[Federal Register Volume 82, Number 189 (Monday, October 2, 2017)]
[Proposed Rules]
[Pages 45756-45762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20951]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AQ06


Authority of Health Care Providers To Practice Telehealth

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 by standardizing the delivery of care by VA health 
care providers through telehealth. This rule would ensure that VA 
health care providers provide the same level of care to all 
beneficiaries, irrespective of the State or location in a State of the 
VA health care provider or the beneficiary. This proposed rule would 
achieve important Federal interests by increasing the availability of 
mental health, specialty, and general clinical care for all 
beneficiaries.

DATES: Comments must be received on or before November 1, 2017.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov by mail or hand-delivery to: Director, Regulation 
Policy and Management (00REG), Department of Veterans Affairs, 810 
Vermont Ave. NW., Room 1063B, Washington, DC 20420; or by fax to (202) 
273-9026. (This is not a toll-free telephone number.) Comments should 
indicate that they are submitted in response to ``RIN 2900-AQ06-
Authority of Health Care Providers to Practice Telehealth.'' Copies of 
comments received will be available for public inspection in the Office 
of Regulation Policy and Management, Room 1068, between the hours of 
8:00 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 
telephone number.) In addition, during the comment period, comments may 
be viewed online through the Federal Docket Management System (FDMS) at 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Kevin Galpin, MD, Executive Director 
Telehealth Services, Veterans Health Administration Office of Connected 
Care, 810 Vermont Avenue NW., Washington, DC 20420. (404) 771-8794. 
(This is not a toll-free number.) <a href="/cdn-cgi/l/email-protection#98d3fdeef1f6b6dff9f4e8f1f6d8eef9b6fff7ee"><span class="__cf_email__" data-cfemail="79321c0f1017573e1815091017390f18571e160f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Section 7301 of title 38, United States Code 
(U.S.C.), establishes the general functions of the Veterans Health 
Administration (VHA) within VA, and establishes that its primary 
function is to ``provide a complete medical and hospital service for 
the medical care and treatment of veterans, as provided in this title 
and in regulations prescribed by the Secretary [of Veterans Affairs 
(Secretary)] pursuant to this title.'' 38 U.S.C. 7301(b). In carrying 
out this function, VHA must ensure that patient care is appropriate and 
safe and its health care providers meet or exceed generally accepted 
professional standards for patient care. In addition, because VA is a 
national health care provider, VHA must ensure that beneficiaries 
receive the same high level of care and access to care no matter where, 
in a State, a beneficiary or health care provider is located at the 
time the health care is provided.
    The Secretary is responsible for the proper execution and 
administration of all laws administered by the Department and for the 
control, direction, and management of the Department, including agency 
personnel and management matters. See 38 U.S.C. 303. To this end, 
Congress authorized the Secretary ``to prescribe all rules and 
regulations which are necessary or appropriate to carry out the laws 
administered by the Department and are

[[Page 45757]]

