Reimbursement for Emergency Treatment, 10835-10842 [2023-03339]
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10835
Rules and Regulations
Federal Register
Vol. 88, No. 35
Wednesday, February 22, 2023
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 17
RIN 2900–AQ08
Reimbursement for Emergency
Treatment
Department of Veterans Affairs.
Final rule with comments.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) is finalizing, with some
changes, an interim final rule that
amended its medical regulations
concerning payment or reimbursement
for emergency treatment for non-serviceconnected conditions at non-VA
(community) facilities. This final rule
responds to public comments received
on the interim final rule and amends
VA’s emergency treatment regulations to
authorize payment or reimbursement for
coinsurance, temporarily waive the
timely filing requirements for veterans
affected by the interim final rule, and
authorize payment or reimbursement for
emergency transportation associated
with emergency treatment when VA has
paid for the emergency treatment using
a separate authority. Because the change
to § 17.1004 was not addressed in the
Supplementary Information section of
the interim final rule, VA believes the
public should have an opportunity to
comment on the change. Therefore, a
60-day comment period to address this
single topic will be provided.
DATES:
Effective date: This final rule is
effective April 24, 2023.
Comment Date: Comments on VA
temporarily waiving the timely filing
requirement must be received on or
before April 24, 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,
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SUMMARY:
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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:
Joseph Duran, Director, Policy and
Planning VHA Office of Integrated
Veteran Care (16IVC), Veterans Health
Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (303–370–1637).
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In an
interim final rule published in the
Federal Register (FR) on January 9,
2018, 83 FR 974, VA amended its
medical regulations pursuant to a
decision from the Court of Appeals for
Veterans Claims (Veterans Court), Staab
v. McDonald, 28 Vet. App. 50 (2016), to
authorize reimbursement for the costs of
emergency treatment furnished in the
community for a veteran’s non-serviceconnected condition when the veteran
is eligible for partial payment of these
costs under a health-plan contract.
Among other changes made, the
interim final rule clarified that VA
would not pay or reimburse for a
copayment, deductible, coinsurance, or
similar payment owed by the veteran.
38 CFR 17.1005(a). In issuing the
interim final rule, VA explained that VA
is statutorily prohibited under section
1725(c)(4)(D) of title 38, United States
Code (U.S.C.) from paying for or
reimbursing a copayment or similar
payment and VA interpreted ‘‘similar
payment’’ to include both deductibles
and coinsurance. 38 CFR 17.1005(a)(5);
83 FR 974 (January 9, 2018).
VA provided a 60-day comment
period, which ended on March 12, 2018.
Twelve comments were received, which
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are described in detail in the following
section of this discussion.
Following the comment period, on
March 17, 2022, the United States Court
of Appeals for the Federal Circuit
(Federal Circuit) issued a decision,
Wolfe v. McDonough, No. 2020–1958,
on issues relating to a Writ of
Mandamus granted by the Veterans
Court. This case involved a challenge to
VA’s interpretation of 38 U.S.C.
1725(c)(4)(D) (that is, VA’s prohibition
on paying for copayments, coinsurance,
and deductibles under 38 CFR
17.1005(a)(5)). In its opinion, the
Federal Circuit interpreted 38 U.S.C.
1725(c)(4)(D) to exclude payment by VA
of deductibles, but not coinsurance, as
it found that a deductible is a similar
payment to a copayment, but
coinsurance is not.
However, the decision on the Wolfe
appeal did not specifically invalidate or
otherwise amend VA’s regulations as
they relate to the payment of
coinsurance. Subsequent to the Wolfe
decision, a petition for review was filed
at the Federal Circuit on May 4, 2022.
The petitioners in this case asked for the
court to invalidate the portion of VA’s
regulation that prohibited payment of
coinsurance. On October 25, 2022, the
Federal Circuit issued an order directing
VA to amend its regulations within 120
days to allow for the payment of
coinsurance. Kimmel v. Sec’y of
Veterans Affs, No. 2022–1754, 2022 U.S.
App. LEXIS 29615 (Fed. Cir. Oct. 25,
2022).
For the reasons below and consistent
with the Wolfe decision and subsequent
order related to the Kimmel petition,
this rulemaking will make final the
interim final rule (83 FR 974) with
changes and will permit an additional
comment period on the limited issue of
the timely filing requirement.
Public Comments
Twelve comments were received in
response to the interim final rule.
Several commenters expressed support
for the rule. The remaining substantive
comments are discussed in detail below.
Retroactivity
In the interim final rule, we stated
that judicial decisions invalidating a
statute or regulation, or VA’s
interpretation of a statute or regulation,
cannot affect prior final VA decisions,
meaning decisions that were not timely
appealed and have thus become final.
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As such, VA stated it will not
retroactively pay benefits for claims
filed under § 17.1002(f) that were finally
decided before April 8, 2016, the date of
the Veterans Court’s Staab decision. We
received multiple comments stating that
VA should apply the amendments made
in the interim final rule retroactively to
February 1, 2010, the date of enactment
of the Expansion of Veteran Eligibility
for Reimbursement Act, Public Law
111–137 (hereinafter referred to as the
‘‘2010 Act’’).
One commenter stated that VA has
the authority to consider these claims
because section 1725 provides VA with
broad authority to establish the claim
and payment process. Another
commenter stated that the Staab
decision requires VA to provide
reimbursement to veterans with claims
pending on or after February 1, 2010,
because the court stated that VA must
re-adjudicate the appellant’s claim,
which was for reimbursement for
treatment in December 2010. The
commenter also stated that a judicial
interpretation of a statute defines the
meaning of the statute as of the date of
enactment, not the date of the judicial
decision. The commenter cited to the
Federal Circuit’s decision in Patrick v.
Shinseki, 668 F.3d 1325, 1329 (Fed. Cir.
2011), to support that proposition.
We also received three comments
concerning the need for retroactive
application of the Staab decision from
members of the United States Congress.
Two of the comments were nearly
identical. One was from the United
States House of Representatives
Committee on Veterans’ Affairs and one
was from members of the United States
Senate. The comments requested that
the interim final rule include those
veterans whose claims were decided
between the date of enactment of the
2010 Act, February 1, 2010, and the date
of the Staab decision, April 8, 2016, so
that veterans can take full advantage of
a benefit Congress intended for them to
receive. The Secretary of Veterans
Affairs responded to these two
comments in letters sent to each
member of Congress who signed the two
comments. The letter stated that the
Secretary shared the concern of the
members of Congress about veterans
who, prior to the Staab decision, had
their claims for reimbursement denied
on the sole grounds that their healthplan contracts had made partial
payments for their emergency treatment,
thereby leaving them with personal
liability for the remaining costs of that
treatment.
Under 38 U.S.C. 7105(c), a decision of
a VA agency of original jurisdiction
(AOJ) that is not appealed in a timely
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manner is considered final and the
claim may not thereafter be reopened or
allowed ‘‘except as provided by
regulations not inconsistent with this
title.’’ Under 38 U.S.C. 7104(b), when a
claim is disallowed by the Board of
Veterans’ Appeals (Board), it may not
thereafter be reopened and allowed
‘‘[e]xcept as provided in section 5108 of
this title.’’ To the extent these statutes
may be construed to permit VA by
regulation to create additional
exceptions to the finality of AOJ
decisions, but not Board decisions, we
decline to exercise that authority here.
Such a rule would depart significantly
from the well-established principle,
discussed below, that new judicial
interpretations of a statute do not
provide a basis for reopening final
decisions, and it would create an unfair
distinction among claimants based upon
whether their last final decision was
issued by an AOJ or the Board.
Moreover, as explained below, other
authorities provide a basis for
addressing claims involving expenses
incurred on or after February 1, 2010, in
a manner we believe to be more
equitable and consistent with
established precedents.
There are only two statutory
exceptions to the rule of finality, new
and material evidence and clear and
unmistakable error, 38 U.S.C. 5108,
neither of which authorizes VA to
proactively re-open and re-adjudicate
finally decided claims as a result of the
Staab decision as suggested by the
commenters. See 38 U.S.C. 5108, 5109A,
and 7111; Cook v. Principi, 318 F.3d
1334, 1339 (Fed. Cir 2002). As these two
exceptions relate to the lines of
reasoning raised by the commenters
above, we do not believe that the
authority provided in section 1725
authorizes VA to re-adjudicate the
claims in a manner that is inconsistent
with 38 U.S.C. 5108, 5109A, and 7111.
In addition, we do not believe that the
Staab decision requires VA to readjudicate all finally decided claims
retroactive to the effective date of the
law. Significantly, the court did not
order VA to re-adjudicate all finally
decided claims from the date of
enactment; instead, the court vacated
the Board’s decision that denied Mr.
Staab’s individual claim and ordered
VA to re-adjudicate Mr. Staab’s
individual claim, which was not finally
decided because he filed a timely
appeal. In order to adjudicate the claim
and address the court’s invalidation of
§ 17.1002(f), VA amended its payment
regulations to establish a payment
methodology for claims, like Mr.
Staab’s, that involve partial payment by
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a health-plan contract. The Staab
decision did not address and does not
govern VA’s authority to apply the new
methodology to claims that were finally
decided prior to the decision.
Further, in George v. McDonough, 142
S. Ct. 1953, the Court held that
invalidation of a VA regulation after a
veteran’s benefits decision becomes
final cannot support a claim for
collateral relief based on clear and
unmistakable error. Therefore, neither
the Staab decision, nor later decisions in
the Wolfe or Kimmel matters create a
clear and unmistakable error that would
allow for readjudication of already
denied claims.
However, when an intervening and
substantive change in law occurs and
creates a new basis for entitlement to a
benefit (e.g., judicial interpretation and
invalidation of a regulation results in
expansion of entitlement to a benefit),
VA may review a new claim based on
the same facts as the finally decided
claim. Spencer v. Brown, 17 F.3d 368,
372 (Fed. Cir.) (1994). In this situation,
individuals whose claims were finally
decided prior to the change in law may
submit new claims to be adjudicated
under the revised standard. We
therefore explained to the members of
Congress that VA can reach claims that
were finally decided prior to the Staab
decision (on the sole grounds that
partial payment would be, or had been,
made under the veterans’ health-plan
contract), if the veterans or providers
file new claims for the same benefits
that were previously denied. VA further
explained that we will adjudicate claims
from providers or veterans who, due to
their awareness of the former
interpretation of the law (former
§ 17.1002(f)), chose not to file claims
because partial payment had been made
or would be made under the veterans’
health-plan contracts. The Secretary
also informed the members of Congress
that we would create a solution, through
amendatory rulemaking, to avoid denial
of these claims as untimely under the
current filing deadlines specified in
regulation. It was further explained that
all providers or veterans seeking
reimbursement under the revised
regulation would be required to submit
evidence showing the amount paid by
their health insurance plan and the
amount of the veteran’s remaining
liability. The reason for this requirement
is explained below.
