traditional primary 
care. Also, collecting copayments allows VA to utilize its health care 
resources more efficiently.
    VA believes that $30 amount is consistent with the copayments 
charged by other Federal programs for similar benefits under the 
TRICARE and Medicare programs. Also, the $30 amount is a reasonable 
charge because it is considerably less than what is commercially 
available, which on average is approximately $67, based on an analysis 
VA conducted of private sector benefits under commercial health plans. 
This amount is consistent with legislative history suggesting that the 
copayment amount not exceed $50 per visit. S. Rpt. 115-212, p. 19. We 
believe that the convenience associated with accessing urgent care 
merits a copayment amount that could be higher than the amount that 
would apply if VA furnished that care in a VA facility or through 
authorized community care. Eligible veterans would not owe copayments 
at the time of service, consistent with current practice for VA and VA-
authorized community care.
    Consistent with section 1725A(f)(1)(B), we propose to require all 
eligible veterans who are enrolled in priority groups 1-6, except those 
veterans described in Sec.  17.36(d)(3)(iii), to only pay the $30 
copayment after three urgent care visits. For further information on 
priority groups see Sec.  17.36. Although these veterans are not 
required to pay copayments for other health care services furnished or 
paid for by VA, section 1725A(f)(1)(B) authorizes VA to start requiring 
a copayment after two visits, we believe that is appropriate to require 
a copayment after three visits instead of two. For those veterans who 
are enrolled in priority groups 7-8, including those veterans described 
in Sec.  17.36(d)(3)(iii), we propose to charge the $30 for all visits 
and will not exercise the authority under section 1725A(f)(1)(C) and 
(f)(2) to increase their copayment rate after two visits.
    Therefore, we would state in proposed paragraph (d)(1) that, except 
as provided in paragraph (d)(2) or (d)(3), an eligible veteran, as a 
condition for receiving urgent care provided by VA under this section, 
must agree to pay VA (and is obligated to pay VA) a copayment of $30 if 
the veteran is enrolled in priority groups 1-6, except those veterans 
described in Sec.  17.36(d)(3)(iii) and has more than three urgent care 
visits under this section in a year, or if the veteran is enrolled in 
priority groups 7-8, including those veterans described in Sec.  
17.36(d)(3)(iii). These conditions would be stated in proposed 
paragraph (d)(1)(i), dealing with veterans enrolled in priority groups 
1-6 generally, and in proposed paragraph (d)(1)(ii), dealing with 
veterans enrolled in priority groups 7-8.
    Proposed paragraph (d)(2) would provide that an eligible veteran 
who receives urgent care under Sec.  17.4600(b)(5)(iii) or urgent care 
consisting solely of an immunization against influenza (flu shot) is 
not subject to a copayment under paragraph (d)(1). VA would not charge 
a copayment for

[[Page 631]]

flu shots to be consistent with private care best practice standards 
and be in alignment with other Federal programs. The Affordable Care 
Act requires health insurers to cover the flu shot without charging a 
copayment or coinsurance. While the insurer can require an individual 
to go to a specific facility to receive a flu shot, most insurers allow 
individuals to go to walk-in clinics for this benefit. Additionally, 
neither Medicare nor TRICARE charges a copayment for the flu shot. If 
VA were to charge a copayment for flu shots, we would not be aligned 
with the private sector or other government agencies. Furthermore, VA 
does not currently require a copayment for a flu shot if veterans 
receive one at a VA clinic on a walk-in basis, and we believe it is in 
the veterans' best interest to continue this practice.
    Proposed paragraph (d)(3) would provide that if an eligible veteran 
receives more than one type of care on the same day that would subject 
the veteran to a copayment under Sec.  17.108, which establishes 
copayments for inpatient and outpatient care, or Sec.  17.111, which 
establishes copayments for extended care services, VA would only charge 
the higher copayment for that day. We would only charge one copayment 
to reduce the burden on the part of the eligible veteran. This is 
consistent with how VA charges copayments for multiple VA visits in the 
same day. See Sec.  17.108(c)(2) and (f). VA would also only charge a 
single copayment if an eligible veteran receives more than one episode 
of care under Sec.  17.4600 on the same day.
    VA also proposes to amend Sec.  17.105 to reflect the copayments as 
established in this rulemaking. First, VA would propose to include 
proposed Sec.  17.4600 among the list of regulatory authorities under 
which copayments would be subject to a waiver under Sec.  17.105(c). 
This would ensure that urgent care copayments would be treated the same 
as other copayments for eligible veterans seeking a waiver of their 
liability. Second, VA would delete the list of authorities for Sec.  
17.105 to comply with the guidelines of the Office of the Federal 
Register, but would add the complete list of authorities for this 
regulation, including 38 U.S.C. 1725A, among the authority citations 
listed for part 17.
    VA similarly proposes to amend Sec.  17.108(e) to make clear that 
the copayment exemptions for outpatient medical care specified in that 
section also apply to urgent care under this section. This would ensure 
consistent application of copayment rules for eligible veterans. We 
would make similar conforming changes regarding the list of authorities 
for Sec.  17.108.

