48018 Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 

other technical changes to narrow 

further the application of the rules are 

currently being considered. With these 

contemplated changes incorporated, 

Treasury and the IRS believe the revised 

regulations would more closely track 

the intent of Congress. 

8. Final Regulations Under Section 987 

on Income and Currency Gain or Loss 

With Respect to a Section 987 Qualified 

Business Unit (T.D. 9794; 81 FR 88806) 

These final regulations provide rules 

for: (i) Translating income from branch 

operations conducted in a currency 

different from the branch owner’s 

functional currency into the owner’s 

functional currency; (ii) calculating 

foreign currency gain or loss with 

respect to the branch’s financial assets 

and liabilities; and (iii) recognizing such 

foreign currency gain or loss when the 

branch makes certain transfers of any 

property to its owner. Commenters 

argued that the transition rule in the 

final regulations imposes an undue 

financial burden because it disregards 

losses calculated for years prior to the 

transition but not previously 

recognized. Many taxpayers have also 

commented that the method prescribed 

by the final regulations for calculating 

foreign currency gain or loss is unduly 

complex and financially burdensome to 

apply, particularly where the final 

regulations differ from financial 

accounting rules. 

After reviewing these comments and 

meeting with a significant number of 

affected taxpayers in different 

industries, Treasury and the IRS believe 

that the regulations have proved 

difficult to apply for many taxpayers. To 

address these difficulties, Treasury and 

the IRS currently expect to issue 

guidance that would permit taxpayers to 

elect to defer the application of 

Regulation Sections 1.987–1 through 

1.981–10 until at least 2019, depending 

on the beginning date of the taxpayer’s 

taxable year. 

In addition, Treasury and the IRS also 

intend to propose modifications to the 

final regulations to permit taxpayers to 

elect to adopt a simplified method of 

calculating Section 987 gain and loss 

and translating Section 987 income and 

loss, subject to certain limitations on the 

timing of recognition of Section 987 

loss. Under one variation of a simplified 

methodology currently being 

considered, taxpayers would treat all 

assets and liabilities of a Section 987 

qualified business unit (QBU) as marked 

items and translate all items of income 

and expense at the average exchange 

rate for the year. This methodology 

generally would result in 

determinations of amounts of Section 

987 gain or loss that are consistent with 

amounts of translation gain or loss that 

would be determined under applicable 

financial accounting rules, as well as 

under the 1991 proposed Section 987 

regulations. 

In this connection, the IRS and the 

Office of Tax Policy are considering 

alternative loss recognition timing 

limitations that would apply to electing 

taxpayers. Under the base limitation 

under consideration, the electing 

taxpayer would be permitted to 

recognize net Section 987 losses only to 

the extent of net Section 987 gains 

recognized in prior or subsequent years. 

As a possible additional approach to 

limiting losses, the IRS and the Office of 

Tax Policy are also considering the 

administrability of a limitation under 

which the electing taxpayer would defer 

recognition of all Section 987 losses and 

gains until the earlier of (i) the year that 

the trade or business conducted by the 

Section 987 QBU ceases to be performed 

by any member of its controlled group 

or (ii) the year substantially all of the 

assets and activities of the QBU are 

transferred outside of the controlled 

group. 

Finally, the IRS and the Office of Tax 

Policy are considering alternatives to 

the transition rules in the final 

regulations. One alternative would be to 

allow taxpayers that elect to apply the 

loss limitations applicable to the 

simplified methodology discussed 

above to carry forward unrealized 

Section 987 gains and losses, measured 

as of the transition date with 

appropriate adjustments, and subject to 

such loss limitations. A second 

alternative under consideration would 

be to allow taxpayers adopting the final 

regulations to elect to translate all items 

on the QBU’s opening balance sheet on 

the transition date at the spot exchange 

rate, but not carry forward any 

unrealized Section 987 gains or losses. 

David J. Kautter, 

Assistant Secretary of the Treasury for Tax 

Policy. 

[FR Doc. 2017–22205 Filed 10–13–17; 8:45 am] 

BILLING CODE 4810–25–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AP46 

Prosthetic and Rehabilitative Items and 

Services 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to revise its 

medical regulations related to providing 

prosthetic and rehabilitative items as 

medical services to veterans. These 

revisions would reorganize and update 

the current regulations related to 

prosthetic and rehabilitative items, 

primarily to clarify eligibility for 

prosthetic and other rehabilitative items 

and services, and to define the types of 

items and services available to eligible 

veterans. 

DATES: Comments must be received by 

VA on or before December 15, 2017. 

ADDRESSES: Written comments may be 

submitted by email through http://

www.regulations.gov; by mail or hand 

delivery to Director, Regulations 

Management (00REG), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW., Room 1063B, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AP46, Prosthetic and rehabilitative 

items and services.’’ Copies of 

comments received will be available for 

public inspection in the Office of 

Regulation Policy and Management, 

Room 1063B, 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 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: 

Penny Nechanicky, National Program 

Director for Prosthetic and Sensory Aids 

Service (10P4RK), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW., Washington, DC 20420; (202) 461– 

0337. (This is not a toll-free number.) 

Penny.Nechanicky@va.gov. 

SUPPLEMENTARY INFORMATION: Section 

1710 of title 38, United States Code 

(U.S.C.), authorizes VA to provide 

veterans with, among other things, 

‘‘medical services’’ when VA 

determines that they are ‘‘needed.’’ 

‘‘Medical services’’ is further defined in 

38 U.S.C. 1701(6)(F) to include the 

following items and services, for 

veterans who are otherwise receiving 

care or services under chapter 17 of title 

38 U.S.C.: Wheelchairs, artificial limbs, 

trusses, and similar appliances; special 

clothing made necessary by the wearing 

of prosthetic appliances; and such other 

supplies or services as the Secretary 

determines to be reasonable and 

necessary. 38 U.S.C. 1701(6)(F)(i)–(iii). 

The language in clauses (i) through (iii) 

of section 1701(6)(F) is the source of 


ethrower on DSK3G9T082PROD with PROPOSALS
Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 48019 

VA’s authority to provide prosthetic and 

rehabilitative items and related services 

to veterans as necessary items and 

services (i.e., ‘‘medical services’’). 

Historically, we have interpreted section 

1701(6)(F)(iii) to authorize VA to 

provide other supplies and services only 

to the extent that they are similar or 

related to the expressly listed items in 

sections 1701(6)(F)(i) and (ii), i.e., 

wheelchairs, artificial limbs, trusses or 

similar appliances, and special clothing 

made necessary by the wearing of 

prosthetic appliances. We base this 

interpretation on tenets of statutory 

construction and opinions of VA’s 

Office of General Counsel. See 2A 

Norman J. Singer, Statutes and Statutory 

Construction § 47.17 (6th ed. 2000) 

(explaining that as a matter of statutory 

interpretation, where general words 

follow specific words, ‘‘the general 

words are construed to embrace only 

objects similar in nature to those objects 

enumerated by the preceding specific 

words’’). See also VAOPGCADV 7–2009, 

VAOPGCADV 9–2005, 

VAOPGCCONCL–8–98. 

VA has considered those items 

expressly listed in section 1701(6)(F)(i) 

and (ii) as medically necessary because 

such items assist a veteran in 

compensating for the loss of mobility or 

loss of other functional abilities. Thus 

for a supply (i.e., hereafter referred to as 

an item) or service to be similar in 

nature to what is enumerated in section 

1701(6)(F)(i) and (ii), it must assist a 

veteran to compensate for loss of 

mobility or loss of other functional 

abilities. For such items and services to 

be provided pursuant to section 

1701(6)(F)(iii), the Secretary must first 

determine that the item or service could 

assist veterans to compensate for loss of 

mobility or loss of other functional 

abilities. Next, under that provision, the 

Secretary must determine that they are 

‘‘reasonable and necessary.’’ Once the 

Secretary makes these two 

determinations regarding an item or 

service under 1701(6)(F)(iii), VA may 

include them in the medical benefits 

package and provide them to individual 

eligible veterans as medical services if 

they are determined to be ‘‘needed’’ as 

required by section 1710(a) as 

implemented by 38 CFR 17.38(b). 

VA’s authority as described above to 

provide medically needed prosthetic 

and similar items to all veterans who are 

otherwise receiving care or services 

under chapter 17 of title 38 U.S.C. was 

established by section 103(a) of Public 

Law 104–262, The Veterans’ Health Care 

Eligibility Reform Act of 1996, which 

amended the definition of medical 

services in 38 U.S.C. 1701(6). Prior to 

the enactment of Public Law 104–262, 

VA was effectively prohibited from 

providing prosthetic and similar items 

to most nonservice-connected veterans 

except in preparation for a hospital 

admission or to obviate the need for 

hospital admission. Section 103(b) of 

Public Law 104–262 further directed VA 

to prescribe guidelines for the expanded 

prosthetics eligibility in section 103(a). 

These guidelines were issued through 

national Veterans Health 

Administration (VHA) policies 

beginning with VHA Directive 96–069 

(as published November 7, 1996), 

culminating in VHA Handbook 1173.1 

(as last published November 2, 2000). 

VA has further expressly listed ‘‘durable 

medical equipment and prosthetic and 

orthotic devices’’ as medical services 

available to eligible veterans as part of 

VA’s medical benefits package in 38 

CFR 17.38(a)(1)(viii). Although VA 

administers its prosthetics program with 

the support of § 17.38(a)(1)(viii) as well 

as multiple VHA policies, neither 

§ 17.38 (except for § 17.38(c)) nor these 

policies are appropriately descriptive of 

VA’s current practices in providing 

prosthetic and similar items. For 

instance, 17.38(a)(1)(viii) provides that 

eligible veterans may receive prosthetic 

and similar items as medical services, 

and § 17.38(b) further provides that such 

items may be considered medically 

necessary if they are ‘‘determined by 

appropriate healthcare professionals 

that the care is needed to promote, 

preserve, or restore the health’’ of 

eligible veterans; however, the 

‘‘promote, preserve, or restore’’ criteria 

in § 17.38(b) are not specific enough to 

properly articulate the concept of 

medical necessity in the context of 

prosthetic and similar items and 

services, versus for medical services 

more generally. VA finds it necessary 

now to clarify its current practices and 

to propose certain changes with regard 

to the provision of prosthetic and 

similar items and services, and such 

clarification and proposed changes are 

appropriate for a rulemaking because 

they would affect VA’s provision of 

prosthetic and similar items and 

services. We would not seek to 

substantively revise § 17.38 in this 

manner, however, as it would be 

cumbersome and potentially confusing 

to establish additional eligibility and 

other administrative criteria for 

prosthetic and similar items and 

services as a specific type of medical 

service. We would seek instead to 

establish new regulations in proposed 

§§ 17.3200–.3250, and would remove a 

current but defunct regulation 

specifically related to the provision of 

prosthetic and similar items, 38 CFR 

17.150. Section 17.150 was first 

promulgated in 1967 and was never 

substantively revised to reflect 

eligibility for prosthetic and similar 

items as provided in section 103(a) of 

Public Law 104–262 and 

§ 17.38(a)(1)(viii). Although § 17.150 

does establish that there must be a VA 

determination of ‘‘feasibility and 

medical need’’ prior to the provision of 

prosthetic and rehabilitative items and 

services to veterans, the phrase 

‘‘feasibility and medical need’’ does not 

properly articulate the concept of 

medical necessity in a manner that is 

consistent with current VA practices. 

