82 FR 55547 - Third Party Billing for Medical Care Provided Under Special Treatment Authorities

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 82, Issue 224 (November 22, 2017)

Page Range		55547-55549
FR Document		2017-25269

The Department of Veterans Affairs (VA) proposes to amend its medical regulations to clarify that VA will not bill third party payers for care and services provided by VA under certain statutory provisions, which we refer to as ``special treatment authorities.'' These special treatment authorities direct VA to provide care and services to veterans based upon discrete exposures or experiences that occurred during active military, naval, or air service. VA is authorized, but not required by law, to recover or collect charges for care and services provided to veterans for non-service connected disabilities. This proposed rule would establish that VA would not exercise its authority to recover or collect reasonable charges from third party payers for care and services provided under the special treatment authorities.

Federal Register, Volume 82 Issue 224 (Wednesday, November 22, 2017)

[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Proposed Rules]
[Pages 55547-55549]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-25269]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP20

Third Party Billing for Medical Care Provided Under Special
Treatment Authorities

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
medical regulations to clarify that VA will not bill third party payers
for care and services provided by VA under certain statutory
provisions, which we refer to as ``special treatment authorities.''
These special treatment authorities direct VA to provide care and
services to veterans based upon discrete exposures or experiences that
occurred during active military, naval, or air service. VA is
authorized, but not required by law, to recover or collect charges for
care and services provided to veterans for non-service connected
disabilities. This proposed rule would establish that VA would not
exercise its authority to recover or collect reasonable charges from
third party payers for care and services provided under the special
treatment authorities.

DATES: Comments must be received by VA on or before January 22, 2018.

ADDRESSES: Written comments may be submitted by email through http://www.regulations.gov; by mail or hand-delivery to Director, Regulations
Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue
NW., Room 1063B, Washington, DC 20420; or by fax to (202) 273-9026
(this is not a toll-free number). Comments should indicate that they
are submitted in response to ``RIN 2900-AP20, Third Party Billing for
Medical Care Provided under Special Treatment Authorities.'' Copies of
comments received will be available for public inspection in the Office
of Regulation Policy and Management, Room 1063B, between the hours of
8:00 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please
call (202) 461-4902 for an appointment (this is not a toll-free
number). In addition, during the comment period, comments may be viewed
online through the Federal Docket Management System (FDMS) at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director, Policy and
Planning VHA Office of Community Care (10D1A1), Veterans Health
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW.,
Washington, DC 20420, (303-370-1637). (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Many veterans enrolled in VA's health care
system also have private insurance. VA is authorized by law under 38
U.S.C. 1729 to recover or collect reasonable charges from third parties
under certain situations for care and services provided for non-
service-connected disabilities. For example, VA may recover or collect
such charges when a veteran requires medical care following a motor
vehicle accident or an injury at work. 38 U.S.C. 1729(a)(2)(A)-(B).
These provisions are reflected in regulation at 38 CFR 17.101. VA does
not have authority to recover or collect charges from third parties for
care or services provided for service-connected disabilities.
Under the statutes referred to as the special treatment
authorities, which are codified at 38 U.S.C. 1710(a)(2)(F) and (e),
1720D, and 1720E, VA provides care and services to veterans for
conditions and disabilities that are related to certain exposures or
experiences during active military, naval, or air service, regardless
of whether such condition or disability is formally adjudicated by the
Veterans Benefits Administration (VBA) to be service-connected.
Specifically, these statutory provisions do not expressly refer to the
conditions or disabilities resulting from such exposures or experiences
as service-connected. Therefore, if veterans meet the eligibility
criteria of these discrete categories in law, they receive the health
care benefits enumerated in the special treatment authorities. A brief
description of each of the special treatment authorities follows.
Subject to the availability of appropriations, under 38 U.S.C.
1710(a)(2)(F), VA provides hospital care and medical services, and may
furnish nursing home care, to veterans who were exposed to a toxic
substance, radiation, or other conditions identified in 38 U.S.C.
1710(e) for the treatment of the disabilities described in subsection
(e). More specifically, subject to the requirements in 38 U.S.C.
1710(e)(2)-(4), such care and services are available under 38 U.S.C.
1710(a)(2)(F) and 1710(e) (at no cost to the veteran) as follows:
For the treatment of any disability of a Vietnam-era,
herbicide-exposed veteran, notwithstanding that there is insufficient
medical evidence to conclude that such disability may be associated
with such exposure;
For the treatment of any disease specified by 38 U.S.C.
1112(c)(2) or for which the Secretary, based on the

