Change in Rates VA Pays for Special Modes of Transportation, 10032-10037 [2023-03013]

Download as PDF 10032 Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Rules and Regulations add, in their places, the text ‘‘electronic submittals’’ and ‘‘https://www.uscg.mil/ HQ/MSC’’, respectively. add, in their places, the text ‘‘electronic submittals’’ and ‘‘https://www.uscg.mil/ HQ/MSC’’, respectively. § 162.018–8 PART 163—CONSTRUCTION PART 173—SPECIAL RULES PERTAINING TO VESSEL USE 53. The authority citation for part 173 is revised to read as follows: ■ [Amended] 50. In § 162.018–8(a), remove the text ‘‘submitting the VSP electronically’’ and ‘‘https://www.uscg.mil/HQ/MSC’’ and add, in their places, the text ‘‘electronic submittals’’ and ‘‘https://www.uscg.mil/ HQ/MSC’’, respectively. ■ § 162.050–7 [Amended] 52. The authority citation for part 163 is revised to read as follows: ■ Authority: 46 U.S.C. 3306, 3703; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; DHS Delegation No. 00170.1, Revision No. 01.3. Authority: 43 U.S.C. 1333; 46 U.S.C. 2113, 3306, 5115; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; DHS Delegation No. 00170.1, Revision No. 01.3. 54. In § 173.095, revise the equations in paragraphs (b) and (d) to read as follows: ■ § 173.095 51. In § 162.050–7(a), remove the text ‘‘submitting the VSP electronically’’ and ‘‘https://www.uscg.mil/HQ/MSC’’ and ■ * GM Towline pull criterion. * * (b) * * * * * = (N)(P X D)2/a(s)(h) Kl\(f/B) ***** (d) *** 2 (N)(P x D)2/3 (s)(h)(cos8) HA= Kl\ * * * * DEPARTMENT OF VETERANS AFFAIRS PART 178—INTACT STABILITY AND SEAWORTHINESS 55. The authority citation for part 178 is revised to read as follows: Authority: 43 U.S.C. 1333; 46 U.S.C. 2103, 3306, 3703; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; DHS Delegation No. 00170.1, Revision No. 01.3. § 178.450 Change in Rates VA Pays for Special Modes of Transportation ACTION: 56. In § 178.450(a), remove the text ‘‘Basis Drainage’’ and add, in its place, the text ‘‘Basic Drainage’’. Dated: January 25, 2023. Michael Cunningham, Chief, Office of Regulations and Administrative Law. [FR Doc. 2023–01938 Filed 2–15–23; 8:45 am] BILLING CODE 9110–04–P VerDate Sep<11>2014 19:15 Feb 15, 2023 Jkt 259001 Department of Veterans Affairs. Final rule. The Department of Veterans Affairs (VA) amends its beneficiary travel regulations to establish a new payment methodology for special modes of transportation. The new payment methodology will apply in the absence of a contract between VA and a vendor of the special mode of transportation. For transport by ambulance, VA will pay the lesser of the actual charge or the amount determined by the Medicare Part B Ambulance Fee Schedule established by the Centers for Medicare and Medicaid Services. For travel by modes other than ambulance, VA will establish a payment methodology based SUMMARY: PO 00000 Frm 00022 Fmt 4700 Ben Williams, Director, Veterans Transportation Program (15MEM), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (404) 828–5691. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: Pursuant to section 111 of title 38 United States Code (U.S.C.), VA provides beneficiary travel benefits to eligible individuals who need to travel in connection with vocational rehabilitation, counseling required by the Secretary pursuant to chapter 34 or 35 of Title 38, U.S.C., or for the purpose of examination, treatment, or care. Regulations governing beneficiary travel benefits provided by the Veterans Health Administration (VHA) are in part 70 of title 38 Code of Federal Regulations (CFR). Under part 70, VA has established limiting criteria to pay for a FOR FURTHER INFORMATION CONTACT: RIN 2900–AP89 AGENCY: The rule is effective February 16, 2024. [Amended] ■ lotter on DSK11XQN23PROD with RULES1 DATES: 38 CFR Part 70 ■ on States’ posted rates or the actual charge. Sfmt 4700 E:\FR\FM\16FER1.SGM 16FER1 ER16FE23.015</GPH> * Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Rules and Regulations lotter on DSK11XQN23PROD with RULES1 ‘‘special mode of transportation’’ when that travel is medically required, the beneficiary is unable to defray the cost of that transportation, and VHA approved the travel in advance or the travel was undertaken in connection with a medical emergency. See 38 CFR 70.2 (defining the term ‘‘[s]pecial mode of transportation’’), and 38 CFR 70.4(d) (establishing criteria for approval of special mode travel). On November 5, 2020, VA proposed amending its beneficiary travel regulations to implement the discretionary authority in 38 U.S.C. 111(b)(3)(C), which permits VA to pay the lesser of the actual charge for ambulance transportation or the amount determined by the Centers for Medicare and Medicaid (CMS) Medicare Part B Ambulance Fee Schedule (hereafter referred to the CMS ambulance fee schedule) established under section 1834(l) of the Social Security Act (42 U.S.C. 1395m(l)), unless VA has entered into a contract for that transportation. Additionally, VA proposed to establish a payment methodology for other types of special modes of transportation, including wheelchair and stretcher van services, which would be used while VA collects data for the purpose of developing a new payment methodology. See 85 FR 70551. We provided a 60-day comment period that ended on January 4, 2021, and we received six comments, five of which were substantive comments. Those five comments all raised similar concerns to 38 CFR 70.30(a)(4) introductory text and (a)(4)(i) and (ii) as proposed, related to using the CMS ambulance fee schedule or the posted rates from each State. We first clarify one aspect of the regulation for the commenters in general, and then address more specific concerns of the individual commenters as applicable (we note that we refer to issues raised by a ‘‘commenter’’ or ‘‘commenters’’ below). Based on the summary and responses below, we adopt the proposed rule as final with two nonsubstantive changes. After the close of the comment period, VA received several Congressional letters that expressed some concerns also raised in comments. At Congress’ request, VA also attended four meetings with members of Congress and their staff between December 20, 2022, and December 22, 2022, during which VA outlined the terms of the proposed rule. General Clarification for Commenters At the outset of our responses, we note that we read the commenters’ assertions to rely on the assumption that the proposed rule would create a scenario where VA in all cases will shift VerDate Sep<11>2014 19:15 Feb 15, 2023 Jkt 259001 from paying billed charges to instead paying amounts derived from the CMS ambulance fee schedule. We first clarify that § 70.30(a)(4)(i) as proposed would only provide that VA pay the lesser of actual charges or the rates determined under the CMS ambulance fee schedule if VA has not otherwise entered into a contract with a vendor of special mode transportation (to include ambulance transport) as provided in § 70.30(a)(4) as proposed. Therefore, VA’s payment of rates as determined under the CMS ambulance fee schedule, to the extent they would be lesser than actual charges under § 70.30(a)(4)(i) as proposed, is only enabled if VA has not otherwise entered into a contract under § 70.30(a)(4) as proposed. If VA enters into a contract under § 70.30(a)(4), such contract could provide for an agreed rate that may be different than the CMS ambulance fee schedule. Therefore, it is not an accurate assumption that in all cases VA will pay rates that result from the CMS ambulance fee schedule. We make this clarification so that our additional responses below can be understood in that context. Specific Concerns Raised by Individual Commenters One commenter asserted that VA using Medicare rates for ambulance transports is a bad idea because those rates are below what it actually costs to transport patients, and subsequently that VA would receive horrible service and veterans would suffer. Further, the commenter asserted that if a patient is not Medicare covered or is under the age of 65, the rates for ambulance transports should be higher, and that each hospital (we assume the commenter was referring to each VA medical facility) should instead enter into contracts with agreed upon rates. Regarding the assertion that Medicare rates are inadequate to cover the actual costs of ambulance transport, we do not make changes from the proposed rule. Congress granted VA the discretion in 38 U.S.C. 111(b)(3)(C) to use the CMS ambulance fee schedule as part of VA’s methodology to calculate ambulance payments, ostensibly finding such schedule to be sufficient. Further, in its most recent ambulance report, the Medicare Payment Advisory Commission (MedPAC), www.medpac.gov, found that, in aggregate, Medicare ambulance margins were adequate, and VA has no cause or expertise to challenge that finding. Regarding the assertion that VA’s use of the CMS ambulance fee schedule would result in bad service for VA and veterans, VA is not aware of, and the commenter did not provide evidence to PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 10033 demonstrate that veterans are currently receiving preferential treatment from ambulance providers by virtue of VA paying billed charges or that such preferential treatment would stop were VA to pay CMS ambulance fee schedule rates in the absence of a contract. Additionally, that assertion would assume that ambulance carriers and operators do not apply their professional certification or other standards and ethics in all cases regardless of whether an individual is a veteran, which