Reimbursement for Emergency Treatment, 974-980 [2018-00232]
Download as PDF
<![CDATA[
974
Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2018–00130 Filed 1–8–18; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 17
RIN 2900–AQ08
Reimbursement for Emergency
Treatment
Department of Veterans Affairs.
Interim final rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) revises its regulations
concerning payment or reimbursement
for emergency treatment for non-serviceconnected conditions at non-VA
facilities to implement the requirements
of a recent court decision. Specifically,
this rulemaking expands eligibility for
payment or reimbursement to include
veterans who receive partial payment
from a health-plan contract for non-VA
emergency treatment and establishes a
corresponding reimbursement
methodology. This rulemaking also
expands the eligibility criteria for
veterans to receive payment or
reimbursement for emergency
transportation associated with the
emergency treatment, in order to ensure
that veterans are adequately covered
when emergency transportation is a
necessary part of their non-VA
emergency treatment.
DATES:
Effective Date: This rule is effective
on January 9, 2018.
Comment Date: Comments must be
received on or before March 12, 2018.
ADDRESSES: Written comments may be
submitted by email through https://
www.regulations.gov; by mail or handdelivery to Director, Regulations
Management (00REG), Department of
Veterans Affairs, 810 Vermont Avenue
NW, Room 1063B, Washington, DC
20420; or by fax to (202) 273–9026.
(This is not a toll-free number.)
Comments should indicate that they are
submitted in response to ‘‘RIN 2900–
AQ08, Reimbursement for Emergency
Treatment.’’ Copies of comments
received will be available for public
inspection in the Office of Regulation
Policy and Management, Room 1063B,
between the hours of 8:00 a.m. and 4:30
p.m. Monday through Friday (except
holidays). Please call (202) 461–4902 for
an appointment. (This is not a toll-free
number.) In addition, during the
comment period, comments may be
viewed online through the Federal
Docket Management System (FDMS) at
https://www.regulations.gov.
jstallworth on DSKBBY8HB2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
14:57 Jan 08, 2018
Jkt 244001
Joseph Duran, Director, Policy and
Planning VHA Office of Community
Care (10D1A1), Veterans Health
Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (303–370–1637).
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: 38 U.S.C.
1725 authorizes VA to reimburse
veterans for the reasonable value of
emergency treatment for non-service
connected conditions furnished in a
non-VA facility, if certain criteria are
met. One requirement is that the veteran
must be personally liable for the
emergency treatment. As originally
enacted in 1999, the statute provided
that a veteran is personally liable if the
veteran ‘‘has no entitlement to care or
services under a health-plan contract,’’
and ‘‘no other contractual or legal
recourse against a third party that
would, in part or in whole, extinguish
such liability to the provider.’’ 38 U.S.C.
1725(b)(3)(B) and (C) (1999). VA
interpreted that version of the statute as
barring reimbursement for veterans with
any coverage from either a health-plan
contract or a third party because those
veterans did not satisfy the requirement
to have ‘‘no entitlement . . . under a
health-plan contract’’ and ‘‘no other
. . . recourse against a third party.’’
In addition, the 1999 version of the
statute distinguished ‘‘health-plan
contract’’ and ‘‘third party’’ by
separately defining them. 38 U.S.C.
1725(f)(2)–(3)(1999).
On February 1, 2010, Congress
enacted the Expansion of Veteran
Eligibility for Reimbursement Act,
Public Law 111–137 (2010 Act), which
amended section 1725. The legislative
history of the 2010 Act provided:
The Committee has learned that under
current law the VA does not pay for
emergency treatment for non-service
connected conditions in non-VA facilities if
the veteran has third-party insurance that
pays any portion of the costs associated with
such emergency treatment. This situation can
inadvertently arise if a veteran has minimal
health insurance coverage through a statemandated automobile insurance policy.
Consequently, if an emergency does occur,
and the veteran has a policy containing such
minimal coverage, the veteran may be
responsible for essentially the full cost of
emergency treatment. While some veterans
are able to negotiate payment plans and debt
forgiveness of a portion of their medical bills
with the non-VA hospital where they
received the emergency treatment, many
veterans are without the financial resources
to shoulder such a cost and are unaware that
the VA would not be responsible for such
emergency care. H.R. Rep. No. 111–55.
The 2010 Act amended section 1725
by striking the phrase ‘‘in part’’ from
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
section 1725(b)(3)(C). It also removed
state-mandated automobile insurance
policies from the definition of ‘‘healthplan contract.’’ In chief, the effect of the
2010 amendments is that partial
payment from a third party is not a bar
to reimbursement under section 1725,
assuming all of the other eligibility
criteria are met; the third-party payment
is only a bar to reimbursement if it fully
extinguishes the veteran’s personal
liability. Thus, eligible veterans who
receive only partial payment by the
third party, including state-mandated
automobile insurance, are eligible for
VA payment or reimbursement of the
unpaid portion of their emergency
medical expenses, subject to the
payment limitations added by that same
law.
VA amended its regulations to comply
with the 2010 Act. Relevant to this
rulemaking, VA revised 38 CFR
17.1001(a)(5), 17.1002(g), and 17.1005(e)
and (f). Section 17.1001(a)(5) was
amended to remove state-mandated
automobile insurance from the
definition of ‘‘health-plan contract.’’
Section 17.1002(g) was amended to only
prohibit reimbursement from VA if a
third party extinguished the liability in
whole, § 17.1005(e) was amended to
establish a methodology to reimburse
veterans when a third-party payment
partially extinguished the veteran’s
liability, and § 17.1005(f) was
promulgated to implement the
limitation in 38 U.S.C. 1725(c)(4)(D) that
VA may not reimburse any deductible,
copayment, or similar payment that
veterans owe to third parties. However,
because the 2010 Act did not amend
section 1725(b)(3)(B), pertaining to
health-plan contracts, VA did not
amend its corresponding regulation at
§ 17.1002(f) that bars reimbursement
from VA if the veteran is entitled to
either partial or full payment from a
health-plan contract. Similarly, VA did
not specify in § 17.1005(f) that it would
not reimburse amounts for which the
veteran is responsible under a healthplan contract because it was
unnecessary to do so; consistent with
VA’s interpretation of the 2010 Act,
reimbursement or payment continued to
be barred if the veteran had coverage
under a health-plan contract.
In Staab v. McDonald, 28 Vet. App.
50 (2016), the U.S. Court of Appeals for
Veterans Claims (the Court) reversed a
Board of Veterans’ Appeals (the Board)
decision denying a claim under section
1725. The Board had applied
§ 17.1002(f) to conclude that partial
payment of the emergency treatment by
the veteran’s health-plan contract barred
VA reimbursement. On appeal, the
veteran challenged § 17.1002(f) as
E:\FR\FM\09JAR1.SGM
09JAR1
jstallworth on DSKBBY8HB2PROD with RULES
Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Rules and Regulations
inconsistent with section 1725. The
Court agreed, and in a precedential
decision, held invalid and set aside
§ 17.1002(f) and remanded the case.
In so doing, the Court interpreted
section 1725(b)(3)(B) to bar
reimbursement only if a veteran’s
health-plan contract would wholly
extinguish the veteran’s liability. In
other words, the Court interpreted the
2010 amendments relating to payment
by a third party to also apply to section
1725(b)(3)(B) relating to payment by
health-plan contracts.
To reach this conclusion, the Court
gave particular weight to sections
1725(c)(4) and (f)(3), which, in the
Court’s words, ‘‘more broadly include
health-plan contracts, including
Medicare, in the category of a ‘third
party.’ ’’ In addition, the Court reasoned
that its interpretation was consistent
with the overall purpose of section
1725, as amended, i.e., to permit
reimbursement when a veteran is
personally liable to the provider of
emergency treatment for the costs of
such care. The purpose of this
rulemaking is to amend the pertinent
VA regulations to comply with the
holding of this Court decision.
First, this interim final rule revises 38
CFR 17.1002(f). Section 17.1002
establishes the criteria that must be met
for veterans to receive payment or
reimbursement under 38 U.S.C. 1725 for
emergency treatment for non-serviceconnected conditions at non-VA
facilities. Specifically, current
§ 17.1002(f) bars reimbursement unless
the veteran has, ‘‘no coverage under a
health-plan contract for payment or
reimbursement, in whole or in part, for
the emergency treatment.’’ This rule
revises the regulation to state that a
veteran may be eligible for payment or
reimbursement as long as the veteran
does not have coverage under a healthplan contract that will fully extinguish
the veteran’s liability to the provider.
This change reflects the Court’s
interpretation that partial coverage for
the emergency treatment under a
veteran’s health-plan contract is not a
bar to reimbursement under section
1725. Reimbursement is only barred if
coverage under the health-plan contract
wholly extinguishes the veteran’s
liability. We believe that this change
comports with the holding of Staab.
Because, in accordance with the Court’s
decision, VA will now provide payment
or reimbursement on claims involving
partial payment by a health-plan
contract, we also amend § 17.1005 to
specifically clarify that VA does not
have authority to reimburse copayments
or similar payment the veteran owes
under a health-plan contract. As noted,
VerDate Sep<11>2014
14:57 Jan 08, 2018
Jkt 244001
in implementing the 2010 Act, we did
not address specifically VA’s authority
to reimburse such amounts owed under
a health-plan contract, because payment
or reimbursement in that circumstance
was wholly barred. We do so now,
based on the Court’s decision in Staab
that a veteran is eligible for payment or
reimbursement when there is a partial
payment by a health-plan contract, to
make clear that the prohibition in 38
U.S.C. 1725(c)(4)(D) (on VA reimbursing
a veteran for any copayment or similar
payment that the veteran owes a third
party) applies to amounts owed by a
veteran under a health-plan contract.
