Autopsies at VA Expense, 75509-75512 [2011-31031]
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Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Proposed Rules
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publicly available, such as CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, Headquarters, Operations
and Regulatory Community of Practice,
Washington, DC at (202) 761–4922 or
Mr. Donald E. Mroczko, U.S. Army
Corps of Engineers, Mobile District, at
(251) 690–3185.
SUPPLEMENTARY INFORMATION: The
Supervisor of Shipbuilding, Conversion
and Repair (SUPERVISOR), USN, Gulf
Coast (SUPSHIP Gulf Coast) assumed
the duties of administering new
construction contracts at AUSTAL USA
in Mobile, Alabama, on October 9, 2011,
replacing Supervisor of Shipbuilding,
Conversion, and Repair, USN, Bath
(SUPSHIP Bath). The SUPERVISOR is
responsible for United States Navy
shipbuilding activities at AUSTAL, USA
located in Mobile, Alabama. In
accordance with Department of Defense
and Department of the Navy guidance,
the SUPERVISOR is responsible for the
antiterrorism efforts and force
protection of Department of the Navy
assets under his or her charge. As such,
the restricted area was established on
September 22, 2009 (see 74 FR 48151).
There are no proposed changes to the
boundaries of the restricted area.
In response to a request by the United
States Navy, and pursuant to its
authorities in Section 7 of the Rivers
and Harbors Act of 1917 (40 Stat 266;
33 U.S.C. 1) and Chapter XIX of the
Army Appropriations Act of 1919
(40 Stat 892; 33 U.S.C. 3), the Corps is
proposing to amend the regulation at
33 CFR 334.782 by changing the
responsible party from SUPSHIP Bath to
SUPSHIP Gulf Coast.
Procedural Requirements
a. Review Under Executive Order
12866. This proposed rule is issued
with respect to a military function of the
Defense Department and the provisions
of Executive Order 12866 do not apply.
b. Review Under the Regulatory
Flexibility Act. This proposed rule has
been reviewed under the Regulatory
Flexibility Act (Pub. L. 96–354) which
requires the preparation of a regulatory
flexibility analysis for any regulation
that will have a significant economic
impact on a substantial number of small
entities (i.e., small businesses and small
governments). Unless information is
obtained to the contrary during the
public notice comment period, the
Corps expects that the economic impact
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of the proposed rule would have
practically no impact on the public or
result in any anticipated navigational
hazard or interference with existing
waterway traffic. This proposed rule, if
adopted, will not have a significant
economic impact on small entities.
c. Review Under the National
Environmental Policy Act. The Corps
expects that the proposed rule will not
have a significant impact to the quality
of the human environment and,
therefore, preparation of an
environmental impact statement will
not be required. An environmental
assessment will be prepared after the
public notice period is closed and all
comments have been received and
considered. After it is prepared, it may
be reviewed at the District office listed
at the end of the FOR FURTHER
INFORMATION CONTACT section, above.
d. Unfunded Mandates Act. The
proposed rule does not impose an
enforceable duty among the private
sector and, therefore, is not a Federal
private sector mandate and is not
subject to the requirements of Section
202 or 205 of the Unfunded Mandates
Reform Act (Pub. L. 104–4, 109 Stat. 48,
2 U.S.C. 1501 et seq.). We have also
found under Section 203 of the Act, that
small governments will not be
significantly or uniquely affected by this
rulemaking.
List of Subjects in 33 CFR Part 334
Danger zones, Navigation (water),
Restricted areas, Waterways.
For the reasons set out in the
preamble, the Corps proposes to amend
33 CFR part 334 as follows:
PART 334—DANGER ZONE AND
RESTRICTED AREA REGULATIONS
1. The authority citation for 33 CFR
part 334 continues to read as follows:
Authority: 40 Stat. 266 (33 U.S.C. 1) and
40 Stat. 892 (33 U.S.C. 3).
2. Revise paragraphs (b) and (c) of
§ 334.782 to read as follows:
§ 334.782 SUPSHIP Gulf Coast,
Pascagoula, MS Detachment Mobile, AL at
AUSTAL, USA, Mobile, AL; restricted area.
*
*
*
*
*
(b) The regulations: (1) All persons,
swimmers, vessels and other craft,
except those vessels under the
supervision or contract to local military
or Naval authority, vessels of the United
States Coast Guard, and local or state
law enforcement vessels, are prohibited
from entering the restricted area without
permission from the Supervisor of
Shipbuilding, Conversion and Repair,
USN, Gulf Coast, Pascagoula, MS or his/
her authorized representative.