The third Congressional comment
(from the Senate Committee on
Veterans’ Affairs) stated that the timely
filing requirement for these claims
should be waived completely. The
comment further stated that VA should
proactively reach out to veterans whose
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claims were denied under the previous
regulations because making veterans
refile their claims would be unduly
burdensome and create a barrier to filing
that will disproportionately impact
veterans whom the comment described
as already being vulnerable.
VA agrees that it is necessary to
provide the two groups of claimants
described above with an opportunity to
file new claims for payment or
reimbursement of emergency treatment
costs incurred in the community on or
after February 1, 2010, up to April 8,
2016 (the date of the Staab decision),
and to adjudicate these claims under the
new legal standard, subject to the oneyear filing deadline established in
§ 17.1004(f), as revised by this final rule.
To simply waive the timely filing
requirement for these claims would be
problematic, however, as it would
prevent VA from being able to reliably
forecast budgetary and other claims
processing needs relative to these
claims. Moreover, health insurance
claims are generally processed in
accordance with firm time limits
established by the governing contracts,
including those applicable to the
carriers’ appeals processes. Thus, the
amounts paid under veterans’ healthplan contracts have already been
identified. Unless these records are no
longer retained by the carriers, this
historical information exists and can be
requested. In the alternative, the veteran
may have personal possession of these
historical records. In either event, VA
believes that a one-year filing deadline
is reasonable and gives these claimants
an adequate opportunity to seek
payment or reimbursement for costs
incurred during the covered timeperiod. VA will therefore not waive the
timely filing requirement for claimants
affected by the Staab decision.
In order to address the concerns
raised, and in response to comments
that VA received on the IFR, VA will
amend § 17.1004 to afford veterans
affected by the Staab decision an
opportunity to file a new claim based on
the change in law. Specifically, VA is
amending § 17.1004(f), which currently
provides an exception to the timely
filing requirements in § 17.1004(d) for
dates of service between July 19, 2001,
and 90 days before May 21, 2012, if the
claimant files a claim for reimbursement
no later than one year after May 21,
2012. Because the time frame for the
waiver in current § 17.1004(f) has
passed, we will amend this paragraph
by removing the previous time frame for
the waiver and, in its place, allow
claimants to file a claim,
notwithstanding paragraph (d) of this
section, for reimbursement of costs of
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non-VA emergency treatment rendered
on or after February 1, 2010 and more
than 90 days before February 22, 2023
for which partial payment was paid or
payable under the veterans’ health-plan
contracts, provided the claimants file
their claims for reimbursement no later
than one year after February 22, 2023.
This amendment will thus provide all
claimants affected by the Staab
decision, regardless of whether they
previously filed claims for
reimbursement, an opportunity to
submit a claim for payment or
reimbursement of the costs of non-VA
emergency treatment they received on
or after the effective date of the 2010
Act.
VA has additionally determined that
anyone who had been potentially
adversely affected by the issues raised
in the Wolfe litigation, or the subsequent
Kimmel petition, would fall within this
waiver period. Therefore, they would
also be able to seek adjudication of their
claims under the new standard. To the
extent the issues here are distinct from
those raised by the Staab case, the
inclusion within these timeframes will
still allow for those issues to be
addressed.
As a matter of prudence, and because
this precise change to § 17.1004 differs
from the interim final rule, VA is
inviting the public to comment on the
change. Therefore, a 60-day comment
period to address this single topic will
be provided.
Copayments and Similar Payments
Section 1725(c)(4)(D) prohibits VA
from reimbursing a veteran for a
copayment or similar payment that the
veteran owes a third party or is
responsible to pay under a health-plan
contract. The interim final rule
interpreted ‘‘similar payment’’ to
include deductibles and coinsurance.
We received multiple comments that
coinsurance and deductibles are not
‘‘similar payments’’ to copayments and
should be removed from the list of
payments for which VA will not provide
reimbursement. Following the public
comment period, the Federal Circuit’s
order regarding the Kimmel petition
held that coinsurance was the type of
payment envisioned by Congress that
VA would pay or reimburse while
deductibles were similar to copayments
and therefore prohibited from payment
or reimbursement pursuant to 38 U.S.C.
1725(c)(4)(D).
Consistent with this decision, we are
removing coinsurance from the list of
prohibited payments in § 17.1005(a)(5)
but will not remove deductibles from
that list.
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The following discussion specifically
addresses the related comments we
received during the public comment
period on this issue.
Commenters explained that a
copayment, by definition, is
distinguishable from other forms of costsharing, such as deductibles and
coinsurance, and that copayments result
in much lower liabilities than
deductibles and coinsurance. The
commenters stated that each term is a
‘‘term of art’’ with a specific, accepted,
meaning and that the term copayment
cannot be read to include these different
obligations. One commenter defined
copayment as the set dollar amount the
patient pays for care after the deductible
is paid, deductible as the amount an
insured must pay each year before the
insurance source pays its share, and
coinsurance as the percent of costs the
enrollee must pay. Another commenter
similarly defined a copayment as a
fixed, flat fee, amount paid by an
insured for each particular covered
health care service after paying any
deductible, a deductible as a fixed
amount an insured pays each year for
eligible medical services or medicines
before insurance will make any
payment, and coinsurance as a portion
of all the medical costs that an insured
must pay of all costs subject to the
coinsurance.
In Wolfe v. McDonough, No. 2020–
1958, Fed. Cir. (Mar. 17, 2022), the
Federal Circuit indicated that
copayments and deductibles were
similar payments, as they are both fixed
quantities which become known once
insurance is purchased, while
coinsurance is a variable quantity that
becomes known after medical expenses
are incurred. The Federal Circuit also
found that the legislative history
supports that deductibles were
intentionally excluded from
reimbursement as a similar payment but
coinsurance was not. Later, in the
response to the Kimmel petition, the
Federal Circuit determined that
coinsurance was the type of payment
envisioned by Congress that VA would
pay or reimburse while deductibles
were similar to copayments and
therefore prohibited from payment or
reimbursement pursuant to 38 U.S.C.
1725(c)(4)(D).
Several commenters stated that the
rules of statutory construction require
us to presume Congress meant what it
said and that, in other statutory
contexts, Congress has not used the
specific term, copayment, to include
other forms of cost-sharing. One
commenter noted that they do not
believe there is a Congressional
reference to copayments that includes
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coinsurance and deductibles. The
commenters provided the following
examples: 38 U.S.C. 1729(a)(3) uses
‘‘deductible or copayment;’’ under the
essential health benefit limitations on
cost-sharing, Congress refers to
‘‘copayments and coinsurance;’’ in
establishing premium and cost sharing
subsidies for low-income individuals,
Congress made reference to copayment
separately from coinsurance; and in the
statutory authority for VA to require
copayments for medications, the law
referred to copayments and did not
include coinsurance or deductibles. The
commenters stated that had Congress
intended deductibles or coinsurance be
excluded from reimbursement, it would
have used such language.
To clarify, VA does not believe that
Congress intended for the term
‘‘copayment’’ in section 1725(c)(4)(D) to,
by itself, encompass deductibles.
Instead, VA believes it is the phrase ‘‘or
similar payment’’ that is intended to
include other forms of cost sharing,
such as deductibles. VA agrees that we
must presume Congress meant what it
said, and in section 1725, Congress said
‘‘copayment or similar payment.’’ A
statute must be interpreted, ‘‘so that
effect is given to all its provisions, so
that no part will be inoperative or
superfluous, void or insignificant.’’
Corley v. United States, 556 U.S. 303,
304 (2009). To find meaning in the
phrase ‘‘similar payment,’’ VA must
identify and consider other payments
for which a veteran is responsible under
a health plan contract. VA can find no
payment more similar to a copayment
than a deductible, which serves as a
fixed-amount cost-sharing measure to
which the insured freely agrees to pay
as a condition of insurance coverage. As
noted in Wolfe, similar payments
necessarily means that some payments
that are not copayments are similar
payments. The Federal Circuit found
that deductibles were envisioned by
Congress to be similar to copayments
and thus prohibited from payment or
reimbursement. The Federal Circuit
looked at the legislative history for 38
U.S.C. 1725 and determined that it
supports that Congress intentionally
excluded deductibles from
reimbursement as a similar payment.
Another commenter stated that VA
did not provide any legal authority to
broaden the statutory language in
section 1725(c)(4)(D) to include
deductibles and coinsurance. We
disagree. First, Congress explicitly gave
VA broad authority to implement
section 1725 in regulations prescribed
by the Secretary. Specifically, section
1725(c)(1)(B) provides that, ‘‘The
Secretary, in accordance with
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regulations prescribed by the Secretary,
shall . . . delineate the circumstances
under which such payments may be
made . . . .’’ Moreover, as crafted, the
language of section 1725(c)(4)(D) plainly
allows for other payments to be
included within its scope, provided
they are similar to the one named. As
noted throughout this discussion, the
Federal Circuit in Wolfe and Kimmel
acknowledged that inclusion of the
phrase ‘‘similar payments’’ in the statute
necessarily means that some payments
that are not copayments are similar
payments. The Federal Circuit
interpreted section 1725(c)(4)(D) and its
legislative history to determine that a
deductible is a similar payment to a
copayment and thus excluded from
payment or reimbursement. For these
reasons, we believe that VA has
authority to interpret the phrase ‘‘or
similar payment’’ in paragraph (4)(D) of
subsection (c).
The commenters also stated that the
legislative history and the Veterans
Court’s Staab decision provide that the
purpose of the 2010 Act was to make
VA responsible for the cost (of the
emergency treatment) exceeding the
amount payable or paid by the thirdparty insurer, noting that a deductible or
coinsurance amount is not payable or
paid by the third-party insurer. VA
agrees that part of the legislative history
related to the 2010 Act and the Staab
decision each reflect an expectation or
understanding that the 2010 Act
amendments effectively enable VA to
pay the entire remainder owed to the
emergency provider after partial
payment is made or payable under the
veteran’s health-plan contract. However,
even if this were intended, the 2010 Act
did not accomplish this goal. The still
relevant provisions of section 1725(c)
explicitly require VA to limit the
amount of reimbursement available
under section 1725. Indeed, the header
for subsection (c) is ‘‘Limitations on
reimbursement.’’ To this end, section
1725(c)(1) directs VA to promulgate
regulations that limit payment, to
include establishing a maximum
amount payable under section 1725. In
addition, section 1725(c)(4)(D) expressly
prohibits VA from reimbursing a veteran
for any copayment or similar payment
that the veteran owes the third party or
for which the veteran is responsible
under a health-plan contract. These,
along with the other likewise intact
provisions of subsection (c), reflect a
continuing requirement to limit the
budgetary impact of section 1725. If the
drafters of the 2010 Act believed that
VA’s secondary payment would cover
all of the eligible veterans’ out-of-pocket
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costs, we conclude that they failed to
execute all the amendments needed to
accomplish this, and the Federal Circuit
confirmed this by its interpretation of
the statute.
