[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Proposed Rules]
[Pages 12522-12524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4941]


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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.

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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 hand-delivery 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 
Sec.  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 Sec.  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 Sec.  17.34(b) applies in non-emergency 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 Sec.  17.37 authorizes 
the subsequent changes we propose in this rulemaking.
    We also propose a new Sec.  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, Sec.  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

[[Page 12523]]

or by law.'' 38 U.S.C. 101(33). No ending date has yet been prescribed.
    In proposed Sec.  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 Sec. Sec.  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 Sec.  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 service-connected disability''.
    Finally, we propose to amend 38 CFR 17.108, 17.110, and 17.111 to 
clearly exempt persons eligible for care under proposed Sec.  17.109 
from the copayment requirement. Although we would establish such an 
exemption in Sec.  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

[[Page 12524]]

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 Sec.  17.34 by revising paragraph (b) to read as follows:


Sec.  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 Sec.  17.37 by adding paragraph (k) immediately after 
paragraph (j) to read as follows:


Sec.  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 Sec.  17.108 by adding paragraph (d)(12) to read as 
follows:


Sec.  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 Sec.  17.109.
* * * * *
    5. Add Sec.  17.109 to read as follows:


Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec.  17.110 by adding paragraph (c)(10) immediately after 
paragraph (c)(9) to read as follows:


Sec.  17.110  Copayments for medication.

* * * * *
    (c) * * *
    (10) A veteran receiving care for psychosis or a mental illness 
other than psychosis pursuant to Sec.  17.109.
* * * * *
    7. Amend Sec.  17.111 by adding paragraph (f)(9) to read as 
follows:


Sec.  17.111  Copayments for extended care services.

* * * * *
    (f) * * *
    (9) A veteran receiving care for psychosis or a mental illness 
other than psychosis pursuant to Sec.  17.109.
* * * * *

[FR Doc. 2012-4941 Filed 2-29-12; 8:45 am]
BILLING CODE 8320-01-P