80 FR 66419 - Expanded Access to Non-VA Care Through the Veterans Choice Program

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 80, Issue 209 (October 29, 2015)

Page Range		66419-66429
FR Document		2015-27481
This document amends the Department of Veterans Affairs (VA) medical regulations implementing section 101 of the Veterans Access, Choice, and Accountability Act of 2014, which directed VA to establish a program to furnish hospital care and medical services through eligible non-VA health care providers to eligible veterans who either cannot be seen within the wait-time goals of the Veterans Health Administration or who qualify based on their place of residence (hereafter referred to as the ``Veterans Choice Program'', or the ``Program''). VA published an interim final rule implementing the Veterans Choice Program on November 5, 2014, and published a subsequent interim final rule making further amendments on April 24, 2015. This final rule responds to public comments received from both interim final rules and amends the regulations to modify payment rates under the Program.
Federal Register, Volume 80 Issue 209 (Thursday, October 29, 2015)
[Federal Register Volume 80, Number 209 (Thursday, October 29, 2015)]
[Rules and Regulations]
[Pages 66419-66429]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-27481]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP24


Expanded Access to Non-VA Care Through the Veterans Choice 
Program

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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[[Page 66420]]

SUMMARY: This document amends the Department of Veterans Affairs (VA) 
medical regulations implementing section 101 of the Veterans Access, 
Choice, and Accountability Act of 2014, which directed VA to establish 
a program to furnish hospital care and medical services through 
eligible non-VA health care providers to eligible veterans who either 
cannot be seen within the wait-time goals of the Veterans Health 
Administration or who qualify based on their place of residence 
(hereafter referred to as the ``Veterans Choice Program'', or the 
``Program''). VA published an interim final rule implementing the 
Veterans Choice Program on November 5, 2014, and published a subsequent 
interim final rule making further amendments on April 24, 2015. This 
final rule responds to public comments received from both interim final 
rules and amends the regulations to modify payment rates under the 
Program.

DATES: Effective Date: This rule is effective on October 29, 2015.

FOR FURTHER INFORMATION CONTACT: Kristin Cunningham, Director, Business 
Policy, Chief Business Office (10NB), Veterans Health Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 
20420, (202) 382-2508. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On August 7, 2014, the President signed into 
law the Veterans Access, Choice, and Accountability Act of 2014 (``the 
Act,'' Pub. L. 113-146, 128 Stat. 1754). Further technical revisions to 
the Act were made on September 26, 2014, when the President signed into 
law the Department of Veterans Affairs Expiring Authorities Act of 2014 
(Pub. L. 113-175, 128 Stat. 1901, 1906), on December 16, 2014, when the 
President signed into law the Consolidated and Further Continuing 
Appropriations Act, 2015 (Pub. L. 113-235, 128 Stat. 2130, 2568), on 
May 22, 2015, when the President signed into law the Construction 
Authorization and Choice Improvement Act (Pub. L. 114-19, 129 Stat. 
215), and on July 31, 2015, when the President signed into law the 
Surface Transportation and Veterans Health Care Choice Improvement Act 
(Pub. L. 114-41, 129 Stat. 443). Section 101 of the Act creates the 
Veterans Choice Program and requires the Secretary to enter into 
agreements with identified eligible non-Department of Veterans Affairs 
(VA) entities or providers to furnish hospital care and medical 
services to eligible veterans who elect to receive care under the 
Program. Sec. 101(a)(1)(A), Public Law 113-146, 128 Stat. 1754. 
Congress directed VA to publish interim final regulations concerning 
this Program within 90 days of enactment. Sec. 101(n), Public Law 113-
146, 128 Stat. 1754. On November 5, 2014, VA published an interim final 
rulemaking implementing the Program by creating new regulations at 38 
CFR 17.1500-17.1540. 79 FR 65571 (hereinafter referred to as ``the 
November interim final rule''). VA published another interim final 
rulemaking on April 24, 2015, modifying Sec.  17.1510(e) to revise the 
methodology for calculating distances under that section from geodesic 
(or ``straight-line'') distance to the actual driving distance. 80 FR 
22906 (hereinafter referred to as ``the April interim final rule'').
    In response to the November interim final rule, VA received 39 
comments, and in response to the April interim final rule, VA received 
12 comments. Several commenters expressed support for the Program, in 
whole or in part, and we appreciate their support. This final rule 
amends 38 CFR part 17 as discussed below.

VA Copayments

    The November interim final rule modified 38 CFR 17.108, 17.110, and 
17.111 to establish a VA copayment of $0 at the time of service for 
veterans receiving non-VA care under the Program who would have been 
required to make a copayment for the receipt of hospital care or 
medical services at a VA medical facility. We received several comments 
recommending that VA require veterans to make their VA copayment at the 
time services are rendered.
    As we explained in detail in the November interim final rule, there 
are administrative difficulties in determining the proper copayment 
amount for a visit scheduled through the Program that make it 
inefficient to attempt to charge a copayment amount at the time of 
visit. In addition, not charging a copayment at the time of the visit 
was intended to ensure that veterans' experiences under the Program 
would be as similar as possible to their experiences when provided with 
non-VA care through other VA programs, where copayments are not due at 
the time of appointment. These reasons have not changed since November. 
Therefore, in the interests of administrative efficiency and to avoid 
the appearance of inconsistency between non-VA care provided through 
the Program and under other authorities, we are not making a change as 
a result of these comments.

Duration and Scope of the Program

    The Program is funded with $10 billion in appropriated resources in 
the Veterans Choice Fund through section 802 of the Act. The Program is 
authorized to continue until the date the Veterans Choice Fund is 
exhausted or August 7, 2017, whichever occurs first. Sec. 101(p), 
Public Law 113-146, 128 Stat. 1754. One commenter asked what happens 
when the Program ends. Section 101 of the Act only authorizes the 
Program to operate within the parameters described above, so when VA 
has exhausted the Veterans Choice Fund or on August 7, 2017 (whichever 
occurs first), the Program will end absent further appropriations, if 
funds are exhausted, or statutory authority. VA will still be able to 
refer veterans to community providers under other non-VA care 
authorities, but such referrals will be subject to the provisions of 
those statutes and contingent upon the availability of resources. VA is 
not making a change based on this comment.
    VA received several comments suggesting that non-VA providers under 
the Program should be able to make referrals back to VA for specific 
care, services, or tests. The Act authorizes VA to furnish hospital 
care and medical services for eligible veterans through agreements with 
eligible entities, including any health care provider participating in 
the Medicare program, any Federally-qualified health center, the 
Department of Defense, and the Indian Health Service. Sec. 101(a)(1), 
Public Law 113-146, 128 Stat. 1754. As we explained in the November 
interim final rule, the Act specifically envisions that care under the 
Program is provided by non-VA resources, as demonstrated by section 
101(a)(3) of the Act, which requires VA to coordinate through the Non-
VA Care Coordination Program the furnishing of care and services under 
this Program. For these reasons, we are not making any changes to the 
rule as a result of this comment. However, we note that veterans who 
receive non-VA care through the Program are still in the VA health care 
system, and can at any time return to VA for care. A veteran's election 
to participate in the Program does not foreclose returning to VA for 
care.
    We received comments indicating that the Program should be used to 
provide unscheduled or emergency care, particularly under 
extraordinarily dangerous circumstances. We note that under the 
contract VA has signed with the vendors administering the Program, VA 
will cover the cost of emergency care in limited circumstances, namely

[[Page 66421]]

when the vendor notifies VA within 72 hours of the veteran presenting 
to an emergency department for care. We believe this is consistent with 
the position taken in the November interim final rule, as VA can 
currently furnish emergency services under 38 CFR 17.54. This 
regulation permits VA to consider emergency care pre-authorized when VA 
is notified within 72 hours of admission to an emergency care facility. 
38 CFR 17.54(a)(1). For veterans residing in Alaska, Hawaii, and the 
U.S. territories other than Puerto Rico, if there are no means of 
communicating with VA at the time of admission, the 72 hour period 
begins when such means of communication become available. 38 CFR 
17.54(a)(2). We are not making a change based on these comments.
    VA received comments that the Program was implemented too quickly, 
that staff were not adequately trained, and that there are operational 
issues that need to be resolved. The Act directed VA to begin the 
Program and publish implementing regulations within 90 days of 
enactment (August 7, 2014). Sec. 101(n), Public Law 113-146, 128 Stat. 
1754. We continue to refine the Program and improve the quality of 
services we offer through the Program, but we are not making any 
changes to the rule as a result of this comment.
    VA received a comment stating that we should not have sent Choice 
Cards to veterans who are not eligible to participate in the Program. 
While this comment is somewhat outside the scope of this rulemaking, 
which did not address the distribution of Choice Cards because it was 
not necessary to do so to establish the Program, VA was directed by law 
to send a Choice Card to every enrolled veteran and every separating 
servicemember. Sec. 101(f), Public Law 113-146, 128 Stat. 1754. 
Additionally, just because a veteran was not eligible at the time he or 
she received the Choice Card does not mean the veteran would never be 
eligible to participate in the Program. For example, if the veteran was 
unable to schedule an appointment within the wait-time goals of the 
Veterans Health Administration, he or she would be eligible under Sec.  
17.1510(b)(1), or if the veteran moved to a new residence that 
qualified him or her under Sec.  17.1510(b)(2)-(4), the veteran could 
be eligible as well. VA is not making a change to the rule as a result 
of this comment.

Definition of Episode of Care

    VA received several comments recommending we adopt different 
definitions for terms in the rule. Some commenters recommended that VA 
authorize an episode of care for a period beyond 60 days. As we 
explained in the November interim final rule, section 101(h) of the Act 
at that time stated that VA must ensure that an eligible veteran 
receives hospital care or medical services, including follow up care, 
``for a period not exceeding 60 days.'' Based on this provision of law, 
we defined the term ``episode of care'' to mean a necessary course of 
treatment, including follow-up appointments and ancillary and specialty 
services, that lasts no longer than 60 days from the date of the first 
appointment with a non-VA health care provider under the Program. Since 
the close of the comment periods for both the November 2014 and April 
2015 interim final rules, section 4005(a) of Public Law 114-41 amended 
section 101(h) of the Choice Act by removing the 60-day limitation on 
an ``episode of care.'' Sec. 4005(a), Public Law 114-41, 129 Stat. 443. 
As a result of this amendment to the Choice Act, VA will be publishing 
a separate rulemaking announcing the removal of the 60-day limitation.

Section 17.1510 Eligible Veterans

    We received a number of comments regarding the eligibility criteria 
for the Program. At the time that the comment periods for both the 
November and April interim final rules closed, to be eligible to 
participate in the Program, the veteran must have enrolled in the VA 
health care system under 38 CFR 17.36 on or before August 1, 2014, or 
the veteran must have been eligible for hospital care and medical 
services under 38 U.S.C. 1710(e)(1)(D) and be a veteran described in 38 
U.S.C. 1710(e)(3), and the veteran must also have then met at least one 
of the criteria described in Sec.  17.1510(b). These criteria can be 
summarized broadly as follows: Wait-time eligibility; eligibility based 
on distance from a VA medical facility; and travel burden eligibility. 
Since the close of the comment periods for both the November and April 
interim final rules, section 4005(b) of Public Law 114-41 amended 
section 101(b)(1)(A) of the Choice Act to cover all enrolled veterans. 
Sec. 4005(b), Public Law 114-41, 129 Stat. 443. As a result of this 
amendment to the Choice Act, VA will be publishing a separate 
rulemaking announcing this expanded eligibility. We will now address 
the comments received on the other eligibility factors described in 
Sec.  17.1510(b).