To clarify the applicability of this
regulation change, judicial decisions
invalidating a statute or regulation, or
VA’s interpretation of a statute or
regulation, cannot affect prior final VA
decisions. See, Jordan v. Nicholson, 401
F.3d 1296 (Fed. Cir. 2005); Disabled
American Veterans v. Gober, 234 F.3d
682, 697–98 (Fed. Cir. 2000). Therefore,
VA will not retroactively pay benefits
for claims filed under § 17.1002(f) that
were finally denied before April 8, 2016,
the date of the Staab decision. In other
words, VA can only apply the new
§ 17.1002(f) to claims pending on or
after April 8, 2016. We note that all
claims under § 17.1002(f) involving
partial payment from a health-plan
contract pending on April 8, 2016, or
filed on or after April 8, 2016, have been
held in abeyance pending the
publication of this interim final rule.
Therefore, all such § 17.1002(f) claims
will be processed using the regulatory
revisions published in this rule.
Second, this interim final rule revises
38 CFR 17.1003 related to emergency
transportation to be consistent with our
interpretation that the exercise of VA’s
authority under 38 U.S.C. 1725 should
result in veterans’ liability to providers
of emergency treatment being
extinguished, except for deductibles,
copayments, coinsurance, or other
similar payments owed by the veteran
for which VA is barred from
reimbursing under 38 U.S.C.
1725(c)(4)(D), as described above.
Although section 1725 does not
specifically authorize payment for
emergency transportation, it authorizes
payment for ‘‘emergency treatment’’ as
defined in section 1725(f)(1). VA has
interpreted the phrase ‘‘emergency
treatment’’ in section 1725(f)(1) to
include emergency transportation if the
transportation is provided as part of the
emergency medical treatment
administered at the non-VA facility.
Current § 17.1003 authorizes VA to
provide payment or reimbursement
under 38 U.S.C. 1725 for ambulance
services (including air ambulance
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
975
services) for transporting a veteran to a
non-VA facility if certain criteria are
met. We amend § 17.1003(a), (c), and (d)
and create a new paragraph (e) for the
following reasons.
The current regulation states that VA
will pay for emergency transportation if
‘‘[p]ayment or reimbursement is
authorized under 38 U.S.C. 1725 for
emergency treatment provided at [a nonVA] facility (or payment or
reimbursement could have been
authorized under 38 U.S.C. 1725 for
emergency treatment if death had not
occurred before emergency treatment
could be provided).’’ We have
historically interpreted this paragraph to
authorize reimbursement for emergency
transportation only if VA approves and
makes actual payment on the claim for
the emergency treatment provided at the
non-VA facility. The reason for this
interpretation was that the emergency
transportation was considered part of
(not apart or distinct from) the claim for
emergency treatment. If VA
reimbursement was not authorized for
the emergency treatment,
reimbursement was not authorized
separately for the emergency
transportation (in other words, payment
on the main treatment claim was
essentially a condition precedent).
Under current § 17.1003(a), this
results in denials of claims for
reimbursement for the costs of
emergency transportation when a thirdparty payment satisfies the claim for
emergency medical treatment, despite
the transportation claim meeting the
other criteria for reimbursement by VA
under 38 U.S.C. 1725. So if the veteran
does not have any remaining liability for
the treatment provided at the non-VA
facility due to satisfaction of the
treatment claim by a third party, VA
denies that veteran’s claim for
reimbursement of the emergency
treatment and, in turn, reimbursement is
not be authorized for their emergency
transportation. In practice then,
application of VA’s existing regulations
is in tension with VA’s view that
emergency transportation is part of
emergency treatment. If VA’s sole basis
to deny a transportation claim is
satisfaction by a third party of the
related emergency treatment claim, even
if that transportation claim meets all of
the other requirements for
reimbursement under 38 U.S.C. 1725,
VA is, in effect, treating the emergency
transportation claim differently than the
related emergency treatment claim.
To address this, we now revise
§ 17.1003(a). As amended, § 17.1003(a)
authorizes reimbursement for
emergency transportation even if the
veteran is ineligible to receive
E:\FR\FM\09JAR1.SGM
09JAR1
jstallworth on DSKBBY8HB2PROD with RULES
976
Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Rules and Regulations
reimbursement or payment for the
emergency treatment, if the reason for
that ineligibility is that the veteran is
not personally liable for the emergency
treatment due to satisfaction of the
treatment claim by a third party,
including a health-plan contract. We
note that the veteran is still required to
be personally liable for the emergency
transportation as established in
paragraphs (b)–(e) of the regulation. For
example, if a veteran has Medicare
insurance and the Medicare payment
fully extinguishes the veteran’s liability
for the emergency treatment but does
not cover the costs of emergency
transportation, under the prior
regulation, VA was not permitted to
reimburse or pay for the emergency
transportation because there was no
remaining liability for the treatment.
However, under the revised regulation,
the veteran will be eligible to receive
reimbursement or payment for the
emergency transportation, aside from
deductibles, copayments, or other
similar payments owed by the veteran,
as described above, assuming all the
other eligibility criteria of that section
are met.
Therefore, we amend § 17.1003(a) by
retaining the general criteria that
payment or reimbursement must be
authorized under section 1725 for
emergency treatment provided at a nonVA facility, but we remove the
parenthetical and instead list out the
two exceptions for when payment does
not have to be authorized in order for
the veteran to be eligible for
reimbursement: Paragraph (a)(1) says
that payment does not have to be
authorized for the emergency treatment
if the veteran has no remaining liability
for the emergency treatment because
prior payment by non-VA, third party,
sources extinguished the veteran’s
liability, and paragraph (a)(2) contains
the language in the current parenthetical
that authorization is not required if
death occurred prior to when the
treatment could have been provided.
While not directly compelled by the
Court’s decision, this interim final rule
also amends paragraphs (c) and (d) of
§ 17.1003. These changes are
necessitated by the Court’s holding
when read in concert with VA’s
longstanding unchanged regulatory
interpretation that emergency
transportation is an integral part of
emergency treatment, as discussed
above. Otherwise, current § 17.1003
would operate in a manner that
counteracts the changes to § 17.1002(f)
made by this rulemaking. Paragraphs (c)
and (d) are therefore revised to allow
veterans to receive reimbursement or
payment for emergency transportation
VerDate Sep<11>2014
14:57 Jan 08, 2018
Jkt 244001
even if they receive partial payment
under a health-plan contract or from a
third party for the emergency
transportation. We revise paragraph (c)
to state that a veteran may be eligible for
payment or reimbursement if the
veteran does not have coverage under a
health-plan contract that will fully
extinguish the veteran’s liability to the
provider. Similarly, we revise paragraph
(d) by stating that the veteran may be
eligible if the veteran has no contractual
or legal recourse against a third party
that could reasonably be pursued for the
purpose of fully extinguishing the
veteran’s liability to the provider.
We also amend § 17.1003 by creating
a new paragraph (e). Paragraph (e) states
separately the requirement that was
formerly in paragraph (c) that to be
eligible for reimbursement or payment
for emergency transportation, the
veteran cannot be eligible for
reimbursement for emergency treatment
under 38 U.S.C. 1728. This requirement
was moved for clarity so that each
distinct requirement is located in a
separate paragraph.
Third, this interim final rule revises
§ 17.1005 pertaining to the payment
methodologies and limitations used to
calculate payment and reimbursement
for claims filed under section 1725.
Currently, § 17.1005(e) sets forth VA’s
payment methodology when a veteran
has contractual or legal recourse against
a third party whose payment only
partially extinguishes the veteran’s
liability to the provider of emergency
treatment. This provision was originally
drafted to address only third party
situations described in section
1725(b)(2)(C), as interpreted before the
Court decision. If VA applies the
methodology in current § 17.1005(e) to
claims involving partial payments under
a health-plan contract, it is likely that
partial payment under a veteran’s
health-plan contract will exceed the
maximum amount that VA can pay
based on the current payment
limitation. (Section 1725(c)(1) requires
VA to establish the maximum amount
that can be paid on claims under section
1725(a); for eligible claims where a third
party has already or will make partial
payment, the law still requires the VA
payment not to exceed that maximum
amount.) For this reason, these veterans
would in most cases be liable to the
provider for the remaining charges.
We underscore that the payment
limitation in § 17.1005 was derived
based on an understanding of how
payers in the health care industry
establish payment rates and then VA
deliberately reduced the maximum
payable amount to reflect Congress’
original purpose in enacting section
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
1725(c)(1), ensuring that providers had
incentive to seek other sources of
payment before pursuing payment from
the government. The limitation, which
remains today, was not intended to
apply to claims involving partial
payments made under a health-plan
contract because current § 17.1002(f)
bars reimbursement in that
circumstance. This is why partial
payments made under a health-plan
contract will exceed VA’s current
maximum payment limitation and why
applying the current maximum in all
instances would result in VA not
making payments in most cases where
there is payment under a health-plan
contract. Applying the current
maximum in all cases would thus be at
cross purposes with the other proposed
amendments requiring VA to exercise
its authority under 38 U.S.C. 1725 when
there is partial payment by a health-plan
contract.
(This is not to say that this cannot, or
has not, occurred in connection with
claims involving partial payment by a
third party other than a health-plan
contract. In those cases, however, the
amount of the partial payment typically
does not exceed the amount that VA can
pay under the statute and § 17.1005(e),
e.g., partial payments made by statemandated automobile reparations
insurance carriers, and so VA’s
authorized payments generally succeed
in extinguishing these veterans’
remaining personal liability to their
providers. In cases where the third-party
payment exceeded VA’s payment limits,
VA believes that veterans with
remaining liability simply declined to
file claims with VA.)
