Expanded Access to Non-VA Care Through the Veterans Choice Program, 74991-74996 [2015-29865]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 80, Number 230 (Tuesday, December 1, 2015)]
[Rules and Regulations]
[Pages 74991-74996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29865]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP60


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

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: The Department of Veterans Affairs (VA) revises its medical 
regulations that implement section 101 of the Veterans Access, Choice, 
and Accountability Act of 2014 (hereafter referred to as ``the Choice 
Act''), which requires VA to establish a program to furnish hospital 
care and medical services through eligible non-VA health care providers 
to eligible veterans who either cannot be seen within the wait-time 
goals of the Veterans Health Administration (VHA) or who qualify based 
on their place of residence (hereafter referred to as the ``Veterans 
Choice Program'' or the ``Program''). These regulatory revisions are 
required by the most recent amendments to the Choice Act made by the 
Construction Authorization and Choice Improvement Act of 2014, and by 
the Surface Transportation and Veterans Health Care Choice Improvement 
Act of 2015. The Construction Authorization and Choice Improvement Act 
of 2014 amended the Choice Act to define additional criteria that VA 
may use to determine that a veteran's travel to a VA medical facility 
is an ``unusual or excessive burden,'' and the Surface Transportation 
and Veterans Health Care Choice Improvement Act of 2015 amended the 
Choice Act to cover all veterans enrolled in the VA health care system, 
remove the 60-day limit on an episode of care, modify the wait-time and 
40-mile distance eligibility criteria, and expand provider eligibility 
based on criteria as determined by VA. This interim final rule revises 
VA regulations consistent with the changes made to the Choice Act as 
described above.

DATES: Effective date: This rule is effective on December 1, 2015.
    Comment date: Comments must be received on or before March 30, 
2016.

FOR FURTHER INFORMATION CONTACT: Kristin Cunningham, Director, Business 
Policy, Chief Business Office (10NB), Veterans Health Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 
20420, (202) 382-2508. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: The Veterans Access, Choice, and 
Accountability Act of 2014 (the Choice Act, Pub. L. 113-146, 128 Stat. 
1754) was enacted on August 7, 2014. Further amendments to the Choice 
Act were made on September 26, 2014, by the Department of Veterans 
Affairs Expiring Authorities Act of 2014 (Pub. L. 113-175, 128 Stat. 
1901, 1906); on December 16, 2014, by the Consolidated and Further 
Continuing Appropriations Act of 2015 (Pub. L. 113-235, 128 Stat. 2130, 
2568); on May 22, 2015, by the Construction Authorization and Choice 
Improvement Act (Pub. L. 114-19, 129 Stat. 215); and on July 31, 2015, 
by the Surface Transportation and Veterans Health Care Choice 
Improvement Act (Pub. L. 114-41, 129 Stat. 443). This interim final 
rule revises VA regulations that implement the Choice Act in accordance 
with the most recent amendments made by Public Laws 114-19 and 114-41. 
Prior to discussing the regulatory changes made in this interim final 
rule, a brief history of previous rulemakings that created and revised 
regulations that implement the Choice Act is provided below.
    Section 101 of the Choice Act creates the Veterans Choice Program 
(the Program) and requires VA to enter into agreements with identified 
eligible non-Department of Veterans Affairs (VA) entities or providers 
to furnish hospital care and medical services to eligible veterans who 
elect to receive care under the Program. Sec. 101(a)(1)(A), Public Law 
113-146, 128 Stat. 1754. On November 5, 2014, VA published an interim 
final rule, as required by section 101(n) of the Choice Act, to 
implement the Veterans Choice Program through new regulations at 38 CFR 
17.1500-17.1540. 79 FR 65571 (hereafter referred to as the ``November 
interim final rule''). VA published another interim final rule on April 
24, 2015, modifying Sec.  17.1510(e) to revise the methodology for 
calculating distances under that section from geodesic (or ``straight-
line'') distance to driving distance. 80 FR 22906 (hereafter referred 
to as the ``April interim final rule''). VA published a final rule 
(hereafter referred to as the ``final rule'') amending the payment 
rates in the Program to account for two exceptions: One for Alaska, and 
one for states with an All-Payer Model Agreement (Maryland). These two 
payment rate exceptions were authorized by section 242 of Division I of 
Public Law 113-235. 128 Stat. 2568.

