Medical Benefits for Newborn Children of Certain Woman Veterans, 78569-78571 [2011-32264]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 76, Number 243 (Monday, December 19, 2011)]
[Rules and Regulations]
[Pages 78569-78571]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32264]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AO05


Medical Benefits for Newborn Children of Certain Woman Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulation concerning the medical benefits package offered to veterans 
enrolled in the VA health care system. This rulemaking updates the 
regulation to conform to amendments made by the enactment of the 
Caregivers and Veteran Omnibus Health Services Act of 2010, which 
authorized VA to provide certain health care services to a newborn 
child of a woman veteran who is receiving maternity care furnished by 
VA. Health services for newborn care will be authorized for no more 
than seven days after the birth of the child if the veteran delivered 
the child in a VA facility or in another facility pursuant to a VA 
contract for maternity services.

DATES: Effective Date: This final rule is effective December 19, 2011.
    Applicability Date: This regulation is applicable to medical care 
provided on or after May 5, 2010.

FOR FURTHER INFORMATION CONTACT: Holley Niethammer, Veterans Health 
Administration, 3773 Cherry Creek North Drive, Denver, Colorado 80209 
(303) 370-5062. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On May 5, 2010, the President signed into 
law the Caregivers and Veterans Omnibus Health Services Act of 2010, 
Public Law 111-163. Section 206 of the public law, codified at 38 
U.S.C. 1786, authorizes VA to ``furnish health care services * * * to a 
newborn child of a woman veteran who is receiving maternity care 
furnished by [VA] for not more than seven days after the birth of the 
child if the veteran delivered the child in--(1) a [VA] facility * * *; 
or (2) another facility pursuant to a [VA] contract for services 
relating to such delivery.'' We note that the statutory authority does 
not extend to newborn children of female partners or relatives of 
veterans who are not veterans receiving maternity care from VA. In 
other words, this benefit is exclusive to newborn children of female 
veterans who themselves have been receiving maternity care from VA 
prior to the birth of the child and who otherwise meet the requirements 
of the law. We recognize that in some cases a newborn child of a woman 
veteran may be placed for adoption at the time of birth or shortly 
thereafter, or may be abandoned. Notwithstanding that the birth mother 
may not be willing or able to raise the child following birth, VA will 
provide newborn care for the date of birth and the first seven calendar 
days of life to any child delivered by a woman veteran who is receiving 
care under Sec.  17.38(a)(1)(xiii). This is the broadest reasonable 
interpretation of the statutory authorization to provide care to the 
newborn child of a woman veteran, because the statute does not clearly 
require that the woman veteran be, or continue to be, the child's legal 
parent or guardian after birth.
    We interpret section 1786 to mean that newborn care is one of the 
health care services authorized by Congress in 38 U.S.C. 1710. This 
rulemaking implements this interpretation of section 1786. We note that 
we have been providing this care since the effective date of the 
statute, May 5, 2010.

[[Page 78570]]

    VA implemented section 1710 in current 38 CFR 17.38, which 
prescribes the types of medical care that are included in what is known 
as the VA ``medical benefits package.'' This rulemaking amends Sec.  
17.38(a) to include newborn care as a service provided under the 
medical benefits package. Pursuant to current Sec.  17.38(b), care 
``will be provided to individuals only if it is determined by 
appropriate healthcare professionals that the care is needed to 
promote, preserve, or restore the health of the individual and is in 
accord with generally accepted standards of medical practice.''
    For the above reasons, we amend 38 CFR 17.38(a)(1) consistent with 
section 1786 to provide: Newborn care, post delivery, for a newborn 
child for the date of birth plus seven calendar days after the birth of 
the child when the birth mother is a woman veteran enrolled in VA 
health care and receiving maternity care furnished by VA or under 
authorization from VA and the child is delivered either in a VA 
facility, or in another facility pursuant to a VA authorization for 
maternity care at VA expense. VA will cover all medically necessary 
care for the newborn(s) for the date of birth plus the first seven 
calendar days after birth, beginning on the day after the child is born 
and ending at midnight on the seventh full calendar day thereafter. 
This is the broadest reasonable interpretation of the statute, which 
authorizes needed care ``for not more than seven days after the birth 
of the child.'' 38 U.S.C. 1786(a). The newborn care will include post-
delivery care, including newborn care, determined by appropriate 
healthcare professionals necessary to promote, preserve or restore the 
health of the child in accordance with generally accepted standards of 
medical practice (Sec.  17.38(b)).
    Finally, for clarity and continuity, we are renumbering current 
Sec.  17.38(a)(1)(xiv), which addresses the completion of forms, to 
Sec.  17.38(a)(1)(xv) and inserting newborn care at Sec.  
17.38(a)(1)(xiv) to follow pregnancy and delivery services at Sec.  
17.38(a)(1)(xiii).

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, 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 on this subject 
are authorized. All VA guidance must be read to conform with this 
rulemaking if possible or, if not possible, such guidance is superseded 
by this rulemaking.

Administrative Procedure Act

    This rulemaking is VA's interpretive regulatory guidance on a 
statutory amendment to 38 U.S.C. 1786. This rule does not create any 
new rights or duties. Accordingly, this rule is being published as a 
final rule pursuant to 5 U.S.C. 553(b)(A), which exempts interpretive 
rules from the notice-and-comment requirements of 5 U.S.C. 553. Because 
this rule merely interprets a statute, it is effective as of the date 
of the statute it interprets, i.e., May 5, 2010, pursuant to 5 U.S.C. 
553(d)(2), which exempts interpretive rules from the delayed effective 
date requirements of 5 U.S.C. 553.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
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 
the Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule 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 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, 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 final rule will have no such effect on State, local, or tribal 
governments, or on the private sector.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Regulatory Flexibility Act

    The initial and final regulatory flexibility analyses requirements 
of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 
601-612, are not applicable to this rule, because a notice of proposed 
rulemaking is not required for this rule. Even so, 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. This final rule will not directly 
affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this 
final rule is exempt from the initial and final regulatory flexibility 
analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this final rule are Veterans Medical Care 
Benefits; 64.010.

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 4, 2011, for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Caregivers program, Claims, 
Health care, Health facilities, Newborns, Pregnant women, Veterans.


[[Page 78571]]


    Dated: December 13, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.
    For the reasons stated in the preamble, VA amends 38 CFR Part 17 as 
follows:

PART 17--MEDICAL

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

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

0
2. Amend Sec.  17.38 by:
0
a. Redesignating paragraph (a)(1)(xiv) as paragraph (a)(1)(xv).
0
b. Adding a new paragraph (a)(1)(xiv).
0
c. Revising the authority citation at the end of the section.
    The addition and revision read as follows:


Sec.  17.38  Medical benefits package.

    (a) * * *
    (1) * * *
    (xiv) Newborn care, post delivery, for a newborn child for the date 
of birth plus seven calendar days after the birth of the child when the 
birth mother is a woman veteran enrolled in VA health care and 
receiving maternity care furnished by VA or under authorization from VA 
and the child is delivered either in a VA facility, or in another 
facility pursuant to a VA authorization for maternity care at VA 
expense.
* * * * *
    (Authority 38 U.S.C. 101, 501, 1701, 1705, 1710, 1710A, 1721, 
1722, 1782, 1786)

[FR Doc. 2011-32264 Filed 12-16-11; 8:45 am]
BILLING CODE 8302-01-P