52072 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Rules and Regulations 

Executive Order 13175, ‘‘Consultation 

and Coordination With Indian Tribal 

Governments’’ 

It has been determined that Privacy 

Act rules for the DoD do not have 

substantial effects on Indian tribal 

governments. The rules do not impose 

substantial direct compliance costs on 

one or more Indian tribes, preempt 

tribal law, or effect the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

List of Subjects in 32 CFR Part 310 

Privacy. 

Accordingly, 32 CFR part 310 is 

amended as follows: 

PART 310—[AMENDED] 

■ 1. The authority citation for 32 CFR 

part 310 continues to read as follows: 

Authority: 5 U.S.C. 552a. 

■ 2. Section 310.13 is amended by 

adding paragraph (e)(4) to read as 

follows: 

§ 310.13 Exemptions for DoD-wide 

systems. 

* * * * * 

(e) * * * 

(4) System identifier and name. DoD– 

0005, ‘‘Defense Training Records.’’ 

(i) Exemptions. This system of records 

is exempt from 5 U.S.C. 552a(c)(3) and 

(d)(1), (2), (3), and (4). 

(ii) Authority. 5 U.S.C. 552a(k)(1) and 

(6). 

(iii) Exemption from the particular 

subsections. Exemption from the 

particular subsections is justified for the 

following reasons: 

(A) Subsections (c)(3), (d)(1), and 

(d)(2)—(1) Exemption (k)(1). Training 

records in this system of records may 

contain information concerning DoD 

personnel or training materials that is 

properly classified pursuant to 

executive order. Application of 

exemption (k)(1) for such records may 

be necessary because access to and 

amendment of the records, or release of 

the accounting of disclosures for such 

records, could reveal classified 

information. Disclosure of classified 

records to an individual may cause 

damage to national security. 

(2) Exemption (k)(6). Training records 

in this system of records may contain 

information relating to testing or 

examination material used solely to 

determine individual qualifications for 

appointment or promotion in the 

Federal service. Application of 

exemption (k)(6) for such records may 

be necessary when access to and 

amendment of the records, or release of 

the accounting of disclosure for such 

records, may compromise the objectivity 

and fairness of the testing or 

examination process. Amendment of 

such records could also impose a highly 

impracticable administrative burden by 

requiring testing and examinations to be 

continuously re-administered. 

(B) Subsections (d)(3) and (4). These 

subsections are inapplicable to the 

extent an exemption is claimed from 

subsection (d)(2). Moreover, applying 

the amendment appeal procedures to 

training and examination materials 

could impose a highly impractical 

administrative burden by requiring 

testing and examinations to be 

continuously re-administered. 

(iv) Exempt records from other 

systems. In the course of carrying out 

the overall purpose for this system, 

exempt records from other systems of 

records may in turn become part of the 

records maintained in this system. To 

the extent that copies of exempt records 

from those other systems of records are 

maintained in this system, the DoD 

claims the same exemptions for the 

records from those other systems that 

are entered into this system, as claimed 

for the prior system(s) of which they are 

a part, provided the reason for the 

exemption remains valid and necessary. 

* * * * * 

Dated: September 14, 2021. 

Aaron T. Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2021–20221 Filed 9–17–21; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AQ31 

Elimination of Copayment for Opioid 

Antagonists and Education on Use of 

Opioid Antagonists 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is amending its medical 

regulations that govern copayments to 

conform with recent statutory 

requirements. VA is eliminating the 

copayment requirement for opioid 

antagonists furnished to veterans who 

are at high risk of overdose of a specific 

medication or substance in order to 

reverse the effect of such an overdose. 

VA is also clarifying that no copayment 

is required for the provision of 

education on the use of opioid 

antagonists. This final rule is an 

essential part of VA’s attempts to help 

veterans at high risk of overdose. 

DATES: This rule is effective October 20, 

2021. 

FOR FURTHER INFORMATION CONTACT: 

Joseph Duran, Director of Policy and 

Planning. 3773 Cherry Creek North 

Drive, Denver, CO 80209. (303) 370– 

1637. (This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: On 

November 6, 2020, VA published a 

proposed rule in the Federal Register 

(85 FR 71020) that would eliminate the 

copayment requirement for opioid 

antagonists furnished to veterans who 

are at high risk of overdose of a specific 

medication or substance in order to 

reverse the effect of such an overdose 

and for the provision of education on 

the use of opioid antagonists. VA 

provided a 60-day comment period, 

which ended on January 5, 2021. VA 

received 19 comments on the proposed 

rule. 