Changes in Public Law 114-19 Related to the ``Unusual or Excessive 
Burden'' Standard

    Under the November interim final rule at Sec.  17.1510(b)(4)(ii), 
veterans may be eligible to participate in the Veterans Choice Program 
if they live 40 miles or less from a VA medical facility but face an 
``unusual or excessive burden'' in traveling to such medical facility 
based on the presence of a body of water or a geologic formation that 
cannot be crossed by road. As explained in the November interim final 
rule, this standard for ``unusual or excessive burden'' was VA's 
interpretation of the language in the Choice Act, which at that time 
required the burden to be ``due to geographical challenges, as 
determined by the Secretary.'' Sec. 101(b)(2)(D)(ii)(II), Pub. L. 113-
146, 128 Stat. 1754. As explained in the final rule, section 3(a)(2) of 
Public Law 114-19 amended section 101(b)(2)(D)(ii)(II) of the Choice 
Act by defining additional criteria that could be the basis for finding 
that a veteran faced an ``unusual or excessive burden'' in traveling to 
receive care in a VA medical facility, including environmental factors 
such as roads that are not accessible to the general public, traffic, 
or hazardous weather; a medical condition that affects the ability to 
travel; or other factors, as determined by the Secretary. VA 
implemented two of these factors, namely the environmental factors such 
as roads that are not accessible to the general public, traffic, or 
hazardous weather, or a medical condition that affects the ability to 
travel, ahead of these regulatory revisions. We did so because we 
believe these factors are

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easily understood by the public and that implementation fulfilled a 
clear Congressional mandate that had an immediate effective date. These 
changes were not subject to notice and comment prior to implementation 
because they had an immediate effective date and VA did not need to 
interpret the language to give it effect. VA is now adding these 
criteria to Sec.  17.1510(b)(4)(ii) and is merely restating the 
existing statutory law to make our regulations consistent with 
Congressional intent as well as consistent with our current practice. 
These new criteria in Sec.  17.1510(b)(4)(ii) are a virtually verbatim 
copy from section 3(a)(2) of Public Law 114-19 without the addition of 
further clarifying criteria, although we provide some examples here for 
clarity. For instance, roads that are not accessible to the general 
public include roads through military bases or other restricted areas. 
If veterans are only able to access a VA medical facility that is 40 
miles or less from their residence via such a restricted road, they can 
be considered eligible for the Program under this standard. Traffic or 
hazardous weather includes special traffic congestion and patterns or 
weather conditions that make travel of a veteran to a VA medical 
facility 40 miles or less from their residence excessively or unusually 
burdensome. A medical condition that affects the ability to travel 
includes a medical condition of the veteran that affects the ability of 
the veteran to safely travel for 40 miles or less to a VA medical 
facility or that otherwise makes such travel burdensome. As an example, 
veterans on portable ventilators or with oxygen tanks may only be able 
to travel for a certain amount of time before their health is in 
jeopardy. As another example, veterans with spinal cord injuries or 
other serious conditions may require the use of assistive devices or 
may not be able to traverse over bumpier or windier roads, and may also 
face an unusual or excessive burden in traveling to a VA medical 
facility that is 40 miles or less from their residence. If traveling to 
a non-VA facility would be safer for such veterans than traveling to 
the nearest VA medical facility, they can qualify for the Program under 
this standard because traveling to the VA medical facility would be 
unusually or excessively burdensome. These are intended to be 
clarifying but not exhaustive examples of medical conditions that may 
qualify veterans to receive care at non-VA facilities under the new 
medical condition criterion in Sec.  17.1510(b)(4)(ii). VA currently 
makes determinations regarding eligibility under the ``unusual or 
excessive burden'' criterion in Sec.  17.1510(b)(4)(ii) based on the 
facts presented by the particular veteran's circumstances, and will 
continue to do so under the new criteria in Sec.  17.1510(b)(4)(ii). 
Such determinations do not need to be made in person and can instead be 
made based on information that is available in the veteran's medical 
record or that is otherwise available to VA.
    In addition to the express factors in section 3(a)(2) of Public Law 
114-19 that are related to the environment or that are related to the 
medical condition of a veteran, we add three ``other factors'' to Sec.  
17.1510(b)(4)(ii)(A) through (C) that the Secretary may consider when 
determining whether a veteran faces an unusual or excessive burden in 
travelling to a VA medical facility that is 40 miles or less from their 
residence. These criteria are newly implemented in this interim final 
rule and are not intended to be an exhaustive list, although VA 
anticipates they will address the majority of cases that could 
reasonably be the basis for finding an unusual or excessive burden in 
travel. These other factors are the nature or simplicity of the 
hospital care or medical services the veteran requires, how frequently 
the veteran needs hospital care or medical services, and the need for 
an attendant, which is defined as a person who provides required aid 
and/or physical assistance to the veteran, for a veteran to travel to a 
VA medical facility for hospital care or medical services. Considering 
the nature or simplicity of the care or services will allow VA to 
determine, for example, that routine and simple procedures that do not 
necessarily require the expertise or best practices of VA providers 
(such as simple tests or treatments like an allergy test or an 
immunization) do not justify traveling a longer distance just to 
receive that care from VA. Similarly, if a veteran needs repeated 
appointments for a course of treatment, such as chemotherapy, the 
frequency of travel could become an excessive burden on the veteran 
that could be alleviated or lessened by receiving care closer to home. 
If a veteran requires an attendant to travel to a VA medical facility, 
this could also create an excessive or unusual burden on the veteran, 
as he or she may need to arrange transportation with another person. VA 
will define the term ``attendant'' to include any person who provides 
required aid and/or physical assistance to the veteran to travel to a 
VA medical facility for hospital care or medical services. This 
definition is consistent with the definition of this term in VA's 
beneficiary travel regulation (see 38 CFR 70.2.), but the definition at 
Sec.  70.2 is dependent on separate eligibility under the beneficiary 
travel program, and therefore is not cross referenced in Sec.  
17.1510(b)(4)(ii)(C). The list of factors in Sec.  17.1510(b)(4)(ii)(A) 
through (C) is demonstrative and not exhaustive. There may be other 
unique factors that create an unusual or excessive burden for a 
veteran, and in such cases, VA will make a determination on a case-by-
case basis.

