Criteria for a Catastrophically Disabled Determination for Purposes of Enrollment, 72576-72579 [2013-28858]

Download as PDF 72576 Federal Register / Vol. 78, No. 232 / Tuesday, December 3, 2013 / Rules and Regulations 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 interim final rule have been examined, and it has been determined not to be a significant regulatory action under Executive Orders 12866 and 13563. VA’s impact analysis can be found as a supporting document at http:// www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA’s Web site at http:// www1.va.gov/orpm/ by following the link for ‘‘VA Regulations Published.’’ Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in 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 one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector. Catalog of Federal Domestic Assistance Numbers and Titles The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.106, Specially Adapted Housing for Disabled Veterans and 64.109, Veterans Compensation for Service-Connected Disability. emcdonald on DSK67QTVN1PROD with RULES 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. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on November 7, 2013, for publication. VerDate Mar<15>2010 18:06 Dec 02, 2013 Jkt 232001 List of Subjects in 38 CFR Part 3 Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam. Dated: November 26, 2013. Robert C. McFetridge, Director, Regulation Policy and Management, Office of the General Counsel, Department of Veterans Affairs. For the reasons set out in the preamble, VA is amending 38 CFR part 3 as follows: PART 3—ADJUDICATION Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation 1. The authority citation for part 3, subpart A continues to read as follows: ■ Authority: 38 U.S.C. 501(a), unless otherwise noted. ■ 2. Revise § 3.809 to read as follows: § 3.809 Specially adapted housing under 38 U.S.C. 2101(a)(2)(A)(i). In order for a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. 2101(a)(2)(A)(i) or 2101A(a) to be extended to a veteran or a member of the Armed Forces serving on active duty, the following requirements must be met: (a) General. A member of the Armed Forces serving on active duty must have a disability rated as permanent and total that was incurred or aggravated in line of duty in active military, naval, or air service. A veteran must be entitled to compensation under chapter 11 of title 38, United States Code, for a disability rated as permanent and total. (b) Disability. The disability must be due to: (1) The loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity, (3) The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, (4) The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 (5) The loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow, or (6) Full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. (c) Preclude locomotion. This term means the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. (d) Amyotrophic lateral sclerosis. VA considers § 3.809(b) satisfied if the veteran or member of the Armed Forces serving on active duty has serviceconnected amyotrophic lateral sclerosis rated 100 percent disabling under 38 CFR 4.124a, diagnostic code 8017. (Authority: 38 U.S.C. 501(a), 1151(c)(1), 2101, 2101A) Cross Reference: Assistance to certain disabled veterans in acquiring specially adapted housing. See §§ 36.4400 through 36.4410 of this chapter. [FR Doc. 2013–28831 Filed 12–2–13; 8:45 am] BILLING CODE 8320–01–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900–A021 Criteria for a Catastrophically Disabled Determination for Purposes of Enrollment Department of Veterans Affairs. Final rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) is amending its regulation concerning the manner in which VA determines that a veteran is catastrophically disabled for purposes of enrollment in priority group 4 for VA health care. As amended by this rulemaking, the regulation articulates the clinical criteria that identify an individual as catastrophically disabled, instead of using the corresponding International Classification of Diseases, Ninth Revision, Clinical Modification (ICD–9–CM) and Current Procedural Terminology (CPT®) codes. The revisions ensure that the regulation is not out of date when new versions of those codes are published. The revisions also broaden some of the descriptions for a finding of catastrophic disability. Additionally, the final rule does not rely SUMMARY: E:\FR\FM\03DER1.SGM 03DER1 emcdonald on DSK67QTVN1PROD with RULES Federal Register / Vol. 78, No. 232 / Tuesday, December 3, 2013 / Rules and Regulations on the Folstein Mini Mental State Examination (MMSE) as a criterion for determining whether a veteran meets the definition of catastrophically disabled, because we have determined that the MMSE is no longer a necessary clinical assessment tool. DATES: Effective Date: This rule is effective July 1, 2014. FOR FURTHER INFORMATION CONTACT: Rajiv Jain, MD, Assistant Deputy Under Secretary for Health for Patient Care Services (10P4), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461–7800. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: Pursuant to 38 U.S.C. 1705, VA established eight enrollment categories (in order of priority) for veterans eligible to enroll in VA’s health care system. Under 38 CFR 17.36(b)(4), ‘‘veterans who are determined to be catastrophically disabled’’ are to be enrolled in enrollment priority group 4. For enrollment purposes, § 17.36(e) defines ‘‘catastrophically disabled’’ and, prior to this final rulemaking, § 17.36(e)(1) identified the covered conditions for catastrophically disabled in part by assignment of particular tabular diagnosis codes from Volume 1 of the ICD–9–CM, associated supplementary codes (V Codes), tabular procedure codes from Volume 3 of ICD–9–CM, and procedure codes from the CPT®. (CPT is a trademark of the American Medical Association. CPT codes and descriptions are copyrighted by the American Medical Association. All rights reserved.) This approach will soon be outdated; the ICD–9–CM and CPT® will no longer be used for disease and inpatient procedure coding after October 1, 2014, when they will be replaced by updated tabular diagnosis and supplementary codes from the International Classification of Diseases, Tenth Revision, Clinical Modification (ICD–10–CM) and by procedure codes from the International Classification of Diseases, Tenth Revision, Procedure Coding System (ICD–10–PCS). For this reason, and because these codes are subject to regular update and revision in the future, we published on February 22, 2013 (78 FR 12264), a proposed rule to rely on the clinical and diagnostic information that formed the basis for the codes listed in the regulation, rather than relying on the codes by number. We also proposed to eliminate the MMSE as a criterion for determining whether a veteran meets the definition of catastrophically disabled. The use of the MMSE is redundant of the Katz scale, the Global Assessment of VerDate Mar<15>2010 17:13 Dec 02, 2013 Jkt 232001 Functioning, and the Functional Independence Measure, which are referred to in the current regulation as tools to measure an individual’s ability to carry out the Activities of Daily Living. We provided a 60-day comment period, which ended on April 23, 2013. We received 2 comments from members of the general public. One commenter was generally in support of the rulemaking. The commenter had one concern regarding the ‘‘criteria by which an amputee may be able to attain Priority Group 4 benefits.’’ Specifically, the commenter was concerned with amputation, detachment, or reamputation of the forearm at or through the radius and ulna. The commenter stated that this amendment narrows the definition of catastrophically disabled instead of the intended purpose of the proposed rulemaking, which was to broaden the criteria. The commenter further stated: ‘‘Specificity of injury narrows the range of those that can claim benefits, but the differen[ce] between a veteran having a catastrophic injury because some part of his forearm has been amputated versus an amputation that occurred between the radius and ulna seems to impose an arbitrary restriction.’’ Also, the commenter stated that ‘‘[i]f a veteran’s hand were crushed, for example, it is disabled in the same way an amputated hand would be. However, under these precise definitions, he would be denied coverage under Priority Group 4.’’ VA considers a veteran to be catastrophically disabled if the veteran has a condition resulting from two of the procedures listed in § 17.36(e)(1)(i) through (e)(1)(xvi). The amputation, detachment, or reamputation of the veteran’s forearm at or through the radius and the ulna does not by itself render a veteran catastrophically disabled. However, if a veteran’s forearm was amputated, detached, or reamputated at any point, VA would consider this condition as one of the veteran’s qualifying conditions for a determination of catastrophically disabled. VA does not limit this definition to one specific point in the forearm as the commenter suggests. The commenter also stated that if the veteran had a crushed hand this would be the same as amputation. Depending on the severity of the crushed hand a clinician would determine whether the injury would meet a criterion under paragraph (e)(1). Only a clinician may determine if a veteran is catastrophically disabled based on the veteran’s disabilities. We are not making any changes based on this commenter’s concerns. Another commenter was also partially in agreement with the proposed rule. PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 72577 The commenter was concerned, however, that by eliminating the need to update ICD codes VA would not have a mechanism in place to update the way VA determines that a veteran is catastrophically disabled. The elimination of the ICD–9–CM and CPT® codes does not mean that if the classification of conditions that render a veteran catastrophically disabled were to change in the future, VA would not amend its regulations to conform with this change. On the contrary, VA will continue to comply with the national and international standards of care and provide veterans with the most up-todate health care. The commenter further stated that not relying on the numbered codes will cause physicians to use a greater level of discretion when determining who is considered to be catastrophically disabled. The commenter indicated that while there are terminological clarifications for blindness, such clarifications do not exist for persistent vegetative state, ‘‘which seems like it would be equally open to a variety of understandings by different physicians across the country.’’ Although the proposed rule did not provide ‘‘terminological clarifications’’ for persistent vegetative state, this condition has a medical definition. A vegetative state is present when the body preserves the ability to maintain blood pressure, respiration, and cardiac function, but not cognitive function. Kenneth Maiese, MD, ‘‘Vegetative State and Minimally Conscious State,’’ http:// www.merckmanuals.com/professional/ neurologic_disorders/coma_and_ impaired_consciousness/vegetative_ state_and_minimally_conscious_ state.html?qt=persistent%20 vegitative%20state&alt=sh (last updated Nov. 2012). A vegetative state is considered persistent if it lasts more than 1 month. Id. Persistent vegetative state is a term of art that is recognized in the medical community and requires no further clarifiers. Also, clinicians must always exercise clinical judgment in the context of a shared vocabulary, and, even when assigning a particular code, there will be discretion and occasional deviation within expected and accepted medical limits. The commenter was also concerned that the proposed rule stated that there were no costs or savings associated with the rulemaking. The commenter indicated that the number of veterans who would be considered catastrophically disabled would increase in the coming years as veterans return from the war in Iraq and Afghanistan. VA acknowledges that the number of catastrophically disabled E:\FR\FM\03DER1.SGM 03DER1 72578 Federal Register / Vol. 78, No. 232 / Tuesday, December 3, 2013 / Rules and Regulations veterans may increase as veterans and servicemembers return from combat areas. By stating in the proposed rulemaking that there would be no costs or savings associated with the rulemaking, we meant that by amending § 17.36(e) VA would not incur additional costs in the diagnosis of a catastrophic disability by eliminating the ICD–9–CM and CPT® codes. We are not making any changes based on any of this commenter’s concerns. In order for the clinicians to properly codify a veteran as catastrophically disabled under the provisions of this rulemaking and for VA to properly codify a veteran in the correct enrollment category, VA must update its computer system. Because this computer update will not be in place until next year, we are delaying the applicability date of this rulemaking until July 1, 2014. We are making a technical edit to § 17.36(e)(1)(vi) to remove an inadvertent duplication of the phrase ‘‘of the’’. Based on the rationale set forth in the Supplementary Information to the proposed rule and in this final rule, VA is adopting the proposed rule as a final rule with one editorial change. 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 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 This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521). emcdonald on DSK67QTVN1PROD with RULES 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 directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. VerDate Mar<15>2010 17:13 Dec 02, 2013 Jkt 232001 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) unless OMB waives such review, as ‘‘any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive Order.’’ The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA’s impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA’s Web site at http://www1.va.gov/orpm/ by following the link for ‘‘VA Regulations Published.’’ (adjusted annually for inflation) in any given year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector. Catalog of Federal Domestic Assistance Numbers The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary Care. 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. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on October 31, 2013, for publication. List of Subjects in 38 CFR Part 17 Administrative practice and procedure, Alcohol abuse, Alcoholism, Day care, Dental health, Drug abuse, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Veterans. Dated: November 27, 2013. Robert C. McFetridge, Director, Regulation Policy and Management, Office of the General Counsel, Department of Veterans Affairs. For the reasons set forth in the preamble, the Department of Veterans Affairs amends 38 CFR part 17 as follows: Unfunded Mandates PART 17—MEDICAL 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 ■ PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 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 § 17.36 as follows: a. Revise paragraph (e)(1). b. Remove paragraph (e)(2)(ii). E:\FR\FM\03DER1.SGM 03DER1 Federal Register / Vol. 78, No. 232 / Tuesday, December 3, 2013 / Rules and Regulations c. Redesignate paragraphs (e)(2)(iii) and (iv) as new paragraphs (e)(2)(ii) and (iii), respectively. The revisions read as follows: ■ § 17.36 Enrollment—provision of hospital and outpatient care to veterans. * * * * * (e) * * * (1) Quadriplegia