consistent with those laws.'' 38 U.S.C. 501(a). The Under Secretary for 
Health is directly responsible to the Secretary for the operation of 
VHA. 38 U.S.C. 305(b). Unless specifically otherwise provided, the 
Under Secretary for Health, as the head of VHA, is authorized to 
``prescribe all regulations necessary to the administration of the 
Veterans Health Administration,'' subject to the approval of the 
Secretary. 38 U.S.C. 7304.
    To allow VA to carry out its medical care mission, Congress also 
established a comprehensive personnel system for certain VA health care 
providers, independent of the civil service rules. See 38 U.S.C. 
chapters 73-74. Congress granted the Secretary express statutory 
authority to establish the qualifications for VA's health care 
providers, determine the hours and conditions of employment, take 
disciplinary action against employees, and otherwise regulate the 
professional activities of those individuals. 38 U.S.C. 7401-7464.
    To be eligible for appointment as a VA employee in a health care 
position covered by section 7402(b) of title 38, U.S.C. (other than a 
medical facility Director appointed under section 7402(b)(4)), a person 
must, among other requirements, be licensed, registered, or certified 
to practice his or her profession in a State. The standards prescribed 
in section 7402(b) establish only the basic qualifications necessary 
``[t]o be eligible for appointment'' and do not limit the Secretary or 
Under Secretary for Health from establishing other qualifications for 
appointment, or additional rules governing such personnel. In 
particular, section 7403(a)(1) provides that appointments under chapter 
74 ``may be made only after qualifications have been established in 
accordance with regulations prescribed by the Secretary, without regard 
to civil-service requirements.'' Such authority is necessary to ensure 
the viability of our national health care system, which is designed to 
ensure the well-being of those who have ``borne the battle.''
    Just as it is critical to ensure there are qualified health care 
providers on-site at all VA medical facilities, VA must ensure that all 
beneficiaries, specifically including beneficiaries in remote, rural, 
or medically underserved areas, have the greatest possible access to 
mental health care, specialty care, and general clinical care. Thus, VA 
has developed a telehealth program as a modern, beneficiary- and 
family-centered health care delivery model that leverages information 
and telecommunication technologies to connect beneficiaries with health 
care providers, irrespective of the State or location within a State 
where the health care provider or the beneficiary is physically located 
at the time the health care is provided. Telehealth enhances VA's 
capacity to deliver essential and critical health care services to 
beneficiaries located in areas where health care providers may be 
unavailable or to beneficiaries who may be unable to travel to the 
nearest VA medical facility for care because of their medical 
conditions. Telehealth increases the accessibility of VA health care, 
bringing VA medical services to locations convenient for beneficiaries, 
including clinics in remote communities and beneficiaries' homes. By 
providing health care services by telehealth from one State to a 
beneficiary located in another State or within the same State, whether 
that beneficiary is located at a VA medical facility or in his or her 
own home, VA can use its limited health care resources most 
efficiently.
    Congress has required other Departments and agencies to conduct 
telehealth programs. See, e.g., Public Law 114-328, sec. 718(a)(1) 
(``the Secretary of Defense shall incorporate, throughout the direct 
care and purchased care components of the military health system, the 
use of telehealth services''). While VA does not have an analogous 
mandate, several statutes confirm that Congress intends for VA to 
operate a national health care system for beneficiaries including 
through telehealth. Congress has required the Secretary ``to carry out 
an initiative of teleconsultation for the provision of remote mental 
health and traumatic brain injury assessments in facilities of the 
Department that are not otherwise able to provide such assessments 
without contracting with third-party providers or reimbursing providers 
through a fee basis system.'' 38 U.S.C. 1709A(a)(1). Congress has 
authorized the Secretary to ``waive the imposition or collection of 
copayments for telehealth and telemedicine visits of veterans under the 
laws administered by the Secretary.'' 38 U.S.C. 1722B. And, as recently 
as December 2016, Congress required VA to initiate a pilot program to 
provide veterans a self-scheduling, online appointment system; this 
pilot program must ``support appointments for the provision of health 
care regardless of whether such care is provided in person or through 
telehealth services.'' Public Law 114-286, sec. 3(a)(2).
    As noted above, VA only has legal authority to hire health care 
providers who are licensed, registered, or certified in a State. To 
continue practicing in VA, providers must maintain those credentials in 
accordance with their health care specialty as stated in 38 U.S.C. 
7402(b).
    In an effort to furnish care to all beneficiaries and use its 
resources most efficiently, VA needs to operate its telehealth program 
with health care providers who will provide services via telehealth to 
beneficiaries in States in which they are not licensed, registered, 
certified, or located, or where they are not authorized to furnish care 
using telehealth. Currently, doing so may jeopardize these providers' 
credentials, including fines and imprisonment for unauthorized practice 
of medicine, because of conflicts between VA's need to provide 
telehealth across the VA system and some States' laws or licensure, 
registration, certification, or other requirements that restrict or 
limit the practice of telehealth. A number of States have already 
enacted legislation or regulations that restrict the practice of 
interstate telehealth, as discussed below in the Administrative 
Procedure Act section.
    To protect VA health care providers from potential adverse actions 
by States, many VA medical centers (VAMC) are currently not expanding 
some critical telehealth services if the health care service is 
provided outside Federal property (such as when the beneficiary is 
receiving telehealth care in his or her home or when the VA provider is 
delivering telehealth care from his or her home) or across State lines. 
In addition, many individual VA health care providers refuse to 
practice telehealth because of concerns over States taking action 
against the health care provider's State license, State laws, or the 
shifting regulatory landscape that creates legal ambiguity and 
unacceptable State licensing risk. The current disparities between VA 
health care practice in telehealth and State laws have effectively 
stopped or inhibited VA's expansion of telehealth services to certain 
locations, thereby reducing the availability and accessibility of care 
for beneficiaries.
    This proposed rulemaking would clarify that VA health care 
providers may exercise their authority to provide care through the use 
of telehealth, notwithstanding any State laws, rules, or licensure, 
registration, or certification requirements to the contrary. In so 
doing, VA would exercise Federal preemption of State licensure, 
registration, and certification laws, rules, regulations, or 
requirements to the extent such State laws conflict with the ability of 
VA health care providers to engage in the practice of telehealth while 
acting within the scope of their VA employment. Preemption would be the 
minimum necessary action for VA to