Changes Made by Public Law 114-41 Related to Veteran Eligibility, 
Periods of Follow Up Care, Wait Times, Distance Requirements, and 
Provider Eligibility

    Section 4005 of the Surface Transportation and Veterans Health Care 
Choice Improvement Act of 2015 amended section 101 of the Choice Act 
to: Remove the August 1, 2014 enrollment date restriction, thereby 
making all veterans enrolled in the VA health care system under Sec.  
17.36 eligible for the Program if they meet its other eligibility 
criteria; remove the 60-day limit on an episode of care; modify wait-
time eligibility requirements; modify the 40-mile distance eligibility 
criterion; and expand provider eligibility based on criteria as 
determined by VA. Sec. 4005, Public Law 114-41, 129 Stat. 443. 
Paragraph (a) of Sec.  17.1510 is therefore revised, and paragraphs 
(a)(1) and (2) are removed, so it is clear under revised Sec.  
17.1510(a) that all veterans enrolled under Sec.  17.36 are potentially 
eligible, as required by subsection (b) of section 4005 of Public Law 
114-41. VA has already implemented these changes related to removal of 
the August 1, 2014 enrollment date ahead of the regulatory revisions in 
this interim final rule. These changes were not subject to notice and 
comment prior to implementation because they had an immediate effective 
date and VA did not need to interpret the language to give it effect. 
These changes are merely a restatement of existing statutory law to 
make our regulations consistent with Congressional intent as well as 
consistent with our current practice. VA enrolls new veterans every 
day, so these changes have allowed more veterans who also meet the 
other eligibility requirements under Sec.  17.1510 to be eligible for 
the Program.
    We discuss below the remaining changes made by Public Law 114-41 to 
section 101 of the Choice Act that are newly implemented in this 
interim final rule. Section 4005(a) of Public Law 114-41 amended 
section 101(h) of the Choice Act by removing the 60-day