Multiple commenters mentioned that
the bar on reimbursement of deductibles
and coinsurance acts as a disincentive
to purchasing health insurance
coverage. They suggest that the
exclusion of veterans’ out-of-pocket
(cost sharing) costs could result in
veterans foregoing the purchase of
health insurance, leaving VA with
increased costs as their sole payer. One
of the commenters stated that veterans
will always have personal liability if
they have Medicare Part B and the
proposed change will do nothing to
resolve the veteran’s personal liability.
The commenter further stated that it
will encourage veterans to discontinue
their Medicare Part B and recommends
that the rule require veterans to have
Medicare Part B.
As discussed above, VA interprets
‘‘similar payments’’ to include
deductibles; thus, VA does not have
authority to reimburse these costs. As a
matter of policy, VA interprets ‘‘similar
payments’’ this way in order to avoid
any conflict with the Federal Circuit.
VA acknowledges that veterans who do
not have health insurance would likely
pay no out-of-pocket costs while
veterans who do have health insurance
may have out-of-pocket costs resulting
from their cost share obligations.
Nonetheless, VA does not believe that
this potential disparity will deter
veterans from purchasing health
insurance. Most veterans enrolled in the
VA health care system have an
additional type of health insurance
coverage. It seems unlikely that they
would forego their health insurance
protection for all other medical
conditions, which are likewise subject
to their plan’s deductible requirements,
merely to avoid having to pay
copayments and similar payments owed
in connection with the receipt of nonVA emergency treatment. Again, these
are cost shares that they freely agreed to
pay in exchange for health insurance
coverage independent of their VA
benefits. Ultimately, whether to keep or
obtain health insurance is a personal
financial decision for veterans enrolled
in VA’s health care system to make
based on their own needs, financial
capability, and preferences.
As it concerns veterans who are
eligible for reimbursement under
section 1725 and who also have
coverage for emergency treatment under
Medicare Part A, VA has no authority to
require that they be enrolled in
Medicare Part B as a condition of
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payment or reimbursement under
section 1725.
Based on these comments and the
Wolfe decision and Kimmel order, we
are removing coinsurance from the list
of prohibited payments in
§ 17.1005(a)(5) but will not remove
deductibles from that list. We are also
retaining the ‘‘or similar payment’’
qualifier on the end of the list to
maintain the flexibility originally
envisioned by Congress’s initial
inclusion of the phrase in section 1725.
Retaining ‘‘or similar payment’’ allows
VA to be flexible in the future, should
some new type of health care cost
sharing arise.
Payment Limitations
Several commenters raised a concern
that VA’s payment limitation of 70
percent of the Medicare fee schedule
rate was too low. The commenters
requested that VA amend the rule to pay
the fair market value for the services
rendered. One commenter explained
that payment below the fair market
value could jeopardize the financial
viability of the emergency care safety
net.
To clarify, the scope of this
rulemaking is to amend VA’s
regulations to comply with case law
interpreting the scope of VA’s
reimbursement authority. Therefore,
this rulemaking only affects
reimbursement when the veteran has
partial payment from a third party; it
does not affect the amount VA will pay
when the veteran has no other coverage,
which is governed by a different
provision of the payment regulation.
When the veteran has partial payment
for the emergency treatment expenses
from a third party, VA is the secondary
payer. Under the amended payment
regulation, VA pays the lesser of: the
amount for which the veteran is still
personally liable after payment by a
third party (including a health-plan
contract); or 70 percent of the applicable
Medicare fee schedule rate.
For example, a veteran has an initial
liability of $100 dollars. 70 percent of
the Medicare fee schedule is $70 and
the veteran’s health-plan contract paid
the provider 80 percent of the Medicare
fee schedule rate ($80). If the veteran
has remaining liability to the provider
(other than a copayment, deductible or
similar payment), then VA would still
be able to pay up to $20 towards the
veteran’s remaining liability even after
the payment of $80 from the health plan
contract. Although VA can pay up to 70
percent of the Medicare fee schedule,
which is $70, the veteran’s remaining
liability in this instance would only be
$20 after deducting the health-plan
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contract’s payment of $80 from the $100
liability. As secondary payer, VA’s
maximum allowable amount is in
addition to the amount already paid (or
payable) by the health-plan contract. For
this reason, VA believes that emergency
treatment providers will ultimately
receive at least fair market value for
their services; consequently, this final
rulemaking will not jeopardize the
financial viability of emergency
departments. VA does not make any
changes to the rule based on these
comments.
Other commenters stated that the low
reimbursement rate would encourage
health care professionals to deny
treatment to veterans for fear of
inadequate reimbursement. All veterans
affected by this rulemaking already have
coverage for emergency treatment
expenses under their health-plan
contracts, with rates presumably
negotiated (by the carriers and
providers) to ensure adequate
reimbursement. Again, VA is secondary
payer to these contracts. The combined
payment by the primary payer (healthplan contract) and VA for the same
emergency treatment episode should
thus provide adequate reimbursement,
as discussed above.
In addition, a Medicare-participating
hospital with an emergency department
that denies emergency care to an
individual due to the individual’s
inability to pay would arguably violate
the Emergency Medical Treatment and
Active Labor Act (EMTALA), 42 U.S.C.
1395dd, as amended. Under EMTALA,
if any individual (regardless of
Medicare-eligibility) seeks examination
or treatment for a medical condition at
a covered hospital, then the hospital
must provide a screening examination
to determine whether an emergency
medical condition exists. If so, the
hospital is, in general, required to
furnish needed emergency treatment
until the individual is stabilized and
able to be transferred irrespective of the
patient’s ability to pay. For these
reasons, we do not make any changes to
the rule based on these comments.
Another commenter stated that
Congress did not intend for VA to set
such a low rate and cited to a study that
found that in-network emergency
physician claims were paid at 297
percent of the Medicare rate and out-ofnetwork emergency physicians charged
an average of 798 percent of the
Medicare rate. The legislative history
from when 38 U.S.C. 1725 was
originally enacted demonstrates that
Congress intended for VA to set a rate
that is lower than the Medicare fee
schedule rate. The legislative history
reads, ‘‘The Committee thus envisions
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10839
that VA would establish rates that are
significantly below those paid under the
Medicare or Medicaid system (or under
38 United States Code, section 1728).’’
House Report 106–237 (July 16, 1999).
Therefore, VA believes that the rate it
set is precisely what Congress
envisioned, and we do not make any
changes to the rule based on this
comment.
The commenter also noted that the
interim final rule permits emergency
providers to reject the payment amount,
which would presumably leave the
veteran fully responsible for the
payment. Given the low rate, the
commenter feared that these providers
may reject the amount and seek full
payment from the veteran. As noted
above, VA has been paying 70 percent
of the applicable Medicare fee schedule
rate in instances when VA is the sole
payer ever since the regulations were
effective on May 29, 2000 (66 FR 36470)
(unless, of course, the amount owed to
the provider was less than 70 percent of
the Medicare fee schedule rate, thereby
requiring the lesser amount to be paid).
Since that time, very few, if any, of VA’s
payments have been rejected,
presumably because these debts would
have otherwise been written off by the
providers. Because emergency providers
may view the new cohort of veterans
covered by the court’s decision as
having the ability to self-pay more than
the VA allowable amount, we have
devised a payment methodology to
reduce the likelihood that the providers
will reject VA payment. Emergency
providers will be receiving greater than
70 percent of the Medicare fee schedule
rate; again, they will receive a combined
payment comprised of the third party’s
payment and VA’s payment. At this
time, and in the absence of compelling
evidence requiring a changed approach,
we decline to make any changes to the
rule based on this comment.
One commenter sought clarification
on liability for cost-sharing. In
particular, the commenter asked
whether a veteran’s cost sharing
responsibilities are also extinguished if
a health care provider accepts payment
from VA for the emergency treatment.
We clarify that some of the veteran’s
cost sharing obligations, such as a
copayment or deductible, are not
extinguished by VA payment. Those are
contractual payment obligations, nonreimbursable by VA, that are owed by
the veteran to the provider, consistent
with the terms of the veteran’s healthplan contract. We do note however,
under this amended rule, VA will pay
or reimburse for a veteran’s coinsurance
as part of its underlying payment for
medical treatment. Therefore,
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acceptance of payment from VA will
extinguish any coinsurance
responsibility on the part of the veteran.
See 38 CFR 17.1005(a)(4). We do not
make any changes to the rule based on
this comment.
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Miscellaneous
One commenter requested that VA
provide clarity on two provisions in the
regulations. The first provision is the
prudent layperson standard in 38 CFR
17.1002(b). The regulation provides
that, in order to receive reimbursement,
the veteran must have sought care for
which a prudent layperson would have
reasonably expected that delay in
seeking immediate medical attention
would have been hazardous to life or
health. The commenter recommended
that VA provide a list of services that
would meet this standard to ensure that
emergency treatment claims filed by
veterans are not improperly rejected.
The commenter suggested that VA adopt
the list from the American College of
Emergency Physicians. VA appreciates
the commenter’s suggestion, but the
scope of the rulemaking is narrowly
limited to amending VA’s regulations to
comply with the Staab and Wolfe
decisions and the Kimmel order by
permitting reimbursement when the
veteran has partial payment from a
health-plan contract. Therefore, this
comment is beyond the scope of this
rulemaking, and we do not make any
edits based on the comment. However,
VA will continue to monitor the
program and consider whether
additional rulemaking may be necessary
in the future.
The commenter also requested that
VA amend the rule to affirmatively state
that VA cannot deny a claim after a
veteran passes away if the emergency
medical treatment is furnished prior to
the veteran’s death. The commenter
noted that the interim final rule states
that reimbursement is not available if
death occurs before emergency
treatment is provided. We want to
clarify that the interim final rule does
not state that reimbursement is not
available if death occurs before
emergency treatment is provided.
