83 FR 21893 - Expanded Access to Non-VA Care Through the Veterans Choice Program

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 83, Issue 92 (May 11, 2018)

Page Range		21893-21897
FR Document		2018-10054

The Department of Veterans Affairs (VA) adopts as final, with no change, an interim final rule revising its medical regulations that implement section 101 of the Veterans Access, Choice, and Accountability Act of 2014, as amended, (hereafter referred to as ``the Choice Act''), which requires VA to establish a program (hereafter referred to as the ``Veterans Choice Program'' or the ``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 (VHA) or who qualify based on their place of residence or face an unusual or excessive burden in traveling to a VA medical facility. Those revisions contained in the interim final rule, which is now adopted as final, were required by amendments to the Choice Act made by the Construction Authorization and Choice Improvement Act of 2014, and by the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015. VA published an interim final rule on December 1, 2015, implementing those regulatory revisions, and we received seven public comments. This final rule responds to those public comments and does not make any further regulatory revisions.

Federal Register, Volume 83 Issue 92 (Friday, May 11, 2018)

[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21893-21897]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-10054]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP60

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

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with
no change, an interim final rule revising its medical regulations that
implement section 101 of the Veterans Access, Choice, and
Accountability Act of 2014, as amended, (hereafter referred to as ``the
Choice Act''), which requires VA to establish a program (hereafter
referred to as the ``Veterans Choice Program'' or the ``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 (VHA)
or who qualify based on their place of residence or face an unusual or
excessive burden in traveling to a VA medical facility. Those revisions
contained in the interim final rule, which is now adopted as final,
were required by amendments to the Choice Act made by the Construction
Authorization and Choice Improvement Act of 2014, and by the Surface
Transportation and Veterans Health Care Choice Improvement Act of 2015.
VA published an interim final rule on December 1, 2015, implementing
those regulatory revisions, and we received seven public comments. This
final rule responds to those public comments and does not make any
further regulatory revisions.

DATES: Effective date: This rule is effective on May 11, 2018.

FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director, Policy and
Planning, Office of Community Care (10D1A1), Veterans Health
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (303) 372-4629. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: The Choice Act, Public Law 113-146, was
enacted on August 7, 2014. Further amendments to the Choice Act were
made by Public Laws 113-175, 113-235, 114-19, 114-41, and 115-26. Under
these authorities, VA established the Veterans Choice Program and
published regulations at 38 CFR 17.1500 through 17.1540. This final
rule revises VA regulations in accordance with the amendments to the
Choice Act made by Public Laws 114-19 and 114-41. Public Law 114-19,
the Construction Authorization and Choice Improvement Act, amended the
Choice Act to define additional criteria that VA may use to determine
that a veteran's travel to a VA medical facility is an ``unusual or
excessive burden.'' Public Law 114-41, the Surface Transportation and
Veterans Health Care Choice Improvement Act of 2015, amended the Choice
Act to expand eligibility for the Veterans Choice Program to all
veterans enrolled in the VA health care system, to remove the 60-day
limit on an episode of care, modify the wait-time and 40-mile distance
eligibility criteria, and expand provider eligibility based on criteria
as determined by VA. VA published an interim final rule on December 1,
2015, to implement these amendments to the Choice Act. 80 FR 74991. We
received seven comments on the interim final rule and respond to those
comments in the discussion below. We are adopting as final the interim
final rule with no revisions.
Comments regarding changes in Public Law 114-19 related to the
``unusual or excessive burden'' standard.
Section 3(a)(2) of Public Law 114-19 amended section
101(b)(2)(D)(ii)(II) of the Choice Act by defining additional criteria
that could be the basis for finding that a veteran faced an ``unusual
or excessive burden'' in traveling to receive care in a VA medical
facility, including environmental factors such as roads that are not
accessible to the general public, traffic, or hazardous weather; a
medical condition that affects the ability to travel; or other factors,
as determined by the Secretary. The interim final rule revised Sec.
17.1510(b)(4)(ii) to include environmental factors such as roads that
are not accessible to the general public, traffic, or hazardous
weather, or a medical condition that affects the ability to travel. The
interim final rule also added three ``other factors'' to Sec.
17.1510(b)(4)(ii)(A) through (C): The nature or simplicity of the
hospital care or medical services the veteran requires; how frequently
the veteran needs such hospital care; or medical services, and the need
for an attendant, which is defined as a person who provides required
aid and/or physical assistance to the veteran, for a veteran to travel
to a VA medical facility for hospital care or medical services. VA
received one positive comment in support of the revisions to Sec.
17.1510(b)(4)(ii), and we thank the commenter for this feedback. VA did
not receive any comments that suggested changes to the revisions to
Sec. 17.1510(b)(4)(ii), and therefore does not make further regulatory
revisions.
Comments regarding changes in Public Law 114-41 related to veteran
eligibility, periods of follow up care, wait times, distance
requirements, and provider eligibility.
Section 4005(b) of Public Law 114-41 amended section 101 of the
Choice Act to remove the August 1, 2014, enrollment date restriction,
thereby making all veterans enrolled in the VA health care system under
Sec. 17.36 potentially eligible for the Program if they meet its other
eligibility criteria. Section 17.1510 was therefore revised in the
interim final rule to codify this expanded eligibility for the Program.
VA implemented this change ahead of the Sec. 17.1510 revision, as this
change was not subject to notice and comment because it had an
immediate effective date and VA did not need to interpret the language
of the public law to give it effect. VA also did not receive any
comments on this revision, and does not make any further regulatory
revisions.
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. The definition of
``episode of care'' in Sec. 17.1505 was therefore revised in the
interim final rule by removing the