VA believes that claims properly
authorized for payment or
reimbursement under 38 U.S.C. 1725
should invariably extinguish the
veterans’ liability to the provider, aside
from any deductibles, copayments, or
other similar payments owed by the
veteran to a third party or under a
health-plan contract as required by law.
This includes claims where partial
payment is made by a third-party under
a health-plan contract. This is why
amending the methodology in
§ 17.1005(e) to ensure VA can make a
payment on claims involving partial
payment under a health-plan contract is
an essential logical outgrowth of the
Court’s decision and consistent with the
other amendments made by this
rulemaking. Otherwise, this rulemaking
will merely amend § 17.1002(f), in
accordance with the Court decision,
without providing an effective
mechanism to ensure its complete,
successful, timely, and practical
application. As explained below, any
E:\FR\FM\09JAR1.SGM
09JAR1
jstallworth on DSKBBY8HB2PROD with RULES
Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Rules and Regulations
payment by VA, if accepted by the
provider and not rejected and refunded
within 30 days from the date of receipt,
extinguishes the remainder of the
veteran’s liability, thereby ensuring VA
is responsible for the remainder of the
veteran’s liability instead of the veteran.
We revise paragraph (a) and remove
paragraphs (e) and (f) so that paragraph
(a) now addresses, in one place, all
reimbursement and payment
methodologies applicable to claims
approved under section 1725.
As revised, paragraph (a)(1)
establishes the payment methodology to
be used when VA is the sole payer on
the claim. This includes situations
when a veteran does not have coverage
for the treatment under a health-plan
contract and does not have any other
legal or contractual recourse against a
third party for payment of the
emergency treatment expenses.
Historically, this payment methodology
was established in paragraph (a) and
provided that VA would pay the lesser
of the amount for which the veteran is
personally liable or 70 percent of the
amount under the applicable Medicare
fee schedule rate, an amount that VA
and Congress believed would ensure
providers still had sufficient incentive
to pursue reimbursement from other
liable parties before seeking
reimbursement from VA. This paragraph
is revised merely to clarify that it is
applicable when the veteran is the sole
payer and is not eligible to receive
partial payment from a third party, to
include under a health-plan contract.
Paragraph (a)(1) now states that where
an eligible veteran has personal liability
to a provider of emergency treatment
and has no contractual or legal recourse
against a third party, to include under
a health-plan contract, VA will pay the
lesser of the amount for which the
veteran is personally liable or 70
percent of the applicable Medicare fee
schedule rate.
New paragraph (a)(2) applies in cases
where VA will be the secondary payer
because the veteran is entitled to partial
payment under a health-plan contract or
has other legal or contractual recourse
against a third party that results in
partial payment of the emergency
treatment costs. Paragraph (a)(2)(i)
requires VA to pay according to the
current methodology, which is the
difference between the amount VA
would have paid under paragraph (a)(1)
for the cost of the emergency treatment
and the amount paid or payable by the
third party. However, that provision
will apply only when the amount
calculated under paragraph (a)(2)(i) is
greater than zero, meaning that VA is
authorized to make a payment to
VerDate Sep<11>2014
14:57 Jan 08, 2018
Jkt 244001
extinguish the veteran’s liability. If the
payment amount calculated under
paragraph (a)(2)(i) would be zero and
the veteran has remaining liability to the
provider, VA is adopting an alternative
method to ensure we can make payment
and extinguish each veteran’s personal
liability. If the amount paid under
paragraph (a)(2)(i) would be zero,
therefore, the payment method in
paragraph (a)(2)(ii) will apply.
Paragraph (a)(2)(ii) requires VA to pay
the lesser of the remainder of the
veteran’s personal liability after
payment is made by the third party (or
health-plan contract) or 70 percent of
the applicable Medicare fee schedule
amount for the care provided. Similar to
paragraph (a)(1), if the veteran’s
remaining liability under paragraph
(a)(2)(ii) is less than the 70 percent of
the applicable Medicare fee schedule
amount, VA’s payment will equal the
amount of the veteran’s liability, and the
veteran will have no personal liability
for the treatment expenses. If the lesser
amount is the applicable Medicare rate,
VA will pay that rate, even if the
amount billed by the provider is higher,
and acceptance of the VA payment by
the provider will extinguish the
remainder of the veteran’s liability. This
methodology sets an appropriate ‘‘cap’’
on VA’s payment to ensure providers
have sufficient incentive to pursue the
primary sources of payment while also
ensuring that VA has an opportunity to
make a payment which, if accepted by
the provider, extinguishes the veteran’s
liability. This is consistent with section
1725(a)(1), which requires VA to
reimburse a veteran for the reasonable
value of the emergency treatment
furnished to the veteran, and section
1725(c)(1)(A), which requires VA to
establish the maximum amount payable
under subsection (a); the application of
the Medicare fee schedule represents
the Federal government’s standard for
what constitutes appropriate payment
amounts under the law.
Paragraph (a)(3) establishes an
alternative methodology to use when
there is no applicable Medicare Fee
Schedule rate for the emergency
services provided. In such cases, we
will use the amount already established
in our own fee schedule, under 38 CFR
17.56(a)(2)(i)(B). This is necessary to
ensure that all potential emergency
services are covered by this rule.
Paragraph (a)(4) is similar to current
paragraph (e)(3). It states that the
provider will consider payments under
this section as payment in full and
extinguish the veteran’s liability to the
provider. In other words, if the provider
accepts and does not timely refund VA’s
payment, under either paragraph (a)(1),
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
977
(a)(2), or (a)(3), the provider must
consider the payment as payment in full
and the provider cannot submit
additional charges to the veteran for
payment. 38 U.S.C. 1725(c)(4)(C). In
addition, paragraph (a)(4) includes a
parenthetical that explains that neither
the absence of a contract or agreement
between the Secretary and the provider
nor any provision of a contract,
agreement, or assignment to the contrary
shall operate to modify, limit, or negate
the requirement in the paragraph. The
ability of the provider to reject and
refund VA payment within 30 days from
the date of receipt and the parenthetical
at the end of the paragraph are both
included in order to clarify the rights
and responsibilities under this
paragraph which are established in
section 1725(c)(3).
Paragraph (a)(5) restates current
paragraph (f), clarifying that VA will not
reimburse a claimant under this section
for any deductible, copayment,
coinsurance, or similar payment that the
veteran owes the third party or is
obligated to pay under a health-plan
contract. This is consistent with 38
U.S.C. 1725(c)(4)(D), which, as noted
above prohibits VA from reimbursing a
veteran for any copayment or similar
payment that the veteran owes a third
party or for which the veteran is
responsible under a health-plan
contract.
Effect of Rulemaking
Title 38 of the Code of Federal
Regulations, as revised by this interim
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.
Administrative Procedure Act
In accordance with 5 U.S.C.
553(b)(3)(B) and (d)(3), the Secretary of
Veterans Affairs has concluded that
there is good cause to publish this rule
without prior opportunity for public
comment and to publish this rule with
an immediate effective date. As
explained above, in a precedential
decision, the Court invalidated 38 CFR
17.1002(f), holding that partial payment
from a health-plan contract was not a
bar to reimbursement by VA for
emergency treatment rendered for a
non-service-connected condition at a
non-VA facility. This means VA is
required to process all pending, non-
E:\FR\FM\09JAR1.SGM
09JAR1
jstallworth on DSKBBY8HB2PROD with RULES
978
Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Rules and Regulations
final claims where veterans receive(d)
partial payment from health-plan
contracts, assuming all the other
requirements of 38 U.S.C. 1725 are met.
VA initially disagreed with the
Court’s decision. It unsuccessfully
sought reconsideration of the decision
in 2016 and ultimately the Government
appealed the Court decision to the U.S.
Court of Appeals for the Federal Circuit
(Court of Appeals). At the start of VA’s
efforts to obtain reversal of the decision
in 2016, VA necessarily starting holding
in abeyance all affected claims. As of
September 29, 2017, VA is holding
almost 822,000.
While the appeal was pending before
the Court of Appeals, VA made the
decision in 2017 to withdraw its appeal
and to proceed with rulemaking and
then the processing of claims being held
in abeyance. The Government’s appeal
unavoidably delayed processing of these
claims, and the additional time
associated with a public comment
period would cause further delay,
which VA believes would cause
hardship to veterans and is contrary to
the public interest.
As explained above, VA’s current
payment methodology would typically
result in partial payments under healthplan contracts exceeding VA’s
maximum allowable amount, leaving
many, if not most, veterans’ still
financially liable to their providers for
the remaining costs of their emergency
treatment. Merely revising § 17.1002(f)
to implement the Court decision
without, at the same time, amending the
payment methodology to avoid this
undesired result would, for all practical
purposes, result in unsound, ineffective,
incomplete rulemaking. We would
provide the right to payment without
the means by which to achieve the goal
in practice. Public interest therefore
compels concomitant revisions be made
to the payment methodology.
Similarly, as explained above, under
current regulations, there are
circumstances wherein VA must deny
otherwise eligible claims for
reimbursement solely because of
satisfaction of the related treatment
claim by a third-party payer. VA
believes this is inconsistent with our
interpretation of 38 U.S.C. 1725,
particularly our view that emergency
transportation is part and parcel of
emergency treatment, and VA believes
that failing to remedy that would be
contrary to the public interest because it
would also result in veterans receiving
no reimbursement, causing financial
hardship for veterans.