[[Page 55548]]

advice of the Advisory Committee on Environmental Hazards, determines
that there is credible evidence of a positive association between
occurrence of the disease in humans and exposure to ionizing radiation,
of any radiation-exposed veteran;
For treatment of any disability of a veteran who served on
active duty between August 2, 1990, and November 11, 1998, in the
Southwest Asia theater of operations during the Persian Gulf War,
notwithstanding that there is insufficient medical evidence to conclude
that such disability may be associated with such service;
For treatment of any illness suffered by a veteran who
served on active duty in a theater of combat operations during a period
of war after the Persian Gulf War or in combat against a hostile force
during a period of hostilities after November 11, 1998, notwithstanding
that there is insufficient medical evidence to conclude that such
condition is attributable to such service;
For treatment of any illness suffered by a veteran who
participated in a test conducted by the Department of Defense Deseret
Test Center as part of a program for chemical and biological warfare
testing from 1962 through 1973 (including the program designated as
``Project Shipboard Hazard and Defense (SHAD)'' and related land-based
tests) notwithstanding that there is insufficient medical evidence to
conclude that such illness is attributable to such testing; and
For treatment of certain illnesses or conditions
identified by statute suffered by a veteran who served on active duty
in the Armed Forces at Camp Lejeune, North Carolina, for not fewer than
30 days during the period beginning on August 1, 1953, and ending on
December 31, 1987, notwithstanding that there is insufficient medical
evidence to conclude that such illnesses or conditions are attributable
to such service.
Under 38 U.S.C. 1720D, VA is authorized to provide counseling and
appropriate care and services to help veterans overcome psychological
trauma, which in the judgment of a mental health professional employed
by VA, resulted from a physical assault of a sexual nature, battery of
a sexual nature, or sexual harassment which occurred while the veteran
was serving on active duty, active duty for training, or inactive duty
training.
Under 38 U.S.C. 1720E, VA is authorized to provide any veteran,
whose service records include documentation of nasopharyngeal radium
irradiation treatments, a medical examination, hospital care, medical
services, and nursing home care that is needed for the treatment of any
cancer of the head or neck that the Secretary finds may be associated
with the veteran's receipt of those treatments in active military,
naval, or air service; additionally, notwithstanding the absence of
such documentation, VA may provide such care to a veteran who served as
an aviator in the active military, naval, or air service before the end
of the Korean conflict or a veteran who underwent submarine training in
active naval service before January 1, 1965.
The special treatment authorities do not require an adjudication of
service-connection to establish eligibility for care. These veterans
are eligible under those authorities for treatment of specific
conditions, which although not adjudicated as service-connected, are
the practical equivalent for medical care purposes. VA proposes,
therefore, in the interest of equity, to add a new paragraph (a)(9) in
Sec. 17.101 to exclude from recovery or collections any reasonable
charges from third parties for care and services provided under the
special treatment authorities. This would conform the regulation to the
current general practice of not seeking recovery or collection from
third parties for medical care and services related to conditions and
disabilities under the special treatment authorities.
Proposed paragraph (a)(9)(i) would state that, notwithstanding any
other provision in this part authorizing VA to recover or collect such
charges, VA will not seek to recover or collect reasonable charges from
a third party payer for care and services when such care and services
are being provided under any of the special treatment authorities
discussed above. Proposed paragraphs (a)(9)(i)(A)-(C) would cite each
of these authorities.
The special treatment authorities of 38 U.S.C. 1710(a)(2)(F) and
(e) do not extend, however, to conditions and disabilities that the
Under Secretary for Health determines, consistent with the terms of 38
U.S.C. 1710(e)(2)(A)-(B), have resulted from causes other than those
described in the special treatment authorities. In these cases, needed
treatment is still provided to the veteran but, depending on the facts,
the veteran may be subject to copayment requirements in connection with
the receipt of such treatment. In proposed Sec. 17.101(a)(9)(ii), VA
would clarify that we would continue to have the right to recover or
collect reasonable charges from third parties, pursuant to 38 CFR
17.101, for the cost of care that VA provides to these same veterans
for conditions and disabilities that VA determines are not covered by
any of the special treatment authorities. For example, VA would not
recover or collect charges from a third party payer for treatment of a
veteran's lung cancer if that veteran served on active duty in the
Armed Forces at Camp Lejeune, North Carolina, for not fewer than 30
days during the period beginning on August 1, 1953, and ending on
December 31, 1987. However, VA could recover or collect reasonable
charges from a third party payer for treatment of the same veteran's
broken leg incurred in a post-deployment automobile accident.
Similarly, VA would not recover or collect charges from a third party
payer for treatment of a Vietnam-era herbicide-exposed veteran's
disability found to be possibly related to such exposure, but VA could
recover or collect reasonable charges from a third party payer for
treatment of a condition determined by the Under Secretary for Health
to have resulted from a cause other than such exposure. Continuing with
this last example, the determination of whether a Vietnam-era
herbicide-exposed veteran's disability may be related to that exposure
is strictly a clinical judgment to be made by the responsible physician
(acting in accordance with the guidelines issued by the Under Secretary
of Health and a report issued in accordance with section 3 of the Agent
Orange Act of 1991 by the National Academy of Sciences).
Finally, VA also proposes to amend the list of authorities
appearing at the end of Sec. 17.101 to include 38 U.S.C. 1720D and
1720E. These are two of the special treatment authorities previously
discussed. The list of authorities already includes 38 U.S.C. 1710.