In an effort to reduce the incidence of 

overdose among the veteran population, 

Congress, in two separate statutes, has 

required that VA must exempt from 

copayment (1) opioid antagonists 

furnished under chapter 17 to a veteran 

who is at high risk for overdose of a 

specific medication or substance in 

order to reverse the effect of such an 

overdose, and (2) education on the use 

of opioid antagonists to reverse the 

effects of overdoses of specific 

medications or substances. See Public 

Law 114–198, sec. 915 (July 22, 2016) 

and Public Law 114–223, Division A, 

sec. 243 (Sept. 29, 2016). These 

provisions were effective upon 

enactment and have already been 

implemented. These provisions assist 

veterans by eliminating copayments for 

life-saving medication and education on 

the use of such medication, with the 

goal of reducing the incidence of 

overdose deaths among the veteran 

population. This final rule amends two 

of VA’s copayment regulations, 38 Code 

of Federal Regulations (CFR) 17.108 and 

17.110, to accurately implement these 

changes in law. This final rule also adds 

an explanation of how VA would 

identify a veteran at high risk for 

overdose under the new provisions. 

Positive Comments 

Most commenters were in support of 

the proposed rule. One commenter 

stated that the rule would be a crucial 

part of VA’s efforts to help veterans at 

an extreme risk of overdose. Another 

commenter stated that the rule is critical 

in creating cross-governmental cohesion 

in the fight against the opioid crisis in 

our veteran population, and it solidifies 

the message of a united front against the 

Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Rules and Regulations 52073 

opioid crisis in our veteran community. 

The commenter suggested that adding a 

clear definition of who VA considers 

high risk is also an essential step in 

ensuring that any veteran needing these 

measures will have the availability of 

lifesaving opioid antagonists afforded to 

them. A commenter stated that the 

opioid crisis in the United State is 

getting worse every day and it is VA’s 

duty to eliminate copays for opioid 

antagonists and education on use of 

opioid antagonists. Another commenter 

stated that high-risk veterans should 

have adequate access to opioid 

antagonists and that veterans should 

also have access to counseling and 

educational information on the subject 

of opioid addiction. 

A commenter stated that eliminating 

the copayment for opioid antagonists 

and the education on the use of opioid 

antagonists will relieve a veteran of 

those financial burdens while receiving 

treatment. The commenter added that 

veterans have sacrificed enough to 

protect the people of this country and it 

is our responsibility to provide proper 

health care and encourage healthy 

living. Eliminating the copayment will 

allow veterans to fight this battle with 

focus and determination and removing 

a stressor such as a copayment can 

increase the chances of a successful 

recovery. 

A commenter was in favor of the rule 

and added that VA has several programs 

in place to help veterans manage pain 

that do not include the use of opioids. 

This same commenter stated that the 

use of naloxone rescue treatments is an 

option for opioid risk mitigation and 

that proper education on naloxone 

should be given with frequent 

observation of the veteran and 

documentation in the veteran’s medical 

records. This commenter also stated that 

eliminating the copayment will allow a 

veteran to fight this battle with focus 

and determination. Treatment 

timeframe varies per situation, but when 

trying to heal the mind and body 

simultaneously, removing a stressor can 

increase the chances of a successful 

recovery. 

Another commenter was in support of 

the proposed rule and stated that the 

rule will be impactful to veterans 

battling opioid use disorder. Several 

commenters stated that by waiving the 

requirement to pay a copayment to 

receive opioid antagonists or education 

on their use for qualifying veterans, VA 

is recognizing that costs can pose a 

barrier for veterans to health care 

accessibility and it is taking the right 

steps to alleviate those barriers. A 

commenter added that this rule is a 

statement by VA of support of their atrisk patients and that it places the 

values of their patients’ lives over the 

cost of this drug. Another commenter 

similarly stated that removing 

copayment requirements for veterans 

will likely result in increased access to 

these potentially life-saving 

medications. The commenter praised 

VA’s efforts and believes that this rule 

will help reduce the incidence of 

overdose deaths among the veteran 

population. 

A commenter stated that the proposed 

rule was a fine example of an executive 

agency ensuring compliance with 

Congressional direction. 