During recent confirmation hearings
for the Secretary of the Department,
Senator Rounds expressed frustration
VerDate Sep<11>2014
14:57 Jan 08, 2018
Jkt 244001
that VA had not originally complied
with the amendments to section 1725
made by the Emergency Care Fairness
Act (ECFA) (2010), and he criticized VA
for waiting for 6 years until it received
the adverse Court decision to change its
interpretation of section 1725 to accord
with the Congressional drafters original
intent. See Congressional Record,
November 30, 2016, pages S6609–
S6610. As part of his comments, the
Senator noted that most affected by
VA’s failure to implement the ECFA
amendments as originally intended (and
confirmed by the Court decision) mostly
affected elderly veterans, many of whom
live on fixed incomes and have limited
financial resources to pay medical bills.
Id. He provided anecdotal evidence of
veterans being pursued for payment of
these expenses by collection agencies
while these claims have been held in
abeyance. Id. He also expressed
additional concern that this situation
may be playing into the high rate of
veteran suicide among elderly veterans
and so simply found VA’s holding of
claims to be unacceptable. Id. In
response, the Secretary assured the
Senator, the Committee, and the general
public at large that VA would act
quickly to rectify this situation and get
these claims processed.
Even before this, in December 2016,
Senator Rounds and 21 other Senators
wrote the Department expressing these
same concerns, with the additional
concern that these veteran-claimants
may not seek needed care in the future
out of fear of incurring additional
medical bills.
In addition, the public record, e.g.,
articles by USA Today, Stars and
Stripes, etc., Veterans Service
Organizations, and social media,
includes reports readily available on the
internet about the Court decision as well
as follow-up stories tracking VA’s
actions. They convey a collective sense
of concern for claimants who are still
experiencing continued delays in
getting their claims processed.
For these reasons, good cause exists to
publish this rule without prior
opportunity for public comment and to
publish this rule with an immediate
effective date. Thus, the Secretary issues
this rule as an interim final rule. VA
will consider and address comments
that are received within 60 days of the
date this interim final rule is published
in the Federal Register.
Paperwork Reduction Act
This interim final rule contains no
provisions constituting a collection of
information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3521).
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
Regulatory Flexibility Act
The Secretary hereby certifies that the
adoption of 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. It will
not directly affect any small entities as
they are defined under the Act.
Therefore, pursuant to 5 U.S.C. 605(b),
this interim final rule will be exempt
from the initial and final regulatory
flexibility analysis requirements of
sections 603 and 604.
Executive Orders 12866, 13563, and
13771
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, when regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, and other advantages;
distributive impacts; and equity).
Executive Order 13563 (Improving
Regulation and Regulatory Review)
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility. Executive Order
12866 (Regulatory Planning and
Review) defines a ‘‘significant
regulatory action,’’ which requires
review by the Office of Management and
Budget (OMB), as ‘‘any regulatory action
that is likely to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities; (2) Create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; (3) Materially alter the
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) Raise novel legal or policy
issues arising out of legal mandates, the
President’s priorities, or the principles
set forth in this Executive Order.’’
The economic, interagency,
budgetary, legal, and policy
implications of this regulatory action
have been examined and OMB has
determined to be an economically
significant regulatory action because it
will have an annual effect on the
economy of $100 million or more. VA’s
impact analysis can be found as a
supporting document at https://
www.regulations.gov, usually within 48
E:\FR\FM\09JAR1.SGM
09JAR1
Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Rules and Regulations
hours after the rulemaking document is
published. Additionally, a copy of the
rulemaking and its impact analysis are
available on VA’s website at https://
www.va.gov/orpm by following the link
for VA Regulations Published from FY
2004 through FYTD. This rule is not
subject to the requirements of E.O.
13771 because this rule results in no
more than de minimis costs.
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.
jstallworth on DSKBBY8HB2PROD with RULES
Catalog of Federal Domestic Assistance
Numbers
The Catalog of Federal Domestic
Assistance numbers and titles for the
programs affected by this document are
64.005, Grants to States for Construction
of State Home Facilities; 64.007, Blind
Rehabilitation Centers; 64.008, Veterans
Domiciliary Care; 64.009, Veterans
Medical Care Benefits; 64.010, Veterans
Nursing Home Care; 64.011, 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.
List of Subjects in 38 CFR Part 17
Administrative practice and
procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug
abuse, Foreign relations, Government
contracts, Grant programs-health, Grant
programs-veterans, Health care, Health
facilities, Health professions, Health
records, Homeless, Medical and dental
schools, Medical devices, Medical
research, Mental health programs,
Nursing homes, Philippines, Reporting
and recordkeeping requirements,
Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Signing Authority
The Secretary of Veterans Affairs, or
designee, approved this document and
authorized the undersigned to sign and
submit the document to the Office of the
VerDate Sep<11>2014
14:57 Jan 08, 2018
Jkt 244001
Federal Register for publication
electronically as an official document of
the Department of Veterans Affairs. Gina
S. Farrisee, Deputy Chief of Staff,
Department of Veterans Affairs,
approved this document on July 14,
2017, for publication.
Dated: January 4, 2018.
Michael Shores,
Director, Regulation Policy & Management,
Office of the Secretary Department of
Veterans Affairs.
For the reasons set out in the
preamble, VA amends 38 CFR part 17 as
set forth below:
PART 17—MEDICAL
1. The general authority citation for
part 17 continues to read as follows:
■
Authority: 38 U.S.C. 501, and as noted in
specific sections.
*
*
*
*
*
2. Amend § 17.1002 by revising
paragraph (f) to read as follows:
■
§ 17.1002 Substantive conditions for
payment or reimbursement.
*
*
*
*
*
(f) The veteran does not have coverage
under a health-plan contract that would
fully extinguish the medical liability for
the emergency treatment (this condition
cannot be met if the veteran has
coverage under a health-plan contract
but payment is barred because of a
failure by the veteran or the provider to
comply with the provisions of that
health-plan contract, e.g., failure to
submit a bill or medical records within
specified time limits, or failure to
exhaust appeals of the denial of
payment);
*
*
*
*
*
■ 3. Amend § 17.1003 by:
■ a. Revising paragraphs (a), (c), and (d).
■ b. Adding paragraph (e).
The revisions and addition read as
follows:
§ 17.1003
Emergency transportation.
*
*
*
*
*
(a) Payment or reimbursement is
authorized under 38 U.S.C. 1725 for
emergency treatment provided at a nonVA facility, or payment or
reimbursement would have been
authorized under 38 U.S.C. 1725 for
emergency treatment had:
(1) The veteran’s personal liability for
the emergency treatment not been fully
extinguished by payment by a third
party, including under a health-plan
contract; or
(2) Death had not occurred before
emergency treatment could be provided;
*
*
*
*
*
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
979
(c) The veteran does not have
coverage under a health-plan contract
that would fully extinguish the medical
liability for the emergency
transportation (this condition is not met
if the veteran has coverage under a
health-plan contract but payment is
barred because of a failure by the
veteran or the provider to comply with
the provisions of that health-plan
contract);
(d) If the condition for which the
emergency transportation was furnished
was caused by an accident or workrelated injury, the claimant has
exhausted without success all claims
and remedies reasonably available to the
veteran or provider against a third party
for payment of such transportation; and
the veteran has no contractual or legal
recourse against a third party that could
reasonably be pursued for the purpose
of fully extinguishing the veteran’s
liability to the provider; and
(e) If the veteran is not eligible for
reimbursement for any emergency
treatment expenses under 38 U.S.C.
1728.
*
*
*
*
*
■ 4. Amend § 17.1005 by:
■ a. Revising paragraph (a).
■ b. Removing paragraph (e).
■ c. Removing paragraph (f).
The revisions read as follows:
§ 17.1005
Payment limitations.
(a) Payment or reimbursement for
emergency treatment (including
emergency transportation) under 38
U.S.C. 1725 will be calculated as
follows:
(1) If an eligible veteran has personal
liability to a provider of emergency
treatment and no contractual or legal
recourse against a third party, including
under a health-plan contract, VA will
pay the lesser of the amount for which
the veteran is personally liable or 70
percent of the applicable Medicare fee
schedule amount for such treatment.
(2) If an eligible veteran has personal
liability to a provider of emergency
treatment after payment by a third party,
including under a health-plan contract,
VA will pay:
(i) The difference between the amount
VA would have paid under paragraph
(a)(1) of this section for the cost of the
emergency treatment and the amount
paid (or payable) by the third party, if
that amount would be greater than zero,
or;
(ii) If applying paragraph (a)(2)(i) of
this section would result in no payment
by VA, the lesser of the veteran’s
remaining personal liability after such
third-party payment or 70 percent of the
applicable Medicare fee schedule
amount for such treatment.
E:\FR\FM\09JAR1.SGM
09JAR1
980
Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Rules and Regulations
(3) In the absence of a Medicare fee
schedule rate for the emergency
treatment, VA payment will be the
lesser of the amount for which the
veteran is personally liable or the
amount calculated by the VA Fee
Schedule in § 17.56 (a)(2)(i)(B).
(4) Unless rejected and refunded by
the provider within 30 days from the
date of receipt, the provider will
consider VA’s payment made under
paragraphs (a)(1), (a)(2), or (a)(3) of this
section as payment in full and
extinguish the veteran’s liability to the
provider. (Neither the absence of a
contract or agreement between the
Secretary and the provider nor any
provision of a contract, agreement, or
assignment to the contrary shall operate
to modify, limit, or negate the
requirement in the preceding sentence.)
(5) VA will not reimburse a veteran
under this section for any copayment,
deductible, coinsurance, or similar
payment that the veteran owes the third
party or is obligated to pay under a
health-plan contract.
*
*
*
*
*
[FR Doc. 2018–00232 Filed 1–8–18; 8:45 am]
BILLING CODE 8320–01–P
POSTAL SERVICE
39 CFR Part 111
eInduction Option, Seamless
Acceptance Program, and Full-Service
Automation Option, Verification
Standards
Postal ServiceTM.
ACTION: Final rule.
