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 Department of Veterans Affairs 38 CFR Part 17
RIN 2900-AN23
 AGENCY: Department of Veterans Affairs.
 ACTION: Final rule.
 SUMMARY: This document amends the Department of Veterans Affairs (VA) medical regulations regarding enrollment in the VA health care system. In particular, it establishes additional sub-priorities within enrollment priority category 8 and provides that beginning on the effective date of the rule, VA will begin enrolling priority category 8 veterans whose income exceeds the current means test and geographic means test income thresholds by 10 percent or less.
 DATES: *Effective date:*
                         This final rule is effective June 15, 2009.
 FOR FURTHER INFORMATION CONTACT: Tony Guagliardo, Director, Business Policy, Chief Business Office (163), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-1591. (This is not a toll free number).


SUPPLEMENTARY INFORMATION: In a document published in the 
                    **Federal Register**
                     (74 FR 3535) on January 21, 2009, we proposed amendments to 38 CFR 17.36 regarding enrollment of veterans for purposes of VA hospital and outpatient care. This document adopts as a final rule, without change, those proposed amendments. This final rule amends regulations implementing Public Law 104-262, the Veterans' Health Care Eligibility Reform Act of 1996, which required VA to 
                    ( print page 22833)
                    establish a national enrollment system to manage the delivery of inpatient hospital care and outpatient medical care, within available appropriated resources. It directed that the enrollment system be managed in such a way as “to ensure that the provision of care to enrollees is timely and acceptable in quality,” and authorized such sub-prioritization of the statutory enrollment categories “as the Secretary determines necessary.” The law also provided that starting on October 1, 1998, most veterans had to enroll in the VA health care system as a condition for receiving VA hospital and outpatient care. We provided a 60-day comment period, which ended on February 20, 2009. We received comments from one individual who essentially expressed concern about VA's evaluation of his service-connected disability and recommended that VA amend the current means test for VA medical care to provide certain unspecified exceptions. However, we did not propose to amend any of the disability evaluation regulations in 38 CFR part 3 or how VA administers the current means test for VA medical care in 38 CFR 17.47(d) through (f). Accordingly, the comments are not within the scope of this rulemaking and we will not make any changes based upon the comments. Previous Interim Final Rule and Responses to Comments The proposed rule also noted that the amendments would modify provisions adopted in the interim final rule published in the 
                    **Federal Register**
                     on January 17, 2003 (68 FR 2669), which limited enrollment of veterans for VA medical care under priority category 8. We received five comments concerning that interim final rule. All of the commenters expressed disagreement with VA's decision to suspend enrollment of additional veterans in priority category 8. In that regard, each of the commenters would support the extension of priority 8 coverage in this final rule. Each of the commenters also generally expressed the view that VA should provide care to all veterans because they served their country. However, as discussed in the preambles to the 2003 interim final rule and 2009 proposed rule, VA is required to assess available resources and determine the number of veterans it is able to enroll to ensure that medical services provided are both timely and acceptable in quality. An enrollment system is necessary because the provision of VA health care is discretionary and can be provided only to the extent that appropriated resources are available for that purpose. The enrollment decisions made in the interim final rule and this final rule were based on an assessment concerning available resources, and we did not receive any comments regarding either rule suggesting that VA's assessment was incorrect. Based on the rationale in the proposed rule, we are adopting the provisions of the proposed rule as a final rule without change. Unfunded Mandates The Unfunded Mandates Reform Act 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 in any given year. This rule would have no such effect on State, local, or tribal governments. Paperwork Reduction Act This rule contains no provisions constituting a new collection of information, but would change, merely by adding an option of a new method of submission, a collection of information that has been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). OMB assigns a control number for each collection of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The information collection provisions affected by this rule have been approved under control number 2900-0091. Executive Order 12866 and Congressional Review Act This is an economically significant regulatory action under Executive Order 12866 and constitutes a major rule under the Congressional Review Act. Executive Order 12866 directs agencies to assess all 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, and other advantages; distributive impacts; and equity). Executive Order 12866 classifies a “significant regulatory action” requiring