VA thanks the commenters for their 

support of the rule. We are not making 

any changes based on these comments. 

Comment on use of term opioid 

antagonist. 

One commenter was in support of the 

rule but stated that VA should change 

the wording in the proposed rule from 

antagonist to something that is more 

relatable and not so demeaning to 

people who will interpret it the wrong 

way. 

VA notes that the utilization of the 

term antagonist in the proposed rule is 

the correct medical term to describe the 

specific class of medications being 

authorized for provision to at risk 

veterans. An antagonist is a chemical 

that acts within the body to reduce the 

physiological activity of another 

chemical substance (such as an opioid). 

Since the term specifically describes 

this class of medication, VA is not 

making changes based on this comment. 

Comments on education on opioid 

antagonists. 

A commenter was in general support 

of the rule but indicated that the 

copayment for the outpatient visit 

should be eliminated regardless of 

whether the veteran’s medical visit is 

solely for education on the use of opioid 

antagonists or the education is provided 

in conjunction with other types of care. 

Under 38 United States Code (U.S.C.) 

1710 and 38 CFR 17.108(c) VA is 

required to charge copayments for 

outpatient and inpatient health care 

services when certain criteria are met. 

VA clarifies, in 38 CFR 17.108(c)(2), a 

veteran will only be charged one 

copayment per day even if there are 

multiple encounters. In accordance with 

section 1710(g)(3)(B) of title 38, United 

States Code, VA is exempting from the 

copayment requirement those outpatient 

health care visits whose sole purpose is 

to provide education on the use of an 

opioid antagonist. However, when the 

outpatient visit provides health care 

services in addition to the education on 

an opioid antagonist, VA must assess 

the veteran’s copayment for the 

additional services in accordance with 

38 U.S.C. 1710. VA emphasizes that the 

veteran will not be charged a separate 

copayment for the education but will be 

assessed one copayment for the entire 

encounter. VA notes this results in the 

same outcome as the veteran would 

have experienced if the veteran had not 

received education on the use of an 

opioid antagonist. VA is not making any 

changes based on this comment. 

Comments on definition of at high 

risk veterans. 

Several commenters were generally in 

support of the rule but were concerned 

that the rule only focused on veterans 

who VA classified as high risk. The 

commenters stated that all veterans, not 

just those with a diagnosed risk of 

opioid overdose, should be eligible for 

the waived copayment. A commenter 

stated that if a veteran needs the opioid 

antagonist, then costs should not be a 

concern whether they are high risk or 

not. The commenter added that the fact 

the veteran is in need of the antagonist 

is sufficient evidence the veteran is at 

high risk. Also, the commenter stated 

that while the proposed rule would be 

an improvement and would lead to 

more lives being saved, more aggressive 

action to expand the target population 

to all veterans would be warranted and 

welcomed by the American people. 

VA defined a high risk veteran in the 

proposed rule as a veteran who is 

prescribed or using opioids, or has an 

opioid use history, and who is at 

increased risk for opioid overdose as 

determined by VA. VA also stated that, 

in the alternative, a high risk veteran is 

one whose provider deems, based on 

their clinical judgment, that the veteran 

may benefit from ready availability of an 

opioid antagonist. VA believes this 

definition is broad enough to allow 

health care professionals the discretion 

to provide opioid antagonists and 

related education to any veteran who 

needs it without charging a copayment. 

In addition, VA has programs in place 

to assist veterans who are suffering 

financial hardship or who would face 

difficulties in making copayments; these 

efforts include measures to identify 

barriers for veterans at high risk due to 

substance use and to review the 

veteran’s financial barriers and provide 

assistance as needed. VA is not making 

any changes based on this comment. 

Another commenter stated that the 

proposed rule assumes that all those 

who are considered high risk would be 

appropriately identified to meet the 

requirements for the copayment waiver. 

The commenter added that this 

approach runs the risk of missing 

vulnerable individuals who may not fall 

within the parameters outlined by VA 

52074 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Rules and Regulations 

that are used to generate a high-risk 

status and thus, a waived copayment. 

The commenter recommended that VA 

expand the rule to capture not only 

those considered high-risk, but also 

those residing in highly impacted 

regions, such as rural communities. 