Effect of Rulemaking

The Code of Federal Regulations, as proposed to be revised by this
proposed rulemaking, would represent the exclusive legal authority on
this subject. No contrary rules or procedures would be authorized. All
VA guidance would be read to conform with this proposed rulemaking if
possible or, if not possible, such guidance would be superseded by this
rulemaking.

Paperwork Reduction Act

Although this action contains provisions constituting collections
of information at 38 CFR 17.101, under the Paperwork Reduction Act of
1995, 44 U.S.C. 3501-3521), no new or proposed collections of
information are associated with this proposed rule.
The information collection requirements for Sec. 17.101 are
currently approved by the Office of Management and Budget (OMB) and
have been

[[Page 55549]]

assigned OMB control number 2900-0606.

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. The Secretary certifies that this proposed rule will
not result in a significant economic impact on a substantial number of
small entities. We have not proposed any new requirements that would
have such an effect. Our proposed standards would almost entirely
conform to the existing statutory requirements and existing practices
in the program. Therefore, pursuant to 5 U.S.C. 605(b), this rule is
exempt from the initial and final regulatory flexibility analysis
requirements of sections 603 and 604.

Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' requiring review by 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 proposed rule have been examined, and it has been
determined not to be a significant regulatory action under Executive
Order 12866. VA's impact analysis can be found as a supporting document
at http://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's Web site at
http://www1.va.gov/orpm, by following the link for ``VA Regulations
Published.''

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in an expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program numbers and
titles for this rule are as follows: 64.005, Grants to States for
Construction of State Home Facilities; 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.

List of Subjects in 38 CFR Part 17

Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs-health, Grant programs-veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing home care, Philippines,
Reporting and recordkeeping requirements, scholarships and fellows,
travel, and transportation expenses, veterans.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Gina S.
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs,
approved this document on November 6, 2017, for publication.

Dated: November 17, 2017.
Janet Coleman,
Chief, Office of Regulation Policy & Management, Office of the
Secretary, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 38
CFR part 17 as follows:

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. Amend Sec. 17.101 by:
0
a. Adding a new paragraph (a)(9).
0
b. Amending the authority citation at the end of the section.
The revisions read as follows:

Sec. 17.101 Collection or recovery by VA for medical care or services
provided or furnished to a veteran for a nonservice-connected
disability.