[[Page 21894]]

phrase ``which lasts no longer than 60 days from the date of the first
appointment with a non-VA health care provider,'' and the 60-day
limitation was replaced with a 1-year limitation, consistent with VA's
authority in section 101(c)(1)(B)(i) of the Choice Act to establish a
timeframe for authorization of care. VA received one comment in support
of this change, but this comment also suggested that VA make exceptions
to the 1-year limitation, particularly for chronic conditions, to avoid
the possibility of the unnecessary cessation of care due to
reauthorization requirements. The comment further suggested that VA
should provide more specific information regarding what a community
provider would need to submit to VA to obtain a broader authorization
beyond 1-year, and that VA should provide more details on the process
community providers may follow to ``provide additional care outside the
scope of the authorized course of treatment.'' We agree that veterans
should not experience cessations of treatment for an ongoing condition
if they require care beyond one year; the regulations do therefore
allow reauthorization for additional episodes of care as needed.
However, we believe that it is important that VA reauthorize an episode
of care annually even in those instances where it is apparent at the
time of the initial authorization that the condition is chronic and
care will be required for greater than one year. A chronic medical
condition may change over time, resulting in a need to reexamine the
authorized scope of care. Annual reauthorization of an episode of care
provides an opportunity for VA to review the scope of the episode of
care with the healthcare provider and make necessary revisions to meet
the needs of the veteran. Care may only be provided within the scope of
the authorized episode of care, as defined in Sec. 17.1505 as a
``necessary course of treatment, including follow-up appointments and
ancillary and specialty services'' for identified health care needs. If
a community 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 and therefore will be paid for by
VA. Details regarding what specific information must be submitted or
what processes must be followed to obtain authorizations for additional
episodes of care, or for an authorization to provide care not
authorized as part of the episode of care, is too specific for a
regulation, but information is available from the contractors that
administer the Choice program and from VA when the care is authorized
under a Choice provider agreement. VA continually works with the
contractors and with community providers to improve education and
processes under the Program. VA does not make any further regulatory
revisions based on this comment.
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 ``the period determined
necessary for [clinically necessary] care or services if such period is
shorter than'' VHA's wait time goals. Section 4005(d), Public Law 114-
41, 129 Stat. 443. This new wait-times based criterion was added as
paragraph (b)(1)(ii) of Sec. 17.1510, and created eligibility when a
veteran is unable to schedule an appointment within a period of time
that VA determines is clinically necessary and which is shorter than
VHA's wait time goals. VA received one positive comment in support of
this revision, and we thank the commenter for this feedback. VA did not
receive any comments that suggested changes to this revision, and
therefore does not make further regulatory revisions.
Section 4005(e) of Public Law 114-41 amended section 101(b)(2)(B)
of the Choice Act to modify the 40-mile distance eligibility criterion
to provide that veterans may be eligible if they reside more than 40
miles from ``(i) with respect to a veteran who is seeking primary care,
a medical facility of the Department, including a community-based
outpatient clinic, that is able to provide such primary care by a full-
time primary care physician; or (ii) with respect to a veteran not
covered under clause (i), the medical facility of the Department,
including a community-based outpatient clinic, that is closest to the
residence of the veteran.'' VA found that it would be impracticable and
not veteran centric to apply a ``seeking primary care'' eligibility
criterion, and therefore did not revise the general 40-mile requirement
in Sec. 17.1510(b)(1) in the interim final rule to reflect such a
strict reading of the public law. However, VA did revise Sec. 17.1505
to add a definition of ``full-time primary care physician,'' as well as
amend the definition of ``VA medical facility'' to require that such a
facility have a full-time primary care physician, so that for purposes
of determining distance-related eligibility for the Program, VA
considered a qualifying VA medical facility to include only those
facilities with at least a full-time primary care physician. VA
received one positive comment in support of this revision, and we thank
the commenter for this feedback. VA did not receive any comments that
suggested changes to this revision, and therefore does not make further
regulatory revisions.
Section 4005(c) of Public Law 114-41 amended sections 101(a)(1)(B)
and 101(d) of the Choice Act to permit VA to expand provider
eligibility beyond those providers expressly listed in section
101(a)(1)(B) of the Choice Act, in accordance with criteria as
established by VA. In the interim final rule, VA revised Sec.
17.1530(a) to refer to a new paragraph (e) that established eligibility
for these other providers, and added a new paragraph (e) to Sec.
17.1530 to list these providers specifically. VA also revised Sec.
17.1530(d) to reorganize current requirements and add new requirements
for these providers, in accordance with section 101(d)(5) of the Choice
Act. VA received two positive comments in support of this revision, and
we thank the commenters for this feedback. VA received one comment that
inquired whether, given the expansion of eligible providers, such
providers were required to be Medicare- participating providers. We
clarify that eligible providers in the Program include but are not
limited to Medicare-participating providers, as established in Sec.
17.1530(a) and (e). With this clarification, and because VA did not
receive any comments that suggested changes to this revision, we
therefore do not make further regulatory revisions.