Another commenter similarly 

recommended including additional 

items in the definition of high risk, such 

as considering all veterans who 

requested opioid antagonists in 

geographical areas that see higher rates 

of opioid use and areas considered rural 

by the Federal Office of Rural Health 

Policy to be high risk. The commenter 

indicated that veterans in rural areas 

have limited access to health care and 

treatment centers, and delays in 

emergency medical services become 

critical when an accidental overdose 

occurs. The commenter added that VA 

should create the most inclusive 

definition possible and consider other, 

less obvious, circumstances veterans 

may face that could render them at 

‘‘high risk’’ of opioid addiction. The 

commenter also stated that by utilizing 

a model which casts a wider net for 

assistance, more veterans and those in 

their immediate circles are likely to 

benefit from these proposals. 

As previously stated in this 

rulemaking, VA’s definition of high risk 

veteran is broad enough to allow health 

care professionals the discretion to 

provide opioid antagonists and 

education on those medications to any 

veteran without charging a copayment. 

In addition, VA has developed 

numerous resources to support 

identification of patients at risk for 

overdose, including the VA Opioid 

Overdose Education and Naloxone 

Distribution (OEND) Risk Report (which 

includes patients with various opioid 

pharmacotherapy and Opioid Use 

Disorder risk factors); VA Stratification 

Tool for Opioid Risk Mitigation 

(STORM), which uses predictive 

analytics to identify patients prescribed 

opioids who are at high risk for 

overdose and/or suicide; and 

incorporating the Risk Index for 

Overdose or Serious Opioid-induced 

Respiratory Depression (RIOSORD) into 

multiple reports to assist with patient 

identification. VA clinicians provide 

patient-centered care that takes into 

account the complexity of conditions 

and circumstances with which patients 

present—including their work, home, 

support system, and community—when 

conducting risk assessments and 

developing treatment plans. Based on 

the broad definition for this rule, which 

allows clinicians to provide opioid 

antagonists and related education to any 

veteran they deem may benefit from 

ready availability of an opioid 

antagonist, VA is not making any 

changes to its definition of high risk in 

response to this comment. 

Another commenter stated that opioid 

overdoses can occur even when 

someone is taking an opioid exactly as 

prescribed by their doctor, and even 

veterans who are not considered ‘‘high 

risk’’ can still die of an overdose or be 

left with long term brain damage. 

Therefore, the commenter concluded, it 

is imperative that all veterans taking 

opioids are educated on the dangers of 

opioid induced respiratory depression 

(OIRD) and are provided the monitoring 

technology to help keep them safe. The 

commenter encouraged VA to utilize 

continuous physiologic monitoring with 

notifications for all patients using 

opioids, particularly during periods of 

sleep and rest. The commenter added 

that such monitoring has been shown to 

reduce opioid overdose deaths through 

earlier interventions and rapid response 

team activations when necessary. The 

commenter recommended that VA 

include the following in the list of 

factors that indicate that an individual 

is at high risk of overdose: Individuals 

taking other sedating medications, 

including alcohol, marijuana, 

benzodiazepines and/or gabapentin; 

older adults; depression or mental 

health conditions; sleep apnea. 

VA notes the specific modalities for 

treatment, such as monitoring for OIRD, 

are determined by the VA national 

program office responsible for 

developing guidance to VA staff 

overseeing the provision of care at the 

facility level. The establishment of such 

modalities are outside the scope of the 

proposed rulemaking. VA believes that 

the proposed definition of a high risk 

veteran is broad enough to grant health 

care professionals the discretion to 

identify veterans who such 

professionals consider to be high risk; 

the addition of the factors identified by 

the commenter would not enhance the 

proposed definition. Moreover, VA’s 

aforementioned STORM model takes 

into consideration many of the factors 

described by the commenter that are 

available in VA data (e.g., substance use 

disorders, benzodiazepine and 

gabapentin prescriptions, age, mental 

health diagnoses, and sleep apnea). 

These factors are displayed in a VAprovider facing clinical dashboard for 

patients prescribed opioids as well as 

patients with opioid use disorders. VA 

is not making any changes based on 

these comments. 

Comments on elimination of other 

types of copayments. 