and quadriparesis; paraplegia; legal blindness defined as visual impairment of 20/200 or less visual acuity in the better seeing eye with corrective lenses, or a visual field restriction of 20 degrees or less in the better seeing eye with corrective lenses; persistent vegetative state; or a condition resulting from two of the following procedures, provided the two procedures were not on the same limb: (i) Amputation, detachment, or reamputation of or through the hand; (ii) Disarticulation, detachment, or reamputation of or through the wrist; (iii) Amputation, detachment, or reamputation of the forearm at or through the radius and ulna; (iv) Amputation, detachment, or disarticulation of the forearm at or through the elbow; (v) Amputation, detachment, or reamputation of the arm at or through the humerus; (vi) Disarticulation or detachment of the arm at or through the shoulder; (vii) Interthoracoscapular (forequarter) amputation or detachment; (viii) Amputation, detachment, or reamputation of the leg at or through the tibia and fibula; (ix) Amputation or detachment of or through the great toe; (x) Amputation or detachment of or through the foot; Local agency ADEQ .......................................... 49–474.01 ADEQ .......................................... ADEQ .......................................... emcdonald on DSK67QTVN1PROD with RULES 9–500.04 11–877 49–457.01 49–474.05 49–474.06 We proposed to approve these statutes because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the statutes and our evaluation. 17:13 Dec 02, 2013 [FR Doc. 2013–28858 Filed 12–2–13; 8:45 am] BILLING CODE 8320–01–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2013–0194; FRL–9838–6] Revisions to the Arizona State Implementation Plan, Maricopa County Area Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is finalizing approval of revisions to the Maricopa County Area portion of the Arizona State Implementation Plan (SIP). This action was proposed in the Federal Register on April 19, 2013 and concerns particulate matter (PM) emissions from fugitive dust sources. We are approving local statutes that regulate these emission SUMMARY: Statute No. ADEQ .......................................... ADEQ .......................................... ADEQ .......................................... VerDate Mar<15>2010 (xi) Disarticulation or detachment of the foot at or through the ankle; (xii) Amputation or detachment of the foot at or through malleoli of the tibia and fibula; (xiii) Amputation or detachment of the lower leg at or through the knee; (xiv) Amputation, detachment, or reamputation of the leg at or through the femur; (xv) Disarticulation or detachment of the leg at or through the hip; and (xvi) Interpelviaabdominal (hindquarter) amputation or detachment. * * * * * Jkt 232001 sources under the Clean Air Act (CAA or the Act). DATES: This final rule is effective on January 2, 2014. ADDRESSES: EPA has established docket number EPA–R09–OAR–2013–0194 for this action. Generally, documents in the docket for this action are available electronically at http:// www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105–3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps, multi-volume reports), and some may not be available in either location (e.g., confidential business information (CBI)). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Christine Vineyard, EPA Region IX, (415) 947–4125, vineyard.christine@ epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us’’ and ‘‘our’’ refer to EPA. Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. EPA Action IV. Statutory and Executive Order Reviews I. Proposed Action On April 19, 2013 (78 FR 23527), EPA proposed to approve the following statutes into the Arizona SIP. Rule title Adopted Air Quality Control; Definitions ....................................................... Air Quality Control Measures ......................................................... Leaf Blower Use Restrictions and Training; Leaf Blowers Equipment Sellers; Informational Material; Outreach; Applicability. Additional Board Duties in Vehicle Emissions Control Areas; Definitions. Dust Control; Training; Site Coordinators ...................................... Dust Control Subcontractor Registration; Fee ............................... II. Public Comments and EPA Responses EPA’s proposed action provided a 30day public comment period. During this period, we received one set of comments which were submitted anonymously to the docket for this action at www.regulations.gov. These comments clearly support our April 2013 proposed approval, but also PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 72579 Submitted 07/02/07 07/02/07 07/02/07 05/25/12 05/25/12 05/25/12 07/02/07 05/25/12 07/02/07 07/02/07 05/25/12 05/25/12 present several concerns regarding Arizona’s efforts to reduce PM10 pollution. Specifically, the comments recommend stronger control of emissions from leaf blowers, expanding leaf blowers requirements beyond county employees, control of leaf blowers in vacuum mode, control of leaf blowers on permitted sites, and greater efforts to control coccidioidomycosis. E:\FR\FM\03DER1.SGM 03DER1

