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[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Proposed Rules]
[Pages 102031-102034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28999]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AS25

Updates to Waiver of Charges for Copayments

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
medical regulations to allow VA to initiate a waiver request for debt 
accumulated from health care copayments on behalf of veterans in 
certain circumstances and to remove the requirement that veterans 
submit VA Form 5655 when seeking a waiver of copayment debt.

DATES: Comments must be received on or before February 18, 2025.

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 public comments on www.regulations.gov 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. We will post acceptable comments from 
multiple unique commenters even if the content is identical or nearly 
identical to other comments. Any public comment

[[Page 102032]]

received after the comment period's closing date is considered late and 
will not be considered in the final rulemaking. In accordance with the 
Providing Accountability Through Transparency Act of 2023, a plain 
language summary (not more than 100 words in length) of this proposed 
rule is available at www.regulations.gov, under RIN 2900-AS25.

FOR FURTHER INFORMATION CONTACT: Andrew Patrick, Executive Director, 
Revenue Operations, Office of Finance, (104RO), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Ave. NW, 
Washington DC 20420, (202) 809-3030. (This is not a toll-free telephone 
number.)

SUPPLEMENTARY INFORMATION: 

Authority and Background

    Section 1710 of title 38, United States Code (U.S.C.) requires VA 
to furnish hospital care and medical services, and authorizes VA to 
provide nursing home care, that VA determines to be needed for eligible 
veterans. Section 1710 authorizes VA to provide such care only when the 
veteran agrees to pay the applicable copayment. 38 U.S.C. 1710(f)(1) 
and (g)(1). Additionally, section 1722A establishes that VA must 
require a copayment from certain veterans for medications. VA has set 
forth copayment requirements for inpatient hospital care and outpatient 
medical care in Sec.  17.108 of title 38, Code of Federal Regulations 
(CFR), copayment requirements for medication in Sec.  17.110, 
copayments for extended care services in Sec.  17.111, and copayments 
for urgent care at Sec.  17.4600. These types of medical copayments are 
generally referred to as ``copayments'' throughout this rulemaking.
    Under 31 U.S.C. 3711(a)(1), Federal agencies are required to ``try 
to collect a claim of the United States Government for money or 
property arising out of the activities of, or referred to, the 
agency,'' which means that VA must attempt to collect amounts owed by 
veterans to VA, including debts arising from copayments. However, VA is 
authorized to waive recovery of payments or overpayments of benefits, 
including copayments, when recovery would be against equity and good 
conscience and an application for relief is made within 180 days from 
the date of notification of the indebtedness by VA. 38 U.S.C. 
5302(a)(1). VA has regulated the waiver of debts arising from medical 
copayments in 38 CFR 17.105(c). VA has also regulated the process for 
waiver applications in 38 CFR 1.963(b), the process to request a 
hearing in Sec.  1.966(a), and the application of the ``equity and good 
conscience'' standard in Sec. Sec.  1.965 and 1.966(a).
    Explained in more detail below, VA proposes to amend Sec.  
17.105(c) to: remove the requirement to submit a particular form when 
requesting a waiver of charges for copayments; add the ability for VA 
to initiate waiver requests on behalf of veterans; update VA staff 
position titles; and clarify the applicability of other regulations 
related to appeals of VA decisions on the waiver of copayments. These 
changes would provide clarity within the regulation, be consistent with 
the statutory authority for collection of copayments and waiver of 
copayments, reflect the current position title used by VA, and update 
cross-references to other regulatory sections.
    We note at the outset that current Sec.  17.105(c) references only 
claimants, not veterans. In the proposed changes to Sec.  17.105(c) 
discussed below, we would include references to both claimants and 
veterans. We would maintain the existing references to claimants when 
discussing the process for anyone other than VA to initiate a waiver 
request for charges of copayments, and we would use the word veteran 
when discussing the process whereby VA would initiate a request for 
waiver on behalf of a veteran.