A commenter was generally in 

support of the rule but recommended 

the rule also eliminate any cost to 

veterans relating to substance use 

disorder counseling, rehabilitation, 

psychological treatment, and inpatient 

care. The commenter added that care 

coordination between providers must 

become an equal priority to prevent 

over-prescription. In addition, the 

commenter stated that opioid 

antagonists should be treated as the last 

resort in reducing overdose deaths and 

not a course of treatment. The 

commenter stated the proposed rule 

should be only the first step in ensuring 

that high risk veterans face no obstacles 

in gaining access to the treatment that 

they need ahead of any possible 

overdose incident. 

As previously stated in this 

rulemaking, section 915 of Public Law 

114–198 and section 243 of Division A 

of Public Law 114–223 provide for the 

elimination of a copayment for the 

provision of opioid antagonists and for 

outpatient visits whose sole purpose is 

for the provision of education on the use 

of opioid antagonists. The elimination 

of copayments for substance use 

disorder counseling, rehabilitation, 

psychological treatment, and inpatient 

care are beyond the scope of the 

proposed rule. However, VA’s 

implementation of opioid antagonist 

education emphasizes the importance of 

connecting patients, including those 

with opioid use disorder, with treatment 

(e.g., a standardized patient education 

brochure recommends considering 

seeking help for substance use disorder 

[SUD] treatment and includes a link to 

the VA SUD Program Locator). VA has 

also streamlined Prescription Drug 

Monitoring Program (PDMP) checks— 

incorporating an integrated Information 

Technology solution that allows 

providers to check for controlled 

substance prescriptions outside VA. 

This mechanism makes it easy for 

providers to check the PDMP for opioid 

prescriptions external to VA within the 

Computerized Patient Record System. 

VA also has programs in place to assist 

veterans experiencing financial 

hardship, including measures to 

identify barriers for veterans at higher 

risk due to SUD. VA is not making any 

changes based on this comment. 

Comments on Outreach 

One commenter suggested that the 

rule should also ensure that VA provide 

outreach services to identify high-risk 

veterans, encourage educational 

outpatient visits, and follow-up before 

or after both outpatient and inpatient 

visits for treatment and education. The 

commenter indicated that providing 

Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Rules and Regulations 52075 

outreach services will increase the 

number of veterans who receive 

antagonist prescriptions, aid in tracking 

the most at risk of the high-risk 

population, aid in the dissemination of 

pain management alternatives, and 

overall reduce the risk of opioid misuse 

and overdose events. The commenter 

also stated that outreach has proven 

effective in several studies conducted 

all over the US for people suffering with 

Opioid Use Disorder and is a main 

factor is reducing repeat overdose 

events. The commenter stated that these 

outreach practices are already occurring 

in VA and should be folded into the 

regulation to ensure their continuation 

as outreach is an integral part of 

increasing the effectiveness of this rule’s 

stated goal. 

VA notes that this rulemaking is 

limited to the exemption of copayments 

for opioid antagonist education and 

dispensing of opioid antagonists to 

veterans identified by VA health care 

professionals as being at high risk of 

overdose. VA already has treatment 

programs and outreach programs in 

place for identification and treatment of 

veterans at risk of opioid use disorder. 

The provision of VA outreach programs 

for opioid use disorder is outside the 

scope of the proposed rulemaking, and 

VA generally seeks to avoid regulating 

outreach practices to allow for 

innovative approaches to be adopted to 

support safe and effective patient care. 

VA is not making any changes based on 

this comment. 

Comments on the impact analysis. 

A commenter had concerns regarding 

the impact analysis that accompanied 

the rulemaking. The commenter stated 

that the impact analysis projected a loss 

of revenue of more than $150,000 with 

increases for each year of this rule’s 

existence due to the copayment 

exemptions. The commenter noted that 

the impact analysis did not state where 

this revenue stream would be diverted 

from internally and how this may 

impact other veteran services of equal or 

greater importance. The commenter 

queried whether VA plans to apply for 

a grant under the Food, Drug, and 

Cosmetic Act (chapter 9 of title 21, 

U.S.C.) for the emergency treatment of 

opioid overdose, which can offset at 

least $200,000 of antagonist costs that is 

greater than the yearly projected loss of 

revenue from this rule. 

VA believes the benefits of educating 

veterans on the risks of opioids and 

utilization of opioid antagonists during 

an overdose to potentially save a life 

outweighs any loss of revenue from VA 

copayments. VA anticipates no 

reduction or diversion of funds from 

other programs as a result of this 

rulemaking. VA has already been 

implementing this authority, and VA’s 

budget requests already reflect the loss 

identified in the impact analysis. We are 

not making any changes based on this 

comment. 