Miscellaneous Comments

The remaining five comments do not specifically pertain to the
regulatory changes in the interim final rule, and are addressed here in
turn.
One commenter requested that the end date of August 7, 2017, for
the Choice Act be removed and the program made permanent. The Choice
Act, which was enacted on August 7, 2014, in Public Law 113-146,
specifically prescribed that the Choice Program would be temporary,
operating for 3 years or until the funding was exhausted, whichever
came first. The 3-year sunset date was removed by Public Law 115-26,
and so the Choice Program is authorized until the amounts appropriated
in the Choice Fund are exhausted. Current regulations do not discuss
the termination date of the Program, and VA does not make any
regulatory changes based on Public Law 115-26 or this comment.
Another commenter expressed a generalized concern that the Choice

[[Page 21895]]

Program created additional barriers to access healthcare as well as
expressed specific concerns about the Choice Program. To address the
commenter's generalized concern related to barriers to access, we
acknowledge the difficulties that some veterans have experienced and
expressed since the inception of the Choice Program in August 2014, and
we are similarly sympathetic to the commenter's expressed experiences.
Congress mandated that VA implement the Choice Program in 90 days, and
implementing such an unprecedented program in terms of VA care in the
community on a nationwide basis, in 90 days, resulted in growing pains
for veterans, community providers, and VA. During the initial year of
the Choice Program, VA met with veterans, community providers, leading
healthcare experts, and staff across the country to hear concerns and
identify solutions. In order to immediately implement changes to the
Choice Program, VA brought in new leadership to oversee all Community
Care Programs. Under this new leadership, VA quickly began to improve
the Choice Program and laid out a plan to drive towards a future that
delivers the best of VA and the community. VA has earnestly tried to
implement the Choice Program in accord with legal requirements while
being mindful of veteran concerns and administrative realities, and VA
will continue to strive to reduce any barriers communicated to us by
veterans. VA does not make any regulatory changes to address the
commenter's generalized concerns about the Choice Program.
As to the commenter's specific concerns, the commenter stated that
there are no clear channels for resolution of complaints or problems
when authorization for care has been delayed. The commenter further
elaborated that it is difficult to access the Choice Program call
centers and, once contact is made with the call center, it is difficult
to receive answers from the employees working in the call centers. The
commenter suggested that a process be put in place to address complaint
resolution. We interpret these concerns to be limited to issues that
arise administratively when the veteran is already enrolled in the
Choice Program, such as delays in authorization, and not concerns
regarding eligibility to participate in the Choice Program or concerns
with clinical decisions throughout the course of treatment. Therefore,
we further interpret these concerns to relate to the internal processes
relating to administration of the program and do not make any
regulatory changes. However, we describe below processes and
improvements that both VA and the contractors that administer the
Choice Program have undertaken and which we believe obviate the need
for more formal processes in regulation.
VA has taken affirmative steps to decrease administrative burdens
such as delays in authorization and has improved access to VA staff
through the VA call centers and the internet. For instance, VA has
reduced the administrative burden for medical record submission for
community providers by streamlining the documents required. We also
have strived to improve veterans' experience with the call centers
throughout the past year. More specifically, in May 2015, it took
approximately 11 days to contact the veteran, obtain their provider and
appointment preference, and work with the community provider to
schedule an appointment; by May 2016, the average number of days to
accomplish those tasks decreased to only 6. The Choice Program call
centers have also continued to improve with a call abandon rate of less
than 2 percent; a call hold time of no more than 7 seconds; and first-
time call resolution over of 96 percent. In addition, Veterans are able
to contact VA directly through this website that is available to the
public: http://www.va.gov/opa/choiceact/. The website contains
information about the program, a phone number that veterans can call in
order to speak to a person directly, and also contains a live chat
option that is available to veterans Monday through Friday from 8 a.m.
to 8 p.m., eastern standard time. The vendors who administer the Choice
Program additionally have processes in place for veterans who
experience delays when receiving care in the community. The complaints
and grievance processes for the contractors, TriWest and Health Net,
are available at their public websites, respectively: http://www.triwest.com/globalassets/documents/veteran-services/complaint-grievance_form.pdf and https://www.hnfs.com/content/hnfs/home/va/provider/resources/resources/grievances.html.
The commenter next expressed the specific concern that rural
veterans are disproportionately negatively impacted by barriers created
by the Choice Act and VA and that such veterans' feedback is not heard
by VA as a result of their disability status and geographic location.
We first clarify that VA strives to gain feedback from all veterans,
including those who live in rural areas, about their experiences with
the Choice Program. To obtain feedback from all veterans, regardless of
their geographic location, VA developed a Survey of Healthcare
Experiences of Patients (SHEP) for veterans to complete after receiving
Choice care. We further acknowledge that there are unique problems that
affect rural veterans and that it may be more difficult for rural
veterans to obtain health care near their residence. In this regard,
the 40-mile distance criterion in the Choice Program regulations at
Sec. 17.1510(b)(2) is designed to address accessibility issues that
affect rural Veterans. Particularly, the 40-mile criterion has been
interpreted by VA to consider driving distance and not straight line
distance (see 80 FR 22906, April 24, 2015), and to further interpret
that this distance must be from a Veteran's residence to a VA medical
facility that has at least one full time equivalent primary care
physician (see 80 FR 74991, December 1, 2015). Both of these
interpretations we believe increase the number of rural veterans
eligible for the program, and VA otherwise actively seeks and documents
the concerns of rural veterans that participate in the Choice program
with its SHEP survey as described above. Therefore, we make no
regulatory changes based on this comment.
The commenter also stated that the Choice Program has created
coordination of care issues for non-VA providers who administer health
care for veterans. The commenter did not elaborate on what those issues
are or how the Choice Program created them, or whether the interim
final rule exacerbated the issues, and the commenter also did not
suggest any changes to alleviate the issues. We do acknowledge that
there may have been difficulty with coordination of care at the
inception of the Choice Program, and, to enhance coordination of care
for veterans, we have embedded Choice contractor staff with VA staff at
14 VA facilities, and continue to increase the number of embedded
Choice contractor staff locations. As the commenter did not provide
enough specificity for suggested regulatory changes, and we believe VA
has undertaken efforts to mitigate coordination of care issues, we do
not make any regulatory revisions based on this comment.
Finally, the commenter explained that it was easier to seek care
prior to the Choice Program and that, even though the Program is
voluntary, veterans are being told that they must use the Choice
Program over VA care and other VA care in the community permitted by
legal authorities other than the Choice Act. We first clarify that the
Choice Program