(a) * * *
(9) Care provided under special treatment authorities.
(i) Notwithstanding any other provisions in this section, VA will
not seek recovery or collection of reasonable charges from a third
party payer for:
(A) Hospital care, medical services, and nursing home care provided
by VA or at VA expense under 38 U.S.C. 1710(a)(2)(F) and (e).
(B) Counseling and appropriate care and services furnished to
veterans for psychological trauma authorized under 38 U.S.C. 1720D.
(C) Medical examination, and hospital care, medical services, and
nursing home care furnished to veteran for cancer of the head or neck
as authorized under 38 U.S.C. 1720E.
(ii) VA may continue to exercise its right to recover or collect
reasonable charges from third parties, pursuant to 38 CFR 17.101, for
the cost of care that VA provides to these same veterans for conditions
and disabilities that VA determines are not covered by any of the
special treatment authorities.
* * * * *

Authority: 38 U.S.C. 101, 501, 1701, 1705, 1710, 1720D, 1720E,
1721, 1722, 1729.

[FR Doc. 2017-25269 Filed 11-21-17; 8:45 am]
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Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules 55547

§ 300.5 Definitions. DEPARTMENT OF VETERANS Affairs, 810 Vermont Avenue NW.,
* * * * * AFFAIRS Washington, DC 20420, (303–370–1637).
Navigable waters * * * (This is not a toll-free number.)
38 CFR Part 17 SUPPLEMENTARY INFORMATION: Many
(4) Applicability date. This definition
is applicable beginning on [DATE TWO RIN 2900–AP20 veterans enrolled in VA’s health care
YEARS AFTER DATE OF system also have private insurance. VA
PUBLICATION OF FINAL RULE IN Third Party Billing for Medical Care is authorized by law under 38 U.S.C.
THE Federal Register]. Provided Under Special Treatment 1729 to recover or collect reasonable
Authorities charges from third parties under certain
* * * * *
situations for care and services provided
■ 19. In appendix E to part 300, section AGENCY: Department of Veterans Affairs.
for non-service-connected disabilities.
1.5 Definitions is amended by adding ACTION: Proposed rule. For example, VA may recover or collect
paragraph (4) to the definition of such charges when a veteran requires
‘‘Navigable waters’’ to read as follows: SUMMARY: The Department of Veterans
Affairs (VA) proposes to amend its medical care following a motor vehicle
Appendix E to Part 300—Oil Spill medical regulations to clarify that VA accident or an injury at work. 38 U.S.C.
Response will not bill third party payers for care 1729(a)(2)(A)–(B). These provisions are
and services provided by VA under reflected in regulation at 38 CFR 17.101.
* * * * * VA does not have authority to recover
1.5 * * * certain statutory provisions, which we
Navigable waters * * * refer to as ‘‘special treatment or collect charges from third parties for
(4) Applicability date. This definition is authorities.’’ These special treatment care or services provided for service-
applicable beginning on [DATE TWO YEARS authorities direct VA to provide care connected disabilities.
AFTER DATE OF PUBLICATION OF FINAL and services to veterans based upon Under the statutes referred to as the
RULE IN THE Federal Register].
discrete exposures or experiences that special treatment authorities, which are
* * * * * occurred during active military, naval, codified at 38 U.S.C. 1710(a)(2)(F) and
or air service. VA is authorized, but not (e), 1720D, and 1720E, VA provides care
PART 302—DESIGNATION, required by law, to recover or collect and services to veterans for conditions
REPORTABLE QUANTITIES, AND charges for care and services provided and disabilities that are related to
NOTIFICATION to veterans for non-service connected certain exposures or experiences during
disabilities. This proposed rule would active military, naval, or air service,
■ 20. The authority citation for part 302 regardless of whether such condition or
continues to read as follows: establish that VA would not exercise its
authority to recover or collect disability is formally adjudicated by the
Authority: 33 U.S.C. 1251 et seq. reasonable charges from third party Veterans Benefits Administration (VBA)
payers for care and services provided to be service-connected. Specifically,
■ 21. Section 302.3 is amended by these statutory provisions do not
adding paragraph (4) to the definition of under the special treatment authorities.
expressly refer to the conditions or
‘‘Navigable waters’’ to read as follows: DATES: Comments must be received by
disabilities resulting from such
VA on or before January 22, 2018. exposures or experiences as service-
§ 302.3 Definitions.
ADDRESSES: Written comments may be connected. Therefore, if veterans meet
* * * * * submitted by email through http:// the eligibility criteria of these discrete
Navigable waters * * * www.regulations.gov; by mail or hand- categories in law, they receive the
(4) Applicability date. This definition delivery to Director, Regulations health care benefits enumerated in the
is applicable beginning on [DATE TWO Management (00REG), Department of special treatment authorities. A brief
YEARS AFTER DATE OF Veterans Affairs, 810 Vermont Avenue description of each of the special
PUBLICATION OF FINAL RULE IN NW., Room 1063B, Washington, DC treatment authorities follows.
THE Federal Register]. 20420; or by fax to (202) 273–9026 (this Subject to the availability of
* * * * * is not a toll-free number). Comments appropriations, under 38 U.S.C.
should indicate that they are submitted 1710(a)(2)(F), VA provides hospital care
PART 401—GENERAL PROVISIONS in response to ‘‘RIN 2900–AP20, Third and medical services, and may furnish
Party Billing for Medical Care Provided nursing home care, to veterans who
■ 22. The authority citation for part 401 under Special Treatment Authorities.’’ were exposed to a toxic substance,
continues to read as follows: Copies of comments received will be radiation, or other conditions identified
Authority: 33 U.S.C. 1251 et seq. available for public inspection in the in 38 U.S.C. 1710(e) for the treatment of
Office of Regulation Policy and the disabilities described in subsection
■ 23. Section 401.11 is amended by Management, Room 1063B, between the (e). More specifically, subject to the
adding paragraph (1)(4) to read as hours of 8:00 a.m. and 4:30 p.m. requirements in 38 U.S.C. 1710(e)(2)-(4),
follows: Monday through Friday (except such care and services are available
§ 401.11 General definitions. holidays). Please call (202) 461–4902 for under 38 U.S.C. 1710(a)(2)(F) and
an appointment (this is not a toll-free 1710(e) (at no cost to the veteran) as
* * * * * number). In addition, during the follows:
(l) * * * comment period, comments may be • For the treatment of any disability
ethrower on DSK3G9T082PROD with PROPOSALS