Wait-Time Eligibility

    Under Sec.  17.1510(b)(1), a veteran is eligible if the veteran 
attempts, or has attempted, to schedule an appointment with a VA health 
care provider, but VA has been unable to schedule an appointment for 
the veteran within the wait-time goals of the Veterans Health 
Administration (VHA). VA received comments that the rule does not 
describe what is or is not a reasonable amount of time, or who decides 
whether such a period of time is reasonable; however, the wait-time 
determination is set forth clearly in Sec.  17.1510(b)(1), which 
defines the wait-time eligibility criterion as meaning that VA is 
unable to schedule an appointment within 30 days after the date that 
the appointment was deemed clinically necessary by a VA health care 
provider, or, if no such clinical determination has been made, the date 
that a veteran prefers to be seen by a health care provider capable of 
furnishing the hospital care or medical services required by the 
veteran. At the time that the November interim final rule published, 
this was consistent with the requirements in the Act at section 
101(b)(2)(A). Since the close of the comment periods for both the 
November and April interim final rules, section 4005(d) of Public Law 
114-41 amended section 101(b)(2)(A) of the Choice Act to create 
eligibility for veterans that are unable to be scheduled for an 
appointment within, ``with respect to such care or services that are 
clinically necessary, the period determined necessary for such care or 
services if such period is shorter than'' VHA's wait-time goals. Sec. 
4005(d), Public Law 114-41, 129 Stat. 443. This new criterion creates 
eligibility when VA clinically determines that a veteran requires care 
within a period of time that is shorter than 30 days from the date an 
appointment is deemed clinically necessary by a VA health care 
provider, or shorter than 30 days from the date that a veteran prefers 
to be seen. As a result of this amendment to the Choice Act, VA will be 
publishing a separate rulemaking announcing this additional eligibility 
criterion. We continue to address other comments related to wait times 
below.
    A commenter suggested that the term ``wait-time goals of the 
Veterans Health Administration'' should provide greater flexibility, as 
there are some times when a patient cannot wait 30 days for an 
appointment. VA agrees with this commenter that some care is urgent and 
should be furnished as soon as possible, or at least sooner than 30 
days from the veteran's preferred date. We will make changes to the 
regulation to address the new wait-time criterion that is shorter than 
30 days in the Choice Act as amended in a separate rulemaking. To 
address this comment more generally, the Program and its underlying 
authorities were established specifically

[[Page 66422]]

to address situations in which veterans could not get scheduled 
appointments in a timely manner. As noted above, the Program is not 
designed to take the place of VA's existing authority to provide 
emergent care through non-VA providers--such care, and other non-VA 
care, is available under other authorities than the Act. In short, our 
goal is to furnish timely care to all veterans, whether within a VA 
medical facility or through a non-VA provider, and Choice is not the 
only mechanism available to furnish this care. If a veteran requires 
care sooner and VA is unable to furnish this care, while the veteran 
would not be eligible for the Program, VA may and does use another 
statutory authority to furnish non-VA care.
    We also received a comment recommending that VA streamline the 
eligibility process for veterans who qualify under the wait-time 
criterion. The commenter stated that there can be up to a 72-hour delay 
before a veteran is added to the Veterans Choice List, the record 
system VA uses to identify veterans who are eligible for the Program. 
The commenter further stated that there can be a 2-3 day delay between 
placement on the Veterans Choice List and when the vendors 
administering the program are able to verify the veteran's eligibility. 
The commenter expressed concern that these administrative steps are 
delaying care for veterans. While this comment is outside the scope of 
the rulemaking, which only needs to define the eligibility criteria and 
not the specific procedures VA follows to execute the Program, we are 
working to streamline eligibility determinations and have learned a 
great deal about how to operate the Program more effectively during the 
first several months of operation. For example, VA is now sending the 
updated Veterans Choice List to the vendors administering the Program 
on a daily basis. The list includes all veterans who are eligible based 
on the wait time criterion as well as those veterans who elect to be 
placed on an electronic waiting list to receive services from VA. We 
are not making a change as a result of this comment.

Eligibility Based on Distance From a VA Medical Facility

    Under Sec.  17.1510(b)(2), a veteran is eligible if the veteran 
resides more than 40 miles from the VA medical facility that is closest 
to the veteran's residence. This standard considers the distance 
between a veteran's residence, as defined in Sec.  17.1505, and any VA 
medical facility, even if that facility cannot provide the care that 
the veteran requires. We received several comments suggesting that the 
40 mile criterion in general should be removed or eased so that more 
veterans can participate in the Program. In April, VA published an 
interim final rule modifying this standard in accordance with the 
comments we received, to change the methodology for calculating 
distances from geodesic (or ``straight-line'') distance to driving 
distance. 80 FR 22906. In response to the interim final rule published 
in April changing this methodology, VA received 12 comments. Many of 
these comments supported this change. Several commenters raised issues 
beyond the scope of that rulemaking but in response to the larger 
Program. For example, some comments noted that traffic conditions or 
the veteran's health make even a 40 mile driving distance too much for 
some veterans to bear. We understand this concern and believe that the 
discussion later in this final rule related to the ``excessive or 
unusual burden on travel'' standard under Sec.  17.1510(b)(4) may help 
address these concerns. VA is not making a change to the driving 
distance provision as a result of these comments.
    The April interim final rule greatly expanded veteran eligibility 
based on this criterion, representing liberalization similar to what 
had been suggested by many commenters. However, to the extent that 
commenters believe that 40-miles driving distance is still an 
unreasonable calculation, we do not believe that the Act gives us 
authority to depart from that standard.
    VA received a large number of comments recommending that VA measure 
distance from the closest VA medical facility that can provide the care 
a veteran needs. As we explained in detail in the November interim 
final rule, the plain language of the Act refers only to ``the medical 
facility of the Department that is closest to the residence of the 
veteran,'' without allowing VA to consider whether the facility can 
actually provide the care needed by the veteran. Sec. 101(b)(2)(B), 
Public Law 113-146, 128 Stat. 1754. Additionally, the Conference Report 
accompanying the legislation states that veterans are eligible if they 
live ``within 40 miles of a medical facility,'' again without regard to 
such facility's ability to provide the required care. H. Rpt. 113-564, 
p. 55. The use of the general article ``a'' demonstrates that Congress 
intended for this to refer to any facility, rather than to a specific 
facility. The Act also specifically included community-based outpatient 
clinics (CBOC) among VA medical facilities, and Congress was aware that 
CBOCs offer a more limited set of services than VA medical centers and 
hospitals. We do not believe we have authority under the Act to modify 
this standard, and as a result, we are not making a change in response 
to these comments.
    VA also received a comment recommending that we modify the 
definition of ``VA medical facility'' to exclude health care centers. 
We defined the term ``VA medical facility'' to mean a VA hospital, a VA 
community-based outpatient clinic (CBOC), or a VA health care center. 
``VA health care center'' is a term we use to describe a facility that 
offers services between what is available at a CBOC and a VA hospital. 
The phrase ``medical facility of the Department,'' as used in the Act 
in section 101(b)(2)(B) and elsewhere, specifically includes CBOCs, so 
we conclude that any facility that offers more services than those 
available at a CBOC should be included within the definition of a VA 
medical facility. As a result, we are not making a change based on this 
comment.
    Under Sec.  17.1510(b)(3), a veteran is eligible if the veteran's 
residence is in a state without a full-service VA medical facility and 
the veteran lives more than 20 miles from such a facility. A full-
service VA medical facility is one that provides--on its own and not 
through a joint venture--hospital care, emergency medical services, and 
surgical care having a surgical complexity of standard. VA received one 
comment about the applicability of this provision to veterans residing 
in New Hampshire. The commenter stated that veterans living in New 
Hampshire near the Manchester VA Medical Center were not eligible to 
participate in the Program based on their proximity to this facility. 
That reading of the law and regulations is incorrect and does not 
reflect VA's practice in implementing the Program. Section 101(b)(2)(C) 
of the Act, and Sec.  17.1510(b)(3) of the regulations, state that a 
veteran may be eligible if he or she resides in a State without a full-
service VA medical facility and lives more than 20 miles from such a 
facility. The Manchester VA Medical Center is not a full-service VA 
medical facility because it does not have a surgical complexity of 
standard, and because no other facility in New Hampshire has such a 
designation, veterans in New Hampshire may be eligible if they reside 
more than 20 miles from a full-service VA medical facility. The only 
full-service VA medical facility within 20 miles of New Hampshire's 
borders is the White River Junction VA Medical Center in Vermont. 
Veterans residing in New Hampshire and within 20 miles of this facility 
are not eligible to participate in

[[Page 66423]]

the Program under the Sec.  17.1510(b)(3) criterion, but all other 
veterans in New Hampshire are eligible to participate based on this 
criterion. The Manchester, NH area is more than 20 miles from White 
River Junction, VT. Therefore, as long as a veteran residing in 
Manchester meets the initial eligibility criteria in Sec.  17.1510(a), 
he or she will be eligible to participate in the Program. VA is not 
making any changes to the rule as a result of this comment.
    One commenter asked what system VA will use, and how VA will ensure 
that it is properly measuring distances from newly constructed housing. 
VA uses the Esri Geographic Information System to identify locations 
for purposes of determining mileage under the Program. In the vast 
majority of situations, VA is able to locate a new address. In those 
cases where VA is unable to locate the new address, our staff work with 
the veteran to correct the issue.
    On May 22, 2015, the Construction Authorization and Choice 
Improvement Act was signed into law (Pub. L. 114-19); section 3(a)(1) 
of this law amended section 101(b)(2)(B) of the Act to clarify that the 
40 miles is to be ``calculated based on distance traveled''. VA is 
interpreting this revision as support for the use of driving distance, 
which reflects the distance traveled, rather than the straight-line or 
geodesic distance standard VA previously adopted. VA is not making a 
further change to Sec.  17.1510(e) as a result of the statutory 
revision enacted in Public Law 114-19.

Eligibility Based on Burden in Traveling

    Under the November interim final rule, Sec.  17.1510(b)(4), a 
veteran may be eligible if she or he lives 40 miles or less from a VA 
medical facility but faces an unusual or excessive burden in traveling 
to such medical facility based on the presence of a body of water or a 
geologic formation that cannot be crossed by road. We received several 
comments recommending that this standard be loosened to provide greater 
flexibility to allow veterans to participate in the Program. The 
commenters did not recommend a specific alternative interpretation, but 
on May 22, 2015, the Construction Authorization and Choice Improvement 
Act was signed into law modifying this standard. Public Law 114-19. 
Specifically, section 3(a)(2) of Public Law 114-19 revised section 
101(b)(2)(D)(ii) of the Act by changing the standards that could be the 
basis for an unusual or excessive burden. Specifically, the Act now 
allows VA to determine that there is an unusual or excessive burden in 
traveling to a VA medical facility based on geographical challenges; 
environmental factors, such as roads that are not accessible to the 
general public, traffic, or hazardous weather; a medical condition that 
impacts the ability to travel; or other factors, as determined by the 
Secretary. We appreciate Congress' assistance with modifying this 
provision of law and allowing VA to consider other factors that may 
create a burden on veterans traveling to a VA medical facility. As a 
result of the change in law, VA will be publishing a separate 
rulemaking announcing the criteria VA will use to determine veteran 
eligibility based on this new law.