VA does not believe to be the case. VA has no reason to doubt that the same level of ambulance services would be provided regardless of the payment source or amount of payment for ambulance services. Regarding the assertion that there should be higher rates paid for ambulance for individuals who are not covered by Medicare or who are below the age of 65, we do not make any changes from the proposed rule. VA does not adopt multiple rate structures or schedules that are dependent on age or other health insurance coverage as VA health care benefits are not private insurance. Rather, VA benefits are created by statute and administered by regulations, through which VA pays for certain services provided to individuals who meet the administrative eligibility and other clinical criteria, without regard to factors such as age. Regarding the assertion that VA medical facilities should contract for adequate rates, we do not make any changes from the proposed rule and reiterate from our responses above that VA will retain the authority in this final rule to enter into contracts with ambulance providers and pay the agreed-upon negotiated rate. We make no changes to the regulation based on this comment. One commenter, a provider of air ambulance transport, asserted that VA’s proposed change to use the CMS ambulance fee schedule would hinder their ability to continue to serve rural areas because the CMS ambulance fee schedule reimburses less than 50 percent of their operational costs, which would cause a loss of several millions of dollars for their company and would impact the rest of emergency air medical services provided throughout the United States. This commenter further asserted that, although they have submitted comments to CMS to review and adjust air ambulance rates under the CMS ambulance fee schedule, such adjustments have not occurred in a manner to keep up with increased costs in providing this transport. The commenter opined that this lack of adjustment in CMS ambulance fee schedule rates, combined with the E:\FR\FM\16FER1.SGM 16FER1 lotter on DSK11XQN23PROD with RULES1 10034 Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Rules and Regulations effects that COVID–19 has had in increasing transport costs and deteriorating their payer mix, make their provision of services less sustainable. Regarding the commenter’s assertions that the rates determined under the CMS ambulance fee schedule are inadequate and would hinder their ability to serve rural areas, and that CMS should adjust their ambulance fee schedule in any particular manner, we are not making any changes from the proposed rule. VA cannot modify or increase the CMS ambulance fee schedule rates. We further reiterate that § 70.30(a)(4) as proposed would provide VA the option to enter into a contract with a vendor of special mode transportation (to include air ambulance transport), and the terms of that contract would govern the payment rates for such transport. Such contracts could provide for a different rate as agreed, in the event that VA determined it may be justified based on local considerations, such as for rural areas, or to include any additional consideration of difficulties presented during the COVID–19 pandemic. Regarding the assertion that changes in the final rule to permit VA to pay the lesser or the billed charges or the CMS ambulance fee schedule rates would have a detrimental effect on their business we do not make changes from the proposed rule but rely on the Regulatory Flexibility Act section of the proposed rule where VA has estimated there will not be a significant economic impact on vendors of ambulance services because the potential impact per vendor has been estimated to be less than 1 percent of their annual reported receipts, using North American Industry Classification System (NAICS) Code 62910. Therefore, in addition to the ability for ambulance providers to contract with VA for potentially different rates under the final rule, VA has analyzed that any potential effect on ambulance providers would not be significant. We make no changes to the regulation based on this comment. One commenter, also a provider of air ambulance transport, more specifically asserted that indexing government reimbursement to the CMS ambulance fee schedule was a gross miscalculation that is poorly timed, as this fee schedule is flawed and cutting reimbursement rates during a global pandemic is unconscionable. This commenter urged that, rather than cutting reimbursements for air ambulance care for veterans, VA should work with the Department of Health and Human Services (HHS) to reform the CMS ambulance fee schedule to bring rates closer to actual costs of providing the service. We do not make any changes to the rule as proposed VerDate Sep<11>2014 19:15 Feb 15, 2023 Jkt 259001 based on this comment. We restate from our responses above that we believe VA’s use of this schedule is appropriate. Regarding the assertion that it is poor timing for VA to implement this change during the COVID–19 pandemic, we reiterate that § 70.30(a)(4) as proposed would provide VA the option to enter into a contract with a vendor of special mode transportation to provide for different rates as VA determines may be justified based on local considerations (for instance, to address any difficulties due to the COVID–19 pandemic). Regarding the assertion that CMS should adjust their ambulance fee schedule in any particular manner, or that VA should engage with HHS to reform this schedule, we do not make changes from the proposed rule as those subjects are beyond the scope of the proposed rule. One commenter, a trade association representing providers of air ambulance services, offered more specific data regarding the background of air ambulance transport in support of establishing actual costs, as well as background on the establishment of the CMS ambulance fee schedule in support of the assertion that the schedule has not been adjusted appropriately to keep up with actual costs. This commenter also more specifically asserted that, should VA move to parity with the CMS ambulance fee schedule, the cost of uncompensated care will only increase, furthering the increased costs shifted to commercial payors or, should those costs not be covered, leading to the increased closure of air ambulance bases, which would increasingly impact low-volume rural areas and other areas with a higher portion of Medicare and Medicaid beneficiaries, as well as VA beneficiaries. This commenter also expressed concern that any effort by the government to limit payments during the global health crisis presented by COVID–19 may be disastrous and have far-reaching consequences for the healthcare and emergency medical systems. Ultimately, this commenter urged VA to delay the implementation of this proposal and revisit the proposed changes only after appropriate data has been collected and analyzed by CMS to determine a fair reimbursement rate, and to otherwise delay any decision to limit payments to providers until the end of the COVID–19 pandemic. We do not make any changes from the proposed rule based on this commenter’s assertions. Regarding the assertions that CMS rates are inadequate, we restate that Congress granted VA the discretion in 38 U.S.C. 111(b)(3)(C) to use the CMS ambulance fee schedule as part of VA’s PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 methodology to calculate ambulance payments (ostensibly finding such schedule to be sufficient), and VA has no cause to question the most recent MedPAC report finding that Medicare ambulance margins were adequate. Regarding the assertion that VA should delay implementation of § 70.30(a)(4) until more data can be collected by CMS to adjust their ambulance fee schedule, the comment alluded to ‘‘recent legislation passed by Congress’’ that ‘‘will create a federal database of air ambulance costs which we hope will allow for CMS to modernize the current’’ ambulance fee schedule. We believe the comment may be referencing provisions of title I (No Surprises Act) and title II (Transparency) of Division BB of the Consolidated Appropriations Act (CAA), 2021 (Pub. L. 116–260). We are aware of a notice of proposed rulemaking published on September 16, 2021 (86 FR 51730), that would implement certain provisions of title I (No Surprises Act) and title II (Transparency) of Division BB of the CAA. Among other things, this proposed rule would increase transparency by requiring group health plans and health insurance issuers in the group and individual markets, and Federal Employee Health Benefits carriers, to submit certain information about air ambulance services to the Secretaries of Health and Human Services (HHS), Labor, and the Treasury, and the Director of the Office of Personnel Management, as applicable, and by requiring providers of air ambulance services to submit certain information to the Secretaries of HHS and Transportation. The information submitted under this proposed rule will include specific elements outlined in law that are necessary for HHS, along with the Department of Transportation, to develop a comprehensive public report on air ambulance services. VA does not have a clear understanding as to how this public report would be used, or whether HHS or CMS may use the report or any product of the required reporting under the proposed rule to determine (as we believe is suggested by the commenter) whether changes to the ambulance fee schedule are warranted. Because VA does not have a sense of whether changes to the CMS ambulance fee schedule could