AGENCY:
The Postal Service is
amending Mailing Standards of the
United States Postal Service, Domestic
Mail Manual (DMM®), to add
verification standards for the eInduction
Option, Seamless Acceptance Program,
and Full-Service Automation Option.
SUMMARY:
DATES:
Effective: March 5, 2018.
FOR FURTHER INFORMATION CONTACT:
Heather Dyer at (207) 482–7217, or
Garry Rodriguez at (202) 268–7281.
The Postal
Service published a notice of proposed
rulemaking on October 31, 2017, (82 FR
50346–50348) to add the verification
standards for the eInduction Option,
Seamless Acceptance Program, and
Full-Service Automation Option, which
included a 30-day comment period.
The Postal Service received 2 formal
responses on the proposed rule, both of
which included multiple comments.
jstallworth on DSKBBY8HB2PROD with RULES
SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014
14:57 Jan 08, 2018
Jkt 244001
Comments From the First Responder
Comment: When measuring
compliance against the ‘‘active version
of the Mail Direction File’’ during
eInduction verifications, does a 30-day
grace period apply?
Response: Yes. The effective Mail
Direction File (MDF) is distributed
among the industry and PostalOne!
applications at the beginning of each
month to ensure valid container entry
acceptance. Each effective MDF also
observes a 30 day grace period allowing
consumers to confirm mail prepared for
the subsequent mailing period. For mail
that is prepared in the current mailing
period, the effective MDF will provide
a source of valid entry facilities that will
accept mail within the prepared mailing
period. For mail that is prepared in the
subsequent mailing period, the effective
MDF’s grace period observations will
provide a source of valid entry facilities
that will accept mail with the prepared
mailing period. At this time the USPS
does not plan on changing any system
processes with regards to logging errors
for eInduction. If mailers believe that
invalid errors are being logged they may
be researched through the review
process.
Comment: The Postal Service should
consider removing eInduction
assessment on undocumented
containers for mailers that do not
participate in Seamless Acceptance.
Response: At this time, the USPS does
not plan on changing any system
processes, including postage assessment
for eInduction. If mailers believe that
they have proof of payment for a
container that received an
undocumented error they may request a
review.
Comments From the Second Responder
Comment: In reviewing the proposed
DMM updates, there are several
documents that are cross-referenced;
these documents are not up to date.
Response: The recommended changes
to USPS Publication 685 have been
noted and will be addressed through a
separate forum. Changes to DMM
Section 602.5.2 were published in the
Address Quality Census Measurement
and Assessment Process final rule of
October 24, 2017 (82 FR 49123–49128),
and take effect on January 21, 2018. The
USPS is working to update ‘‘Publication
804—Drop Shipment Procedures for
Destination Entry’’ and ‘‘Guide for
Streamlined Mail Acceptance for Letters
and Flats Reporting.’’
Comment: We disagree with the
method USPS has adopted to assess
additional postage charged for logical
mailers in the Full-Service Intelligent
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
Mail program. Please explain why the
method is not consistent across all
Streamlined programs.
Response: At this time the USPS does
not plan on changing the Full-Service
assessment process for logical mailings.
If a mailer is able to provide
documentation supporting a reduction
in assessment due to evidence of
physical mailings during the review
process it will be taken into
consideration.
Comment: The Appeals Process
outlined in the DMM Section 604.10.1.2
does not appear to be consistent with
the process outlined in Publication 685.
Response: The Appeals Process for
the eInduction, Full-Service, and
Seamless Acceptance, programs are
outlined in Section 6–3.3.3 PCSC
Appeals of Publication 685. These
programs are not covered by the
timeline outlined in DMM Section
604.10.1.2. Mailers should work with
their assessment reviewer to discuss the
findings of the review and what type of
documentation will be needed to file an
appeal.
Comment: We have outlined the
differences between the DMM and
Publication 685; please utilize the same
language for consistency.
Response: For each difference noted,
changes to the DMM sections were
made when applicable and appropriate.
The recommended changes to
Publication 685 have been noted and
will be addressed through a separate
forum.
In addition, the second responder had
numerous comments that were
determined to be beyond the scope of
this final rule. The Postal Service will
review and address these comments in
a separate forum with the responder.
The Postal Service is amending DMM
sections 705.20, eInduction Option,
705.22, Seamless Acceptance Program,
and 705.23, Full-Service Automation
Option, to add the applicable
verification descriptions, error
thresholds, and postage assessments,
standards. These standards have been
made available to the public via
Publication 685, Publication for
Streamlined Mail Acceptance for Letters
and Flats, available at https://
postalpro.usps.com, which also
contains additional information on the
verification processes.
List of Subjects in 39 CFR Part 111
Administrative practice and
procedure, Postal Service.
The Postal Service adopts the
following changes to Mailing Standards
of the United States Postal Service,
Domestic Mail Manual (DMM),
E:\FR\FM\09JAR1.SGM
09JAR1
]]>Agencies
[Federal Register Volume 83, Number 6 (Tuesday, January 9, 2018)]
[Rules and Regulations]
[Pages 974-980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00232]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AQ08
Reimbursement for Emergency Treatment
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) revises its
regulations concerning payment or reimbursement for emergency treatment
for non-service-connected conditions at non-VA facilities to implement
the requirements of a recent court decision. Specifically, this
rulemaking expands eligibility for payment or reimbursement to include
veterans who receive partial payment from a health-plan contract for
non-VA emergency treatment and establishes a corresponding
reimbursement methodology. This rulemaking also expands the eligibility
criteria for veterans to receive payment or reimbursement for emergency
transportation associated with the emergency treatment, in order to
ensure that veterans are adequately covered when emergency
transportation is a necessary part of their non-VA emergency treatment.
DATES:
Effective Date: This rule is effective on January 9, 2018.
Comment Date: Comments must be received on or before March 12,
2018.
ADDRESSES: Written comments may be submitted by email through https://www.regulations.gov; by mail or hand-delivery to Director, Regulations
Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue
NW, Room 1063B, Washington, DC 20420; or by fax to (202) 273-9026.
(This is not a toll-free number.) Comments should indicate that they
are submitted in response to ``RIN 2900-AQ08, Reimbursement for
Emergency Treatment.'' Copies of comments received will be available
for public inspection in the Office of Regulation Policy and
Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m.
Monday through Friday (except holidays). Please call (202) 461-4902 for
an appointment. (This is not a toll-free number.) In addition, during
the comment period, comments may be viewed online through the Federal
Docket Management System (FDMS) at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director, Policy and
Planning VHA Office of Community Care (10D1A1), Veterans Health
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (303-370-1637). (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: 38 U.S.C. 1725 authorizes VA to reimburse
veterans for the reasonable value of emergency treatment for non-
service connected conditions furnished in a non-VA facility, if certain
criteria are met. One requirement is that the veteran must be
personally liable for the emergency treatment. As originally enacted in
1999, the statute provided that a veteran is personally liable if the
veteran ``has no entitlement to care or services under a health-plan
contract,'' and ``no other contractual or legal recourse against a
third party that would, in part or in whole, extinguish such liability
to the provider.'' 38 U.S.C. 1725(b)(3)(B) and (C) (1999). VA
interpreted that version of the statute as barring reimbursement for
veterans with any coverage from either a health-plan contract or a
third party because those veterans did not satisfy the requirement to
have ``no entitlement . . . under a health-plan contract'' and ``no
other . . . recourse against a third party.''
In addition, the 1999 version of the statute distinguished
``health-plan contract'' and ``third party'' by separately defining
them. 38 U.S.C. 1725(f)(2)-(3)(1999).
On February 1, 2010, Congress enacted the Expansion of Veteran
Eligibility for Reimbursement Act, Public Law 111-137 (2010 Act), which
amended section 1725. The legislative history of the 2010 Act provided:
The Committee has learned that under current law the VA does not
pay for emergency treatment for non-service connected conditions in
non-VA facilities if the veteran has third-party insurance that pays
any portion of the costs associated with such emergency treatment.
This situation can inadvertently arise if a veteran has minimal
health insurance coverage through a state-mandated automobile
insurance policy. Consequently, if an emergency does occur, and the
veteran has a policy containing such minimal coverage, the veteran
may be responsible for essentially the full cost of emergency
treatment. While some veterans are able to negotiate payment plans
and debt forgiveness of a portion of their medical bills with the
non-VA hospital where they received the emergency treatment, many
veterans are without the financial resources to shoulder such a cost
and are unaware that the VA would not be responsible for such
emergency care. H.R. Rep. No. 111-55.
The 2010 Act amended section 1725 by striking the phrase ``in
part'' from section 1725(b)(3)(C). It also removed state-mandated
automobile insurance policies from the definition of ``health-plan
contract.'' In chief, the effect of the 2010 amendments is that partial
payment from a third party is not a bar to reimbursement under section
1725, assuming all of the other eligibility criteria are met; the
third-party payment is only a bar to reimbursement if it fully
extinguishes the veteran's personal liability. Thus, eligible veterans
who receive only partial payment by the third party, including state-
mandated automobile insurance, are eligible for VA payment or
reimbursement of the unpaid portion of their emergency medical
expenses, subject to the payment limitations added by that same law.