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75509
(2) The restricted area is in effect
twenty four hours per day and seven
days a week (24/7).
(3) Should warranted access into the
restricted navigation area be needed, all
entities are to contact the Supervisor of
Shipbuilding, Conversion and Repair,
USN, Gulf Coast, Pascagoula, MS, or
his/her authorized representative on
Marine Communication Channel 16.
(c) Enforcement: The regulation in
this section shall be enforced by the
Supervisor of Shipbuilding, Conversion
and Repair, USN, Gulf Coast,
Pascagoula, MS and/or such agencies or
persons as he/she may designate.
Dated: November 29, 2011.
Michael G. Ensch,
Chief, Operations and Regulatory Directorate
of Civil Works.
[FR Doc. 2011–31018 Filed 12–1–11; 8:45 am]
BILLING CODE 3720–58–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 17
RIN 2900–AO03
Autopsies at VA Expense
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) proposes to amend its
regulation that governs the performance
of autopsies on veterans. The proposed
rule would correct a cross-reference to
VA regulations that authorize certain
outpatient and ambulatory care. The
proposed rule would also clarify that
consent for an autopsy will be implied
if 6 months has passed since the
decedent’s death and there are no
objections from the decedent’s surviving
spouse or next of kin. The proposed rule
would also modify current regulations
to make the laws of the jurisdiction in
which the autopsy will be performed
the controlling laws for purposes of
determining who has authority to grant
permission for the autopsy. The
proposed rule would also clarify the
authorized purposes of a VA autopsy.
Lastly, the proposed rule would clarify
that the authority to order an autopsy
includes transporting the body at VA’s
expense to the autopsy facility.
DATES: Comments must be received by
VA on or before January 31, 2012.
ADDRESSES: Written comments may be
submitted through www.regulations.gov;
by mail or hand-delivery to the Director,
Regulations Management (02REG),
Department of Veterans Affairs, 810
Vermont Avenue NW., Room 1068,
SUMMARY:
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02DEP1
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75510
Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Proposed Rules
Washington, DC 20420; or by fax to
(202) 273–9026. Comments should
indicate that they are submitted in
response to ‘‘RIN 2900–AO03,
Autopsies at VA Expense.’’ 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 a.m. and 4:30 p.m., Monday through
Friday (except holidays). 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
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Kristin J. Cunningham, Director,
Business Policy, Chief Business Office,
Department of Veterans Affairs, 810
Vermont Ave. NW., Washington, DC
20420; (202) 461–1599. (This is not a
toll-free number).
SUPPLEMENTARY INFORMATION: Pursuant
to 38 CFR 17.170, under certain
specified circumstances, ‘‘[t]he Director
of a [VA] facility is authorized to cause
an autopsy to be performed on a veteran
who dies outside of a [VA] facility while
undergoing post-hospital care under the
provisions of 38 U.S.C. 1712 and 38 CFR
17.93.’’ When this regulatory provision
was originally promulgated, 38 U.S.C.
1712 served as the authority for certain
outpatient and ambulatory care and,
therefore, it also served as the authority
for our post-hospitalization autopsy
regulation. However, in 1996, section
1712 was amended by the Veterans’
Health Care Eligibility Reform Act of
1996, Public Law 104–262, sec. 101. The
amendment moved from section 1712 to
38 U.S.C. 1710 the authority to provide
outpatient and ambulatory care. In
accordance with that amendment, VA
promulgated 38 CFR 17.38, on October
6, 1999, 64 FR 54212. Section 17.38,
inter alia, implemented the revised
statutory authority, in 38 U.S.C. 1710,
that authorizes VA to provide hospital
and outpatient care to veterans.
We also note that 38 U.S.C. 1703
authorizes VA under specified
circumstances to contract with non-VA
facilities to furnish hospital care and
medical services to certain veterans in
non-VA facilities. VA implemented this
authority with respect to individuals
who died while receiving hospital and
medical care in non-VA facilities in 38
CFR 17.52. Limiting autopsies to
individuals who are only receiving VA
medical care under § 17.38 would
exclude the individuals who are
receiving fee-basis care under § 17.52,
and would, therefore, be inconsistent
with current § 17.170. This proposed
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rule would update the statutory and
regulatory cross-references in § 17.170
accordingly. These are overdue
technical revisions that would not affect
VA’s authority to authorize autopsies.