be pending as suggested by the commenter, VA will not delay the implementation of this final rule until such time as any changes to CMS ambulance rates may occur. We note that because VA is referencing the CMS fee schedule in general in this regulation and not the specific amount E:\FR\FM\16FER1.SGM 16FER1 lotter on DSK11XQN23PROD with RULES1 Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Rules and Regulations that is currently established in the CMS fee schedule, any changes to the CMS rates will be automatically applicable without the need for future rulemaking. VA will, however, delay the effective date of this final rule until February 16, 2024, to ensure that ambulance providers have adequate time to adjust to VA’s new methodology for calculating ambulance rates. Such adjustment could include ambulance providers entering into negotiations with VA to contract for payment rates different than those under the CMS fee schedule. Regarding the assertion that VA should delay implementation of § 70.30(a)(4) until the end of the COVID–19 pandemic, VA is not in a position to know when that time may be, although as stated above VA will delay the implementation of the final rule to provide additional time for vendors of special mode transportation who are concerned with the CMS fee schedule to enter into a contract with VA. Such contracts could provide for a different rate, in the event that VA determined different rates may be justified based on local considerations (to include any additional difficulties presented during the COVID–19 pandemic, or for rural areas as the commenter asserted such areas could be disproportionately affected). One commenter asserted that some of the information presented in the proposed rule would make it more difficult for patients to access transportation assistance, and specifically opposed the payment methodology in proposed § 70.30(a)(4) for travel by modes other than ambulance. The commenter noted that the problem with this methodology was that the resulting rates (given that they were available for each State) are often quoted as lower than what the actual transportation cost may be. The commenter further inquired as to what happens with any remaining balance, and whether the patient is responsible for the payment of transportation services. Ultimately, the commenter asserted that there needed to be further clarification regarding this methodology for modes of transportation other than ambulance, and that VA should continue to pay for the total cost of nonambulance transport until more data can be collected and another proposed rule submitted regarding a different methodology. Regarding the assertions of the commenter that the quoted rates per State for non-ambulance transports are lower than actual costs of such transportation, we do not make any changes from the proposed rule. Similar VerDate Sep<11>2014 19:15 Feb 15, 2023 Jkt 259001 to our responses regarding adequacy of rates for ambulance transport, we believe it is reasonable and appropriate to rely on posted rates as available per State. Using the rates posted by States ensures consistency and predictability for how much VA will pay to vendors in each State. Section 70.30(a)(4) as proposed would provide VA the option to enter into a contract with a vendor of special mode transportation (to travel by modes other than ambulance under § 70.30(a)(4)(ii) as proposed), and the terms of that contract would govern the payment rates for such transport. Such contracts could provide for a different rate in the event that VA determines that may be justified based on local considerations. We further note that, based on the Regulatory Flexibility Act section of proposed rule, VA has estimated there will not be a significant economic impact on non-ambulance vendors within NAICS Code 621999 (All Other Miscellaneous Ambulatory Health Care Services) or NAICS Code 485991 (Special Needs Transportation) because VA estimates that over 99 percent of its payments to vendors potentially covered within these NAICS Codes are made pursuant to a contract. Regarding the commenter’s inquiry related to billing by non-ambulance providers of veterans for any remaining balance after VA payment for the transport, over 99 percent of these nonambulance transports are paid for by VA under contract, and the terms of such contracts indicate that payment by VA constitutes payment in full and extinguishes any liability on the part of the individual transported. For the remaining 1 percent of non-ambulance providers that we estimate are not covered by a contract, we do not have knowledge that such providers bill veterans for any remaining balance after receipt of VA’s payment. However, if VA becomes aware of such billing of veterans for any remaining balance, we could propose an additional regulatory revision to address that issue in a future rulemaking. We do not make any changes from the proposed rule. Regarding the commenter’s request that VA delay implementation of the methodology for non-ambulance transports until more data can be collected, we will be delaying implementation of the final rule until February 16, 2024, and additional data will be obtained once this rule is implemented. We stated in the proposed rule that after utilizing this methodology for an initial 90 calendar day period after this rule becomes final in the Federal Register, VA will analyze the payments made to vendors for travel by modes other than ambulance and PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 10035 determine whether we have enough payment data (e.g., arithmetic average of actual charges, locality rates, or posted rates) to develop a new payment methodology. If VA determines that it has enough payment data, then VA will develop a payment methodology using the lowest possible rate. If VA does not have enough payment data to create a new methodology after the initial 90 calendar day period, then VA would continue to collect data for as many 90 calendar day intervals as VA would deem necessary to gather sufficient payment data, which we do not anticipate exceeding 18 months from the effective date of the final rule. Subsequently, VA would propose a new methodology for travel by modes other than ambulance in a separate rulemaking in the Federal Register. Technical Changes Not Based on Comments VA makes technical changes not based on comments. The first is to move the last sentence from § 70.30(a)(4) as proposed to instead be placed in § 70.30(a)(4)(ii)(B), which occurs after § 70.30(a)(4)(ii)(A)(3) (§ 70.30(a)(4)(ii)(C) as proposed). The new language in § 70.30(a)(4)(ii)(B) will provide that the term ‘‘posted rate’’ refers to the applicable Medicaid rate for the special mode transport in the State or States where the vendor is domiciled or where transport occurred (‘‘involved States’’). And, in the absence of a posted rate for an involved State, VA will pay the lowest among the available posted rates or the vendor’s actual charge. This is not a substantive change, but rather moving language into one location so that all interpretation of the meaning of the term ‘‘posted rate’’ in § 70.30(a)(4)(ii) is located in one place. Second, we are amending the language to capitalize the word ‘‘State’’ in the regulations affected by the proposed rule to be consistent with how VA capitalizes the word ‘‘State’’ throughout our regulations. Based on the rationale set forth in the proposed rule and in this document, we are adopting the provisions of the proposed rule as final with the changes noted above. 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). E:\FR\FM\16FER1.SGM 16FER1 10036 Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Rules and Regulations 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 rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at https:// www.regulations.gov. Regulatory Flexibility Act The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. VA estimates that this final rule will potentially impact 2,979 small entities within NAICS Code 621910 (Ambulance Services), which represents 97 percent of the total entities covered by NAICS Code 621910. However, VA assumes that all entities within NAICS Code 621910 would bear VA’s cost avoidance equally. The per entity burden is estimated to be less than 1 percent of preliminary receipts for all entities in NAICS Code 621910. VA does not believe the impact on vendors within NAICS Code 621999 (All Other Miscellaneous Ambulatory Health Care Services) or NAICS Code 485991 (Special Needs Transportation) will be significant because we do not typically pay for non-contract wheelchair or stretcher van services. Because VA estimates that over 99 percent of its payments to vendors potentially covered within NAICS Codes 621999 and 485991 are made pursuant to a contract, less than 1 percent of small entities within these NAICS Codes are estimated to be impacted by this final rule. 