Further, § 17.150 only provides a 

limited list of examples of prosthetic 

items and services that are provided to 

eligible veterans, which could be 

misinterpreted to be an exhaustive list. 

Removing § 17.150 and establishing 

proposed §§ 17.3200–.3250 would, 

among other things as described 

throughout this rulemaking, articulate 

the concept of medical necessity for 

these items and services in a manner 

consistent with current VA authority 

and practice, would provide a broader 

and expressly non-exhaustive list as 

well as definitions for items and 

services that may be provided, and 

would update veteran eligibility for 

these items and services in a manner 

consistent with section 103(a) of Public 

Law 104–262 and with 

§ 17.38(a)(1)(viii). 

The changes proposed in this 

rulemaking would also clarify the 

provision of prosthetic and 

rehabilitative items and services that VA 

provides as ‘‘medical services’’ under 

sections 1701 and 1710, versus other 

similar items and services that VA 

provides under other authorities. 

Congress has enacted specific statutory 

provisions other than sections 1701 and 

1710 to authorize VA to furnish veterans 

with particular items and services in 

connection with a disability or to assist 

veterans in overcoming a disability. For 

example, sections 1714(b) and 1717(c) 

authorize VA to furnish devices to blind 

and deaf veterans, respectively, for the 

broad purpose of ‘‘overcoming the 

disability’’ of blindness or deafness, 

without the criterion that such devices 

be considered medically necessary. This 

is not to say that such items and 

services could not be interpreted as 

being medically necessary. Rather, the 

enactment of statutes other than 

sections 1701(6)(F) and 1710(a) 

demonstrates Congressional intent that 

the items and services provided under 

these other statutes are to be provided 

in accordance with the criteria in those 

statutes and their implementing 


ethrower on DSK3G9T082PROD with PROPOSALS
48020 Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 

regulations. VA has established different 

regulatory criteria implementing these 

other statutes to control the provision of 

these other items (see, for instance, 38 

CFR 17.3100 et seq., which controls the 

provision of home improvements and 

structural alterations permitted by 38 

U.S.C. 1717(a)(2)). We propose to 

establish this distinction between 

sections 1701(6)(F) and 1710(a), and 

other statutes that control the provision 

of certain items and services, more 

clearly in proposed section 17.3200; 

specifically, we would provide a table of 

the statutory and regulatory authorities 

for items and services provided outside 

of sections 1701(6)(F) and 1710(a). This 

table would include authorities for 

items and services provided to veterans, 

but would not include authorities for 

items and services provided to nonveteran beneficiaries (such as the 

authorities to provide items necessary 

for care of a newborn as permitted by 38 

U.S.C. 1786, or items necessary for care 

of certain dependents as permitted by 

38 U.S.C. 1781). We do not believe it is 

necessary to include authorities related 

to non-veterans in the proposed table, as 

proposed sections 17.3200 through 

17.3250 only address the provision of 

these items and services to veterans. 

17.3200. Purpose and Scope 

Proposed § 17.3200 would establish a 

clearer purpose and scope for the 

provision of prosthetic and 

rehabilitative items and services as 

‘‘medical services’’ than what is 

articulated in current § 17.150, to 

distinguish VA’s provision of prosthetic 

and rehabilitative items and services as 

medical services under sections 

1701(6)(F) and 1710 from VA’s 

provision of other items and services 

under other authorities. Proposed 

§ 17.3200(a) would state that the 

purpose of proposed §§ 17.3200 through 

17.3250 would be to establish eligibility 

and other criteria for the provision of 

prosthetic and rehabilitative items and 

services to veterans as medical services 

under sections 1701(6)(F) and 1710(a). 

These items and services would be 

listed in proposed § 17.3230, and we 

would reference that section for ease of 

use. 

Proposed § 17.3200(b) would establish 

that the scope of proposed §§ 17.3200 

through 17.3250 would be limited to 

those prosthetic or rehabilitative items 

and services provided by VA as medical 

services under sections 1701(6)(F) and 

1710(a), and would identify in a table 

other items or services controlled by 

other statutes and regulations. We 

propose to include this table because 

these items and services have different 

criteria (related to eligibility, 

restrictions, etc.) in accordance with 

distinct legal authorities other than 

sections 1701(6)(F) and 1710(a). The 

proposed rule would help reduce 

confusion by telling users where to find 

the other statutes and regulations 

relevant to these other items and 

services. 

17.3210. Definitions 

Proposed § 17.3210 would establish 

definitions relevant to the prosthetic 

and rehabilitative items and services to 

be provided by VA as medical services 

under sections 1701(6)(F) and 1710(a). 

The items and services that would be 

defined in this section are either 

expressly listed as medical services 

under section 1701(6)(F)(i) and (ii), or 

are similar or related to such expressly 

listed items and services because they 

are similarly deemed ‘‘needed’’ (as 

required by section 1710(a)), because 

they may be medically necessary to 

assist a veteran to compensate for loss 

of mobility or loss of other functional 

abilities as explained previously in this 

rulemaking. We note that some of the 

definitions below would propose 

additional qualifying criteria related to 

the items or services themselves. These 

additional qualifying criteria would be 

related to accomplishing specific tasks 

associated with the veteran’s 

rehabilitation plan in addition to the 

general requirement that the item be 

deemed medically necessary for the 

veteran. 

‘‘Activities of daily living (ADL)’’ 

would be defined as specific personal 

care activities that are required for basic 

daily maintenance and sustenance, to 

include eating, toileting, bathing, 

grooming, dressing and undressing, and 

mobility. This definition of ADLs is 

consistent with other VA regulatory 

definitions or uses of the term. See 

§§ 17.36, 51.120, 52.2, and 61.1. 

‘‘Adaptive household item’’ would be 

defined as a durable household item 

that has been adapted to compensate 

for, or that by design compensates for, 

loss of physical, sensory, or cognitive 

function and is necessary to complete 

one or more ADLs in the home or other 

residential setting. We believe this 

definition captures the common 

meaning and understanding of the word 

‘‘adaptive’’ as something that 

compensates for loss of function, and 

we believe the further restrictions in 

this definition as explained below better 

explain the scope of items that would be 

considered covered. For instance, we 

would require that the adaptive 

household item must be ‘‘necessary’’ to 

complete one or more ADLs, because we 

believe this is a reasonable restriction 

for equipment that would be used in an 

individual’s home or other residential 

setting, and would ensure that common 

household items are not provided 

except in narrow circumstances when a 

veteran cannot complete an ADL 

without such an item due to the 

veteran’s loss of function. The definition 

of ‘‘adaptive household item’’ would 

further provide examples of such items, 

to include adaptive eating utensils, 

shower stools or chairs, hooks to assist 

in buttoning clothing, or shoe horns. 

The definition of ‘‘adaptive household 

item’’ would exclude household 

furniture or furnishing (which, as 

discussed later in this proposed rule, we 

would define as an item commonly used 

to make a home habitable or otherwise 

used to ornament a home, including but 

not limited to tables, chairs, desks, 

lamps, cabinets, non-hospital beds, 

curtains, carpet(s), etc.) because we do 

not find that common household 

furniture or furnishings are generally 

necessary to complete an ADL. For 

instance, a dining table is associated 

with the ADL of eating, but is 

distinguishable from an adaptive utensil 

that may be required to complete the 

ADL of eating. We further clarify that 

certain specialized items that may be 

medically necessary and that could be 

interpreted as furniture (such as 

hospital beds) would be expressly 

included under the proposed definition 

of ‘‘home medical equipment’’ as 

explained later in this proposed rule. 

The definition of ‘‘adaptive household 

item’’ would also expressly exclude an 

‘‘improvement or structural alteration’’ 

which we would define in this section 

the same as it is defined in 38 CFR 

17.3101 (i.e., a modification to a home 

or to an existing feature or fixture of a 

home, including repairs to or 

replacement of previously improved or 

altered features or fixtures) because 

such improvements or alterations are 

authorized by section 1717(a)(2) and 38 

CFR 17.3100 et seq., and are not within 

the scope of these proposed regulations, 

as stated in the table in proposed 

§ 17.3200(b). The definition of ‘‘adaptive 

household item’’ would further exclude 

household appliances (which, as 

discussed later in this proposed rule, we 

would define as equipment for use in 

the home for performance of domestic 

chores or other domestic tasks, 

including but not limited to a 

refrigerator, stove, washing machine, 

and vacuum cleaner), except as 

necessary to complete an ADL, because 

generally most household appliances 

cannot be adapted to compensate, or by 

design do not compensate for, 

functional loss in such a manner as to 

be considered necessary to complete 


ethrower on DSK3G9T082PROD with PROPOSALS
Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 48021 

ADLs as defined above. An exception to 

this general exclusion would be 

permitted when the appliance would be 

necessary to complete an ADL, such as 

the provision of a blender or other food 

processing device to a veteran with a 

diagnosed swallowing disorder who 

must have all food pureed in order to 

complete the ADL of eating. In contrast, 

appliances that are commonly related to 

eating but not necessary to complete the 

ADL of eating, such as stoves or 

microwaves, would not be provided. We 

further would clarify that the definition 

of ‘‘adaptive household item’’ would 

exclude any requirement that VA 

furnish such items in such a manner as 

to relieve any other person or entity of 

a contractual obligation to furnish these 

items to the veteran. This is because 

such items would not be needed as they 

have otherwise been provided for. For 

example, a veteran may have contracted 

with a residence or residential setting to 

furnish adaptive household items to the 

veteran. 