VA amended its regulations to comply with the 2010 Act. Relevant to
this rulemaking, VA revised 38 CFR 17.1001(a)(5), 17.1002(g), and
17.1005(e) and (f). Section 17.1001(a)(5) was amended to remove state-
mandated automobile insurance from the definition of ``health-plan
contract.'' Section 17.1002(g) was amended to only prohibit
reimbursement from VA if a third party extinguished the liability in
whole, Sec. 17.1005(e) was amended to establish a methodology to
reimburse veterans when a third-party payment partially extinguished
the veteran's liability, and Sec. 17.1005(f) was promulgated to
implement the limitation in 38 U.S.C. 1725(c)(4)(D) that VA may not
reimburse any deductible, copayment, or similar payment that veterans
owe to third parties. However, because the 2010 Act did not amend
section 1725(b)(3)(B), pertaining to health-plan contracts, VA did not
amend its corresponding regulation at Sec. 17.1002(f) that bars
reimbursement from VA if the veteran is entitled to either partial or
full payment from a health-plan contract. Similarly, VA did not specify
in Sec. 17.1005(f) that it would not reimburse amounts for which the
veteran is responsible under a health-plan contract because it was
unnecessary to do so; consistent with VA's interpretation of the 2010
Act, reimbursement or payment continued to be barred if the veteran had
coverage under a health-plan contract.
In Staab v. McDonald, 28 Vet. App. 50 (2016), the U.S. Court of
Appeals for Veterans Claims (the Court) reversed a Board of Veterans'
Appeals (the Board) decision denying a claim under section 1725. The
Board had applied Sec. 17.1002(f) to conclude that partial payment of
the emergency treatment by the veteran's health-plan contract barred VA
reimbursement. On appeal, the veteran challenged Sec. 17.1002(f) as
[[Page 975]]
inconsistent with section 1725. The Court agreed, and in a precedential
decision, held invalid and set aside Sec. 17.1002(f) and remanded the
case.
In so doing, the Court interpreted section 1725(b)(3)(B) to bar
reimbursement only if a veteran's health-plan contract would wholly
extinguish the veteran's liability. In other words, the Court
interpreted the 2010 amendments relating to payment by a third party to
also apply to section 1725(b)(3)(B) relating to payment by health-plan
contracts.
To reach this conclusion, the Court gave particular weight to
sections 1725(c)(4) and (f)(3), which, in the Court's words, ``more
broadly include health-plan contracts, including Medicare, in the
category of a `third party.' '' In addition, the Court reasoned that
its interpretation was consistent with the overall purpose of section
1725, as amended, i.e., to permit reimbursement when a veteran is
personally liable to the provider of emergency treatment for the costs
of such care. The purpose of this rulemaking is to amend the pertinent
VA regulations to comply with the holding of this Court decision.
First, this interim final rule revises 38 CFR 17.1002(f). Section
17.1002 establishes the criteria that must be met for veterans to
receive payment or reimbursement under 38 U.S.C. 1725 for emergency
treatment for non-service- connected conditions at non-VA facilities.
Specifically, current Sec. 17.1002(f) bars reimbursement unless the
veteran has, ``no coverage under a health-plan contract for payment or
reimbursement, in whole or in part, for the emergency treatment.'' This
rule revises the regulation to state that a veteran may be eligible for
payment or reimbursement as long as the veteran does not have coverage
under a health-plan contract that will fully extinguish the veteran's
liability to the provider. This change reflects the Court's
interpretation that partial coverage for the emergency treatment under
a veteran's health-plan contract is not a bar to reimbursement under
section 1725. Reimbursement is only barred if coverage under the
health-plan contract wholly extinguishes the veteran's liability. We
believe that this change comports with the holding of Staab. Because,
in accordance with the Court's decision, VA will now provide payment or
reimbursement on claims involving partial payment by a health-plan
contract, we also amend Sec. 17.1005 to specifically clarify that VA
does not have authority to reimburse copayments or similar payment the
veteran owes under a health-plan contract. As noted, in implementing
the 2010 Act, we did not address specifically VA's authority to
reimburse such amounts owed under a health-plan contract, because
payment or reimbursement in that circumstance was wholly barred. We do
so now, based on the Court's decision in Staab that a veteran is
eligible for payment or reimbursement when there is a partial payment
by a health-plan contract, to make clear that the prohibition in 38
U.S.C. 1725(c)(4)(D) (on VA reimbursing a veteran for any copayment or
similar payment that the veteran owes a third party) applies to amounts
owed by a veteran under a health-plan contract.
To clarify the applicability of this regulation change, judicial
decisions invalidating a statute or regulation, or VA's interpretation
of a statute or regulation, cannot affect prior final VA decisions.
See, Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005); Disabled
American Veterans v. Gober, 234 F.3d 682, 697-98 (Fed. Cir. 2000).
Therefore, VA will not retroactively pay benefits for claims filed
under Sec. 17.1002(f) that were finally denied before April 8, 2016,
the date of the Staab decision. In other words, VA can only apply the
new Sec. 17.1002(f) to claims pending on or after April 8, 2016. We
note that all claims under Sec. 17.1002(f) involving partial payment
from a health-plan contract pending on April 8, 2016, or filed on or
after April 8, 2016, have been held in abeyance pending the publication
of this interim final rule. Therefore, all such Sec. 17.1002(f) claims
will be processed using the regulatory revisions published in this
rule.
Second, this interim final rule revises 38 CFR 17.1003 related to
emergency transportation to be consistent with our interpretation that
the exercise of VA's authority under 38 U.S.C. 1725 should result in
veterans' liability to providers of emergency treatment being
extinguished, except for deductibles, copayments, coinsurance, or other
similar payments owed by the veteran for which VA is barred from
reimbursing under 38 U.S.C. 1725(c)(4)(D), as described above. Although
section 1725 does not specifically authorize payment for emergency
transportation, it authorizes payment for ``emergency treatment'' as
defined in section 1725(f)(1). VA has interpreted the phrase
``emergency treatment'' in section 1725(f)(1) to include emergency
transportation if the transportation is provided as part of the
emergency medical treatment administered at the non-VA facility.
Current Sec. 17.1003 authorizes VA to provide payment or reimbursement
under 38 U.S.C. 1725 for ambulance services (including air ambulance
services) for transporting a veteran to a non-VA facility if certain
criteria are met. We amend Sec. 17.1003(a), (c), and (d) and create a
new paragraph (e) for the following reasons.
The current regulation states that VA will pay for emergency
transportation if ``[p]ayment or reimbursement is authorized under 38
U.S.C. 1725 for emergency treatment provided at [a non-VA] facility (or
payment or reimbursement could have been authorized under 38 U.S.C.
1725 for emergency treatment if death had not occurred before emergency
treatment could be provided).'' We have historically interpreted this
paragraph to authorize reimbursement for emergency transportation only
if VA approves and makes actual payment on the claim for the emergency
treatment provided at the non-VA facility. The reason for this
interpretation was that the emergency transportation was considered
part of (not apart or distinct from) the claim for emergency treatment.
If VA reimbursement was not authorized for the emergency treatment,
reimbursement was not authorized separately for the emergency
transportation (in other words, payment on the main treatment claim was
essentially a condition precedent).
Under current Sec. 17.1003(a), this results in denials of claims
for reimbursement for the costs of emergency transportation when a
third-party payment satisfies the claim for emergency medical
treatment, despite the transportation claim meeting the other criteria
for reimbursement by VA under 38 U.S.C. 1725. So if the veteran does
not have any remaining liability for the treatment provided at the non-
VA facility due to satisfaction of the treatment claim by a third
party, VA denies that veteran's claim for reimbursement of the
emergency treatment and, in turn, reimbursement is not be authorized
for their emergency transportation. In practice then, application of
VA's existing regulations is in tension with VA's view that emergency
transportation is part of emergency treatment. If VA's sole basis to
deny a transportation claim is satisfaction by a third party of the
related emergency treatment claim, even if that transportation claim
meets all of the other requirements for reimbursement under 38 U.S.C.
1725, VA is, in effect, treating the emergency transportation claim
differently than the related emergency treatment claim.
To address this, we now revise Sec. 17.1003(a). As amended, Sec.
17.1003(a) authorizes reimbursement for emergency transportation even
if the veteran is ineligible to receive
[[Page 976]]
reimbursement or payment for the emergency treatment, if the reason for
that ineligibility is that the veteran is not personally liable for the
emergency treatment due to satisfaction of the treatment claim by a
third party, including a health-plan contract. We note that the veteran
is still required to be personally liable for the emergency
transportation as established in paragraphs (b)-(e) of the regulation.
For example, if a veteran has Medicare insurance and the Medicare
payment fully extinguishes the veteran's liability for the emergency
treatment but does not cover the costs of emergency transportation,
under the prior regulation, VA was not permitted to reimburse or pay
for the emergency transportation because there was no remaining
liability for the treatment. However, under the revised regulation, the
veteran will be eligible to receive reimbursement or payment for the
emergency transportation, aside from deductibles, copayments, or other
similar payments owed by the veteran, as described above, assuming all
the other eligibility criteria of that section are met.
Therefore, we amend Sec. 17.1003(a) by retaining the general
criteria that payment or reimbursement must be authorized under section
1725 for emergency treatment provided at a non-VA facility, but we
remove the parenthetical and instead list out the two exceptions for
when payment does not have to be authorized in order for the veteran to
be eligible for reimbursement: Paragraph (a)(1) says that payment does
not have to be authorized for the emergency treatment if the veteran
has no remaining liability for the emergency treatment because prior
payment by non-VA, third party, sources extinguished the veteran's
liability, and paragraph (a)(2) contains the language in the current
parenthetical that authorization is not required if death occurred
prior to when the treatment could have been provided.
While not directly compelled by the Court's decision, this interim
final rule also amends paragraphs (c) and (d) of Sec. 17.1003. These
changes are necessitated by the Court's holding when read in concert
with VA's longstanding unchanged regulatory interpretation that
emergency transportation is an integral part of emergency treatment, as
discussed above. Otherwise, current Sec. 17.1003 would operate in a
manner that counteracts the changes to Sec. 17.1002(f) made by this
rulemaking. Paragraphs (c) and (d) are therefore revised to allow
veterans to receive reimbursement or payment for emergency
transportation even if they receive partial payment under a health-plan
contract or from a third party for the emergency transportation. We
revise paragraph (c) to state that a veteran may be eligible for
payment or reimbursement if the veteran does not have coverage under a
health-plan contract that will fully extinguish the veteran's liability
to the provider. Similarly, we revise paragraph (d) by stating that the
veteran may be eligible if the veteran has no contractual or legal
recourse against a third party that could reasonably be pursued for the
purpose of fully extinguishing the veteran's liability to the provider.
