Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules 627 

values cited above, the Departments 

certify that this rulemaking will not 

have a significant economic effect on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act. 

Small Business Regulatory Enforcement 

Fairness Act 

Under the Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C. 801 

et seq.), this proposed rule is not a major 

rule. It will not have an effect on the 

economy of $100 million or more, will 

not cause a major increase in costs or 

prices for consumers, and will not have 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Executive Order 12630 

Title VIII of ANILCA requires the 

Secretaries to administer a subsistence 

priority for rural Alaskan residents on 

public lands. The scope of this program 

is limited by definition to certain public 

lands. Likewise, these proposed 

regulations have no potential takings of 

private property implications as defined 

by Executive Order 12630. 

Unfunded Mandates Reform Act 

The Secretaries have determined and 

certify pursuant to the Unfunded 

Mandates Reform Act, 2 U.S.C. 1502 et 

seq., that this rulemaking will not 

impose a cost of $100 million or more 

in any given year on local or State 

governments or private entities. The 

implementation of this rule is by 

Federal agencies and there is no cost 

imposed on any State or local entities or 

tribal governments. 

Executive Order 12988 

The Secretaries have determined that 

these regulations meet the applicable 

standards provided in §§ 3(a) and 3(b)(2) 

of Executive Order 12988, regarding 

civil justice reform. 

Executive Order 13132 

In accordance with Executive Order 

13132, the proposed rule does not have 

sufficient federalism implications to 

warrant the preparation of a Federalism 

Assessment. Title VIII of ANILCA 

precludes the State from exercising 

subsistence management authority over 

fish and wildlife resources on Federal 

lands unless it meets certain 

requirements. 

Executive Order 13175 

Title VIII of ANILCA does not provide 

specific rights to tribes for the 

subsistence taking of wildlife, fish, and 

shellfish. However, as described above 

under Tribal Consultation and 

Comment, the Secretaries, through the 

Board, will provide federally recognized 

Tribes and Alaska Native corporations 

an opportunity to consult on this 

proposed rule. 

Executive Order 13211 

Executive Order 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. However, this proposed rule is 

not a significant regulatory action under 

E.O. 13211, affecting energy supply, 

distribution, or use, and no Statement of 

Energy Effects is required. 

Drafting Information 

Theo Matuskowitz drafted this 

proposed rule under the guidance of 

Thomas C.J. Doolittle, Jr. of the Office of 

Subsistence Management, Alaska 

Regional Office, U.S. Fish and Wildlife 

Service, Anchorage, Alaska. Additional 

assistance was provided by: 

• Daniel Sharp, Alaska State Office, 

Bureau of Land Management; 

• Clarence Summers, Alaska Regional 

Office, National Park Service; 

• Dr. Glenn Chen, Alaska Regional 

Office, Bureau of Indian Affairs; 

• Carol Damberg, Alaska Regional 

Office, U.S. Fish and Wildlife Service; 

and 

• Thomas Whitford, Alaska Regional 

Office, USDA–Forest Service. 

List of Subjects 

36 CFR Part 242 

Administrative practice and 

procedure, Alaska, Fish, National 

forests, Public lands, Reporting and 

recordkeeping requirements, Wildlife. 

50 CFR Part 100 

Administrative practice and 

procedure, Alaska, Fish, National 

forests, Public lands, Reporting and 

recordkeeping requirements, Wildlife. 

Proposed Regulation Promulgation 

For the reasons set out in the 

preamble, the Federal Subsistence 

Board proposes to amend 36 CFR part 

242 and 50 CFR part 100 for the 2020– 

21 and 2021–22 regulatory years. 

■ The text of the proposed amendments 

to 36 CFR 242.24, 242.25, and 242.26 

and 50 CFR 100.24, 100.25, and 100.26 

is the final rule for the 2018–2020 

regulatory periods for wildlife (83 FR 

50759; October 9, 2018). 

Dated: December 21, 2018. 