review by 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 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 entitlement recipients; 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. VA has examined the economic, interagency, budgetary, legal, and policy implications of this rule and has concluded that it is an economically significant regulatory action under Executive Order 12866 because it may have an annual effect on the economy of $100 million or more and may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This rule is also a major rule under the Congressional Review Act because it is likely to result in an annual effect on the economy of $100 million or more. VA has attempted to follow OMB circular A-4 to the extent feasible in this analysis. The circular first calls for a discussion of the need for the regulation. The Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Pub. L. 110-329) was enacted on September 30, 2008. The accompanying report language stated that funding was included to reopen priority category 8 enrollment. The preamble above discusses the need for the regulation in more detail. There are not any alternatives to publishing this rule that will accomplish the stated provisions in the report language of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Pub. L. 110-329). VA uses the Enrollee Health Care Projection Model (Model), a health care actuarial model, to project veteran demand for VA health care. To project enrollment and expenditures under this proposed regulatory change, VA first identified the number of non-enrolled veterans whose income exceeds the current VA means test and geographic means test income thresholds by 10 percent or less. VA then projected the number of those veterans who would enroll based on historical priority category 8 enrollment rates. The projected health care service utilization for these new enrollees was based on the historical morbidity and reliance rates of the current priority category 8 
                    ( print page 22834)
                    enrollee population. The projected expenditures represent the cost to provide the projected health care services to these new enrollees. Using the 2008 Model, VA projects that this regulatory change would result in an additional 258,705 priority category 8 enrollees in FY 2009. The projected increase in total health care service expenditures associated with this new enrollment is $485 million in FY 2009. The revenues generated by the first- and third-party collections are projected to be $121 million,1
                     resulting in a $364 million growth in net health service expenditures for FY 2009, and $375 million was provided in the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Pub. L. 110-329). VA's expenditures related to this proposed regulatory change are projected to be approximately $2.931 billion for five years.2
                     These expenditures exclude services such as Long Term Care, Readjustment Counseling, Spina Bifida, Foreign Medical Programs, Non-Veteran Medical Care and CHAMPVA. 1
                         The first party collections are based on the projected health care service utilization of the new Priority 8 enrollees. In the base year (2007), we applied the appropriate co-payment to the projected services. We then balanced the resulting co-payment revenue projections to the actual collections for 2007 for four categories (inpatient, outpatient, residential rehabilitation, and pharmacy) and by Veterans Integrated Service Network (VISN) to account for the amount actually collected. The resulting first-party revenue per service developed for 2007 is applied to the projected services in future years to project the first-party revenue associated with health care utilization of the new Priority 8 enrollees. Further, the pharmacy co-payment is increased over time based on the legislated Consumer Price Index (CPI) schedule. To develop the third-party collections, we calculated the percentage of third-party revenue collected in 2007 as a percent of 2007 expenditures by VISN, priority level, and two age bands (under and over age 65). We then applied these percentages to the projected expenditures for the new Priority 8 enrollees in future years. For 2010, the percentages were increased to reflect VHA's initiatives to increase third-party revenue collections. 2
                         Five Year Projection Table ($ in billions):Present Value: (Future Value)/((1+i)^n):($ in billions)
FY 2009
FY 2010
FY 2011
FY 2012
FY 2013
5 yearFuture Value (FV)
$0.485
$0.533
$0.580
$0.631
$0.702
$2.9313% discount rate (i)
3.00%
3.00%
3.00%
3.00%
3.00%7% discount rate (i)
7.00%
7.00%
7.00%
7.00%
7.00%Number of Years (n)
0
1
2
3
4Present Value (PV) at 3%
$0.485
$0.517
$0.546
$0.578
$0.624
$2.751Present Value (PV) at 7%
$0.485
$0.498
$0.506
$0.515
$0.536
$2.540
 Regulatory Flexibility Act The Secretary hereby certifies that the adoption of this 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. This rule will not directly affect any small entities. Only individuals will be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the final regulatory flexibility analysis requirements of section 604. Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for the Construction of State Homes; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary Care. 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
 Approved: April 15, 2009. John R. Gingrich, Chief of Staff, Department of Veterans Affairs.