[[Page 45758]]

furnish effectively telehealth services because it would be impractical 
for VA to lobby each State to remove its restrictions that impair VA's 
ability to furnish telehealth services to beneficiaries and then wait 
for the State to implement appropriate changes. That process would 
delay the growth of telehealth services in VA, thereby delaying 
delivery of health care to beneficiaries. It would be costly and time-
consuming for VA and would not guarantee a successful result. We note 
that, apart from the limited action of authorizing telehealth across 
and within jurisdictions in furtherance of important Federal interests, 
this rulemaking would not expand the scope of practice for VA health 
care providers beyond what is statutorily defined in the laws and 
practice acts of the health care provider's state of licensure. That 
is, this rulemaking does not affect VA's existing requirement that all 
VA health care providers adhere to restrictions imposed by their State 
license, registration, or certification regarding the professional's 
authority to prescribe and administer controlled substances.
    As VA's telehealth program expands and successfully provides 
increased access to high quality health care to all beneficiaries, it 
is increasingly important for VA health care providers to be able to 
practice telehealth across State lines and within states free of 
restrictions imposed by State law or regulations, including conditions 
attached to their State licenses. For fiscal year (FY) 2016, VA health 
care providers had 2.17 million telehealth episodes of health care 
(meaning a clinical encounter or a period of time in which care was 
monitored), which served over 702,000 veterans (approximately 12 
percent of the total patient population), with 45 percent of those 
veterans living in rural communities. By increasing VA's capabilities 
to provide telehealth services, VA would be able to expand these 
services.
    Eliminating veteran suicide and providing access to mental health 
care is VA's number one clinical priority, and this proposed rulemaking 
would improve VA's ability to reach its most vulnerable beneficiaries. 
Some mental health patients suffer from conditions, such as anxiety and 
agoraphobia, which make it incredibly difficult to leave their houses 
to receive necessary mental and general health care. Furthermore, some 
of our beneficiaries live in areas that are Federally designated as 
mental health provider shortage areas. Therefore, even if beneficiaries 
feel comfortable leaving their home to seek care, there may not be 
sufficient mental health care providers at a VA medical facility or in 
the community to address their health care needs. Given the difficulty 
in providing mental health care under these circumstances, the most 
practical way to consistently provide all VA beneficiaries with access 
to high-quality mental health care is through the telehealth program. 
The data collected in FY 2016 demonstrates that telehealth, 
particularly in the mental health context, improves patient care and 
improves patient outcomes. In FY 2016, there was a 31 percent decrease 
in VA hospital admissions for beneficiaries enrolled in the Home 
Telehealth monitoring program for non-institutional care needs and 
chronic care management. Also, beneficiaries who received mental health 
services through synchronous video telehealth in FY 2016 saw a 
reduction in the number of acute psychiatric VA bed days of care by 39 
percent.
    In addition, monitoring general medical conditions in the 
beneficiaries' home empowers beneficiaries to take a more active role 
in their overall health care without adding the stress of commuting to 
a medical facility to receive the same type of care. Telehealth is 
particularly important for beneficiaries with limited mobility, or for 
whom travel to a health care provider would be a personal hardship. For 
example, beneficiaries who have conditions such as a history of stroke, 
traumatic brain injuries, seizure disorders, and amyotrophic lateral 
sclerosis (ALS) may find it difficult to leave their home in order to 
receive much-needed health care. VA also is able to provide health care 
services to more beneficiaries in localities that are more convenient 
for them, which may lead to the beneficiary taking a more proactive 
approach to their care, thereby increasing the likelihood of positive 
clinical outcomes.
    Other benefits of expanding VA telehealth include serving as a 
recruitment incentive for VA health care providers and allowing VA to 
address recruitment shortages in various parts of the country. For 
example, the Charleston, South Carolina VAMC serves as one of the VA's 
National TeleMental Health Hubs and provides mental health services to 
beneficiaries across eight States with a team of approximately 30 full-
time health care providers. There are currently multiple vacancies for 
TeleMental Health psychiatrists at the Charleston Hub, and in the past 
six months, applicants have only expressed interest in telework 
positions. Several VA health care providers have also left their 
positions within the past year because they were seeking telework 
positions. If the health care providers were able to practice 
telehealth while working from VA-approved alternate worksites and still 
deliver the telehealth services where needed, the Charleston TeleMental 
Hub would be able to fill its vacancies and retain needed health care 
professionals.
    These are just some examples of how expanding telehealth, and 
thereby expanding the locations where VA provides health care services, 
would allow VA to reach underserved areas or beneficiaries who are 
unable to travel, improving health outcomes for beneficiaries and 
allowing VA to better utilize its health care resources. For these 
reasons, VA proposes to establish a new regulation, 38 CFR 17.417 that 
would authorize VA health care providers to treat beneficiaries through 
telehealth irrespective of the location, in a State, of the VA health 
care provider or the beneficiary.
    Proposed paragraph (a) of Sec.  17.417 would contain the 
definitions that would apply to the new section. We would define the 
term ``beneficiary'' to mean ``a veteran and any other individual 
receiving care under title 38 of the United States Code.'' We would use 
this definition because VA provides health care to veterans, certain 
family members of veterans, servicemembers, and others. This is VA's 
standard use of this term.
    We propose to define the term ``health care provider'' consistent 
with the qualifications of appointees within the Veterans Health 
Administration under 38 U.S.C. 7402(b). We would incorporate the 
licensure, registration, or certification requirement from section 
7402(b) and would state that health care providers must maintain 
``credentials (e.g., license, registration, or certification) in 
accordance with the requirements of their health care specialty as 
identified under 38 U.S.C. 7402(b).'' This standard would ensure that 
VA health care providers are qualified to practice their individual 
health care specialty and also ensure patient safety. A health care 
provider as defined in this regulation cannot be a VA-contracted 
employee. Contract health care providers would be required to adhere to 
their individual State license, registration, or certification 
requirements.
    We propose to define the term ``State'' consistent with 38 U.S.C. 
101(20), and including political subdivisions of such States. We 
include political subdivisions in the definition because subdivisions 
of a State are granted legal authority from the State itself, so it 
would make sense to include entities

