Copayment Exemption for Indian Veterans, 2038-2046 [2023-00364]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Proposed Rules]
[Pages 2038-2046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00364]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AR48


Copayment Exemption for Indian Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
medical regulations to implement a statute exempting Indian and urban 
Indian veterans from copayment requirements for the receipt of hospital 
care or medical services, including the initial three urgent care 
visits in a calendar year, under laws administered by VA.

DATES: Comments must be received on or before February 13, 2023.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: https://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the commenter will take actions to harm 
the individual. VA encourages individuals not to submit duplicative 
comments. We will post acceptable comments from multiple unique 
commenters even if the content is identical or nearly identical to 
other comments. Any public comment received after the comment period's 
closing date is considered late and will not be considered in the final 
rulemaking.

FOR FURTHER INFORMATION CONTACT: Mark Upton, Acting Deputy to the 
Deputy Under Secretary for Health, Office of the Deputy Under Secretary 
for Health (10A), 810 Vermont Avenue NW, Washington, DC 20420, 202-461-
7459. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: Pursuant to section 1730A of title 38, 
United States Code (U.S.C.), catastrophically disabled veterans are 
exempt from copayment for the receipt of hospital care or medical 
services under laws administered by VA. On January 5, 2021, the 
President signed into law the Johnny Isakson and David P. Roe, M.D. 
Veterans Health Care and Benefits Improvement Act of 2020 (the 
``Act''). Public Law 116-315. Section 3002 of the Act amended section 
1730A to add a copayment exemption for veterans who are either Indian 
or urban Indian, as those terms are defined in section 4 of the Indian 
Health Care Improvement Act. This amendment to section 1730A took 
effect one year after the date of enactment of the Act (that is, the 
statutory amendment became effective on January 5, 2022). In accordance 
with 38 U.S.C. 1730A, this rulemaking is using the terms Indian and 
urban Indian as provided in 38 U.S.C. 1730A and as defined in 25 U.S.C. 
1603(13) and (28). This rulemaking proposes to revise several VA 
regulations concerning copayment exemptions to be consistent with the 
amendment made to 38 U.S.C. 1730A by section 3002 of the Act.

Definitions of Indian and Urban Indian

    As explained above, section 3002 of the Act defines Indian and 
urban Indian based on those terms' definitions in section 4 of the 
Indian Health Care Improvement Act for purposes of copayment exemption 
under 38 U.S.C. 1730A. Section 4 of the Indian Health Care Improvement 
Act is codified at 25 U.S.C. 1603, and the definitions for Indian and 
urban Indian are located in paragraphs 13 and 28, respectively, of 
section 1603.
    Paragraph 13 of section 1603 defines the term Indians or Indian as 
any person who is a member of an Indian tribe, as that term is further 
defined in section 1603(14), except that, for the purpose of 25 U.S.C. 
1612 and 1613, such terms

[[Page 2039]]

shall mean any individual who: (1) irrespective of whether he or she 
lives on or near a reservation, is a member of a tribe, band, or other 
organized group of Indians, including those tribes, bands, or groups 
terminated since 1940 and those recognized now or in the future by the 
State in which they reside, or who is a descendant, in the first or 
second degree, of any such member; (2) is an Eskimo or Aleut or other 
Alaska Native; (3) is considered by the Secretary of the Interior to be 
an Indian for any purpose; or (4) is determined to be an Indian 
pursuant to regulations promulgated by the Secretary of Health and 
Human Services.
    Section 1603(13) refers to members of an Indian tribe in the 
definition of Indian. Section 1603(14) defines Indian tribe to mean any 
Indian tribe, band, nation, or other organized group or community, 
including any Alaska Native village or group or regional or village 
corporation as defined in or established pursuant to the Alaska Native 
Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which is 
recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians. For 
purposes of this rulemaking, when VA uses the term Indian tribe in this 
rulemaking, it is doing so to be consistent with, and to incorporate, 
the definition of Indian tribe in section 1603(14).
    Paragraph 28 of section 1603 defines the term urban Indian as any 
individual who resides in an urban center (as such term is further 
defined in section 1603(27)) and who meets at least one or more of the 
four criteria in the definition of Indian in 25 U.S.C. 1603(13) (as 
described above in a previous paragraph regarding the definition of 
Indians or Indian).
    For purposes of implementing the copayment exemption for Indian and 
urban Indian veterans as required by 38 U.S.C. 1730A, VA is using the 
definitions of Indian and urban Indian in 25 U.S.C. 1603(13) and (28). 
Doing so ensures that VA is adhering to the statutory definitions 
referenced in section 1730A and will allow VA to immediately implement 
any changes made by Congress to those definitions without requiring 
amendment to the definitions of Indian and urban Indian in VA's medical 
regulations. As explained subsequently in this rulemaking, we propose 
to revise Sec. Sec.  17.108, 17.110, 17.111 and 17.4600 of title 38, 
Code of Federal Regulations (CFR) to include these definitions of 
Indian and urban Indian under section 1603(13) and (28).