Section 17.1515 Authorizing Non-VA Care

    Section 17.1515 describes the process and requirements for 
authorizing non-VA care under the Program. We received several comments 
on different aspects of the authorization process. Although some of 
these comments addressed issues beyond the immediate scope of the 
November interim final rule, VA is responding to the comments here 
nonetheless.
    First, we received a comment asking why a patient would be required 
to travel to a different VA facility farther from home, when seeking 
advanced authorization would not have been reasonable, sound, wise, or 
practicable. The commenter cited to VA's regulations at 38 CFR 
17.120(c), which uses some of this terminology. That regulation, 
however, deals with reimbursing veterans for emergency treatment when 
Federal facilities are unavailable. As explained in the interim final 
rule published in November, the Program generally does not cover 
emergency care, which is covered instead by other statutes and 
regulations. Any veteran requiring emergency care should not contact VA 
to use the Program but should seek such emergency services as are 
necessary. Furthermore, under the Program, VA would not require a 
veteran to travel to another VA facility; a veteran's eligibility is 
determined based upon the veteran's residence or whether the veteran 
can be seen by VA within the wait-time goals of the Veterans Health 
Administration. VA is not making a change to its regulations based on 
this comment.
    Another comment stated that requiring advanced authorization may 
prevent veterans from receiving timely care. VA also received several 
comments that non-VA providers should be able to be reimbursed for care 
furnished for conditions present that were not identified during the 
initial authorization. The Act requires VA to furnish hospital care and 
medical services through the completion of the episode of care deemed 
necessary as part of the recommended treatment. Sec. 101(h), Public Law 
113-146, 128 Stat. 1754. If a non-VA health care provider believes that 
a veteran needs additional care outside the scope of the authorized 
course of treatment, the health care provider must contact VA prior to 
administering such care to ensure that this care is authorized. There 
is no indication in the law that it was intended to authorize 
unscheduled or unauthorized non-VA care. Indeed, the preauthorization 
requirement is important to ensure that VA is not subject to an open 
ended commitment, and so that veterans are not subjected to unnecessary 
procedures and tests but only receive care that is necessary. VA is not 
making a change based on these comments.
    Several commenters recommended that VA simplify and standardize the 
authorization and claims processes in order to reduce the 
administrative burdens on participating eligible providers. VA also 
received a comment stating that VA should reduce or eliminate the 
preauthorization requirement for treatment from approved non-VA 
providers who have an established record of effective and efficient 
care within the Program. The Program's regulations do not identify any 
requirement for providers beyond what is included in the Act, and the 
authorization of care is also required for the reasons stated above. We 
believe that continued experience with the Program will help VA and 
eligible, participating providers streamline this process to facilitate 
faster access to care. We are not making a change to the rule as a 
result of these comments.
    VA also received comments offering recommendations for a simpler 
method for authorizing care. For example, some comments stated that 
there should be a unique call-in number for providers, and that VA and 
the vendors administering the Program should have a better records 
system so that a veteran does not have to provide the same information 
multiple times. Most of these comments are beyond the scope of the 
rulemaking because they deal with purely administrative or operational 
issues, like the use of a dedicated phone line for providers or 
recordkeeping, which are not mandated by regulation. We appreciate this 
feedback and will consider it as part of our ongoing effort to more 
efficiently execute the Program. One goal of VA and the vendors 
administering the Program is to record

[[Page 66424]]

information accurately so that others can have access to the same 
information, and as we have more experience with the Program, we are 
improving the customer service experience as well. We are not making a 
change to the rule as a result of these comments because these matters 
are not covered by regulation, nor is it necessary to address them 
through regulation.
    Commenters also suggested that authorizations or contracts should 
be retroactive to the date of an eligible request because this would 
result in fewer non-health-center providers refusing to care for 
unauthorized veterans, and fewer uncompensated care costs for health 
centers. It is unclear how this change would produce that result. 
Moreover, VA is concerned that imposing a retroactive date could create 
confusion as to when the 60 day authorization period begins, and in 
such a case, a retroactive date would limit a veteran's ability to 
receive care. Consequently, VA is not making a change to the rule.
    Several comments stated that veterans and providers should be 
notified if care will not be continued past 60 days and that 
authorizations for care for patients with chronic conditions should 
cover emergency primary care needs. As we stated in the November 
interim final rule, we will be working with providers and veterans to 
notify them in advance if the 60 day authorization period is coming to 
an end, particularly if such care will not be re-authorized because the 
veteran or provider is no longer eligible to participate in the 
Program. For patients with chronic conditions, VA may authorize care to 
address related issues that could develop, such as respiratory 
infections or other complications, if VA has a basis to determine that 
this care is necessary. For veterans who have never been seen by a VA 
health care provider, such a determination would be more difficult 
because we would not know the type of treatment a veteran has 
previously received, what other conditions the veteran may have, or the 
medications the veteran is taking. Another comment suggested that 
veterans should be able to make their own appointments once care has 
been authorized. In our experience, many veterans prefer to have VA 
schedule their appointments, but a veteran may opt to schedule his or 
her own appointment once care has been authorized. We do require 
through the contract with the vendors administering the program, 
though, that such vendors request that the veteran provide information 
about the appointment and the vendors then report this information to 
VA so we can ensure that appointments are timely. VA is not making a 
change based on these comments.
    Some commenters asserted that requiring authorization for each and 
every treatment is time consuming and does not produce any benefits, 
and that VA should find ways to facilitate quicker appointments. As we 
explained in the November interim final rule, VA has an obligation to 
ensure that care furnished under the Program is necessary, and we will 
continue to abide by this requirement. However, VA can issue a broad 
authorization in some circumstances for care that is determined at the 
outset to likely be necessary. For example, if we know that a patient 
is being treated for a condition that has several common comorbidities, 
or if we know that a treatment approach that will be administered has 
common side effects or complications, we could authorize treatment for 
these services in advance to include ancillary or specialty services. 
We are not making a change to the rule based on these comments.
    We received several comments raising additional issues concerning 
authorizations for care. The comments stated that it was sometimes 
unclear which services were being authorized and who is making the 
determination, and asked VA to explain what criteria VA is using to 
determine what care is necessary. The authorization the eligible 
provider receives from VA should clearly identify what services are 
covered--if the provider is unsure, he or she should contact VA to 
ensure that only those services covered by the authorization are 
performed. The commenter also suggested VA provide more details on the 
authorization process, including timeframes for authorizations. These 
timelines and other operational details are case-specific, and as such, 
VA does not believe they can or should be placed in regulation. If 
providers have any questions about the process or a specific 
authorization, they should feel free to contact VA for clarification. 
We are not making changes to the regulations based on these comments 
because they concern administrative matters beyond the scope of the 
regulations.
    Finally, one commenter suggested that veterans should not have to 
contact the vendors administering the Program to verify their 
eligibility prior to care being authorized. This is not an express 
requirement in the regulation, and as such is outside the scope of this 
rulemaking. As a result, we are not making a change based on this 
comment. However, as a practical matter, VA believes the step of the 
veteran contacting the vendors administering the Program is important 
to ensure that necessary care is authorized for the right veteran with 
the right provider.

Section 17.1530 Eligible Entities and Providers

    Section 17.1530 defines requirements for non-VA entities and health 
care providers to be eligible to be reimbursed for furnishing hospital 
care and medical services to eligible veterans under the Program. VA 
received a number of comments on this section.
    VA received several comments recommending that other entities, such 
as rural health clinics, community health centers, women's health 
centers, essential community providers, and Medicaid providers, be 
included among eligible entities. At the time that the comment periods 
for both the November and April interim final rules closed, section 
101(a)(1)(B) of the Act identified only four categories of eligible 
entities or providers: any health care provider that is participating 
in the Medicare program under title XVIII of the Social Security Act 
(42 U.S.C. 1395 et seq.), including any physician furnishing services 
under such program; any Federally-qualified health center (as defined 
in section 1905(l)(2)(B) of the Social Security Act (42 U.S.C. 
1396d(l)(2)(B)); the Department of Defense; or the Indian Health 
Service. Since the close of the comment periods for both the November 
and April interim final rules, section 4005(c) of Public Law 114-41 
amended sections 101(a)(1)(B) and 101(d) of the Act to permit VA to 
expand provider eligibility beyond those providers expressly listed in 
section 101(a)(1)(B) of the Act, in accordance with eligibility 
criteria as established by VA. Sec. 4005(c), Public Law 114-41, 129 
Stat. 443. As a result of this amendment to the Act, VA will be 
publishing a separate rulemaking announcing the additional eligible 
providers. We will now address other comments related to eligible 
entities and providers.
    One commenter recommended that VA publish a list of eligible 
providers under the Program on a Web site to help veterans elect to 
receive care closer to home. This is an administrative recommendation 
outside the scope of the rulemaking, but we do note that VA maintains a 
list of all eligible providers that can be found on the Choice Program 
Web site at www.va.gov/opa/choiceact/. VA updates this list regularly 
to ensure accuracy of information. Veterans also can request a specific 
provider that is not on the list but meets the eligibility criteria 
under

[[Page 66425]]