Instead, the interim final rule provides
that VA can provide reimbursement for
emergency transportation even if the
veteran passes away before emergency
treatment is rendered at the community
hospital. While VA appreciates the
suggestion, VA believes that the interim
final rule, in conjunction with the
explanation provided here, is
sufficiently clear that reimbursement
can be provided even if the veteran
passes away. Therefore, we do not make
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any changes to the rule based on this
comment.
One commenter expressed a concern
about whether and how VA informs a
veteran when the veteran has an
outstanding debt with a medical facility
and the veteran’s first notification
comes in the form of a debt collection
letter. The commenter explained that a
veteran received a letter from a local
hospital and it took four months to
determine that there was no outstanding
balance on the veteran’s account and the
letter was sent as a result of a
bookkeeping error on the part of the
hospital. Although VA is sympathetic to
the veteran we note that this is scenario
is not representative of most instances
of reimbursement for emergency
treatment. However, this rulemaking
expands eligibility criteria for
reimbursement for the costs of
emergency treatment rendered by
community emergency providers to
veterans for their non-service-connected
conditions. Because the comment is
beyond the scope of this rulemaking, we
do not make any changes to the rule
based on this comment.
One commenter inquired as to why
they were taken to a community
hospital when a VA medical center was
less than eight minutes away. The
commenter received a bill for the
transportation to the community
hospital. The commenter also discussed
the poor treatment rendered by the
community hospital, as perceived by the
commenter. To the extent that the
commenter seeks reimbursement for the
costs of transport to the community
hospital, we invite the commenter to file
an emergency transportation claim
under section 1725 as implemented by
38 CFR 17.1003 and 17.1004. But again,
because this rulemaking only expands
eligibility requirements for
reimbursement of the costs of
emergency treatment rendered by
community hospitals for veterans’ nonservice-connected conditions, this
comment is beyond the scope of the
rulemaking. No changes are made to the
rule based on these comments.
We also received one comment
regarding Executive Order 13771. This
rulemaking was not affected by
Executive Order 13771. Therefore, this
comment is beyond the scope of the
rulemaking, and we do not make any
changes to the rule based on the
comment.
Changes to § 17.1003
While we did not receive any public
comments on this issue we are
amending § 17.1003(a)(1) as a logical
outgrowth of the interim final rule to
add VA as a clarifying example of payor
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of emergency treatment which would
not forestall eligibility for emergency
transportation.
In the interim final rule, we amended
§ 17.1003 to add paragraph (a)(1) which
provides that payment or
reimbursement for ambulance services
may be made if payment or
reimbursement would have been
authorized under 38 U.S.C. 1725 for
emergency treatment had the veteran’s
personal liability for the emergency
treatment not been fully extinguished by
payment by a third party, including
under a health-plan contract. VA
amended § 17.1003 in the interim final
rule to address a long-standing tension
in § 17.1003 with VA’s interpretation
that emergency transportation is part of
emergency treatment. VA has
historically interpreted the phrase
‘‘emergency treatment’’ in section
1725(f)(1) to include emergency
transportation if the transportation is
provided as part of the emergency
medical treatment administered at the
non-VA facility. However, § 17.1003 did
not allow VA to pay for the
transportation if the liability for the
emergency treatment had already been
extinguished by a third party. The
interim final rule explained that if VA’s
sole basis to deny a transportation claim
is satisfaction by a third party of the
related emergency treatment claim, even
if that transportation claim meets all of
the other requirements for
reimbursement under 38 U.S.C. 1725,
VA would be, in effect, treating the
emergency transportation claim
differently than the related emergency
treatment claim. Therefore, in order to
make § 17.1003 consistent with VA’s
interpretation that the emergency
transportation is part of the claim for
emergency treatment, VA amended
§ 17.1003 to ensure that payment or
reimbursement for emergency
transportation would not be prohibited
on the sole basis that the emergency
treatment claim was fully extinguished.
While in the interim final rule VA only
referenced liability being extinguished
by a third party, VA believes that the
public was sufficiently put on notice
that the intended effect of the change
was to ensure emergency transportation
under § 17.1003 would not be
prohibited on the sole basis that the
emergency treatment was fully
extinguished by another source.
In this rulemaking we revise
§ 17.1003(a)(1) by adding the phrase ‘‘or
by VA’’ after health plan contract. This
addition is necessary to ensure that,
consistent with the interpretation
discussed above, VA can pay or
reimburse for emergency transportation
under section 1725 even if VA
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extinguishes the liability for the
underlying emergency treatment using a
different authority, such as under VA’s
Community Care Program at 38 CFR
17.4020(c).
Thus, we are revising § 17.1003(a)(1)
to make clear that a veteran may be
reimbursed for ambulance services
made for transporting a veteran to a
facility if payment or reimbursement
would have been authorized under
section 1725 for emergency treatment
had the veteran’s personal liability for
the emergency treatment not been fully
extinguished by a third party, to include
under a health plan contract, or by VA.
Based on the rationale set forth in the
Supplementary Information sections of
the interim final rule and this final rule,
VA is adopting as final the interim final
rule with the changes stated in this final
rule.
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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 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 final rule will not have a significant
economic impact on a substantial
number of small entities as they are
defined in the Regulatory Flexibility Act
(5 U.S.C. 601–612). This rule would not
cause a significant economic impact on
small entities since this exemption is
limited to individual veterans who VA
determines to be affected by the Stabb
or Wolfe cases. Only individual veterans
are effects by the virture of being able
to submit claims for coinsurance
reimbursement. Individuals are not the
small entities, they cannot be broken out
by appropriate size standard, number
affected, and business revenue.
Therefore, pursuant to 5 U.S.C. 605(b),
the initial and final regulatory flexibility
analysis requirements of 5 U.S.C. 603
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Jkt 259001
and 604 do not apply. Although some
eligible entities or providers that
furnished emergency care and services
to veterans under this authority may be
considered small entities, there will be
no significant adverse economic impact
because this rule does not create a new
payment obligation on such entities; it
merely creates a new payment
methodology for services already
rendered.
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 involves a collection of
information that is controlled by the
requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3521). While there are no provisions
associated with this rulemaking
constituting a new collection of
information, the changes to
reimbursement may constitute
substantive revisions to the existing
collection of information. The Office of
Management and Budget (OMB)
previously approved a Paperwork
Reduction Act (PRA) clearance for
information collected pursuant to 38
U.S.C. 1725 under OMB control number
2900–0620, which expired on July 31,
2018. The collection of information is
being processed for a reinstatement of
the PRA clearance from OMB through a
separate Federal Register notice (FRN)
published in the Federal Register. The
FRN will provide the public with an
opportunity to comment on the
information collection and any revisions
for Payment or Reimbursement for
Emergency Services for NonserviceConnected Conditions in NonDepartment Facilities. A final FRN also
will be published in the Federal
Register when the collection of
information is submitted to OMB for
approval of the PRA clearance renewal.
Congressional Review Act
Under the Congressional Review Act,
this regulatory action may result in an
annual effect on the economy of $100
million or more, 5 U.S.C. 804(2), and so
is subject to the 60-day delay in
effective date under 5 U.S.C. 801(a)(3).
In accordance with 5 U.S.C. 801(a)(1),
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10841
VA will submit to the Comptroller
General and to Congress a copy of this
Regulation and the Regulatory Impact
Analysis (RIA) associated with the
Regulation.
List of Subjects in 38 CFR Part 17
Administrative practice and
procedure, Claims, Health care, Health
facilities, Health professions, Health
records, Reporting and recordkeeping
requirements, Travel and transportation
expenses, Veterans.
Signing Authority
Denis McDonough, Secretary of
Veterans Affairs, approved this
document on December 30, 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.
Consuela Benjamin,
Regulations Development Coordinator, Office
of Regulation Policy & Management, Office
of General Counsel, Department of Veterans
Affairs.
For the reasons stated in the
preamble, the interim final rule
amending 38 CFR part 17, which was
published at 83 FR 974 on January 9,
2018, is adopted as final with the
following changes:
PART 17—MEDICAL
1. The general authority citation for
part 17 continues to read as follows:
■
Authority: 38 U.S.C. 501, and as noted in
specific sections.
*
*
*
*
*
2. Amend § 17.1003 by revising
paragraph (a)(1) to read as follows:
■
§ 17.1003
Emergency transportation.
(a) * * *
(1) The veteran’s personal liability for
the emergency treatment not been fully
extinguished by payment by a third
party, including under a health-plan
contract, or by VA; or
*
*
*
*
*
■ 3. Amend § 17.1004 by revising
paragraph (f) to read as follows:
§ 17.1004
Filing claims.
*
*
*
*
*
(f) Notwithstanding paragraph (d) of
this section, VA will provide retroactive
payment or reimbursement for
emergency treatment received by the
veteran, on or after February 1, 2010 but
more than 90 days before February 22,
2023, if the claimant was eligible for
partial payment from a health-plan
contract for the emergency treatment
and the claimant files a claim for
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reimbursement no later than 1 year after
February 22, 2023.
*
*
*
*
*
■ 4. Amend § 17.1005 by revising
paragraph (a)(5) to read as follows:
§ 17.1005
Payment limitations.
(a) * * *
(5) VA will not reimburse a veteran
under this section for any copayment,
deductible, or similar payment that the
veteran owes the third party or is
obligated to pay under a health-plan
contract.
*
*
*
*
*
[FR Doc. 2023–03339 Filed 2–21–23; 8:45 am]
BILLING CODE 8320–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 63
[EPA–HQ–OAR–2018–0747; FRL–6934.1–
02–OAR]
RIN 2060–AV38
National Emission Standards for
Hazardous Air Pollutants:
Miscellaneous Coating Manufacturing
Technology Review
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The U.S. Environmental
Protection Agency (EPA) is taking final
action on the technology review
conducted on the Miscellaneous Coating
Manufacturing (MCM) source category
regulated under the National Emission
Standards for Hazardous Air Pollutants
(NESHAP). These final amendments
include provisions for inorganic
hazardous air pollutant (HAP) standards
for process vessels.
DATES: This final rule is effective
February 22, 2023.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2018–0747. All
documents in the docket are listed on
the https://www.regulations.gov/
website. Although listed, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy. With the
exception of such material, publicly
available docket materials are available
electronically in https://
www.regulations.gov/ or in hard copy at
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SUMMARY:
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the EPA Docket Center, Room 3334,
WJC West Building, 1301 Constitution
Avenue NW, Washington, DC. The
Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744, and
the telephone number for the EPA
Docket Center is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT: For
questions about this final action, contact
Ms. Angie Carey, Sector Policies and
Programs Division (E143–01), Office of
Air Quality Planning and Standards,
U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina
27711; telephone number: (919) 541–
2187; fax number: (919) 541–0516; and
email address: carey.angela@epa.gov.
