Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 12517 

the human environment because it 

simply promulgates the operating 

regulations or procedures for 

drawbridges. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this proposed rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

2. Amend § 117.1045 by adding the 

below text as paragraph (b) and 

changing the current paragraph (b) to 

read (c) and current paragraph (c) to 

read (d): 

§ 117.1045 Hood Canal. 

(b) The draw of the Hood Canal 

Bridge, mile 5.0, need not open for 

vessel traffic from 3 p.m. to 6:15 p.m. 

daily from 3 p.m. May 22 to 6:16 p.m. 

September 30, except for commercial 

tug and tow vessels and vessels of the 

U.S. Navy or vessels attending the 

missions of the U.S. Navy and other 

public vessels of the United States. At 

all other times the bridge will operate in 

accordance with subparagraph (a) of this 

section. 

Dated: February 6, 2012. 

K.A. Taylor, 

Rear Admiral, U.S. Coast Guard Commander, 

Thirteenth Coast Guard District. 

[FR Doc. 2012–4928 Filed 2–29–12; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AN99 

VA Dental Insurance Program 

AGENCY: Department of Veterans Affairs 

and Department of Defense. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to amend its 

regulations to establish a pilot program 

to offer premium-based dental insurance 

to enrolled veterans and certain 

survivors and dependents of veterans. 

VA would contract with a private 

insurer through the Federal contracting 

process to offer dental insurance, and 

the private insurer would then be 

responsible for the administration of the 

dental insurance plan. VA’s role would 

primarily be to form the contract with 

the private insurer and verify the 

eligibility of veterans, survivors, and 

dependents. The program is authorized, 

and this rulemaking is required, by 

section 510 of the Caregivers and 

Veterans Omnibus Health Services Act 

of 2010 (the 2010 Act). 

DATES: Comments must be received by 

VA on or before April 30, 2012. 

ADDRESSES: Written comments may be 

submitted through http:// 

www.regulations.gov; by mail or hand 

delivery to the Director, Regulations 

Management (02REG), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AN99, VA Dental Insurance Program.’’ 

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 (this is not a tollfree number) for an appointment. In 

addition, during the comment period, 

comments may be viewed online 

through the Federal Docket Management 

System at http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Kristin Cunningham, Director, Business 

Policy, Chief Business Office (10NB), 

Veterans Health Administration, 

Department of Veterans Affairs, 810 

Vermont Avenue NW., Washington, DC 

20420; (202) 461–1599. (This is not a 

toll-free number.) 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 510(a) of the 2010 Act, VA 

‘‘shall carry out a pilot program to 

assess the feasibility and advisability of 

providing a dental insurance plan to 

veterans and survivors and dependents 

of veterans.’’ In order to comply with 

section 510, VA would contract with a 

private dental insurer that would offer 

dental coverage to the persons identified 

in section 510(b) of the 2010 Act. This 

proposed rule would establish rules and 

procedures for the VA Dental Insurance 

Program (VADIP), in accordance with 

section 510(k) of the 2010 Act, which 

requires VA to prescribe regulations. 

Section 510(c) of the 2010 Act is a 

‘‘sunset provision’’ that authorizes 

VADIP to run from January 30, 2011, to 

January 30, 2014. Public Law 111–163, 

§ 510(c) (‘‘The pilot program shall be 

carried out during the 3-year program 

beginning on the date that is 270 days 

after enactment of this Act,’’ which was 

May 5, 2010). However, we would not 

include that date limitation in the 

proposed rule, as we were not able to 

begin the pilot program on January 30, 

2011, due to the need to prescribe 

regulations, a time-intensive process. 

We nonetheless interpret section 510(c) 

to require that the pilot program be 

administered for no less than three 

years, and would conduct the program 

for three years once commenced. Our 

interpretation is further supported by 

the Secretary’s duty as stated in section 

510(a) of the 2010 Act, to ‘‘assess the 

feasibility and advisability of providing 

a dental insurance plan to veterans and 

survivors and dependants of veterans’’, 

and we believe that this assessment 

would be incomplete unless afforded 

the full duration of the program as 

prescribed by law. We can easily ensure 

the termination of VADIP through 

contract if no extension is provided and 

the program is no longer authorized by 

law. If VADIP is not extended, we 

would remove the rule from the Code of 

Federal Regulations and, in the 

meantime, would no longer offer the 

benefit. 