this section and who is willing to enter into an agreement with VA. VA 
is not making a change to the rule as a result of this comment.
    Under Sec.  17.1530(b), an entity or provider must enter into an 
agreement with VA to provide non-VA hospital care or medical services 
under the Program. VA received several comments on the process for 
entering into agreements. Several comments suggested that local 
facilities should be able to enter into contracts to provide services 
through the Program. The rulemaking is silent on this point, and we do 
not believe the regulation needs to be specific on this issue. Nothing 
in the regulations governing the program would prevent a local VA 
facility from entering into a contract with a local provider, although 
the Program is presently administered only under national contracts. If 
VA determines that the national contracts cannot provide all of the 
care needed and available in the Program, VA can use the provider 
agreement authority established by the Act to obtain the needed care. 
We note that VA has not yet implemented this provider agreement 
authority, but is developing a provider agreement template that can be 
used by local facilities. VA therefore is not making a change as a 
result of these comments.
    Several comments also stated that existing agreements, including 
agreements with Tribal and urban health programs among others, should 
be used to furnish care. Existing contracts and agreements with 
eligible providers can be used to furnish care, and VA is promoting 
their use, particularly prior to the implementation of the provider 
agreement authority established by the Act. VA is not making a change 
as a result of these comments.
    Under Sec.  17.1530(d), a non-VA provider must maintain at least 
the same or similar credentials and licenses as required by VA of its 
own providers. We received several comments on this provision. We 
received comments that the process for submitting and reviewing 
credentials and privileging information should not be overly 
burdensome. Administratively, we have tried to make this process as 
simple as possible, while still adhering to the requirements of the Act 
in section 101(i), by making the credentialing and privileging process 
part of the provider's approval process with the vendors administering 
the program. The regulations do not address the system for this 
specifically, and we do not think such detail is needed in case we need 
to modify the system at a later time. We are not making a change to the 
rule as a result of these comments.
    We also received a recommendation to broaden the language about 
credentialing and licensing to ensure qualified non-physician 
practitioners qualify to participate in the Program. Another commenter 
suggested that VA include osteopathic and allopathic credentials for 
physicians. VA is limited by section 101(i) of the Act to accepting 
non-VA providers who meet the same or similar standards as VA 
providers; to the extent non-physician practitioners or physicians with 
osteopathic or allopathic credentials in VA could perform functions or 
procedures, those in the community could do so as well under the 
Program if they have the same qualifications. VA is not making a change 
to the rule based on these comments.
    Although not addressed in the regulation, VA stated in the November 
interim final rule notice that eligible entities and providers 
furnishing hospital care and medical services to eligible veterans 
through the Program, to the extent possible, should submit medical 
records back to VA in an electronic format. The agreements VA reaches 
with eligible entities and providers clarify this requirement. We 
received several comments on the exchange of information under the 
Program, which are outside the scope of the rulemaking but will be 
addressed here nonetheless. Several commenters suggested that VA should 
ensure that participating providers have timely access to the necessary 
patient information to help them make informed clinical decisions 
regarding treatment. VA's Non-VA Care Coordination (NVCC) program is 
intended to help facilitate care by sharing information, to the extent 
authorized by law and regulation, with non-VA providers prior to a 
patient's appointment. However, some veterans who have never received 
health care from VA are eligible to participate in the Program, and for 
these veterans, VA cannot furnish information in advance of an 
appointment. We are working to standardize the transmission of 
information, both to and from VA, to improve the delivery of health 
care for veterans receiving treatment in VA and the community. Other 
comments suggested that electronic submission of medical records back 
to VA should be streamlined and simple so that providers do not have to 
struggle to comply with this requirement. VA has set up a secure Web 
site where providers can submit this information, and we believe it is 
simple and easy to use. VA is not making a change to the rule as a 
result of these comments.

Section 17.1535 Payment Rates and Methodologies

    Section 17.1535 addresses payment rates and payment methodologies. 
VA received a number of comments on this section.
    Several commenters stated that VA should be paying Medicare rates 
under the Program. Section 17.1535(a)(1) establishes the payment rule 
that most reimbursement rates under the Program will not exceed the 
Medicare rate, consistent with section 101(d)(2)(B)(i) of the Act. 
There are only two exceptions to this rule in the Act. First, Sec.  
17.1535(a)(2) authorizes VA to pay a rate higher to an eligible entity 
or provider in a highly rural area, so long as such rate is still 
determined by VA to be fair and reasonable. Second, Sec.  17.1535(a)(3) 
authorizes VA to pay a higher rate when no Medicare rate is available. 
We explain in the discussion below that we are adding two additional 
exceptions to Sec.  17.1530.
    The vendors administering the Program also operate the Patient-
Centered Community Care (PC3) contract, which can pay rates lower than 
the Medicare rate, and it is possible that there is some confusion 
among providers regarding whether they are providing care under the 
Program or the PC3 contract. Indeed, we received some comments stating 
that providers did not always know under which authority they were 
furnishing care. We shared these comments with the vendors 
administering the Program and are working to improve communication so 
that providers understand what care is furnished under the Program and 
what is performed pursuant to PC3. Providers who signed contracts to 
furnish care under PC3 at a set rate may also be subject to receiving 
that negotiated rate when furnishing care under the Program as well, 
but VA is not a party to those agreements between vendors and providers 
and cannot interfere with the terms of those agreements. We are not 
making any changes based on these comments.
    However, we are adding two additional exceptions to Sec.  
17.1535(a). First, we are adding a new paragraph (a)(3) authorizing VA 
to pay eligible providers or entities in the State of Alaska using 
rates set forth in 38 CFR 17.55(j) and 17.56(b). The rates in 
Sec. Sec.  17.55(j) and 17.56(b) are currently used to establish 
special rates to pay for non-VA care in Alaska under authorities other 
than the Program, and the new paragraph would simply make the Program 
comparable. We are also

[[Page 66426]]

adding a new Sec.  17.1535(a)(4) authorizing VA to use the rate set 
forth in a State with an All-Payer Model Agreement under the Social 
Security Act that became effective on January 1, 2014. These two new 
exceptions were authorized by section 242 of Division I of Public Law 
113-235. 128 Stat. 2568. We are redesignating current Sec.  
17.1535(a)(3) as Sec.  17.1535(a)(5).
    One commenter suggested that VA should ensure Federally Qualified 
Health Centers (FQHC) are reimbursed for their reasonable costs under 
Medicare and refer to Medicare Part B for pharmaceutical rates. VA is 
permitted to pay up to the Medicare rate under section 101(d)(2)(B) of 
the Act, and this includes special rates available for FQHCs under 42 
U.S.C. 1395 et seq. Another commenter urged VA to allow medication 
prescriptions from non-VA providers to be filled at VA pharmacies. We 
clarify that VA is not making payments to providers for medications 
under the Program; as explained in the November interim final rule, VA 
will fill prescriptions, including prescription drugs, over-the-counter 
drugs, and medical and surgical supplies prescribed by eligible non-VA 
entities and providers. VA has been filling these prescriptions through 
its own Pharmacy Benefits Management program or at VA expense and will 
continue to do so to ensure participating veterans have access to the 
medications they need. We are not making a change as a result of these 
comments.
    Section 17.1535(b) details payment responsibilities. One comment 
stated that VA should explicitly reference in its regulations section 
101(e)(2) of the Act to clearly communicate that VA is responsible for 
care, the responsibilities of any other parties (e.g., insurance 
companies), and whether such care is for a non-service connected 
disability. This comment also suggested that VA supply to non-VA 
providers the necessary documentation so those providers may pursue 
payment from any other parties. We do not believe it is necessary to be 
this specific in our regulations, but VA will certainly comply with any 
statutory requirement in the Act, including the requirements of section 
101(e)(2). The agreements entered into under the Program contain 
greater specificity on some of these issues, and the authorizations for 
care provide additional information. VA is not making a change as a 
result of this comment.

Section 17.1540 Claims Processing System

    Section 17.1540 provides general requirements for a VA claims 
processing system. We received a number of comments on this system. 
Most of the comments urged VA to pay promptly, and to pay interest on 
claims that are overdue. Some comments recommended specific timelines 
for reviewing claims, and others urged VA to reference the Prompt 
Payment Act, 31 U.S.C. 3901 et seq., in Sec.  17.1540. VA is working to 
pay claims under the Program as quickly as possible, and is bound to 
adhere to the Prompt Payment Act under section 105 of the Act. The 
Prompt Payment Act, and its implementing regulations at 5 CFR part 
1315, define the parameters within which Federal agency payments are 
considered timely, requirements for reviewing claims, and the penalties 
for late payments. We do not believe modifications to the Program's 
regulations are necessary.
    We received comments stating the processing system should be 
simple, and that it should be easy for providers and entities to submit 
information. We also received comments suggesting that VA provide 
further information on the new claims processing system, in particular 
how it will be restructured to facilitate the appropriate reimbursement 
of claims and how it will ensure prompt payments. Some of these 
comments indicated that the new system has not improved the efficiency 
of the payment system. We are working to ensure all aspects of the 
Program are as simple as possible, and welcome recommendations for how 
to improve our administrative operations. However, it is not 
appropriate to include such operational details in our regulations, as 
such specificity could serve to restrict our ability to innovate and 
adapt the system to become more efficient and easy to use. We are not 
making any changes to the regulation as a result of these comments.

Miscellaneous Comments

    In addition to the areas above, VA also received comments on other 
matters. For example, several comments requested case management 
assistance with their own particular health care situations and/or 
claims under the Program, and we reached out to these veterans to help 
them; however, we are not making any changes to the regulation based on 
these comments.
    Several comments asked about other non-VA care programs. Some 
stated that eligible veterans were unsure whether to use the Program or 
another non-VA authority. Other comments stated that the staff at their 
facilities were not sufficiently trained to explain the differences 
between the Program and other non-VA care programs. We recognize that 
the number and different types of non-VA care programs and authorities 
can be confusing to veterans, our stakeholders, and our employees, and 
we are currently reexamining these various programs as part of a 
greater effort to streamline VA's use of non-VA care. As we stated in 
the November interim final rule and above, we have attempted to 
administer the Program similarly to other non-VA health care programs 
in an effort to reduce confusion. For some veterans, particularly those 
with their own health insurance, there may be some differences under 
the Program, because while VA will attempt to cover the veteran's 
financial obligations under his or her insurance plan, VA cannot pay 
more than the Medicare rate (with limited exceptions) for the services 
provided, meaning the veteran may owe some copayment, cost share, or 
deductible amount from their other health insurance to the provider. VA 
is unable to completely eliminate any potential copayment liability 
because under the Program, VA is a secondary payer, while under other 
non-VA care, we are the primary payer, and our payment to the non-VA 
health care provider is payment in full. Consequently, there may be 
some differences in a veteran's experience between the Program and 
other non-VA care, and we are available to assist eligible veterans 
with any questions they may have. We are not making any changes to the 
rule as a result of these comments. Other comments were that VA should 
use its existing legal authority to furnish non-VA care for veterans 
who do not qualify for the Program. Specifically, some comments stated 
that VA should permit veterans to access non-VA health care providers 
if they need services that no VA medical facility that is accessible 
(by geography or timeliness) can provide. We are unsure whether these 
specific comments referenced care under the Choice Program or care 
under other non-VA care programs. We reiterate that the 40-mile 
distance criterion in the Choice Program considers the distance between 
a veteran's residence and any VA medical facility, even if that 
facility cannot provide the care that the veteran requires. However, we 
note that over the past 12 to 18 months VA has been using non-VA 
authorities other than the Act with much greater frequency than in 
prior years; in fiscal year 2014, VA completed 16.2 million 
appointments in the community, an average of more than 1.3 million 
appointments per month. We will continue to use these authorities when 
available and appropriate. We are not making a