[[Page 45759]]

created by a State, or authorized by a State in the definition.
    Last, in proposed paragraph (a)(4) of Sec.  17.417, we would define 
the term ``telehealth'' to mean ``the use of electronic information or 
telecommunications technologies to support clinical health care, 
patient and professional health-related education, public health, and 
health administration.'' This definition would be consistent with other 
statutory definitions, such as a provision in the Public Health Service 
Act regarding mental health services delivered by telehealth in 42 
U.S.C. 254c-16(a)(4).
    As we have mentioned in this rulemaking, currently, individual 
States can restrict and limit where a health care provider can practice 
under a State license, certification, or registration. This proposed 
rulemaking would authorize VA health care providers to furnish 
telehealth services without regard to any State restriction that would 
prevent the provider from delivering care via telehealth. Proposed 
paragraph (b)(1) of Sec.  17.417 would state that VA health care 
providers could provide ``telehealth services, within their scope of 
practice and in accordance with privileges granted to them by the 
Department, irrespective of the State or location within a State where 
the health care provider or the beneficiary is physically located.'' 
This would authorize VA health care providers to furnish care, 
consistent with their employment obligations, through telehealth, 
without fear of adverse action by any State. A health care provider's 
practice within VA, however, would continue to be subject to the 
limitations ``imposed by the Controlled Substances Act, 21 U.S.C. 801 
et seq., on the authority to prescribe or administer controlled 
substances, as well as any other limitations on the provision of VA 
care set forth in applicable Federal law and policy.'' This would 
ensure that providers would still be in compliance with critical laws 
concerning the prescribing and administering of controlled substances. 
We would also state that this rulemaking ``only grants health care 
providers the ability to practice telehealth within the scope of their 
VA employment and does not otherwise grant health care providers 
additional authorities that go beyond the scope of the health care 
providers' State license, registration, or certification.''
    In proposed paragraph (b)(2)(i) through (vii) of Sec.  17.417, we 
would provide situations where a health care provider's practice of 
telehealth could be inconsistent with a State law or State license, 
registration, or certification requirements while engaging in the 
practice of telehealth in VA. These examples would be consistent with 
the reasons VA is proposing to take this rulemaking action, as 
described above.
    Proposed paragraph (c) would expressly state the intended 
preemptive effect of Sec.  17.417, to ensure that conflicting State and 
local laws, rules, regulations, and requirements related to health care 
providers' practice would have no force or effect when such providers 
are practicing telehealth while working within the scope of their VA 
employment. In circumstances where there is a conflict between Federal 
and State law, Federal law would prevail in accordance with Article VI, 
clause 2, of the U.S. Constitution (Supremacy Clause).