Paragraph (a)(1) of proposed § 17.169 

would generally establish VADIP and 

explain what the program provides. We 

would note that ‘‘[e]nrollment in VADIP 

does not affect the covered beneficiary’s 

eligibility for VA outpatient dental 

services and treatment, and related 

dental appliances under 38 U.S.C. 

1712.’’ This reiterates the requirement 

in section 510(j) of the 2010 Act. 

Proposed paragraph (a)(2) would 

define the terms ‘‘insured’’ and 

‘‘participating insurer,’’ which are used 

throughout the proposed rule to identify 

persons enrolled in an insurance plan 

through VADIP and providers of VADIP 

insurance, respectively. Defining the 

terms as such would help ensure that 

the proposed rule is easily understood. 

Proposed paragraph (b) would 

identify the persons who are eligible for 

insurance through VADIP, and would 

require that a participating insurer offer 

coverage to such persons. These 

individuals are clearly identified by 

section 510(b) of the 2010 Act, and the 

proposed rule would use language that 

is virtually identical to the language 

used in section 510(b). We would 

require that a participating insurer offer 

coverage to all persons identified in the 

paragraph in order to ensure that we 

have fully assessed the feasibility and 

advisability of VADIP, as required by 

section 510(a) of the 2010 Act. We note 

that we would not geographically limit 

coverage by regulation, but would allow 

the participating insurer to incorporate 


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12518 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

such limitations in the contract with 

VA. Section 510(d) of the 2010 Act 

requires that VADIP ‘‘be carried out in 

such Veterans Integrated Services 

Networks [VISNs] as the Secretary 

considers appropriate.’’ We believe that 

such consideration must be made in the 

context of the Federal contracting 

process. VA’s limitation of this pilot 

program to particular VISNs, as regional 

groupings, could be detrimental to 

contract formation, as dental services 

can be provided by insurers through 

national contracts, regional contracts, or 

partnerships between national and 

regional group practices. We cannot 

predict at this time whether private 

insurance companies will want to 

provide limited or nationwide coverage 

through VADIP, but will attempt 

through the contracting process to 

obtain the widest possible geographic 

coverage for veterans and their survivors 

and dependents. 

Proposed paragraph (c)(1) would 

address premiums, coverage, and 

selection of the participating insurer. 

Premiums and copayments would be 

paid by the insured in accordance with 

the terms of the insurance plan. 

Responsibility for payment is so 

mandated by section 510(h)(3) of the 

2010 Act. The amount of premiums and 

copayments would be based on the 

contract with the participating insurer. 

We do not propose to require a 

minimum or maximum amount in the 

proposed rule, because we believe that 

this matter would be best handled 

through the contracting process, during 

which factors such as competition 

between insurers, locations where 

services are provided, and the range of 

services offered would determine the 

amounts. VA will not know the range of 

amounts for premium and copayment 

rates until the proposals received from 

insurers are reviewed, and then based 

on that review and subsequent 

negotiation, the insurers would be 

selected. Proposed paragraph (c)(1) 

would additionally require annual 

premium adjustments, and also require 

that insureds be notified of the amount 

and effective date of such adjustments, 

in accordance with section 510(h)(2). 

The burden of notifying the insureds 

would be placed on the participating 

insurer, and we would additionally 

require that such notice be provided in 

writing. 

Proposed paragraph (c)(2) would 

specify the minimum coverage that 

must be offered by the participating 

insurer. We believe that the described 

coverage must be provided in order for 

the dental plan to be meaningful, as 

well as to comply with the minimum 

requirements established in section 

510(f) of the 2010 Act, which are that 

the benefits include appropriate 

‘‘diagnostic services, preventative 

services, endodontics and other 

restorative services, surgical services, 

and emergency services.’’ We note that 

a more detailed discussion of covered 

services, and additional services, would 

be established in the actual insurance 

plan offered by the participating insurer, 

which VA would approve by contract. 

Proposed paragraph (c)(3) would state 

that VA would use the Federal 

competitive contracting process to select 

a participating insurer and would 

further provide that the selected insurer 

would administer the program, in 

accordance with section 510(e) of the 

2010 Act, which requires that VA 

contract with a dental insurer to 

administer the dental insurance plan 

pilot program. Section 510(e) of the 

2010 Act makes clear that the 

Secretary’s duty is to contract with a 

dental insurer, and that insurer would 

then administer the dental insurance 

plan as provided under the pilot. 