Thomas C.J. Doolittle, 

Acting Assistant Regional Director, U.S. Fish 

and Wildlife Service. 

Dated: December 21, 2018. 

Thomas Whitford, 

Subsistence Program Leader, USDA—Forest 

Service. 

[FR Doc. 2019–00424 Filed 1–30–19; 8:45 am] 

BILLING CODE 3411–15–4333–15–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AQ47 

Urgent Care 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

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 handdelivery 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. 

Joseph.Duran2@va.gov. (303) 370–1637. 

(This is not a toll-free number.) 


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628 Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules 

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 

§ 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 nonVA 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 nonVA 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 Federallyqualified 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 thirdparty 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 


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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 §§ 17.101, 

17.106, and 70.71, would not refer to 

this benefit. Section 1725A(h) defines 

the term ‘‘walk-in care’’ as nonemergent 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 nonVA 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/placeof-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 


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section does not affect eligibility for 

hospital care or medical services under 

the medical benefits package, as defined 

in § 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 § 17.36(d)(3)(iii), 

to only pay the $30 copayment after 

three urgent care visits. For further 

information on priority groups see 

§ 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 

§ 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 

§ 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 

§ 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 

§ 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 


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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 § 17.108, 

which establishes copayments for 

inpatient and outpatient care, or 

§ 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 § 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 § 17.4600 on the same day. 

VA also proposes to amend § 17.105 

to reflect the copayments as established 

in this rulemaking. First, VA would 

propose to include proposed § 17.4600 

among the list of regulatory authorities 

under which copayments would be 

subject to a waiver under § 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 § 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 

§ 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 § 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. 


khammond on DSKBBV9HB2PROD with PROPOSALS
632 Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules 

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 

■ 1. The authority citation for part 17 is 

amended by adding entries for 

§§ 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. 

§ 17.105 [Amended] 

■ 2. Amend § 17.105 by: 

■ a. In paragraph (c), removing ‘‘or 

17.111’’ and adding in its place ‘‘17.111, 

or 17.4600’’. 

■ b. Removing the authority citation at 

the end of the section. 

■ 3. Amend § 17.108 by: 

■ a. Revising paragraph (e) introductory 

text. 

■ b. Removing the authority citation at 

the end of the section. 

The revision reads as follows: 

§ 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 § 17.4600. 

* * * * * 

■ 4. Add § 17.4600 to read as follows: 

§ 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 nonVA 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 nonVA 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 § 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 

§ 17.36(b)(1) through (6), except those 

veterans described in § 17.36(d)(3)(iii) 

for all matters not covered by priority 

category 6. 

(ii) If such eligible veteran is enrolled 

under § 17.36(b)(7) or (8), including 

veterans described in § 17.36(d)(3)(iii). 


khammond on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules 633 

1The Drug Enforcement Agency (DEA) indicated 

in a July 2017 letter to the NCPDP that it was 

currently promulgating proposed rulemaking to 

address the changes to 21 CFR 1306.13 (which 

concerns partial fills of prescriptions for Schedule 

II controlled substances) made by CARA. 

2 Inappropriate Medicare Part D Payments for 

Schedule II Drugs Billed as Refills, https://

oig.hhs.gov/oei/reports/oei-02-09-00605.asp 

3National Council of Prescription Drug Programs 

(NCPDP) Telecommunication Standard 

Implementation Guide, Version D, Release 0, 

August 2007, defines the Fill Number Field as 

‘‘403–D3’’. 