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. lotter on DSK11XQN23PROD with RULES1 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 final rule will have no such effect on State, local, and tribal governments, or on the private sector. VerDate Sep<11>2014 19:15 Feb 15, 2023 Jkt 259001 Paperwork Reduction Act This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521). Catalog of Federal Domestic Assistance The catalog of Federal Domestic Assistance numbers and titles affected by this document are 64.040,VHA Inpatient Medicine (C, D), 64.041, VHA Outpatient Specialty Care (C), 64.042, VHA Inpatient Surgery (C), 64.043, VHA Mental Health Residential (C), 64.044, VHA Home Care (C), 64.045, VHA Outpatient Ancillary Services (C), 64.046, VHA Inpatient Psychiatry (C), 64.047, VHA Primary Care (C), 64.048, VHA Mental Health clinics (C), 64.049, VHA Community Living Center (C), 64.050, VHA Diagnostic Care (C). Congressional Review Act Pursuant to the Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2). List of Subjects in 38 CFR Part 70 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 Denis McDonough, Secretary of Veterans Affairs, approved this document on February 6, 2023, 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. Consuela Benjamin, Regulation Development Coordinator 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 amends 38 CFR part 70 as follows: PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 PART 70—VETERANS TRANSPORTATION PROGRAMS 1. The authority citation for part 70 is revised to read as follows: ■ Authority: 38 U.S.C. 101, 111, 111A, 501, 1701, 1714, 1720, 1728, 1782, and 1783; E.O. 11302, 31 FR 11741, 3 CFR, 1966–1970 Comp., p. 578; and E.O. 13520, 74 FR 62201, 3 CFR, 2009 Comp., p. 274. 2. In § 70.2, add a definition for ‘‘Ambulance’’ in alphabetical order to read as follows: ■ § 70.2 Definitions. * * * * * Ambulance, as used in this subpart, means advanced life support, level 1 (ALS1); advanced life support, level 2 (ALS2); basic life support (BLS); fixed wing air ambulance (FW); rotary wing air ambulance (RW); and specialty care transport (SCT), as those terms are defined in 42 CFR 414.605. * * * * * ■ 3. In § 70.30 revise paragraph (a)(4) to read as follows: § 70.30 Payment principles. (a) * * * (4) VA payments for special modes of transportation will be made in accordance with this section, unless VA has entered into a contract with the vendor in which case the terms of the contract will govern VA payments. This section applies notwithstanding 38 CFR 17.55 and 17.56 for purposes of 38 CFR 17.120. (i) Travel by ambulance. VA will pay the lesser of the actual charge for ambulance transportation or the amount determined by the fee schedule established under section 1834(l) of the Social Security Act (42 U.S.C. 1395m(l)). (ii) Travel by modes other than ambulance. (A) VA will pay the lesser of: (1) The vendor’s actual charge. (2) The posted rate in the State where the vendor is domiciled. If the vendor is domiciled in more than one State, the lowest posted rate among all involved States. (3) The posted rate in the State where transport occurred. If transport occurred in more than one State, the lowest posted rate among all involved States. (B) The term ‘‘posted rate’’ refers to the applicable Medicaid rate for the special mode transport in the State or States where the vendor is domiciled or where transport occurred (‘‘involved States’’). In the absence of a posted rate for an involved State, VA will pay the lowest among the available posted rates or the vendor’s actual charge. * * * * * E:\FR\FM\16FER1.SGM 16FER1 Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 / Rules and Regulations §§ 70.1, 70.2, 70.3, 70.4, 70.10, 70.20, 70.21, 70.30, 70.31, 70.32, 70.40, 70.41, 70.42, 70.50, 70.70, 70.71, 70.72, 70.73 [Amended] 4. Part 70 is further amended in the following sections by removing the parenthetical authority citation at the end of the section: ■ a. Section 70.1. ■ b. Section 70.2. ■ c. Section 70.3. ■ d. Section 70.4. ■ e. Section 70.10. ■ f. Section 70.20. ■ g. Section 70.21. ■ h. Section 70.30. ■ i. Section 70.31. ■ j. Section 70.32. ■ k. Section 70.40. ■ l. Section 70.41. ■ m. Section 70.42. ■ n. Section 70.50. ■ o. Section 70.70. ■ p. Section 70.71. ■ q. Section 70.72. ■ r. Section 70.73. ■ [FR Doc. 2023–03013 Filed 2–15–23; 8:45 am] BILLING CODE 8320–01–P POSTAL REGULATORY COMMISSION 39 CFR Part 3055 [Docket No. RM2022–7; Order No. 6439] RIN 3211–AA32 Reporting of Service Performance Postal Regulatory Commission. Final rule. AGENCY: ACTION: This Commission adopts rules which revise the Postal Service’s service performance reporting requirements and includes additions required by recent postal legislation. DATES: This rule is effective March 20, 2023. ADDRESSES: For additional information, Order No. 6439 can be accessed electronically through the Commission’s website at https://www.prc.gov. FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at 202–789–6820. SUPPLEMENTARY INFORMATION: SUMMARY: Table of Contents lotter on DSK11XQN23PROD with RULES1 I. Relevant Statutory Requirements II. Background III. Basis and Purpose of Final Rules I. Relevant Statutory Requirements Section 3652(e)(1) of title 39 of the United States Code requires the Commission to prescribe the content and form of the public reports that the Postal Service files with the VerDate Sep<11>2014 19:15 Feb 15, 2023 Jkt 259001 Commission. 39 U.S.C. 3652(e)(1). In doing so, the Commission must attempt to provide the public with timely information that is adequate to allow it to assess the lawfulness of Postal Service rates, should attempt to avoid unnecessary or unwarranted Postal Service effort and expense, and must endeavor to protect the confidentiality of commercially sensitive information. See id. The Commission may initiate proceedings to improve the quality, accuracy, or completeness of Postal Service reporting whenever it determines that the service performance data have become significantly inadequate, could be significantly improved, or otherwise require revision as necessitated by the public interest. 39 U.S.C. 3652(e)(2). Additionally, section 3692 directs the Postal Service to develop and maintain a publicly available online ‘‘dashboard’’ that provides weekly service performance data for Market Dominant products and mandates that the Commission provide reporting requirements for this Postal Service dashboard as well as ‘‘recommendations for any modifications to the Postal Service’s measurement systems necessary to measure and publish the performance information’’ located on the dashboard. 39 U.S.C. 3692(b)(2), (c). The Postal Service is also authorized to provide certain nonpostal services to the public and other Governmental agencies and consequently required to periodically report the quality of service for these nonpostal services. See 39 U.S.C. 3703–3705. 10037 6160 at 5–6. The Commission also solicited comments on how best to effectuate the statutes requiring the Postal Service to report on nonpostal products and implement a performance dashboard. Id. at 6–8. The Commission received a wide range of comments in response to Order No. 6160, both discussing the suggested revisions and proposing additional amendments to the reporting requirements. In response, on September 21, 2022, the Commission issued Order No. 6275, revising the previously-proposed reporting requirements, presenting the requirements as draft regulations, and providing another opportunity for interested persons to comment.2 Again, the Commission received a variety of comments in response. II. Background Pursuant to 39 U.S.C. 503, 3652, 3653, 3692 and 3705, the Commission initiated Docket No. RM2022–7 to update the service performance reporting requirements codified in 39 CFR part 3055 and make the aforementioned additions for dashboard and nonpostal product reporting. On April 26, 2022, the Commission issued Order No. 6160, proposing several modifications to the reporting requirements, providing an opportunity for interested persons to comment, and appointing a Public Representative.1 Included among these suggested modifications were proposals to require the Postal Service to report average actual days to delivery and point impact data, information regarding the performance for each national operating plan target, and data about mail excluded from measurement. Order No. III. Basis and Purpose of Final Rules After reviewing the commenters’ suggestions and analysis, the Commission issues the following revisions to the rules proposed in Order No. 6275. Most rules have not been changed substantively; those that have are addressed below. First, proposed § 3055.2(m)—which relates to required annual reporting on the Postal Service’s Site-Specific Operating Plan (SSOP)—is revised to state that the Postal Service must provide a description of each SSOP, including operation completion time performance for each SSOP measurement category. Second, proposed § 3055.21—which specifies the annual service performance reporting requirements for the Postal Service—is revised so that proposed § 3055.21(b) specifies that the Postal Service need not identify point impact data for USPS Marketing Mail Every Door Direct Mail or USPS Marketing Mail Destination Delivery Unit Entry Saturation Flats. Third, proposed § 3055.25—which describes the reporting requirements for nonpostal services—is revised to specify that the Postal Service provide the measure of the quality of service for nonpostal service products annually. Additionally, paragraph (b) is added to specify that the Postal Service may report service performance in a qualitative manner where the quality of nonpostal service itself cannot be measured using on-time service performance. Paragraph (c) is also added to specify that quality of service performance for interagency agreements shall be reported for the program as a 1 Advance Notice of Proposed Rulemaking to Revise Periodic Reporting of Service Performance, April 26, 2022 (Order No. 6160). 2 Notice of Proposed Rulemaking to Revise Periodic Reporting of Service Performance, September 21, 2022 (Order No. 6275). PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\16FER1.SGM 16FER1