Executive Order 13132, Federalism

    Section 4 of Executive Order 13132 (Federalism) requires an agency 
that is publishing a regulation that preempts State law to follow 
certain procedures. Section 4(b) requires agencies to ``construe any 
authorization in the statute for the issuance of regulations as 
authorizing preemption of State law by rulemaking only when the 
exercise of State authority directly conflicts with the exercise of 
Federal authority under the Federal statute or there is clear evidence 
to conclude that the Congress intended the agency to have the authority 
to preempt State law.'' Section 4(c) states ``Any regulatory preemption 
of State law shall be restricted to the minimum level necessary to 
achieve the objectives of the statute pursuant to which the regulations 
are promulgated.'' Section 4(d) requires that when an agency ``foresees 
the possibility of a conflict between State law and Federally protected 
interests within its area of regulatory responsibility, the agency 
shall consult, to the extent practicable, with appropriate State and 
local officials in an effort to avoid such a conflict.'' Section 4(e) 
requires that when an agency ``proposes to act through adjudication or 
rulemaking to preempt State law, the agency shall provide all affected 
State and local officials notice and an opportunity for appropriate 
participation in the proceedings.'' Section 6(c) states that ``To the 
extent practicable and permitted by law, no agency shall promulgate any 
regulation that has federalism implications and that preempts State 
law, unless the agency, prior to the formal promulgation of the 
regulation, (1) consulted with State and local officials early in the 
process of developing the proposed regulation; (2) in a separately 
identified portion of the preamble to the regulation as it is to be 
issued in the Federal Register, provides to the Director of the Office 
of Management and Budget a federalism summary impact statement, which 
consists of a description of the extent of the agency's prior 
consultation with State and local officials, a summary of the nature of 
their concerns and the agency's position supporting the need to issue 
the regulation, and a statement of the extent to which the concerns of 
State and local officials have been met; and (3) makes available to the 
Director of the Office of Management and Budget any written 
communications submitted to the agency by State and local officials.''
    Because this proposed rule would preempt certain State laws, VA 
consulted with State officials in compliance with sections 4(d) and 
(e), as well as section 6(c) of Executive Order 13132. VA sent a letter 
to the National Governor's Association, Association of State and 
Provincial Psychology, National Council of State Boards of Nursing, 
Federation of State Medical Boards, Association of Social Work Boards, 
and National Association of State Directors of Veterans Affairs on July 
12, 2017, to state VA's intent to allow VA health care providers to 
practice telehealth irrespective of the location of the health care 
provider or beneficiary in any State and regardless of State telehealth 
restrictions. In addition, the Director of the Federation of State 
Medical Boards solicited comments and input from the nation's State 
Medical Boards. The Wisconsin Medical Examining Board unanimously 
passed a motion in support of the rule. The Rhode Island Board of 
Medical Licensure & Discipline (BMLD) responded to our letter by 
stating that BMLD considers physicians employed by VA to be exempt from 
license requirements as long as such physician maintains a valid 
license in another U.S. jurisdiction. BMLD also indicated that the 
exemption does not necessarily extend to prescribing controlled 
substances without an appropriate DEA registration. In response to this 
caveat, we have stated in this proposed rule that, if finalized, VA 
health care providers would be subject to ``the limitations imposed by 
the Controlled Substances Act, 21 U.S.C. 801, et seq., on the authority 
to prescribe or administer controlled substances, as well as any other 
limitations on the provision of VA care set forth in applicable Federal 
law and policy.'' The State of Utah Department of Commerce also stated 
that the Utah Occupations and Professions Licensing Act exempts from 
licensure requirements in Utah

[[Page 45760]]