Based on the rationale set forth in the 

Supplementary Information to the 

proposed rule and in this final rule, VA 

is adopting the proposed rule with no 

changes. 

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. The Office of 

Information and Regulatory Affairs has 

determined that this rule is not a 

significant regulatory action under 

Executive Order 12866. The Regulatory 

Impact Analysis associated with this 

rulemaking can be found as a 

supporting document at 

www.regulations.gov. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this final rule will 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 adoption of the 

rule does not directly affect any small 

entities. There are no small entities 

involved with VA’s process or 

adjustment of veteran’s copayments for 

medications or services. The provisions 

of this rulemaking only apply to the 

internal operations of VA and to 

individual veterans. 

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 final rule will have no 

such effect on State, local, and tribal 

governments, or on the private sector. 

Paperwork Reduction Act 

This final rule contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501– 3521). 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance program number and title for 

this final rule are as follows: 64.009, 

Veterans Medical Care Benefits; 64.012, 

Veterans Prescription Service; 64.019, 

Veterans Rehabilitation Alcohol and 

Drug Dependence; 64.041, VHA 

Outpatient Specialty Care; 64.045, VHA 

Outpatient Ancillary Services; 64.047, 

VHA Primary Care; 64.048, VHA Mental 

Health Clinics. 

Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs 

designated this rule as not a major rule, 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 38 CFR Part 17 

Administrative practice and 

procedure, Alcohol abuse, Alcoholism, 

Claims, Day care, Dental health, Drug 

abuse, 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, Reporting and recordkeeping 

requirements, Travel and transportation 

expenses, Veterans. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, approved this 

document on September 10, 2021, 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, 

Regulations 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 amends 38 CFR part 17 as set 

forth below: 

PART 17—MEDICAL 

■ 1. The general authority citation for 

part 17 continues to read as follows: 

52076 Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Rules and Regulations 

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

specific sections. 

* * * * * 

■ 2. Amend § 17.108 by revising 

paragraphs (e)(16) and (17) and adding 

paragraph (e)(18) to read as follows: 

§ 17.108 Copayments for inpatient hospital 

care and outpatient medical care. 

* * * * * 

(e) * * * 

(16) In-home video telehealth care; 

(17) Mental health peer support 

services; and 

(18) An outpatient care visit solely for 

education on the use of opioid 

antagonists to reverse the effects of 

overdoses of specific medications or 

substances. 

* * * * * 

■ 3. Amend § 17.110 by adding 

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

§ 17.110 Copayments for medication. 

* * * * * 

(c) * * * 

(12) Opioid antagonists furnished to a 

veteran who is at high risk for overdose 

of a specific medication or substance in 

order to reverse the effect of such an 

overdose. 

(i) For purposes of this paragraph 

(c)(12), a veteran who is at high risk for 

overdose of a specific medication or 

substance in order to reverse the effect 

of such an overdose is a veteran: 

(A) Who is prescribed or using 

opioids, or has an opioid use history, 

and who is at increased risk for opioid 

overdose as determined by VA; or 

(B) Whose provider deems, based on 

their clinical judgment, that the veteran 

may benefit from ready availability of an 

opioid antagonist. 

(ii) Examples of a veteran who is at 

high risk for overdose of a specific 

medication or substance in order to 

reverse the effect of such an overdose 

include, but are not limited to, the 

following: 

(A) A veteran with an opioid or 

substance use disorder diagnosis; 

(B) A veteran receiving treatment for 

an opioid or substance use disorder 

diagnosis, such as receiving opioid 

agonist therapy or inpatient, residential, 

or outpatient treatment for such 

diagnosis, or attending a support group 

for such diagnosis; 

(C) A veteran with a history of 

prescription opioid misuse or injection 

opioid use; 

(D) A veteran with a history of 

previous opioid overdose; 

(E) A veteran who is taking an 

extended-release or long-acting 

prescription opioid; 

(F) A veteran with household or 

community access to opioids who is at 

increased risk for overdose (e.g., 

psychiatric disorder or high risk for 

suicide) as determined by VA; or 

(G) A veteran predicted to be at high 

risk for overdose based on standardized 

assessments or predictive models (e.g., 

Risk Index for Overdose or Serious 

Opioid-induced Respiratory Depression 

[RIOSORD]; Stratification Tool for 

Opioid Risk Mitigation [STORM]). 