Documentation

    In identifying ways in which VA could determine whether a veteran 
meets the definition of Indian or urban Indian under 25 U.S.C. 1603(13) 
and (28) for purposes of copayment exemption under 38 U.S.C. 1730A, VA 
sought input and guidance from American Indian and Alaska Native tribal 
governments and individuals who may be considered to meet the 
definition of Indian and urban Indian under section 1730A. On April 1, 
2021, VA published a Federal Register (FR) notice of a virtual tribal 
consultation session scheduled for April 29, 2021, regarding 
documentation that can be used by VA's health care system to identify 
those veterans who are considered to meet the definition of the terms 
Indian and urban Indian under section 1730A. See 86 FR 17267. The 
Federal Register notice further explained that related written comments 
may also be submitted to VA before May 29, 2021. Ninety-six 
individuals, including representatives from American Indian and Alaska 
Native tribal governments and veterans, attended the virtual 
consultation session on April 29, 2021, and more than twenty attendees 
provided feedback during the session. VA also received eighteen written 
comments from various sources including American Indian and Alaska 
Native tribal governments and American Indian and Alaska Native health 
organizations.
    The majority of the comments, including comments from American 
Indian and Alaska Native tribal governments, supported submission of 
documentation (e.g., tribal letter, tribal enrollment card, Certificate 
of Degree of Indian Blood, enhanced tribal identification card, kinship 
report). Some commenters supported veteran self-certification. Some 
commenters recommended American Indian and Alaska Native tribal 
governments determine the documentation VA should accept, rather than 
VA determining the appropriate documentation. Other commenters 
recommended VA adopt the same documentation requirements of the Indian 
Health Service (IHS).
    A recording of the April 29, 2021, virtual consultation session can 
be found at: https://vacctraining.adobeconnect.com/pz8n69p0aov1/. The 
written comments received from this notice are publicly available 
online at www.regulations.gov.
    Based on the feedback VA received from consultation that supported 
requiring veterans submit documentation, VA proposes that, for purposes 
of exempting from copayment veterans who meet the definition of the 
terms Indian and urban Indian under section 1730A, VA will require 
documentation from a veteran that they are an Indian or urban Indian as 
those terms are defined in 25 U.S.C. 1603(13) and (28). VA proposes to 
require documentation as this recognizes tribal sovereignty and 
promotes the Nation-to-Nation relationship that exists between the 
United States and tribal governments. As the vast majority of comments 
from American Indian and Alaska Native tribal governments supported 
documentation, requiring documentation would be consistent with the 
preferences of tribal leaders. American Indian and Alaska Native tribal 
governments recognize their members and provide individual members with 
documentation to recognize that they are members of an American Indian 
and Alaska Native tribe. This approach would acknowledge each tribal 
government's right to determine their tribal membership and how best to 
substantiate it.
    Further, requiring veterans to submit documentation would also 
align with how other Federal agencies, such as IHS, determine 
eligibility for benefits or services. When determining eligibility for 
benefits or service based on status as a member of an American Indian 
or Alaska Native tribe, Federal agencies may accept documentation 
issued by American Indian and Alaska Native tribal governments to 
tribal members to show membership in the tribe. VA would defer to the 
American Indian and Alaska Native tribal governments with respect to 
the documentation showing who is a tribal member, as described later in 
this discussion which, as noted above, is consistent with IHS 
practices. While some commenters suggested American Indian and Alaska 
Native tribal governments determine the documentation that is required 
to meet the definitions of Indian and urban Indian under 25 U.S.C. 
1603(13) and (28), part of VA's responsibility is to ensure that those 
who are eligible for the copayment exemption under 38 U.S.C. 1730A 
receive that benefit and that the documentation submitted meets the 
definitions in the law. VA reiterates that it would defer to the 
American Indian and Alaska Native tribal governments as to the 
documentation that they provide to their members to submit to VA to 
demonstrate they meet those definitions of Indian and urban Indian.
    While some commenters supported self-attestation, VA believes that 
self-attestation presents an unreasonable risk

[[Page 2040]]

that VA would provide the copayment exemption to veterans who do not 
meet the legal definition of Indian or urban Indian under section 
1603(13) and (28) as the definition of Indian and urban Indian under 
section 1603(13) and (28) may be inaccurately interpreted by veterans. 
This confusion and misunderstanding of whether a veteran would meet the 
definition of Indian or urban Indian may result in good-faith but 
mistaken self-attestations resulting in VA paying benefits to 
individuals who are not eligible. Requiring documentation rather than 
self-attestation would allow VA to ensure through audits that it is 
fulfilling its duty to only exempt those veterans who are eligible 
pursuant to section 1730A. For these reasons, VA believes documentation 
would be appropriate to ensure that this copayment exemption is 
administered only to veterans eligible for it under 38 U.S.C. 1730A.
    Documentation VA proposes to accept to verify an individual meets 
the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and 
(28) would be as follows:
    (1) Documentation issued by a federally-recognized Indian tribe 
that shows that a veteran is a member of the tribe;
    (2) Documentation showing that the veteran, irrespective of whether 
they live on or near a reservation, is a member of a tribe, band, or 
other organized group of Indians terminated since 1940 and those 
recognized now or in the future by the State in which they reside, or 
who is a descendant, in the first or second degree, of any such member;
    (3) Documentation showing that the veteran is an Eskimo or Aleut or 
other Alaska Native;
    (4) Documentation issued by the U.S. Department of the Interior 
(DOI) showing that the veteran is considered by DOI to be an Indian for 
any purpose;
    (5) Documentation showing that the veteran is considered by the 
U.S. Department of Health and Human Services (HHS) to be an Indian 
under that Department's regulations;
    (6) Documentation showing that the veteran resides in an urban 
center and meets one or more of the following criteria:
    (a) Irrespective of whether they live on or near a reservation, is 
a member of a tribe, band, or other organized group of Indians, 
including those tribes, bands, or groups terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (b) Is an Eskimo or Aleut or other Alaska Native;
    (c) Is considered by DOI to be an Indian for any purpose; or
    (d) Is considered by HHS to be an Indian under that Department's 
regulations.
    VA believes that all veterans who are Indian and urban Indian 
pursuant to the definitions in 25 U.S.C. 1603(13) and (28) would be 
able to obtain and submit to VA the documents listed above that are 
applicable to their status in order to establish their status as Indian 
or urban Indian. It is important to note that any documentation 
submitted to VA would be safeguarded and protected consistent with all 
applicable privacy and security laws.\1\ As American Indian and Alaska 
Native tribal governments issue a variety of documents to demonstrate 
an individual's membership in a federally-recognized Indian tribe, VA 
would accept documentation issued by a federally-recognized Indian 
tribe that shows that a veteran is a member of the tribe. This would 
include, for example, cards issued by a federally-recognized Indian 
tribe showing that the veteran is a member of that tribe or 
documentation issued by a federally-recognized Indian tribe on tribal 
letterhead that shows that a veteran is a member of the tribe. 
Submission of such documentation would be required to show that a 
veteran meets the definition of Indian in 25 U.S.C. 1603(13). VA notes 
that as explained previously, VA proposes to use the definition of 
Indian tribe in 25 U.S.C. 1603(14) for purposes of defining the term 
Indian tribe.
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    \1\ VA's privacy policy--www.va.gov/privacy-policy/.
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    VA would accept documentation showing that the veteran, 
irrespective of whether they live on or near a reservation, is a member 
of a tribe, band, or other organized group of Indians terminated since 
1940 and those recognized now or in the future by the State in which 
they reside, or who is a descendant, in the first or second degree, of 
any such member. Submission of such documentation would show that a 
veteran meets the definition of Indian in 25 U.S.C. 1603(13), 
specifically that the individual, irrespective of whether they live on 
or near a reservation, is a member of a tribe, band, or other organized 
group of Indians terminated since 1940 and those recognized now or in 
the future by the State in which they reside, or who is a descendant, 
in the first or second degree, of any such member. See 25 U.S.C. 
1603(13)(A). This would include those veterans who are members of a 
State-recognized Indian tribe or formerly federally-recognized Indian 
tribe.
    VA would accept documentation showing that the veteran is an Eskimo 
or Aleut or other Alaska Native. Submission of such documentation would 
show that a veteran meets the definition of Indian in 25 U.S.C. 
1603(13), specifically that the individual is an Eskimo or Aleut or 
other Alaska Native. See 25 U.S.C. 1603(13)(B).
    DOI and HHS issue documentation that may show a veteran meets the 
definition of Indian. Thus, VA would accept documentation issued by DOI 
that shows that the veteran is considered by DOI to be an Indian for 
any purpose. Submission of such documentation would show that a veteran 
meets the definition of Indian in 25 U.S.C. 1603(13), specifically that 
the individual is considered by the Secretary of Interior to be an 
Indian for any purpose. See 25 U.S.C. 1603(13)(C). VA would also accept 
documentation that shows that the veteran is considered by HHS to be an 
Indian under that Department's regulations. Submission of such 
documentation would show that a veteran meets the definition of Indian 
in 25 U.S.C. 1603(13), specifically that the individual is determined 
to be an Indian under regulations promulgated by the Secretary [of 
HHS]. See 25 U.S.C. 1603(13)(D).
    To be eligible for the copayment exemption under 38 U.S.C. 1730A, 
veterans would also be able to submit documentation showing that they 
reside in an urban center and meet one or more of the following 
criteria: (a) Irrespective of whether they live on or near a 
reservation, is a member of a tribe, band, or other organized group of 
Indians, including those tribes, bands, or groups terminated since 1940 
and those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member; (b) Is an Eskimo or Aleut or other Alaska Native; (c) is 
considered by DOI to be an Indian for any purpose; or (d) Is considered 
by HHS to be an Indian under HHS regulations. Submission of such 
documentation would show that a veteran meets the definition of urban 
Indian in 25 U.S.C. 1603(28). As the definition of urban Indian in 
section 1603(28) refers to and incorporates (A) through (D) of the 
definition of Indian in section 1603(13), VA acknowledges that urban 
Indians would be able to meet both the definition of Indian and urban 
Indian and would be able to submit documentation that shows they meet 
both of these definitions. However,