‘‘Adaptive recreation equipment’’ 

would be defined as an item that is 

designed to compensate for, or that by 

design compensates for, loss of physical, 

sensory, or cognitive function and is 

necessary for the veteran to actively and 

regularly participate in a sport, 

recreation, or leisure activity to achieve 

the veteran’s rehabilitation goals. The 

additional requirement that these items 

be deemed necessary for active and 

regular participation in an activity to 

achieve the veteran’s rehabilitation 

goals, which would be documented in 

the veteran’s medical record, ensures 

that items are only provided when their 

regular use is specifically tied to a 

medical goal, and not provided merely 

to support a veteran’s participation in 

an activity only for personal enjoyment. 

Examples of such equipment VA could 

provide to veterans include mono-skis 

and specially designed wheelchairs to 

play sports such as basketball. 

‘‘Cognitive device’’ would be defined 

as an item that compensates for a 

cognitive impairment and that is used to 

maintain or improve a veteran’s 

functional capabilities. Examples of 

such equipment VA could provide to 

veterans include tablets and smart 

phones, as well as associated 

technological equipment, applications, 

and/or software, that can assist a veteran 

in maintaining daily scheduling of 

important tasks or navigating their 

surroundings (e.g., global positioning 

system or GPS). 

‘‘Communication device’’ would be 

defined as an item that compensates for 

a communication deficiency and allows 

participation in daily communication 

activities. Examples of such equipment 

VA could provide to veterans include 

augmentation and alternative 

communication devices such as picture 

or symbol communication boards, or an 

electro larynx. 

‘‘Durable’’ would be defined to mean 

capable of, and intended for, repeat use. 

We believe this definition captures the 

common meaning and understanding of 

the term ‘‘durable.’’ 

‘‘Home exercise equipment’’ would be 

defined as an item used in a home or 

residential setting that compensates for 

a loss of physical, sensory, or cognitive 

function and is necessary for the veteran 

to actively and regularly participate in 

aerobic, fitness, strength, or flexibility 

activities to achieve the veteran’s 

rehabilitation goals. As with the 

definition of ‘‘adaptive recreation 

equipment,’’ the additional criteria in 

the definition that items are necessary 

for active and regular participation in an 

activity to achieve the veteran’s 

rehabilitation goals, which would be 

documented in the veteran’s medical 

record, ensures that items are only 

provided when their regular use is 

specifically tied to a medical goal, and 

not provided merely to support a 

veteran’s participation in an activity 

only for personal enjoyment. This 

criterion would also ensure that this 

equipment is only provided when there 

is no other means for the veteran to 

exercise to achieve the rehabilitation 

goal. Such ‘‘home exercise equipment’’ 

would only be provided for one 

location, the veteran’s primary 

residence, which is defined in this 

rulemaking (as discussed below) under 

proposed § 17.3210 as ‘‘the personal 

domicile or residential setting in which 

the veteran resides the majority of the 

year,’’ and this additional criterion 

would be stated in proposed § 17.3230 

as discussed later in this rulemaking. In 

identifying the veteran’s primary 

residence, we would typically rely upon 

the veteran’s record with VA, as well as 

the veteran’s declared residence. The 

additional criterion that such equipment 

would only be provided for one 

location, the primary residence, is 

current VA practice, and VA has 

authority to determine that it is 

reasonable pursuant to 38 U.S.C. 

1701(6)(F)(iii). In this case, VA has 

determined this criterion to be 

reasonable because it may not be cost 

effective to provide multiple sets of the 

same equipment for multiple locations. 

Because we will provide one set of 

equipment, we believe it is adequate to 

provide this equipment where it is used 

the most routinely and regularly, i.e., 

the veteran’s primary residence. While 

we generally would provide home 

exercise equipment to the veteran’s 

primary residence, there may be 

instances when it may be provided to a 

veteran’s non-primary residence. For 

example, if a veteran’s medical 

treatment or rehabilitation plan requires 

access to home exercise equipment and 

the veteran has access to a gym near his 

or her primary residence, but has 

another residence in a rural area in 

which the veteran does not have access 

to a gym, the equipment may be 

provided to the veteran at his or her 

non-primary residence based on a 

clinical determination that providing 

such equipment at the veteran’s nonprimary residence would be necessary 

as a direct and active component of the 

veteran’s medical treatment and 

rehabilitation. We further would state 

that prior to any installation of ‘‘home 

exercise equipment’’, the owner of the 

residence would agree to the 

installation. We also note that to the 

extent the equipment is portable, an 

individual would be free to move it to 

another location where the veteran may 

temporarily reside, such as another 

residence during an extended seasonal 

stay. Examples of such equipment VA 

could provide to veterans include an 

upper body ergometer and a functional 

electrical stimulation cycle. 

‘‘Home medical equipment’’ would be 

defined as movable and durable medical 

devices used in a home or residential 

setting to treat or support treatment of 

specific medical conditions and would 

include hospital beds, portable patient 

lifts (such as porch lifts or stair glides), 

portable ramps, ventilators, home 

dialysis equipment, and infusion, 

feeding, or wound therapy pumps. This 

definition is intended to encompass 

those medical devices typically found in 

a medical facility setting (e.g., hospital 

beds and infusion pumps), but that must 

be used in a home or residential setting 

for specific medical treatment (most 

typically, for continuation of treatment 

initially received in a medical facility 

setting). The definition of ‘‘home 

medical equipment’’ would specifically 

exclude household furniture or 

furnishings, improvements or structural 

alterations, or any household appliances 

for the same reasons as stated in the 

definition of ‘‘adaptive household 

item,’’ because such items could not 

reasonably be considered to be medical 

devices. For instance, a hospital bed 

could be provided as ‘‘home medical 

equipment,’’ whereas a common bed 

frame and mattress could not. As 

proposed in § 17.3230 (later in this 

rulemaking) ‘‘home medical equipment’’ 

would only be provided for one 

residential setting, the veteran’s primary 

residence, for the same reasons as stated 


ethrower on DSK3G9T082PROD with PROPOSALS
48022 Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 

for ‘‘home exercise equipment’’ above. 

In the instance that at-home installation 

or delivery is required and the veteran 

has more than one residence, the 

Department will deliver the equipment 

to the veteran’s primary residence. We 

note that to the extent the equipment is 

portable, an individual would be free to 

move it to another location where the 

veteran may temporarily reside, such as 

another residence during an extended 

seasonal stay. We will provide such 

equipment at the veteran’s primary 

residence, as the veteran is usually also 

receiving professional care or assistance 

from a caregiver who must be at the 

residence at specific times, and which 

would involve use of the provided 

‘‘home medical equipment.’’ While we 

generally would provide ‘‘home medical 

equipment’’ to the veteran’s primary 

residence, there may be instances when 

it may be provided to a veteran’s nonprimary residence, as is similar to the 

provision of ‘‘home exercise 

equipment.’’ For example, a veteran 

may be authorized for a stair glider; 

however, his or her primary residence 

may be a single floor residence. The 

veteran may have another residence that 

has more than one floor, and it may be 

clinically determined that the provision 

of the stair glider at the non-primary 

residence is necessary as an active and 

direct component of the veteran’s 

medical treatment or rehabilitation. We 

also would clarify that prior to any 

installation of ‘‘home medical 

equipment’’, the owner of the residence 

must agree to the installation of the 

equipment. We further would clarify 

that the definition of ‘‘home medical 

equipment’’ would exclude any 

requirement that VA will furnish such 

items in such a manner as to relieve any 

other person or entity of a contractual 

obligation to furnish these items or 

services to the veteran. This is because 

such items would not be needed as they 

have otherwise been provided for. For 

example, a veteran may have contracted 

with a residence or residential setting to 

furnish home medical equipment to the 

veteran. 

The definition of ‘‘home medical 

equipment’’ would also exclude 

‘‘medical alert devices,’’ which, as 

discussed later in this proposed rule, we 

would define as devices designed to 

summon general safety assistance for a 

veteran, e.g. a device worn by an 

individual to summon medical 

assistance in the event of a fall or other 

incident, or to provide a veteran’s 

general medical information to others, 

e.g., medical identification bracelets. 

While we currently provide both 

medical alert devices and medical 

identification bracelets, those would not 

be provided under these proposed rules 

as these items would not be an active 

and direct component of a veteran’s 

medical treatment or rehabilitation 

pursuant to proposed § 17.3230, 

described later in this rulemaking. 

Medical alert devices are passive and 

purely communicative devices, similar 

to cell phones, which are not used for 

specific medical treatment or 

rehabilitation and do not contribute 

directly to a veteran’s medical treatment 

or rehabilitation and would therefore 

not be provided under this authority. 

Their purpose is to communicate about 

an unforeseeable future event, and they 

do not actively communicate clinical or 

medical information about a veteran nor 

do they communicate information that 

contributes directly to a veteran’s 

medical treatment or rehabilitation 

pursuant to proposed § 17.3230, 

described later in this rulemaking. 

Although these may be used during an 

unforeseeable emergency to convey 

information about a veteran, they do not 

actively or directly medically treat or 

rehabilitate a veteran and any 

limitations the veteran may have, and 

thus are not ‘‘necessary’’ under this 

authority. Medical alert devices are also 

programmable to alert whomever the 

veteran chooses, and do not necessarily 

result in an alert or communication to 

a medical professional. These devices 

also do not necessarily result in an alert 

that the veteran is in need of medical 

assistance, as these devices can be used 

to alert an individual or entity of a 

general need for assistance. With the 

prevalence of, and access to, cell phones 

and other similar technologies that serve 

a similar function as medical alert 

devices in this context, we believe that 

most, if not all, veterans have access to 

the technology necessary to alert 

individuals and/or entities when 

medical assistance is needed. Thus, 

while these devices could be considered 

beneficial to a veteran’s treatment in 

limited circumstances, we do not 

consider the provision of these under 

this authority as reasonable. The 

definition of ‘‘medical alert devices’’ 

would not apply to alarms or other 

safety indicators on home medical 

equipment, such as an alarm to alert an 

individual if a ventilator is unplugged. 

Such alarms and indicators, therefore, 

could be provided as part of home 

medical equipment. These alarms and 

indicators that are part of medical 

equipment (such as a ventilator) do 

contribute directly to a veteran’s 

treatment as part of the total function of 

the piece of medical equipment, unlike 

devices that serve a purely 

communicative function. 

Similarly, medical identification 

bracelets would be excluded under this 

regulation as they are not a direct and 

active component of a veteran’s medical 

treatment or rehabilitation, and 

therefore are not reasonable and 

necessary under this authority. Medical 

identification bracelets are entirely 

passive, do not actively communicate 

any information about a veteran, and 

merely provide information about the 

existence of a condition of a veteran. 

