[Federal Register Volume 76, Number 162 (Monday, August 22, 2011)]
[Rules and Regulations]
[Pages 52272-52274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21291]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AN85


Technical Revisions To Conform to the Caregivers and Veterans 
Omnibus Health Services Act of 2010

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule amends Department of Veterans Affairs (VA) 
medical regulations to incorporate statutory amendments. Certain 
statutes authorizing VA health care benefits were amended by the 
Caregivers and Veterans Omnibus Health Services Act of 2010. The 
statutory amendments affect enrollment in certain health care priority 
categories and exempt catastrophically disabled veterans from copayment 
requirements.

DATES: Effective Date: This final rule is effective August 22, 2011.

FOR FURTHER INFORMATION CONTACT: Roscoe Butler, Deputy Director, 
Business Policy, Chief Business Office (163), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 461-1586. (This is not a toll free 
number).

SUPPLEMENTARY INFORMATION: This document amends 38 CFR part 17 to 
conform certain sections with statutory amendments made by sections 511 
through 513 of the Caregivers and Veterans Omnibus Health Services Act 
of 2010 (the Act), Public Law 163-111. Sections 512 and 513 of the Act 
amended statutory provisions affecting the enrollment of veterans in 
the VA health care system. VA's enrollment regulation, 38 CFR 17.36, 
must be revised accordingly.
    First, section 512 of the Act amended 38 U.S.C. 1705(a)(3) to add 
``veterans who were awarded the [M]edal of [H]onor under [10 U.S.C.] 
3741, 6241 or 8741 or [14 U.S.C.] 491'' to the list of veterans 
included in enrollment priority category three. Accordingly, we have 
revised 38 CFR 17.36(b)(3), our regulation implementing enrollment 
priority category three, consistent with the amendment of section 1705 
.
    Second, section 513 of the Act amended 38 U.S.C. 1710(e) to 
prescribe August 2, 1990, through November 11, 1998, as the specific 
period of time for enrollment eligibility based on active duty service 
in the Southwest Asia theater of operations during the Gulf War. 
Consistent with the statutory amendment, we are amending Sec.  
17.36(a)(3) and (b)(6) to include those specific dates.
    Third, section 511 of the Act amended title 38, United States Code 
(U.S.C.), to add section 1730A, which reads as follows: 
``Notwithstanding subsections (f) and (g) of [38 U.S.C. 1710 and 
1722A(a)] or any other provision of law, the Secretary may not require 
a veteran who is catastrophically disabled, as defined by the 
Secretary, to make any copayment for the receipt of hospital care or 
medical services under the laws administered by the Secretary.'' In 
current 38 CFR 17.108(d), VA exempts 10 classes of veterans from the 
copayment requirements for inpatient hospital care or outpatient 
medical care. In current 38 CFR 17.110(c), we exempt 8 classes of 
veterans from copayment requirements for medication. Finally, in 
current 38 CFR 17.111(f), we exempt 7 classes of veterans from payment 
requirements for extended care services. Consistent with section 1730A, 
we are amending each of these regulations to add the new exemption for 
catastrophically disabled veterans.
    Regarding the copayment exemption for extended care services, we 
note that under section 1730A, VA may exempt copayments for extended 
care services that are considered hospital care or medical services. In 
38 U.S.C. 1701(6)(E), Congress defined ``medical services'' as 
including

[[Page 52273]]

``[n]oninstitutional extended care services, including alternatives to 
institutional extended care that the Secretary may furnish directly, by 
contract, or through provision of case management by another provider 
or payer.'' VA has long defined ``noninstitutional'' as ``a service 
that does not include an overnight stay.'' We assume that Congress was 
aware of these definitions and intended that we would interpret section 
1730A consistent with them. Accordingly, we interpret section 1730A as 
exempting catastrophically disabled veterans from copayments charged 
for adult day health care, non-institutional geriatric evaluation, and 
non-institutional respite care, as described in current 38 CFR 17.111. 
These are the only extended care services listed in Sec.  17.111 that 
do not require an overnight stay. Copayments for all other extended 
care services still apply (including Nursing Home Care).
    We note that VA provides a number of additional extended care 
services not listed in current 38 CFR 17.111. These services include, 
homemaker/home health aide, purchased skilled home care, home based 
primary care, and any other noninstitutional alternative extended care 
services. Despite not being listed under current Sec.  17.111, the 
copayment exemption will apply to these services because VA considers 
them ``medical services'' under the definition in section 1701(6)(E). 
Catastrophically disabled veterans will be exempt from copayments for 
such services under new Sec.  17.108(d)(11).
    Current Sec.  17.36(e) defines ``catastrophically disabled'' to 
mean ``a permanent severely disabling injury, disorder, or disease that 
compromises the ability to carry out the activities of daily living to 
such a degree that the individual requires personal or mechanical 
assistance to leave home or bed or requires constant supervision to 
avoid physical harm to self or others.'' This is the only definition of 
the term in VA's medical regulations. Although Sec.  17.36(e) applies 
to enrollment, in section 1730A, Congress prescribed the exemptions for 
any catastrophically disabled veteran, ``as defined by the Secretary.'' 
We interpret section 1730A as requiring application of VA's current 
regulation defining the term. We note that there is no legislative 
history suggesting that Congress intended a different definition of the 
term for purposes of copayment exemptions. Rather, it is reasonable to 
conclude that Congress intended to liberalize the benefits for certain 
veterans enrolled by VA under Sec.  17.36(e). Thus, consistent with our 
interpretation of section 1730A, we have explicitly incorporated the 
current definition of ``catastrophically disabled'' in 38 CFR 
17.108(d)(11).