[[Page 2041]]

a veteran would only be required to submit documentation that show that 
they meet one definition. VA believes the proposed list of 
documentation to show a veteran meets the definition of Indian would 
likely capture those who meet the definition of urban Indian. However, 
to be consistent with 38 U.S.C. 1730A, VA would add a separate category 
of documentation for those veterans that meet the definition of urban 
Indian under section 1603(28). VA seeks input during the comment period 
from Indian and urban Indian veterans and American Indian and Alaska 
Native tribal governments on whether there is any other documentation 
VA should consider including in this proposed list of documentation to 
show that a veteran meets the definition of urban Indian.
    This new copayment exemption would not be automatic; regardless of 
whether a veteran is already enrolled in VA health care or is enrolling 
in VA health care for the first time, the veteran would need to submit 
documentation to VA. Until veterans submit documentation that confirms 
that they meet the definition of the term Indian or urban Indian under 
25 U.S.C. 1603(13) and (28), VA would be unable to exempt such veterans 
from copayments. However, once the documentation is submitted and 
processed, VA would exempt the veteran from copayments unless and until 
they notify VA that they no longer meet the definition of Indian or 
urban Indian under section 1603(13) and (28) or VA determines that the 
veteran does not meet the definition of Indian or urban Indian as 
defined in section 1603(13) and (28).