Note 1 to paragraph (c)(12). The examples 

in paragraphs (c)(12)(ii)(A) through (G) of this 

section apply even if the veteran has had a 

period of abstinence from opioids (e.g., due 

to treatment, detoxification, incarceration) 

because loss of tolerance can increase the risk 

for an overdose. 

[FR Doc. 2021–20196 Filed 9–17–21; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 38 

RIN 2900–AR03 

Referral for VA Administrative 

Decision for Character of Discharge 

Determinations 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is amending its regulations 

to clarify that, when determining 

eligibility for interment or 

memorialization benefits, the National 

Cemetery Administration (NCA) will 

refer cases involving other than 

honorable (OTH) discharges, certain 

other discharges, or potential statutory 

or regulatory bars to benefits, to the 

Veterans Benefits Administration (VBA) 

for character of discharge 

determinations. VA is merely updating 

its regulations to conform with statute 

and current practice. 

DATES: This rule is effective October 20, 

2021. 

FOR FURTHER INFORMATION CONTACT: Jerry 

Sowders, Division Chief, Eligibility 

Verification Division, National 

Cemetery Administration, Department 

of Veterans Affairs, 810 Vermont 

Avenue NW, Washington, DC 20420. 

Telephone: 314–416–6369. (This is not 

a toll-free number.) 

SUPPLEMENTARY INFORMATION: On 

December 18, 2020, VA published in the 

Federal Register (85 FR 82399) a 

proposed rule revising its regulations to 

clarify that, when determining 

eligibility for interment or 

memorialization benefits, NCA will 

refer cases involving OTH discharges or 

other character of discharge issues to 

VBA for an administrative decision. The 

public comment period ended on 

February 16, 2021. 

VA received one comment that 

expressed disagreement with the 

proposed rule, stating that the referral of 

cases for a character of discharge 

determination was ‘‘morally and 

ethically reprehensible.’’ The 

commenter also asserted that the 

proposed rule sought to assume 

Congress’s role ‘‘to write statute’’ by 

redefining the term ‘‘veteran,’’ and 

suggested that VA use an automated 

formula to evaluate whether an 

individual satisfies the statutory 

definition of veteran. We thank the 

commenter for this comment. 

However, we disagree that this rule 

redefines the term ‘‘veteran’’ in any 

way. While the supplemental 

information in the proposed rule 

explained that eligibility for NCAadministered benefits is tied to an 

individual establishing ‘‘veteran’’ status 

or meeting other specified conditions, 

this rule does not affect the statutory 

definition of ‘‘veteran’’ as provided by 

Congress in 38 U.S.C. 101(2). The rule 

only amends 38 CFR 38.620 by adding 

a note following paragraph (i) to inform 

that a benefit request, pertaining to a 

decedent whose character of discharge 

may potentially bar eligibility to that 

benefit, may be referred to VBA for 

review in accordance with 38 CFR 3.12 

(Character of discharge) or other 

applicable sections. As such, we make 

no changes based on the comment. 

We appreciate the commenter’s 

suggested alternative approach to 

determining whether an individual 

satisfies the statutory definition of 

‘‘veteran’’, but Congress has delegated to 

VA the authority to promulgate 

reasonable regulations on VA benefits 

eligibility, which it has done in 38 CFR 

3.12. See Garvey v. Wilkie, 972 F.3d 

1333 (Fed. Cir. 2020). It is not 38 CFR 

38.620 or this rule (which merely 

clarifies NCA current practice), but 38 

CFR 3.12, that seems to pertain more to 

the commenter’s concern. 

Under 38 CFR 3.12(a), some 

discharges, such as honorable and 

general (under honorable conditions) 

automatically convey ‘‘veteran’’ status. 

However, other types of discharges 

require in-depth examination under the 

provisions of 38 CFR 3.12(d) to 

determine whether the discharge should 

be considered to have been issued under 

dishonorable conditions. Moreover, the 

provisions of 38 CFR 3.12(c), commonly 

referred to as the statutory bars to 

benefits (since they are derived from 38 

U.S.C. 5303(a)) may also be implicated. 

Because of VBA’s expertise and 

familiarity with 38 CFR 3.12, NCA has