38 CFR 17.170(a), (b)
This rulemaking would also amend
current paragraphs (a) and (b) of
§ 17.170 by reorganizing and clarifying
the provisions governing whether an
autopsy should be performed. Current
paragraphs (a) and (b) state:
(a) Except as provided in this section, no
autopsy will be performed by the Department
of Veterans Affairs unless there is no known
surviving spouse or known next of kin; or
without the consent of the surviving spouse
or, in a proper case, the next of kin, unless
the patient or domiciled person was
abandoned by the spouse, if any, or, if no
spouse, by the next of kin for a period of not
less than 6 months next preceding death.
Where no inquiry has been made for or in
regard to the decedent for a period of 6
months next preceding his death, he or she
shall be deemed to have been abandoned.
(b) If there is no known surviving spouse
or known next of kin, or if the decedent shall
have been abandoned or if the request is sent
and the spouse or, in proper cases, the next
of kin fails to reply within the reasonable
time stated in such request of the Department
of Veterans Affairs for permission to perform
the autopsy, the Director is hereby authorized
to cause an autopsy to be performed if in the
Director’s discretion he or she concludes that
such autopsy is reasonably required for any
necessary purpose of the Department of
Veterans Affairs, including the completion of
official records and advancement of medical
knowledge.
Current paragraphs (a) and (b) use the
term ‘‘abandoned’’ to effectively
establish implied consent for an autopsy
on the part of a known surviving spouse
or next of kin and to effectively
establish that there is no surviving
spouse or next of kin to provide consent
in cases where VA is unaware that such
a person exists. This proposed rule
would be clearer, and would retain the
same substantive meaning, if it was
revised to avoid using the term
‘‘abandoned.’’ We would state in new
paragraphs (a)(2)(ii) and (iii),
respectively, that VA is authorized to
perform an autopsy if a known
surviving spouse or next of kin has
either not responded to a VA request for
permission or has not inquired as to the
decedent for a period of 6 months prior
to death. This would accomplish the
same effect as the current language, but
would do so in plainer, more direct
language. We would also clarify that the
consent to grant an autopsy is either
directly granted by the surviving spouse
or next of kin, or the consent is implied.
The implied consent gives VA the
authority to perform an autopsy in
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situations where there is no known
surviving spouse or next of kin, where
the known surviving spouse or next of
kin has not inquired as to the decedent
for a period of 6 months prior to death,
or where such persons have not
responded to VA’s request for
permission to perform an autopsy. This
clarifying language allows for ease of
interpretation of the methods used to
obtain consent for autopsy.
We also propose to state that the
surviving spouse/next of kin must
respond to VA’s request for
authorization to perform an autopsy
‘‘within a specified period of time’’
rather than within a ‘‘reasonable time
stated in such request.’’ Such requests
clearly specify the applicable time
period, which is typically short and
based on the specific facts concerning
the decedent’s body and/or cause of
death. There is no reason to include a
‘‘reasonable’’ modifier in these
situations; it is more direct to simply
require a response within the time
period specified in the request.
Finally, we would reorganize the
provisions of current paragraphs (a) and
(b) to improve readability. In so doing,
we would, in proposed paragraph (a)(1),
authorize the Director of the VA facility
to order an autopsy if ‘‘required for VA
purposes for the following reasons: (i)
Completion of official records; or (ii)
Advancement of medical knowledge.’’
The current rule is overly broad as it
implies that there may be more than two
circumstances in which VA may order
an autopsy. All autopsy requests fall
under the advancement of medical
knowledge or the completion of medical
records. This proposed rule would
clarify this point. Proposed paragraph
(a)(1) would restate the current rule,
with the changes noted above.
38 CFR 17.170(d)
Current paragraph (e) states that ‘‘[t]he
laws of the decedent’s domicile are
determinative as to whether the spouse
or the next of kin is the proper person
to grant permission to perform an
autopsy and of the question as to the
order of preference among such
persons.’’ We note that readers may
have interpreted this sentence to mean
that if the decedent dies in a State
where the decedent did not reside, we
would apply the law of the State where
the decedent resided in order to
establish the proper person to grant
permission for an autopsy. Laws on this
issue may vary between States, and it is
administratively burdensome—and
unnecessary—to require VA medical
center directors to determine the
decedent’s domicile and then to
compare and contrast the laws of the
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Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Proposed Rules
various States that may be involved. In
order to avoid potential confusion and
administrative difficulties, particularly
in autopsy situations where time is
usually of the essence, we have
determined that the laws of the
jurisdiction in which the autopsy would
be performed should be used to
determine the proper person to grant
permission for the autopsy. We propose
such a rule in paragraph (d)(1).