[[Page 66427]]

change to the rule based on these comments.
    VA received comments that it should address late payment claims for 
care authorized under other authorities so that community providers 
would be more likely to participate in the Program. This is outside the 
scope of the rulemaking, but we are working to pay promptly claims 
under any authority, including the Program, and if there are specific 
claims that are late, we encourage the providers to contact us so we 
can rectify the situation. We are not making any changes as a result of 
these comments.
    We also received a number of comments about other issues. One 
comment stated that VA should not be using funds appropriated by the 
Act to expand the number of residency positions in VA. This is outside 
the scope of the rulemaking, which only implements section 101 of the 
Act, while provisions regarding residency programs were addressed in 
section 302 of the Act. However, VA is complying with the requirements 
of that section as directed by Congress, and we believe that increasing 
our own capacity to furnish care will allow us to better meet the needs 
of all enrolled veterans. VA is not making a change to the rule based 
on this comment.
    Another comment stated that VA should not be authorized to define 
the Program or eligibility criteria for it. VA was expressly required 
to do this through section 101(n) of the Act, which directed VA to 
publish interpretive regulations for the Program within 90 days of 
enactment. Therefore, VA is not making a change to the rule based on 
this comment.
    Several comments recommended better communication with the public 
about the Program. For example, some suggested outreach to medical 
societies and physician associations to increase awareness, some 
suggested better education materials for eligible veterans and 
providers, and some recommended better coordination and consistency 
with the vendors administering the Program to clarify the requirements 
of the Program. Although these comments are outside the scope of the 
rulemaking, we appreciate this feedback and are working with all of 
these populations to increase awareness of the Program. For example, 
when we initially launched the Program, we mailed explanatory letters 
to over eight million veterans, and we completed an outbound call 
campaign to those veterans who were initially eligible under the wait-
time criterion. We have prepared and updated fact sheets for veterans 
that can be accessed online or at a facility, and we have worked with 
provider groups and Veterans Service Organizations to support further 
outreach. Earlier this year, VA launched a public service announcement 
for eligible veterans, and we began hosting town halls related to the 
Program at VA medical facilities. We have also increased staff 
education and training and appointed more than 900 ``Choice Champions'' 
to assist veterans and the public with questions about the Program. One 
comment suggested the vendors administering the Program should inform 
providers if they are signing up for the Program or another non-VA 
health care program, and that VA should clarify which vendor is 
responsible for patients who live in states served by both vendors. We 
are also in close and constant communication with the vendors to ensure 
we are sharing a clear and consistent message with the public and our 
stakeholders. We forwarded applicable comments like these to the 
vendors to ensure they were aware of some of the feedback we were 
receiving, and we will continue to work together so that patients and 
providers understand the Program better. We are not making a change to 
the rule based on these comments.
    One comment recommended that non-VA providers that participate in 
the Program be permitted to provide primary care services to Veterans. 
We clarify that VA does permit non-VA providers to furnish primary care 
services, as primary care services are part of the hospital care and 
medical services that may be provided under section 101(a)(1)(a) of the 
Choice Act, as well as under Sec.  17.1500(b). We therefore do not make 
any changes to the rule based on this comment.
    One comment recommended that VA should permit non-VA providers that 
participate in the Program to be covered by the Federal Tort Claims Act 
(FTCA). The FTCA only covers Federal agencies and agency employees 
acting within the scope of their employment. See 28 U.S.C. 2671 et al. 
However, non-VA providers that participate in the Program cannot be VA 
employees, or, if they are VA employees, such providers must not be 
acting within the scope of their VA employment when they provide 
services under the Program. See 38 CFR 17.1530(a)(1)-(2). We reiterate 
from the November interim final rule that Sec.  17.1530(a)(1)-(2) was 
promulgated because the Act specifically envisions that care under the 
Program is provided by non-VA resources, as demonstrated by section 
101(a)(3) of the Act, which requires VA to coordinate through the Non-
VA Care Coordination Program the furnishing of care and services under 
this Program. The title of section 101 of the Act, ``Expanded 
availability of hospital care and medical services for veterans through 
use of agreements with non-Department of Veterans Affairs entities,'' 
also clearly demonstrates Congress's intent that any entity or provider 
that is a VA resource should not be eligible to participate in the 
Program. We therefore do not make any changes to the rule based on this 
comment.
    We also received several comments that Tribes and Tribal 
organizations can contribute to the Program. As we stated in the 
November interim final rule, outpatient health programs or facilities 
operated by a Tribe or Tribal organization under the Indian Self-
Determination and Education Assistance Act or by an urban Indian 
organization receiving funds under title V of the Indian Health Care 
Improvement Act are defined as Federally-qualified health centers in 
section 1905(l)(2)(B) of the Social Security Act and can be eligible 
providers under section 101(a)(1)(B) of the Act. The comments urged VA 
to establish direct communication with these programs and include them 
at the table with the Indian Health Service when considering new model 
language or agreements and when identifying and developing performance 
metrics, and recommended that VA use and expand where possible current 
agreements to furnish care. These comments touch on issues beyond the 
scope of the rulemaking, principally how VA works with the Indian 
Health Service, Tribes, and Tribal organizations generally, but we are 
committed to using existing agreements and partnerships where possible. 
We are not making a change to the rule based on these comments.

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary of 
Veterans Affairs concluded that there was good cause to publish this 
rule without prior opportunity for public comment and to publish this 
rule with an immediate effective date. The Secretary found that it was 
impracticable and contrary to law and the public interest to delay this 
rule for the purpose of soliciting advance public comment or to have a 
delayed effective date, and therefore issued two interim final rules 
published at 79 FR 65571 (November 5, 2014) and 80 FR 22906 (April 24, 
2015). This rulemaking amends Sec.  17.1535(a) to establish two 
alternative rates of payments. These provisions were mandated by 
Congress in a public law that was enacted subsequent to the November 
interim

[[Page 66428]]

final rule. See Public Law 113-235 (discussed above). These regulatory 
changes reflect these new provisions, and notice and public comment 
could not therefore result in any change to these provisions. Further, 
since the public laws became effective on their respective dates of 
enactment, VA believes it is impracticable and contrary to law and the 
public interest to delay this rule for the purpose of soliciting 
advance public comment or to have a delayed effective date.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rule, represents VA's implementation of its legal authority on 
this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that 
VA consider the impact of paperwork and other information collection 
burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may 
not collect or sponsor the collection of information, nor may it impose 
an information collection requirement, unless it displays a currently 
valid Office of Management and Budget (OMB) control number. See also 5 
CFR 1320.8(b)(3)(vi).
    This final rule will impose the following new information 
collection requirements. Section 17.1515 requires eligible veterans to 
notify VA whether the veteran elects to receive authorized non-VA care 
through the Veterans Choice Program, be placed on an electronic waiting 
list, or be scheduled for an appointment with a VA health care 
provider. Section 17.1515(b)(1) also allows eligible veterans to 
specify a particular non-VA entity or health care provider, if that 
entity or provider meets certain requirements. Section 17.1510(d) 
requires eligible veterans to submit to VA information about their 
health-care plan to participate in the Veterans Choice Program. 
Participating eligible entities and providers are required to submit a 
copy of any medical record related to hospital care or medical services 
furnished under this Program to an eligible veteran. Section 17.1530 
requires eligible entities and providers to submit verification that 
the entity or provider maintains at least the same or similar 
credentials and licenses as those required of VA's health care 
providers, as determined by the Secretary.
    As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 
3507(d)), VA has submitted these information collections to OMB for its 
review. OMB approved these new information collection requirements 
associated with the final rule and assigned OMB control number 2900-
0823. We have added the approved OMB control number to the relevant 
parentheticals.

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 OMB, unless OMB 
waives such review, as ``any regulatory action that is likely to result 
in a rule that may: (1) Have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined that this is an economically significant regulatory 
action under Executive Order 12866. VA's regulatory 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 regulatory impact 
analysis are available on VA's Web site at http://www.va.gov/orpm/, by 
following the link for ``VA Regulations Published From FY 2004 Through 
Fiscal Year to Date.''

Congressional Review Act

    This regulatory action is a major rule under the Congressional 
Review Act, 5 U.S.C. 801-08, because it may result in an annual effect 
on the economy of $100 million or more. Although this regulatory action 
constitutes a major rule within the meaning of the Congressional Review 
Act, 5 U.S.C. 804(2), it is not subject to the 60-day delay in 
effective date applicable to major rules under 5 U.S.C. 801(a)(3) 
because the Secretary finds that good cause exists under 5 U.S.C. 
808(2) to make this regulatory action effective on the date of 
publication, consistent with the reasons given for the publication of 
this final rule. Delay in expanding access to non-VA care for eligible 
veterans could result in the deterioration of their health. In 
accordance with 5 U.S.C. 801(a)(1), VA will submit to the Comptroller 
General and to Congress a copy of this regulatory action and VA's 
Regulatory Impact Analysis.

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 1 year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule will not have a significant economic impact on 
participating eligible entities and providers who enter into agreements 
with VA. To the extent there is any such impact, it will result in 
increased business and revenue for them. We also do not believe there 
will be a significant economic impact on insurance companies, as claims 
will only be submitted for care that will otherwise have been received 
whether such care was authorized under this Program or not. Therefore, 
pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial 
and final

[[Page 66429]]

regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are as follows: 64.007, Blind 
Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, 
Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 
64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 
64.013, Veterans Prosthetic Appliances; 64.014, Veterans State 
Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, 
Veterans State Hospital Care; 64.018, Sharing Specialized Medical 
Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 
64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless 
Providers Grant and Per Diem Program.

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. Robert L. 
Nabors II, Chief of Staff, Department of Veterans Affairs, approved 
this document on October 6, 2015, for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Government contracts, 
Grant programs-health, Grant programs-veterans, Health care, Health 
facilities, Health professions, Health records, Homeless, Mental health 
programs, Nursing homes, Reporting and recordkeeping requirements, 
Travel and transportation expenses, Veterans.

    Dated: October 22, 2015.
Michael Shores,
Chief Impact Analyst, Office of Regulation Policy & Management, Office 
of the General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA amends 38 CFR part 17 as 
follows:

PART 17--MEDICAL

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

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


0
2. In Sec.  17.1535, redesignate paragraph (a)(3) as paragraph (a)(5) 
and add paragraphs (a)(3) and (4) to read as follows:


Sec.  17.1535  Payment rates and methodologies.

    (a) * * *
    (3) For eligible entities or providers in Alaska, the Secretary may 
enter into agreements at rates established under Sec. Sec.  17.55(j) 
and 17.56(b).
    (4) For eligible entities or providers in a State with an All-Payer 
Model Agreement under the Social Security Act that became effective on 
January 1, 2014, payment rates will be calculated based on the payment 
rates under such agreement.
* * * * *
[FR Doc. 2015-27481 Filed 10-28-15; 8:45 am]
 BILLING CODE 8320-01-P
Federal Register / Vol. 80, No. 209 / Thursday, October 29, 2015 / Rules and Regulations 66419