Although these may be used during an 

unforeseeable emergency to convey 

information about a veteran, they do not 

actively or directly medically treat or 

rehabilitate a veteran and any 

limitations the veteran may have, and 

thus are not ‘‘necessary’’ under this 

authority. While these devices could be 

considered beneficial to a veteran’s 

treatment in limited circumstances, we 

do not consider the provision of these 

under this authority as reasonable for 

the same reasons stated above. We note 

that we currently provide these medical 

identification bracelets, however for the 

reasons discussed, they would be 

outside the scope of this authority and 

would not be authorized to be provided 

pursuant to these proposed regulations. 

We further note that after the 

publication of the final rulemaking, we 

would rescind VHA Directive 2009–007, 

Provision of Medical Identification (ID) 

Bracelets and Pendants, to ensure VA 

policy is consistent with the published 

final rules. 

Lastly, we clarify that although 

certain home medical equipment might 

need to be installed in a home to ensure 

its proper functioning, such as a 

portable ramp or a hospital bed, such 

equipment must not amount to an 

improvement or structural alteration to 

a veteran’s residence. Such 

improvements or alterations to homes 

are authorized by section 1717(a)(2) and 

38 CFR 17.3100 et seq., and are not 

within the scope of these proposed 

regulations, as stated in the table in 

proposed § 17.3200(b). This clarification 

related to installation would be 

established in proposed § 17.3230 as 

discussed later in this rulemaking. 

‘‘Home respiratory equipment’’ would 

be defined as an item used to provide 

oxygen therapy or to support or enhance 

respiratory function. We note that home 

respiratory equipment would be 

distinguished from home medical 

equipment because we would permit 

the provision of additional pieces of 

respiratory equipment as medically 

necessary outside of a single home or 

residential setting, such as additional 

portable oxygen tanks when a veteran 


ethrower on DSK3G9T082PROD with PROPOSALS
Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 48023 

might need to travel. Examples of such 

equipment VA would provide to 

veterans include compressed oxygen, 

oxygen concentrators, and continuous 

positive airway pressure machines. 

‘‘Household appliances’’ would be 

defined as equipment for use in the 

home for performance of domestic 

chores or other domestic tasks, 

including but not limited to a 

refrigerator, stove, washing machine, 

and vacuum cleaner. We believe this 

definition captures the common 

meaning and understanding of this 

term. 

‘‘Household furniture or furnishing’’ 

would be defined as an item commonly 

used to make a home habitable or 

otherwise used to ornament a home, 

including but not limited to tables, 

chairs, desks, lamps, cabinets, nonhospital beds, curtains, and carpet(s). 

We believe this definition captures the 

common meaning and understanding of 

this term. 

‘‘Implant’’ would be defined as any 

biological or non-biological material 

that is manufactured or processed to be 

placed into a surgically or naturally 

formed cavity on the human body; is 

covered with tissue, has the potential to 

be covered with tissue, or is 

permanently embedded in tissue; does 

not dissolve or dissipate within the 

body; and is not a living organ, 

embryonic tissue, blood, or blood 

product. VA provides implants as part 

of the prosthetics program, and this 

definition characterizes such implants 

consistently with VA’s current 

provision of implants, and to that extent 

would not reflect a change in the scope 

of benefits available to eligible veterans. 

‘‘Improvements or structural 

alterations’’ means a modification to a 

home or to an existing feature or fixture 

of a home, including repairs to or 

replacement of previously improved or 

altered features or fixtures. This term 

would be defined the same as it is 

defined in 38 CFR 17.3101 (i.e., a 

modification to a home or to an existing 

feature or fixture of a home, including 

repairs to or replacement of previously 

improved or altered features or fixtures). 

Such improvements or structural 

alterations are authorized by section 

1717(a)(2) and 38 CFR 17.3100 et seq., 

and are not within the scope of these 

proposed regulations, as stated in the 

table in proposed § 17.3200(b). 

‘‘Medical alert device’’ would mean 

an item designed to summon general 

safety assistance for a veteran, or that 

provides a veteran’s general medical 

information to others. This definition 

would not include alarms or other safety 

indicators for home medical equipment. 

As previously discussed, this definition 

is necessary because ‘‘medical alert 

device’’ would be excluded from the 

term ‘‘home medical equipment.’’ 

‘‘Mobility aid’’ would be defined as 

an item that compensates for a mobility 

impairment and that is used to maintain 

or improve a veteran’s functional 

capabilities to be mobile. Examples of 

such equipment VA would provide to 

veterans include manual and motorized 

wheelchairs, canes, walkers, and 

equipment to assist veterans with 

reaching for or grasping items. We 

would exclude a service or guide dog 

from this definition because the 

provision of certain benefits for service 

or guide dogs is not within the scope of 

these proposed regulations as stated in 

the table in proposed § 17.3200(b). VA 

has published regulations concerning 

benefits for service and guide dogs at 38 

CFR 17.148. 

‘‘Orthotic device’’ would be defined 

as an item fitted externally to the body 

that is used to support, align, prevent, 

or correct deformities or to improve the 

function of movable parts of the body. 

We believe this definition captures the 

common meaning and understanding of 

this term as well as its common 

meaning and use in the health care 

industry. Examples of such items VA 

would provide to veterans include leg 

braces, upper extremity splints and 

braces, and functional electrical 

stimulation devices such as Bioness® or 

WalkAide®. 

‘‘Primary residence’’ would be 

defined as the personal domicile or 

residential setting in which the veteran 

resides the majority of the year. We 

believe this definition captures the 

common meaning and understanding of 

this term. While a person may maintain 

more than one residence, they may only 

have one primary residence at a time. 

This would include any residential 

setting the veteran owns, rents, or in 

which the veteran otherwise resides. 

‘‘Prosthetic device’’ would be defined 

as an item that replaces a missing or 

defective body part. We believe this 

definition captures the common 

meaning and understanding of this term 

as well as its common meaning and use 

in the health care industry. Examples of 

such items VA would provide to 

veterans include artificial limbs and 

artificial eyes. We note that certain 

prosthetic devices may not have 

mechanical or other functionality, but 

nonetheless could be considered 

medically necessary and not merely 

cosmetic in nature. For instance, certain 

artificial hands may not have 

mechanical functions to grasp objects, 

but the use of such devices equalizes 

weight distribution in the arm and 

across the body. As another example, 

artificial eyes would not function to 

restore or improve sight, but would 

provide necessary shape to an eye 

socket and prevent objects from entering 

the eye socket. 

‘‘Replacement item’’ would be 

defined as an item that is similar or 

identical to an item provided under 

proposed § 17.3230(a), and that takes 

the place of such an item. We believe 

this definition captures the common 

meaning and understanding of this 

term. 

‘‘VA-authorized vendor’’ would be 

defined as a vendor that has been 

authorized by VA to provide items and 

services under § 17.3230. We believe 

this definition is self-explanatory. This 

definition would be relevant to the 

discussion later in this proposed rule 

regarding the furnishing of items and 

services in proposed § 17.3240. 

17.38. Medical Benefits Package and 

17.3220. Eligibility 

Proposed § 17.3220 would clarify 

veteran eligibility for prosthetic and 

rehabilitative items and services 

provided under sections 1701(6)(F) and 

1710(a). As explained previously in this 

rulemaking, VA is authorized under 

sections 1701(6)(F)(iii) and 1710(a) to 

provide those prosthetic and 

rehabilitative items and services that VA 

determines are medically necessary to 

assist a veteran to compensate for loss 

of mobility or loss of other functional 

abilities, where the veteran is otherwise 

receiving care or services under chapter 

17 of title 38 U.S.C. Section 

17.38(a)(1)(viii), in turn includes the 

provision of ‘‘durable medical 

equipment and prosthetic and orthotic 

devices’’ as part of VA’s ‘‘medical 

benefits package.’’ We would first revise 

§ 17.38(a)(1)(viii) to use the term 

‘‘prosthetic and rehabilitative items and 

services’’ as proposed in these 

regulations, and would cross reference 

this term with citations to the proposed 

regulations in this rulemaking so it is 

clear that such items and services under 

§ 17.38(a)(1)(viii) are provided in 

accordance with proposed §§ 17.3200 

through 17.3250. 

We would also revise § 17.38(b) to 

reflect that prosthetic and rehabilitative 

items and services authorized in 

§ 17.38(a)(1)(viii) are excluded from the 

‘‘promote, preserve, or restore’’ standard 

under § 17.38(b). As previously 

discussed in this rulemaking, the 

standard of ‘‘promote, preserve, or 

restore’’ under § 17.38(b) is not specific 

enough to distinguish when prosthetic 

and rehabilitative items should be 

provided because they are medically 

necessary, versus when an item or 

service would not be provided because 


ethrower on DSK3G9T082PROD with PROPOSALS
48024 Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 

it is only desired. Using a standard other 

than that of ‘‘promote, preserve, or 

restore’’ would also be consistent with 

the authorizing statutes, sections 

1701(6)(F) and 1710(a), requiring that 

VA provide those items and services 

that are necessary and reasonable. 

However, in a note to proposed 

§ 17.3230, we would state that the 

exclusions in § 17.38(c) apply to the 

provision of items and services pursuant 

to § 17.3230. 

Proposed § 17.3220 would then 

establish eligibility for prosthetic and 

rehabilitative items and services by 

requiring that veterans be enrolled in 

VA’s enrollment system under § 17.36 

or exempt from such enrollment under 

§ 17.37, and requiring that such veterans 

are otherwise receiving care under 

chapter 17 of title 38 U.S.C. These two 

eligibility criteria would be in proposed 

§ 17.3220(a)–(b), respectively. Proposed 

§ 17.3220(b) would further describe the 

concept of ‘‘otherwise receiving care’’ to 

include where a veteran is prescribed a 

prosthetic or rehabilitative item or 

service by a VA provider or an 

authorized non-Department provider. 

We believe that by receiving a 

prescription the veteran would be 

receiving care under chapter 17. 