Changes to 38 CFR 17.105(c)

    In this rulemaking we propose to amend 38 CFR 17.105(c) related to 
waivers for copayments. We would first restructure current Sec.  
17.105(c) by breaking the single paragraph into proposed subparagraphs 
(c)(1) through (5), which would retain the majority of the language in 
current paragraph (c), but the further subparagraphs would make the 
proposed substantive and technical changes clearer.
    The first sentence of current Sec.  17.105(c) introduces the 
process for requesting a waiver of charges for copayments and states 
that ``[if] the debt represents charges for outpatient medical care, 
inpatient hospital care, medication or extended care services 
copayments made under Sec. Sec.  17.108, 17.110, 17.111, or 17.4600, 
the claimant must request a waiver by submitting VA Form 5655 
(Financial Status Report) to the Consolidated Patient Account Center 
(CPAC) Chief Financial Officer.'' We would retain this sentence as a 
standalone proposed Sec.  17.105(c), with the following revisions.
    We would first add the phrase ``urgent care'' to the list of debts 
from charges for care authorized to be waived. Current Sec.  17.105(c) 
does not include the phrase urgent care but does include reference to 
Sec.  17.4600, which addresses copayments for urgent care. Therefore, 
to ensure a complete and parallel listing of all applicable care types, 
we would add the phrase ``urgent care'' to qualify Sec.  17.4600.
    We would then add language in proposed Sec.  17.105(c) to establish 
that VA may initiate a waiver request in addition to a ``claimant.'' 
This change would be necessary because VA recognizes that situations 
may arise where it would be more equitable and efficient for VA staff 
to initiate waiver requests on behalf of veterans. We would not propose 
to list specific situations in which VA may initiate a waiver, so that 
VA may retain greater flexibility in assessing what we believe would be 
novel circumstances. However, one example for when VA might initiate a 
waiver request would be in cases of VA error, particularly when large 
groups of veterans are impacted by the same VA error or errors.
    Proposed Sec.  17.105(c) would remove the requirement in current 
Sec.  17.105(c) that claimants must submit VA Form 5655 to request a 
waiver of charges of copayments. VA Form 5655 is a two-page form that 
requires each claimant provide detailed information regarding monthly 
expenses, debts, and other financial information. VA now finds that 
this level of specificity can be burdensome to the claimant and is 
often more information than VA requires to make a waiver determination. 
VA would still regulate other criteria for submission of waiver 
requests, but the requirement would be moved to proposed Sec.  
17.105(c)(1).
    Lastly, proposed Sec.  17.105(c) would move the requirement that 
the form be sent to the Chief Financial Officer to Sec.  
17.105(c)(1)(ii), and in that provision, change the position title from 
``Chief Financial Officer'' to ``Chief Fiscal Officer'' to reflect the 
current position title. This is merely a technical change and would not 
change the process to submit a waiver or to whom the request is 
submitted.
    For the reasons stated above, proposed Sec.  17.105(c) would read: 
``Of charges for copayments. If the debt represents charges for 
outpatient medical care, inpatient hospital care, medication, extended 
care services, or urgent care copayments made under Sec. Sec.  17.108, 
17.110, 17.111, or 17.4600, either a claimant or VA may initiate a 
waiver request.''
    Proposed Sec.  17.105(c)(1) would establish requirements for 
claimants to submit requests for waiver of charges of copayments. 
Proposed paragraph (c)(1) would establish introductory language to 
state ``[i]f the claimant requests a