The current regulation also describes
the typical hierarchy for those who may
grant permission for an autopsy, but the
language is hortatory and nonbinding
(‘‘[u]sually the spouse is first entitled,’’
etc.). We believe that this is not only
unhelpful but is also potentially
misleading if it is relied upon by a VA
facility director in a State in which this
typical hierarchy is not in fact law.
Thus, we would remove this list. This
change will emphasize the need for each
local VA facility to establish its own
local guidance based on the applicable
law of the State in which the autopsy
will be performed. We also propose to
reorganize and clarify the provisions of
current paragraph (e) in proposed
paragraph (d).
srobinson on DSK4SPTVN1PROD with PROPOSALS
38 CFR 17.170(e)
Under current paragraph (f) the
Director of a VA facility ‘‘is authorized
to cause an autopsy to be performed on
a veteran who dies outside of a
Department of Veterans Affairs facility
while undergoing post-hospital care
under the provisions of 38 U.S.C. 1712
and 38 CFR 17.93.’’ As noted
previously, these authorities have been
revised. We would amend the regulation
accordingly. In addition, current
paragraph (f) states that the Director of
the VA facility’s authority to order an
autopsy also includes authority to
furnish transportation of the body at VA
expense to the VA facility where the
autopsy would be performed. However,
an autopsy would not necessarily be
performed in a VA facility. VA may use
a contract provider to perform the
autopsy outside of a VA facility, or
utilize a regional autopsy center. We,
therefore, propose to state in paragraph
(e) that the authority to order an autopsy
‘‘also includes transporting the body at
VA’s expense to the facility where the
autopsy will be performed.’’
We also propose to add an authority
citation, 38 U.S.C. 501, 1703, and 1710,
after § 17.170.
Paperwork Reduction Act
This document contains no provisions
constituting a collection of information
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3521).
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75511
Regulatory Flexibility Act
Unfunded Mandates
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. This
proposed rule would not cause a
significant economic impact on health
care providers, suppliers, or entities
since only a small portion of the
business of such entities concerns VA
beneficiaries. Therefore, pursuant to 5
U.S.C. 605(b), this proposed rule is
exempt from the initial and final
regulatory flexibility analysis
requirements of §§ 603 and 604.
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
expenditure by State, local, or Tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation) in any
given year. This proposed rule would
have no such effect on State, local, or
Tribal governments, or on the private
sector.
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,’’ 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 not to be a significant
regulatory action under Executive Order
12866.
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Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance program number and title 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; 64.014, Veterans State
Domiciliary Care; 64.015, Veterans State
Nursing Home Care; 64.018, Sharing
Specialized Medical Resources; 64.019,
Veterans Rehabilitation Alcohol and
Drug Dependence; 64.022, Veterans
Home Based Primary Care; and 64.024,
VA Homeless Providers Grant and Per
Diem Program.
Signing Authority
The Secretary of Veterans Affairs, or
designee, approved this document and
authorized the undersigned to sign and
submit the document to the Office of the
Federal Register for publication
electronically as an official document of
the Department of Veterans Affairs. John
R. Gingrich, Chief of Staff, Department
of Veterans Affairs, approved this
document on November 21, 2011, for
publication.
List of Subjects in 38 CFR Part 17
Administrative practice and
procedure; Alcohol abuse; Alcoholism;
Claims; Day care; Dental health; Drug
abuse; Government contracts; Grant
programs—health; Grant programs—
veterans; Health care; Health facilities;
Health professions; Health records;
Homeless; Mental health programs;
Nursing homes; Philippines, Reporting
and recordkeeping requirements;
Veterans.
Dated: November 29, 2011.
Robert C. McFetridge,
Director of Regulation Policy and
Management, Office of the General Counsel,
Department of Veterans Affairs.
For the reasons set forth in the
preamble, VA proposes to amend 38
CFR part 17 as follows:
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Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Proposed Rules
PART 17—MEDICAL
1. The authority citation for part 17
continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in
specific sections.
2. Amend § 17.170 by:
a. Revising paragraph (a).
b. Removing paragraph (b).
c. Redesignating paragraph (c) as new
paragraph (b) and adding a paragraph
heading.
d. Redesignating paragraph (d) as new
paragraph (c) and adding a paragraph
heading.
e. In newly redesignated paragraph
(c), removing ‘‘paragraph (c)’’ each time
it appears and adding, in its place,
‘‘paragraph (b)’’.
d. Redesignating paragraph (e) as new
paragraph (d) and revising newly
redesignated paragraph (d).
e. Redesignating paragraph (f) as new
paragraph (e) and revising newly
redesignated paragraph (e).
f. Adding an authority citation at the
end of the section.