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limitation on an ``episode of care.'' Sec. 4005(a), Public Law 114-41, 
129 Stat. 443. The definition of ``episode of care'' in Sec.  17.1505 
is therefore revised by removing the phrase ``which lasts no longer 
than 60 days from the date of the first appointment with a non-VA 
health care provider.'' We replace the 60-day limitation with a 1-year 
limitation, consistent with VA's authority in section 101(c)(1)(B)(i) 
of the Choice Act to establish a timeframe for authorization of care. 
This change creates a broader standard in terms of the possible 
duration of an episode of care, but the definition of ``episode of 
care'' in Sec.  17.1505 still means a ``necessary course of treatment, 
including follow-up appointments and ancillary and specialty services'' 
for identified health care needs. VA therefore retains clinical 
judgment in this revised definition to determine whether ancillary and 
specialty care of any duration up to 1 year is actually needed in the 
course of a veteran's treatment. We reiterate from the November interim 
final rule that while some episodes of care require only a single 
visit, others may require multiple visits, but in all cases VA will 
authorize only the care that it deems necessary as part of a course of 
treatment. If a non-VA health care provider believes that a veteran 
needs additional care outside the scope of the authorized course of 
treatment, the health care provider must contact VA prior to 
administering such care to ensure that this care is authorized and 
therefore will be paid for by VA. Whether additional care constitutes a 
new ``episode of care'' will continue to be a clinical determination 
made by VA on a case-by-case basis. VA anticipates that the vendors 
that administer the Choice Program will require additional time after 
the effective date of this interim final rule to fully integrate this 
revision into their administrative functions. VA will work with the 
vendors that administer the Choice Program to ensure that care under 
the Choice Program is authorized in accordance with this rulemaking, 
even as the administrative functions of these vendors continue to 
change to accommodate this revision.
    Section 4005(d) of Public Law 114-41 amended section 101(b)(2)(A) 
of the Choice Act to create eligibility for veterans that are unable to 
be scheduled for an appointment within ``the period determined 
necessary for [clinically necessary] care or services if such period is 
shorter than'' VHA's wait time goals. Sec. 4005(d), Public Law 114-41, 
129 Stat. 443. This new wait-times based criterion is added as 
paragraph (b)(1)(ii) of Sec.  17.1510, and creates eligibility when VA 
clinically determines that a veteran requires care within a period of 
time that is shorter than 30 days from the date an appointment is 
deemed clinically appropriate by a VA health care provider, or shorter 
than 30 days from the date that a veteran prefers to be seen.
    Section 4005(e) of Public Law 114-41 amended section 101(b)(2)(B) 
of the Choice Act to modify the 40-mile distance eligibility criterion. 
Section 101(b)(2)(B)(i)-(ii) of the Choice Act now provides that 
veterans may be eligible if they reside more than 40 miles from ``(i) 
with respect to a veteran who is seeking primary care, a medical 
facility of the Department, including a community-based outpatient 
clinic, that is able to provide such primary care by a full-time 
primary care physician; or (ii) with respect to a veteran not covered 
under clause (i), the medical facility of the Department, including a 
community-based outpatient clinic, that is closest to the residence of 
the veteran.'' We find it would be impracticable to apply a ``seeking 
primary care'' eligibility criterion as literally written in the Act. 
Many individuals that seek VA care generally do not specifically 
``seek'' primary care, but rather ``seek'' treatment for a specific 
complaint, and are directed first to primary care for the very purpose 
of determining what health care needs must be addressed. For instance, 
a veteran who is eligible for the Program and who seeks VA care for a 
complaint of generalized back pain would in most cases be directed 
first to primary care and not immediately to an orthopedist or 
chiropractor. Under a strict reading of the phrase ``seeking primary 
care'' in section 4005(e) of Public Law 114-41, such a veteran might 
not be considered eligible under the new section 101(b)(2)(B)(i) 
criterion because they did not specifically ``seek'' primary care.
    Rather than make this distinction, between those veterans ``seeking 
primary care'' and those not ``seeking primary care,'' we interpret 
section 4005(e) of Public Law 114-41 as a clarification of the 
eligibility criterion for the 40-mile distance determination. 
Effectively, this would raise the threshold for what constitutes a 
qualifying VA medical facility to include only those facilities with at 
least a full-time primary care physician. For instance, previously, if 
a veteran lived 10 miles from a VA-community based outpatient clinic 
(CBOC) that did not have a full-time primary care physician, but lived 
50 miles from another VA medical facility that did, the veteran would 
not be eligible for the Program because of their proximity to the CBOC. 
Under this interim final rule, however, that veteran would be eligible 
for the Program because the nearest VA medical facility with a full-
time primary care physician is more than 40 miles away. We therefore do 
not revise the general 40-mile requirement in Sec.  17.1510(b)(1), but 
do revise Sec.  17.1505 to add a definition of ``full-time primary care 
physician,'' as well as amend the definition of ``VA medical facility'' 
to require that such a facility have a full-time primary care 
physician. We note that ``full-time primary care physician'' will mean 
at least one individual physician whose workload, or multiple 
physicians whose combined workload, equates to a 0.9 full time 
equivalent employee that works at least 36 clinical work hours per 
week. This definition's requirement that 36 of the 40 hours must be 
clinical is reasonable to ensure that for purposes of determining 
eligibility for the Veterans Choice Program, we are taking into account 
how much clinical work, as opposed to administrative work, a physician 
actually performs. VA updates full-time equivalent employee data for 
primary care physicians on a regular basis, and will use such data when 
making these determinations.
    Not distinguishing between those veterans that are ``seeking 
primary care'' and other veterans is additionally more veteran-centric 
because we find that a veteran's access to specialty care can be as 
important as their access to primary care, and in a majority of cases 
if a veteran lives more than 40 miles from a VA medical facility with a 
full-time primary care physician, it is very likely that such veteran 
also lives more than 40 miles away from a VA medical facility that 
would be able to provide the vast majority of specialty care that we 
know our veteran population requires. Lastly, if VA did distinguish 
between those veterans that are ``seeking primary care'' versus all 
other veterans who otherwise live more than 40 miles from a VA facility 
with a full-time primary care physician, this may have the effect of 
creating an unintentional back door for veteran eligibility in the 
Program, whereby veterans might be directed to seek primary care to be 
determined eligible, when such veterans may not actually need primary 
care. This interpretation gives effect to section 4005(e) of Public Law 
114-41 by accounting for those veterans that would be specifically 
``seeking primary care'' and that live more than 40 miles from a VA 
facility with a full-time primary care physician, as well as for