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waiver, the claimant must:'' where proposed subparagraphs (c)(1)(i)-
(iv) would establish the specific criteria for a waiver request.
    The criteria in proposed paragraphs (c)(1)(i), (ii), and (iv) would 
remain the same as those listed in current Sec.  17.105(c), with the 
exceptions of the requirement to submit VA Form 5655 and changing the 
title of the CPAC Chief Financial Officer to the Chief Fiscal Officer.
    Proposed Sec.  17.105(c)(1)(i) would establish that claimants must 
make the request within the time period provided in Sec.  1.963(b) of 
this chapter. This is identical to the submission timeframe in current 
Sec.  17.105(c) as VA finds it is still sufficient for purposes of 
waiver requests for copayments.
    Proposed Sec.  17.105(c)(1)(ii) would establish that claimants 
submit the request for waiver in writing to the Consolidated Patient 
Account Center (CPAC) Chief Fiscal Officer. We reiterate that removing 
the requirement for every claimant to submit VA Form 5655 would reduce 
burden for most claimants and eliminate requests for information that 
is not relevant for VA to determine whether to grant waiver requests. 
Therefore, as we would no longer be requiring a certain form, we would 
state that the request must be in writing in accordance with Sec. Sec.  
1.911(c)(2), 1.912(c)(2) and 1.912a(c)(2). As discussed below, the 
proposed removal of the requirement to submit VA Form 5655 would not 
prevent VA from requesting VA Form 5655, or other information, from a 
claimant after submission of the initial waiver request if, in the 
course determining whether a waiver will be granted, VA determines more 
information is needed to make a waiver determination.
    To ensure that VA has the information required to make 
determinations related to waiver requests, proposed Sec.  
17.105(c)(1)(iii) would state that claimants must provide any 
additional information that VA may request to determine whether the 
waiver request will be granted. This requirement is not expressly 
stated in current Sec.  17.105(c), but is consistent with VA practice.
    Proposed Sec.  17.105(c)(1)(iv) would direct claimants to request a 
hearing under Sec.  1.966(a) of this chapter if a hearing is desired. 
This requirement is identical to what is stated in current Sec.  
17.105(c), as VA finds it is still sufficient for purposes of waiver 
requests for copayments.
    Proposed Sec.  17.105(c)(2) would establish requirements for VA to 
submit requests for waivers on behalf of veterans. VA believes that in 
certain circumstances it would be beneficial to veterans and VA if VA 
were permitted to submit requests for waivers on behalf of veterans. 
Proposed paragraph (c)(2) would provide that when VA requests a waiver 
on behalf of a veteran, VA would meet the criteria further outlined in 
proposed paragraphs (c)(2)(i)-(iv). The criteria in proposed Sec.  
17.105(c)(2)(i)-(iii) would essentially mirror the criteria required of 
claimants under proposed (c)(1)(i), (ii), and (iv). The waiver request 
requirements in proposed Sec.  17.105(c)(2)(i)-(iii) are again 
substantively the same as those stated in current Sec.  17.105(c), with 
the exceptions of the requirement to submit a particular VA form, and 
the change in title of the CPAC Chief Financial Officer to the Chief 
Fiscal Officer.
    Proposed Sec.  17.105(c)(2)(i) would state that VA must make the 
request within the time period provided in Sec.  1.963(b) of this 
chapter, and proposed paragraph (c)(2)(ii) would direct VA to submit 
the waiver request to the designated CPAC Chief Fiscal Officer. Both of 
these requirements are consistent with what is stated in current Sec.  
17.105(c) and proposed paragraphs (c)(1)(i) and (c)(1)(ii), in terms of 
requirements for claimants' submission of waiver requests.
    Proposed Sec.  17.105(c)(2)(iii) would establish that VA must 
notify the veteran in writing that a request has been made on their 
behalf and that the veteran may request a hearing pursuant to Sec.  
1.966(a). The proposed requirement that VA notify the veteran when a 
waiver request has been initiated on their behalf is not in current 
Sec.  17.105(c) because the process for VA to do so is newly proposed 
in this rulemaking. However, VA would ensure that the veteran is 
notified, in writing, so that way veterans are aware that VA has 
initiated a waiver request for the debt and that the veteran has the 
right to a hearing on the request under Sec.  1.966(a).
    Proposed Sec.  17.105(c)(2)(iv) would state that VA may request any 
additional information from the veteran that may be required to 
determine whether the waiver will be granted. Although this requirement 
is also not stated in current Sec.  17.105(c), it reflects current VA 
practice, and it is included in proposed Sec.  17.105(c)(1)(iii) as 
applicable to claimants who request a waiver. It is necessary to ensure 
VA has sufficient information by which to determine whether or not a 
waiver request should be granted.
    Proposed Sec.  17.105(c)(3) would state that the CPAC Chief Fiscal 
Officer may extend the time period to submit a waiver request if the 
Chairperson of the Committee on Waivers and Compromises could do so 
under Sec.  1.963(b) of this chapter. This language would be consistent 
with current Sec.  17.105(c), except that proposed paragraph (c)(3) 
uses the term ``waiver request'' instead of the term ``claim.'' Using 
the term ``waiver request'' would be consistent with the terminology 
used in part 1 of Title 38, CFR, and referenced throughout this 
rulemaking, while not substantively changing the meaning of the 
provision.
    Proposed Sec.  17.105(c)(4) would contain the standard of review 
for waiver requests, and would state that the CPAC Chief Fiscal Officer 
will apply the ``equity and good conscience'' standard in accordance 
with Sec. Sec.  1.965 and 1.966(a) of this chapter, and may waive all 
or part of the claimant's debts. This language would be identical to 
that in current Sec.  17.105(c).
    Lastly, proposed Sec.  17.105(c)(5) would establish that a decision 
by the CPAC Chief Fiscal Officer under this provision is final (except 
that the decision may be reversed or modified based on new and material 
evidence, fraud, a change in law or interpretation of law, or clear and 
unmistakable error shown by the evidence in the file at the time of the 
prior decision, as provided in Sec.  1.969 of this chapter) and may be 
appealed in accordance with 38 CFR parts 19 and 20 as applicable. This 
language would be consistent with current Sec.  17.105(c), except that 
proposed paragraph (c)(5) would include the words ``as applicable'' to 
more clearly qualify that either or both 38 CFR parts 19 and 20 may 
apply for purposes of appealing VA's decisions related to waiver 
requests.