Covered Services

    As previously discussed, 38 U.S.C. 1730A exempted those veterans 
determined to be catastrophically disabled from copayments for hospital 
care and medical services prior to the Act. Section 3002 of the Act 
amended section 1730A to add veterans who meet the definition of the 
terms Indian and urban Indian as covered veterans exempt from 
copayments for hospital care and medical services. VA considers the 
terms hospital care and medical services as defined in 38 U.S.C. 
1701(5) and (6) and in 38 CFR 17.30(a).
    The copayment exemptions for catastrophically disabled veterans, as 
authorized under 38 U.S.C. 1730A, were implemented in 38 CFR 17.108, 
17.110, and 17.111. Section 17.108 sets forth the copayments for 
inpatient hospital care and outpatient medical care and exempts 
catastrophically disabled veterans from copayments for such care. 
Section 17.110 sets forth the copayments for medication provided by VA 
on an outpatient basis (other than medication administered during 
treatment) and exempts catastrophically disabled veterans from 
copayments for such medication. Section 17.111 sets forth the 
copayments for extended care services and exempts catastrophically 
disabled veterans from copayments for adult day health care, 
noninstitutional geriatric evaluation, and noninstitutional respite 
care.
    In addition to ``hospital care'' and ``medical services,'' veterans 
exempted from copayments under section 1730A are also exempt from 
copayments for at least two visits to qualifying non-Department 
providers for urgent care in a year. See 38 U.S.C. 1725A(f)(1)(B). 
However, VA has the authority to require copayments for this care for 
such veterans after the second urgent care visit in a year. Id. VA has 
exercised this authority and requires veterans otherwise exempt from 
copayments, including veterans exempt pursuant to 38 U.S.C. 1730A, to 
pay copayments for urgent care from qualifying non-Department providers 
after the third urgent care visit in a calendar year. The copayments 
for urgent care under 38 U.S.C. 1725A are established separately in 
Sec.  17.4600(d).
    VA utilizes the authority provided under section 1725A to require 
copayments for all veterans, irrespective of their priority group in VA 
enrollment, level of service-connected disability, or designation as 
catastrophically disabled, after the first three visits in a calendar 
year because the copayment is designed to encourage appropriate use of 
the benefit. Collecting a copayment after the third visit helps ensure 
that the urgent care benefit is utilized appropriately and is not being 
used as a substitute for primary care. Copayments are a common feature 
of health care, including VA health care, and are an important 
mechanism for guiding behavior to ensure that patients receive care at 
an appropriate location. The urgent care copayment is designed to 
encourage all veterans to seek care from VA first, when VA can provide 
the needed care, and to utilize urgent care when prompt treatment is 
necessary to prevent the condition from becoming emergent. Urgent care 
is considered to be a convenient option for care but is not intended to 
be used as a substitute for traditional primary care that emphasizes 
longitudinal management and care coordination.
    As section 3002 of the Act amended 38 U.S.C. 1730A to include 
veterans who meet the definition of the terms Indian and urban Indian 
as copayment exempt, with no distinction between this new cohort and 
those considered catastrophically disabled with regards to the care for 
which these copayments are exempted, VA would interpret the copayment 
exemption for veterans who meet the definition of the terms Indian and 
urban Indian under section 1730A the same as VA has for 
catastrophically disabled veterans. Thus, as explained later in this 
discussion, VA proposes to amend 38 CFR 17.108, 17.110, and 17.111 to 
include veterans who meet the definition of the terms Indian and urban 
Indian as exempt from copayment for inpatient hospital care, outpatient 
medical care, outpatient medications, adult day health care, 
noninstitutional geriatric evaluation, and noninstitutional respite 
care. However, these veterans would still be required to pay copayments 
for domiciliary care, institutional respite care, institutional 
geriatric evaluation, and nursing home care. Similarly, consistent with 
how VA applies copayment exemptions for catastrophically disabled 
veterans for urgent care visits, VA proposes to amend the urgent care 
copayment regulation at Sec.  17.4600(d)(1) to include veterans who 
meet the definition of the terms Indian and urban Indian to ensure that 
these veterans are not charged a copayment until their fourth urgent 
care visit.
    The changes VA proposes to make to 38 CFR part 17 are explained in 
more detail below in the section describing the regulations proposed to 
be amended.

Retroactive Copayment Reimbursement

    In order to allow time for veterans to learn about this new benefit 
and submit to VA documentation that verifies they meet the definition 
of Indian or urban Indian under 25 U.S.C. 1603(13) and (28), VA 
proposes to reimburse Indian and urban Indian veterans for copayments 
paid to VA for hospital care, medical services, and urgent care 
provided on or after January 5, 2022, if they would have been exempt 
from making such copayments if this regulation had been in effect. This 
would also allow these veterans to be reimbursed for copayments that 
were paid for such care provided on or after January 5, 2022, 
irrespective of when this rulemaking is published and effective or when 
these veterans submit their documentation for processing.
    After a veteran submits to VA the required documentation, VA would 
review the documentation to determine if the veteran meets the 
definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28). If 
the veteran meets the definition of Indian or urban Indian under 25 
U.S.C. 1603(13) and (28), the veteran's record would be updated to

[[Page 2042]]

reflect their Indian or urban Indian status so that future copays are 
not charged. VA would then process reimbursement payments for any 
copayments that were paid for hospital care, medical services, and 
urgent care provided on or after January 5, 2022. VA would not require 
veterans to submit claims for reimbursement of copayments for such 
care. However, veterans would not be prohibited from submitting claims 
for reimbursement. If VA would be unable to determine the veteran meets 
the definition of Indian or urban Indian as defined in 25 U.S.C. 
1603(13) and (28) based on the submitted documentation, VA would notify 
the veteran of such determination.

Regulations To Be Amended

    As previously explained, VA has implemented regulations concerning 
copayments for hospital care and medical services at 38 CFR 17.108, 
17.110, 17.111, and 17.4600. In this rulemaking, VA proposes to amend 
these regulations to align with the statutory requirement to exempt 
from copayment veterans who are an Indian or urban Indian as those 
terms are defined in section 4 of the Indian Health Care Improvement 
Act.

Section 17.108

    Copayments for inpatient hospital care and outpatient medical care 
are established in 38 CFR 17.108. Paragraph (d) of Sec.  17.108 lists 
categories of veterans who are not subject to the copayment 
requirements of this section. VA proposes to amend Sec.  17.108(d) by 
adding a new paragraph (14). Proposed paragraph (14) explains that a 
veteran who meets the definition of Indian or urban Indian, as defined 
in 25 U.S.C. 1603(13) and (28), would be exempt from copayment under 
this section. In addition, it would include language explaining that 
the exemption is applicable for care provided on or after January 5, 
2022. This is consistent with 38 U.S.C. 1730A, as amended by section 
3002 of the Act which exempts these veterans from copayments for care 
received on or after January 5, 2022.
    Proposed paragraph (14) would further inform veterans that to 
demonstrate they meet the definition of Indian or urban Indian in 25 
U.S.C. 1603(13) and (28), they must submit to VA any of the following 
documentation: (i) documentation issued by a federally-recognized 
Indian tribe that shows that the veteran is a member of the tribe; (ii) 
documentation showing that the veteran, irrespective of whether they 
live on or near a reservation, is a member of a tribe, band, or other 
organized group of Indians terminated since 1940 and those recognized 
now or in the future by the State in which they reside, or who is a 
descendant, in the first or second degree, of any such member; (iii) 
documentation showing that the veteran is an Eskimo or Aleut or other 
Alaska Native; (iv) documentation issued by DOI showing that the 
veteran is considered by DOI to be an Indian for any purpose; (v) 
documentation showing that the veteran is considered by HHS to be an 
Indian under that Department's regulations; or (vi) documentation 
showing that the veteran resides in an urban center and meets one or 
more of the following criteria: (A) irrespective of whether they live 
on or near a reservation, is a member of a tribe, band, or other 
organized group of Indians, including those tribes, bands, or groups 
terminated since 1940 and those recognized now or in the future by the 
State in which they reside, or who is a descendant, in the first or 
second degree, of any such member; (B) is an Eskimo or Aleut or other 
Alaska Native; (C) is considered by DOI to be an Indian for any 
purpose; or (D) is considered by the HHS to be an Indian under that 
Department's regulations.
    VA also proposes to amend Sec.  17.108 by adding a new paragraph 
(g) to explain that after VA determines the documentation submitted by 
the veteran meets paragraph (d)(14) and updates the veteran's record to 
reflect the veteran's status as an Indian or urban Indian, VA would 
reimburse veterans exempt under paragraph (d)(14) of this section for 
any copayments that were paid to VA for inpatient hospital care and 
outpatient medical care provided on or after January 5, 2022, if they 
would have been exempt from making such copayments if this regulation 
had been in effect.