[[Page 74994]]

those veterans seeking care generally that live more than 40 miles from 
a VA facility with a full-time primary care physician.
    Section 4005(c) of Public Law 114-41 amended sections 101(a)(1)(B) 
and 101(d) of the Choice Act to permit VA to expand provider 
eligibility beyond those providers expressly listed in section 
101(a)(1)(B) of the Choice Act, in accordance with criteria as 
established by VA. Sec. 4005(c), Public Law 114-41, 129 Stat. 443. 
Under the authority of sections 101(a)(1)(B)(v) and 101(d)(5) of the 
Choice Act, we revise Sec.  17.1530(a) to refer to a new paragraph (e) 
that will establish eligibility for these other providers, and add a 
new paragraph (e) to Sec.  17.1530 to list these providers 
specifically. We also revise paragraph (d) to reorganize current 
requirements and add new requirements for these providers, in 
accordance with section 101(d)(5) of the Choice Act. We revise 
paragraph (d) to retain all requirements related to provider 
credentialing and licensure, as well as the annual provision to VA of 
documentation of such requirements, in new paragraph (d)(1)(A). We add 
paragraph (d)(1)(B) to require that all providers not be excluded from 
participation in a Federal health care program, as defined in 
particular sections of the Social Security Act, as well as not be 
listed as excluded sources or excluded providers or entities in 
databases and lists maintained under certain Federal programs (such as 
the System for Award Management or the List of Excluded Individuals and 
Entities that is maintained by the U.S. Department of Health and Human 
Services). These requirements in Sec.  17.1530(d)(1)(B) ensure that 
providers that would participate in the Program are not those that are 
otherwise excluded from participating in Federal health care programs 
for a number of reasons, such as being convicted of criminal Medicare 
or Medicaid fraud, patient abuse or neglect, or felony convictions for 
other health care-related fraud, theft, or other financial misconduct. 
Lastly, new paragraph (d)(2) maintains the current requirement that 
eligible entities must ensure that their providers meet the standards 
established in Sec.  17.1530(d).
    Paragraph 17.1530(e) will specifically add new eligible providers 
for the Veterans Choice Program. Paragraph (e)(1) of Sec.  17.1530 adds 
to the list of eligible providers any health care provider that is 
participating in a State Medicaid plan under title XIX of the Social 
Security Act (42 U.S.C. 1396 et seq.), including any physician 
furnishing services under such program, if the provider has an 
agreement under a State plan under title XIX of such Act (42 U.S.C. 
1396 et seq.) or a waiver of such a plan. Opening eligibility to 
Medicaid providers will increase VA's ability to offer certain services 
under the Program, including dental services (for veterans otherwise 
eligible for VA dental care) as well as some unskilled home health 
services, because providers of such services are not typically one of 
the provider types listed in section 101(a)(1)(B)(i)-(iv) of the Choice 
Act. We note that these services such as dental care and certain home 
health services are already considered ``medical services'' that VA is 
authorized to furnish under the Choice Act as well as under other 
statutory authorities that permit VA to provide non-VA care to 
veterans. See 38 U.S.C. 1703 and 38 U.S.C. 8153. Making Medicaid 
providers eligible under the Veterans Choice Program therefore does not 
newly authorize the provision of services to veterans generally, but 
merely expands services offered under the Veterans Choice Program 
specifically by expanding the pool of potential Choice providers.
    Paragraph (e)(2) will make certain providers of extended care 
services eligible, namely an Aging and Disability Resource Center, an 
area agency on aging, or a State agency (as defined in section 102 of 
the Older Americans Act of 1965 (42 U.S.C. 3002)), or a center for 
independent living (as defined in section 702 of the Rehabilitation Act 
of 1973 (29 U.S.C. 796a)). Paragraph (e)(3) of Sec.  17.1530 will 
establish eligibility for any provider meeting all requirements of 
Sec.  17.1530(d) that is not listed in section 101(a)(1)(B)(i)-(iv) of 
the Choice Act or Sec.  17.1530(e)(1)-(e)(2). This is essentially a 
flexible provision for these regulations so that VA can furnish care 
under the Program through providers who do not fall into the specific 
categories listed in section 101(a)(1)(B)(i)-(iv) of the Choice Act or 
Sec.  17.1530(e)(1)-(e)(2), but satisfy the requirements in Sec.  
17.1530(d) to ensure that the provider is skilled and safe to provide 
services to veterans. This avoids the possible scenario that future 
required revisions to Sec.  17.1530(e) would create delays in care 
being provided to veterans under the Program.