physicians, physician assistants, advanced practice nurses, 
psychologists or other health care provider who provide telehealth 
services as part of their VA employment as long as such health care 
provider is licensed in any State. Utah supports VA efforts to enhance 
telehealth services to all veterans. The Florida Board of Medicine 
stated that Florida does not prohibit the practice of telehealth except 
in certain circumstances and provided as an example that an in-person 
examination is required each time a physician issues a certification 
for medical marijuana. This proposed rule would supersede any State 
requirement regarding the practice of telehealth, such as the in-person 
examination requirement in Florida, and would maintain the restrictions 
imposed by Federal law and policy regarding the prescription of 
controlled substances. The North Carolina Medical Board recognizes the 
shortage of psychiatric care in rural and medically underserved 
communities and supports VA's initiative.
    The President of the National Association of State Directors of 
Veterans Affairs (NASDVA) sent an email to all of its State directors 
informing the directors of the association's intent to fully support 
VA's initiative. The NASDVA also formally responded to our letter, 
which fully supports VA's plans to amend its regulations and enhance 
access to health care via telehealth services. The National Council of 
State Boards of Nursing (NCSBN) fully supports VA's initiative for 
health care providers to deliver services via telehealth as long as 
such providers maintain a valid State license. However, the NCSBN does 
not support expanding VA State licensure exemptions to personal 
services contractors who practice telehealth. As stated in this 
proposed rulemaking, VA contractors would be excluded from providing 
telehealth services.
    The Chief Executive Officer of the Association of State and 
Provincial Psychology Boards formally responded to our letter and 
indicated that the proposed rule is in alignment with their current 
initiatives, specifically, Psychology Interjurisdictional Compact 
(PSYPACT) legislation, which has been adopted in three jurisdictions 
and is under active consideration in many more States. The PSYPACT 
legislation allows psychologists to provide telepsychology services 
across State lines via a compact without obtaining additional licenses. 
The Chief Executive Officer further stated that these services will be 
of assistance in addressing the delivery of telehealth services to 
veterans.
    The Veterans' Rural Health Advisory Committee (VRHAC) formally 
submitted a letter in support of the proposed rule. The letter stated 
that although VA leads the way in being the largest provider of 
telehealth in the country, there are barriers that affect many rural 
and highly rural areas, which includes limited internet or cellular 
access with sufficient bandwidth to support the required applications 
and also State legislations that restrict the practice of telehealth 
across State lines or into a veteran's home. The commenter strongly 
supports the proposed rule and further adds that expanding telehealth 
to rural and highly rural veterans across State lines would strengthen 
the delivery of care to enrolled veterans who live in rural and highly 
rural areas and supports the critical need for access to mental health 
care.
    The West Virginia Board of Osteopathic Medicine responded to VA's 
letter and indicated that West Virginia has made legislative changes to 
encourage physician participation in the VA system. The commenter 
stated that W.Va. Code 30-14-12c authorizes the West Virginia licensing 
boards to issue a license to a physician licensed in another State via 
reciprocity when the applicant presents proof that they are a VA 
employee working in a VA medical facility that is located in a county 
where a nursing home is operated by the West Virginia Department of 
Veteran's Assistance. Also, W.Va. Code 30-14-12d states the 
requirements for practicing telemedicine in West Virginia and defines 
that the practice of medicine occurs where the patient is located and 
defines what constitutes a physician-patient relationship. The 
commenter stated that the West Virginia Board of Osteopathic Medicine 
rarely knows when a VA physician is practicing in West Virginia without 
a West Virginia State license. However, the commenter cautioned that if 
a VA physician is licensed in West Virginia and does not follow state 
law and such action becomes known to the Board, the Board would file a 
complaint and investigate such action. The commenter stated that their 
telehealth law was written to protect patients and indicated that 
veterans deserved the same high quality care. As we have stated in this 
proposed rule, we are preempting State law as it applies to health care 
providers who practice telehealth while acting within the scope of 
their VA employment.
    The Pennsylvania State Board of Medicine responded to VA's letter 
and acknowledged the potential value for telehealth to expand access to 
health care, especially in rural and underserved areas. The commenter 
further stated that Pennsylvania law on the Interstate Medical 
Licensure Compact affirms that the practice of medicine occurs where 
the patient is located at the time of the health care encounter, which 
requires the physician to be under the jurisdiction of the State 
medical board where the patient is located. The commenter indicated 
that VA has oversight of its health care providers, however, the 
foundational principle that the physician should be licensed where the 
patient is located helps to assure the safety, quality, and 
accountability of the care provided. This proposed rule preempts State 
law as it applies to health care providers who practice telehealth 
while acting within the scope of their VA employment.
    The Michigan Department of Licensing and Regulatory Affairs 
responded to VA's letter by stating that Michigan law does not require 
a VA health care provider to hold a Michigan State license in the 
discharge of official duties. The commenter also stated that telehealth 
at a VA medical facility would be permitted. However, if the health 
care provider is delivering care to the beneficiary's home, such 
provider would need a Michigan State license. As we have indicated in 
this proposed rule, VA would preempt State law as it applies to health 
care providers who practice telehealth while acting within the scope of 
their VA employment.
    The Virginia Board of Medicine responded to VA's letter by stating 
that the Executive Committee of the Board met and supported the 
enhancement of access to care for veterans. The commenter stated that 
the proposed rule should benefit many beneficiaries that have little or 
no access to health care.
    The comments provided above will be placed on Regulations.gov for 
public inspection during the comment period. Stakeholders will also 
have an opportunity to provide comments during the notice and comment 
period.
    This proposed rule complies with Executive Order 13132 by (1) 
identifying where the exercise of State authority would directly 
conflict with the rule; (2) limiting preemption to these areas of 
conflict; (3) restricting preemption to the minimum level necessary to 
achieve the objectives of the statutes pursuant to which the rule is 
promulgated; (4) consulting with the external stakeholders listed in 
this rule; and (5) providing opportunity for all affected State and 
local officials to comment on this proposed rulemaking.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
proposed