Section 17.110

    Copayments for medications are established in 38 CFR 17.110. 
Paragraph (c) of Sec.  17.110 lists medications that are not subject to 
the copayment requirements of this section. Similar to the proposed 
amendments to Sec.  17.108, VA proposes to amend Sec.  17.110(c) by 
adding paragraph (13) to include as exempt from copayment under such 
section a veteran who meets the definition of Indian or urban Indian, 
as defined in 25 U.S.C. 1603(13) and (28), for medications provided on 
or after January 5, 2022.
    In addition, VA would include in proposed Sec.  17.110(c)(13) the 
same language under Sec.  17.108(d)(14) to inform veterans that to 
demonstrate they meet the definition of Indian or urban Indian in 25 
U.S.C. 1603(13) and (28), the veteran must submit to VA any of the 
following documentation: (i) documentation issued by a federally-
recognized Indian tribe that shows that the veteran is a member of the 
tribe; (ii) documentation showing that the veteran, irrespective of 
whether they live on or near a reservation, is a member of a tribe, 
band, or other organized group of Indians terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member; (iii) documentation showing that the veteran is an Eskimo 
or Aleut or other Alaska Native; (iv) documentation issued by DOI 
showing that the veteran is considered by DOI to be an Indian for any 
purpose; (v) documentation showing that the veteran is considered by 
HHS to be an Indian under that Department's regulations; or (vi) 
documentation showing that the veteran resides in an urban center and 
meets one or more of the following criteria: (A) irrespective of 
whether they live on or near a reservation, is a member of a tribe, 
band, or other organized group of Indians, including those tribes, 
bands, or groups terminated since 1940 and those recognized now or in 
the future by the State in which they reside, or who is a descendant, 
in the first or second degree, of any such member; (B) is an Eskimo or 
Aleut or other Alaska Native; (C) is considered by DOI to be an Indian 
for any purpose; or (D) is considered by HHS to be an Indian under that 
Department's regulations.
    VA also proposes to add paragraph (d) to Sec.  17.110 to state that 
after VA determines the documentation submitted by the veteran meets 
paragraph (c)(13) and updates the veteran's record to reflect the 
veteran's status as an Indian or urban Indian, VA would reimburse 
veterans exempt under paragraph (c)(13) of this section for any 
copayments that were paid to VA for medications provided on or after 
January 5, 2022 if they would have been exempt from making such 
copayments if this regulation had been in effect.

Section 17.111

    Copayments for extended care services are established in Sec.  
17.111. Section 17.111(f) lists categories of veterans and care that 
are not subject to the copayment requirements of this section. While 38 
U.S.C. 1730A only exempts Indian and urban Indian veterans from 
copayments for hospital care and medical services, noninstitutional 
extended care services are included in the definition of medical

[[Page 2043]]

services. 38 U.S.C. 1701(6)(E); 38 CFR 17.38(a)(1)(xi). Similar to the 
proposed amendments to Sec. Sec.  17.108 and 17.110, VA proposes to add 
a new paragraph (11) to Sec.  17.111(f) to include, as exempt from 
copayment under such section, a veteran who meets the definition of 
Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), for 
adult day health care, noninstitutional respite care, and 
noninstitutional geriatric evaluation provided on or after January 5, 
2022.
    VA also proposes to add language to inform veterans that to 
demonstrate they meet the definition of Indian or urban Indian in 25 
U.S.C. 1603(13) and (28), they must submit to VA any of the following 
documentation: (i) documentation issued by a federally-recognized 
Indian tribe that shows that the veteran is a member of the tribe; (ii) 
documentation showing that the veteran, irrespective of whether they 
live on or near a reservation, is a member of a tribe, band, or other 
organized group of Indians terminated since 1940 and those recognized 
now or in the future by the State in which they reside, or who is a 
descendant, in the first or second degree, of any such member; (iii) 
documentation showing that the veteran is an Eskimo or Aleut or other 
Alaska Native; (iv) documentation issued by DOI showing that the 
veteran is considered by DOI to be an Indian for any purpose; (v) 
documentation showing that the veteran is considered by HHS to be an 
Indian under that Department's regulations; or (vi) documentation 
showing that the veteran resides in an urban center and meets one or 
more of the following criteria: (A) irrespective of whether they live 
on or near a reservation, is a member of a tribe, band, or other 
organized group of Indians, including those tribes, bands, or groups 
terminated since 1940 and those recognized now or in the future by the 
State in which they reside, or who is a descendant, in the first or 
second degree, of any such member; (B) is an Eskimo or Aleut or other 
Alaska Native; (C) is considered by DOI to be an Indian for any 
purpose; or (D) is considered by HHS to be an Indian under that 
Department's regulations.
    VA proposes to add a new paragraph (g) to 38 CFR 17.111 to explain 
that after VA determines the documentation submitted by the veteran 
meets paragraph (f)(11) and updates the veteran's record to reflect the 
veteran's status as an Indian or urban Indian, VA would reimburse 
veterans exempt under paragraph (f)(11) of this section for any 
copayments that were paid to VA for adult day health care, 
noninstitutional respite care, and noninstitutional geriatric 
evaluation provided on or after January 5, 2022, if they would have 
been exempt from making such copayments if this regulation had been in 
effect.