Agencies

DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 88, Number 32 (Thursday, February 16, 2023)]
[Rules and Regulations]
[Pages 10032-10037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03013]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 70

RIN 2900-AP89


Change in Rates VA Pays for Special Modes of Transportation

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its beneficiary 
travel regulations to establish a new payment methodology for special 
modes of transportation. The new payment methodology will apply in the 
absence of a contract between VA and a vendor of the special mode of 
transportation. For transport by ambulance, VA will pay the lesser of 
the actual charge or the amount determined by the Medicare Part B 
Ambulance Fee Schedule established by the Centers for Medicare and 
Medicaid Services. For travel by modes other than ambulance, VA will 
establish a payment methodology based on States' posted rates or the 
actual charge.

DATES:  The rule is effective February 16, 2024.

FOR FURTHER INFORMATION CONTACT: Ben Williams, Director, Veterans 
Transportation Program (15MEM), Veterans Health Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 
20420, (404) 828-5691. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Pursuant to section 111 of title 38 United 
States Code (U.S.C.), VA provides beneficiary travel benefits to 
eligible individuals who need to travel in connection with vocational 
rehabilitation, counseling required by the Secretary pursuant to 
chapter 34 or 35 of Title 38, U.S.C., or for the purpose of 
examination, treatment, or care. Regulations governing beneficiary 
travel benefits provided by the Veterans Health Administration (VHA) 
are in part 70 of title 38 Code of Federal Regulations (CFR). Under 
part 70, VA has established limiting criteria to pay for a

[[Page 10033]]

``special mode of transportation'' when that travel is medically 
required, the beneficiary is unable to defray the cost of that 
transportation, and VHA approved the travel in advance or the travel 
was undertaken in connection with a medical emergency. See 38 CFR 70.2 
(defining the term ``[s]pecial mode of transportation''), and 38 CFR 
70.4(d) (establishing criteria for approval of special mode travel).
    On November 5, 2020, VA proposed amending its beneficiary travel 
regulations to implement the discretionary authority in 38 U.S.C. 
111(b)(3)(C), which permits VA to pay the lesser of the actual charge 
for ambulance transportation or the amount determined by the Centers 
for Medicare and Medicaid (CMS) Medicare Part B Ambulance Fee Schedule 
(hereafter referred to the CMS ambulance fee schedule) established 
under section 1834(l) of the Social Security Act (42 U.S.C. 1395m(l)), 
unless VA has entered into a contract for that transportation. 
Additionally, VA proposed to establish a payment methodology for other 
types of special modes of transportation, including wheelchair and 
stretcher van services, which would be used while VA collects data for 
the purpose of developing a new payment methodology. See 85 FR 70551. 
We provided a 60-day comment period that ended on January 4, 2021, and 
we received six comments, five of which were substantive comments. 
Those five comments all raised similar concerns to 38 CFR 70.30(a)(4) 
introductory text and (a)(4)(i) and (ii) as proposed, related to using 
the CMS ambulance fee schedule or the posted rates from each State. We 
first clarify one aspect of the regulation for the commenters in 
general, and then address more specific concerns of the individual 
commenters as applicable (we note that we refer to issues raised by a 
``commenter'' or ``commenters'' below). Based on the summary and 
responses below, we adopt the proposed rule as final with two 
nonsubstantive changes.
    After the close of the comment period, VA received several 
Congressional letters that expressed some concerns also raised in 
comments. At Congress' request, VA also attended four meetings with 
members of Congress and their staff between December 20, 2022, and 
December 22, 2022, during which VA outlined the terms of the proposed 
rule.