17.3230. Authorized Items and Services 

Proposed § 17.3230(a) would state 

that VA would provide veterans who are 

eligible under § 17.3220 with items and 

services that would be listed in 

proposed § 17.3230(a)(1)–(15) as 

described below. Proposed § 17.3230(a) 

would further state that VA will provide 

items and services listed in proposed 

§ 17.3230(a)(1)–(15), if VA determines 

that the items or services serve as a 

direct and active component of the 

veteran’s medical treatment or 

rehabilitation, and do not merely 

support the comfort or convenience of 

the veteran. The statement in proposed 

§ 17.3230(a) that items and services 

need to be a direct and active 

component of the veteran’s medical 

treatment or rehabilitation and not 

merely for the comfort or convenience 

of the veteran is consistent with VA 

practice. As stated previously in this 

rulemaking, the more specific criteria 

related to medical necessity in proposed 

§ 17.3230(a) are needed because the 

‘‘promote, preserve, or restore’’ criteria 

in § 17.38(b) may be appropriate in 

terms of medical services generally, but 

are not specific enough to distinguish 

when prosthetic and rehabilitative items 

and services should be provided 

because they are medically necessary, 

versus when an item or service would 

not be provided because it is only 

desired. The items and services 

provided are intended to be limited to 

those that accommodate a veteran’s 

medical treatment or rehabilitation. This 

would also be consistent with the 

authorizing statutes, sections 1701(6)(F) 

and 1710(a), requiring that VA provide 

those items and services that are 

necessary and reasonable. Proposed 

§ 17.3230(a)(1) through (a)(15) would 

list the categories of items and services 

that have been and would continue to 

be provided by VA as prosthetic or 

rehabilitative items or services. 

Definitions of the items and services to 

be provided in proposed § 17.3230(a)(1) 

through (a)(15), as well as examples of 

such items, are provided in the 

discussion of proposed § 17.3210, and 

we do not reiterate that information 

generally below. We propose, however, 

additional criteria that must be met in 

proposed § 17.3230(a)(5) and (a)(6) for 

‘‘home exercise equipment’’ and ‘‘home 

medical equipment,’’ respectively. We 

reiterate from the discussion of the 

proposed definitions earlier in this 

rulemaking that proposed 

§ 17.3230(a)(5) and (a)(6) would 

establish a restriction that both ‘‘home 

exercise equipment’’ and ‘‘home 

medical equipment’’ would only be 

provided for one location, generally the 

veteran’s primary residence. This 

additional criterion that such equipment 

would only be provided for one location 

is current VA practice and is reasonable 

because we believe it is adequate in 

most cases to provide this equipment at 

the veteran’s primary residence, a term 

which is previously defined and 

discussed in this rulemaking. Relatedly, 

it is current VA practice to provide one 

piece of equipment; therefore, we 

believe it is also reasonable to provide 

that equipment to the veteran’s primary 

residence, as that is the personal 

domicile or residential setting in which 

the veteran resides the majority of the 

year, and is where we believe the 

equipment will likely be used most 

routinely and regularly. If the veteran 

has more than one residence, the 

Department will provide the equipment 

to the veteran’s primary residence. We 

note that to the extent the equipment is 

portable, an individual would be free to 

move it to another location where the 

veteran may temporarily reside, such as 

another residence during an extended 

seasonal stay. As indicated previously, 

there may be limited instances when 

‘‘home exercise equipment’’ or ‘‘home 

medical equipment’’ may be provided at 

a non-primary residence based on a 

clinical determination. Prior to any 

installation of such equipment in the 

residence, the owner of the residence 

would have to agree to the installation 

of the equipment. Additionally, 

proposed § 17.3230(a)(6) would 

establish that home medical equipment 

must not require installation that 

amounts to a home improvement or 

structural alteration to a veteran’s 

primary residence. Such improvements 

and alterations to homes are authorized 

by 38 U.S.C. 1717(a)(2) and controlled 

by other implementing regulations, as 

referenced in the table in proposed 

§ 17.3200(b). Lastly, we would require 

an additional restriction in proposed 

§ 17.3230(a)(2) and (a)(5) that ‘‘adaptive 

recreation equipment’’ and ‘‘home 

exercise equipment’’ be provided when 

such equipment would achieve the 

veteran’s rehabilitation goals as 

documented in the veteran’s medical 

record. This is because these types of 

equipment are generally provided to 

achieve specific rehabilitation goals, 

while the other items and services 

provided under this section are not. 

Proposed § 17.3230(a)(12) would 

authorize the repair of any item 

provided under proposed § 17.3230(a), 

unless cost or clinical reasons favor 

replacing the item. Even if not initially 

prescribed by VA, an item under 

proposed § 17.3230(a) could be repaired 

if the VA provider or authorized nonDepartment provider determines that 

the item is still medically necessary and 

writes an authorized prescription for the 

veteran. This is consistent with current 

VA practice, and is reasonable to ensure 

that veterans have necessary and 

properly functioning items. 

Proposed § 17.3230(a)(13) would 

authorize the replacement of items 

provided under proposed § 17.3230 if 

the original items have been damaged, 

destroyed, lost, or stolen, or if 

replacement is clinically indicated. 

Proposed paragraph (a)(13) would 

establish that if items are serviceable 

and still meet the veteran’s need, VA 

will not replace such items for the sole 

purpose of obtaining a newer model of 

the same or similar item. Proposed 

§ 17.3230(a)(13) sets forth a reasonable 

restriction that would allow VA to 

provide replacement items as clinically 

indicated, for the benefit of all veterans 

to whom VA must provide these items 

and services. 

We note that generally we would 

provide veterans with one item or 

service under this proposed rule. 

However, there may be instances when 

we would provide a veteran with a 

spare item. The provision of spare items 

would be authorized if it is clinically 

determined that a veteran would 

immediately require another identical or 

similar item. For example, the provision 

of a spare item may be clinically 

determined to be immediately required 


ethrower on DSK3G9T082PROD with PROPOSALS
Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 48025 

if an item provided under the proposed 

regulations were to fail or require 

rotation (e.g., routine cleaning) as a 

component of proper use. VA may also 

provide an identical or similar item in 

the event of a failure of an item 

provided under these regulations if it is 

determined that it would otherwise be 

detrimental to the veteran’s medical 

treatment or rehabilitation to not 

provide a spare item. This is current VA 

practice and is reasonable to ensure that 

veterans would have access to items that 

are necessary on a continuous basis if 

the veteran could not wait for repair or 

replacement, such as a spare wheelchair 

or spare prosthetic limb. VA’s provision 

of items as explained above attempts to 

ensure that veterans have working, 

usable equipment when needed. We 

discuss the provision of spare items in 

a note at the end of proposed § 17.3230. 

Additionally, VA’s reimbursement of 

emergency care under 38 U.S.C. 1725 

and 1728 ensures that VA may 

reimburse some veterans for needed 

repairs to equipment if such repairs 

cannot wait for prior VA authorization. 

For these reasons, and to be consistent 

with section 1728, we propose removing 

§ 17.122, which authorizes the repair of 

prosthetic and similar items without 

prior authorization from VA if the 

expenses were incurred in the care of an 

adjudicated service-connected 

disability. Section 17.122 is not needed, 

as sections 1725 and 1728 would 

provide for VA payment of repairs 

without prior VA authorization as 

described above, and the other VA 

regulations that currently implement 

these sections (sections 17.120 et seq. 

and 17.1000 et seq.) are sufficient to 

authorize payment. Further, we find no 

basis for treating reimbursement of the 

expenses of prosthetic repairs 

differently from the expenses of other 

types of ‘‘emergency care’’. In addition 

to removing § 17.122, we propose 

deleting from § 17.120 the following 

language, ‘‘(except prosthetic 

appliances, similar devices, and 

repairs),’’ because we do not see a need 

to treat the provision of these 

appliances, devices and repairs any 

differently from other emergency care 

provided under this section. Removing 

§ 17.122 is needed as described above, 

and would clarify that the access to 

prosthetic repair services without prior 

authorization in medical emergencies 

for veterans would be authorized under 

sections 1725 and 1728 and their 

implementing regulations. 

Proposed § 17.3230(a)(14) would 

authorize the provision of specialized 

clothing made necessary by the wearing 

of a prosthetic device. The provision of 

specialized clothing made necessary by 

the wearing of a prosthetic device is 

specifically identified as a medical 

service under section 1701(6)(F)(ii), and 

we would therefore include it in this 

proposed rule. We contrast this with the 

clothing allowance provided under 

§ 3.810 and authorized by 38 U.S.C. 

1162, which is intended to provide a 

clothing allowance only to veterans 

with certain service-connected 

disabilities, apart from the provision of 

medical services under section 1710. 

See 118 Cong. Rec. S. 20748, 20751 

(1972) (legislative history related to the 

bill that would enact section 1162, 

explaining that a new clothing 

allowance would assist veterans to 

purchase non-specialized, regular 

clothing that may experience wear and 

tear due to use of a wheelchair or 

prosthetic device, separate from the 

benefit for specialized clothing due to 

the wearing of a prosthetic device that 

VA provided as a medical service). 

Proposed § 17.3230(a)(15) would 

authorize training with and fitting of 

items as considered necessary. Training 

and fitting of prosthetic appliances is 

required by 38 U.S.C. 1714(a), is current 

VA practice, and is reasonable to 

ensure, to the extent practicable, that 

veterans safely operate items and that 

items are properly maintained to 

promote their longevity. We would 

additionally remove current § 17.153 

related to training and fitting of 

prosthetic and similar items, as it would 

be duplicative of proposed 

§ 17.3230(a)(15). 

Proposed § 17.3230(b) would establish 

that unless items provided under 

proposed § 17.3230(a) are loaned to a 

veteran, based on a clinical 

determination, such items become the 

property of the veteran once the veteran 

takes possession of those items. This 

would ensure that veterans have full use 

of, and responsibility for, items 

provided by VA, and will use them in 

the manner in which they are 

prescribed. If items will be loaned, a 

written agreement (which would 

include roles and responsibilities for the 

duration of the loan) with the veteran 

would be entered into to ensure that it 

is clear the veteran does not own the 

item, and that the veteran fully 

understands and agrees to the terms of 

the loan. 

17.3240. Furnishing Authorized Items 

and Services 

Proposed § 17.3240(a) would establish 

that VA will determine whether VA or 

a VA-authorized vendor will furnish 

authorized items and services under 

§ 17.3230 to eligible veterans. When VA 

has the capacity or inventory, VA 

directly provides items and services to 

veterans. However, VA also may use, on 

a case-by case basis, VA-authorized 

vendors to provide greater access, lower 

cost, and/or a wider range of items and 

services. We would clarify in regulation 

that this administrative business 

decision is made solely by VA to 

eliminate any possible confusion as to 

whether a veteran has a right to request 

items or services generally, or to request 

specific items or services from a 

provider other than VA, and to clarify 

for the benefit of VA-authorized vendors 

that VA retains this discretion as part of 

our duty to administer this program in 

a legally sufficient, fiscally responsible 

manner. 