Effect of Rulemaking

    The Code of Federal Regulations, as proposed to be revised by this 
proposed rulemaking, would represent the exclusive legal authority on 
this subject. No contrary rules or procedures would be authorized. All 
VA guidance would be read to conform with this proposed rulemaking if 
possible or, if not possible, such guidance would be superseded by this 
rulemaking.

Paperwork Reduction Act

    This rulemaking does not contain any provisions constituting 
collections of information under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. This proposed rule would not have a significant 
economic impact on qualifying non-VA entities or providers. To the 
extent there is any such impact, it would result in increased business 
and revenue for them. We also do not believe there will be a 
significant economic impact on insurance companies, as claims would 
only be submitted for care that would otherwise have been received 
whether such care was authorized under this Program or not. Therefore, 
pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial 
and final regulatory flexibility analysis requirements of 5 U.S.C. 603 
and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), as any regulatory action that is likely 
to result in a rule that may: (1) Have an annual effect on the economy 
of $100 million or more or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action and determined that the 
action is an economically significant regulatory action under Executive 
Order 12866. VA's regulatory impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its regulatory impact analysis are available on 
VA's website at http://www.va.gov/orpm by following the link for VA 
Regulations Published from FY 2004 through FYTD.
    Executive Order 12866 also directs agencies to ``in most cases . . 
. include a comment period of not less than 60 days.'' This regulation 
will increase access to care for eligible veterans in local communities 
across the country. Providing a 30-day comment period will allow the 
Secretary to expedite the commencement of this new benefit thereby 
increasing access to health care for eligible veterans. Moreover, we 
believe that urgent care is a common benefit among other health care 
plans and thus should not be an unfamiliar benefit to the public. Given 
general public familiarity with this benefit, we believe that 30 days 
would be a sufficient period of time for the public to comment on this 
rulemaking. In sum, providing a 60-day public comment period instead of 
a 30-day public comment period would be against public interest and the 
health and safety of eligible veterans. For the above reasons, the 
Secretary issues this rule with a 30-day public comment period. VA will 
consider and address comments that are received within 30 days of the 
date this proposed rule is published in the Federal Register.

[[Page 632]]

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are as follows: 64.009, Veterans 
Medical Care Benefits; 64.012, Veterans Prescription Service; 64.013, 
Veterans Prosthetic Appliances; and 64.018, Sharing Specialized Medical 
Resources.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Claims, Day care, Dental 
health, Government contracts, Health care, Health facilities, Health 
professions, Health records, Mental health programs, Nursing homes, 
Reporting and recordkeeping requirements, Travel and transportation 
expenses, Veterans.

Signing Authority

    The Secretary of Veterans Affairs approved this document 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. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on November 9, 2018, for publication.

    Dated: January 25, 2019.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set forth in the preamble, we propose to amend 38 
CFR part 17 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 is amended by adding entries for 
Sec. Sec.  17.105, 17.108, and 17.4600 to read in part as follows:

    Authority: 38 U.S.C. 501, and as noted in specific sections.

* * * * *
    Section 17.105 is also issued under 38 U.S.C. 501, 1721, 1722A, 
1724, and 1725A.
    Section 17.108 is also issued under 38 U.S.C. 501, 1710, 1725A, 
1730A, Sec. 101, Pub. L. 113-146, 128 Stat. 1754.
* * * * *
    Section 17.4600 is also issued under 38 U.S.C. 1725A.


Sec.  17.105  [Amended]

0
2. Amend Sec.  17.105 by:
0
a. In paragraph (c), removing ``or 17.111'' and adding in its place 
``17.111, or 17.4600''.
0
b. Removing the authority citation at the end of the section.
0
3. Amend Sec.  17.108 by:
0
a. Revising paragraph (e) introductory text.
0
b. Removing the authority citation at the end of the section.
    The revision reads as follows:


Sec.  17.108  Copayments for inpatient hospital care and outpatient 
medical care.