 For the reasons set out in the preamble, the Department of Veterans Affairs amends 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, 1721, and as stated in specific sections. 2.Amend § 17.36 by revising paragraphs (b)(8), (c)(1), (c)(2), and (d)(1) and the authority citation to read as follows: § 17.36
  
 (b) * * * (8) Veterans not included in priority category 4 or 7, who are eligible for care only if they agree to pay to the United States the applicable copayment determined under 38 U.S.C. 1710(f) and 1710(g). This category is further prioritized into the following subcategories: (i) Noncompensable zero percent service-connected veterans who were in an enrolled status on January 17, 2003, or who are moved from a higher priority category or subcategory due to no longer being eligible for inclusion in such priority category or subcategory and who subsequently do not request disenrollment; (ii) Noncompensable zero percent service-connected veterans not included in paragraph (b)(8)(i) of this section and whose income is not greater than ten percent more than the income that would permit their enrollment in priority category 5 or priority category 7, whichever is higher; (iii) Nonservice-connected veterans who were in an enrolled status on January 17, 2003, or who are moved from a higher priority category or subcategory due to no longer being eligible for inclusion in such priority category or subcategory and who 
                            ( print page 22835)
                            subsequently do not request disenrollment; (iv) Nonservice-connected veterans not included in paragraph (b)(8)(iii) of this section and whose income is not greater than ten percent more than the income that would permit their enrollment in priority category 5 or priority category 7, whichever is higher; (v) Noncompensable zero percent service-connected veterans not included in paragraph (b)(8)(i) or paragraph (b)(8)(ii) of this section; and (vi) Nonservice-connected veterans not included in paragraph (b)(8)(iii) or paragraph (b)(8)(iv) of this section. (c) * * * (1) It is anticipated that each year the Secretary will consider whether to change the categories and subcategories of veterans eligible to be enrolled. The Secretary at any time may revise the categories or subcategories of veterans eligible to be enrolled by amending paragraph (c)(2) of this section. The preamble to a 
                            **Federal Register**
                             document announcing which priority categories and subcategories are eligible to be enrolled must specify the projected number of fiscal year applicants for enrollment in each priority category, projected healthcare utilization and expenditures for veterans in each priority category, appropriated funds and other revenue projected to be available for fiscal year enrollees, and projected total expenditures for enrollees by priority category. The determination should include consideration of relevant internal and external factors, 
                            *e.g.*, economic changes, changes in medical practices, and waiting times to obtain an appointment for care. Consistent with these criteria, the Secretary will determine which categories of veterans are eligible to be enrolled based on the order of priority specified in paragraph (b) of this section. (2) Unless changed by a rulemaking document in accordance with paragraph (c)(1) of this section, VA will enroll the priority categories of veterans set forth in § 17.36(b) beginning [effective date of regulation], except that those veterans in subcategories (v) and (vi) of priority category 8 are not eligible to be enrolled. (d) * * * (1) 
                            *Application for enrollment.*
                             A veteran may apply to be enrolled in the VA healthcare system at any time. A veteran who wishes to be enrolled must apply by submitting a VA Form 10-10EZ to a VA medical facility or via an Online submission at 
                            *https://www.1010ez.med.va.gov/​sec/​vha/​1010ez/​*.
 (Authority: 38 U.S.C. 101, 501, 1521, 1701, 1705, 1710, 1722)


[FR Doc. E9-11400 Filed 5-14-09; 8:45 am] BILLING CODE 8320-01-P