Section 17.4600

    VA also proposes to amend 38 CFR 17.4600 for purposes of urgent 
care visits. Pursuant to 38 U.S.C. 1725A(f)(1)(B), an eligible veteran 
not required to pay a copayment under title 38, U.S.C., may access 
urgent care without a copayment for the first two visits in a calendar 
year. For any additional visits, a copayment at an amount determined by 
VA may be required. The implementing regulation for 38 U.S.C. 1725A is 
38 CFR 17.4600. Section 17.4600(d)(1)(i) explains that certain veterans 
are exempt from copayment for the first three urgent care visits in a 
calendar year, but must pay a copayment after those first three visits. 
VA has determined that a veteran who meets the definition of Indian or 
urban Indian in 25 U.S.C. 1603(13) and (28), based on the documentation 
the veteran has submitted, should not be required to pay a copayment 
for the first three visits in a calendar year. This would be consistent 
with how VA implements copayments for urgent care visits by 
catastrophically disabled veterans. VA proposes to amend 38 CFR 
17.4600(d)(1) by redesignating current paragraph (ii) as (iii) and 
adding new paragraph (ii) to exempt from copayment the initial three 
urgent care visits in a calendar year of a veteran who meets the 
definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) 
and (28).
    VA also proposes to add language to 38 CFR 17.4600(d)(1)(ii) to 
inform veterans that to demonstrate that they meet the definition of 
Indian or urban Indian in 25 U.S.C. 1603(13) and (28), they must submit 
to VA any of the following documentation: (A) documentation issued by a 
federally-recognized Indian tribe that shows that the veteran is a 
member of the tribe; (B) documentation showing that the veteran, 
irrespective of whether they live on or near a reservation, is a member 
of a tribe, band, or other organized group of Indians terminated since 
1940 and those recognized now or in the future by the State in which 
they reside, or who is a descendant, in the first or second degree, of 
any such member; (C) documentation showing that the veteran is an 
Eskimo or Aleut or other Alaska Native; (D) documentation issued by DOI 
showing that the veteran is considered by DOI to be an Indian for any 
purpose; (E) documentation showing that the veteran is considered by 
HHS to be an Indian under that Department's regulations; or (F) 
documentation showing that the veteran resides in an urban center and 
meets one or more of the following criteria: (1) irrespective of 
whether they live on or near a reservation, is a member of a tribe, 
band, or other organized group of Indians, including those tribes, 
bands, or groups terminated since 1940 and those recognized now or in 
the future by the State in which they reside, or who is a descendant, 
in the first or second degree, of any such member; (2) is an Eskimo or 
Aleut or other Alaska Native; (3) is a considered by DOI to be an 
Indian for any purpose; or (4) is considered by HHS to be an Indian 
under that Department's regulations.
    VA also proposes to amend 38 CFR 17.4600(d)(2), which explains that 
an eligible veteran who receives urgent care under Sec.  
17.4600(b)(5)(iv) or urgent care consisting solely of an immunization 
against influenza (flu shot) is not subject to a copayment under Sec.  
17.4600(d)(1) and such a visit shall not count as a visit for purposes 
of Sec.  17.4600(d)(1)(i). Because VA proposes to add new paragraph 
(d)(1)(ii) which is similar to (d)(1)(i) in exempting certain eligible 
veterans from copayment for the initial three urgent care visits in a 
calendar year, VA also proposes to add paragraph (d)(1)(ii) so that 
veterans who meet the definition of Indian or urban Indian, as defined 
in 25 U.S.C. 1603(13) and (28) are treated the same for purposes of 
paragraph (d)(2).
    VA also proposes to add paragraph (d)(4) to Sec.  17.4600 to state 
that after VA determines the documentation submitted by the veteran 
meets Sec.  17.4600(d)(1)(ii) and updates the veteran's record to 
reflect the veteran's status as an Indian or urban Indian, VA would 
reimburse veterans exempt under paragraph (d)(1)(ii) of this section 
for any copayments that were paid to VA for the first three visits for 
urgent care in a calendar year provided on or after January 5, 2022 if 
they would have been exempt from making such copayments if this 
regulation had been in effect.
    While there are veterans exempt from copayment under 38 CFR 17.108, 
17.110, 17.111, and 17.4600 who have been assigned a specific Priority 
Group (for example, catastrophically disabled veterans are in Priority 
Group 4), section 3002 of the Act did not change VA's system for 
enrolling veterans who meet the definition of Indian or urban Indian in 
25 U.S.C. 1603(13) and (28) in the VA health care system and assigning 
them to a Priority Group. VA is thus not proposing to make any changes 
to the

[[Page 2044]]

Priority Groups as set forth in 38 CFR 17.36.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this proposed rule is a significant regulatory action under Executive 
Order 12866. The Regulatory Impact Analysis associated with this 
rulemaking can be found as a supporting document at 
www.regulations.gov.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (5 
U.S.C. 601-612). This rule would not cause a significant economic 
impact on small entities since this exemption is limited to individual 
veterans who VA determines to be Indian or urban Indian. Therefore, 
pursuant to 5 U.S.C. 605(b), the initial and final regulatory 
flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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 proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act