Agencies

[Federal Register Volume 78, Number 232 (Tuesday, December 3, 2013)]
[Rules and Regulations]
[Pages 72576-72579]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28858]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-A021


Criteria for a Catastrophically Disabled Determination for 
Purposes of Enrollment

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulation concerning the manner in which VA determines that a veteran 
is catastrophically disabled for purposes of enrollment in priority 
group 4 for VA health care. As amended by this rulemaking, the 
regulation articulates the clinical criteria that identify an 
individual as catastrophically disabled, instead of using the 
corresponding International Classification of Diseases, Ninth Revision, 
Clinical Modification (ICD-9-CM) and Current Procedural Terminology 
(CPT[supreg]) codes. The revisions ensure that the regulation is not 
out of date when new versions of those codes are published. The 
revisions also broaden some of the descriptions for a finding of 
catastrophic disability. Additionally, the final rule does not rely

[[Page 72577]]

on the Folstein Mini Mental State Examination (MMSE) as a criterion for 
determining whether a veteran meets the definition of catastrophically 
disabled, because we have determined that the MMSE is no longer a 
necessary clinical assessment tool.

DATES: Effective Date: This rule is effective July 1, 2014.

FOR FURTHER INFORMATION CONTACT: Rajiv Jain, MD, Assistant Deputy Under 
Secretary for Health for Patient Care Services (10P4), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (202) 461-7800. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Pursuant to 38 U.S.C. 1705, VA established 
eight enrollment categories (in order of priority) for veterans 
eligible to enroll in VA's health care system. Under 38 CFR 
17.36(b)(4), ``veterans who are determined to be catastrophically 
disabled'' are to be enrolled in enrollment priority group 4. For 
enrollment purposes, Sec.  17.36(e) defines ``catastrophically 
disabled'' and, prior to this final rulemaking, Sec.  17.36(e)(1) 
identified the covered conditions for catastrophically disabled in part 
by assignment of particular tabular diagnosis codes from Volume 1 of 
the ICD-9-CM, associated supplementary codes (V Codes), tabular 
procedure codes from Volume 3 of ICD-9-CM, and procedure codes from the 
CPT[supreg]. (CPT is a trademark of the American Medical Association. 
CPT codes and descriptions are copyrighted by the American Medical 
Association. All rights reserved.) This approach will soon be outdated; 
the ICD-9-CM and CPT[supreg] will no longer be used for disease and 
inpatient procedure coding after October 1, 2014, when they will be 
replaced by updated tabular diagnosis and supplementary codes from the 
International Classification of Diseases, Tenth Revision, Clinical 
Modification (ICD-10-CM) and by procedure codes from the International 
Classification of Diseases, Tenth Revision, Procedure Coding System 
(ICD-10-PCS). For this reason, and because these codes are subject to 
regular update and revision in the future, we published on February 22, 
2013 (78 FR 12264), a proposed rule to rely on the clinical and 
diagnostic information that formed the basis for the codes listed in 
the regulation, rather than relying on the codes by number. We also 
proposed to eliminate the MMSE as a criterion for determining whether a 
veteran meets the definition of catastrophically disabled. The use of 
the MMSE is redundant of the Katz scale, the Global Assessment of 
Functioning, and the Functional Independence Measure, which are 
referred to in the current regulation as tools to measure an 
individual's ability to carry out the Activities of Daily Living. We 
provided a 60-day comment period, which ended on April 23, 2013. We 
received 2 comments from members of the general public.
    One commenter was generally in support of the rulemaking. The 
commenter had one concern regarding the ``criteria by which an amputee 
may be able to attain Priority Group 4 benefits.'' Specifically, the 
commenter was concerned with amputation, detachment, or reamputation of 
the forearm at or through the radius and ulna. The commenter stated 
that this amendment narrows the definition of catastrophically disabled 