Miscellaneous Changes

    To ensure that VA had the resources in place to support care for 
eligible veterans, the November 2014 interim final rule established 
different start dates for eligible veterans in Sec.  17.1525 so that 
implementation of the Program could be phased in. Because the start 
dates in Sec.  17.1525 have already passed, we remove the language in 
Sec.  17.1525 to include the section header, but retain Sec.  17.1525 
and mark it is as reserved for future use.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds under 5 U.S.C. 553(b)(B) 
that there is good cause that advance notice and opportunity for public 
comment are impracticable, unnecessary, or contrary to the public 
interest and under 5 U.S.C. 553(d)(3) that there is good cause to 
publish this rule with an immediate effective date. Section 101(n) of 
the Choice Act authorized VA to implement the Veterans Choice Program 
through an interim final rule, and provided a deadline of no later than 
November 5, 2014, the date that is 90 days after the date of the 
enactment of the law. Additionally, the Program is only authorized to 
run until August 7, 2017, or until funds expire, which creates a need 
for expedited action. The changes made by the Construction 
Authorization and Choice Improvement Act included an immediate 
effective date under section 3(b) of that Act. These provisions clearly 
demonstrate that Congress intended that VA act quickly in expanding 
access to non-VA care options.
    This interim final rule changes the criteria VA may consider when 
determining if a veteran faces an unusual or excessive burden in 
traveling to the nearest VA medical facility. This interim final rule 
also expands eligibility for veterans in other ways (through the new 
criteria related to wait times and to the distance requirements), as 
well as expands eligibility for providers as required and permitted by 
the most recent amendments to the Choice Act. These changes will 
increase the number of veterans who are eligible for the Veterans 
Choice Program. In order for these veterans to have access to needed 
health care under the Program, it is essential that the revised 
criteria be made effective as soon as possible. For the above reasons, 
we are issuing this rule as an interim final rule. However, VA will 
consider and address comments that are received within 120 days of the 
date this interim final rule is published in the Federal Register.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
interim final rule, represents VA's implementation of its legal 
authority on this subject. Other than future amendments to this 
regulation or governing statutes, no contrary guidance or procedures 
are authorized. All existing or subsequent VA guidance must be read to 
conform with this

[[Page 74995]]

rulemaking if possible or, if not possible, such guidance is superseded 
by this rulemaking.