We also amend Sec. 17.1003 by creating a new paragraph (e).
Paragraph (e) states separately the requirement that was formerly in
paragraph (c) that to be eligible for reimbursement or payment for
emergency transportation, the veteran cannot be eligible for
reimbursement for emergency treatment under 38 U.S.C. 1728. This
requirement was moved for clarity so that each distinct requirement is
located in a separate paragraph.
Third, this interim final rule revises Sec. 17.1005 pertaining to
the payment methodologies and limitations used to calculate payment and
reimbursement for claims filed under section 1725. Currently, Sec.
17.1005(e) sets forth VA's payment methodology when a veteran has
contractual or legal recourse against a third party whose payment only
partially extinguishes the veteran's liability to the provider of
emergency treatment. This provision was originally drafted to address
only third party situations described in section 1725(b)(2)(C), as
interpreted before the Court decision. If VA applies the methodology in
current Sec. 17.1005(e) to claims involving partial payments under a
health-plan contract, it is likely that partial payment under a
veteran's health-plan contract will exceed the maximum amount that VA
can pay based on the current payment limitation. (Section 1725(c)(1)
requires VA to establish the maximum amount that can be paid on claims
under section 1725(a); for eligible claims where a third party has
already or will make partial payment, the law still requires the VA
payment not to exceed that maximum amount.) For this reason, these
veterans would in most cases be liable to the provider for the
remaining charges.
We underscore that the payment limitation in Sec. 17.1005 was
derived based on an understanding of how payers in the health care
industry establish payment rates and then VA deliberately reduced the
maximum payable amount to reflect Congress' original purpose in
enacting section 1725(c)(1), ensuring that providers had incentive to
seek other sources of payment before pursuing payment from the
government. The limitation, which remains today, was not intended to
apply to claims involving partial payments made under a health-plan
contract because current Sec. 17.1002(f) bars reimbursement in that
circumstance. This is why partial payments made under a health-plan
contract will exceed VA's current maximum payment limitation and why
applying the current maximum in all instances would result in VA not
making payments in most cases where there is payment under a health-
plan contract. Applying the current maximum in all cases would thus be
at cross purposes with the other proposed amendments requiring VA to
exercise its authority under 38 U.S.C. 1725 when there is partial
payment by a health-plan contract.
(This is not to say that this cannot, or has not, occurred in
connection with claims involving partial payment by a third party other
than a health-plan contract. In those cases, however, the amount of the
partial payment typically does not exceed the amount that VA can pay
under the statute and Sec. 17.1005(e), e.g., partial payments made by
state-mandated automobile reparations insurance carriers, and so VA's
authorized payments generally succeed in extinguishing these veterans'
remaining personal liability to their providers. In cases where the
third-party payment exceeded VA's payment limits, VA believes that
veterans with remaining liability simply declined to file claims with
VA.)
VA believes that claims properly authorized for payment or
reimbursement under 38 U.S.C. 1725 should invariably extinguish the
veterans' liability to the provider, aside from any deductibles,
copayments, or other similar payments owed by the veteran to a third
party or under a health-plan contract as required by law. This includes
claims where partial payment is made by a third-party under a health-
plan contract. This is why amending the methodology in Sec. 17.1005(e)
to ensure VA can make a payment on claims involving partial payment
under a health-plan contract is an essential logical outgrowth of the
Court's decision and consistent with the other amendments made by this
rulemaking. Otherwise, this rulemaking will merely amend Sec.
17.1002(f), in accordance with the Court decision, without providing an
effective mechanism to ensure its complete, successful, timely, and
practical application. As explained below, any
[[Page 977]]
payment by VA, if accepted by the provider and not rejected and
refunded within 30 days from the date of receipt, extinguishes the
remainder of the veteran's liability, thereby ensuring VA is
responsible for the remainder of the veteran's liability instead of the
veteran.
We revise paragraph (a) and remove paragraphs (e) and (f) so that
paragraph (a) now addresses, in one place, all reimbursement and
payment methodologies applicable to claims approved under section 1725.
As revised, paragraph (a)(1) establishes the payment methodology to
be used when VA is the sole payer on the claim. This includes
situations when a veteran does not have coverage for the treatment
under a health-plan contract and does not have any other legal or
contractual recourse against a third party for payment of the emergency
treatment expenses. Historically, this payment methodology was
established in paragraph (a) and provided that VA would pay the lesser
of the amount for which the veteran is personally liable or 70 percent
of the amount under the applicable Medicare fee schedule rate, an
amount that VA and Congress believed would ensure providers still had
sufficient incentive to pursue reimbursement from other liable parties
before seeking reimbursement from VA. This paragraph is revised merely
to clarify that it is applicable when the veteran is the sole payer and
is not eligible to receive partial payment from a third party, to
include under a health-plan contract. Paragraph (a)(1) now states that
where an eligible veteran has personal liability to a provider of
emergency treatment and has no contractual or legal recourse against a
third party, to include under a health-plan contract, VA will pay the
lesser of the amount for which the veteran is personally liable or 70
percent of the applicable Medicare fee schedule rate.
New paragraph (a)(2) applies in cases where VA will be the
secondary payer because the veteran is entitled to partial payment
under a health-plan contract or has other legal or contractual recourse
against a third party that results in partial payment of the emergency
treatment costs. Paragraph (a)(2)(i) requires VA to pay according to
the current methodology, which is the difference between the amount VA
would have paid under paragraph (a)(1) for the cost of the emergency
treatment and the amount paid or payable by the third party. However,
that provision will apply only when the amount calculated under
paragraph (a)(2)(i) is greater than zero, meaning that VA is authorized
to make a payment to extinguish the veteran's liability. If the payment
amount calculated under paragraph (a)(2)(i) would be zero and the
veteran has remaining liability to the provider, VA is adopting an
alternative method to ensure we can make payment and extinguish each
veteran's personal liability. If the amount paid under paragraph
(a)(2)(i) would be zero, therefore, the payment method in paragraph
(a)(2)(ii) will apply. Paragraph (a)(2)(ii) requires VA to pay the
lesser of the remainder of the veteran's personal liability after
payment is made by the third party (or health-plan contract) or 70
percent of the applicable Medicare fee schedule amount for the care
provided. Similar to paragraph (a)(1), if the veteran's remaining
liability under paragraph (a)(2)(ii) is less than the 70 percent of the
applicable Medicare fee schedule amount, VA's payment will equal the
amount of the veteran's liability, and the veteran will have no
personal liability for the treatment expenses. If the lesser amount is
the applicable Medicare rate, VA will pay that rate, even if the amount
billed by the provider is higher, and acceptance of the VA payment by
the provider will extinguish the remainder of the veteran's liability.
This methodology sets an appropriate ``cap'' on VA's payment to ensure
providers have sufficient incentive to pursue the primary sources of
payment while also ensuring that VA has an opportunity to make a
payment which, if accepted by the provider, extinguishes the veteran's
liability. This is consistent with section 1725(a)(1), which requires
VA to reimburse a veteran for the reasonable value of the emergency
treatment furnished to the veteran, and section 1725(c)(1)(A), which
requires VA to establish the maximum amount payable under subsection
(a); the application of the Medicare fee schedule represents the
Federal government's standard for what constitutes appropriate payment
amounts under the law.
Paragraph (a)(3) establishes an alternative methodology to use when
there is no applicable Medicare Fee Schedule rate for the emergency
services provided. In such cases, we will use the amount already
established in our own fee schedule, under 38 CFR 17.56(a)(2)(i)(B).
This is necessary to ensure that all potential emergency services are
covered by this rule.
Paragraph (a)(4) is similar to current paragraph (e)(3). It states
that the provider will consider payments under this section as payment
in full and extinguish the veteran's liability to the provider. In
other words, if the provider accepts and does not timely refund VA's
payment, under either paragraph (a)(1), (a)(2), or (a)(3), the provider
must consider the payment as payment in full and the provider cannot
submit additional charges to the veteran for payment. 38 U.S.C.
1725(c)(4)(C). In addition, paragraph (a)(4) includes a parenthetical
that explains that neither the absence of a contract or agreement
between the Secretary and the provider nor any provision of a contract,
agreement, or assignment to the contrary shall operate to modify,
limit, or negate the requirement in the paragraph. The ability of the
provider to reject and refund VA payment within 30 days from the date
of receipt and the parenthetical at the end of the paragraph are both
included in order to clarify the rights and responsibilities under this
paragraph which are established in section 1725(c)(3).
Paragraph (a)(5) restates current paragraph (f), clarifying that VA
will not reimburse a claimant under this section for any deductible,
copayment, coinsurance, or similar payment that the veteran owes the
third party or is obligated to pay under a health-plan contract. This
is consistent with 38 U.S.C. 1725(c)(4)(D), which, as noted above
prohibits VA from reimbursing a veteran for any copayment or similar
payment that the veteran owes a third party or for which the veteran is
responsible under a health-plan contract.
Effect of Rulemaking
Title 38 of the Code of Federal Regulations, as revised by this
interim 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.