[[Page 21896]]

is voluntary and veterans are provided the option of obtaining care
solely at VA medical facilities. Significantly, the Choice Program is
designed to respect and guarantee a veteran's choice to see a VA
provider or a non-VA provider if they meet Choice Program criteria. In
fact, if an eligible veteran elects to receive covered care through the
Choice Program, VA is required by the Choice Act to furnish the care
through the Program. In addition, the Choice Act authorized VA to
purchase care through Choice provider agreements, which gives VA
greater flexibility when furnishing care through the Choice Program. VA
recognizes that some veterans faced administrative barriers and hurdles
while seeking care through the Choice Program and that some veterans
may have found it was easier in the past to seek VA care in the
community under legal authorities other than the Choice Act. To ensure
the Choice Program provides high quality and accessible care, VA has
made and will continue to make improvements by working with Congress,
our community providers, our Choice Program contractors and within VA.
Therefore, we do not make any further regulatory revisions based on
this comment.
The final three comments are beyond the scope of the interim final
rule and we will not make any regulatory changes based on the comments.
One commenter expressed concern about the recertification process to
become a vendor and contract with VA through ``vetbiz.gov.'' The
process of vendorization on vetbiz.gov does not apply for clinical
providers under the Choice Act. As the commenter did not otherwise
reference the interim final rule or the Choice Program regulations
generally, nor did the commenter state how the ability to recertify as
a vendor was affected by the interim final rule or Choice regulations,
we find that the comment is beyond the scope of the rulemaking.
Another commenter supported the interim final rule because it would
enable the commenter to access community care near the commenter's
residence in Panama. Care under the Choice Program is not provided
outside of the United States. VA's only authority to provide care
abroad is through the foreign medical care provisions in 38 U.S.C.
1724, and the Choice Act did not affect this limitation.
Another commenter expressed a concern over the potentially
burdensome nature of the administrative requirements to participate in
the Choice Program. Specifically, the commenter requested that VA be
mindful that an overly complicated process to apply to participate in
the Choice Program may deter people who are eligible and entitled to
participate in the Program. The commenter did not specify what these
burdens are or if they were made worse by revisions in the interim
final rule. Therefore, we interpret the comment to be general in scope.
Although the interim final rule and the Choice regulations contain
eligibility criteria, they do not contain any requirements or guidance
for how to apply to participate in the Choice Program. Therefore, we
find that the comment is not within the scope of the rulemaking and we
will not make any regulatory changes based on this comment.

Effect of Rulemaking

Title 38 of the Code of Federal Regulations, as confirmed 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

Although this action contains provisions constituting collections
of information, at 38 CFR 17.1530(d), under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections
of information are associated with this final rule. The information
collection requirements for Sec. 17.1530(d) are currently approved by
the Office of Management and Budget (OMB) and have been assigned OMB
control number 2900-0823.