    This proposed rule includes provisions constituting a new 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521) that require approval by the Office of Management and 
Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a 
copy of this rulemaking action to OMB for review and approval.
    OMB assigns control numbers to collection of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. Sections 17.108, 17.110, 17.111, 
and 17.4600 would require documentation be submitted by veterans to be 
eligible for copayment exemption as an Indian or urban Indian. If OMB 
does not approve the collection of information as requested, VA will 
immediately remove the provisions containing the collection of 
information or take such other action as is directed by OMB.
    Comments on the new collection of information contained in this 
rulemaking should be submitted through www.regulations.gov. Comments 
should indicate that they are submitted in response to ``RIN 2900-AR48, 
Copayment Exemption for Indian Veterans'' and should be sent within 30 
days of publication of this rulemaking. The collection of information 
associated with this rulemaking can be viewed at: www.reginfo.gov/public/do/PRAMain.
    OMB is required to make a decision concerning the collection of 
information contained in this rulemaking between 30 and 60 days after 
publication of this rulemaking in the Federal Register (FR). Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the provisions of this 
rulemaking.
    The Department considers comments by the public on new collection 
of information in--
     Evaluating whether the new collections of information are 
necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the new collection of information, including the validity 
of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The collection of information associated with this rulemaking 
contained in 38 CFR 17.108, 17.110, 17,111, 17.4600 is described 
immediately following this paragraph, under its respective title.
    Title: Documentation of Indian or urban Indian status.
    OMB Control No: 2900-XXXX (New/TBD).
    CFR Provision: 38 CFR 17.108, 17.110, 17,111, 17.4600.
     Summary of collection of information: The new collection 
of information in 38 CFR 17.108, 17.110, 17.111, and 17.4600 would 
require veterans to submit certain documentation to VA as evidence that 
they meet the definition of Indian or urban Indian as defined in 25 
U.S.C. 1603(13) and (28).
     Description of need for information and proposed use of 
information: The information will be used by VA to determine if a 
veteran meets the definition of Indian or urban Indian as defined in 25 
U.S.C. 1603(13) and (28) for purposes of exempting these veterans from 
copayment for certain health care.
     Description of likely respondents: Veterans.
     Estimated number of respondents: 25,000.
     Estimated frequency of responses: One time.
     Estimated average burden per response: 15 minutes.
     Estimated total annual reporting and recordkeeping burden: 
6,250 hours.
     Estimated cost to respondents per year: VA estimates the 
annual cost to (respondents, etc.) to be $175,062.50. Using VA's 
estimated annual number of Indian and urban Indian veterans applying 
for copayment exemption, VA estimates the total information collection 
burden cost to be $175,062.50 per year *. (6,250 burden hours for 
respondents x (multiplied by) $28.01 per hour).
    * To estimate the total information collection burden cost, VA used 
the Bureau of Labor Statistics (BLS) mean hourly wage for hourly wage 
for ``00-0000 All Occupations'' of $28.01 per hour. This information is 
available at https://www.bls.gov/oes/current/oes.nat.htm.

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, Government programs--
veterans, Health care, Health facilities, Health professions, Health 
records, Homeless,

[[Page 2045]]

Medical and dental schools, Medical devices, Medical research, Mental 
health programs, Nursing home care, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on December 28, 2022, 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.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to amend 38 CFR part 17 as set forth below:

PART 17--MEDICAL

0
1. The authority citation for part 17 is amended by adding entries for 
Sec. Sec.  17.111 and 17.4600 in numerical order to read in part as 
follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.
* * * * *
    Section 17.111 is also issued under 38 U.S.C. 101(28), 501, 
1701(7), 1703, 1710, 1710B, 1720B, 1720D, 1722A, and 1730A.
* * * * *
    Section 17.4600 is also issued under 38 U.S.C. 1725A and 1730A.
* * * * *
0
2. Amend Sec.  17.108 by adding paragraphs (d)(14) and (g), and the 
information collection control number to read as follows:


Sec.  17.108  Copayments for inpatient hospital care and outpatient 
medical care.

* * * * *
    (d) * * *
    (14) A veteran who meets the definition of Indian or urban Indian, 
as defined in 25 U.S.C. 1603(13) and (28), for inpatient hospital care 
or outpatient medical care provided on or after January 5, 2022. To 
demonstrate that they meet the definition of Indian or urban Indian, 
the veteran must submit to VA any of the documentation listed in 
paragraphs (d)(14)(i) through (vi) of this section:
    (i) Documentation issued by a federally-recognized Indian tribe 
that shows that the veteran is a member of the tribe;
    (ii) Documentation showing that the veteran, irrespective of 
whether they live on or near a reservation, is a member of a tribe, 
band, or other organized group of Indians terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (iii) Documentation showing that the veteran is an Eskimo or Aleut 
or other Alaska Native;
    (iv) Documentation issued by the Department of Interior (DOI) 
showing that the veteran considered by DOI to be an Indian for any 
purpose;
    (v) Documentation showing that the veteran is considered by the 
Department of Health and Human Services (HHS) to be an Indian under 
that Department's regulations; or
    (vi) Documentation showing that the veteran resides in an urban 
center and meets one or more of the following criteria:
    (A) Irrespective of whether they live on or near a reservation, is 
a member of a tribe, band, or other organized group of Indians, 
including those tribes, bands, or groups terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (B) Is an Eskimo or Aleut or other Alaska Native;
    (C) Is considered by the Department of Interior to be an Indian for 
any purpose; or
    (D) Is considered by HHS to be an Indian under that Department's 
regulations.
* * * * *
    (g) Retroactive copayment reimbursement. After VA determines that 
the documentation submitted by the veteran meets the criteria in 
paragraph (d)(14) of this section and VA updates the veteran's record 
to reflect the veteran's status as an Indian or urban Indian, VA will 
reimburse veterans exempt under paragraph (d)(14) for any copayments 
that were paid to VA for inpatient hospital care and outpatient medical 
care provided on or after January 5, 2022 if they would have been 
exempt from making such copayments if this regulation had been in 
effect.


(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-TBD.)
0
3. Amend Sec.  17.110 by adding paragraphs (c)(13) and (d), and the 
information collection control number to read as follows:


Sec.  17.110  Copayments for medication.

* * * * *
    (c) * * *
    (13) A veteran who meets the definition of Indian or urban Indian, 
as defined in 25 U.S.C. 1603(13) and (28), for medications provided on 
or after January 5, 2022. To demonstrate that they meet the definition 
of Indian or urban Indian, the veteran must submit to VA any of the 
documentation listed in paragraphs (c)(13)(i) through (vi) of this 
section:
    (i) Documentation issued by a federally-recognized Indian tribe 
that shows that the veteran is a member of the tribe;
    (i) Documentation showing that the veteran, irrespective of whether 
they live on or near a reservation, is a member of a tribe, band, or 
other organized group of Indians terminated since 1940 and those 
recognized now or in the future by the State in which they reside, or 
who is a descendant, in the first or second degree, of any such member;
    (iii) Documentation showing that the veteran is an Eskimo or Aleut 
or other Alaska Native;
    (iv) Documentation issued by the Department of Interior (DOI) 
showing that the veteran is considered by DOI to be an Indian for any 
purpose;
    (v) Documentation showing that the veteran is considered by the 
Department of Health and Human Services (HHS) to be an Indian under 
that Department's regulations; or
    (vi) Documentation showing that the veteran resides in an urban 
center and meets one or more of the following criteria:
    (A) Irrespective of whether they live on or near a reservation, is 
a member of a tribe, band, or other organized group of Indians, 
including those tribes, bands, or groups terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (B) Is an Eskimo or Aleut or other Alaska Native;
    (C) Is considered by DOI to be an Indian for any purpose; or
    (D) Is considered by HHS to be an Indian under that Department's 
regulations.
    (d) Retroactive copayment reimbursement. After VA determines the 
submitted documentation meets paragraph (c)(13) of this section and 
updates the veteran's record to reflect the veteran's status as an 
Indian or urban Indian, VA will reimburse veterans exempt under 
paragraph (c)(13) for any copayments that were paid to VA for 
medications provided on or after January 5, 2022, if they would have 
been exempt from making such copayments if this regulation had been in 
effect.