Administrative Procedure Act

    This final rule incorporates statutory provisions or interprets 
those provisions. Therefore, in accordance with 5 U.S.C. 553(b)(A), the 
provisions of the Administrative Procedure Act (APA) regarding notice 
of proposed rulemaking and opportunities for public participation are 
not applicable. Further, pursuant to section 553(d)(2), this final rule 
is exempt from the APA's 30-day delayed effective date requirement.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a regulatory action as a ``significant regulatory 
action,'' requiring review by the Office of Management and Budget (OMB) 
unless OMB waives such review, if it is a 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.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

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 expenditure by 
state, local, or Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any given year. This final rule would have no such effect 
on state, local, or Tribal governments, or on the private sector.

Paperwork Reduction Act

    This final rule does not contain any collections of information 
under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will 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 rule will not cause a significant economic impact on health 
care providers, suppliers, or entities since only a small portion of 
the business of such entities concerns VA beneficiaries. Therefore, 
pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and 
final regulatory flexibility analysis requirements of Sec. Sec.  603 
and 604.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance numbers and titles are 
64.009 Veterans Medical Care Benefits, 64.010 Veterans Nursing Home 
Care, and 64.011 Veterans Dental Care.

Signing Authority

    The Secretary of Veterans Affairs, or designee, 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. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on July 6, 2011, for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs-health, Government programs-
veterans, Health care, Health facilities, Health professions, Health 
records, Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing home care, Veterans.

    Dated: August 16, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.
    For the reasons stated in the preamble, the Department of Veterans

[[Page 52274]]

Affairs amends 38 CFR part 17 as follows:

PART 17--MEDICAL

0
1. The authority citation for Part 17 continues to read as follows:

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


0
2. Amend Sec.  17.36 by:
0
a. In paragraph (a)(3), removing ``, or any'' and adding, in its place, 
``(the period between August 2, 1990, and November 11, 1998), or any''.
0
b. In paragraph (b)(3), removing ``Purple Heart'' and adding, in its 
place, ``Medal of Honor or Purple Heart''.
0
c. In paragraph (b)(6), removing ``, or for any'' and adding, in its 
place, ``(the period between August 2, 1990, and November 11, 1998), or 
for any''.

0
3. Amend Sec.  17.108 by:
0
a. In paragraphs (d)(1) through (8), removing the semicolons at the end 
of each paragraph and adding, in each place, a period.
0
b. In paragraph (d)(9), removing ``; or'' at the end of the paragraph 
and adding, in its place, a period;
0
c. Adding paragraph (d)(11).
0
d. Revising the authority citation at the end of the section.
    The addition and revision read as follows:


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

* * * * *
    (d) * * *
    (11) A veteran who VA determines to be catastrophically disabled, 
as defined in 38 CFR 17.36(e).
* * * * *

(Authority: 38 U.S.C. 501, 1710, 1730A)



0
4. Amend Sec.  17.110 by:
0
a. In paragraphs (c)(1) through (6), removing the semicolons at the end 
of each paragraph and adding, in each place, a period.
0
b. In paragraph (c)(7), removing ``; and'' and adding, in its place, a 
period.
0
c. Adding paragraph (c)(9).
0
d. Revising the authority citation at the end of the section.
    The addition and revision read as follows:


Sec.  17.110  Copayments for medication.

* * * * *
    (c) * * *
    (9) A veteran who VA determines to be catastrophically disabled, as 
defined in 38 CFR 17.36(e).

(Authority: 38 U.S.C. 501, 1710, 1720D, 1722A, 1730A)



0
5. Amend Sec.  17.111 by:
0
a. In paragraphs (f)(1) through (f)(5), removing the semicolons at the 
end of each paragraph and adding, in each place a period.
0
b. In paragraph (f)(6), removing ``; or'' and adding, in its place, a 
period.
0
c. Adding paragraph (f)(8).
    The addition reads as follows:


Sec.  17.111  Copayments for extended care services.

* * * * *
    (f) * * *
    (8) A veteran who VA determines to be catastrophically disabled, as 
defined in 38 CFR 17.36(e), is exempt from copayments for adult day 
health care, non-institutional respite care, and non-institutional 
geriatric care.
* * * * *

[FR Doc. 2011-21291 Filed 8-19-11; 8:45 am]
BILLING CODE 8320-01-P