[[Page 45761]]

rule, represents VA's implementation of its legal authority on this 
subject. Other than future amendments to this rule or governing 
statutes, no contrary guidance or procedures are authorized. All 
existing or subsequent VA guidance must be read to conform with this 
rule if possible. If not possible, such guidance is superseded by this 
rule.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed 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 proposed rule directly affects only individuals 
who are VA employees and will not directly affect small entities. 
Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from 
the initial and final regulatory flexibility analysis requirements of 5 
U.S.C. 603 and 604.

Executive Orders 12866, 13563, and 13771

    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. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' requiring review by the Office of 
Management and Budget (OMB), unless OMB waives such review, 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 this Executive Order.''
    OMB has determined that it is a significant regulatory action under 
Executive Order 12866 given the policy implications. In addition, under 
Executive Order 13771 (Reducing Regulation and Controlling Regulatory 
Costs), this proposed rule is expected to be an E.O. 13771 deregulatory 
action, though VA is not able to quantify any cost savings associated 
with it. VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's Web site at 
http://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published from FY 2004 Through Fiscal Year to Date.''
    Executive Order 12866 also directs agencies to ``include a comment 
period of not less than 60 days.'' Given the importance of telehealth 
in providing critical, and potentially lifesaving, access to health 
care for our beneficiaries, VA must act expeditiously, through this 
rulemaking, to ensure that it can expand its telehealth program. The 
primary barrier to the expansion of VA's telehealth program is that 
States' licensing boards have placed explicit restrictions on the use 
of telehealth in their States and have not made exceptions for VA 
providers, which ultimately inhibits VA providers from delivering VA 
health care to beneficiaries. Five of the States with the largest 
veteran populations, California, Texas, Florida, New York, and Ohio, 
have enacted laws and rules that restrict health care providers' 
ability to practice telehealth across State lines. See, 16 C.C.R. Sec.  
1815.5; Cal Bus & Prof Code Sec. Sec.  2052, 2060; TX Occupation Code 
Sec.  151.056; TX Admin Code, Title 22, Sec.  172.12; FL Admin Code 
64B8-9.0141; FL Admin Code 64B15-14.0081; NY Consolidated Law Service 
Public Health Sec.  2805-u; OH Revised Code Annotated, Sec. 
4731.296(C). As telehealth capabilities continue to expand, new State 
legislation and regulations across the country are enacted relating to 
the practice of telehealth. The possibility of sanctions to VA health 
care providers' State license, including fines and imprisonment for 
unauthorized practice of medicine has hindered VA's ability to expand 
its telehealth program. To protect VA health care providers from 
potential adverse actions by States, many VAMCs are currently not 
expanding some critical telehealth services if the health care service 
is provided outside Federal property (such as when the VA provider is 
delivering telehealth care from his or her home) or across State lines, 
or the care is delivered in a beneficiary's home. In addition many 
individual VA health care providers refuse to practice telehealth 
because of concerns over States taking action against their State 
license. This rule will supersede State restrictions on the practice of 
telehealth and allow VA health care providers to practice telehealth 
anywhere within a State (such as from the residence of the health care 
provider) and across State lines.
    In sum, providing a 60 day public comment period instead of a 30 
day public comment period would be against public interest and the 
health and safety of VA beneficiaries because any restriction from a 
State or State licensing board on practicing telehealth, within the 
State or across State lines, could impede beneficiaries' access to 
health care, which will ultimately impact the health of the 
beneficiary. For the above reasons, the Secretary issues this rule with 
a 30 day public comment period. VA will consider and address comments 
that are received within 30 days of the date this proposed rule is 
published in the Federal Register.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires 
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 will have no such effect on State, 
local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are: 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; 64.018, Sharing Specialized 
Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug 
Dependence; 64.022, Veterans Home Based Primary Care; 64.039 CHAMPVA; 
64.040 VHA Inpatient Medicine; 64.041 VHA Outpatient

[[Page 45762]]

Specialty Care; 64.042 VHA Inpatient Surgery; 64.043 VHA Mental Health 
Residential; 64.044 VHA Home Care; 64.045 VHA Outpatient Ancillary 
Services; 64.046 VHA Inpatient Psychiatry; 64.047 VHA Primary Care; 
64.048 VHA Mental Health Clinics; 64.049 VHA Community Living Center; 
and 64.050 VHA Diagnostic 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. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on July 28, 2017 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, Reporting and 
recordkeeping requirements, Scholarships and fellowships, Travel and 
transportation expenses, Veterans.