(4) Applicability date. This paragraph viewed online through the Federal of a Vietnam-era, herbicide-exposed
(l) is applicable beginning on [DATE Docket Management System (FDMS) at veteran, notwithstanding that there is
TWO YEARS AFTER DATE OF http://www.regulations.gov. insufficient medical evidence to
PUBLICATION OF FINAL RULE IN FOR FURTHER INFORMATION CONTACT: conclude that such disability may be
THE Federal Register]. Joseph Duran, Director, Policy and associated with such exposure;
* * * * * Planning VHA Office of Community • For the treatment of any disease
[FR Doc. 2017–25321 Filed 11–21–17; 8:45 am] Care (10D1A1), Veterans Health specified by 38 U.S.C. 1112(c)(2) or for
BILLING CODE 6560–50–P Administration, Department of Veterans which the Secretary, based on the

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55548 Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules

advice of the Advisory Committee on services, and nursing home care that is determines are not covered by any of the
Environmental Hazards, determines that needed for the treatment of any cancer special treatment authorities. For
there is credible evidence of a positive of the head or neck that the Secretary example, VA would not recover or
association between occurrence of the finds may be associated with the collect charges from a third party payer
disease in humans and exposure to veteran’s receipt of those treatments in for treatment of a veteran’s lung cancer
ionizing radiation, of any radiation- active military, naval, or air service; if that veteran served on active duty in
exposed veteran; additionally, notwithstanding the the Armed Forces at Camp Lejeune,
• For treatment of any disability of a absence of such documentation, VA North Carolina, for not fewer than 30
veteran who served on active duty may provide such care to a veteran who days during the period beginning on
between August 2, 1990, and November served as an aviator in the active August 1, 1953, and ending on
11, 1998, in the Southwest Asia theater military, naval, or air service before the December 31, 1987. However, VA could
of operations during the Persian Gulf end of the Korean conflict or a veteran recover or collect reasonable charges
War, notwithstanding that there is who underwent submarine training in from a third party payer for treatment of
insufficient medical evidence to active naval service before January 1, the same veteran’s broken leg incurred
conclude that such disability may be 1965. in a post-deployment automobile
associated with such service; The special treatment authorities do accident. Similarly, VA would not
• For treatment of any illness suffered not require an adjudication of service- recover or collect charges from a third
by a veteran who served on active duty connection to establish eligibility for party payer for treatment of a Vietnam-
in a theater of combat operations during care. These veterans are eligible under era herbicide-exposed veteran’s
a period of war after the Persian Gulf those authorities for treatment of disability found to be possibly related to
War or in combat against a hostile force specific conditions, which although not such exposure, but VA could recover or
during a period of hostilities after adjudicated as service-connected, are collect reasonable charges from a third
November 11, 1998, notwithstanding the practical equivalent for medical care party payer for treatment of a condition
that there is insufficient medical purposes. VA proposes, therefore, in the determined by the Under Secretary for
evidence to conclude that such interest of equity, to add a new Health to have resulted from a cause
condition is attributable to such service; paragraph (a)(9) in § 17.101 to exclude other than such exposure. Continuing
• For treatment of any illness suffered from recovery or collections any with this last example, the
by a veteran who participated in a test reasonable charges from third parties for determination of whether a Vietnam-era
conducted by the Department of Defense care and services provided under the herbicide-exposed veteran’s disability
Deseret Test Center as part of a program special treatment authorities. This may be related to that exposure is