Executive Orders 12866, 13563, and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
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 14094 (Executive Order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in Executive Order 12866 of September 30, 
1993 (Regulatory Planning and Review), and Executive Order 13563 of 
January

[[Page 102034]]

18, 2011 (Improving Regulation and Regulatory Review). The Office of 
Information and Regulatory Affairs has determined that this rule is not 
a significant regulatory action under Executive Order 12866, as amended 
by Executive Order 14094. The Regulatory Impact Analysis associated 
with this rulemaking can be found as a supporting document at 
www.regulations.gov.

Regulatory Flexibility Act (RFA)

    The Secretary hereby certifies that this proposed rule would or 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). The factual basis for this certification is that this 
proposed rule impacts only VA staff and veterans, and thus no small 
entities will be affected. Therefore, pursuant to 5 U.S.C. 605(b), the 
initial and final regulatory flexibility analysis requirements of 5 
U.S.C. 603 and 604 do not apply.

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 the 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 one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act (PRA)

    Although this proposed rule contains a collection of information 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521), there are no provisions associated with this rulemaking 
constituting any new collection of information or any revisions to the 
current collection of information. The collection of information for 38 
CFR 17.105(c) is currently approved by the Office of Management and 
Budget (OMB) and has a valid OMB control number of 2900-0165.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Claims, Health care, 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, signed and approved 
this document on December 5, 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.

Consuela Benjamin,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of 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 set forth below:

PART 17--MEDICAL

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

    Authority:  38 U.S.C. 501, and as noted in specific sections.
* * * * *
0
2. Amend Sec.  17.105 by revising paragraph (c) to read as follows:

Sec.  17.105  Waivers

* * * * *
    (c) Of charges for copayments. If the debt represents charges for 
outpatient medical care, inpatient hospital care, medication, extended 
care services, or urgent care copayments made under Sec. Sec.  17.108, 
17.110, 17.111, or 17.4600, either a claimant or VA may initiate a 
waiver request.
    (1) If the claimant requests the waiver, the claimant must:
    (i) Make the request within the time period provided in Sec.  
1.963(b) of this chapter.
    (ii) Submit the request in writing to the Consolidated Patient 
Account Center (CPAC) Chief Fiscal Officer.
    (iii) Provide any additional information that VA may request to 
determine whether the waiver will be granted.
    (iv) Request a hearing under Sec.  1.966(a) of this chapter if a 
hearing is desired.
    (2) If VA requests a waiver on behalf of a veteran, VA will:
    (i) Make the request within the time period provided in Sec.  
1.963(b) of this chapter.
    (ii) Submit the request in writing to the designated CPAC Chief 
Fiscal Officer.
    (iii) Notify the veteran in writing that a waiver request has been 
made on the veteran's behalf and that the veteran may request a hearing 
pursuant to Sec.  1.966(a).
    (iv) Request any additional information from the veteran that may 
be required to determine whether the waiver will be granted.
    (3) The CPAC Chief Fiscal Officer may extend the time period to 
submit a waiver request if the Chairperson of the Committee on Waivers 
and Compromises could do so under Sec.  1.963(b) of this chapter.
    (4) The CPAC Chief Fiscal Officer will apply the ``equity and good 
conscience'' standard in accordance with Sec. Sec.  1.965 and 1.966(a) 
of this chapter, and may waive all or part of the claimant's debts.
    (5) A decision by the CPAC Chief Fiscal Officer under this 
provision is final (except that the decision may be reversed or 
modified based on new and material evidence, fraud, a change in law or 
interpretation of law, or clear and unmistakable error shown by the 
evidence in the file at the time of the prior decision, as provided in 
Sec.  1.969 of this chapter) and may be appealed in accordance with 38 
CFR parts 19 and 20, as applicable.
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[FR Doc. 2024-28999 Filed 12-16-24; 8:45 am]
BILLING CODE 8320-01-P
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