Analysis: Special Regulations for reviewed to eliminate errors and www.nps.gov/klgo/learn/management/
Klondike Gold Rush National Historical ambiguity and be written to minimize documents.htm.
Park’’ and ‘‘Preliminary Cost/Benefit litigation; and
2. Meets the criteria of section 3(b)(2) Effects on the Energy Supply (Executive
Analysis: Special Regulations for
requiring that all regulations be written Order 13211)
Klondike Gold Rush National Historical
Park in Alaska which can be viewed in clear language and contain clear legal This rule is not a significant energy
online at http://www.nps.gov/klgo/ standards. action under the definition in Executive
learn/management/documents.htm. Order 13211. A Statement of Energy
Consultation With Indian tribes (E.O.
13175 and Department Policy) and Effects is not required.
Small Business Regulatory Enforcement
Fairness Act ANCSA Corporations. Drafting Information
This rule is not a major rule under 5 The Department of the Interior strives The primary authors of this regulation
U.S.C. 804(2), the Small Business to strengthen its government-to- are Jay Calhoun, Regulations Program
Regulatory Enforcement Fairness Act. government relationship with Indian Specialist, National Park Service, Jenna
This rule: Tribes through a commitment to Giddens of Kenai Fjords National Park,
a. Does not have an annual effect on consultation with Indian tribes and Andee Sears of the Alaska Regional
the economy of $100 million or more. recognition of their right to self- Office, National Park Service, and Tim
b. Will not cause a major increase in governance and tribal sovereignty. We Steidel of Klondike Gold Rush National
costs or prices for consumers, have evaluated this rule under the Historical Park.
individual industries, federal, state, or criteria in Executive Order 13175 and
under the Department’s tribal List of Subjects in 36 CFR Part 13
local government agencies, or
geographic regions consultation policy and Alaska Native Alaska, National parks, Reporting and
c. Does not have significant adverse Claims Settlement Act (ANCSA) recordkeeping requirements.
effects on competition, employment, Corporations policy and have In consideration of the foregoing, the
investment, productivity, innovation, or determined that tribal consultation is National Park Service amends 36 CFR
the ability of U.S. based enterprises to not required because the rulemaking part 13 as set forth below:
compete with foreign-based enterprises. will have no substantial direct effect on
federally recognized Indian tribes or PART 13—NATIONAL PARK SYSTEM
Unfunded Mandates Reform Act ANCSA Native Corporation lands, water UNITS IN ALASKA
This rule does not impose an areas, or resources. Nevertheless, the
unfunded mandate on State, local, or NPS sent copies of the draft plan and ■ 1. The authority citation for part 13
tribal governments or the private sector letters requesting government-to- continues to read as follows:
of more than $100 million per year. The government consultation to four nearby Authority: 16 U.S.C. 3124; 54 U.S.C.
rule does not have a significant or Native tribal governments, one of which 100101, 100751, 320102; Sec. 13.1204 also
unique effect on State, local or tribal is the Carcross/Tagish First Nations issued under Sec. 1035, Pub. L. 104–333, 110
governments or the private sector. A tribe in Carcross, Canada. Several Stat. 4240.
statement containing the information meetings were held between 2012 and ■ 2. Add § 13.1408 to subpart Q to read
required by the Unfunded Mandates 2013 with tribal governments in as follows:
Reform Act (2 U.S.C. 1531 et seq.) is Skagway and Haines to discuss key
therefore not required. components of the Dyea Area Plan and § 13.1408 Dyea.
EA that were of interest to the local The Dyea Historic Townsite is closed
Takings (Executive Order 12630)
federally recognized tribes. to the use of horses by members of the
This rule does not effect a taking of public except by special use permit
private property or otherwise have Paperwork Reduction Act (44 U.S.C.
3501 et seq.) issued by the Superintendent under
taking implications under Executive § 1.6 of this chapter. A map showing the
Order 12630. A takings implication This rule does not contain any new boundaries of the Dyea Historic
assessment is not required. collections of information that require Townsite is available on the park Web
approval by the Office of Management site and at the park visitor center.
Federalism (Executive Order 13132) and Budget (OMB) under the Paperwork
Under the criteria in section 1 of Reduction Act. OMB has approved the Dated: October 21, 2015.
Executive Order 13132, this rule does information collection requirements Michael Bean,
not have sufficient federalism associated with NPS Special Park Use Principal Deputy Assistant Secretary for Fish
implications to warrant the preparation Permits and has assigned OMB Control and Wildlife and Parks.
of a Federalism summary impact Number 1024–0026 (expires 08/31/16). [FR Doc. 2015–27522 Filed 10–28–15; 8:45 am]
statement. The rule is limited in effect An agency may not conduct or sponsor BILLING CODE 4310–EJ–P
to federal lands managed by the NPS in and a person is not required to respond
Alaska and will not have a substantial to a collection of information unless it
direct effect on state and local displays a currently valid OMB control DEPARTMENT OF VETERANS
government in Alaska. A federalism number. AFFAIRS
summary impact statement is not
National Environmental Policy Act
required. 38 CFR Part 17
This rule does not constitute a major
Civil Justice Reform (Executive Order Federal action significantly affecting the RIN 2900–AP24
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12988) quality of the human environment. A
This rule complies with the detailed statement under the National Expanded Access to Non-VA Care
requirements of Executive Order 12988. Environmental Policy Act of 1969 is not Through the Veterans Choice Program
Specifically, this rule: required because we reached a Finding AGENCY: Department of Veterans Affairs.
1. Meets the criteria of section 3(a) of No Significant Impact. The EA and
ACTION: Final rule.
requiring that all regulations be FONSI are available online at http://

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66420 Federal Register / Vol. 80, No. 209 / Thursday, October 29, 2015 / Rules and Regulations

SUMMARY: This document amends the Stat. 1754. Congress directed VA to Duration and Scope of the Program
Department of Veterans Affairs (VA) publish interim final regulations The Program is funded with $10
medical regulations implementing concerning this Program within 90 days billion in appropriated resources in the
section 101 of the Veterans Access, of enactment. Sec. 101(n), Public Law Veterans Choice Fund through section
Choice, and Accountability Act of 2014, 113–146, 128 Stat. 1754. On November 802 of the Act. The Program is
which directed VA to establish a 5, 2014, VA published an interim final authorized to continue until the date the
program to furnish hospital care and rulemaking implementing the Program Veterans Choice Fund is exhausted or
medical services through eligible non- by creating new regulations at 38 CFR August 7, 2017, whichever occurs first.
VA health care providers to eligible 17.1500–17.1540. 79 FR 65571 Sec. 101(p), Public Law 113–146, 128
veterans who either cannot be seen (hereinafter referred to as ‘‘the Stat. 1754. One commenter asked what
within the wait-time goals of the November interim final rule’’). VA happens when the Program ends.
Veterans Health Administration or who published another interim final Section 101 of the Act only authorizes
qualify based on their place of residence rulemaking on April 24, 2015, the Program to operate within the
(hereafter referred to as the ‘‘Veterans modifying § 17.1510(e) to revise the parameters described above, so when
Choice Program’’, or the ‘‘Program’’). VA methodology for calculating distances VA has exhausted the Veterans Choice
published an interim final rule under that section from geodesic (or Fund or on August 7, 2017 (whichever
implementing the Veterans Choice ‘‘straight-line’’) distance to the actual occurs first), the Program will end
Program on November 5, 2014, and driving distance. 80 FR 22906 absent further appropriations, if funds
published a subsequent interim final (hereinafter referred to as ‘‘the April are exhausted, or statutory authority.
rule making further amendments on interim final rule’’). VA will still be able to refer veterans to
April 24, 2015. This final rule responds In response to the November interim community providers under other non-
to public comments received from both final rule, VA received 39 comments, VA care authorities, but such referrals
interim final rules and amends the and in response to the April interim will be subject to the provisions of those
regulations to modify payment rates final rule, VA received 12 comments. statutes and contingent upon the
under the Program. Several commenters expressed support availability of resources. VA is not
DATES: Effective Date: This rule is for the Program, in whole or in part, and making a change based on this
effective on October 29, 2015. we appreciate their support. This final comment.
FOR FURTHER INFORMATION CONTACT: rule amends 38 CFR part 17 as VA received several comments
Kristin Cunningham, Director, Business discussed below. suggesting that non-VA providers under
Policy, Chief Business Office (10NB), the Program should be able to make
VA Copayments
Veterans Health Administration, referrals back to VA for specific care,
Department of Veterans Affairs, 810 The November interim final rule services, or tests. The Act authorizes VA
Vermont Avenue NW., Washington, DC modified 38 CFR 17.108, 17.110, and to furnish hospital care and medical
20420, (202) 382–2508. (This is not a 17.111 to establish a VA copayment of services for eligible veterans through
toll-free number.) $0 at the time of service for veterans agreements with eligible entities,
SUPPLEMENTARY INFORMATION: On August receiving non-VA care under the including any health care provider
7, 2014, the President signed into law Program who would have been required participating in the Medicare program,
the Veterans Access, Choice, and to make a copayment for the receipt of any Federally-qualified health center,
Accountability Act of 2014 (‘‘the Act,’’ hospital care or medical services at a VA the Department of Defense, and the
Pub. L. 113–146, 128 Stat. 1754). medical facility. We received several Indian Health Service. Sec. 101(a)(1),
Further technical revisions to the Act comments recommending that VA Public Law 113–146, 128 Stat. 1754. As
were made on September 26, 2014, require veterans to make their VA we explained in the November interim
when the President signed into law the copayment at the time services are final rule, the Act specifically envisions
Department of Veterans Affairs Expiring rendered. that care under the Program is provided
Authorities Act of 2014 (Pub. L. 113– As we explained in detail in the by non-VA resources, as demonstrated
175, 128 Stat. 1901, 1906), on December November interim final rule, there are by section 101(a)(3) of the Act, which
16, 2014, when the President signed administrative difficulties in requires VA to coordinate through the
into law the Consolidated and Further determining the proper copayment Non-VA Care Coordination Program the
Continuing Appropriations Act, 2015 amount for a visit scheduled through furnishing of care and services under
(Pub. L. 113–235, 128 Stat. 2130, 2568), the Program that make it inefficient to this Program. For these reasons, we are
on May 22, 2015, when the President attempt to charge a copayment amount not making any changes to the rule as
signed into law the Construction at the time of visit. In addition, not a result of this comment. However, we
Authorization and Choice Improvement charging a copayment at the time of the note that veterans who receive non-VA
Act (Pub. L. 114–19, 129 Stat. 215), and visit was intended to ensure that care through the Program are still in the
on July 31, 2015, when the President veterans’ experiences under the Program VA health care system, and can at any
signed into law the Surface would be as similar as possible to their time return to VA for care. A veteran’s
Transportation and Veterans Health experiences when provided with non- election to participate in the Program
Care Choice Improvement Act (Pub. L. VA care through other VA programs, does not foreclose returning to VA for
114–41, 129 Stat. 443). Section 101 of where copayments are not due at the care.
the Act creates the Veterans Choice time of appointment. These reasons We received comments indicating that
Program and requires the Secretary to have not changed since November. the Program should be used to provide
enter into agreements with identified Therefore, in the interests of unscheduled or emergency care,
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eligible non-Department of Veterans administrative efficiency and to avoid particularly under extraordinarily
Affairs (VA) entities or providers to the appearance of inconsistency dangerous circumstances. We note that
furnish hospital care and medical between non-VA care provided through under the contract VA has signed with
services to eligible veterans who elect to the Program and under other the vendors administering the Program,
receive care under the Program. Sec. authorities, we are not making a change VA will cover the cost of emergency
101(a)(1)(A), Public Law 113–146, 128 as a result of these comments. care in limited circumstances, namely