for chemical and biological warfare would conform the regulation to the strictly a clinical judgment to be made
testing from 1962 through 1973 current general practice of not seeking by the responsible physician (acting in
(including the program designated as recovery or collection from third parties accordance with the guidelines issued
‘‘Project Shipboard Hazard and Defense for medical care and services related to by the Under Secretary of Health and a
(SHAD)’’ and related land-based tests) conditions and disabilities under the report issued in accordance with section
notwithstanding that there is special treatment authorities. 3 of the Agent Orange Act of 1991 by the
insufficient medical evidence to Proposed paragraph (a)(9)(i) would National Academy of Sciences).
conclude that such illness is attributable state that, notwithstanding any other Finally, VA also proposes to amend
to such testing; and provision in this part authorizing VA to the list of authorities appearing at the
• For treatment of certain illnesses or recover or collect such charges, VA will end of § 17.101 to include 38 U.S.C.
conditions identified by statute suffered not seek to recover or collect reasonable 1720D and 1720E. These are two of the
by a veteran who served on active duty charges from a third party payer for care special treatment authorities previously
in the Armed Forces at Camp Lejeune, and services when such care and discussed. The list of authorities already
North Carolina, for not fewer than 30 services are being provided under any of includes 38 U.S.C. 1710.
days during the period beginning on the special treatment authorities
August 1, 1953, and ending on discussed above. Proposed paragraphs Effect of Rulemaking
December 31, 1987, notwithstanding (a)(9)(i)(A)–(C) would cite each of these The Code of Federal Regulations, as
that there is insufficient medical authorities. proposed to be revised by this proposed
evidence to conclude that such illnesses The special treatment authorities of rulemaking, would represent the
or conditions are attributable to such 38 U.S.C. 1710(a)(2)(F) and (e) do not exclusive legal authority on this subject.
service. extend, however, to conditions and No contrary rules or procedures would
Under 38 U.S.C. 1720D, VA is disabilities that the Under Secretary for be authorized. All VA guidance would
authorized to provide counseling and Health determines, consistent with the be read to conform with this proposed
appropriate care and services to help terms of 38 U.S.C. 1710(e)(2)(A)–(B), rulemaking if possible or, if not
veterans overcome psychological have resulted from causes other than possible, such guidance would be
trauma, which in the judgment of a those described in the special treatment superseded by this rulemaking.
mental health professional employed by authorities. In these cases, needed
VA, resulted from a physical assault of treatment is still provided to the veteran Paperwork Reduction Act
a sexual nature, battery of a sexual but, depending on the facts, the veteran Although this action contains
nature, or sexual harassment which may be subject to copayment provisions constituting collections of
occurred while the veteran was serving requirements in connection with the information at 38 CFR 17.101, under the
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on active duty, active duty for training, receipt of such treatment. In proposed Paperwork Reduction Act of 1995, 44
or inactive duty training. § 17.101(a)(9)(ii), VA would clarify that U.S.C. 3501–3521), no new or proposed
Under 38 U.S.C. 1720E, VA is we would continue to have the right to collections of information are associated
authorized to provide any veteran, recover or collect reasonable charges with this proposed rule.
whose service records include from third parties, pursuant to 38 CFR The information collection
documentation of nasopharyngeal 17.101, for the cost of care that VA requirements for § 17.101 are currently
radium irradiation treatments, a medical provides to these same veterans for approved by the Office of Management
examination, hospital care, medical conditions and disabilities that VA and Budget (OMB) and have been