SUPPLEMENTARY INFORMATION:
Preamble acronyms and
abbreviations. Throughout this
document the use of ‘‘we,’’ ‘‘us,’’ or
‘‘our’’ is intended to refer to the EPA.
We use multiple acronyms and terms in
this preamble. While this list may not be
exhaustive, to ease the reading of this
preamble and for reference purposes,
the EPA defines the following terms and
acronyms here:
1–BP 1-bromopropane
CAA Clean Air Act
CFR Code of Federal Regulations
EJ Environmental Justice
EPA Environmental Protection Agency
FR Federal Register
gr/dscf grains per dry standard cubic feet
HAP hazardous air pollutant(s)
ICR Information Collection Request
km kilometer
MACT maximum achievable control
technology
MCM miscellaneous coating manufacturing
NESHAP national emission standards for
hazardous air pollutants
NTTAA National Technology Transfer and
Advancement Act
OMB Office of Management and Budget
PRD pressure release devices
PM particulate matter
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RTR residual risk and technology review
mg/m3 microgram per cubic meter
UMRA Unfunded Mandates Reform Act
VCS voluntary consensus standards
Organization of this document. The
information in this preamble is
organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document
and other related information?
II. Background
A. What is the statutory authority for this
action?
B. What is this source category and how
does the current NESHAP regulate its
organic and inorganic HAP emissions?
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C. What changes did we propose for the
MCM source category in our June 7,
2022, proposal?
III. What is the rationale for our final
decisions and amendments for the
NESHAP for the MCM source category?
A. Inorganic HAP Standards for Process
Vessels
B. Adding 1–BP to the list of HAP
C. What are the effective and compliance
dates of the standards?
IV. Summary of Cost, Enviornmental, and
Economic Impacts and Additional
Analyses Conducted
A. What are the affected sources?
B. What are the air quality impacts?
C. What are the cost impacts?
D. What are the economic impacts?
E. What analysis of enviornmental justice
did we conduct?
V. Statutory and Executive Order Review
A. Executive Order 12866: Regulatory
Planning and 13563 Improving
Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act of 1995
(UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. National Technology Transfer and
Advancement Act (NTTAA) and 1 CFR
Part 51
H. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
I. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
J. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Table 1 of this preamble lists the
NESHAP and associated regulated
industrial source categories that are the
subject of this final rule. Table 1 is not
intended to be exhaustive, but rather
provides a guide for readers regarding
the entities that this final rule is likely
to affect. These final standards, once
promulgated, will be directly applicable
to the affected sources. Federal, state,
local, and tribal government entities
would not be affected by this final rule.
As defined in the Initial List of
Categories of Sources Under Section
112(c)(1) of the Clean Air Act
Amendments of 1990 (see 57 FR 31576;
July 16, 1992) and Documentation for
Developing the Initial Source Category
List, Final Report (see EPA–450/3–91–
030; July 1992), the Manufacture of
Paints, Coatings, and Adhesives source
category ‘‘is any facility engaged in their
manufacture without regard to the
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Agencies
[Federal Register Volume 88, Number 35 (Wednesday, February 22, 2023)]
[Rules and Regulations]
[Pages 10835-10842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03339]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 88, No. 35 / Wednesday, February 22, 2023 /
Rules and Regulations
[[Page 10835]]
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AQ08
Reimbursement for Emergency Treatment
AGENCY: Department of Veterans Affairs.
ACTION: Final rule with comments.
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SUMMARY: The Department of Veterans Affairs (VA) is finalizing, with
some changes, an interim final rule that amended its medical
regulations concerning payment or reimbursement for emergency treatment
for non-service-connected conditions at non-VA (community) facilities.
This final rule responds to public comments received on the interim
final rule and amends VA's emergency treatment regulations to authorize
payment or reimbursement for coinsurance, temporarily waive the timely
filing requirements for veterans affected by the interim final rule,
and authorize payment or reimbursement for emergency transportation
associated with emergency treatment when VA has paid for the emergency
treatment using a separate authority. Because the change to Sec.
17.1004 was not addressed in the Supplementary Information section of
the interim final rule, VA believes the public should have an
opportunity to comment on the change. Therefore, a 60-day comment
period to address this single topic will be provided.
DATES:
Effective date: This final rule is effective April 24, 2023.
Comment Date: Comments on VA temporarily waiving the timely filing
requirement must be received on or before April 24, 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: Joseph Duran, Director, Policy and
Planning VHA Office of Integrated Veteran Care (16IVC), Veterans Health
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (303-370-1637). (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In an interim final rule published in the
Federal Register (FR) on January 9, 2018, 83 FR 974, VA amended its
medical regulations pursuant to a decision from the Court of Appeals
for Veterans Claims (Veterans Court), Staab v. McDonald, 28 Vet. App.
50 (2016), to authorize reimbursement for the costs of emergency
treatment furnished in the community for a veteran's non-service-
connected condition when the veteran is eligible for partial payment of
these costs under a health-plan contract.
Among other changes made, the interim final rule clarified that VA
would not pay or reimburse for a copayment, deductible, coinsurance, or
similar payment owed by the veteran. 38 CFR 17.1005(a). In issuing the
interim final rule, VA explained that VA is statutorily prohibited
under section 1725(c)(4)(D) of title 38, United States Code (U.S.C.)
from paying for or reimbursing a copayment or similar payment and VA
interpreted ``similar payment'' to include both deductibles and
coinsurance. 38 CFR 17.1005(a)(5); 83 FR 974 (January 9, 2018).
VA provided a 60-day comment period, which ended on March 12, 2018.
Twelve comments were received, which are described in detail in the
following section of this discussion.
Following the comment period, on March 17, 2022, the United States
Court of Appeals for the Federal Circuit (Federal Circuit) issued a
decision, Wolfe v. McDonough, No. 2020-1958, on issues relating to a
Writ of Mandamus granted by the Veterans Court. This case involved a
challenge to VA's interpretation of 38 U.S.C. 1725(c)(4)(D) (that is,
VA's prohibition on paying for copayments, coinsurance, and deductibles
under 38 CFR 17.1005(a)(5)). In its opinion, the Federal Circuit
interpreted 38 U.S.C. 1725(c)(4)(D) to exclude payment by VA of
deductibles, but not coinsurance, as it found that a deductible is a
similar payment to a copayment, but coinsurance is not.
However, the decision on the Wolfe appeal did not specifically
invalidate or otherwise amend VA's regulations as they relate to the
payment of coinsurance. Subsequent to the Wolfe decision, a petition
for review was filed at the Federal Circuit on May 4, 2022. The
petitioners in this case asked for the court to invalidate the portion
of VA's regulation that prohibited payment of coinsurance. On October
25, 2022, the Federal Circuit issued an order directing VA to amend its
regulations within 120 days to allow for the payment of coinsurance.
Kimmel v. Sec'y of Veterans Affs, No. 2022-1754, 2022 U.S. App. LEXIS
29615 (Fed. Cir. Oct. 25, 2022).
For the reasons below and consistent with the Wolfe decision and
subsequent order related to the Kimmel petition, this rulemaking will
make final the interim final rule (83 FR 974) with changes and will
permit an additional comment period on the limited issue of the timely
filing requirement.
Public Comments
Twelve comments were received in response to the interim final
rule. Several commenters expressed support for the rule. The remaining
substantive comments are discussed in detail below.
Retroactivity
In the interim final rule, we stated that judicial decisions
invalidating a statute or regulation, or VA's interpretation of a
statute or regulation, cannot affect prior final VA decisions, meaning
decisions that were not timely appealed and have thus become final.
[[Page 10836]]
As such, VA stated it will not retroactively pay benefits for claims
filed under Sec. 17.1002(f) that were finally decided before April 8,
2016, the date of the Veterans Court's Staab decision. We received
multiple comments stating that VA should apply the amendments made in
the interim final rule retroactively to February 1, 2010, the date of
enactment of the Expansion of Veteran Eligibility for Reimbursement
Act, Public Law 111-137 (hereinafter referred to as the ``2010 Act'').
One commenter stated that VA has the authority to consider these
claims because section 1725 provides VA with broad authority to
establish the claim and payment process. Another commenter stated that
the Staab decision requires VA to provide reimbursement to veterans
with claims pending on or after February 1, 2010, because the court
stated that VA must re-adjudicate the appellant's claim, which was for
reimbursement for treatment in December 2010. The commenter also stated
that a judicial interpretation of a statute defines the meaning of the
statute as of the date of enactment, not the date of the judicial
decision. The commenter cited to the Federal Circuit's decision in
Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011), to support
that proposition.
We also received three comments concerning the need for retroactive
application of the Staab decision from members of the United States
Congress. Two of the comments were nearly identical. One was from the
United States House of Representatives Committee on Veterans' Affairs
and one was from members of the United States Senate. The comments
requested that the interim final rule include those veterans whose
claims were decided between the date of enactment of the 2010 Act,
February 1, 2010, and the date of the Staab decision, April 8, 2016, so
that veterans can take full advantage of a benefit Congress intended
for them to receive. The Secretary of Veterans Affairs responded to
these two comments in letters sent to each member of Congress who
signed the two comments. The letter stated that the Secretary shared
the concern of the members of Congress about veterans who, prior to the
Staab decision, had their claims for reimbursement denied on the sole
grounds that their health-plan contracts had made partial payments for
their emergency treatment, thereby leaving them with personal liability
for the remaining costs of that treatment.
Under 38 U.S.C. 7105(c), a decision of a VA agency of original
jurisdiction (AOJ) that is not appealed in a timely manner is
considered final and the claim may not thereafter be reopened or
allowed ``except as provided by regulations not inconsistent with this
title.'' Under 38 U.S.C. 7104(b), when a claim is disallowed by the
Board of Veterans' Appeals (Board), it may not thereafter be reopened
and allowed ``[e]xcept as provided in section 5108 of this title.'' To
the extent these statutes may be construed to permit VA by regulation
to create additional exceptions to the finality of AOJ decisions, but
not Board decisions, we decline to exercise that authority here. Such a
rule would depart significantly from the well-established principle,
discussed below, that new judicial interpretations of a statute do not
provide a basis for reopening final decisions, and it would create an
unfair distinction among claimants based upon whether their last final
decision was issued by an AOJ or the Board. Moreover, as explained
below, other authorities provide a basis for addressing claims
involving expenses incurred on or after February 1, 2010, in a manner
we believe to be more equitable and consistent with established
precedents.