instead of the intended purpose of the proposed rulemaking, which was 
to broaden the criteria. The commenter further stated: ``Specificity of 
injury narrows the range of those that can claim benefits, but the 
differen[ce] between a veteran having a catastrophic injury because 
some part of his forearm has been amputated versus an amputation that 
occurred between the radius and ulna seems to impose an arbitrary 
restriction.'' Also, the commenter stated that ``[i]f a veteran's hand 
were crushed, for example, it is disabled in the same way an amputated 
hand would be. However, under these precise definitions, he would be 
denied coverage under Priority Group 4.''
    VA considers a veteran to be catastrophically disabled if the 
veteran has a condition resulting from two of the procedures listed in 
Sec.  17.36(e)(1)(i) through (e)(1)(xvi). The amputation, detachment, 
or reamputation of the veteran's forearm at or through the radius and 
the ulna does not by itself render a veteran catastrophically disabled. 
However, if a veteran's forearm was amputated, detached, or reamputated 
at any point, VA would consider this condition as one of the veteran's 
qualifying conditions for a determination of catastrophically disabled. 
VA does not limit this definition to one specific point in the forearm 
as the commenter suggests. The commenter also stated that if the 
veteran had a crushed hand this would be the same as amputation. 
Depending on the severity of the crushed hand a clinician would 
determine whether the injury would meet a criterion under paragraph 
(e)(1). Only a clinician may determine if a veteran is catastrophically 
disabled based on the veteran's disabilities. We are not making any 
changes based on this commenter's concerns.
    Another commenter was also partially in agreement with the proposed 
rule. The commenter was concerned, however, that by eliminating the 
need to update ICD codes VA would not have a mechanism in place to 
update the way VA determines that a veteran is catastrophically 
disabled. The elimination of the ICD-9-CM and CPT[supreg] codes does 
not mean that if the classification of conditions that render a veteran 
catastrophically disabled were to change in the future, VA would not 
amend its regulations to conform with this change. On the contrary, VA 
will continue to comply with the national and international standards 
of care and provide veterans with the most up-to-date health care.
    The commenter further stated that not relying on the numbered codes 
will cause physicians to use a greater level of discretion when 
determining who is considered to be catastrophically disabled. The 
commenter indicated that while there are terminological clarifications 
for blindness, such clarifications do not exist for persistent 
vegetative state, ``which seems like it would be equally open to a 
variety of understandings by different physicians across the country.'' 
Although the proposed rule did not provide ``terminological 
clarifications'' for persistent vegetative state, this condition has a 
medical definition. A vegetative state is present when the body 
preserves the ability to maintain blood pressure, respiration, and 
cardiac function, but not cognitive function. Kenneth Maiese, MD, 
``Vegetative State and Minimally Conscious State,'' http://www.merckmanuals.com/professional/neurologic_disorders/coma_and_impaired_consciousness/vegetative_state_and_minimally_conscious_state.html?qt=persistent%20vegitative%20state&alt=sh (last updated Nov. 
2012). A vegetative state is considered persistent if it lasts more 
than 1 month. Id. Persistent vegetative state is a term of art that is 
recognized in the medical community and requires no further clarifiers. 
Also, clinicians must always exercise clinical judgment in the context 
of a shared vocabulary, and, even when assigning a particular code, 
there will be discretion and occasional deviation within expected and 
accepted medical limits.
    The commenter was also concerned that the proposed rule stated that 
there were no costs or savings associated with the rulemaking. The 
commenter indicated that the number of veterans who would be considered 
catastrophically disabled would increase in the coming years as 
veterans return from the war in Iraq and Afghanistan. VA acknowledges 
that the number of catastrophically disabled