The revisions and addition read as
follows:
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§ 17.170
Autopsies.
(a) General. (1) Except as otherwise
provided in this section, the Director of
a VA facility may order an autopsy on
a decedent who died while undergoing
VA care authorized by § 17.38, ‘‘Medical
Benefits Package’’, or § 17.52, ‘‘Hospital
care and medical services in non-VA
facilities’’, if the Director determines
that an autopsy is required for VA
purposes for the following reasons:
(i) Completion of official records; or
(ii) Advancement of medical
knowledge.
(2) VA may order an autopsy to be
performed only if consent is first
obtained under one of the following
circumstances:
(i) Consent is granted by the surviving
spouse or next of kin of the decedent;
(ii) Consent is implied where a known
surviving spouse or next of kin does not
respond within a specified period of
time to VA’s request for permission to
conduct an autopsy;
(iii) Consent is implied where a
known surviving spouse or next of kin
does not inquire after the well-being of
the deceased veteran for a period of at
least 6 months before the date of the
veteran’s death; or
(iv) Consent is implied where there is
no known surviving spouse or next of
kin of the deceased veteran.
(b) Death resulting from crime. * * *
(c) Jurisdiction. * * *
(d) Applicable law. (1) The laws of the
state where the autopsy will be
performed are to be used to identify the
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person who is authorized to grant VA
permission to perform the autopsy and,
if more than one person is identified,
the order of precedence among such
persons.
(2) When the next of kin, as defined
by the laws of the state where the
autopsy will be performed, consists of a
number of persons such as children,
parents, brothers and sisters, etc.,
permission to perform an autopsy may
be accepted when granted by the person
in the appropriate class who assumes
the right and duty of burial.
(e) Death outside a VA facility. The
Director of a VA facility may order an
autopsy on a veteran who was
undergoing VA care authorized by
§§ 17.38 or 17.52, and whose death did
not occur in a VA facility. Such
authority also includes transporting the
body at VA’s expense to the facility
where the autopsy will be performed,
and the return of the body. Consent for
the autopsy will be obtained as stated in
paragraph (d) of this section. The
Director must determine that such
autopsy is reasonably required for VA
purposes for the following reasons:
(1) The completion of official records;
or
(2) Advancement of medical
knowledge.
(Authority: 38 U.S.C. 501, 1703, 1710)
[FR Doc. 2011–31031 Filed 12–1–11; 8:45 am]
BILLING CODE 8320–01–P
Submit comments
identified by DFARS Case 2011–D042,
using any of the following methods:
Æ Regulations.gov: https://www.
regulations.gov. Submit comments via
the Federal eRulemaking portal by
entering ‘‘DFARS Case 2011–D042
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2011–
D042.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2011–
D011’’ on your attached document.
Æ E-mail: dfars@osd.mil. Include
DFARS Case 2011–D011 in the subject
line of the message.
Æ Fax: 703–614–1254.
Æ Mail: Defense Acquisition
Regulations System, Attn: Dustin Pitsch,
OUSD (AT&L) DPAP/DARS, Room
3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting (except allow 30 days for
posting of comments submitted by
mail).
ADDRESSES:
Mr.
Dustin Pitsch, telephone 703–602–0289.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 215 and 252
RIN 0750–AH47
Defense Federal Acquisition
Regulation Supplement: Proposal
Adequacy Checklist (DFARS Case
2011–D042)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement to incorporate a
proposal adequacy checklist for
proposals in response to solicitations
that require submission of certified cost
or pricing data.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
January 31, 2012, to be considered in
the formation of a final rule.
SUMMARY:
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Sfmt 4702
I. Background
This proposed rule supports one of
DoD’s Better Buying Power initiatives
by incorporating the requirement for a
proposal adequacy checklist into the
Defense Federal Acquisition Regulation
Supplement (DFARS) at section
215.408, and an associated solicitation
provision at DFARS 252.215–70XX, to
ensure offerors take responsibility for
submitting thorough, accurate, and
complete proposals. The provision
should be included in solicitations that
require the submission of certified cost
or pricing data.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
E:\FR\FM\02DEP1.SGM
02DEP1
]]>Agencies
[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Proposed Rules]
[Pages 75509-75512]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31031]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AO03
Autopsies at VA Expense
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulation that governs the performance of autopsies on veterans. The
proposed rule would correct a cross-reference to VA regulations that
authorize certain outpatient and ambulatory care. The proposed rule
would also clarify that consent for an autopsy will be implied if 6
months has passed since the decedent's death and there are no
objections from the decedent's surviving spouse or next of kin. The
proposed rule would also modify current regulations to make the laws of
the jurisdiction in which the autopsy will be performed the controlling
laws for purposes of determining who has authority to grant permission
for the autopsy. The proposed rule would also clarify the authorized
purposes of a VA autopsy. Lastly, the proposed rule would clarify that
the authority to order an autopsy includes transporting the body at
VA's expense to the autopsy facility.