Proposed paragraph (d)(1) would 

establish that VA, in connection with 

the participating insurer, would market 

VADIP through existing VA 

communication channels to notify all 

eligible persons of their right to 

voluntarily enroll in VADIP. Enrollment 

must be purely voluntary under section 

510(g)(1) of the 2010 Act. We would 

require that further procedures 

associated with voluntary enrollment, 

beyond notification of eligible persons, 

would be the responsibility of the 

participating insurer. VA would be 

responsible for verifying eligibility 

using established VA data storage 

systems. As previously stated, VA is not 

required by section 510 of the 2010 Act 

to take an active role in the 

administration of the actual dental 

program, as the law is merely designed 

to facilitate the provision of private 

insurance to the specified VA 

beneficiaries. Requiring that the private 

insurer take on a majority of 

responsibility for enrollment procedures 

would help ensure that only minimal 

VA resources are devoted to VADIP, and 

that VA may optimally manage its 

resources to provide VA dental benefits 

to VA beneficiaries as applicable. 

Section 510(j) makes clear that the 

Secretary’s responsibilities to provide 

VA dental benefits under 38 U.S.C. 1712 

shall not be affected by the 

administration of this pilot, and in fact 

that the Secretary must not allow a 

veteran’s dental care under that section 

to be affected even in instances where 

that veteran is also participating in the 

pilot. 

Proposed paragraph (d)(2) would 

require a minimum initial enrollment 

period of 12 calendar months, followed 

by month-to-month enrollment at the 

option of the insured. We are required 

to prescribe a minimum period of 

enrollment by section 510(g)(2) of the 

2010 Act, and we believe that a 

minimum of one year is required to 

assess the viability of VADIP. Allowing 

month-to-month enrollment thereafter, 

as long as the enrollee chooses to 

continue, would help ensure that 

enrollment remains voluntary, as 

required in section 510(g)(1) of the 2010 

Act. 

Proposed paragraph (d)(3) would 

require an insurer to continue to 

provide coverage for at least 30 calendar 

days after an insured ceases to be 

eligible under proposed paragraphs 

(b)(1) and (2), to ensure the completion 

of any services scheduled but not yet 

provided. This continued coverage is 

critical for certain services in proposed 

paragraph (c)(2) that typically would be 

provided in multiple stages, such as 

when an insured would receive a 

crown. The insured would be required 

to pay any premiums due during this 

30-day continued coverage period. This 

30-day continued coverage period 

would not be available to those insureds 

who become disenrolled under 

proposed paragraph (e), but only to 

those who cease to be eligible under 

proposed paragraphs (b)(1) and (2). 

Under proposed paragraph (e), we 

would include five voluntary bases for 

insureds to disenroll from VADIP, 

consistent with section 510(i) of the 

2010 Act, and would also authorize 

participating insurers to disenroll 

insureds who fail to pay the required 

premiums. Disenrollment for failure to 

pay premiums would be at the 

discretion of the participating insurer, 

in accordance with the details of the 

insurance plan. Because insureds are 

required by section 510(h)(3) of the 2010 

Act to make such payments, we do not 

believe that VA has any duty to regulate 

disenrollment on this basis, beyond 

authorizing involuntary disenrollment 

for non-payment. Proposed paragraphs 

(e)(1)(i) through (iii) would set forth the 

bases for voluntarily disenrollment that 

are established by section 510(i) of the 

2010 Act. Under proposed paragraph 

(e)(1)(i), we would require the 

participating insurer to allow 

disenrollment ‘‘[f]or any reason, during 

the first 30 days that the beneficiary is 

covered by the plan, if no claims for 

dental services or benefits were filed by 

the insured.’’ We would require that no 

claims were filed because such an 

action would require the insurer to 

expend resources, and would also 


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Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 12519 

indicate the insured’s desire to 

participate in the plan, and because VA 

is required by section 510(i)(1)(B) of the 

Act to ensure that disenrollment criteria 

do not ‘‘jeopardize the fiscal integrity of 

the dental insurance plan.’’ Proposed 

paragraph (e)(1)(ii) would require the 

participating insurer to allow 

disenrollment if the insured relocates to 

an area outside the jurisdiction of the 

plan that prevents the use of the benefits 

under the plan, as required by section 

510(i)(2)(A) of the 2010 Act. Proposed 

paragraph (e)(1)(iii) would require the 

participating insurer to allow 

disenrollment if the insured is 

prevented by serious medical condition 

from being able to obtain benefits under 

the plan, as required by section 

510(i)(2)(B) of the 2010 Act. 

