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
Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 12523 

or by law.’’ 38 U.S.C. 101(33). No 

ending date has yet been prescribed. 

In proposed § 17.109, we would 

articulate in regulation the statutory 

presumptions in 38 U.S.C. 1702. Most of 

the language of the proposed rule would 

be virtually identical to that of the 

authorizing statute; we would merely 

reorganize it for clarity. 

A veteran who receives care from VA 

for a service-connected disability is not 

required to pay copayments under 38 

CFR 17.108(b), 17.110(c)(2), and 

17.111(f). Because the veteran would be 

receiving care for a condition that is 

presumed to have been incurred during 

service, i.e., presumed to be service 

connected, we believe that section 1702 

requires us to waive copayments for this 

group of veterans. Thus, we would state 

in the proposed rule that the eligibility 

for benefits is established under this 

section ‘‘and such condition is 

exempted from copayments under 

§§ 17.108, 17.110, and 17.111’’. 

The section 1702 presumption applies 

only for the purposes of 38 U.S.C. 

chapter 17, which establishes VA’s 

authority to provide medical, nursing 

home, and domiciliary care. In other 

words, we presume eligibility for the 

purposes of administering those services 

that VA is authorized to provide under 

chapter 17, including but not only the 

medical benefits package under 38 CFR 

17.38, which sets out generally those 

services that VA may provide. 

Thus, the Veterans Health 

Administration (VHA) may treat the 

covered disabilities as if they were 

service connected for purposes of 

furnishing VHA benefits and, in turn, 

determine that no copayment is 

applicable to the receipt of such 

benefits. 

In addition, because we are treating 

these veterans by presuming that their 

condition is service-connected, we 

would clarify in paragraph (c) that 

minimum active-duty service 

requirements do not apply to eligibility 

for care and waiver of copayments 

established under the proposed rule. As 

discussed above regarding the proposal 

to amend § 17.34(b), pursuant to 38 

U.S.C. 5303A(a), veterans who entered 

service after September 7, 1980, are 

subject to certain minimum service 

requirements; however, under section 

5303A(b)(3)(D), this requirement does 

not apply ‘‘to the provision of a benefit 

for or in connection with a serviceconnected disability’’. 

Finally, we propose to amend 38 CFR 

17.108, 17.110, and 17.111 to clearly 

exempt persons eligible for care under 

proposed § 17.109 from the copayment 

requirement. Although we would 

establish such an exemption in § 17.109 

itself, we believe that our regulations 

will be clearer overall if the exemptions 

are repeated in the copayment 

regulations. 

VA assumes that the number of 

veterans who will request eligibility 

under this rulemaking is insignificant 

because most veterans will be otherwise 

eligible for service-connected treatment. 

The majority of veterans who are 

already enrolled in the system or 

eligible for care under 38 U.S.C. 1710 

would not be affected by this 

rulemaking. The potential cohort of 

veterans who are not enrolled in the 

system and who are not eligible for care 

under 38 U.S.C. 1710, but meet the 

criteria established by the provisions of 

this rulemaking are insignificant 

compared to the veterans eligible or 

enrolled under 38 U.S.C. 1710. In 

addition, the veterans who gain access 

through this rulemaking do not get the 

full medical benefits package so it 

would not be advantageous to gain 

eligibility through this provision when 

they are eligible through 38 U.S.C. 1710. 

Therefore, VA assumes the cost 

associated with this rulemaking to be 

insignificant and welcomes the public 

to comment on any of the assumptions 

used in this analysis. 

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, distributive impacts, and 

equity). Executive Order 13563 

(Improving Regulation and Regulatory 

Review) emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of 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. 

The economic, interagency, 

budgetary, legal, and policy 

implications of this proposed regulatory 

action have been examined and it has 

been determined not to be a significant 

regulatory action under Executive Order 

12866. 

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. 

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 

developing 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 proposed rule would 

have no such effect on State, local, or 

tribal governments, or on the private 

sector. 

Paperwork Reduction Act 

This proposed rule does not contain 

any collections of information under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). 

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 VA 

beneficiaries could be directly affected. 

Therefore, under 5 U.S.C. 605(b), this 

proposed rule is exempt from the initial 

and final regulatory flexibility analysis 

requirements of 5 U.S.C. 603 and 604. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

are 64.009, Veterans Medical Care 

Benefits; 64.010, Veterans Nursing 

Home Care; 64.011, Veterans Dental 

Care; 64.013, Veterans Prosthetic 

Appliances; 64.018, Sharing Specialized 

Medical Resources; 64.019, Veterans 


srobinson on DSK4SPTVN1PROD with PROPOSALS
12524 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Proposed Rules 

Rehabilitation Alcohol and Drug 

Dependence; and 64.022, Veterans 

Home Based Primary 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 24, 2012, 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, 

Grant programs—veterans, Health care, 

Health facilities, Health professions, 

Health records, Homeless, Medical and 

dental schools, Medical devices, 

Medical research, Mental health 

programs, Nursing homes, Philippines, 

Reporting and recordkeeping 

requirements, Scholarships and 

fellowships, Travel and transportation 

expenses, Veterans. 