Paperwork Reduction Act

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

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' requiring review by OMB, unless OMB 
waives such review, as ``any regulatory action that is likely to result 
in a rule that may: (1) Have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined that this is an economically significant regulatory 
action under Executive Order 12866. VA's regulatory impact analysis can 
be found as a supporting document at https://www.regulations.gov, 
usually within 48 hours after the rulemaking document is published. 
Additionally, a copy of the rulemaking and its regulatory impact 
analysis are available on VA's Web site at https://www.va.gov/orpm/, by 
following the link for ``VA Regulations Published From FY 2004 Through 
Fiscal Year to Date.''

Congressional Review Act

    This regulatory action is a major rule under the Congressional 
Review Act, 5 U.S.C. 801-08, because it may result in an annual effect 
on the economy of $100 million or more. Although this regulatory action 
constitutes a major rule within the meaning of the Congressional Review 
Act, 5 U.S.C. 804(2), it is not subject to the 60-day delay in 
effective date applicable to major rules under 5 U.S.C. 801(a)(3) 
because the Secretary finds that good cause exists under 5 U.S.C. 
808(2) to make this regulatory action effective on the date of 
publication, consistent with the reasons given for the publication of 
this interim final rule. In accordance with 5 U.S.C. 801(a)(1), VA will 
submit to the Comptroller General and to Congress a copy of this 
regulatory action and VA's Regulatory Impact Analysis.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any 1 year. This interim final rule will have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Regulatory Flexibility Act

    The Secretary hereby certifies that this interim 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 interim final rule will not have a significant 
economic impact on participating eligible entities and providers who 
enter into agreements with VA. To the extent there is any such impact, 
it will result in increased business and revenue for them. We also do 
not believe there will be a significant economic impact on insurance 
companies, as claims will only be submitted for care that will 
otherwise have been received whether such care was authorized under 
this Program or not. Therefore, pursuant to 5 U.S.C. 605(b), this 
rulemaking is exempt from the initial and final regulatory flexibility 
analysis requirements of 5 U.S.C. 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are as follows: 64.007, Blind 
Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, 
Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 
64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 
64.013, Veterans Prosthetic Appliances; 64.014, Veterans State 
Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, 
Veterans State Hospital Care; 64.018, Sharing Specialized Medical 
Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 
64.022, Veterans Home Based Primary Care; 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. Robert L. 
Nabors II, Chief of Staff, Department of Veterans Affairs, approved 
this document on October 9, 2015, 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, Reporting and recordkeeping requirements, 
Travel and transportation expenses, Veterans.

    Dated: November 19, 2015.
Michael P. Shores,
Chief Impact Analyst, Office of Regulation Policy & Management, Office 
of the General Counsel, Department of Veterans Affairs.

    For the reasons set forth 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.  17.1505 by:

[[Page 74996]]

0
a. Revising the definition of ``episode of care''.
0
b. Adding a definition of ``full-time primary care physician''.
0
c. Revising the definition of ``VA medical facility''.
0
d. Revising the authority citation.
    The revisions and addition read as follows:


Sec.  17.1505  Definitions.

* * * * *
    Episode of care means a necessary course of treatment, including 
follow-up appointments and ancillary and specialty services, which 
lasts no longer than 1 calendar year from the date of the first 
appointment with a non-VA health care provider.
    Full-time primary care physician means a single VA physician whose 
workload, or multiple VA physicians whose combined workload, equates to 
0.9 full time equivalent employee working at least 36 clinical hours a 
week at the VA medical facility and who provides primary care as 
defined by their privileges or scope of practice and licensure.
* * * * *
    VA medical facility means a VA hospital, a VA community-based 
outpatient clinic, or a VA health care center, any of which must have 
at least one full-time primary care physician. A Vet Center, or 
Readjustment Counseling Service Center, is not a VA medical facility.
* * * * *

(Authority: Sec. 101, Pub. L. 113-146, 128 Stat. 1754; Sec. 4005, 
Pub. L. 114-41, 129 Stat. 443)


0
3. Amend Sec.  17.1510 by revising paragraphs (a), (b)(1), (b)(4)(ii), 
and the authority citation to read as follows:


Sec.  17.1510  Eligible veterans.