Section 510(i)(2)(C) of the 2010 Act 

also authorizes VA to prescribe 

additional bases for voluntary 

disenrollment. We propose two 

additional bases in paragraphs (e)(1)(iv) 

and (e)(1)(v). Proposed paragraph 

(e)(1)(iv) would establish the first 

additional basis of disenrollment to be 

that the insured could voluntarily 

disenroll if he or she would suffer 

severe financial hardship by continuing 

in VADIP. Proposed paragraph (e)(1)(v) 

would establish the second additional 

basis to be that an insured could 

voluntarily disenroll for any reason at 

any time after the initial 12-month 

enrollment period. Both these bases 

further support VA’s obligation under 

section 510(g)(1) of the 2010 Act to 

ensure that enrollment in the dental 

insurance plan be voluntary. All bases 

of voluntary disenrollment in proposed 

paragraphs (e)(1)(i) through (v) either 

reiterate specific Congressional 

requirements in section 510(i) of the 

2010 Act, or are additional bases to 

ensure that enrollment remains 

voluntary, as also mandated in section 

510(i). 

Proposed paragraph (e)(2) would 

establish that all insured requests for 

voluntary disenrollment must be 

submitted to the insurer for 

determination of whether the insured 

qualifies for disenrollment under the 

criteria in proposed (e)(1)(i)-(v). 

Requests for disenrollment because of a 

serious medical condition or severe 

financial hardship would include the 

insured’s submission to the insurer of 

written documentation that verifies the 

existence of a serious medical condition 

or financial hardship. The written 

documentation submitted to the insurer 

must show that circumstances leading 

to a serious medical condition or 

financial hardship originated after the 

effective date coverage began, and 

would prevent the insured’s use of 

benefits. These standards obviate the 

need to define the statutory terms 

‘‘serious medical condition’’ or ‘‘severe 

financial hardship,’’ because under the 

regulation all that would be required is 

that the insured provide written 

documentation that shows that 

conditions exist which prevent him or 

her from maintaining the insurance 

benefits, and which did not exist prior 

to the start of coverage. 

Section 510(i)(3) of the 2010 Act 

requires VA to ‘‘establish procedures for 

determinations on the permissibility of 

voluntary disenrollments,’’ i.e., 

disenrollment initiated by the insured 

pursuant to proposed paragraphs 

(e)(1)(i) through (v). Section 510(i)(3) 

requires that ‘‘[s]uch procedures shall 

ensure timely determinations on the 

permissibility of such disenrollments,’’ 

but section 510 of the 2010 Act does not 

require that VA adjudicate or participate 

in such appeals. Moreover, section 510 

of the 2010 Act is silent as to VA’s role 

in appeals of issues other than 

disenrollment, such as denials of 

benefits. We propose minimum 

timeframes for disenrollment appeals 

and subsequent decisions and we 

propose an appeals process to ensure 

that appropriate notice and an 

opportunity to respond is provided to 

insureds. VA would not be involved in 

the appeals process beyond establishing 

these criteria. Particularly, the decisions 

of the insurer with regards to an insured 

appeal must be final, so that VA does 

not become involved with the 

adjudication of appeals. In proposed 

paragraph (e)(3), we would require that, 

when requests for voluntary 

disenrollment are denied because the 

insured does not meet any criterion 

under proposed paragraphs (e)(1)(i)–(v), 

the insurer must provide notification of 

the denial and the right to appeal to the 

insured in writing within 30 days after 

receipt of the insured’s request to 

voluntarily disenroll. The form of the 

appeal would be established by the 

participating insurer, and may include 

oral appeals rather than (or in addition 

to) written appeals, but the insured 

must be provided at least 30 days to 

appeal. The participating insurer would 

be required to issue a final decision in 

writing on such an appeal within 30 

days after receiving the appeal. We 

believe that by requiring these 

timeframes we can ensure compliance 

with requirements in section 510(i)(3) of 

the 2010 Act that VA establish 

procedures for determinations of 

disenrollment and ensure those 

determinations are timely, while 

ensuring VA is not actively involved in 

the determination process. Participating 

insurers would be free to provide 

additional rights to insureds, but at a 

minimum would be required to comply 

with the procedural framework set forth 

in proposed paragraph (e)(3). 