Executive Orders 12866, 13563, and 13771

Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by the Office
of Management and Budget (OMB), as ``any regulatory action that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined and it has
been determined 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 website at http://www.va.gov/orpm/, by
following the link for ``VA Regulations Published From FY 2004 Through
Fiscal Year to Date.'' 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 website
at http://www.va.gov/orpm by following the link for VA Regulations
Published from FY 2004 through FYTD. This rule is not subject to the
requirements of E.O. 13771 because this rule results in no more than de
minimis costs.

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

[[Page 21897]]

the reasons given for the publication of the interim final rule. 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 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: 64.008--Veterans
Domiciliary 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; 64.024--VA Homeless Providers Grant and Per Diem Program;
64.026--Veterans State Adult Day Health Care; 64.029--Purchase Care
Program; 64.035--Veterans Transportation Program; 64.038--Grants for
the Rural Veterans Coordination Pilot; 64.039--CHAMPVA; 64.040--VHA
Inpatient Medicine; 64.041--VHA Outpatient Specialty Care; 64.042--VHA
Inpatient Surgery; 64.043--VHA Mental Health Residential; 64.044--VHA
Home Care; 64.045--VHA Outpatient Ancillary Services; 64.046--VHA
Inpatient Psychiatry; 64.047--VHA Primary Care; 64.048--VHA Mental
Health Clinics; 64.049--VHA Community Living Center; 64.050--VHA
Diagnostic Care.

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.

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 Janaury 12, 2018, for publication.

Dated: May 8, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.

PART 17--MEDICAL

0
Accordingly, the interim rules amending 38 CFR part 17 which were
published at 80 FR 74991 on December 1, 2015, and 81 FR 24026 on April
25, 2016, are adopted as final without change.
[FR Doc. 2018-10054 Filed 5-10-18; 8:45 am]
BILLING CODE 8320-01-P

Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations 21895

Program created additional barriers to administration of the program and do Program. To obtain feedback from all
access healthcare as well as expressed not make any regulatory changes. veterans, regardless of their geographic
specific concerns about the Choice However, we describe below processes location, VA developed a Survey of
Program. To address the commenter’s and improvements that both VA and the Healthcare Experiences of Patients
generalized concern related to barriers contractors that administer the Choice (SHEP) for veterans to complete after
to access, we acknowledge the Program have undertaken and which we receiving Choice care. We further
difficulties that some veterans have believe obviate the need for more formal acknowledge that there are unique
experienced and expressed since the processes in regulation. problems that affect rural veterans and
inception of the Choice Program in VA has taken affirmative steps to that it may be more difficult for rural
August 2014, and we are similarly decrease administrative burdens such as veterans to obtain health care near their
sympathetic to the commenter’s delays in authorization and has residence. In this regard, the 40-mile
expressed experiences. Congress improved access to VA staff through the distance criterion in the Choice Program
mandated that VA implement the VA call centers and the internet. For regulations at § 17.1510(b)(2) is
Choice Program in 90 days, and instance, VA has reduced the designed to address accessibility issues
implementing such an unprecedented administrative burden for medical that affect rural Veterans. Particularly,
program in terms of VA care in the record submission for community the 40-mile criterion has been
community on a nationwide basis, in 90 providers by streamlining the interpreted by VA to consider driving
days, resulted in growing pains for documents required. We also have distance and not straight line distance
veterans, community providers, and VA. strived to improve veterans’ experience (see 80 FR 22906, April 24, 2015), and
During the initial year of the Choice with the call centers throughout the past to further interpret that this distance
Program, VA met with veterans, year. More specifically, in May 2015, it must be from a Veteran’s residence to a
community providers, leading took approximately 11 days to contact VA medical facility that has at least one
healthcare experts, and staff across the the veteran, obtain their provider and full time equivalent primary care
country to hear concerns and identify appointment preference, and work with physician (see 80 FR 74991, December
solutions. In order to immediately the community provider to schedule an 1, 2015). Both of these interpretations
implement changes to the Choice appointment; by May 2016, the average we believe increase the number of rural
Program, VA brought in new leadership number of days to accomplish those veterans eligible for the program, and
to oversee all Community Care tasks decreased to only 6. The Choice VA otherwise actively seeks and
Programs. Under this new leadership, Program call centers have also documents the concerns of rural
VA quickly began to improve the Choice continued to improve with a call veterans that participate in the Choice
Program and laid out a plan to drive abandon rate of less than 2 percent; a program with its SHEP survey as
towards a future that delivers the best of call hold time of no more than 7 described above. Therefore, we make no
VA and the community. VA has seconds; and first-time call resolution regulatory changes based on this
earnestly tried to implement the Choice over of 96 percent. In addition, Veterans comment.
Program in accord with legal are able to contact VA directly through The commenter also stated that the
requirements while being mindful of this website that is available to the Choice Program has created
veteran concerns and administrative public: http://www.va.gov/opa/ coordination of care issues for non-VA
realities, and VA will continue to strive choiceact/. The website contains providers who administer health care
information about the program, a phone for veterans. The commenter did not
to reduce any barriers communicated to
number that veterans can call in order elaborate on what those issues are or
us by veterans. VA does not make any
to speak to a person directly, and also how the Choice Program created them,
regulatory changes to address the
contains a live chat option that is or whether the interim final rule
commenter’s generalized concerns about
available to veterans Monday through exacerbated the issues, and the
the Choice Program.
Friday from 8 a.m. to 8 p.m., eastern commenter also did not suggest any
As to the commenter’s specific standard time. The vendors who changes to alleviate the issues. We do
concerns, the commenter stated that administer the Choice Program acknowledge that there may have been
there are no clear channels for additionally have processes in place for difficulty with coordination of care at
resolution of complaints or problems veterans who experience delays when the inception of the Choice Program,
when authorization for care has been receiving care in the community. The and, to enhance coordination of care for
delayed. The commenter further complaints and grievance processes for veterans, we have embedded Choice
elaborated that it is difficult to access the contractors, TriWest and Health Net, contractor staff with VA staff at 14 VA
the Choice Program call centers and, are available at their public websites, facilities, and continue to increase the
once contact is made with the call respectively: http://www.triwest.com/ number of embedded Choice contractor
center, it is difficult to receive answers globalassets/documents/veteran- staff locations. As the commenter did
from the employees working in the call services/complaint-grievance_form.pdf not provide enough specificity for
centers. The commenter suggested that and https://www.hnfs.com/content/ suggested regulatory changes, and we
a process be put in place to address hnfs/home/va/provider/resources/ believe VA has undertaken efforts to
complaint resolution. We interpret these resources/grievances.html. mitigate coordination of care issues, we
concerns to be limited to issues that The commenter next expressed the do not make any regulatory revisions
arise administratively when the veteran specific concern that rural veterans are based on this comment.
is already enrolled in the Choice disproportionately negatively impacted Finally, the commenter explained that
Program, such as delays in by barriers created by the Choice Act it was easier to seek care prior to the
sradovich on DSK3GMQ082PROD with RULES