Proposed § 17.3240(b) would establish 

that, except for emergency treatment 

reimbursable under 38 CFR 17.120 et. 

seq or 17.1000 et seq., prior 

authorization is required from VA for 

VA-authorized vendors to obtain 

reimbursement for furnishing items or 

services under § 17.3230 to veterans. 

Prior authorization may be obtained by 

contacting VA. Paragraph (b) will help 

ensure that the highest quality and most 

clinically appropriate device is 

provided, as prescribed by VA 

providers, and that items or services are 

not subject to potential alterations or 

substitutions by VA-authorized vendors 

without VA oversight. 

17.3250. Veteran Responsibilities 

Proposed § 17.3250 would establish 

responsibilities of veterans who are 

provided prosthetic and rehabilitative 

items and services. Proposed 

§ 17.3250(a) would establish that 

veterans must use items provided under 

proposed § 17.3230(a) in the manner for 

which they are prescribed, and 

consistent with the manufacturer’s 

instructions and any training provided. 

This would ensure, to the extent 

practicable, veteran safety in using the 

item as well as the longevity of the item. 

Proposed § 17.3250(b) would establish 

that, except for emergency care under 38 

CFR 17.120 et. seq. or 38 CFR 17.1000 

et seq., veterans must obtain prior 

authorization from VA if they want VA 

to reimburse a VA-authorized vendor for 

such items and services provided under 

§ 17.3230. This would reinforce general 

VA oversight requirements already 

proposed in these regulations to ensure 

the highest quality and most appropriate 

item or service is provided, and would 

distinctly provide notice to veterans and 

vendors that VA will not be responsible 

for the cost of items and services 

provided to veterans who are not 

preauthorized by VA or otherwise 

covered as emergency care. 


ethrower on DSK3G9T082PROD with PROPOSALS
48026 Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 

Rescission of Use of Prosthetic Service 

Card and Related VA Policy 

We note that after the publication of 

this rulemaking is final, we would 

rescind, in their entirety, VHA 

Handbooks 1173.06, 1173.1. 1173.10, 

1173.2, 1173.3, VA Forms 10–2501 and 

10–2520, and VA Form Letter 10–55; 

and develop new VHA policy to ensure 

VA’s provision of prosthetics is 

consistent with the published final 

rules. Any references to the prosthetic 

service card would be excluded from 

future VHA policies and forms 

implementing these rules as further 

explained below. 

As part of this plan, we specifically 

note that future VA policy would not 

include portions of existing VA policy 

that reference ‘‘prosthetic service cards’’ 

and establish limits on reimbursement 

or payment amounts for emergency 

repairs of prosthetic items through the 

use of a ‘‘prosthetic service card’’ to 

obtain repairs from VA-authorized 

vendors without prior authorization 

from VA. A ‘‘prosthetic service card’’ is 

a piece of paper (VA Form 10–2501) that 

VA has issued to veterans in the past for 

the purpose of providing a third party 

vendor with notice that VA would 

reimburse such vendor for the provision 

of certain repairs, up to certain amounts. 

VA Form 2520 in the past has been the 

invoice used by vendors to submit to 

VA requests for payment for repairs 

performed under the prosthetic service 

card. This prosthetic service card was 

intended to allow third party vendors to 

forego the normal process of contacting 

VA first for authorization, and instead 

submit an invoice to VA for the cost of 

repairs after they were completed. The 

card was intended to be used if it was 

not feasible for a VA-authorized vendor 

to contact VA for authorization and the 

repair was immediately necessary, such 

as when a repair was needed after VA 

office hours. However, these prosthetic 

service cards have not been widely or 

consistently used by veterans or vendors 

for the purpose of obtaining VA 

approval of emergency repairs. First, 

veterans in many instances have lost 

their prosthetic service cards or have 

not carried the card on their person to 

be able to present to third party vendors. 

Second, even when presented with the 

card, many third party vendors have 

nonetheless contacted VA for 

authorization prior to providing repairs. 

The card itself is merely a piece of paper 

that provides notice that VA will 

reimburse a vendor for certain repairs 

up to certain amounts—it is not a prepaid credit card or other means of 

providing immediate payment to a VAauthorized vendor (despite the 

description of the card as a ‘‘debit’’ card 

in VHA Handbook 1173.1). Even when 

the card has been used, third party 

vendors have still had to submit an 

invoice and other documentation to VA 

to get reimbursed for the repair. 

Therefore, use of the prosthetic service 

card has not typically been any less 

burdensome for third party vendors to 

receive payment from VA than if such 

vendors had contacted VA for 

authorization prior to the repair. The 

intent of the card was to decrease the 

burden for both veterans and third party 

vendors, but it has not functioned 

consistently in this manner. 

Additionally, the card does not 

appropriately reference sections 1725 

and 1728 as the authorities to provide 

repairs without prior authorization, 

which creates problems where the card 

either does not recognize the applicable 

criteria in sections 1725 and 1728 (for 

instance, related to eligibility under 

sections 1725 and 1728), or establishes 

criteria that may be inconsistent with 

1725 and 1728 (for instance, the 

prosthetic service card contains a space 

for VA to set a limit on any repair costs). 

Currently, references to the prosthetic 

service card (PSC) are located in 

paragraphs 3.tt, 8.a, 9.i, 9.h, 9.m of VHA 

Handbook 1173.1; paragraphs 4.a.(2)– 

a.(7), 4.b., 4.c.(1)–c.(7), and 6.c.(4) of 

VHA Handbook 1173.2; paragraphs 

10.a.(1) and 10.c of VHA Handbook 

1173.3; paragraphs 7.a. and 7.e. of VHA 

Handbook 1173.06; and paragraphs 

3.i.(9) and 4.c. in VHA Handbook 

1173.10. Paragraphs 3.tt and 9.h in VHA 

Handbook 1173.1 both define ‘‘VA Form 

10–2501, Prosthetic Service Card 

(PSC).’’ Paragraph 8.a. in VHA 

Handbook 1173.1 references requests for 

payment of PSC (i.e. prosthetic service 

card) repairs. Paragraph 9.i in VHA 

Handbook 1173.1 defines ‘‘VA Form 10– 

2520, Prosthetic Service Card Invoice’’, 

and paragraph 9.m. defines ‘‘VA Form 

Letter 10–55, Authority to Exceed 

Repair Costs of Prosthetic Appliances’’ 

as a letter of authorization forwarded to 

a provider of PSC (i.e. prosthetic service 

card) repairs when the cost of that repair 

exceeds the limit authorized by the PSC 

(i.e. prosthetic service card). In VHA 

Handbook 1173.2, paragraph 4.a.(2) 

requires that repairs be obtained by use 

of the prosthetic service card; 

paragraphs 4.a.(3)–a.(7) detail 

requirements that PSCs be provided by 

all prosthetic programs at field facilities, 

authority for equipment repairs and 

services using prosthetic service cards, 

monetary limits for prosthetic service 

cards, responsibility for payment of 

prosthetic service card invoices, and 

payment for repairs made without prior 

approval; paragraph 4.b. sets forth VA, 

vendor, and veteran responsibilities 

related to the administration of 

prosthetic service cards; paragraphs 

4.c.(1)–c.(7) include prosthetic service 

card benefits limits, and the processes 

for prosthetic service card preparation 

and issuance, prosthetic service card 

invoice preparation and issues, repairs 

authorization, and prosthetic service 

card revocation or cancellation; and 

paragraph 6.c.(4) requires repairs of 

artificial limbs, braces, wheelchairs, and 

other appliances on presentation by the 

veteran of a valid prosthetic service 

card. 

Paragraph 10.a.(1) of VHA Handbook 

1173.3 states that repairs may be 

obtained through commercial sources 

using VA Form 10–2501, and paragraph 

10.c. of VHA Handbook 1173.3 

encourages the use of prosthetic service 

cards for those veterans eligible for a 

prosthetic service card. 

Paragraphs 7.a. and 7.e. of VHA 

Handbook 1173.06 authorize the use of 

prosthetic service cards for repairs to 

wheelchairs. Paragraphs 3.i.(9) and 4.c. 

in VHA Handbook 1173.10 authorize 

the use of prosthetic service cards for 

repairs to orthotic devices. 

Lastly, VA Form 10–2501, VA Form 

10–2520, and VA Form Letter 10–55 

also reference prosthetic service cards. 

Currently, VA Form 10–2520 is an 

approved information collection under 

OMB Control Number 2900–0188, 

which is set to expire on October 31, 

2017. On August 22, 2017, we issued a 

Federal Register (FR) Notice informing 

the public of the opportunity to 

comment on the proposed renewal of 

that information collection. 82 FR 

39951. While we are requesting renewal 

of that collection, we now propose to 

eliminate VA Form 10–2520 under that 

existing collection for the reasons 

explained above as part of this proposed 

rule. Public comments on the 

discontinuance of VA Form 10–2520 

should be submitted as part of this 

rulemaking for consideration by VA. 

While related, VA Form 10–2015 and 

VA Form Letter 10–55 are not 

information collections, did not require 

OMB approval prior to issuance, and 

thus are not part of that Federal Register 

Notice. 

As previously stated, to ensure 

consistency with the published final 

regulations, we would rescind all 

relevant and applicable handbooks, and 

develop a new VHA policy document or 

documents. Any references to prosthetic 

service cards in existing policies would 

be excluded from that future policy 

document or documents for the reasons 

mentioned above. We would also 

discontinue the use of the related forms 


ethrower on DSK3G9T082PROD with PROPOSALS
Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 48027 

and letters previously identified in this 

section. As part of this rulemaking, we 

welcome any public comments on these 

efforts as they relate to this rulemaking. 

Although we would rescind the 

prosthetic service card and the policies 

and forms governing its use, there 

would remain, as explained previously, 

statutory and regulatory authority (38 

U.S.C. 1725 and 1728, 38 CFR 17.120 et 

seq. and 17.1000 et seq.) to reimburse 

some vendors or veterans for the cost of 

some emergency, unauthorized repairs. 

VA could also obviate the need for 

veterans to obtain emergency repairs 

from vendors by providing spares for 

prosthetic and rehabilitative items 

under § 17.3230, as clinically 

appropriate. 

Effect of Rulemaking 

The Code of Federal Regulations, as 

proposed to be revised by this proposed 

rulemaking, would represent the 

exclusive legal authority on this subject. 

No contrary guidance or procedures 

would be authorized. All VA guidance 

would be read to conform with this 

proposed rulemaking if possible or, if 

not possible, such guidance would be 

superseded by this rulemaking. 

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 would 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. 