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Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / Proposed Rules 55549

assigned OMB control number 2900– been examined, and it has been Signing Authority
0606. determined not to be a significant The Secretary of Veterans Affairs, or
Regulatory Flexibility Act regulatory action under Executive Order designee, approved this document and
12866. VA’s impact analysis can be authorized the undersigned to sign and
The Secretary hereby certifies that found as a supporting document at
this proposed rule would not have a submit the document to the Office of the
http://www.regulations.gov, usually Federal Register for publication
significant economic impact on a within 48 hours after the rulemaking
substantial number of small entities as electronically as an official document of
document is published. Additionally, a the Department of Veterans Affairs. Gina
they are defined in the Regulatory
copy of the rulemaking and its impact S. Farrisee, Deputy Chief of Staff,
Flexibility Act, 5 U.S.C. 601–612. The
analysis are available on VA’s Web site Department of Veterans Affairs,
Secretary certifies that this proposed
rule will not result in a significant at http://www1.va.gov/orpm, by approved this document on November
economic impact on a substantial following the link for ‘‘VA Regulations 6, 2017, for publication.
number of small entities. We have not Published.’’ Dated: November 17, 2017.
proposed any new requirements that Unfunded Mandates Janet Coleman,
would have such an effect. Our Chief, Office of Regulation Policy &
proposed standards would almost The Unfunded Mandates Reform Act Management, Office of the Secretary,
entirely conform to the existing of 1995 requires, at 2 U.S.C. 1532, that Department of Veterans Affairs.
statutory requirements and existing agencies prepare an assessment of For the reasons set forth in the
practices in the program. Therefore, anticipated costs and benefits before preamble, VA proposes to amend 38
pursuant to 5 U.S.C. 605(b), this rule is issuing any rule that may result in an CFR part 17 as follows:
exempt from the initial and final expenditure by State, local, and tribal ■ 1. The authority citation for Part 17
regulatory flexibility analysis governments, in the aggregate, or by the continues to read as follows:
requirements of sections 603 and 604. private sector, of $100 million or more Authority: 38 U.S.C. 501, and as noted in
Executive Orders 12866 and 13563 (adjusted annually for inflation) in any specific sections.
one year. This proposed rule would 2. Amend § 17.101 by:
Executive Orders 12866 and 13563 ■
have no such effect on State, local, and a. Adding a new paragraph (a)(9).
direct agencies to assess the costs and ■
tribal governments, or on the private ■ b. Amending the authority citation at
benefits of available regulatory
alternatives and, when regulation is sector. the end of the section.
necessary, to select regulatory Catalog of Federal Domestic Assistance The revisions read as follows:
approaches that maximize net benefits
The Catalog of Federal Domestic § 17.101 Collection or recovery by VA for
(including potential economic, medical care or services provided or
environmental, public health and safety Assistance program numbers and titles furnished to a veteran for a nonservice-
effects, and other advantages; for this rule are as follows: 64.005, connected disability.
distributive impacts; and equity). Grants to States for Construction of State
(a) * * *
Executive Order 13563 (Improving Home Facilities; 64.007, Blind (9) Care provided under special
Regulation and Regulatory Review) Rehabilitation Centers; 64.008, Veterans treatment authorities.
emphasizes the importance of Domiciliary Care; 64.009, Veterans (i) Notwithstanding any other
quantifying both costs and benefits, Medical Care Benefits; 64.010, Veterans provisions in this section, VA will not
reducing costs, harmonizing rules, and Nursing Home Care; 64.011, Veterans seek recovery or collection of reasonable