DATES: Comments must be received by VA on or before January 31, 2012.
ADDRESSES: Written comments may be submitted through
www.regulations.gov; by mail or hand-delivery to the Director,
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Avenue NW., Room 1068,
[[Page 75510]]
Washington, DC 20420; or by fax to (202) 273-9026. Comments should
indicate that they are submitted in response to ``RIN 2900-AO03,
Autopsies at VA Expense.'' 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 a.m. and 4:30 p.m.,
Monday through Friday (except holidays). 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 https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Kristin J. Cunningham, Director,
Business Policy, Chief Business Office, Department of Veterans Affairs,
810 Vermont Ave. NW., Washington, DC 20420; (202) 461-1599. (This is
not a toll-free number).
SUPPLEMENTARY INFORMATION: Pursuant to 38 CFR 17.170, under certain
specified circumstances, ``[t]he Director of a [VA] facility is
authorized to cause an autopsy to be performed on a veteran who dies
outside of a [VA] facility while undergoing post-hospital care under
the provisions of 38 U.S.C. 1712 and 38 CFR 17.93.'' When this
regulatory provision was originally promulgated, 38 U.S.C. 1712 served
as the authority for certain outpatient and ambulatory care and,
therefore, it also served as the authority for our post-hospitalization
autopsy regulation. However, in 1996, section 1712 was amended by the
Veterans' Health Care Eligibility Reform Act of 1996, Public Law 104-
262, sec. 101. The amendment moved from section 1712 to 38 U.S.C. 1710
the authority to provide outpatient and ambulatory care. In accordance
with that amendment, VA promulgated 38 CFR 17.38, on October 6, 1999,
64 FR 54212. Section 17.38, inter alia, implemented the revised
statutory authority, in 38 U.S.C. 1710, that authorizes VA to provide
hospital and outpatient care to veterans.
We also note that 38 U.S.C. 1703 authorizes VA under specified
circumstances to contract with non-VA facilities to furnish hospital
care and medical services to certain veterans in non-VA facilities. VA
implemented this authority with respect to individuals who died while
receiving hospital and medical care in non-VA facilities in 38 CFR
17.52. Limiting autopsies to individuals who are only receiving VA
medical care under Sec. 17.38 would exclude the individuals who are
receiving fee-basis care under Sec. 17.52, and would, therefore, be
inconsistent with current Sec. 17.170. This proposed rule would update
the statutory and regulatory cross-references in Sec. 17.170
accordingly. These are overdue technical revisions that would not
affect VA's authority to authorize autopsies.
38 CFR 17.170(a), (b)
This rulemaking would also amend current paragraphs (a) and (b) of
Sec. 17.170 by reorganizing and clarifying the provisions governing
whether an autopsy should be performed. Current paragraphs (a) and (b)
state:
(a) Except as provided in this section, no autopsy will be
performed by the Department of Veterans Affairs unless there is no
known surviving spouse or known next of kin; or without the consent
of the surviving spouse or, in a proper case, the next of kin,
unless the patient or domiciled person was abandoned by the spouse,
if any, or, if no spouse, by the next of kin for a period of not
less than 6 months next preceding death. Where no inquiry has been
made for or in regard to the decedent for a period of 6 months next
preceding his death, he or she shall be deemed to have been
abandoned.
(b) If there is no known surviving spouse or known next of kin,
or if the decedent shall have been abandoned or if the request is
sent and the spouse or, in proper cases, the next of kin fails to
reply within the reasonable time stated in such request of the
Department of Veterans Affairs for permission to perform the
autopsy, the Director is hereby authorized to cause an autopsy to be
performed if in the Director's discretion he or she concludes that
such autopsy is reasonably required for any necessary purpose of the
Department of Veterans Affairs, including the completion of official
records and advancement of medical knowledge.