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to address situations in which veterans suggesting that the 40 mile criterion in and hospitals. We do not believe we
could not get scheduled appointments general should be removed or eased so have authority under the Act to modify
in a timely manner. As noted above, the that more veterans can participate in the this standard, and as a result, we are not
Program is not designed to take the Program. In April, VA published an making a change in response to these
place of VA’s existing authority to interim final rule modifying this comments.
provide emergent care through non-VA standard in accordance with the VA also received a comment
providers—such care, and other non-VA comments we received, to change the recommending that we modify the
care, is available under other authorities methodology for calculating distances definition of ‘‘VA medical facility’’ to
than the Act. In short, our goal is to from geodesic (or ‘‘straight-line’’) exclude health care centers. We defined
furnish timely care to all veterans, distance to driving distance. 80 FR the term ‘‘VA medical facility’’ to mean
whether within a VA medical facility or 22906. In response to the interim final a VA hospital, a VA community-based
through a non-VA provider, and Choice rule published in April changing this outpatient clinic (CBOC), or a VA health
is not the only mechanism available to methodology, VA received 12 care center. ‘‘VA health care center’’ is
furnish this care. If a veteran requires comments. Many of these comments a term we use to describe a facility that
care sooner and VA is unable to furnish supported this change. Several offers services between what is available
this care, while the veteran would not commenters raised issues beyond the at a CBOC and a VA hospital. The
be eligible for the Program, VA may and scope of that rulemaking but in response phrase ‘‘medical facility of the
does use another statutory authority to to the larger Program. For example, Department,’’ as used in the Act in
furnish non-VA care. some comments noted that traffic section 101(b)(2)(B) and elsewhere,
We also received a comment conditions or the veteran’s health make specifically includes CBOCs, so we
recommending that VA streamline the even a 40 mile driving distance too conclude that any facility that offers
eligibility process for veterans who much for some veterans to bear. We more services than those available at a
qualify under the wait-time criterion. understand this concern and believe CBOC should be included within the
The commenter stated that there can be that the discussion later in this final definition of a VA medical facility. As
up to a 72-hour delay before a veteran rule related to the ‘‘excessive or unusual a result, we are not making a change
is added to the Veterans Choice List, the burden on travel’’ standard under based on this comment.
record system VA uses to identify § 17.1510(b)(4) may help address these Under § 17.1510(b)(3), a veteran is
veterans who are eligible for the concerns. VA is not making a change to eligible if the veteran’s residence is in
Program. The commenter further stated the driving distance provision as a a state without a full-service VA
that there can be a 2–3 day delay result of these comments. medical facility and the veteran lives
between placement on the Veterans The April interim final rule greatly more than 20 miles from such a facility.
Choice List and when the vendors expanded veteran eligibility based on A full-service VA medical facility is one
administering the program are able to this criterion, representing liberalization that provides—on its own and not
verify the veteran’s eligibility. The similar to what had been suggested by through a joint venture—hospital care,
commenter expressed concern that these many commenters. However, to the emergency medical services, and
administrative steps are delaying care extent that commenters believe that 40- surgical care having a surgical
for veterans. While this comment is miles driving distance is still an complexity of standard. VA received
outside the scope of the rulemaking, unreasonable calculation, we do not one comment about the applicability of
which only needs to define the believe that the Act gives us authority this provision to veterans residing in
eligibility criteria and not the specific to depart from that standard. New Hampshire. The commenter stated
procedures VA follows to execute the VA received a large number of that veterans living in New Hampshire
Program, we are working to streamline comments recommending that VA near the Manchester VA Medical Center
eligibility determinations and have measure distance from the closest VA were not eligible to participate in the
learned a great deal about how to medical facility that can provide the Program based on their proximity to this
operate the Program more effectively care a veteran needs. As we explained facility. That reading of the law and
during the first several months of in detail in the November interim final regulations is incorrect and does not
operation. For example, VA is now rule, the plain language of the Act refers reflect VA’s practice in implementing
sending the updated Veterans Choice only to ‘‘the medical facility of the the Program. Section 101(b)(2)(C) of the
List to the vendors administering the Department that is closest to the Act, and § 17.1510(b)(3) of the
Program on a daily basis. The list residence of the veteran,’’ without regulations, state that a veteran may be
includes all veterans who are eligible allowing VA to consider whether the eligible if he or she resides in a State
based on the wait time criterion as well facility can actually provide the care without a full-service VA medical
as those veterans who elect to be placed needed by the veteran. Sec. 101(b)(2)(B), facility and lives more than 20 miles
on an electronic waiting list to receive Public Law 113–146, 128 Stat. 1754. from such a facility. The Manchester VA
services from VA. We are not making a Additionally, the Conference Report Medical Center is not a full-service VA
change as a result of this comment. accompanying the legislation states that medical facility because it does not have
veterans are eligible if they live ‘‘within a surgical complexity of standard, and
Eligibility Based on Distance From a 40 miles of a medical facility,’’ again because no other facility in New
VA Medical Facility without regard to such facility’s ability Hampshire has such a designation,
Under § 17.1510(b)(2), a veteran is to provide the required care. H. Rpt. veterans in New Hampshire may be
eligible if the veteran resides more than 113–564, p. 55. The use of the general eligible if they reside more than 20
40 miles from the VA medical facility article ‘‘a’’ demonstrates that Congress miles from a full-service VA medical
that is closest to the veteran’s residence.
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intended for this to refer to any facility, facility. The only full-service VA
This standard considers the distance rather than to a specific facility. The Act medical facility within 20 miles of New
between a veteran’s residence, as also specifically included community- Hampshire’s borders is the White River
defined in § 17.1505, and any VA based outpatient clinics (CBOC) among Junction VA Medical Center in
medical facility, even if that facility VA medical facilities, and Congress was Vermont. Veterans residing in New
cannot provide the care that the veteran aware that CBOCs offer a more limited Hampshire and within 20 miles of this
requires. We received several comments set of services than VA medical centers facility are not eligible to participate in

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the Program under the § 17.1510(b)(3) excessive burden in traveling to a VA were not identified during the initial
criterion, but all other veterans in New medical facility based on geographical authorization. The Act requires VA to
Hampshire are eligible to participate challenges; environmental factors, such furnish hospital care and medical
based on this criterion. The Manchester, as roads that are not accessible to the services through the completion of the
NH area is more than 20 miles from general public, traffic, or hazardous episode of care deemed necessary as
White River Junction, VT. Therefore, as weather; a medical condition that part of the recommended treatment. Sec.
long as a veteran residing in Manchester impacts the ability to travel; or other 101(h), Public Law 113–146, 128 Stat.
meets the initial eligibility criteria in factors, as determined by the Secretary. 1754. If a non-VA health care provider
§ 17.1510(a), he or she will be eligible to We appreciate Congress’ assistance with believes that a veteran needs additional
participate in the Program. VA is not modifying this provision of law and care outside the scope of the authorized
making any changes to the rule as a allowing VA to consider other factors course of treatment, the health care
result of this comment. that may create a burden on veterans provider must contact VA prior to
One commenter asked what system traveling to a VA medical facility. As a administering such care to ensure that
VA will use, and how VA will ensure result of the change in law, VA will be this care is authorized. There is no
that it is properly measuring distances publishing a separate rulemaking indication in the law that it was
from newly constructed housing. VA announcing the criteria VA will use to intended to authorize unscheduled or
uses the Esri Geographic Information determine veteran eligibility based on unauthorized non-VA care. Indeed, the
System to identify locations for this new law. preauthorization requirement is
purposes of determining mileage under important to ensure that VA is not
the Program. In the vast majority of Section 17.1515 Authorizing Non-VA
subject to an open ended commitment,
situations, VA is able to locate a new Care
and so that veterans are not subjected to
address. In those cases where VA is Section 17.1515 describes the process unnecessary procedures and tests but
unable to locate the new address, our and requirements for authorizing non- only receive care that is necessary. VA
staff work with the veteran to correct the VA care under the Program. We is not making a change based on these
issue. received several comments on different comments.
On May 22, 2015, the Construction aspects of the authorization process. Several commenters recommended
Authorization and Choice Improvement Although some of these comments that VA simplify and standardize the
Act was signed into law (Pub. L. 114– addressed issues beyond the immediate authorization and claims processes in
19); section 3(a)(1) of this law amended scope of the November interim final order to reduce the administrative
section 101(b)(2)(B) of the Act to clarify rule, VA is responding to the comments burdens on participating eligible
that the 40 miles is to be ‘‘calculated here nonetheless. providers. VA also received a comment
based on distance traveled’’. VA is First, we received a comment asking stating that VA should reduce or
interpreting this revision as support for why a patient would be required to eliminate the preauthorization
the use of driving distance, which travel to a different VA facility farther requirement for treatment from
reflects the distance traveled, rather from home, when seeking advanced approved non-VA providers who have
than the straight-line or geodesic authorization would not have been an established record of effective and
distance standard VA previously reasonable, sound, wise, or practicable. efficient care within the Program. The
adopted. VA is not making a further The commenter cited to VA’s Program’s regulations do not identify
change to § 17.1510(e) as a result of the regulations at 38 CFR 17.120(c), which any requirement for providers beyond
statutory revision enacted in Public Law uses some of this terminology. That what is included in the Act, and the
114–19. regulation, however, deals with authorization of care is also required for
reimbursing veterans for emergency the reasons stated above. We believe
Eligibility Based on Burden in treatment when Federal facilities are
Traveling that continued experience with the
unavailable. As explained in the interim Program will help VA and eligible,
Under the November interim final final rule published in November, the participating providers streamline this
rule, § 17.1510(b)(4), a veteran may be Program generally does not cover process to facilitate faster access to care.
eligible if she or he lives 40 miles or less emergency care, which is covered We are not making a change to the rule
from a VA medical facility but faces an instead by other statutes and as a result of these comments.
unusual or excessive burden in traveling regulations. Any veteran requiring VA also received comments offering
to such medical facility based on the emergency care should not contact VA recommendations for a simpler method
presence of a body of water or a geologic to use the Program but should seek such for authorizing care. For example, some
formation that cannot be crossed by emergency services as are necessary. comments stated that there should be a
road. We received several comments Furthermore, under the Program, VA unique call-in number for providers,
recommending that this standard be would not require a veteran to travel to and that VA and the vendors
loosened to provide greater flexibility to another VA facility; a veteran’s administering the Program should have
allow veterans to participate in the eligibility is determined based upon the a better records system so that a veteran
Program. The commenters did not veteran’s residence or whether the does not have to provide the same
recommend a specific alternative veteran can be seen by VA within the information multiple times. Most of
interpretation, but on May 22, 2015, the wait-time goals of the Veterans Health these comments are beyond the scope of
Construction Authorization and Choice Administration. VA is not making a the rulemaking because they deal with
Improvement Act was signed into law change to its regulations based on this purely administrative or operational
modifying this standard. Public Law comment. issues, like the use of a dedicated phone
114–19. Specifically, section 3(a)(2) of Another comment stated that
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line for providers or recordkeeping,
Public Law 114–19 revised section requiring advanced authorization may which are not mandated by regulation.
101(b)(2)(D)(ii) of the Act by changing prevent veterans from receiving timely We appreciate this feedback and will
the standards that could be the basis for care. VA also received several consider it as part of our ongoing effort
an unusual or excessive burden. comments that non-VA providers to more efficiently execute the Program.
Specifically, the Act now allows VA to should be able to be reimbursed for care One goal of VA and the vendors
determine that there is an unusual or furnished for conditions present that administering the Program is to record