* * * * *
    (a) A veteran must be enrolled in the VA health care system under 
Sec.  17.36.
    (b) * * *
    (1) The veteran attempts, or has attempted, to schedule an 
appointment with a VA health care provider, but VA is unable to 
schedule an appointment for the veteran within:
    (i) The wait-time goals of the Veterans Health Administration; or
    (ii) With respect to such care or services that are clinically 
necessary, the period VA determines necessary for such care or services 
if such period is shorter than the wait-time goals of the Veterans 
Health Administration.
* * * * *
    (4) * * *
    (ii) Faces an unusual or excessive burden in traveling to such a VA 
medical facility based on geographical challenges, such as the presence 
of a body of water (including moving water and still water) or a 
geologic formation that cannot be crossed by road; environmental 
factors, such as roads that are not accessible to the general public, 
traffic, or hazardous weather; a medical condition that affects the 
ability to travel; or other factors, as determined by VA, including but 
not limited to:
    (A) The nature or simplicity of the hospital care or medical 
services the veteran requires;
    (B) The frequency that such hospital care or medical services need 
to be furnished to the veteran; and
    (C) The need for an attendant, which is defined as a person who 
provides required aid and/or physical assistance to the veteran, for a 
veteran to travel to a VA medical facility for hospital care or medical 
services.
* * * * *

(Authority: Sec. 101, Pub. L. 113-146, 128 Stat. 1754; Section 
3(a)(2) of Pub. L. 114-19, 129 Stat. 215)

Sec.  17.1525  [Removed and Reserved]

0
4. Remove and reserve Sec.  17.1525

0
5. Amend Sec.  17.1530 by revising paragraphs (a), and (d), adding 
paragraph (e), and revising the authority citation to read as follows:


Sec.  17.1530  Eligible entities and providers.

    (a) General. An entity or provider is eligible to deliver care 
under the Veterans Choice Program if, in accordance with paragraph (c) 
of this section, it is accessible to the veteran and is an entity or 
provider identified in section 101(a)(1)(B)(i)-(iv) of the Veterans 
Access, Choice, and Accountability Act of 2014 or is an entity 
identified in paragraph (e) of this section, and is either:
* * * * *
    (d) Requirements for health care providers. (1) To be eligible to 
furnish care or services under the Veterans Choice Program, a health 
care provider must:
    (i) Maintain at least the same or similar credentials and licenses 
as those required of VA's health care providers, as determined by the 
Secretary. The agreement reached under paragraph (b) of this section 
will clarify these requirements. Eligible health care providers must 
submit verification of such licenses and credentials maintained by the 
provider to VA at least once per 12-month period.
    (ii) Not be excluded from participation in a Federal health care 
program (as defined in section 1128B(f) of the Social Security Act (42 
U.S.C. 1320a-7b(f)) under section 1128 or 1128A of such Act (42 U.S.C. 
1320a-7 and 1320a-7a)), not be identified as an excluded source on the 
list maintained in the System for Award Management or any successor 
system, and not be identified on the List of Excluded Individuals and 
Entities that is maintained by the Office of the Inspector General of 
the U.S. Department of Health and Human Services.
    (2) Any entities that are eligible to provide care through the 
Program must ensure that any of their providers furnishing care and 
services through the Program meet the standards identified in paragraph 
(d)(1) of this section. An eligible entity may submit this information 
on behalf of its providers.
    (e) Other eligible entities and providers. In accordance with 
sections 101(a)(1)(B)(v) and 101(d)(5) of the Veterans Access, Choice, 
and Accountability Act of 2014 (as amended), the following entities or 
providers are eligible to deliver care under the Veterans Choice 
Program, subject to the additional criteria established in this 
section.
    (1) A health care provider that is participating in a State 
Medicaid plan under title XIX of the Social Security Act (42 U.S.C. 
1396 et seq.), including any physician furnishing services under such 
program, if the health care provider has an agreement under a State 
plan under title XIX of such Act (42 U.S.C. 1396 et seq.) or a waiver 
of such a plan;
    (2) An Aging and Disability Resource Center, an area agency on 
aging, or a State agency (as defined in section 102 of the Older 
Americans Act of 1965 (42 U.S.C. 3002)), or a center for independent 
living (as defined in section 702 of the Rehabilitation Act of 1973 (29 
U.S.C. 796a)).
    (3) A health care provider that is not identified in paragraph 
(e)(1) or (2) of this section, if that provider meets all requirements 
under paragraph (d) of this section.

(Authority: Sec. 101, Pub. L. 113-146, 128 Stat. 1754; Sec. 4005, 
Pub. L. 114-41, 129 Stat. 443)


(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
0823.)


[FR Doc. 2015-29865 Filed 11-30-15; 8:45 am]
 BILLING CODE 8320-01-P