There are only two statutory exceptions to the rule of finality,
new and material evidence and clear and unmistakable error, 38 U.S.C.
5108, neither of which authorizes VA to proactively re-open and re-
adjudicate finally decided claims as a result of the Staab decision as
suggested by the commenters. See 38 U.S.C. 5108, 5109A, and 7111; Cook
v. Principi, 318 F.3d 1334, 1339 (Fed. Cir 2002). As these two
exceptions relate to the lines of reasoning raised by the commenters
above, we do not believe that the authority provided in section 1725
authorizes VA to re-adjudicate the claims in a manner that is
inconsistent with 38 U.S.C. 5108, 5109A, and 7111. In addition, we do
not believe that the Staab decision requires VA to re-adjudicate all
finally decided claims retroactive to the effective date of the law.
Significantly, the court did not order VA to re-adjudicate all finally
decided claims from the date of enactment; instead, the court vacated
the Board's decision that denied Mr. Staab's individual claim and
ordered VA to re-adjudicate Mr. Staab's individual claim, which was not
finally decided because he filed a timely appeal. In order to
adjudicate the claim and address the court's invalidation of Sec.
17.1002(f), VA amended its payment regulations to establish a payment
methodology for claims, like Mr. Staab's, that involve partial payment
by a health-plan contract. The Staab decision did not address and does
not govern VA's authority to apply the new methodology to claims that
were finally decided prior to the decision.
Further, in George v. McDonough, 142 S. Ct. 1953, the Court held
that invalidation of a VA regulation after a veteran's benefits
decision becomes final cannot support a claim for collateral relief
based on clear and unmistakable error. Therefore, neither the Staab
decision, nor later decisions in the Wolfe or Kimmel matters create a
clear and unmistakable error that would allow for readjudication of
already denied claims.
However, when an intervening and substantive change in law occurs
and creates a new basis for entitlement to a benefit (e.g., judicial
interpretation and invalidation of a regulation results in expansion of
entitlement to a benefit), VA may review a new claim based on the same
facts as the finally decided claim. Spencer v. Brown, 17 F.3d 368, 372
(Fed. Cir.) (1994). In this situation, individuals whose claims were
finally decided prior to the change in law may submit new claims to be
adjudicated under the revised standard. We therefore explained to the
members of Congress that VA can reach claims that were finally decided
prior to the Staab decision (on the sole grounds that partial payment
would be, or had been, made under the veterans' health-plan contract),
if the veterans or providers file new claims for the same benefits that
were previously denied. VA further explained that we will adjudicate
claims from providers or veterans who, due to their awareness of the
former interpretation of the law (former Sec. 17.1002(f)), chose not
to file claims because partial payment had been made or would be made
under the veterans' health-plan contracts. The Secretary also informed
the members of Congress that we would create a solution, through
amendatory rulemaking, to avoid denial of these claims as untimely
under the current filing deadlines specified in regulation. It was
further explained that all providers or veterans seeking reimbursement
under the revised regulation would be required to submit evidence
showing the amount paid by their health insurance plan and the amount
of the veteran's remaining liability. The reason for this requirement
is explained below.
The third Congressional comment (from the Senate Committee on
Veterans' Affairs) stated that the timely filing requirement for these
claims should be waived completely. The comment further stated that VA
should proactively reach out to veterans whose
[[Page 10837]]
claims were denied under the previous regulations because making
veterans refile their claims would be unduly burdensome and create a
barrier to filing that will disproportionately impact veterans whom the
comment described as already being vulnerable.
VA agrees that it is necessary to provide the two groups of
claimants described above with an opportunity to file new claims for
payment or reimbursement of emergency treatment costs incurred in the
community on or after February 1, 2010, up to April 8, 2016 (the date
of the Staab decision), and to adjudicate these claims under the new
legal standard, subject to the one-year filing deadline established in
Sec. 17.1004(f), as revised by this final rule. To simply waive the
timely filing requirement for these claims would be problematic,
however, as it would prevent VA from being able to reliably forecast
budgetary and other claims processing needs relative to these claims.
Moreover, health insurance claims are generally processed in accordance
with firm time limits established by the governing contracts, including
those applicable to the carriers' appeals processes. Thus, the amounts
paid under veterans' health-plan contracts have already been
identified. Unless these records are no longer retained by the
carriers, this historical information exists and can be requested. In
the alternative, the veteran may have personal possession of these
historical records. In either event, VA believes that a one-year filing
deadline is reasonable and gives these claimants an adequate
opportunity to seek payment or reimbursement for costs incurred during
the covered time-period. VA will therefore not waive the timely filing
requirement for claimants affected by the Staab decision.
In order to address the concerns raised, and in response to
comments that VA received on the IFR, VA will amend Sec. 17.1004 to
afford veterans affected by the Staab decision an opportunity to file a
new claim based on the change in law. Specifically, VA is amending
Sec. 17.1004(f), which currently provides an exception to the timely
filing requirements in Sec. 17.1004(d) for dates of service between
July 19, 2001, and 90 days before May 21, 2012, if the claimant files a
claim for reimbursement no later than one year after May 21, 2012.
Because the time frame for the waiver in current Sec. 17.1004(f) has
passed, we will amend this paragraph by removing the previous time
frame for the waiver and, in its place, allow claimants to file a
claim, notwithstanding paragraph (d) of this section, for reimbursement
of costs of non-VA emergency treatment rendered on or after February 1,
2010 and more than 90 days before February 22, 2023 for which partial
payment was paid or payable under the veterans' health-plan contracts,
provided the claimants file their claims for reimbursement no later
than one year after February 22, 2023. This amendment will thus provide
all claimants affected by the Staab decision, regardless of whether
they previously filed claims for reimbursement, an opportunity to
submit a claim for payment or reimbursement of the costs of non-VA
emergency treatment they received on or after the effective date of the
2010 Act.
VA has additionally determined that anyone who had been potentially
adversely affected by the issues raised in the Wolfe litigation, or the
subsequent Kimmel petition, would fall within this waiver period.
Therefore, they would also be able to seek adjudication of their claims
under the new standard. To the extent the issues here are distinct from
those raised by the Staab case, the inclusion within these timeframes
will still allow for those issues to be addressed.
As a matter of prudence, and because this precise change to Sec.
17.1004 differs from the interim final rule, VA is inviting the public
to comment on the change. Therefore, a 60-day comment period to address
this single topic will be provided.
Copayments and Similar Payments
Section 1725(c)(4)(D) prohibits VA from reimbursing a veteran for a
copayment or similar payment that the veteran owes a third party or is
responsible to pay under a health-plan contract. The interim final rule
interpreted ``similar payment'' to include deductibles and coinsurance.
We received multiple comments that coinsurance and deductibles are not
``similar payments'' to copayments and should be removed from the list
of payments for which VA will not provide reimbursement. Following the
public comment period, the Federal Circuit's order regarding the Kimmel
petition held that coinsurance was the type of payment envisioned by
Congress that VA would pay or reimburse while deductibles were similar
to copayments and therefore prohibited from payment or reimbursement
pursuant to 38 U.S.C. 1725(c)(4)(D).
Consistent with this decision, we are removing coinsurance from the
list of prohibited payments in Sec. 17.1005(a)(5) but will not remove
deductibles from that list.
The following discussion specifically addresses the related
comments we received during the public comment period on this issue.
Commenters explained that a copayment, by definition, is
distinguishable from other forms of cost-sharing, such as deductibles
and coinsurance, and that copayments result in much lower liabilities
than deductibles and coinsurance. The commenters stated that each term
is a ``term of art'' with a specific, accepted, meaning and that the
term copayment cannot be read to include these different obligations.
One commenter defined copayment as the set dollar amount the patient
pays for care after the deductible is paid, deductible as the amount an
insured must pay each year before the insurance source pays its share,
and coinsurance as the percent of costs the enrollee must pay. Another
commenter similarly defined a copayment as a fixed, flat fee, amount
paid by an insured for each particular covered health care service
after paying any deductible, a deductible as a fixed amount an insured
pays each year for eligible medical services or medicines before
insurance will make any payment, and coinsurance as a portion of all
the medical costs that an insured must pay of all costs subject to the
coinsurance.
In Wolfe v. McDonough, No. 2020-1958, Fed. Cir. (Mar. 17, 2022),
the Federal Circuit indicated that copayments and deductibles were
similar payments, as they are both fixed quantities which become known
once insurance is purchased, while coinsurance is a variable quantity
that becomes known after medical expenses are incurred. The Federal
Circuit also found that the legislative history supports that
deductibles were intentionally excluded from reimbursement as a similar
payment but coinsurance was not. Later, in the response to the Kimmel
petition, the Federal Circuit determined that coinsurance was the type
of payment envisioned by Congress that VA would pay or reimburse while
deductibles were similar to copayments and therefore prohibited from
payment or reimbursement pursuant to 38 U.S.C. 1725(c)(4)(D).
Several commenters stated that the rules of statutory construction
require us to presume Congress meant what it said and that, in other
statutory contexts, Congress has not used the specific term, copayment,
to include other forms of cost-sharing. One commenter noted that they
do not believe there is a Congressional reference to copayments that
includes
[[Page 10838]]
coinsurance and deductibles. The commenters provided the following
examples: 38 U.S.C. 1729(a)(3) uses ``deductible or copayment;'' under
the essential health benefit limitations on cost-sharing, Congress
refers to ``copayments and coinsurance;'' in establishing premium and
cost sharing subsidies for low-income individuals, Congress made
reference to copayment separately from coinsurance; and in the
statutory authority for VA to require copayments for medications, the
law referred to copayments and did not include coinsurance or
deductibles. The commenters stated that had Congress intended
deductibles or coinsurance be excluded from reimbursement, it would
have used such language.