    Dated: September 26, 2017.
Michael Shores,
Director, Regulation Policy & Management, Office of the Secretary, 
Department of Veterans Affairs.

    For the reasons set forth in the preamble, we propose to amend 38 
CFR part 17 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 is amended by adding an entry for 
Sec.  17.417 in numerical order to read in part as follows:

    Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
    Section 17.417 also issued under 38 U.S.C. 1701 (note), 1709A, 
1712A (note), 1722B, 7301, 7330A, 7401-7403; 7406 (note)).

0
2. Revise the undesignated center heading immediately after Sec.  
17.412 to read as follows:

Authority of Health Care Providers to Practice in the Department

0
3. Add Sec.  17.417 to read as follows:


Sec.  17.417  Health care providers.

    (a) Definitions. The following definitions apply to this section.
    (1) Beneficiary. The term beneficiary means a veteran or any other 
individual receiving health care under title 38 of the United States 
Code.
    (2) Health care provider. The term health care provider means an 
individual who:
    (i) Is licensed, registered, or certified in a State to practice a 
health care specialty identified under 38 U.S.C. 7402(b);
    (ii) Is appointed to an occupation in the Veterans Health 
Administration that is listed in or authorized under 38 U.S.C. 7401(1) 
or (3);
    (iii) Maintains credentials (e.g., a license, registration, or 
certification) in accordance with the requirements of his or her 
medical specialty as identified under 38 U.S.C. 7402(b); and
    (iv) Is not a VA-contracted employee.
    (3) State. The term State means a State as defined in 38 U.S.C. 
101(20), or a political subdivision of such a State.
    (4) Telehealth. The term telehealth means the use of electronic 
information or telecommunications technologies to support clinical 
health care, patient and professional health-related education, public 
health, and health administration.
    (b) Health care provider's practice. (1) Health care providers may 
provide telehealth services, within their scope of practice and in 
accordance with privileges granted to them by the Department, 
irrespective of the State or location within a State where the health 
care provider or the beneficiary is physically located. Health care 
providers' practice is subject to the limitations imposed by the 
Controlled Substances Act, 21 U.S.C. 801, et seq., on the authority to 
prescribe or administer controlled substances, as well as any other 
limitations on the provision of VA care set forth in applicable Federal 
law and policy. This section only grants health care providers the 
ability to practice telehealth within the scope of their VA employment 
and does not otherwise grant health care providers additional 
authorities that go beyond the scope of the health care providers' 
State license, registration, or certification.
    (2) Situations where a health care provider's VA practice of 
telehealth may be inconsistent with a State law or State license, 
registration, or certification requirements related to telehealth 
include when:
    (i) The beneficiary and the health care provider are physically 
located in different States during the episode of care;
    (ii) The beneficiary is receiving services in a State other than 
the health care provider's State of licensure, registration, or 
certification;
    (iii) The health care provider is delivering services in a State 
other than the health care provider's State of licensure, registration, 
or certification;
    (iv) The health care provider is delivering services either on or 
outside VA property;
    (v) The beneficiary is receiving services while she or he is 
located either on or outside VA property;
    (vi) The beneficiary has or has not previously been assessed, in 
person, by the health care provider; or
    (vii) Other State requirements would prevent or impede the practice 
of health care providers delivering telehealth to VA beneficiaries.
    (c) Preemption of State law. To achieve important Federal 
interests, including, but not limited to, the ability to provide the 
same complete medical and hospital service to beneficiaries in all 
States under 38 U.S.C. 7301, this section preempts conflicting State 
laws relating to the practice of health care providers when such health 
care providers are practicing telehealth within the scope of their VA 
employment. Any State law, rule, regulation or requirement pursuant to 
such law, is without any force or effect on, and State governments have 
no legal authority to enforce them in relation to, this section or 
decisions made by VA under this section.

[FR Doc. 2017-20951 Filed 9-29-17; 8:45 am]
BILLING CODE 8320-01-P


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