* * * * *
    (e) Services not subject to copayment requirements for inpatient 
hospital care, outpatient medical care, or urgent care. The following 
are not subject to the copayment requirements under this section or 
Sec.  17.4600.
* * * * *
0
4. Add Sec.  17.4600 to read as follows:


Sec.  17.4600  Urgent care.

    (a) Purpose. The purpose of this section is to establish procedures 
for accessing urgent care. Eligible veterans may obtain urgent care 
from qualifying non-VA entities or providers under these requirements.
    (b) Definitions. The following definitions apply to this section.
    (1) Eligible veteran means a veteran described in 38 U.S.C. 
1725A(b).
    (2) Episodic care means care or services provided to an eligible 
veteran for a particular health condition, or a limited set of 
particular health conditions, without an ongoing relationship being 
established between the eligible veteran and qualifying non-VA entities 
or providers.
    (3) Longitudinal management of conditions means outpatient care 
that addresses important disease prevention and treatment goals and is 
dependent upon bidirectional communications that are ongoing over an 
extended period of time. For purposes of this section, the term 
``longitudinal management of conditions'' and ``longitudinal care'' are 
synonymous.
    (4) Qualifying non-VA entity or provider means a non-VA entity or 
provider, including Federally-qualified health centers as defined in 42 
U.S.C. 1396d(l)(2)(B), that has entered into a contract, agreement, or 
other arrangement with the Secretary to furnish urgent care under this 
section.
    (5) Urgent care means those services being provided by walk-in 
retail health clinics or urgent care facilities, as designated by the 
Centers for Medicare and Medicaid Services, furnished by a qualifying 
non-VA entity or provider, and as further defined in paragraphs 
(b)(5)(i) through (iii) of this section.
    (i)(A) Except as provided in paragraph (b)(5)(i)(B) or (b)(5)(iii) 
of this section, urgent care does not include preventive health 
services, as defined in section 1701(9) of title 38, United States 
Code.
    (B) Urgent care includes immunization against influenza (flu 
shots), as well as therapeutic vaccines that are necessary in the 
course of treatment of an otherwise included service.
    (ii) Urgent care may only be furnished as episodic care for 
eligible veterans needing immediate non-emergent medical attention, but 
does not include longitudinal care.
    (iii) If VA determines that the provision of additional services is 
in the interest of eligible veterans, based upon identified health 
needs, VA may offer such additional services under this section as VA 
determines appropriate. Such services may be limited in duration and 
location. VA will inform the public through a Federal Register 
document, published as soon as practicable, and other communications, 
as appropriate.
    (c) Procedures. (1) Eligible veterans may receive urgent care from 
a qualifying non-VA entity or provider without prior approval from VA.
    (2) VA will publish a website containing information on urgent 
care, including the names, locations, and contact information for 
qualifying non-VA entities or providers.
    (3) In general, eligibility under this section does not affect 
eligibility for hospital care or medical services under the medical 
benefits package, as defined in Sec.  17.38, or other benefits 
addressed in this title. Nothing in this section waives the eligibility 
requirements established in other statutes or regulations.
    (d) Copayment. (1) Except as provided in paragraphs (d)(2) and (3) 
of this section, an eligible veteran, as a condition for receiving 
urgent care provided by VA under this section, must agree to pay VA 
(and is obligated to pay VA) a copayment of $30:
    (i) After three visits in a calendar year if such eligible veteran 
is enrolled under Sec.  17.36(b)(1) through (6), except those veterans 
described in Sec.  17.36(d)(3)(iii) for all matters not covered by 
priority category 6.
    (ii) If such eligible veteran is enrolled under Sec.  17.36(b)(7) 
or (8), including veterans described in Sec.  17.36(d)(3)(iii).

[[Page 633]]

    (2) An eligible veteran who receives urgent care under paragraph 
(b)(5)(iii) of this section or urgent care consisting solely of an 
immunization against influenza (flu shot) is not subject to a copayment 
under paragraph (d)(1) of this section.
    (3) If an eligible veteran would be required to pay more than one 
copayment under this section, or a copayment under this section and a 
copayment under Sec.  17.108 or Sec.  17.111, on the same day, the 
eligible veteran will only be charged the higher copayment.

[FR Doc. 2019-00277 Filed 1-30-19; 8:45 am]
 BILLING CODE 8320-01-P


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