Dated: February 27, 2012. 

Robert C. McFetridge, 

Director, Office 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 

Affairs 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. Amend § 17.34 by revising 

paragraph (b) to read as follows: 

§ 17.34 Tentative Eligibility 

Determinations. 

* * * * * 

(b) Based on discharge. The 

application is filed within 6 months 

after date of honorable discharge and: 

(1) For a veteran who seeks eligibility 

based on a period of service that began 

on or before September 7, 1980, such 

period must have been for not less than 

6 months of active duty. 

(2) For a veteran who seeks eligibility 

based on a period of service that began 

after September 7, 1980, the veteran 

must meet the applicable minimum 

service requirements under 38 U.S.C. 

5303A. 

(Authority: 38 U.S.C. 501, 5303A) 

3. Amend § 17.37 by adding 

paragraph (k) immediately after 

paragraph (j) to read as follows: 

§ 17.37 Enrollment Not Required— 

Provision of Hospital and Outpatient Care 

to Veterans. 

* * * * * 

(k) A veteran may receive care for 

psychosis or mental illness other than 

psychosis pursuant to 38 CFR 17.109. 

* * * * * 

4. Amend § 17.108 by adding 

paragraph (d)(12) to read as follows: 

§ 17.108 Copayments for inpatient hospital 

care and outpatient medical care. 

* * * * * 

(d) * * * 

(12) A veteran receiving care for 

psychosis or a mental illness other than 

psychosis pursuant to § 17.109. 

* * * * * 

5. Add § 17.109 to read as follows: 

§ 17.109 Presumptive eligibility for 

psychosis and mental illness other than 

psychosis. 

(a) Psychosis. Eligibility for benefits 

under this part is established by this 

section for treatment of an active 

psychosis, and such condition is 

exempted from copayments under 

§§ 17.108, 17.110, and 17.111 for any 

veteran of World War II, the Korean 

conflict, the Vietnam era, or the Persian 

Gulf War who developed such 

psychosis: 

(1) Within 2 years after discharge or 

release from the active military, naval, 

or air service; and 

(2) Before the following date 

associated with the war or conflict in 

which he or she served: 

(i) World War II: July 26, 1949. 

(ii) Korean conflict: February 1, 1957. 

(iii) Vietnam era: May 8, 1977. 

(iv) Persian Gulf War: The end of the 

2-year period beginning on the last day 

of the Persian Gulf War. 

(b) Mental illness (other than 

psychosis). Eligibility under this part is 

established by this section for treatment 

of an active mental illness (other than 

psychosis), and such condition is 

exempted from copayments under 

§§ 17.108, 17.110, and 17.111 for any 

veteran of the Persian Gulf War who 

developed such mental illness other 

than psychosis: 

(1) Within 2 years after discharge or 

release from the active military, naval, 

or air service; and 

(2) Before the end of the 2-year period 

beginning on the last day of the Persian 

Gulf War. 

(c) No minimum service required. 

Eligibility for care and waiver of 

copayments will be established under 

this section without regard to the 

veteran’s length of active-duty service. 

(Authority: 38 U.S.C. 501, 1702, 5303A) 

6. Amend § 17.110 by adding 

paragraph (c)(10) immediately after 

paragraph (c)(9) to read as follows: 

§ 17.110 Copayments for medication. 

* * * * * 

(c) * * * 

(10) A veteran receiving care for 

psychosis or a mental illness other than 

psychosis pursuant to § 17.109. 

* * * * * 

7. Amend § 17.111 by adding 

paragraph (f)(9) to read as follows: 

§ 17.111 Copayments for extended care 

services. 

* * * * * 

(f) * * * 

(9) A veteran receiving care for 

psychosis or a mental illness other than 

psychosis pursuant to § 17.109. 

* * * * * 

[FR Doc. 2012–4941 Filed 2–29–12; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2010–0100; FRL–9641–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; Indiana; 

Lead Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a request submitted by the Indiana 

Department of Environmental 

Management (IDEM) on November 24, 

2010, to revise the Indiana State 

Implementation Plan (SIP) for lead (Pb) 

under the Clean Air Act (CAA). This 

submittal incorporates the National 

Ambient Air Quality Standards 

(NAAQS) for Pb promulgated by EPA in 

2008. 

DATES: Comments must be received on 

or before April 2, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2010–0100, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: aburano.douglas@epa.gov. 

3. Fax: (312) 408–2279. 

4. Mail: Douglas Aburano, Chief, 

Attainment Planning and Maintenance 


srobinson on DSK4SPTVN1PROD with PROPOSALS