[Federal Register Volume 89, Number 44 (Tuesday, March 5, 2024)]
[Rules and Regulations]
[Pages 15753-15754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04202]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3


Processing Applications for Health Care, Sergeant First Class 
Heath Robinson Honoring Our Promise To Address Comprehensive Toxics Act 
of 2022, or the Honoring Our PACT Act of 2022

AGENCY: Department of Veterans Affairs.

ACTION: Notification of sub-regulatory guidance.

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SUMMARY: This notice informs the public of the Department of Veterans 
Affairs (VA) implementation of the Honoring our PACT Act of 2022, which 
expands health care to three new cohorts of toxic-exposed veterans.

DATES: The guidance is effective upon publication. VA invites comments 
on this notice and its plan for implementation. To ensure VA considers 
your comment, comments are to be submitted on or before April 4, 2024.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
www.regulations.gov as soon as possible after they have been received. 
VA will not post on www.regulations.gov public comments that make 
threats to individuals or institutions or suggest that the commenter 
will take actions to harm an individual. VA encourages individuals not 
to submit duplicative comments; however, we will post comments from 
multiple unique commenters even if the content is identical or nearly 
identical to other comments. Any public comment received after the 
comment period's closing date is considered late and will not be 
considered.

FOR FURTHER INFORMATION CONTACT: Ralph Weishaar, Director, Business 
Support Office, VHA Member Services (15MEM) Business Policy, Department 
of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, 202-
461-9700 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: On August 10, 2022, the President signed 
into law the Honoring our PACT Act of 2022 (the PACT Act), Public Law 
117-168. Section 103(a)(1) of the PACT Act amended section 1710(e)(1) 
of title 38, United States Code (U.S.C.) to establish eligibility for 
hospital care, medical services, and nursing home care for three new 
cohorts of toxic-exposed veterans. Sections 1710(e)(1)(G) through (I) 
describe these three new cohorts of toxic-exposed veterans as follows:
    <bullet> Cohort 1: Veterans who participated in a toxic exposure 
risk activity while serving on active duty, active duty for training, 
or inactive duty training. (See 38 U.S.C. 1710(e)(1)(G)).
    <bullet> Cohort 2: Covered veterans as defined in 38 U.S.C. 
1119(c). (See 38 U.S.C. 1710(e)(1)(H)). Covered veterans are those 
veterans who:
    [cir] Performed active military, naval, air, or space service on or 
after August 2, 1990, while assigned to a duty station in (including 
airspace above): Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, 
Somalia, or the United Arab Emirates; or
    [cir] Performed active military, naval, air, or space service on or 
after September 11, 2001, while assigned to a duty station in 
(including airspace above) Afghanistan, Djibouti, Egypt, Jordan, 
Lebanon, Syria, Yemen, Uzbekistan, or any other country determined 
relevant by VA (note: VA has not determined any other country relevant 
at this time).
    <bullet> Cohort 3: Veterans who deployed in support of Operation 
Enduring Freedom, Operation Freedom's Sentinel, Operation Iraqi 
Freedom, Operation New Dawn, Operation Inherent Resolve, and Resolute 
Support Mission. (See 38 U.S.C. 1710(e)(1)(I)).
    Section 1710(e)(6)(A), as added by section 103(a) of the PACT Act, 
established a specific schedule for eligibility for these veterans 
depending upon their cohort and their date of discharge or release from 
the Armed Forces. However, section 1710(e)(6)(B)(i) authorizes VA to 
modify, to an earlier date, the start dates of VA health care 
eligibility for the three new cohorts of toxic-exposed veterans. The 
Secretary has determined modifying these dates is appropriate based on 
the number of veterans receiving hospital care, medical services, and 
nursing home care under section 1710(e)(1)(G) through (I) and the 
resources available to VA.
    Consequently, VA is announcing that, effective March 5, 2024, 
veterans in the three cohorts described above, corresponding to section 
1710(e)(1)(G) through (I), are eligible to enroll in VA health care on 
this basis. Modifying the phased-in schedule to an earlier single 
eligibility expansion date will provide an all-at-once approach for 
newly eligible veterans based on the amendments made by section 103(a) 
of the PACT Act.
    To help expedite the VA health care Priority Group upgrade process, 
VA is developing and will implement system enhancements to VHA's 
Enrollment System (VES) to assess the enrollment records of veterans 
who VA enrolled in Priority Group 6 based on their status as a combat 
veteran (as described in 38 U.S.C. 1710(e)(1)(D)) to determine their 
eligibility for continued assignment to Priority Group 6 based on their 
qualification in Cohort 2 or 3. Additionally, VES will assess the 
enrollment records of veterans enrolled in Priority Groups 7 and 8 to 
determine their eligibility for assignment to Priority Group 6 under 
Cohort 2 or 3. By the end of fiscal year 2024, VA will begin conducting 
targeted outreach to veterans currently enrolled in Priority Groups 7 
and 8 whom VA could not determine eligibility for assignment to 
Priority Group 6 based on being in Cohorts 1, 2, or 3. VA will provide 
guidance to these veterans on the new authorities, along with 
instructions on how to submit a VA Form 10-10EZR, Health Benefits 
Update Form, for consideration of an upgrade to their enrollment 
Priority Group.