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this section and who is willing to enter are not making a change to the rule as use. VA is not making a change to the
into an agreement with VA. VA is not a result of these comments. rule as a result of these comments.
making a change to the rule as a result We also received a recommendation Section 17.1535 Payment Rates and
of this comment. to broaden the language about Methodologies
Under § 17.1530(b), an entity or credentialing and licensing to ensure
provider must enter into an agreement qualified non-physician practitioners Section 17.1535 addresses payment
with VA to provide non-VA hospital qualify to participate in the Program. rates and payment methodologies. VA
care or medical services under the Another commenter suggested that VA received a number of comments on this
Program. VA received several comments include osteopathic and allopathic section.
on the process for entering into credentials for physicians. VA is limited Several commenters stated that VA
agreements. Several comments by section 101(i) of the Act to accepting should be paying Medicare rates under
suggested that local facilities should be the Program. Section 17.1535(a)(1)
non-VA providers who meet the same or
able to enter into contracts to provide establishes the payment rule that most
similar standards as VA providers; to
reimbursement rates under the Program
services through the Program. The the extent non-physician practitioners
will not exceed the Medicare rate,
rulemaking is silent on this point, and or physicians with osteopathic or
consistent with section 101(d)(2)(B)(i) of
we do not believe the regulation needs allopathic credentials in VA could
the Act. There are only two exceptions
to be specific on this issue. Nothing in perform functions or procedures, those
to this rule in the Act. First,
the regulations governing the program in the community could do so as well
§ 17.1535(a)(2) authorizes VA to pay a
would prevent a local VA facility from under the Program if they have the same
rate higher to an eligible entity or
entering into a contract with a local qualifications. VA is not making a
provider in a highly rural area, so long
provider, although the Program is change to the rule based on these as such rate is still determined by VA
presently administered only under comments. to be fair and reasonable. Second,
national contracts. If VA determines that Although not addressed in the § 17.1535(a)(3) authorizes VA to pay a
the national contracts cannot provide all regulation, VA stated in the November higher rate when no Medicare rate is
of the care needed and available in the interim final rule notice that eligible available. We explain in the discussion
Program, VA can use the provider entities and providers furnishing below that we are adding two additional
agreement authority established by the hospital care and medical services to exceptions to § 17.1530.
Act to obtain the needed care. We note eligible veterans through the Program, to The vendors administering the
that VA has not yet implemented this the extent possible, should submit Program also operate the Patient-
provider agreement authority, but is medical records back to VA in an Centered Community Care (PC3)
developing a provider agreement electronic format. The agreements VA contract, which can pay rates lower than
template that can be used by local reaches with eligible entities and the Medicare rate, and it is possible that
facilities. VA therefore is not making a providers clarify this requirement. We there is some confusion among
change as a result of these comments. received several comments on the providers regarding whether they are
Several comments also stated that exchange of information under the providing care under the Program or the
existing agreements, including Program, which are outside the scope of PC3 contract. Indeed, we received some
agreements with Tribal and urban the rulemaking but will be addressed comments stating that providers did not
health programs among others, should here nonetheless. Several commenters always know under which authority
be used to furnish care. Existing suggested that VA should ensure that they were furnishing care. We shared
contracts and agreements with eligible participating providers have timely these comments with the vendors
providers can be used to furnish care, access to the necessary patient administering the Program and are
and VA is promoting their use, information to help them make working to improve communication so
particularly prior to the implementation informed clinical decisions regarding that providers understand what care is
of the provider agreement authority treatment. VA’s Non-VA Care furnished under the Program and what
established by the Act. VA is not Coordination (NVCC) program is is performed pursuant to PC3. Providers
making a change as a result of these intended to help facilitate care by who signed contracts to furnish care
comments. sharing information, to the extent under PC3 at a set rate may also be
Under § 17.1530(d), a non-VA authorized by law and regulation, with subject to receiving that negotiated rate
provider must maintain at least the non-VA providers prior to a patient’s when furnishing care under the Program
same or similar credentials and licenses appointment. However, some veterans as well, but VA is not a party to those
as required by VA of its own providers. who have never received health care agreements between vendors and
We received several comments on this from VA are eligible to participate in the providers and cannot interfere with the
provision. We received comments that Program, and for these veterans, VA terms of those agreements. We are not
the process for submitting and cannot furnish information in advance making any changes based on these
reviewing credentials and privileging of an appointment. We are working to comments.
information should not be overly standardize the transmission of However, we are adding two
burdensome. Administratively, we have information, both to and from VA, to additional exceptions to § 17.1535(a).
tried to make this process as simple as improve the delivery of health care for First, we are adding a new paragraph
possible, while still adhering to the veterans receiving treatment in VA and (a)(3) authorizing VA to pay eligible
requirements of the Act in section the community. Other comments providers or entities in the State of
101(i), by making the credentialing and suggested that electronic submission of Alaska using rates set forth in 38 CFR
privileging process part of the provider’s medical records back to VA should be 17.55(j) and 17.56(b). The rates in
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approval process with the vendors streamlined and simple so that §§ 17.55(j) and 17.56(b) are currently
administering the program. The providers do not have to struggle to used to establish special rates to pay for
regulations do not address the system comply with this requirement. VA has non-VA care in Alaska under authorities
for this specifically, and we do not think set up a secure Web site where other than the Program, and the new
such detail is needed in case we need providers can submit this information, paragraph would simply make the
to modify the system at a later time. We and we believe it is simple and easy to Program comparable. We are also

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66428 Federal Register / Vol. 80, No. 209 / Thursday, October 29, 2015 / Rules and Regulations

final rule. See Public Law 113–235 required of VA’s health care providers, at http://www.va.gov/orpm/, by
(discussed above). These regulatory as determined by the Secretary. following the link for ‘‘VA Regulations
changes reflect these new provisions, As required by the Paperwork Published From FY 2004 Through Fiscal
and notice and public comment could Reduction Act of 1995 (at 44 U.S.C. Year to Date.’’
not therefore result in any change to 3507(d)), VA has submitted these
information collections to OMB for its Congressional Review Act
these provisions. Further, since the
public laws became effective on their review. OMB approved these new This regulatory action is a major rule
respective dates of enactment, VA information collection requirements under the Congressional Review Act, 5
believes it is impracticable and contrary associated with the final rule and U.S.C. 801–08, because it may result in
to law and the public interest to delay assigned OMB control number 2900– an annual effect on the economy of $100
this rule for the purpose of soliciting 0823. We have added the approved million or more. Although this
advance public comment or to have a OMB control number to the relevant regulatory action constitutes a major
delayed effective date. parentheticals. rule within the meaning of the
Effect of Rulemaking Executive Orders 12866 and 13563 Congressional Review Act, 5 U.S.C.
804(2), it is not subject to the 60-day
Title 38 of the Code of Federal Executive Orders 12866 and 13563
delay in effective date applicable to
Regulations, as revised by this final rule, direct agencies to assess the costs and
major rules under 5 U.S.C. 801(a)(3)
benefits of available regulatory
represents VA’s implementation of its because the Secretary finds that good
alternatives and, when regulation is
legal authority on this subject. Other cause exists under 5 U.S.C. 808(2) to
necessary, to select regulatory
than future amendments to this make this regulatory action effective on
approaches that maximize net benefits
regulation or governing statutes, no the date of publication, consistent with
(including potential economic,
contrary guidance or procedures are the reasons given for the publication of
environmental, public health and safety
authorized. All existing or subsequent this final rule. Delay in expanding
effects, and other advantages;
VA guidance must be read to conform access to non-VA care for eligible
distributive impacts; and equity).
with this rulemaking if possible or, if veterans could result in the
Executive Order 13563 (Improving
not possible, such guidance is deterioration of their health. In
Regulation and Regulatory Review)
superseded by this rulemaking. emphasizes the importance of accordance with 5 U.S.C. 801(a)(1), VA
quantifying both costs and benefits, will submit to the Comptroller General
Paperwork Reduction Act
reducing costs, harmonizing rules, and and to Congress a copy of this regulatory
The Paperwork Reduction Act of 1995 promoting flexibility. Executive Order action and VA’s Regulatory Impact
(44 U.S.C. 3507) requires that VA 12866 (Regulatory Planning and Analysis.
consider the impact of paperwork and Review) defines a ‘‘significant Unfunded Mandates
other information collection burdens regulatory action,’’ requiring review by
imposed on the public. Under 44 U.S.C. OMB, unless OMB waives such review, The Unfunded Mandates Reform Act
3507(a), an agency may not collect or as ‘‘any regulatory action that is likely of 1995 requires, at 2 U.S.C. 1532, that
sponsor the collection of information, to result in a rule that may: (1) Have an agencies prepare an assessment of
nor may it impose an information annual effect on the economy of $100 anticipated costs and benefits before
collection requirement, unless it million or more or adversely affect in a issuing any rule that may result in the
displays a currently valid Office of material way the economy, a sector of expenditure by State, local, and tribal
Management and Budget (OMB) control the economy, productivity, competition, governments, in the aggregate, or by the
number. See also 5 CFR 1320.8(b)(3)(vi). jobs, the environment, public health or private sector, of $100 million or more
This final rule will impose the safety, or State, local, or tribal (adjusted annually for inflation) in any
following new information collection governments or communities; (2) Create 1 year. This final rule will have no such
requirements. Section 17.1515 requires a serious inconsistency or otherwise effect on State, local, and tribal
eligible veterans to notify VA whether interfere with an action taken or governments, or on the private sector.
the veteran elects to receive authorized planned by another agency; (3) Regulatory Flexibility Act
non-VA care through the Veterans Materially alter the budgetary impact of
Choice Program, be placed on an entitlements, grants, user fees, or loan The Secretary hereby certifies that
electronic waiting list, or be scheduled programs or the rights and obligations of this final rule will not have a significant
for an appointment with a VA health recipients thereof; or (4) Raise novel economic impact on a substantial
care provider. Section 17.1515(b)(1) also legal or policy issues arising out of legal number of small entities as they are
allows eligible veterans to specify a mandates, the President’s priorities, or defined in the Regulatory Flexibility
particular non-VA entity or health care the principles set forth in this Executive Act, 5 U.S.C. 601–612. This final rule
provider, if that entity or provider meets Order.’’ will not have a significant economic
certain requirements. Section 17.1510(d) The economic, interagency, impact on participating eligible entities
requires eligible veterans to submit to budgetary, legal, and policy and providers who enter into
VA information about their health-care implications of this regulatory action agreements with VA. To the extent there
plan to participate in the Veterans have been examined, and it has been is any such impact, it will result in
Choice Program. Participating eligible determined that this is an economically increased business and revenue for
entities and providers are required to significant regulatory action under them. We also do not believe there will
submit a copy of any medical record Executive Order 12866. VA’s regulatory be a significant economic impact on
related to hospital care or medical impact analysis can be found as a insurance companies, as claims will
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services furnished under this Program to supporting document at http:// only be submitted for care that will
an eligible veteran. Section 17.1530 www.regulations.gov, usually within 48 otherwise have been received whether
requires eligible entities and providers hours after the rulemaking document is such care was authorized under this
to submit verification that the entity or published. Additionally, a copy of the Program or not. Therefore, pursuant to
provider maintains at least the same or rulemaking and its regulatory impact 5 U.S.C. 605(b), this rulemaking is
similar credentials and licenses as those analysis are available on VA’s Web site exempt from the initial and final

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Document Created: 2015-12-14 15:21:36
Document Modified: 2015-12-14 15:21:36
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Contact		Kristin Cunningham, Director, Business Policy, Chief Business Office (10NB), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 382-2508. (This is not a toll-free number.)
FR Citation		80 FR 66419
RIN Number		2900-AP24
CFR Associated		Administrative Practice and Procedure; Alcohol Abuse; Alcoholism; Claims; Day Care; Dental Health; Drug Abuse; Government Contracts; Grant Programs-Health; Grant Programs-Veterans; Health Care; Health Facilities; Health Professions; Health Records; Homeless; Mental Health Programs; Nursing Homes; Reporting and Recordkeeping Requirements; Travel and Transportation Expenses and Veterans