General Clarification for Commenters

    At the outset of our responses, we note that we read the 
commenters' assertions to rely on the assumption that the proposed rule 
would create a scenario where VA in all cases will shift from paying 
billed charges to instead paying amounts derived from the CMS ambulance 
fee schedule. We first clarify that Sec.  70.30(a)(4)(i) as proposed 
would only provide that VA pay the lesser of actual charges or the 
rates determined under the CMS ambulance fee schedule if VA has not 
otherwise entered into a contract with a vendor of special mode 
transportation (to include ambulance transport) as provided in Sec.  
70.30(a)(4) as proposed. Therefore, VA's payment of rates as determined 
under the CMS ambulance fee schedule, to the extent they would be 
lesser than actual charges under Sec.  70.30(a)(4)(i) as proposed, is 
only enabled if VA has not otherwise entered into a contract under 
Sec.  70.30(a)(4) as proposed. If VA enters into a contract under Sec.  
70.30(a)(4), such contract could provide for an agreed rate that may be 
different than the CMS ambulance fee schedule. Therefore, it is not an 
accurate assumption that in all cases VA will pay rates that result 
from the CMS ambulance fee schedule. We make this clarification so that 
our additional responses below can be understood in that context.

Specific Concerns Raised by Individual Commenters

    One commenter asserted that VA using Medicare rates for ambulance 
transports is a bad idea because those rates are below what it actually 
costs to transport patients, and subsequently that VA would receive 
horrible service and veterans would suffer. Further, the commenter 
asserted that if a patient is not Medicare covered or is under the age 
of 65, the rates for ambulance transports should be higher, and that 
each hospital (we assume the commenter was referring to each VA medical 
facility) should instead enter into contracts with agreed upon rates.
    Regarding the assertion that Medicare rates are inadequate to cover 
the actual costs of ambulance transport, we do not make changes from 
the proposed rule. Congress granted VA the discretion in 38 U.S.C. 
111(b)(3)(C) to use the CMS ambulance fee schedule as part of VA's 
methodology to calculate ambulance payments, ostensibly finding such 
schedule to be sufficient. Further, in its most recent ambulance 
report, the Medicare Payment Advisory Commission (MedPAC), 
www.medpac.gov, found that, in aggregate, Medicare ambulance margins 
were adequate, and VA has no cause or expertise to challenge that 
finding. Regarding the assertion that VA's use of the CMS ambulance fee 
schedule would result in bad service for VA and veterans, VA is not 
aware of, and the commenter did not provide evidence to demonstrate 
that veterans are currently receiving preferential treatment from 
ambulance providers by virtue of VA paying billed charges or that such 
preferential treatment would stop were VA to pay CMS ambulance fee 
schedule rates in the absence of a contract. Additionally, that 
assertion would assume that ambulance carriers and operators do not 
apply their professional certification or other standards and ethics in 
all cases regardless of whether an individual is a veteran, which VA 
does not believe to be the case. VA has no reason to doubt that the 
same level of ambulance services would be provided regardless of the 
payment source or amount of payment for ambulance services.
    Regarding the assertion that there should be higher rates paid for 
ambulance for individuals who are not covered by Medicare or who are 
below the age of 65, we do not make any changes from the proposed rule. 
VA does not adopt multiple rate structures or schedules that are 
dependent on age or other health insurance coverage as VA health care 
benefits are not private insurance. Rather, VA benefits are created by 
statute and administered by regulations, through which VA pays for 
certain services provided to individuals who meet the administrative 
eligibility and other clinical criteria, without regard to factors such 
as age. Regarding the assertion that VA medical facilities should 
contract for adequate rates, we do not make any changes from the 
proposed rule and reiterate from our responses above that VA will 
retain the authority in this final rule to enter into contracts with 
ambulance providers and pay the agreed-upon negotiated rate. We make no 
changes to the regulation based on this comment.
    One commenter, a provider of air ambulance transport, asserted that 
VA's proposed change to use the CMS ambulance fee schedule would hinder 
their ability to continue to serve rural areas because the CMS 
ambulance fee schedule reimburses less than 50 percent of their 
operational costs, which would cause a loss of several millions of 
dollars for their company and would impact the rest of emergency air 
medical services provided throughout the United States. This commenter 
further asserted that, although they have submitted comments to CMS to 
review and adjust air ambulance rates under the CMS ambulance fee 
schedule, such adjustments have not occurred in a manner to keep up 
with increased costs in providing this transport. The commenter opined 
that this lack of adjustment in CMS ambulance fee schedule rates, 
combined with the

[[Page 10034]]

effects that COVID-19 has had in increasing transport costs and 
deteriorating their payer mix, make their provision of services less 
sustainable.
    Regarding the commenter's assertions that the rates determined 
under the CMS ambulance fee schedule are inadequate and would hinder 
their ability to serve rural areas, and that CMS should adjust their 
ambulance fee schedule in any particular manner, we are not making any 
changes from the proposed rule. VA cannot modify or increase the CMS 
ambulance fee schedule rates. We further reiterate that Sec.  
70.30(a)(4) as proposed would provide VA the option to enter into a 
contract with a vendor of special mode transportation (to include air 
ambulance transport), and the terms of that contract would govern the 
payment rates for such transport. Such contracts could provide for a 
different rate as agreed, in the event that VA determined it may be 
justified based on local considerations, such as for rural areas, or to 
include any additional consideration of difficulties presented during 
the COVID-19 pandemic. Regarding the assertion that changes in the 
final rule to permit VA to pay the lesser or the billed charges or the 
CMS ambulance fee schedule rates would have a detrimental effect on 
their business we do not make changes from the proposed rule but rely 
on the Regulatory Flexibility Act section of the proposed rule where VA 
has estimated there will not be a significant economic impact on 
vendors of ambulance services because the potential impact per vendor 
has been estimated to be less than 1 percent of their annual reported 
receipts, using North American Industry Classification System (NAICS) 
Code 62910. Therefore, in addition to the ability for ambulance 
providers to contract with VA for potentially different rates under the 
final rule, VA has analyzed that any potential effect on ambulance 
providers would not be significant. We make no changes to the 
regulation based on this comment.
    One commenter, also a provider of air ambulance transport, more 
specifically asserted that indexing government reimbursement to the CMS 
ambulance fee schedule was a gross miscalculation that is poorly timed, 
as this fee schedule is flawed and cutting reimbursement rates during a 
global pandemic is unconscionable. This commenter urged that, rather 
than cutting reimbursements for air ambulance care for veterans, VA 
should work with the Department of Health and Human Services (HHS) to 
reform the CMS ambulance fee schedule to bring rates closer to actual 
costs of providing the service. We do not make any changes to the rule 
as proposed based on this comment. We restate from our responses above 
that we believe VA's use of this schedule is appropriate. Regarding the 
assertion that it is poor timing for VA to implement this change during 
the COVID-19 pandemic, we reiterate that Sec.  70.30(a)(4) as proposed 
would provide VA the option to enter into a contract with a vendor of 
special mode transportation to provide for different rates as VA 
determines may be justified based on local considerations (for 
instance, to address any difficulties due to the COVID-19 pandemic). 
Regarding the assertion that CMS should adjust their ambulance fee 
schedule in any particular manner, or that VA should engage with HHS to 
reform this schedule, we do not make changes from the proposed rule as 
those subjects are beyond the scope of the proposed rule.
    One commenter, a trade association representing providers of air 
ambulance services, offered more specific data regarding the background 
of air ambulance transport in support of establishing actual costs, as 
well as background on the establishment of the CMS ambulance fee 
schedule in support of the assertion that the schedule has not been 
adjusted appropriately to keep up with actual costs. This commenter 
also more specifically asserted that, should VA move to parity with the 
CMS ambulance fee schedule, the cost of uncompensated care will only 
increase, furthering the increased costs shifted to commercial payors 
or, should those costs not be covered, leading to the increased closure 
of air ambulance bases, which would increasingly impact low-volume 
rural areas and other areas with a higher portion of Medicare and 
Medicaid beneficiaries, as well as VA beneficiaries. This commenter 
also expressed concern that any effort by the government to limit 
payments during the global health crisis presented by COVID-19 may be 
disastrous and have far-reaching consequences for the healthcare and 
emergency medical systems. Ultimately, this commenter urged VA to delay 
the implementation of this proposal and revisit the proposed changes 
only after appropriate data has been collected and analyzed by CMS to 
determine a fair reimbursement rate, and to otherwise delay any 
decision to limit payments to providers until the end of the COVID-19 
pandemic.
    We do not make any changes from the proposed rule based on this 
commenter's assertions. Regarding the assertions that CMS rates are 
inadequate, we restate that Congress granted VA the discretion in 38 
U.S.C. 111(b)(3)(C) to use the CMS ambulance fee schedule as part of 
VA's methodology to calculate ambulance payments (ostensibly finding 
such schedule to be sufficient), and VA has no cause to question the 
most recent MedPAC report finding that Medicare ambulance margins were 
adequate.
    Regarding the assertion that VA should delay implementation of 
Sec.  70.30(a)(4) until more data can be collected by CMS to adjust 
their ambulance fee schedule, the comment alluded to ``recent 
legislation passed by Congress'' that ``will create a federal database 
of air ambulance costs which we hope will allow for CMS to modernize 
the current'' ambulance fee schedule. We believe the comment may be 
referencing provisions of title I (No Surprises Act) and title II 
(Transparency) of Division BB of the Consolidated Appropriations Act 
(CAA), 2021 (Pub. L. 116-260). We are aware of a notice of proposed 
rulemaking published on September 16, 2021 (86 FR 51730), that would 
implement certain provisions of title I (No Surprises Act) and title II 
(Transparency) of Division BB of the CAA. Among other things, this 
proposed rule would increase transparency by requiring group health 
plans and health insurance issuers in the group and individual markets, 
and Federal Employee Health Benefits carriers, to submit certain 
information about air ambulance services to the Secretaries of Health 
and Human Services (HHS), Labor, and the Treasury, and the Director of 
the Office of Personnel Management, as applicable, and by requiring 
providers of air ambulance services to submit certain information to 
the Secretaries of HHS and Transportation. The information submitted 
under this proposed rule will include specific elements outlined in law 
that are necessary for HHS, along with the Department of 
Transportation, to develop a comprehensive public report on air 
ambulance services. VA does not have a clear understanding as to how 
this public report would be used, or whether HHS or CMS may use the 
report or any product of the required reporting under the proposed rule 
to determine (as we believe is suggested by the commenter) whether 
changes to the ambulance fee schedule are warranted.
    Because VA does not have a sense of whether changes to the CMS 
ambulance fee schedule could be pending as suggested by the commenter, 
VA will not delay the implementation of this final rule until such time 
as any changes to CMS ambulance rates may occur. We note that because 
VA is referencing the CMS fee schedule in general in this regulation 
and not the specific amount