In proposed paragraph (f), we would 

state that ‘‘[p]articipating insurers will 

establish and be responsible for 

determination and appeals procedures 

for all issues other than voluntary 

disenrollment.’’ This would allow 

participating insurers to establish 

determination procedures consistent 

with the generally accepted 

administration of private insurance 

plans or with their current practice. We 

are not required by section 510 of the 

2010 Act to regulate determination of 

matters other than voluntary 

disenrollment, and we believe that 

including proposed paragraph (f) would 

help clarify the narrow scope of VA’s 

obligation. 

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 are 

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 proposed rule includes a 

collection of information under the 

Paperwork Reduction Act (44 U.S.C. 

3501–3521) that requires approval by 

the Office of Management and Budget 

(OMB). Accordingly, under section 

3507(d) of the 2010 Act, VA has 

submitted a copy of this rulemaking to 

OMB for review. OMB assigns a control 

number for each collection of 

information it approves. Except for 

emergency approvals under 44 U.S.C. 

3507(j), VA may not conduct or sponsor, 

and a person is not required to respond 

to, a collection of information unless it 

displays a currently valid OMB control 

number. Proposed § 17.169(d) and (e) 

contain collections of information under 

the Paperwork Reduction Act (44 U.S.C. 

3501–3521). If OMB does not approve 

the collections of information as 

requested, VA will immediately remove 

the provisions containing a collection of 

information or take such other action as 

is directed by OMB. 

Comments on the collections of 

information contained in this proposed 

rule should be submitted to the Office 

of Management and Budget, Attention: 

Desk Officer for the Department of 

Veterans Affairs, Office of Information 

and Regulatory Affairs, Washington, DC 


srobinson on DSK4SPTVN1PROD with PROPOSALS
12520 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

20503, with copies sent by mail or hand 

delivery to: the Director, Office of 

Regulation Policy and Management 

(02REG), Department of Veterans 

Affairs, 810 Vermont Ave. NW., Room 

1068, Washington, DC 20420; fax to 

(202) 273–9026; or through 

www.Regulations.gov. Comments 

should indicate that they are submitted 

in response to ‘‘RIN 2900–AN99, VA 

Dental Insurance Program.’’ 

OMB is required to make a decision 

concerning the collections of 

information contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. This does not affect the 

deadline for the public to comment on 

the proposed rule. 

VA considers comments by the public 

on proposed collections of information 

in— 

• Evaluating whether the proposed 

collections of information are necessary 

for the proper performance of the 

functions of VA, including whether the 

information will have practical utility; 

• Evaluating the accuracy of VA’s 

estimate of the burden of the proposed 

collections of information, including the 

validity of the methodology and 

assumptions used; 

• Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and 

• Minimizing the burden of the 

collections of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

The proposed amendments to title 38 

CFR part 17 contain collections of 

information under the Paperwork 

Reduction Act for which we are 

requesting approval by OMB. These 

collections of information are described 

immediately following this paragraph, 

under their respective titles. 

Title: VA Dental Insurance Program. 

Summary of collections of 

information: The proposed rule at 

§ 17.169(d) would allow an individual 

to voluntarily apply for dental insurance 

by submitting an application to a 

participating insurer; the application 

will be made in accordance with the 

plan requirements provided by the 

private insurer. The proposed rule at 

§ 17.169(e)(2) would authorize the 

submission to the participating insurer 

of evidence to support an attempt to 

disenroll from the program. Paragraph 

(e) would establish procedures for 

submission of requests for voluntary 

disenrollment and supporting 

documentation. 

Description of the need for 

information and proposed use of 

information: Applications are needed so 

that individuals can voluntarily 

participate in VADIP. Procedures for 

voluntary disenrollment, as well as 

appeals of disenrollment decisions, are 

needed to ensure that enrollment 

remain voluntary, and that 

disenrollment determinations are 

timely. 

Description of likely respondents: 

Veterans, certain survivors and 

dependents. 

Estimated number of respondents per 

year: Applications: 101,000–201,000. 

Disenrollment requests: 1,000. Appeals 

of disenrollment decisions: 500. 

Estimated frequency of responses per 

year: 1. 

Estimated burden per response: 

Applications: 15 min. Disenrollment 

requests: 30 min. Appeals of 

disenrollment decisions: 30 min. 

Estimated total annual reporting and 

recordkeeping burden: 26,000–51,000 

hours. 