Therefore, pursuant to 5 U.S.C. 605(b), 

these amendments would be exempt 

from the initial and final regulatory 

flexibility analysis requirements of 5 

U.S.C. 603 and 604. 

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. Executive Order 

12866 (Regulatory Planning and 

Review) defines a ‘‘significant 

regulatory action,’’ requiring review by 

the Office of Management and Budget 

(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 

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.’’ 

The economic, interagency, 

budgetary, legal, and policy 

implications of this regulatory action 

have been examined, and it has been 

determined not to be a significant 

regulatory action under Executive Order 

12866. 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://www1.va.gov/orpm/, by 

following the link for ‘‘VA Regulations 

Published.’’ 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This proposed rule would 

have no such effect on State, local, and 

tribal governments, or on the private 

sector. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance numbers and titles for the 

programs affected by this document are 

64.009, Veterans Medical Care Benefits; 

64.013, Veterans Prosthetic Appliances. 

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, 

approved this document on October 11, 

2017, for publication. 

List of Subjects in 38 CFR Part 17 

Administrative practice and 

procedure, Government contracts, 

Health care, Health facilities, Health 

professions, Medical devices, Veterans. 

Dated: October 11, 2017. 

Janet Coleman, 

Chief, Office of 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 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

specific sections. 

■ 2. Amend § 17.38 by revising 

paragraph (a)(1)(viii) and revising 

paragraph (b). The revisions read as 

follows: 

§ 17.38. Medical Benefits Package. 

(a) * * * 

(1) * * * 

(viii) Prosthetic and rehabilitative 

items and services as authorized under 

§§ 17.3200–.3250, and eyeglasses and 

hearing aids as authorized under 

§ 17.149. 

* * * * * 

(b) Provision of the ‘‘medical benefits 

package’’. Care referred to in the 

‘‘medical benefits package’’ (except for 

prosthetics and rehabilitative items and 

services authorized in paragraph 

(a)(1)(viii) of this section) will be 

provided to individuals only if it is 

determined by appropriate healthcare 

professionals that the care is needed to 

promote, preserve, or restore the health 

of the individual and is in accord with 

generally accepted standards of medical 

practice. 

* * * * * 

§ 17.120 [Amended]. 

■ 3. Amend the introductory text of 

§ 17.120 by removing ‘‘(except 

prosthetic appliances, similar devices, 

and repairs)’’. 

§ 17.122 [Removed]. 

■ 4. Remove § 17.122. 

■ 5. Revise the undesignated center 

heading that precedes § 17.148 to read 

as follows: 


ethrower on DSK3G9T082PROD with PROPOSALS
48028 Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 

Sensory and Other Rehabilitative Aids 

§§ 17.150 [Removed and reserved] 

§§ 17.153 [Removed and reserved] 

■ 6. Remove and reserve §§ 17.150 and 

17.153. 

■ 7. Add an undesignated center 

heading and §§ 17.3200 through 

17.3250, to read as follows: 

Prosthetic and Rehabilitative Items And 

Services 

§ 17.3200 Purpose and scope. 

(a) Purpose. The purpose of 

§§ 17.3200 through 17.3250 is to 

establish eligibility and other criteria for 

the provision to veterans of the 

prosthetic and rehabilitative items and 

services, listed in § 17.3230, authorized 

as medical services under 38 U.S.C. 

1701(6)(F) and 38 U.S.C. 1710(a). 

(b) Scope. Sections 17.3200 through 

17.3250 apply only to items and 

services listed in § 17.3230(a) and 

authorized as medical services under 38 

U.S.C. 1701(6)(F) and 38 U.S.C. 1710(a). 

The provision of the items or services 

and payments in the table below are 

authorized in whole or in part by 

separate statutes and controlled by other 

implementing regulations: 

Item or service Statute Regulation(s) 

Clothing allowance ............................................................ 38 U.S.C. 1162 ............................................................... 38 CFR 3.810. 

Service and guide dog benefits ........................................ 38 U.S.C. 1714(b) & (c) .................................................. 38 CFR 17.148. 

Sensori-neural aids ........................................................... 38 U.S.C. 1707(b) ........................................................... 38 CFR 17.149. 

Patient lifts and other rehabilitative devices ..................... 38 U.S.C. 1717(b) ........................................................... 38 CFR 17.151. 

Devices for deaf veterans ................................................. 38 U.S.C. 1717(c) ........................................................... 38 CFR 17.152. 

Equipment for blind veterans ............................................ 38 U.S.C. 1714(b) ........................................................... 38 CFR 17.154. 

Automobile adaptive equipment ....................................... 38 U.S.C. 3901 et seq. ................................................... 38 CFR 17.155 et seq. 

Home improvements and structural alterations ................ 38 U.S.C. 1717(a)(2) ....................................................... 38 CFR 17.3100 et seq. 

(Authority: 38 U.S.C. 501, 1162, 1701, 1707, 

1710, 1714, 1717, 3901) 

§ 17.3210 Definitions. 

For the purposes of §§ 17.3200 

through 17.3250: 

Activities of daily living (ADLs) means 

specific personal care activities that are 

required for basic daily maintenance 

and sustenance, to include eating, 

toileting, bathing, grooming, dressing 

and undressing, and mobility. 

Adaptive household item means a 

durable household item that has been 

adapted to compensate for, or that by 

design compensates for, loss of physical, 

sensory, or cognitive function and is 

necessary to complete one or more 

ADLs in the home or other residential 

setting. Adaptive household items 

include but are not limited to adaptive 

eating utensils, shower stools or chairs, 

hooks to assist in buttoning clothing, or 

shoe horns. This definition does not 

include household furniture or 

furnishings, improvements or structural 

alterations, or household appliances, 

unless a household appliance is 

necessary to complete an ADL in the 

home or other residential setting. VA 

will not furnish such items or services 

in such a manner as to relieve any other 

person or entity of a contractual 

obligation to furnish these items or 

services to the veteran. 

Adaptive recreation equipment means 

an item that is designed to compensate 

for, or that by design compensates for, 

loss of physical, sensory, or cognitive 

function and is necessary for the veteran 

to actively and regularly participate in 

a sport, recreation, or leisure activity to 

achieve the veteran’s rehabilitation 

goals as documented in the veteran’s 

medical record. 

Cognitive device means an item that 

compensates for a cognitive impairment 

and that is used to maintain or improve 

a veteran’s functional capabilities, 

including but not limited to 

technological equipment such as tablets 

and smart phones, and associated 

technological equipment, applications 

or software that can assist a veteran in 

maintaining daily scheduling of 

important tasks or navigating their 

surroundings (e.g., global positioning 

system, or GPS) . 

Communication device means an item 

that compensates for a communication 

deficiency and allows participation in 

daily communication activities, 

including but not limited to picture or 

symbol communication boards and an 

electro larynx. 

Durable means capable of, and 

intended for, repeat use. 

Home exercise equipment means an 

item used in a home or residential 

setting that compensates for a loss of 

physical, sensory, or cognitive function 

and that is necessary for the veteran to 

actively and regularly participate in 

aerobic, fitness, strength, or flexibility 

activities to achieve the veteran’s 

rehabilitation goals as documented in 

the veteran’s medical record, when 

there is no other means for the veteran 

to exercise to achieve the veteran’s 

rehabilitation goals. Such equipment 

includes but is not limited to an upper 

body ergometer and a functional 

electrical stimulation cycle. 

Home medical equipment means an 

item that is a movable and durable 

medical device that is used in a home 

or residential setting to treat or support 

treatment of specific medical 

conditions. Such equipment includes 

but is not limited to hospital beds, 

portable patient lifts, portable ramps, 

ventilators, home dialysis equipment, 

and infusion, feeding, or wound therapy 

pumps. This definition does not include 

household furniture or furnishings, 

improvements or structural alterations, 

household appliances, or medical alert 

devices. VA will not furnish home 

medical equipment in such a manner as 

to relieve any other person or entity of 

a contractual obligation to furnish these 

items or services to the veteran. 

Home respiratory equipment means 

an item used to provide oxygen therapy 

or to support or enhance respiratory 

function, including but not limited to 

compressed oxygen, oxygen 

concentrators, and continuous positive 

airway pressure machines. 

Household appliance means an item 

used in the home for performance of 

domestic chores or other domestic tasks, 

including but not limited to a 

refrigerator, stove, washing machine, 

and vacuum cleaner. 

Household furniture or furnishing 

means an item commonly used to make 

a home habitable or otherwise used to 

ornament a home, including but not 

limited to tables, chairs, desks, lamps, 

cabinets, non-hospital beds, curtains, 

and carpet(s). 

Implant means any biological or nonbiological material that: 

(1) Is manufactured or processed to be 

placed into a surgically or naturally 

formed cavity on the human body; 

(2) Is covered with tissue, has the 

potential to be covered with tissue, or is 

permanently embedded in tissue; 

(3) Does not dissolve or dissipate 

within the body; and 

(4) Is not a living organ, embryonic 

tissue, blood, or blood product. 


ethrower on DSK3G9T082PROD with PROPOSALS
Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 48029 

Improvements or structural 

alterations means a modification to a 

home or to an existing feature or fixture 

of a home, including repairs to or 

replacement of previously improved or 

altered features or fixtures. 

Medical alert device means an item 

designed to summon general safety 

assistance for a veteran, or provides a 

veteran’s general medical information to 

others. This definition does not include 

alarms or other safety indicators for 

home medical equipment. 

Mobility aid means an item that 

compensates for a mobility impairment 

and that is used to maintain or improve 

a veteran’s functional capabilities to be 

mobile. Mobility aids include but are 

not limited to manual and motorized 

wheelchairs, canes, walkers, and 

equipment to assist a veteran to reach 

for or grasp items This definition does 

not include a service or guide dog. 

Orthotic device means an item fitted 

externally to the body that is used to 

support, align, prevent, or correct 

deformities or to improve the function 

of movable parts of the body. Orthotic 

devices include but are not limited to 

leg braces, upper extremity splints and 

braces, and functional stimulation 

devices. 

Primary residence means the personal 

domicile or residential setting in which 

the veteran resides the majority of the 

year. 

Prosthetic device means an item that 

replaces a missing or defective body 

part. Prosthetic devices include but are 

not limited to artificial limbs and 

artificial eyes. 

Replacement item means an item that 

is similar or identical to an item 

provided under § 17.3230(a), and that 

takes the place of such an item. 

VA-authorized vendor means a 

vendor that has been authorized by VA 

to provide items and services under 

§ 17.3230. 