[[Page 2046]]



(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-TBD.)
0
4. Amend Sec.  17.111 by adding paragraphs (f)(11) and (g), and the 
information collection control number to read as follows:


Sec.  17.111  Copayments for extended care services.

* * * * *
    (f) * * *
    (11) A veteran who meets the definition of Indian or urban Indian, 
as defined in 25 U.S.C. 1603(13) and (28), is exempt from copayments 
for noninstitutional extended care including adult day health care, 
noninstitutional respite care, and noninstitutional geriatric 
evaluation provided on or after January 5, 2022. To demonstrate that 
they meet the definition of Indian or urban Indian, the veteran must 
submit to VA any of the documentation listed in paragraphs (f)(11)(i) 
through (vi) of this section:
    (i) Documentation issued by a federally-recognized Indian tribe 
that shows that the veteran is a member of the tribe;
    (ii) Documentation showing that the veteran, irrespective of 
whether they live on or near a reservation, is a member of a tribe, 
band, or other organized group of Indians terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (iii) Documentation showing that the veteran is an Eskimo or Aleut 
or other Alaska Native;
    (iv) Documentation issued by the Department of Interior (DOI) 
showing that the veteran is considered by DOI to be an Indian for any 
purpose;
    (v) Documentation showing that the veteran is considered by the 
Department of Health and Human Services (HHS) to be an Indian under 
that Department's regulations; or
    (vi) Documentation showing that the veteran resides in an urban 
center and meets one or more of the following criteria:
    (A) Irrespective of whether they live on or near a reservation, is 
a member of a tribe, band, or other organized group of Indians, 
including those tribes, bands, or groups terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (B) Is an Eskimo or Aleut or other Alaska Native;
    (C) Is considered by DOI to be an Indian for any purpose; or
    (D) Is considered by HHS to be an Indian under that Department's 
regulations.
    (g) Retroactive copayment reimbursement. After VA determines the 
submitted documentation meets paragraph (f)(11) of this section and 
updates the veteran's record to reflect the veteran's status as an 
Indian or urban Indian, VA will reimburse veterans exempt under 
paragraph (f)(11) for any copayments that were paid to VA for adult day 
health care, non-institutional respite care, and non-institutional 
geriatric evaluation provided on or after January 5, 2022, if they 
would have been exempt from making such copayments if this regulation 
had been in effect.


(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-TBD.)
0
5. Amend Sec.  17.4600 by:
0
a. Redesignating paragraph (d)(1)(ii) as (d)(1)(iii);
0
b. Adding new paragraph (d)(1)(ii);
0
c. Revising paragraph (d)(2);
0
d. Adding paragraph (d)(4);
0
e. Adding the information collection control number.
    The additions and revision read as follows:


 Sec.  17.4600  Urgent Care.

* * * * *
    (d) * * *
    (1) * * *
    (ii) After three visits in a calendar year if such eligible veteran 
meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 
1603(13) and (28). To demonstrate that they meet the definition of 
Indian or urban Indian, the veteran must submit to VA any of the 
documentation listed in paragraphs (A) through (F):
    (A) Documentation issued by a federally-recognized Indian tribe 
that shows that the veteran is a member of the tribe;
    (B) Documentation showing that the veteran, irrespective of whether 
they live on or near a reservation, is a member of a tribe, band, or 
other organized group of Indians terminated since 1940 and those 
recognized now or in the future by the State in which they reside, or 
who is a descendant, in the first or second degree, of any such member;
    (C) Documentation showing that the veteran is an Eskimo or Aleut or 
other Alaska Native;
    (D) Documentation issued by the Department of Interior (DOI) 
showing that the veteran is considered by DOI to be an Indian for any 
purpose;
    (E) Documentation showing that the veteran is considered by the 
Department of Health and Human Services (HHS) to be an Indian under 
that Department's regulations; or
    (F) Documentation showing that the veteran resides in an urban 
center and meets one or more of the following criteria:
    (1) Irrespective of whether they live on or near a reservation, is 
a member of a tribe, band, or other organized group of Indians, 
including those tribes, bands, or groups terminated since 1940 and 
those recognized now or in the future by the State in which they 
reside, or who is a descendant, in the first or second degree, of any 
such member;
    (2) Is an Eskimo or Aleut or other Alaska Native;
    (3) Is considered by DOI to be an Indian for any purpose; or
    (4) Is considered by HHS to be an Indian under that Department's 
regulations.
* * * * *
    (2) An eligible veteran who receives urgent care under paragraph 
(b)(5)(iv) of this section or urgent care consisting solely of an 
immunization against influenza (flu shot) is not subject to copayment 
under paragraph (d)(1) of this section and such a visit shall not count 
as a visit for purposes of paragraph (d)(1)(i) or (ii) of this section.
* * * * *
    (4) After VA determines the submitted documentation meets paragraph 
(d)(1)(ii) of this section and updates the veteran's record to reflect 
the veteran's status as an Indian or urban Indian, VA will reimburse 
eligible veterans exempt under paragraph (d)(1)(ii) for any copayments 
that were paid to VA for the first three visits for urgent care in a 
calendar year provided on or after January 5, 2022, if they would have 
been exempt from making such copayments if this regulation had been in 
effect.
* * * * *

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

[FR Doc. 2023-00364 Filed 1-11-23; 8:45 am]
BILLING CODE 8320-01-P