To clarify, VA does not believe that Congress intended for the term
``copayment'' in section 1725(c)(4)(D) to, by itself, encompass
deductibles. Instead, VA believes it is the phrase ``or similar
payment'' that is intended to include other forms of cost sharing, such
as deductibles. VA agrees that we must presume Congress meant what it
said, and in section 1725, Congress said ``copayment or similar
payment.'' A statute must be interpreted, ``so that effect is given to
all its provisions, so that no part will be inoperative or superfluous,
void or insignificant.'' Corley v. United States, 556 U.S. 303, 304
(2009). To find meaning in the phrase ``similar payment,'' VA must
identify and consider other payments for which a veteran is responsible
under a health plan contract. VA can find no payment more similar to a
copayment than a deductible, which serves as a fixed-amount cost-
sharing measure to which the insured freely agrees to pay as a
condition of insurance coverage. As noted in Wolfe, similar payments
necessarily means that some payments that are not copayments are
similar payments. The Federal Circuit found that deductibles were
envisioned by Congress to be similar to copayments and thus prohibited
from payment or reimbursement. The Federal Circuit looked at the
legislative history for 38 U.S.C. 1725 and determined that it supports
that Congress intentionally excluded deductibles from reimbursement as
a similar payment.
Another commenter stated that VA did not provide any legal
authority to broaden the statutory language in section 1725(c)(4)(D) to
include deductibles and coinsurance. We disagree. First, Congress
explicitly gave VA broad authority to implement section 1725 in
regulations prescribed by the Secretary. Specifically, section
1725(c)(1)(B) provides that, ``The Secretary, in accordance with
regulations prescribed by the Secretary, shall . . . delineate the
circumstances under which such payments may be made . . . .'' Moreover,
as crafted, the language of section 1725(c)(4)(D) plainly allows for
other payments to be included within its scope, provided they are
similar to the one named. As noted throughout this discussion, the
Federal Circuit in Wolfe and Kimmel acknowledged that inclusion of the
phrase ``similar payments'' in the statute necessarily means that some
payments that are not copayments are similar payments. The Federal
Circuit interpreted section 1725(c)(4)(D) and its legislative history
to determine that a deductible is a similar payment to a copayment and
thus excluded from payment or reimbursement. For these reasons, we
believe that VA has authority to interpret the phrase ``or similar
payment'' in paragraph (4)(D) of subsection (c).
The commenters also stated that the legislative history and the
Veterans Court's Staab decision provide that the purpose of the 2010
Act was to make VA responsible for the cost (of the emergency
treatment) exceeding the amount payable or paid by the third-party
insurer, noting that a deductible or coinsurance amount is not payable
or paid by the third-party insurer. VA agrees that part of the
legislative history related to the 2010 Act and the Staab decision each
reflect an expectation or understanding that the 2010 Act amendments
effectively enable VA to pay the entire remainder owed to the emergency
provider after partial payment is made or payable under the veteran's
health-plan contract. However, even if this were intended, the 2010 Act
did not accomplish this goal. The still relevant provisions of section
1725(c) explicitly require VA to limit the amount of reimbursement
available under section 1725. Indeed, the header for subsection (c) is
``Limitations on reimbursement.'' To this end, section 1725(c)(1)
directs VA to promulgate regulations that limit payment, to include
establishing a maximum amount payable under section 1725. In addition,
section 1725(c)(4)(D) expressly prohibits VA from reimbursing a veteran
for any copayment or similar payment that the veteran owes the third
party or for which the veteran is responsible under a health-plan
contract. These, along with the other likewise intact provisions of
subsection (c), reflect a continuing requirement to limit the budgetary
impact of section 1725. If the drafters of the 2010 Act believed that
VA's secondary payment would cover all of the eligible veterans' out-
of-pocket costs, we conclude that they failed to execute all the
amendments needed to accomplish this, and the Federal Circuit confirmed
this by its interpretation of the statute.
Multiple commenters mentioned that the bar on reimbursement of
deductibles and coinsurance acts as a disincentive to purchasing health
insurance coverage. They suggest that the exclusion of veterans' out-
of-pocket (cost sharing) costs could result in veterans foregoing the
purchase of health insurance, leaving VA with increased costs as their
sole payer. One of the commenters stated that veterans will always have
personal liability if they have Medicare Part B and the proposed change
will do nothing to resolve the veteran's personal liability. The
commenter further stated that it will encourage veterans to discontinue
their Medicare Part B and recommends that the rule require veterans to
have Medicare Part B.
As discussed above, VA interprets ``similar payments'' to include
deductibles; thus, VA does not have authority to reimburse these costs.
As a matter of policy, VA interprets ``similar payments'' this way in
order to avoid any conflict with the Federal Circuit. VA acknowledges
that veterans who do not have health insurance would likely pay no out-
of-pocket costs while veterans who do have health insurance may have
out-of-pocket costs resulting from their cost share obligations.
Nonetheless, VA does not believe that this potential disparity will
deter veterans from purchasing health insurance. Most veterans enrolled
in the VA health care system have an additional type of health
insurance coverage. It seems unlikely that they would forego their
health insurance protection for all other medical conditions, which are
likewise subject to their plan's deductible requirements, merely to
avoid having to pay copayments and similar payments owed in connection
with the receipt of non-VA emergency treatment. Again, these are cost
shares that they freely agreed to pay in exchange for health insurance
coverage independent of their VA benefits. Ultimately, whether to keep
or obtain health insurance is a personal financial decision for
veterans enrolled in VA's health care system to make based on their own
needs, financial capability, and preferences.
As it concerns veterans who are eligible for reimbursement under
section 1725 and who also have coverage for emergency treatment under
Medicare Part A, VA has no authority to require that they be enrolled
in Medicare Part B as a condition of
[[Page 10839]]
payment or reimbursement under section 1725.
Based on these comments and the Wolfe decision and Kimmel order, we
are removing coinsurance from the list of prohibited payments in Sec.
17.1005(a)(5) but will not remove deductibles from that list. We are
also retaining the ``or similar payment'' qualifier on the end of the
list to maintain the flexibility originally envisioned by Congress's
initial inclusion of the phrase in section 1725. Retaining ``or similar
payment'' allows VA to be flexible in the future, should some new type
of health care cost sharing arise.
Payment Limitations
Several commenters raised a concern that VA's payment limitation of
70 percent of the Medicare fee schedule rate was too low. The
commenters requested that VA amend the rule to pay the fair market
value for the services rendered. One commenter explained that payment
below the fair market value could jeopardize the financial viability of
the emergency care safety net.
To clarify, the scope of this rulemaking is to amend VA's
regulations to comply with case law interpreting the scope of VA's
reimbursement authority. Therefore, this rulemaking only affects
reimbursement when the veteran has partial payment from a third party;
it does not affect the amount VA will pay when the veteran has no other
coverage, which is governed by a different provision of the payment
regulation. When the veteran has partial payment for the emergency
treatment expenses from a third party, VA is the secondary payer. Under
the amended payment regulation, VA pays the lesser of: the amount for
which the veteran is still personally liable after payment by a third
party (including a health-plan contract); or 70 percent of the
applicable Medicare fee schedule rate.
For example, a veteran has an initial liability of $100 dollars. 70
percent of the Medicare fee schedule is $70 and the veteran's health-
plan contract paid the provider 80 percent of the Medicare fee schedule
rate ($80). If the veteran has remaining liability to the provider
(other than a copayment, deductible or similar payment), then VA would
still be able to pay up to $20 towards the veteran's remaining
liability even after the payment of $80 from the health plan contract.
Although VA can pay up to 70 percent of the Medicare fee schedule,
which is $70, the veteran's remaining liability in this instance would
only be $20 after deducting the health-plan contract's payment of $80
from the $100 liability. As secondary payer, VA's maximum allowable
amount is in addition to the amount already paid (or payable) by the
health-plan contract. For this reason, VA believes that emergency
treatment providers will ultimately receive at least fair market value
for their services; consequently, this final rulemaking will not
jeopardize the financial viability of emergency departments. VA does
not make any changes to the rule based on these comments.
Other commenters stated that the low reimbursement rate would
encourage health care professionals to deny treatment to veterans for
fear of inadequate reimbursement. All veterans affected by this
rulemaking already have coverage for emergency treatment expenses under
their health-plan contracts, with rates presumably negotiated (by the
carriers and providers) to ensure adequate reimbursement. Again, VA is
secondary payer to these contracts. The combined payment by the primary
payer (health-plan contract) and VA for the same emergency treatment
episode should thus provide adequate reimbursement, as discussed above.
In addition, a Medicare-participating hospital with an emergency
department that denies emergency care to an individual due to the
individual's inability to pay would arguably violate the Emergency
Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. 1395dd, as
amended. Under EMTALA, if any individual (regardless of Medicare-
eligibility) seeks examination or treatment for a medical condition at
a covered hospital, then the hospital must provide a screening
examination to determine whether an emergency medical condition exists.
If so, the hospital is, in general, required to furnish needed
emergency treatment until the individual is stabilized and able to be
transferred irrespective of the patient's ability to pay. For these
reasons, we do not make any changes to the rule based on these
comments.
Another commenter stated that Congress did not intend for VA to set
such a low rate and cited to a study that found that in-network
emergency physician claims were paid at 297 percent of the Medicare
rate and out-of-network emergency physicians charged an average of 798
percent of the Medicare rate. The legislative history from when 38
U.S.C. 1725 was originally enacted demonstrates that Congress intended
for VA to set a rate that is lower than the Medicare fee schedule rate.
The legislative history reads, ``The Committee thus envisions that VA
would establish rates that are significantly below those paid under the
Medicare or Medicaid system (or under 38 United States Code, section
1728).'' House Report 106-237 (July 16, 1999). Therefore, VA believes
that the rate it set is precisely what Congress envisioned, and we do
not make any changes to the rule based on this comment.
The commenter also noted that the interim final rule permits
emergency providers to reject the payment amount, which would
presumably leave the veteran fully responsible for the payment. Given
the low rate, the commenter feared that these providers may reject the
amount and seek full payment from the veteran. As noted above, VA has
been paying 70 percent of the applicable Medicare fee schedule rate in
instances when VA is the sole payer ever since the regulations were
effective on May 29, 2000 (66 FR 36470) (unless, of course, the amount
owed to the provider was less than 70 percent of the Medicare fee
schedule rate, thereby requiring the lesser amount to be paid). Since
that time, very few, if any, of VA's payments have been rejected,
presumably because these debts would have otherwise been written off by
the providers. Because emergency providers may view the new cohort of
veterans covered by the court's decision as having the ability to self-
pay more than the VA allowable amount, we have devised a payment
methodology to reduce the likelihood that the providers will reject VA
payment. Emergency providers will be receiving greater than 70 percent
of the Medicare fee schedule rate; again, they will receive a combined
payment comprised of the third party's payment and VA's payment. At
this time, and in the absence of compelling evidence requiring a
changed approach, we decline to make any changes to the rule based on
this comment.
One commenter sought clarification on liability for cost-sharing.