Current paragraphs (a) and (b) use the term ``abandoned'' to
effectively establish implied consent for an autopsy on the part of a
known surviving spouse or next of kin and to effectively establish that
there is no surviving spouse or next of kin to provide consent in cases
where VA is unaware that such a person exists. This proposed rule would
be clearer, and would retain the same substantive meaning, if it was
revised to avoid using the term ``abandoned.'' We would state in new
paragraphs (a)(2)(ii) and (iii), respectively, that VA is authorized to
perform an autopsy if a known surviving spouse or next of kin has
either not responded to a VA request for permission or has not inquired
as to the decedent for a period of 6 months prior to death. This would
accomplish the same effect as the current language, but would do so in
plainer, more direct language. We would also clarify that the consent
to grant an autopsy is either directly granted by the surviving spouse
or next of kin, or the consent is implied. The implied consent gives VA
the authority to perform an autopsy in situations where there is no
known surviving spouse or next of kin, where the known surviving spouse
or next of kin has not inquired as to the decedent for a period of 6
months prior to death, or where such persons have not responded to VA's
request for permission to perform an autopsy. This clarifying language
allows for ease of interpretation of the methods used to obtain consent
for autopsy.
We also propose to state that the surviving spouse/next of kin must
respond to VA's request for authorization to perform an autopsy
``within a specified period of time'' rather than within a ``reasonable
time stated in such request.'' Such requests clearly specify the
applicable time period, which is typically short and based on the
specific facts concerning the decedent's body and/or cause of death.
There is no reason to include a ``reasonable'' modifier in these
situations; it is more direct to simply require a response within the
time period specified in the request.
Finally, we would reorganize the provisions of current paragraphs
(a) and (b) to improve readability. In so doing, we would, in proposed
paragraph (a)(1), authorize the Director of the VA facility to order an
autopsy if ``required for VA purposes for the following reasons: (i)
Completion of official records; or (ii) Advancement of medical
knowledge.'' The current rule is overly broad as it implies that there
may be more than two circumstances in which VA may order an autopsy.
All autopsy requests fall under the advancement of medical knowledge or
the completion of medical records. This proposed rule would clarify
this point. Proposed paragraph (a)(1) would restate the current rule,
with the changes noted above.
38 CFR 17.170(d)
Current paragraph (e) states that ``[t]he laws of the decedent's
domicile are determinative as to whether the spouse or the next of kin
is the proper person to grant permission to perform an autopsy and of
the question as to the order of preference among such persons.'' We
note that readers may have interpreted this sentence to mean that if
the decedent dies in a State where the decedent did not reside, we
would apply the law of the State where the decedent resided in order to
establish the proper person to grant permission for an autopsy. Laws on
this issue may vary between States, and it is administratively
burdensome--and unnecessary--to require VA medical center directors to
determine the decedent's domicile and then to compare and contrast the
laws of the
[[Page 75511]]
various States that may be involved. In order to avoid potential
confusion and administrative difficulties, particularly in autopsy
situations where time is usually of the essence, we have determined
that the laws of the jurisdiction in which the autopsy would be
performed should be used to determine the proper person to grant
permission for the autopsy. We propose such a rule in paragraph (d)(1).
The current regulation also describes the typical hierarchy for
those who may grant permission for an autopsy, but the language is
hortatory and nonbinding (``[u]sually the spouse is first entitled,''
etc.). We believe that this is not only unhelpful but is also
potentially misleading if it is relied upon by a VA facility director
in a State in which this typical hierarchy is not in fact law. Thus, we
would remove this list. This change will emphasize the need for each
local VA facility to establish its own local guidance based on the
applicable law of the State in which the autopsy will be performed. We
also propose to reorganize and clarify the provisions of current
paragraph (e) in proposed paragraph (d).
38 CFR 17.170(e)
Under current paragraph (f) the Director of a VA facility ``is
authorized to cause an autopsy to be performed on a veteran who dies
outside of a Department of Veterans Affairs facility while undergoing
post-hospital care under the provisions of 38 U.S.C. 1712 and 38 CFR
17.93.'' As noted previously, these authorities have been revised. We
would amend the regulation accordingly. In addition, current paragraph
(f) states that the Director of the VA facility's authority to order an
autopsy also includes authority to furnish transportation of the body
at VA expense to the VA facility where the autopsy would be performed.
However, an autopsy would not necessarily be performed in a VA
facility. VA may use a contract provider to perform the autopsy outside
of a VA facility, or utilize a regional autopsy center. We, therefore,
propose to state in paragraph (e) that the authority to order an
autopsy ``also includes transporting the body at VA's expense to the
facility where the autopsy will be performed.''