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 directly affect 

any small entities. Only dental insurers, 

certain veterans and their survivors and 

dependents, which are not small 

entities, could be affected. Therefore, 

pursuant to 5 U.S.C. 605(b), this 

proposed amendment is exempt from 

the initial and final regulatory flexibility 

analysis requirements of sections 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) classifies a regulatory action as 

a ‘‘significant regulatory action,’’ 

requiring review by 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 proposed 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, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

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 

Numbers 

The Catalog of Federal Domestic 

Assistance numbers and titles for the 

programs affected by this document are 

64.009 Veterans Medical Care Benefits 

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 February 23, 2012, for 

publication. 

List of Subjects in 38 CFR Part 17 

Administrative practice and 

procedure, Claims, Dental health, 

Health care, Veterans. 


srobinson on DSK4SPTVN1PROD with PROPOSALS
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Dated: February 24, 2012. 

William F. Russo, 

Deputy Director, Office of Regulation Policy 

& Management, Office of the General Counsel, 

Department of Veterans Affairs. 

For the reasons stated in the 

preamble, VA proposes to amend 38 

CFR part 17 as follows: 

PART 17—MEDICAL 

1. The authority citation for part 17 

continues to read as follows: 

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

specific sections. 

2. Add § 17.169 after § 17.166 to read 

as follows: 

§ 17.169 VA Dental Insurance Plan 

program for veterans and survivors and 

dependents of veterans (VADIP). 

(a) General. (1) The VA Dental 

Insurance Plan Program (VADIP) 

provides premium-based dental 

insurance coverage through which 

individuals eligible under paragraph (b) 

of this section may choose to obtain 

dental insurance from a participating 

insurer. Enrollment in VADIP does not 

affect the insured’s eligibility for 

outpatient dental services and 

treatment, and related dental 

appliances, under 38 U.S.C. 1712. 

(2) The following definitions apply to 

this section: 

Insured means an individual, 

identified in paragraph (b) of this 

section, who has enrolled in an 

insurance plan through VADIP. 

Participating insurer means an 

insurance company that has contracted 

with VA to offer a premium-based 

dental insurance plan to veterans, 

survivors, and dependents through 

VADIP. There may be more than one 

participating insurer. 

(b) Covered veterans and survivors 

and dependents. A participating insurer 

must offer coverage to the following 

persons: 

(1) Any veteran who is enrolled under 

38 U.S.C. 1705 in accordance with 38 

CFR 17.36. 

(2) Any survivor or dependent of a 

veteran who is eligible for medical care 

under 38 U.S.C. 1781 and 38 CFR 

17.271. 

(c) Premiums, coverage, and selection 

of participating insurer. (1) Premiums. 

Premiums and copayments will be paid 

by the insured in accordance with the 

terms of the insurance plan. Premiums 

and copayments will be determined by 

VA through the contracting process, and 

will be adjusted on an annual basis. The 

participating insurer will notify all 

insureds in writing of the amount and 

effective date of such adjustment. 

(2) Benefits. Participating insurers 

must offer, at a minimum, coverage for 

the following dental care and services: 

(i) Diagnostic services. 

(A) Clinical oral examinations. 

(B) Radiographs and diagnostic 

imaging. 

(C) Tests and laboratory examinations. 

(ii) Preventive services. 

(A) Dental prophylaxis. 

(B) Topical fluoride treatment (office 

procedure). 

(C) Sealants. 

(D) Space maintenance. 

(iii) Restorative services. 

(A) Amalgam restorations. 

(B) Resin-based composite 

restorations. 

(iv) Endodontic services. 

(A) Pulp capping. 

(B) Pulpotomy and pulpectomy. 

(C) Root canal therapy. 

(D) Apexification and recalcification 

procedures. 

(E) Apicoectomy and periradicular 

services. 

(v) Periodontic services. 

(A) Surgical services. 

(B) Periodontal services. 

(vi) Oral surgery. 

(A) Extractions. 

(B) Surgical extractions. 

(C) Alveoloplasty. 

(D) Biopsy. 

(vii) Other services. 

(A) Palliative (emergency) treatment 

of dental pain. 

(B) Therapeutic drug injection. 

(C) Other drugs and/or medications. 

(D) Treatment of postsurgical 

complications. 

(E) Crowns. 

(F) Bridges. 

(G) Dentures. 

(3) Selection of participating insurer. 

VA will use the Federal competitive 

contracting process to select a 

participating insurer, and the insurer 

will be responsible for the 

administration of VADIP. 

(d) Enrollment. (1) VA, in connection 

with the participating insurer, will 

market VADIP through existing VA 

communication channels to notify all 

eligible persons of their right to 

voluntarily enroll in VADIP. The 

participating insurer will prescribe all 

further enrollment procedures, and VA 

will be responsible for confirming that 

a person is eligible under paragraph (b) 

of this section. 