(Authority: 38 U.S.C. 501, 1701, 1710) 

§ 17.3220 Eligibility. 

A veteran is eligible to receive items 

and services described in § 17.3230 if: 

(a) The veteran is enrolled under 

§ 17.36 or exempt from enrollment 

under § 17.37; and 

(b) The veteran is otherwise receiving 

care or services under chapter 17 of title 

38 U.S.C. If a VA provider or an 

authorized non-Department provider 

prescribes an item or service for the 

veteran, the veteran is considered to 

otherwise be receiving care or services 

under chapter 17 of title 38 U.S.C. 

(Authority: 38 U.S.C. 501, 1701(6)(F), 1710) 

§ 17.3230 Authorized items and services. 

(a) VA will provide veterans eligible 

under § 17.3220 with the following 

items and services, if VA determines 

that such items and services serve as a 

direct and active component of the 

veteran’s medical treatment and 

rehabilitation and do not merely 

support the comfort or convenience of 

the veteran: 

(1) Adaptive household items. 

(2) Adaptive recreation equipment, 

when such equipment would achieve 

the veteran’s rehabilitation goals as 

documented in the veteran’s medical 

record. 

(3) Cognitive devices. 

(4) Communication devices. 

(5) Home exercise equipment, where 

such equipment will only be provided 

for one location, the veteran’s primary 

residence, unless it is clinically 

determined that the equipment should 

be provided at the veteran’s nonprimary residence instead of the 

veteran’s primary residence. Prior to any 

installation of home exercise 

equipment, the owner of the residence 

must agree to the installation. Such 

equipment will only be provided to 

achieve the veteran’s rehabilitation 

goals as documented in the veteran’s 

medical record. 

(6) Home medical equipment, and if 

required, installation that does not 

amount to an improvement or structural 

alteration to a veteran’s residence. Such 

equipment will only be provided for one 

location, the veteran’s primary 

residence, unless it is clinically 

determined that the equipment should 

be provided at the veteran’s nonprimary residence instead of the 

veteran’s primary residence. Prior to any 

installation of home medical equipment, 

the owner of the residence must agree 

to the installation. 

(7) Home respiratory equipment. 

(8) Implants. 

(9) Mobility aids. 

(10) Orthotic devices. 

(11) Prosthetic devices. 

(12) Repairs to items provided under 

paragraph (a) of this section, even if the 

item was not initially prescribed by VA, 

but VA determines the repair to be 

necessary, unless VA determines to 

replace the item for cost or clinical 

reasons. 

(13) Replacement items, if items 

provided under this section have been 

damaged, destroyed, lost, or stolen, or if 

replacement is clinically indicated, 

subject to the following: Items that are 

serviceable, and that still meet the 

veteran’s need, will not be replaced for 

the sole purpose of obtaining a newer 

model of the same or similar item. 

(14) Specialized clothing made 

necessary by the wearing of a prosthetic 

device; and 

(15) Training with and fitting of 

prescribed items as considered 

necessary. 

(b) Unless an item provided under 

§ 17.3230(a) is loaned to the veteran 

based on a clinical determination that a 

loan is more beneficial for the veteran, 

such items become the property of the 

veteran once the veteran takes 

possession of those items. If the 

determination is that the item will be 

loaned to a veteran, the veteran must 

agree to the terms of the loan in order 

to receive the item. 

Note to Section § 17.3230: Even 

though the items and services listed in 

this provision are included in the 

medical benefits package, this section 

governs determinations of need for them 

and not 38 CFR 17.38(b). The exclusions 

under 38 CFR 17.38(c) will apply to the 

items and services provided under this 

section. While VA will generally 

provide only one item under this 

section, the provision of spare items 

may be authorized based on a clinical 

determination of need using the criteria 

set forth in this section. 

(Authority: 38 U.S.C. 501, 1701(6)(F), 1710, 

1714(a)) 

§ 17.3240 Furnishing authorized items and 

services. 

(a) VA will determine whether VA or 

a VA-authorized vendor will furnish 

authorized items and services under 

§ 17.3230 to veterans eligible for such 

items and services under § 17.3210. 

(b) Except for emergency care 

reimbursable under 38 CFR 17.120 et 

seq. or 38 CFR 17.1000 et seq., prior 

authorization is required for VA to 

reimburse VA-authorized vendors for 

furnishing items or services under 

§ 17.3230 to veterans. Prior 

authorization must be obtained from VA 

by contacting any VA medical facility. 

§ 17.3250. Veteran responsibilities. 

(a) Veterans must use items provided 

under § 17.3230 in the manner for 

which they are prescribed, and 

consistent with the manufacturer’s 

instructions and any training provided. 

Failure to do so may result in the item 

not being replaced under 

§ 17.3230(a)(13). 

(b) Except for emergency care under 

38 CFR 17.120 et seq. or 17.1000 et seq., 

veterans obtaining items and services 

provided under § 17.3230 must obtain 

prior authorization from VA in order to 

obtain VA reimbursement for such items 

and services obtained from a VAauthorized vendor. VA will not be 

responsible for the cost of items and 


ethrower on DSK3G9T082PROD with PROPOSALS
48030 Federal Register / Vol. 82, No. 198 / Monday, October 16, 2017 / Proposed Rules 

1Areas designated as mandatory Class I Federal 

areas consist of national parks exceeding 6000 

acres, wilderness areas and national memorial parks 

exceeding 5000 acres, and all international parks 

that were in existence on August 7, 1977 (42 U.S.C. 

7472(a)). Listed at 40 CFR part 81 subpart D. 

services provided that are not 

preauthorized by VA or that otherwise 

are not covered as emergency care under 

38 CFR 17.120 et. seq. or 17.1000 et seq. 

(Authority: 38 U.S.C. 501, 1701, 1710, 1725, 

1728) 

[FR Doc. 2017–22358 Filed 10–13–17; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2016–0185; FRL–9969–62– 

Region 5] 

Air Plan Approval; Ohio; Regional 

Haze Five-Year Progress Report State 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing approval of 

a revision to the Ohio State 

Implementation Plan (SIP) submitted by 

the State of Ohio (Ohio) through the 

Ohio Environmental Protection Agency 

(OEPA). Ohio’s SIP revision addresses 

the requirements of the Clean Air Act 

(CAA) and EPA’s rules that require 

states to submit periodic reports 

describing progress towards reasonable 

progress goals (RPGs) established for 

regional haze, and a determination of 

the adequacy of the state’s existing 

implementation plan addressing 

regional haze (regional haze SIP). EPA is 

proposing approval of the Ohio SIP 

revision on the basis that it addresses 

the progress report and adequacy 

determination requirements for the first 

implementation period for regional 

haze. 

DATES: Comments must be received on 

or before November 15, 2017. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2016–0185 at http://

www.regulations.gov or via email to 

Aburano.Douglas@epa.gov. For 

comments submitted at Regulations.gov, 

follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. For either manner 

of submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the Web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Becker, Life Scientist, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–3901, 

Becker.Michelle@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. Background 

II. EPA’s Analysis of Ohio’s Regional Haze 

Progress Report and Adequacy 

Determination 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. Background 

States are required to submit a 

progress report that evaluates progress 

towards the RPGs for each Class I 

Federal area 1 (Class I area) within the 

state and in each Class I area outside the 

state which may be affected by 

emissions from within the state. See 40 

CFR 51.308(g). States are also required 

to submit, at the same time as the 

progress report, a determination of the 

adequacy of the state’s existing regional 

haze SIP. See 40 CFR 51.308(h). The 

first progress report must be submitted 

in the form of a SIP revision and is due 

five years after the submittal of the 

initial regional haze SIP. On March 11, 

2011, OEPA submitted its first regional 

haze SIP in accordance with the 

requirements of 40 CFR 51.308. 

On March 11, 2016, Ohio submitted 

as a SIP revision a report on the progress 

made in the first implementation period 

towards the RPGs for Class I areas that 

are affected by emissions from the state 

of Ohio (progress report). This progress 

report included a determination that 

Ohio’s existing regional haze SIP 

requires no substantive revision to 

achieve the established regional haze 

visibility improvement and emissions 

reduction goals for 2018. EPA is 

proposing to approve Ohio’s progress 

report on the basis that it satisfies the 

requirements of 40 CFR 51.308. 

II. EPA’s Analysis of Ohio’s Regional 

Haze Progress Report and Adequacy 

Determination 

On March 11, 2016, OEPA submitted 

a revision to Ohio’s regional haze SIP to 

address progress made in the first 

planning period towards RPGs for Class 

I areas that are affected by emissions 

from Ohio’s sources. This progress 

report also included a determination of 

the adequacy of the state’s existing 

regional haze SIP. 

Ohio has no Class I areas within its 

borders. Emissions from sources in Ohio 

contribute to the visibility impairment 

in the following Class I areas: Caney 

Creek Wilderness Area (Arkansas), 

Upper Buffalo Wilderness Area 

(Arkansas), Great Gulf Wilderness Area 

(New Hampshire), Presidential RangeDry River Wilderness Area (New 

Hampshire), Brigantine Wilderness Area 

(New Jersey), Great Smoky Mountains 

National Park (North Carolina, 

Tennessee), Mammoth Cave National 

Park (Kentucky), Acadia National Park 

(Maine), Moosehorn Wilderness Area 

(Maine), Seney Wilderness Area 

(Michigan), Hercules-Glades Wilderness 

Area (Missouri), Mingo Wilderness Area 

(Missouri), Lye Brook Wilderness 

(Vermont), James River Face Wilderness 

(Virginia), Shenandoah National Park 

(Virginia), and Dolly Sods/Otter Creek 

Wilderness (West Virginia). 

In developing a long term strategy 

(LTS) for ensuring reasonable progress 

towards improving visibility, Ohio 

participated with other states and tribes 

through the Midwest Regional Planning 

Organization (MRPO). Additionally, 

Ohio consulted with the Mid-Atlantic/ 

Northeast Visibility Union (MANE–VU), 

and Federal Land Managers (FLMs) as a 

part of developing its initial SIP. The 

original Ohio regional haze SIP 

determined that ‘‘on-the-books’’ controls 

would constitute the measures 

necessary to address Ohio’s contribution 

to visibility impairment in the Class I 

areas to which Ohio contributes. This 

was supported by modeling assessments 

from the MRPO and in consultation 

with other states and Regional Planning 

Organizations (RPOs). 

A. Regional Haze Progress Report SIPs 

The following section includes EPA’s 

analysis of Ohio’s progress report 


ethrower on DSK3G9T082PROD with PROPOSALS