authorization, and not concerns and VA and that such veterans’ Choice Program and that, even though
regarding eligibility to participate in the feedback is not heard by VA as a result the Program is voluntary, veterans are
Choice Program or concerns with of their disability status and geographic being told that they must use the Choice
clinical decisions throughout the course location. We first clarify that VA strives Program over VA care and other VA care
of treatment. Therefore, we further to gain feedback from all veterans, in the community permitted by legal
interpret these concerns to relate to the including those who live in rural areas, authorities other than the Choice Act.
internal processes relating to about their experiences with the Choice We first clarify that the Choice Program

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21896 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

is voluntary and veterans are provided complicated process to apply to regulatory action,’’ which requires
the option of obtaining care solely at VA participate in the Choice Program may review by the Office of Management and
medical facilities. Significantly, the deter people who are eligible and Budget (OMB), as ‘‘any regulatory action
Choice Program is designed to respect entitled to participate in the Program. that is likely to result in a rule that may:
and guarantee a veteran’s choice to see The commenter did not specify what (1) Have an annual effect on the
a VA provider or a non-VA provider if these burdens are or if they were made economy of $100 million or more or
they meet Choice Program criteria. In worse by revisions in the interim final adversely affect in a material way the
fact, if an eligible veteran elects to rule. Therefore, we interpret the economy, a sector of the economy,
receive covered care through the Choice comment to be general in scope. productivity, competition, jobs, the
Program, VA is required by the Choice Although the interim final rule and the environment, public health or safety, or
Act to furnish the care through the Choice regulations contain eligibility State, local, or tribal governments or
Program. In addition, the Choice Act criteria, they do not contain any communities; (2) Create a serious
authorized VA to purchase care through requirements or guidance for how to inconsistency or otherwise interfere
Choice provider agreements, which apply to participate in the Choice with an action taken or planned by
gives VA greater flexibility when Program. Therefore, we find that the another agency; (3) Materially alter the
furnishing care through the Choice comment is not within the scope of the budgetary impact of entitlements,
Program. VA recognizes that some rulemaking and we will not make any grants, user fees, or loan programs or the
veterans faced administrative barriers regulatory changes based on this rights and obligations of recipients
and hurdles while seeking care through comment. thereof; or (4) Raise novel legal or policy
the Choice Program and that some issues arising out of legal mandates, the
Effect of Rulemaking
veterans may have found it was easier President’s priorities, or the principles
in the past to seek VA care in the Title 38 of the Code of Federal set forth in this Executive Order.’’
community under legal authorities other Regulations, as confirmed by this final The economic, interagency,
than the Choice Act. To ensure the rule, represents VA’s implementation of budgetary, legal, and policy
Choice Program provides high quality its legal authority on this subject. Other implications of this regulatory action
and accessible care, VA has made and than future amendments to this have been examined and it has been
will continue to make improvements by regulation or governing statutes, no determined that this is an economically
working with Congress, our community contrary guidance or procedures are significant regulatory action under
providers, our Choice Program authorized. All existing or subsequent Executive Order 12866. VA’s regulatory
contractors and within VA. Therefore, VA guidance must be read to conform impact analysis can be found as a
we do not make any further regulatory with this rulemaking if possible or, if supporting document at http://
revisions based on this comment. not possible, such guidance is www.regulations.gov, usually within 48
The final three comments are beyond superseded by this rulemaking. hours after the rulemaking document is
the scope of the interim final rule and published. Additionally, a copy of the
Paperwork Reduction Act
we will not make any regulatory rulemaking and its regulatory impact
changes based on the comments. One Although this action contains analysis are available on VA’s website at
commenter expressed concern about the provisions constituting collections of http://www.va.gov/orpm/, by following
recertification process to become a information, at 38 CFR 17.1530(d), the link for ‘‘VA Regulations Published
vendor and contract with VA through under the Paperwork Reduction Act of From FY 2004 Through Fiscal Year to
‘‘vetbiz.gov.’’ The process of 1995 (44 U.S.C. 3501–3521), no new or Date.’’ VA’s impact analysis can be
vendorization on vetbiz.gov does not proposed revised collections of found as a supporting document at
apply for clinical providers under the information are associated with this http://www.regulations.gov, usually
Choice Act. As the commenter did not final rule. The information collection within 48 hours after the rulemaking
otherwise reference the interim final requirements for § 17.1530(d) are document is published. Additionally, a
rule or the Choice Program regulations currently approved by the Office of copy of the rulemaking and its impact
generally, nor did the commenter state Management and Budget (OMB) and analysis are available on VA’s website at
how the ability to recertify as a vendor have been assigned OMB control http://www.va.gov/orpm by following
was affected by the interim final rule or number 2900–0823. the link for VA Regulations Published
Choice regulations, we find that the Executive Orders 12866, 13563, and from FY 2004 through FYTD. This rule
comment is beyond the scope of the 13771 is not subject to the requirements of E.O.
rulemaking. 13771 because this rule results in no
Another commenter supported the Executive Orders 12866 and 13563 more than de minimis costs.
interim final rule because it would direct agencies to assess the costs and
enable the commenter to access benefits of available regulatory Congressional Review Act
community care near the commenter’s alternatives and, when regulation is This regulatory action is a major rule
residence in Panama. Care under the necessary, to select regulatory under the Congressional Review Act, 5
Choice Program is not provided outside approaches that maximize net benefits U.S.C. 801–08, because it may result in
of the United States. VA’s only authority (including potential economic, an annual effect on the economy of $100
to provide care abroad is through the environmental, public health and safety million or more. Although this
foreign medical care provisions in 38 effects, and other advantages; regulatory action constitutes a major
U.S.C. 1724, and the Choice Act did not distributive impacts; and equity). rule within the meaning of the
affect this limitation. Executive Order 13563 (Improving Congressional Review Act, 5 U.S.C.
sradovich on DSK3GMQ082PROD with RULES