In particular, the commenter asked whether a veteran's cost sharing
responsibilities are also extinguished if a health care provider
accepts payment from VA for the emergency treatment. We clarify that
some of the veteran's cost sharing obligations, such as a copayment or
deductible, are not extinguished by VA payment. Those are contractual
payment obligations, non-reimbursable by VA, that are owed by the
veteran to the provider, consistent with the terms of the veteran's
health-plan contract. We do note however, under this amended rule, VA
will pay or reimburse for a veteran's coinsurance as part of its
underlying payment for medical treatment. Therefore,
[[Page 10840]]
acceptance of payment from VA will extinguish any coinsurance
responsibility on the part of the veteran. See 38 CFR 17.1005(a)(4). We
do not make any changes to the rule based on this comment.
Miscellaneous
One commenter requested that VA provide clarity on two provisions
in the regulations. The first provision is the prudent layperson
standard in 38 CFR 17.1002(b). The regulation provides that, in order
to receive reimbursement, the veteran must have sought care for which a
prudent layperson would have reasonably expected that delay in seeking
immediate medical attention would have been hazardous to life or
health. The commenter recommended that VA provide a list of services
that would meet this standard to ensure that emergency treatment claims
filed by veterans are not improperly rejected. The commenter suggested
that VA adopt the list from the American College of Emergency
Physicians. VA appreciates the commenter's suggestion, but the scope of
the rulemaking is narrowly limited to amending VA's regulations to
comply with the Staab and Wolfe decisions and the Kimmel order by
permitting reimbursement when the veteran has partial payment from a
health-plan contract. Therefore, this comment is beyond the scope of
this rulemaking, and we do not make any edits based on the comment.
However, VA will continue to monitor the program and consider whether
additional rulemaking may be necessary in the future.
The commenter also requested that VA amend the rule to
affirmatively state that VA cannot deny a claim after a veteran passes
away if the emergency medical treatment is furnished prior to the
veteran's death. The commenter noted that the interim final rule states
that reimbursement is not available if death occurs before emergency
treatment is provided. We want to clarify that the interim final rule
does not state that reimbursement is not available if death occurs
before emergency treatment is provided. Instead, the interim final rule
provides that VA can provide reimbursement for emergency transportation
even if the veteran passes away before emergency treatment is rendered
at the community hospital. While VA appreciates the suggestion, VA
believes that the interim final rule, in conjunction with the
explanation provided here, is sufficiently clear that reimbursement can
be provided even if the veteran passes away. Therefore, we do not make
any changes to the rule based on this comment.
One commenter expressed a concern about whether and how VA informs
a veteran when the veteran has an outstanding debt with a medical
facility and the veteran's first notification comes in the form of a
debt collection letter. The commenter explained that a veteran received
a letter from a local hospital and it took four months to determine
that there was no outstanding balance on the veteran's account and the
letter was sent as a result of a bookkeeping error on the part of the
hospital. Although VA is sympathetic to the veteran we note that this
is scenario is not representative of most instances of reimbursement
for emergency treatment. However, this rulemaking expands eligibility
criteria for reimbursement for the costs of emergency treatment
rendered by community emergency providers to veterans for their non-
service-connected conditions. Because the comment is beyond the scope
of this rulemaking, we do not make any changes to the rule based on
this comment.
One commenter inquired as to why they were taken to a community
hospital when a VA medical center was less than eight minutes away. The
commenter received a bill for the transportation to the community
hospital. The commenter also discussed the poor treatment rendered by
the community hospital, as perceived by the commenter. To the extent
that the commenter seeks reimbursement for the costs of transport to
the community hospital, we invite the commenter to file an emergency
transportation claim under section 1725 as implemented by 38 CFR
17.1003 and 17.1004. But again, because this rulemaking only expands
eligibility requirements for reimbursement of the costs of emergency
treatment rendered by community hospitals for veterans' non-service-
connected conditions, this comment is beyond the scope of the
rulemaking. No changes are made to the rule based on these comments.
We also received one comment regarding Executive Order 13771. This
rulemaking was not affected by Executive Order 13771. Therefore, this
comment is beyond the scope of the rulemaking, and we do not make any
changes to the rule based on the comment.
Changes to Sec. 17.1003
While we did not receive any public comments on this issue we are
amending Sec. 17.1003(a)(1) as a logical outgrowth of the interim
final rule to add VA as a clarifying example of payor of emergency
treatment which would not forestall eligibility for emergency
transportation.
In the interim final rule, we amended Sec. 17.1003 to add
paragraph (a)(1) which provides that payment or reimbursement for
ambulance services may be made if payment or reimbursement would have
been authorized under 38 U.S.C. 1725 for emergency treatment had the
veteran's personal liability for the emergency treatment not been fully
extinguished by payment by a third party, including under a health-plan
contract. VA amended Sec. 17.1003 in the interim final rule to address
a long-standing tension in Sec. 17.1003 with VA's interpretation that
emergency transportation is part of emergency treatment. VA has
historically interpreted the phrase ``emergency treatment'' in section
1725(f)(1) to include emergency transportation if the transportation is
provided as part of the emergency medical treatment administered at the
non-VA facility. However, Sec. 17.1003 did not allow VA to pay for the
transportation if the liability for the emergency treatment had already
been extinguished by a third party. The interim final rule explained
that if VA's sole basis to deny a transportation claim is satisfaction
by a third party of the related emergency treatment claim, even if that
transportation claim meets all of the other requirements for
reimbursement under 38 U.S.C. 1725, VA would be, in effect, treating
the emergency transportation claim differently than the related
emergency treatment claim. Therefore, in order to make Sec. 17.1003
consistent with VA's interpretation that the emergency transportation
is part of the claim for emergency treatment, VA amended Sec. 17.1003
to ensure that payment or reimbursement for emergency transportation
would not be prohibited on the sole basis that the emergency treatment
claim was fully extinguished. While in the interim final rule VA only
referenced liability being extinguished by a third party, VA believes
that the public was sufficiently put on notice that the intended effect
of the change was to ensure emergency transportation under Sec.
17.1003 would not be prohibited on the sole basis that the emergency
treatment was fully extinguished by another source.
In this rulemaking we revise Sec. 17.1003(a)(1) by adding the
phrase ``or by VA'' after health plan contract. This addition is
necessary to ensure that, consistent with the interpretation discussed
above, VA can pay or reimburse for emergency transportation under
section 1725 even if VA
[[Page 10841]]
extinguishes the liability for the underlying emergency treatment using
a different authority, such as under VA's Community Care Program at 38
CFR 17.4020(c).
Thus, we are revising Sec. 17.1003(a)(1) to make clear that a
veteran may be reimbursed for ambulance services made for transporting
a veteran to a facility if payment or reimbursement would have been
authorized under section 1725 for emergency treatment had the veteran's
personal liability for the emergency treatment not been fully
extinguished by a third party, to include under a health plan contract,
or by VA. Based on the rationale set forth in the Supplementary
Information sections of the interim final rule and this final rule, VA
is adopting as final the interim final rule with the changes stated in
this final rule.
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 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 final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). This rule would not cause a significant economic impact on small
entities since this exemption is limited to individual veterans who VA
determines to be affected by the Stabb or Wolfe cases. Only individual
veterans are effects by the virture of being able to submit claims for
coinsurance reimbursement. Individuals are not the small entities, they
cannot be broken out by appropriate size standard, number affected, and
business revenue. 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. Although some eligible entities or providers that
furnished emergency care and services to veterans under this authority
may be considered small entities, there will be no significant adverse
economic impact because this rule does not create a new payment
obligation on such entities; it merely creates a new payment
methodology for services already rendered.
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 involves a collection of information that is
controlled by the requirements of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501-3521). While there are no provisions associated with
this rulemaking constituting a new collection of information, the
changes to reimbursement may constitute substantive revisions to the
existing collection of information. The Office of Management and Budget
(OMB) previously approved a Paperwork Reduction Act (PRA) clearance for
information collected pursuant to 38 U.S.C. 1725 under OMB control
number 2900-0620, which expired on July 31, 2018. The collection of
information is being processed for a reinstatement of the PRA clearance
from OMB through a separate Federal Register notice (FRN) published in
the Federal Register. The FRN will provide the public with an
opportunity to comment on the information collection and any revisions
for Payment or Reimbursement for Emergency Services for Nonservice-
Connected Conditions in Non-Department Facilities. A final FRN also
will be published in the Federal Register when the collection of
information is submitted to OMB for approval of the PRA clearance
renewal.
Congressional Review Act
Under the Congressional Review Act, this regulatory action may
result in an annual effect on the economy of $100 million or more, 5
U.S.C. 804(2), and so is subject to the 60-day delay in effective date
under 5 U.S.C. 801(a)(3). In accordance with 5 U.S.C. 801(a)(1), VA
will submit to the Comptroller General and to Congress a copy of this
Regulation and the Regulatory Impact Analysis (RIA) associated with the
Regulation.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Claims, Health care, Health
facilities, Health professions, Health records, Reporting and
recordkeeping requirements, Travel and transportation expenses,
Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on December 30, 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.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the interim final rule
amending 38 CFR part 17, which was published at 83 FR 974 on January 9,
2018, is adopted as final with the following changes:
PART 17--MEDICAL
0
1. The general authority citation for part 17 continues to read as
follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
0
2. Amend Sec. 17.1003 by revising paragraph (a)(1) to read as follows:
Sec. 17.1003 Emergency transportation.
(a) * * *
(1) The veteran's personal liability for the emergency treatment
not been fully extinguished by payment by a third party, including
under a health-plan contract, or by VA; or
* * * * *
0
3. Amend Sec. 17.1004 by revising paragraph (f) to read as follows:
Sec. 17.1004 Filing claims.
* * * * *
(f) Notwithstanding paragraph (d) of this section, VA will provide
retroactive payment or reimbursement for emergency treatment received
by the veteran, on or after February 1, 2010 but more than 90 days
before February 22, 2023, if the claimant was eligible for partial
payment from a health-plan contract for the emergency treatment and the
claimant files a claim for
[[Page 10842]]
reimbursement no later than 1 year after February 22, 2023.
* * * * *
0
4. Amend Sec. 17.1005 by revising paragraph (a)(5) to read as follows:
Sec. 17.1005 Payment limitations.
(a) * * *
(5) VA will not reimburse a veteran under this section for any
copayment, deductible, or similar payment that the veteran owes the
third party or is obligated to pay under a health-plan contract.
* * * * *
[FR Doc. 2023-03339 Filed 2-21-23; 8:45 am]
BILLING CODE 8320-01-P