promoting flexibility. Executive Order Dental Care; 64.012, Veterans charges from a third party payer for:
12866 (Regulatory Planning and Prescription Service; 64.013, Veterans (A) Hospital care, medical services,
Review) defines a ‘‘significant Prosthetic Appliances; 64.014, Veterans and nursing home care provided by VA
regulatory action,’’ requiring review by State Domiciliary Care; 64.015, Veterans or at VA expense under 38 U.S.C.
OMB, unless OMB waives such review, State Nursing Home Care; 64.016, 1710(a)(2)(F) and (e).
as ‘‘any regulatory action that is likely Veterans State Hospital Care; 64.018, (B) Counseling and appropriate care
to result in a rule that may: (1) Have an Sharing Specialized Medical Resources; and services furnished to veterans for
annual effect on the economy of $100 64.019, Veterans Rehabilitation Alcohol psychological trauma authorized under
million or more or adversely affect in a and Drug Dependence; 64.022, Veterans 38 U.S.C. 1720D.
material way the economy, a sector of Home Based Primary Care. (C) Medical examination, and hospital
the economy, productivity, competition, care, medical services, and nursing
jobs, the environment, public health or List of Subjects in 38 CFR Part 17
home care furnished to veteran for
safety, or State, local, or tribal cancer of the head or neck as authorized
governments or communities; (2) Create Administrative practice and
procedure, Alcohol abuse, Alcoholism, under 38 U.S.C. 1720E.
a serious inconsistency or otherwise (ii) VA may continue to exercise its
interfere with an action taken or Claims, Day care, Dental health, Drug
abuse, Foreign relations, Government right to recover or collect reasonable
planned by another agency; (3) charges from third parties, pursuant to
Materially alter the budgetary impact of contracts, Grant programs-health, Grant
programs-veterans, Health care, Health 38 CFR 17.101, for the cost of care that
entitlements, grants, user fees, or loan VA provides to these same veterans for
programs or the rights and obligations of facilities, Health professions, Health
conditions and disabilities that VA
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recipients thereof; or (4) Raise novel records, Homeless, Medical and dental
schools, Medical devices, Medical determines are not covered by any of the
legal or policy issues arising out of legal special treatment authorities.
mandates, the President’s priorities, or research, Mental health programs,
the principles set forth in this Executive Nursing home care, Philippines, * * * * *
Order.’’ Reporting and recordkeeping Authority: 38 U.S.C. 101, 501, 1701, 1705,
The economic, interagency, requirements, scholarships and fellows, 1710, 1720D, 1720E, 1721, 1722, 1729.
budgetary, legal, and policy travel, and transportation expenses, [FR Doc. 2017–25269 Filed 11–21–17; 8:45 am]
implications of this proposed rule have veterans. BILLING CODE 8320–01–P

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Document Created: 2017-11-22 00:48:37
Document Modified: 2017-11-22 00:48:37

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		Proposed Rules
Action		Proposed rule.
Dates		Comments must be received by VA on or before January 22, 2018.
Contact		Joseph Duran, Director, Policy and Planning VHA Office of Community Care (10D1A1), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (303-370-1637). (This is not a toll-free number.)
FR Citation		82 FR 55547
RIN Number		2900-AP20
CFR Associated		Administrative Practice and Procedure; Alcohol Abuse; Alcoholism; Claims; Day Care; Dental Health; Drug Abuse; Foreign Relations; Government Contracts; Grant Programs-Health; Grant Programs-Veterans; Health Care; Health Facilities; Health Professions; Health Records; Homeless; Medical and Dental Schools; Medical Devices; Medical Research; Mental Health Programs; Nursing Home Care; Philippines; Reporting and Recordkeeping Requirements; Scholarships and Fellows; Travel; Transportation Expenses and Veterans