Another commenter expressed a Regulation and Regulatory Review) 804(2), it is not subject to the 60-day
concern over the potentially emphasizes the importance of delay in effective date applicable to
burdensome nature of the quantifying both costs and benefits, major rules under 5 U.S.C. 801(a)(3)
administrative requirements to reducing costs, harmonizing rules, and because the Secretary finds that good
participate in the Choice Program. promoting flexibility. Executive Order cause exists under 5 U.S.C. 808(2) to
Specifically, the commenter requested 12866 (Regulatory Planning and make this regulatory action effective on
that VA be mindful that an overly Review) defines a ‘‘significant the date of publication, consistent with

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Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations 21897

the reasons given for the publication of 64.045—VHA Outpatient Ancillary beneficiaries, irrespective of the State or
the interim final rule. In accordance Services; 64.046—VHA Inpatient location in a State of the VA health care
with 5 U.S.C. 801(a)(1), VA will submit Psychiatry; 64.047—VHA Primary Care; provider or the beneficiary. This final
to the Comptroller General and to 64.048—VHA Mental Health Clinics; rule achieves important Federal
Congress a copy of this regulatory action 64.049—VHA Community Living interests by increasing the availability of
and VA’s Regulatory Impact Analysis. Center; 64.050—VHA Diagnostic Care. mental health, specialty, and general
Unfunded Mandates List of Subjects in 38 CFR Part 17 clinical care for all beneficiaries.
DATES: This final rule is effective June
The Unfunded Mandates Reform Act Administrative practice and 11, 2018.
of 1995 requires, at 2 U.S.C. 1532, that procedure, Alcohol abuse, Alcoholism,
FOR FURTHER INFORMATION CONTACT:
agencies prepare an assessment of Claims, Day care, Dental health, Drug
Kevin Galpin, MD, Executive Director
anticipated costs and benefits before abuse, Government contracts, Grant
Telehealth Services, Veterans Health
issuing any rule that may result in the programs-health, Grant programs-
Administration Office of Connected
expenditure by State, local, and tribal veterans, Health care, Health facilities,
Care, 810 Vermont Avenue NW,
governments, in the aggregate, or by the Health professions, Health records,
private sector, of $100 million or more Washington, DC 20420, (404) 771–8794,
Homeless, Mental health programs,
(adjusted annually for inflation) in any (this is not a toll-free number),
Nursing homes, Reporting and
1 year. This final rule will have no such Kevin.Galpin@va.gov.
recordkeeping requirements, Travel and
effect on State, local, and tribal transportation expenses, Veterans. SUPPLEMENTARY INFORMATION: In a
governments, or on the private sector. document published in the Federal
Signing Authority Register on October 2, 2017, VA
Regulatory Flexibility Act The Secretary of Veterans Affairs, or proposed to amend its medical
The Secretary hereby certifies that designee, approved this document and regulations by standardizing the
this final rule will not have a significant authorized the undersigned to sign and delivery of health care by VA health
economic impact on a substantial submit the document to the Office of the care providers through telehealth. 82 FR
number of small entities as they are Federal Register for publication 45756. VA provided a 30-day comment
defined in the Regulatory Flexibility electronically as an official document of period, which ended on November 1,
Act, 5 U.S.C. 601–612. This final rule the Department of Veterans Affairs. Gina 2017. We received 75 comments on the
will not have a significant economic S. Farrisee, Deputy Chief of Staff, proposed rule.
impact on participating eligible entities Department of Veterans Affairs, Section 7301 of title 38, United States
and providers who enter into approved this document Janaury 12, Code (U.S.C.), establishes the general
agreements with VA. To the extent there 2018, for publication. functions of the Veterans Health