(2) The initial period of enrollment 

will be for a period of 12 calendar 

months, followed by month-to-month 

enrollment as long as the insured 

remains eligible for coverage under 

paragraph (b) of this section and 

chooses to continue enrollment, so long 

as VA continues to authorize VADIP. 

(3) The participating insurer will 

agree to continue to provide coverage to 

an insured who ceases to be eligible 

under paragraphs (b)(1) through (2) of 

this section for at least 30 calendar days 

after eligibility ceased. The insured 

must pay any premiums due during this 

30-day period. This 30-day coverage 

does not apply to an insured who is 

disenrolled under paragraph (e) of this 

section. 

(e) Disenrollment. (1) Insureds may be 

involuntarily disenrolled at any time for 

failure to make premium payments. 

Insureds must be permitted to 

voluntarily disenroll, and will not be 

required to continue to pay any 

copayments or premiums, under any of 

the following circumstances: 

(i) For any reason, during the first 30 

days that the beneficiary is covered by 

the plan, if no claims for dental services 

or benefits were filed by the insured. 

(ii) If the insured relocates to an area 

outside the jurisdiction of the plan that 

prevents the use of the benefits under 

the plan. 

(iii) If the insured is prevented by 

serious medical condition from being 

able to obtain benefits under the plan. 

(iv) If the insured would suffer severe 

financial hardship by continuing in 

VADIP. 

(v) For any reason during the monthto-month coverage period, after the 

initial 12-month enrollment period. 

(2) All insured requests for voluntary 

disenrollment must be submitted to the 

insurer for determination of whether the 

insured qualifies for disenrollment 

under the criteria in paragraphs (e)(1)(i) 

through (v) of this section. Requests for 

disenrollment due to a serious medical 

condition or financial hardship must 

include submission of written 

documentation that verifies the 

existence of a serious medical condition 

or financial hardship. The written 

documentation submitted to the insurer 

must show that circumstances leading 

to a serious medical condition or 

financial hardship originated after the 

effective date coverage began, and will 

prevent the insured from maintaining 

the insurance benefits. 

(3) If the participating insurer denies 

a request for voluntary disenrollment 

because the insured does not meet any 

criterion under paragraphs (e)(1)(i) 

through (v) of this section, the 

participating insurer must issue a 

written decision and notify the insured 

of the basis for the denial and how to 

appeal. The participating insurer will 

establish the form of such appeals 

whether orally, in writing, or both. The 

decision and notification of appellate 

rights must be issued to the insured no 

later than 30 days after the request for 


srobinson on DSK4SPTVN1PROD with PROPOSALS
12522 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

voluntary disenrollment is received by 

the participating insurer. The appeal 

will be decided and that decision issued 

in writing to the insured no later than 

30 days after the appeal is received by 

the participating insurer. An insurer’s 

decision of an appeal is final. 

(f) Participating insurers will establish 

and be responsible for determination 

and appeal procedures for all issues 

other than voluntary disenrollment. 

(Authority: Sec. 510, Pub. L. 111–163) 

[FR Doc. 2012–4879 Filed 2–29–12; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AN87 

Tentative Eligibility Determinations; 

Presumptive Eligibility for Psychosis 

and Other Mental Illness 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: This document proposes to 

amend the Department of Veterans 

Affairs (VA) regulation authorizing 

tentative eligibility determinations to 

comply with amended statutory 

authority concerning statutory 

minimum active-duty service 

requirements. This document also 

proposes to codify in regulation 

statutory presumptions of medical-care 

eligibility for veterans of certain wars 

and conflicts who developed psychosis 

within specified time periods and for 

Persian Gulf War veterans who 

developed a mental illness other than 

psychosis within two years after service 

and within two years after the end of the 

Persian Gulf War period. We believe 

that regulations are necessary because 

we would interpret the law to allow VA 

to waive any copayments associated 

with care pursuant to the statutory 

presumption and to waive any 

otherwise applicable minimum service 

requirements. 

DATES: Comments must be received by 

VA on or before April 30, 2012. 

ADDRESSES: Written comments may be 

submitted through 

www.Regulations.gov; by mail or handdelivery to Director, Regulations 

Management (02REG), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

(This is not a toll-free number). 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AN87, Tentative eligibility 

determinations; Presumptive eligibility 

for psychosis and other mental illness.’’ 