We also propose to add an authority citation, 38 U.S.C. 501, 1703,
and 1710, after Sec. 17.170.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. This proposed rule would not cause a significant
economic impact on health care providers, suppliers, or entities since
only a small portion of the business of such entities concerns VA
beneficiaries. Therefore, pursuant to 5 U.S.C. 605(b), this proposed
rule is exempt from the initial and final regulatory flexibility
analysis requirements of Sec. Sec. 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,'' 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 not to be a significant regulatory action under
Executive Order 12866.
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 expenditure by
State, local, or Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any given year. This proposed rule would have no such
effect on State, local, or Tribal governments, or on the private
sector.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program number and title
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; 64.014, Veterans State Domiciliary
Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing
Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol
and Drug Dependence; 64.022, Veterans Home Based Primary Care; and
64.024, VA Homeless Providers Grant and Per Diem Program.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on November 21, 2011, for publication.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure; Alcohol abuse; Alcoholism;
Claims; Day care; Dental health; Drug abuse; Government contracts;
Grant programs--health; Grant programs--veterans; Health care; Health
facilities; Health professions; Health records; Homeless; Mental health
programs; Nursing homes; Philippines, Reporting and recordkeeping
requirements; Veterans.
Dated: November 29, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 38
CFR part 17 as follows:
[[Page 75512]]
PART 17--MEDICAL
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
2. Amend Sec. 17.170 by:
a. Revising paragraph (a).
b. Removing paragraph (b).
c. Redesignating paragraph (c) as new paragraph (b) and adding a
paragraph heading.
d. Redesignating paragraph (d) as new paragraph (c) and adding a
paragraph heading.
e. In newly redesignated paragraph (c), removing ``paragraph (c)''
each time it appears and adding, in its place, ``paragraph (b)''.
d. Redesignating paragraph (e) as new paragraph (d) and revising
newly redesignated paragraph (d).
e. Redesignating paragraph (f) as new paragraph (e) and revising
newly redesignated paragraph (e).
f. Adding an authority citation at the end of the section.
The revisions and addition read as follows:
Sec. 17.170 Autopsies.
(a) General. (1) Except as otherwise provided in this section, the
Director of a VA facility may order an autopsy on a decedent who died
while undergoing VA care authorized by Sec. 17.38, ``Medical Benefits
Package'', or Sec. 17.52, ``Hospital care and medical services in non-
VA facilities'', if the Director determines that an autopsy is required
for VA purposes for the following reasons:
(i) Completion of official records; or
(ii) Advancement of medical knowledge.
(2) VA may order an autopsy to be performed only if consent is
first obtained under one of the following circumstances:
(i) Consent is granted by the surviving spouse or next of kin of
the decedent;
(ii) Consent is implied where a known surviving spouse or next of
kin does not respond within a specified period of time to VA's request
for permission to conduct an autopsy;
(iii) Consent is implied where a known surviving spouse or next of
kin does not inquire after the well-being of the deceased veteran for a
period of at least 6 months before the date of the veteran's death; or
(iv) Consent is implied where there is no known surviving spouse or
next of kin of the deceased veteran.
(b) Death resulting from crime. * * *
(c) Jurisdiction. * * *
(d) Applicable law. (1) The laws of the state where the autopsy
will be performed are to be used to identify the person who is
authorized to grant VA permission to perform the autopsy and, if more
than one person is identified, the order of precedence among such
persons.
(2) When the next of kin, as defined by the laws of the state where
the autopsy will be performed, consists of a number of persons such as
children, parents, brothers and sisters, etc., permission to perform an
autopsy may be accepted when granted by the person in the appropriate
class who assumes the right and duty of burial.
(e) Death outside a VA facility. The Director of a VA facility may
order an autopsy on a veteran who was undergoing VA care authorized by
Sec. Sec. 17.38 or 17.52, and whose death did not occur in a VA
facility. Such authority also includes transporting the body at VA's
expense to the facility where the autopsy will be performed, and the
return of the body. Consent for the autopsy will be obtained as stated
in paragraph (d) of this section. The Director must determine that such
autopsy is reasonably required for VA purposes for the following
reasons:
(1) The completion of official records; or
(2) Advancement of medical knowledge.
(Authority: 38 U.S.C. 501, 1703, 1710)
[FR Doc. 2011-31031 Filed 12-1-11; 8:45 am]
BILLING CODE 8320-01-P