Administrative Procedure Act
In accordance with 5 U.S.C. 553(b)(3)(B) and (d)(3), the Secretary
of Veterans Affairs has concluded that there is good cause to publish
this rule without prior opportunity for public comment and to publish
this rule with an immediate effective date. As explained above, in a
precedential decision, the Court invalidated 38 CFR 17.1002(f), holding
that partial payment from a health-plan contract was not a bar to
reimbursement by VA for emergency treatment rendered for a non-service-
connected condition at a non-VA facility. This means VA is required to
process all pending, non-
[[Page 978]]
final claims where veterans receive(d) partial payment from health-plan
contracts, assuming all the other requirements of 38 U.S.C. 1725 are
met.
VA initially disagreed with the Court's decision. It unsuccessfully
sought reconsideration of the decision in 2016 and ultimately the
Government appealed the Court decision to the U.S. Court of Appeals for
the Federal Circuit (Court of Appeals). At the start of VA's efforts to
obtain reversal of the decision in 2016, VA necessarily starting
holding in abeyance all affected claims. As of September 29, 2017, VA
is holding almost 822,000.
While the appeal was pending before the Court of Appeals, VA made
the decision in 2017 to withdraw its appeal and to proceed with
rulemaking and then the processing of claims being held in abeyance.
The Government's appeal unavoidably delayed processing of these claims,
and the additional time associated with a public comment period would
cause further delay, which VA believes would cause hardship to veterans
and is contrary to the public interest.
As explained above, VA's current payment methodology would
typically result in partial payments under health-plan contracts
exceeding VA's maximum allowable amount, leaving many, if not most,
veterans' still financially liable to their providers for the remaining
costs of their emergency treatment. Merely revising Sec. 17.1002(f) to
implement the Court decision without, at the same time, amending the
payment methodology to avoid this undesired result would, for all
practical purposes, result in unsound, ineffective, incomplete
rulemaking. We would provide the right to payment without the means by
which to achieve the goal in practice. Public interest therefore
compels concomitant revisions be made to the payment methodology.
Similarly, as explained above, under current regulations, there are
circumstances wherein VA must deny otherwise eligible claims for
reimbursement solely because of satisfaction of the related treatment
claim by a third-party payer. VA believes this is inconsistent with our
interpretation of 38 U.S.C. 1725, particularly our view that emergency
transportation is part and parcel of emergency treatment, and VA
believes that failing to remedy that would be contrary to the public
interest because it would also result in veterans receiving no
reimbursement, causing financial hardship for veterans.
During recent confirmation hearings for the Secretary of the
Department, Senator Rounds expressed frustration that VA had not
originally complied with the amendments to section 1725 made by the
Emergency Care Fairness Act (ECFA) (2010), and he criticized VA for
waiting for 6 years until it received the adverse Court decision to
change its interpretation of section 1725 to accord with the
Congressional drafters original intent. See Congressional Record,
November 30, 2016, pages S6609-S6610. As part of his comments, the
Senator noted that most affected by VA's failure to implement the ECFA
amendments as originally intended (and confirmed by the Court decision)
mostly affected elderly veterans, many of whom live on fixed incomes
and have limited financial resources to pay medical bills. Id. He
provided anecdotal evidence of veterans being pursued for payment of
these expenses by collection agencies while these claims have been held
in abeyance. Id. He also expressed additional concern that this
situation may be playing into the high rate of veteran suicide among
elderly veterans and so simply found VA's holding of claims to be
unacceptable. Id. In response, the Secretary assured the Senator, the
Committee, and the general public at large that VA would act quickly to
rectify this situation and get these claims processed.
Even before this, in December 2016, Senator Rounds and 21 other
Senators wrote the Department expressing these same concerns, with the
additional concern that these veteran-claimants may not seek needed
care in the future out of fear of incurring additional medical bills.
In addition, the public record, e.g., articles by USA Today, Stars
and Stripes, etc., Veterans Service Organizations, and social media,
includes reports readily available on the internet about the Court
decision as well as follow-up stories tracking VA's actions. They
convey a collective sense of concern for claimants who are still
experiencing continued delays in getting their claims processed.
For these reasons, good cause exists to publish this rule without
prior opportunity for public comment and to publish this rule with an
immediate effective date. Thus, the Secretary issues this rule as an
interim final rule. VA will consider and address comments that are
received within 60 days of the date this interim final rule is
published in the Federal Register.
Paperwork Reduction Act
This interim 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 the adoption of 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. It will not directly affect any
small entities as they are defined under the Act. Therefore, pursuant
to 5 U.S.C. 605(b), this interim final rule will be exempt from the
initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Executive Orders 12866, 13563, and 13771
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by the Office
of Management and Budget (OMB), as ``any regulatory action that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined and OMB has
determined to be an economically significant regulatory action because
it will have an annual effect on the economy of $100 million or more.
VA's impact analysis can be found as a supporting document at https://www.regulations.gov, usually within 48
[[Page 979]]
hours after the rulemaking document is published. Additionally, a copy
of the rulemaking and its impact analysis are available on VA's website
at https://www.va.gov/orpm by following the link for VA Regulations
Published from FY 2004 through FYTD. This rule is not subject to the
requirements of E.O. 13771 because this rule results in no more than de
minimis costs.
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
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.005, Grants to States for
Construction of State Home Facilities; 64.007, Blind Rehabilitation
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical
Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, 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.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs-health, Grant programs-veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing homes, Philippines, Reporting
and recordkeeping requirements, Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Gina S.
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs,
approved this document on July 14, 2017, for publication.
Dated: January 4, 2018.
Michael Shores,
Director, Regulation Policy & Management, Office of the Secretary
Department of Veterans Affairs.
For the reasons set out in the preamble, VA amends 38 CFR part 17
as set forth below:
PART 17--MEDICAL
0
1. The general 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. 17.1002 by revising paragraph (f) to read as follows:
Sec. 17.1002 Substantive conditions for payment or reimbursement.
* * * * *
(f) The veteran does not have coverage under a health-plan contract
that would fully extinguish the medical liability for the emergency
treatment (this condition cannot be met if the veteran has coverage
under a health-plan contract but payment is barred because of a failure
by the veteran or the provider to comply with the provisions of that
health-plan contract, e.g., failure to submit a bill or medical records
within specified time limits, or failure to exhaust appeals of the
denial of payment);
* * * * *
0
3. Amend Sec. 17.1003 by:
0
a. Revising paragraphs (a), (c), and (d).
0
b. Adding paragraph (e).
The revisions and addition read as follows:
Sec. 17.1003 Emergency transportation.
* * * * *
(a) Payment or reimbursement is authorized under 38 U.S.C. 1725 for
emergency treatment provided at a non-VA facility, or payment or
reimbursement would have been authorized under 38 U.S.C. 1725 for
emergency treatment had:
(1) The veteran's personal liability for the emergency treatment
not been fully extinguished by payment by a third party, including
under a health-plan contract; or
(2) Death had not occurred before emergency treatment could be
provided;
* * * * *
(c) The veteran does not have coverage under a health-plan contract
that would fully extinguish the medical liability for the emergency
transportation (this condition is not met if the veteran has coverage
under a health-plan contract but payment is barred because of a failure
by the veteran or the provider to comply with the provisions of that
health-plan contract);
(d) If the condition for which the emergency transportation was
furnished was caused by an accident or work-related injury, the
claimant has exhausted without success all claims and remedies
reasonably available to the veteran or provider against a third party
for payment of such transportation; and the veteran has no contractual
or legal recourse against a third party that could reasonably be
pursued for the purpose of fully extinguishing the veteran's liability
to the provider; and
(e) If the veteran is not eligible for reimbursement for any
emergency treatment expenses under 38 U.S.C. 1728.
* * * * *
0
4. Amend Sec. 17.1005 by:
0
a. Revising paragraph (a).
0
b. Removing paragraph (e).
0
c. Removing paragraph (f).
The revisions read as follows:
Sec. 17.1005 Payment limitations.
(a) Payment or reimbursement for emergency treatment (including
emergency transportation) under 38 U.S.C. 1725 will be calculated as
follows:
(1) If an eligible veteran has personal liability to a provider of
emergency treatment and no contractual or legal recourse against a
third party, including under a health-plan contract, VA will pay the
lesser of the amount for which the veteran is personally liable or 70
percent of the applicable Medicare fee schedule amount for such
treatment.
(2) If an eligible veteran has personal liability to a provider of
emergency treatment after payment by a third party, including under a
health-plan contract, VA will pay:
(i) The difference between the amount VA would have paid under
paragraph (a)(1) of this section for the cost of the emergency
treatment and the amount paid (or payable) by the third party, if that
amount would be greater than zero, or;
(ii) If applying paragraph (a)(2)(i) of this section would result
in no payment by VA, the lesser of the veteran's remaining personal
liability after such third-party payment or 70 percent of the
applicable Medicare fee schedule amount for such treatment.
[[Page 980]]
(3) In the absence of a Medicare fee schedule rate for the
emergency treatment, VA payment will be the lesser of the amount for
which the veteran is personally liable or the amount calculated by the
VA Fee Schedule in Sec. 17.56 (a)(2)(i)(B).
(4) Unless rejected and refunded by the provider within 30 days
from the date of receipt, the provider will consider VA's payment made
under paragraphs (a)(1), (a)(2), or (a)(3) of this section as payment
in full and extinguish the veteran's liability to the provider.
(Neither the absence of a contract or agreement between the Secretary
and the provider nor any provision of a contract, agreement, or
assignment to the contrary shall operate to modify, limit, or negate
the requirement in the preceding sentence.)
(5) VA will not reimburse a veteran under this section for any
copayment, deductible, coinsurance, or similar payment that the veteran
owes the third party or is obligated to pay under a health-plan
contract.
* * * * *
[FR Doc. 2018-00232 Filed 1-8-18; 8:45 am]
BILLING CODE 8320-01-P