[[Page 72578]]

veterans may increase as veterans and servicemembers return from combat 
areas. By stating in the proposed rulemaking that there would be no 
costs or savings associated with the rulemaking, we meant that by 
amending Sec.  17.36(e) VA would not incur additional costs in the 
diagnosis of a catastrophic disability by eliminating the ICD-9-CM and 
CPT[supreg] codes. We are not making any changes based on any of this 
commenter's concerns.
    In order for the clinicians to properly codify a veteran as 
catastrophically disabled under the provisions of this rulemaking and 
for VA to properly codify a veteran in the correct enrollment category, 
VA must update its computer system. Because this computer update will 
not be in place until next year, we are delaying the applicability date 
of this rulemaking until July 1, 2014.
    We are making a technical edit to Sec.  17.36(e)(1)(vi) to remove 
an inadvertent duplication of the phrase ``of the''.
    Based on the rationale set forth in the Supplementary Information 
to the proposed rule and in this final rule, VA is adopting the 
proposed rule as a final rule with one editorial change.

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 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

    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 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 directly affect only individuals and will not 
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB) unless OMB waives such review, as ``any 
regulatory action that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's Web 
site at http://www1.va.gov/orpm/ by following the link for ``VA 
Regulations Published.''

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in 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 given year. This final rule will have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers

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

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. Jose D. 
Riojas, Chief of Staff, Department of Veterans Affairs, approved this 
document on October 31, 2013, for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Day care, Dental health, Drug abuse, Health care, Health facilities, 
Health professions, Health records, Homeless, Medical and dental 
schools, Medical devices, Medical research, Mental health programs, 
Nursing homes, Veterans.

    Dated: November 27, 2013.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.
    For the reasons set forth in the preamble, the Department of 
Veterans Affairs 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.  17.36 as follows:
0
a. Revise paragraph (e)(1).
0
b. Remove paragraph (e)(2)(ii).

[[Page 72579]]

0
c. Redesignate paragraphs (e)(2)(iii) and (iv) as new paragraphs 
(e)(2)(ii) and (iii), respectively.
    The revisions read as follows:


Sec.  17.36  Enrollment--provision of hospital and outpatient care to 
veterans.

* * * * *
    (e) * * *
    (1) Quadriplegia and quadriparesis; paraplegia; legal blindness 
defined as visual impairment of 20/200 or less visual acuity in the 
better seeing eye with corrective lenses, or a visual field restriction 
of 20 degrees or less in the better seeing eye with corrective lenses; 
persistent vegetative state; or a condition resulting from two of the 
following procedures, provided the two procedures were not on the same 
limb:
    (i) Amputation, detachment, or reamputation of or through the hand;
    (ii) Disarticulation, detachment, or reamputation of or through the 
wrist;
    (iii) Amputation, detachment, or reamputation of the forearm at or 
through the radius and ulna;
    (iv) Amputation, detachment, or disarticulation of the forearm at 
or through the elbow;
    (v) Amputation, detachment, or reamputation of the arm at or 
through the humerus;
    (vi) Disarticulation or detachment of the arm at or through the 
shoulder;
    (vii) Interthoracoscapular (forequarter) amputation or detachment;
    (viii) Amputation, detachment, or reamputation of the leg at or 
through the tibia and fibula;
    (ix) Amputation or detachment of or through the great toe;
    (x) Amputation or detachment of or through the foot;
    (xi) Disarticulation or detachment of the foot at or through the 
ankle;
    (xii) Amputation or detachment of the foot at or through malleoli 
of the tibia and fibula;
    (xiii) Amputation or detachment of the lower leg at or through the 
knee;
    (xiv) Amputation, detachment, or reamputation of the leg at or 
through the femur;
    (xv) Disarticulation or detachment of the leg at or through the 
hip; and
    (xvi) Interpelviaabdominal (hindquarter) amputation or detachment.
* * * * *
[FR Doc. 2013-28858 Filed 12-2-13; 8:45 am]
BILLING CODE 8320-01-P