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 number). In 

addition, during the comment period, 

comments may be viewed online 

through the Federal Docket Management 

System (FDMS) at www.Regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Kristin J. Cunningham, Director, 

Business Policy, Chief Business Office, 

Department of Veterans Affairs, 810 

Vermont Avenue NW., Washington, DC 

20420; (202) 461–1599. (This is not a 

toll-free number). 

SUPPLEMENTARY INFORMATION: This 

rulemaking would amend 38 CFR 17.34, 

‘‘Tentative eligibility determinations,’’ 

and would establish a new § 17.109 

concerning presumptive eligibility for 

medical care for psychosis and other 

mental illness. 

Current 38 CFR 17.34 applies to 

veterans who seek medical care but are 

not enrolled in the VA healthcare 

system. Administratively, the rule 

allows us to provide medical care in 

specified situations, if ‘‘eligibility for 

[medical] care probably will be 

established.’’ Current § 17.34(a), which 

is not amended by this notice, 

authorizes such a tentative eligibility 

determination in emergencies. The vast 

majority of applicants who have not yet 

established eligibility but require 

medical care fall into this category. 

Current § 17.34(b) applies in nonemergency situations to a veteran who 

seeks medical care ‘‘within 6 months 

after date of honorable discharge from a 

period of not less than 6 months of 

active duty.’’ Paragraph (b) authorizes a 

tentative eligibility determination 

because of the brief time period between 

discharge and application. In many of 

these cases, it is clear that the condition 

for which the veteran seeks care is one 

for which service connection ‘‘probably 

will be established.’’ However, current 

paragraph (b) needs to be revised so that 

the minimum-active-duty period (‘‘6 

months of active duty’’) complies with 

the minimum active-duty service 

requirements set forth in 38 U.S.C. 

5303A. Pursuant to section 5303A(a), 

‘‘any requirements for eligibility for or 

entitlement to any [VA] benefit * * * 

that are based on the length of active 

duty served by a person who initially 

enters such service after September 7, 

1980, shall be exclusively as prescribed 

in [title 38, United States Code].’’ 

Therefore, the current rule would be 

applicable only to persons who entered 

a period of service on or before 

September 7, 1980, and are seeking 

eligibility based on that period of 

service. This requirement would be 

reflected in proposed paragraph (b)(1). 

Proposed paragraph (b)(2) would 

require, for persons who entered service 

after September 7, 1980, that the 

applicant meet the minimum service 

requirements in section 5303A, and 

have filed their application within 6 

months after date of honorable 

discharge. These revisions merely 

update our regulation to conform to 

current law. 

We would amend VA’s regulation on 

the provision of care to non-enrolled 

veterans, 38 CFR 17.37, by adding a 

paragraph that would authorize VA to 

provide care to veterans for psychosis 

and mental illnesses other than 

psychosis. The provision of this care 

would be pursuant to 38 CFR 17.109, 

which we propose to create in this rule 

and discuss in detail below. The 

proposal to amend § 17.37 authorizes 

the subsequent changes we propose in 

this rulemaking. 

We also propose a new § 17.109 that 

would codify in regulation for the first 

time two presumptions of eligibility for 

medical care based on specific 

diagnoses in certain veteran 

populations. Pursuant to 38 U.S.C. 

1702(a), for the purposes of VA’s 

authority to provide medical benefits 

under chapter 17 of title 38, United 

States Code, certain veterans who 

developed an active psychosis within a 

time period specified in the statute 

‘‘shall be deemed to have incurred such 

disability in the active military, naval, 

or air service.’’ The effect of a 

presumption of incurrence means that 

VA must provide medical care to the 

veteran as if the condition for which the 

veteran is treated were service 

connected. Although VA complies with 

this mandate, this statutory authority 

has never been articulated in a VA 

regulation. 

The National Defense Authorization 

Act for Fiscal Year 2008, Public Law 

110–181, § 1708(a)(1), (2), 122 Stat. 3, 

493–94 (2008), amended 38 U.S.C. 1702 

to create a similar presumption for 

veterans of the Persian Gulf War who 

develop a mental illness other than 

psychosis within two years after 

discharge from military service and 

within two years after the last day of the 

Persian Gulf War. We note that the 

Persian Gulf War is defined by statute 

as ‘‘the period beginning on August 2, 

1990, and ending on the date thereafter 

prescribed by Presidential proclamation 


srobinson on DSK4SPTVN1PROD with PROPOSALS