Eligibility Based on Toxic Exposure Risk Activity (TERA)

    Background: Cohort 1 veterans are those who participated in a toxic 
exposure risk activity (TERA) while serving on active duty, active duty 
for training, or inactive duty training. If the veteran only 
participated in a TERA

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outside of one of these service periods (e.g., as a civilian or private 
contractor), the veteran is not eligible as a Cohort 1 veteran. 38 
U.S.C. 1710(e)(4)(C) defines TERA as any activity that requires a 
corresponding entry in an exposure tracking record system (as defined 
in 38 U.S.C. 1119(c)) or that the Secretary determines qualifies for 
purposes of this subsection when taking into account what is reasonably 
prudent to protect the health of veterans. 38 U.S.C. 1119(c) defines 
the term ``exposure tracking record system'' as any system, program, or 
pilot program used by VA or the Department of Defense to track how 
veterans or members of the Armed Forces have been exposed to various 
occupational or environmental hazards; this includes the Individual 
Longitudinal Exposure Record (ILER) or successor system.
    Description of TERA: VA has determined under 38 U.S.C. 
1710(e)(4)(C)(ii) that veterans who were exposed to one or more of the 
following hazards or conditions during active duty, active duty for 
training, or inactive duty training participated in a TERA: air 
pollutants (burn pits, sand, dust, particulates, oil well fires, sulfur 
fires), chemicals (pesticides, herbicides, depleted uranium with 
embedded shrapnel, contaminated water), occupational hazards (asbestos, 
industrial solvents, lead, paints including chemical agent resistant 
coating, firefighting foams), radiation (nuclear weapons handling, 
maintenance and detonation, radioactive material, calibration and 
measurement sources, X-rays, radiation from military occupational 
exposure), and warfare agents (nerve agents, chemical and biological 
weapons). This list is not comprehensive; if veterans believe they 
participated in other activities that constitute a TERA, they should 
identify the TERA in their application so VA can determine whether they 
qualify. Veterans can locate additional military exposure categories on 
VA's Public Health website at https://www.publichealth.va.gov/exposures/.
    Process: Veterans must apply (either as a new enrollee on VA Form 
10-10EZ, Application for Health Benefits, or as an existing enrollee on 
VA Form 10-10EZR, Health Benefits Update Form) for VA to determine 
whether they participated in a TERA and are eligible for enrollment in 
Priority Group 6 on that basis. If VA has already determined that a 
veteran participated in a TERA in the context of a disability claim, 
that decision will be binding for health care enrollment purposes. If 
VA has not determined a veteran participated in a TERA, VA will 
consider required entries in the veteran's ILER, the veteran's Service 
personnel records, and other sources as necessary, including the 
veteran's military service record, which may include the veteran's 
Military Occupational Specialty, and any active military, naval, air, 
or space service or active duty for training or inactive duty for 
training to determine whether the veteran participated in a TERA, as 
described above.

Covered Veterans and Veterans Who Deployed in Support of Certain 
Contingency Operations

    Background: As described above, veterans in Cohorts 2 and 3 served 
in certain locations during certain time periods (generally, during or 
after the Persian Gulf War) or in support of certain contingency 
operations (generally after September 11, 2001).
    Process: For current enrollees, VA will review its existing records 
to determine if the enrollee is a covered veteran or deployed in 
support of an identified contingency operation. If the veteran's 
service qualifies, VA will place the veteran in Priority Group 6 unless 
the veteran qualifies for a higher Priority Group. VA will review new 
applications for enrollment to determine whether the veteran is 
eligible for enrollment in Priority Group 6 as a Cohort 2 or Cohort 3 
veteran based on qualifying service.

Conclusion and Next Steps

    VA is currently drafting a proposed rule to codify in regulation 
the statutory changes made by section 103(a) of the PACT Act. Due to 
the time required to promulgate regulations, VA will implement the law 
and begin processing applications for VA health care pursuant to the 
amendments made by section 103(a) of the PACT Act on March 5, 2024, 
based on the sub-regulatory guidance contained in the Under Secretary 
for Health (USH) Memorandum associated with this Notice. To ensure the 
enrollment of all veterans eligible under this authority, VA will also 
begin targeted outreach to current enrollees who may benefit from these 
changes to provide further information on the amendments made by 
section 103 of the PACT Act and how to request a Priority Group 
upgrade. VA will also engage in outreach to unenrolled veterans to 
encourage them to apply. VA will evaluate the records of veterans 
applying for VA health care for the first time, if they meet the basic 
threshold eligibility requirements for VA health care, to determine 
eligibility under Cohorts 1 through 3 as added by section 103 of the 
PACT Act (as well as any other bases for eligibility). Issuing the USH 
Memorandum will allow VA to implement 38 U.S.C. 1710(e)(1)(G) through 
(I) and deliver health care to veterans as quickly as possible while 
simultaneously continuing efforts to promulgate the implementing 
regulations. VA will provide the USH Memorandum to VHA Enrollment and 
Eligibility staff and VA medical facility directors. This USH 
Memorandum is a supporting document and is located at http://www.regulations.gov.
    How to Apply: Any veteran who wants to apply for new VA health care 
enrollment can do so by submitting a VA Form 10-10EZ: (1) in-person or 
by mail to a VA medical facility; (2) by mail to the Health Eligibility 
Center, 2957 Clairmont Rd., Suite 200, Atlanta, GA 30329; (3) online at 
https://www.va.gov/health-care/how-to-apply/; or (4) by calling 1-877-
222-VETS (8387). Veterans enrolled in VA health care who want to apply 
for an upgrade to their current Priority Group can do so by submitting 
a VA Form 10-10EZR using any of the four methods described above. 
Should a veteran receive an enrollment decision with which they 
disagree, they can appeal the decision with VA.
    For more information about the PACT Act and your benefits, access 
https://www.va.gov/resources/the-pact-act-and-your-va-benefits/ or 
contact 1-877-222-VETS (8387).

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on February 23, 2024, 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.

Michael P. Shores,
Director, Office of Regulation Policy & Management, Office of General 
Counsel, Department of Veterans Affairs.
[FR Doc. 2024-04202 Filed 3-4-24; 8:45 am]
BILLING CODE 8320-01-P