is any such impact, it will result in Administration (VHA) within VA, and
Dated: May 8, 2018.
increased business and revenue for establishes that its primary function is
Consuela Benjamin,
them. We also do not believe there will to ‘‘provide a complete medical and
Regulations Development Coordinator, Office hospital service for the medical care and
be a significant economic impact on of Regulation Policy & Management, Office
insurance companies, as claims will treatment of veterans, as provided in
of the Secretary, Department of Veterans
only be submitted for care that will Affairs. this title and in regulations prescribed
otherwise have been received whether by the Secretary [of Veterans Affairs
such care was authorized under this PART 17—MEDICAL (Secretary)] pursuant to this title.’’ See
Program or not. Therefore, pursuant to 38 U.S.C. 7301(b). The Secretary is
5 U.S.C. 605(b), this rulemaking is ■ Accordingly, the interim rules responsible for the proper execution and
exempt from the initial and final amending 38 CFR part 17 which were administration of all laws administered
regulatory flexibility analysis published at 80 FR 74991 on December by the Department and for the control,
requirements of 5 U.S.C. 603 and 604. 1, 2015, and 81 FR 24026 on April 25, direction, and management of the
2016, are adopted as final without Department, including agency personnel
Catalog of Federal Domestic Assistance change. and management matters. See 38 U.S.C.
The Catalog of Federal Domestic [FR Doc. 2018–10054 Filed 5–10–18; 8:45 am] 303. To this end, Congress authorized
Assistance numbers and titles for the BILLING CODE 8320–01–P the Secretary ‘‘to prescribe all rules and
programs affected by this document are regulations which are necessary or
as follows: 64.008—Veterans appropriate to carry out the laws
Domiciliary Care; 64.011—Veterans DEPARTMENT OF VETERANS administered by the Department and are
Dental Care; 64.012—Veterans AFFAIRS consistent with those laws.’’ See 38
Prescription Service; 64.013—Veterans U.S.C. 501(a). The Under Secretary for
38 CFR Part 17
Prosthetic Appliances; 64.014— Health is directly responsible to the
Veterans State Domiciliary Care; RIN 2900–AQ06 Secretary for the operation of VHA. See
64.015—Veterans State Nursing Home 38 U.S.C. 305(b). Unless specifically
Care; 64.024—VA Homeless Providers Authority of Health Care Providers To otherwise provided, the Under Secretary
Grant and Per Diem Program; 64.026— Practice Telehealth for Health, as the head of VHA, is
Veterans State Adult Day Health Care; AGENCY: Department of Veterans Affairs. authorized to ‘‘prescribe all regulations
64.029—Purchase Care Program; ACTION: Final rule. necessary to the administration of the
64.035—Veterans Transportation Veterans Health Administration,’’
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Program; 64.038—Grants for the Rural SUMMARY: The Department of Veterans subject to the approval of the Secretary.
Veterans Coordination Pilot; 64.039— Affairs (VA) is amending its medical See 38 U.S.C. 7304.
CHAMPVA; 64.040—VHA Inpatient regulations by standardizing the To allow VA to carry out its medical
Medicine; 64.041—VHA Outpatient delivery of care by VA health care care mission, Congress also established
Specialty Care; 64.042—VHA Inpatient providers through telehealth. This rule a comprehensive personnel system for
Surgery; 64.043—VHA Mental Health ensures that VA health care providers certain VA health care providers,
Residential; 64.044—VHA Home Care; can offer the same level of care to all independent of the civil service rules.

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Document Created: 2018-11-02 09:48:57
Document Modified: 2018-11-02 09:48:57

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.
Dates		Effective date: This rule is effective on May 11, 2018.
Contact		Joseph Duran, Director, Policy and Planning, Office of Community Care (10D1A1), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (303) 372-4629. (This is not a toll-free number.)
FR Citation		83 FR 21893
RIN Number		2900-AP60
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