[[Page 10035]]

that is currently established in the CMS fee schedule, any changes to 
the CMS rates will be automatically applicable without the need for 
future rulemaking. VA will, however, delay the effective date of this 
final rule until February 16, 2024, to ensure that ambulance providers 
have adequate time to adjust to VA's new methodology for calculating 
ambulance rates. Such adjustment could include ambulance providers 
entering into negotiations with VA to contract for payment rates 
different than those under the CMS fee schedule.
    Regarding the assertion that VA should delay implementation of 
Sec.  70.30(a)(4) until the end of the COVID-19 pandemic, VA is not in 
a position to know when that time may be, although as stated above VA 
will delay the implementation of the final rule to provide additional 
time for vendors of special mode transportation who are concerned with 
the CMS fee schedule to enter into a contract with VA. Such contracts 
could provide for a different rate, in the event that VA determined 
different rates may be justified based on local considerations (to 
include any additional difficulties presented during the COVID-19 
pandemic, or for rural areas as the commenter asserted such areas could 
be disproportionately affected).
    One commenter asserted that some of the information presented in 
the proposed rule would make it more difficult for patients to access 
transportation assistance, and specifically opposed the payment 
methodology in proposed Sec.  70.30(a)(4) for travel by modes other 
than ambulance. The commenter noted that the problem with this 
methodology was that the resulting rates (given that they were 
available for each State) are often quoted as lower than what the 
actual transportation cost may be. The commenter further inquired as to 
what happens with any remaining balance, and whether the patient is 
responsible for the payment of transportation services. Ultimately, the 
commenter asserted that there needed to be further clarification 
regarding this methodology for modes of transportation other than 
ambulance, and that VA should continue to pay for the total cost of 
non-ambulance transport until more data can be collected and another 
proposed rule submitted regarding a different methodology.
    Regarding the assertions of the commenter that the quoted rates per 
State for non-ambulance transports are lower than actual costs of such 
transportation, we do not make any changes from the proposed rule. 
Similar to our responses regarding adequacy of rates for ambulance 
transport, we believe it is reasonable and appropriate to rely on 
posted rates as available per State. Using the rates posted by States 
ensures consistency and predictability for how much VA will pay to 
vendors in each State. Section 70.30(a)(4) as proposed would provide VA 
the option to enter into a contract with a vendor of special mode 
transportation (to travel by modes other than ambulance under Sec.  
70.30(a)(4)(ii) as proposed), and the terms of that contract would 
govern the payment rates for such transport. Such contracts could 
provide for a different rate in the event that VA determines that may 
be justified based on local considerations. We further note that, based 
on the Regulatory Flexibility Act section of proposed rule, VA has 
estimated there will not be a significant economic impact on non-
ambulance vendors within NAICS Code 621999 (All Other Miscellaneous 
Ambulatory Health Care Services) or NAICS Code 485991 (Special Needs 
Transportation) because VA estimates that over 99 percent of its 
payments to vendors potentially covered within these NAICS Codes are 
made pursuant to a contract.
    Regarding the commenter's inquiry related to billing by non-
ambulance providers of veterans for any remaining balance after VA 
payment for the transport, over 99 percent of these non-ambulance 
transports are paid for by VA under contract, and the terms of such 
contracts indicate that payment by VA constitutes payment in full and 
extinguishes any liability on the part of the individual transported. 
For the remaining 1 percent of non-ambulance providers that we estimate 
are not covered by a contract, we do not have knowledge that such 
providers bill veterans for any remaining balance after receipt of VA's 
payment. However, if VA becomes aware of such billing of veterans for 
any remaining balance, we could propose an additional regulatory 
revision to address that issue in a future rulemaking. We do not make 
any changes from the proposed rule.
    Regarding the commenter's request that VA delay implementation of 
the methodology for non-ambulance transports until more data can be 
collected, we will be delaying implementation of the final rule until 
February 16, 2024, and additional data will be obtained once this rule 
is implemented. We stated in the proposed rule that after utilizing 
this methodology for an initial 90 calendar day period after this rule 
becomes final in the Federal Register, VA will analyze the payments 
made to vendors for travel by modes other than ambulance and determine 
whether we have enough payment data (e.g., arithmetic average of actual 
charges, locality rates, or posted rates) to develop a new payment 
methodology. If VA determines that it has enough payment data, then VA 
will develop a payment methodology using the lowest possible rate. If 
VA does not have enough payment data to create a new methodology after 
the initial 90 calendar day period, then VA would continue to collect 
data for as many 90 calendar day intervals as VA would deem necessary 
to gather sufficient payment data, which we do not anticipate exceeding 
18 months from the effective date of the final rule. Subsequently, VA 
would propose a new methodology for travel by modes other than 
ambulance in a separate rulemaking in the Federal Register.