(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 § 17.108 or § 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 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of the Secretary 

45 CFR Part 162 

[CMS–0055–P] 

RIN 0938–AT52 

Administrative Simplification: 

Modification of the Requirements for 

the Use of Health Insurance Portability 

and Accountability Act of 1996 (HIPAA) 

National Council for Prescription Drug 

Programs (NCPDP) D.0 Standard 

AGENCY: Office of the Secretary, HHS. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

adopt a modification to the 

requirements for the use of the 

Telecommunication Standard 

Implementation Guide, Version D, 

Release 0 (Version D.0), August 2007, 

National Council for Prescription Drug 

Programs by requiring covered entities 

to use the Quantity Prescribed (460–ET) 

field for retail pharmacy transactions for 

Schedule II drugs. The modification 

would enable covered entities to clearly 

distinguish whether a prescription is a 

‘‘partial fill,’’ where less than the full 

amount prescribed is dispensed, or a 

refill, in the HIPAA retail pharmacy 

transactions. We believe this 

modification is important to ensure 

information is available to help prevent 

impermissible refills of Schedule II 

drugs, which would help to address the 

public health concerns associated with 

prescription drug abuse in the United 

States. 

DATES: Comment Date: To be assured 

consideration, comments must be 

received at one of the addresses 

provided below, no later than 5 p.m. 

April 1, 2019. 

ADDRESSES: In commenting, please refer 

to file code CMS–0055–P. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

Comments, including mass comment 

submissions, must be submitted in one 

of the following three ways (please 

choose only one of the ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–0055–P, P.O. Box 8013, Baltimore, 

MD 21244–8013. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–0055–P, Mail 

Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Geanelle G. Herring, (410) 786–4466. 

Daniel Kalwa, (410) 786–1352. Angelo 

Pardo, (410) 786–1836. 

SUPPLEMENTARY INFORMATION: Inspection 

of Public Comments: All comments 

received before the close of the 

comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: http://

regulations.gov. Follow the search 

instructions on that website to view 

public comments. 

I. Background 

The Health Insurance Portability and 

Accountability Act of 1996 (HIPAA) 

required the Secretary of the 

Department of Health and Human 

Services (HHS) to adopt standards for 

electronic health care administrative 

transactions conducted between health 

care providers, health plans, and health 

care clearinghouses. In January 2009 (74 

FR 3295), the Secretary adopted the 

National Council of Prescription Drug 

Programs (NCPDP) Telecommunication 

Standard Implementation Guide, 

Version D, Release 0, August 2007 

(hereinafter referred to as Version D.0) 

for the following retail pharmacy 

transactions: Health care claims or 

equivalent encounter information; 

referral certification and authorization; 

and coordination of benefits. As 

discussed later, a technical issue with 

Version D.0 necessitates a modification 

of the requirements for the use of this 

standard. 

A. Inappropriate Medicare Part D 

Payments for Schedule II Drugs Billed 

as Refills 

The HHS Office of the Inspector 

General (OIG) conducted a study of 

Medicare Part D payments for Schedule 

II drugs that were billed as refills in 

2009. Schedule II drugs are of particular 

interest to regulators because of the 

public health issues associated with 

their use and the potential for misuse 

and abuse. Schedule II drugs are 

defined, in part, by the Controlled 

Substances Act (CSA) as those with a 

high potential for abuse, with use 

potentially leading to severe 

psychological or physical dependence 

(21 U.S.C. 812(b)(2)). The CSA prohibits 

the refilling of Schedule II drugs; 

however, in some cases partial fills are 

permissible. Partial fills of Schedule II 

drugs were previously allowed only in 

limited circumstances, including where 

a pharmacist had less quantity on hand 

than the prescribed amount of 

medication, the prescription was for a 

patient in a LTC facility, or a patient 

had a terminal illness.1

Based on the data from the study, the 

HHS OIG issued a report in September 

2012 titled ‘‘Inappropriate Medicare 

Part D Payments for Schedule II Drugs 

Billed as Refills,’’ which analyzed all of 

the 2009 program year prescription drug 

event (PDE) records for refills of 

Schedule II drugs.2 The OIG analyzed 

20.1 million records for Schedule II 

drugs and identified refills according to 

the numeric values in a particular data 

field—the Fill Number (403–D3) 3 field. 

The OIG concluded that the Medicare 

Part D program had inappropriately 

paid $25 million for 397,203 Schedule 

II drug refills and that long-term care 


khammond on DSKBBV9HB2PROD with PROPOSALS