Technical Changes Not Based on Comments

    VA makes technical changes not based on comments. The first is to 
move the last sentence from Sec.  70.30(a)(4) as proposed to instead be 
placed in Sec.  70.30(a)(4)(ii)(B), which occurs after Sec.  
70.30(a)(4)(ii)(A)(3) (Sec.  70.30(a)(4)(ii)(C) as proposed). The new 
language in Sec.  70.30(a)(4)(ii)(B) will provide that the term 
``posted rate'' refers to the applicable Medicaid rate for the special 
mode transport in the State or States where the vendor is domiciled or 
where transport occurred (``involved States''). And, in the absence of 
a posted rate for an involved State, VA will pay the lowest among the 
available posted rates or the vendor's actual charge. This is not a 
substantive change, but rather moving language into one location so 
that all interpretation of the meaning of the term ``posted rate'' in 
Sec.  70.30(a)(4)(ii) is located in one place.
    Second, we are amending the language to capitalize the word 
``State'' in the regulations affected by the proposed rule to be 
consistent with how VA capitalizes the word ``State'' throughout our 
regulations.
    Based on the rationale set forth in the proposed rule and in this 
document, we are adopting the provisions of the proposed rule as final 
with the changes noted above.

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).

[[Page 10036]]

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 
rule is not a significant regulatory action under Executive Order 
12866. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at https://www.regulations.gov.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. VA estimates that this final rule will potentially impact 2,979 
small entities within NAICS Code 621910 (Ambulance Services), which 
represents 97 percent of the total entities covered by NAICS Code 
621910. However, VA assumes that all entities within NAICS Code 621910 
would bear VA's cost avoidance equally. The per entity burden is 
estimated to be less than 1 percent of preliminary receipts for all 
entities in NAICS Code 621910.
    VA does not believe the impact on vendors within NAICS Code 621999 
(All Other Miscellaneous Ambulatory Health Care Services) or NAICS Code 
485991 (Special Needs Transportation) will be significant because we do 
not typically pay for non-contract wheelchair or stretcher van 
services. Because VA estimates that over 99 percent of its payments to 
vendors potentially covered within NAICS Codes 621999 and 485991 are 
made pursuant to a contract, less than 1 percent of small entities 
within these NAICS Codes are estimated to be impacted by this final 
rule. 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 final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

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

Catalog of Federal Domestic Assistance

    The catalog of Federal Domestic Assistance numbers and titles 
affected by this document are 64.040,VHA Inpatient Medicine (C, D), 
64.041, VHA Outpatient Specialty Care (C), 64.042, VHA Inpatient 
Surgery (C), 64.043, VHA Mental Health Residential (C), 64.044, VHA 
Home Care (C), 64.045, VHA Outpatient Ancillary Services (C), 64.046, 
VHA Inpatient Psychiatry (C), 64.047, VHA Primary Care (C), 64.048, VHA 
Mental Health clinics (C), 64.049, VHA Community Living Center (C), 
64.050, VHA Diagnostic Care (C).

Congressional Review Act

    Pursuant to the Subtitle E of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (known as the Congressional Review 
Act) (5 U.S.C. 801 et seq.), the Office of Information and Regulatory 
Affairs designated this rule as not a major rule, as defined by 5 
U.S.C. 804(2).

List of Subjects in 38 CFR Part 70

    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

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on February 6, 2023, 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.

Consuela Benjamin,
Regulation Development Coordinator 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 amends 38 CFR part 70 as follows:

PART 70--VETERANS TRANSPORTATION PROGRAMS

0
1. The authority citation for part 70 is revised to read as follows:

    Authority: 38 U.S.C. 101, 111, 111A, 501, 1701, 1714, 1720, 
1728, 1782, and 1783; E.O. 11302, 31 FR 11741, 3 CFR, 1966-1970 
Comp., p. 578; and E.O. 13520, 74 FR 62201, 3 CFR, 2009 Comp., p. 
274.


0
2. In Sec.  70.2, add a definition for ``Ambulance'' in alphabetical 
order to read as follows:


Sec.  70.2   Definitions.

* * * * *
    Ambulance, as used in this subpart, means advanced life support, 
level 1 (ALS1); advanced life support, level 2 (ALS2); basic life 
support (BLS); fixed wing air ambulance (FW); rotary wing air ambulance 
(RW); and specialty care transport (SCT), as those terms are defined in 
42 CFR 414.605.
* * * * *

0
3. In Sec.  70.30 revise paragraph (a)(4) to read as follows:


Sec.  70.30   Payment principles.

    (a) * * *
    (4) VA payments for special modes of transportation will be made in 
accordance with this section, unless VA has entered into a contract 
with the vendor in which case the terms of the contract will govern VA 
payments. This section applies notwithstanding 38 CFR 17.55 and 17.56 
for purposes of 38 CFR 17.120.
    (i) Travel by ambulance. VA will pay the lesser of the actual 
charge for ambulance transportation or the amount determined by the fee 
schedule established under section 1834(l) of the Social Security Act 
(42 U.S.C. 1395m(l)).
    (ii) Travel by modes other than ambulance. (A) VA will pay the 
lesser of:
    (1) The vendor's actual charge.
    (2) The posted rate in the State where the vendor is domiciled. If 
the vendor is domiciled in more than one State, the lowest posted rate 
among all involved States.
    (3) The posted rate in the State where transport occurred. If 
transport occurred in more than one State, the lowest posted rate among 
all involved States.
    (B) The term ``posted rate'' refers to the applicable Medicaid rate 
for the special mode transport in the State or States where the vendor 
is domiciled or where transport occurred (``involved States''). In the 
absence of a posted rate for an involved State, VA will pay the lowest 
among the available posted rates or the vendor's actual charge.
* * * * *

[[Page 10037]]

Sec. Sec.  70.1, 70.2, 70.3, 70.4, 70.10, 70.20, 70.21, 70.30, 70.31, 
70.32, 70.40, 70.41, 70.42, 70.50, 70.70, 70.71, 70.72, 70.73   
[Amended]

0
4. Part 70 is further amended in the following sections by removing the 
parenthetical authority citation at the end of the section:
0
a. Section 70.1.
0
b. Section 70.2.
0
c. Section 70.3.
0
d. Section 70.4.
0
e. Section 70.10.
0
f. Section 70.20.
0
g. Section 70.21.
0
h. Section 70.30.
0
i. Section 70.31.
0
j. Section 70.32.
0
k. Section 70.40.
0
l. Section 70.41.
0
m. Section 70.42.
0
n. Section 70.50.
0
o. Section 70.70.
0
p. Section 70.71.
0
q. Section 70.72.
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r. Section 70.73.

[FR Doc. 2023-03013 Filed 2-15-23; 8:45 am]
BILLING CODE 8320-01-P

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