Proposed Rule2022-02292
VA Pilot Program on Graduate Medical Education and Residency
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 4, 2022
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs proposes to revise its medical regulations to establish a new pilot program on graduate medical education and residency, as required by section 403 of the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Network Act of 2018.
Full Text
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<title>Federal Register, Volume 87 Issue 24 (Friday, February 4, 2022)</title>
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[Federal Register Volume 87, Number 24 (Friday, February 4, 2022)]
[Proposed Rules]
[Pages 6456-6466]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02292]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AR01
VA Pilot Program on Graduate Medical Education and Residency
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs proposes to revise its
medical regulations to establish a new pilot program on graduate
medical education and residency, as required by section 403 of the John
S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining
Internal Systems and Strengthening Integrated Outside Network Act of
2018.
DATES: Comments must be received on or before April 5, 2022.
ADDRESSES: Comments may be submitted through <a href="http://www.Regulations.gov">www.Regulations.gov</a> or
mailed to, Paul B. Greenberg, Deputy Chief, Office of Academic
Affiliations, (14AA), Department of Veterans Affairs, 810 Vermont Ave.
NW, Washington, DC 20420. Comments should indicate that they are
submitted in response to ``RIN 2900-AR01--VA Pilot Program on Graduate
Medical Education and Residency.'' Comments received will be available
at <a href="http://regulations.gov">regulations.gov</a> for public viewing, inspection or copies.
FOR FURTHER INFORMATION CONTACT: Paul B. Greenberg, Deputy Chief,
Office of Academic Affiliations, (14AA), Department of Veterans
Affairs, 810 Vermont Ave. NW, Washington, DC 20420, (202) 461-9490.
(This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION: Section 403 of the John S. McCain III,
Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems
and Strengthening Integrated Outside Network Act of 2018 (Pub. L. 115-
182, hereafter referred to as the MISSION Act) mandated the Department
of Veterans Affairs (VA) create a pilot program to establish additional
medical residency positions authorized under section 7302 of title 38
United States Code (U.S.C.) (note to 38 U.S.C. 7302) at certain covered
facilities. This proposed rule would establish substantive and
procedural requirements to allow VA to administer this pilot program in
a manner consistent with section 403 of the MISSION Act.
Section 7302(e)(1) of title 38 United States Code (U.S.C.) permits
VA to both establish medical residency programs in VA facilities and
ensure that such established programs have a sufficient number of
residents. Section 403 of the MISSION Act created a note to section
7302 to expand VA's authority to establish medical residency positions
in covered facilities to include non-VA facilities such as health care
facilities of the Department of Defense and Indian Health Service.
Section 403 of the MISSION Act further provides parameters for VA to
determine those covered facilities in which residents will be placed.
For instance, section 403 requires VA to consider certain factors to
determine whether there is a clinical need for providers in areas where
residents would be placed. Section 403 also requires prioritized
placement of residents under the pilot program in Indian Health Service
facilities, Indian tribal or tribal organization facilities, certain
underserved VA facilities, or other covered facilities. Section 403
additionally authorizes VA to pay resident stipends and benefits
regardless of whether such residents are assigned to a VA facility, and
requires VA to pay certain startup costs of new residency programs
(such as curriculum development and faculty salaries) if residents are
placed in such programs under the pilot program. The authority for the
pilot was initially scheduled to expire on August 7, 2024; however, it
was subsequently extended to August 7, 2031, under section 5107 of
Public Law 116-169.
Before detailing the regulations we propose to implement this
mandated pilot program, we provide a brief summary of VA's
administration of its Graduate Medical Education (GME) programming
under 38 U.S.C. 7302(e), to establish a basic understanding of VA's
understand of the conduct of GME programming in general. Under section
7302(e)(1), VA establishes new medical residency programs in VA
facilities and
[[Page 6457]]
ensures that such programs have a sufficient number of residents; VA
also ensures that existing medical residency programs have a sufficient
number of residents. Criteria under sections 7302(e)(1)(A)-(B) and
(e)(2)(A)-(B) further guide VA's selection of its facilities in which
residency programs will be established or residents will be placed,
where such criteria relate to VA staffing levels, location of VA
facilities in certain areas deemed as health professional shortage
areas, and priority for residents to be placed for the provision of
specific types of health care. Through a request for proposal (RFP)
mechanism, VA Central Office notifies VA facilities of these selection
criteria as well as other parameters. This RFP details, among other
things: Consideration factors to be assessed by VA Central Office (as
well as the relative importance or weight of such factors); information
required from VA facilities to be in any response to the RFP submitted
back to VA Central Office; and the process to submit a response to the
RFP, to include submission instructions and timelines for completion.
Upon receipt of those RFP responses submitted by VA health care
facilities, VA Central Office evaluates the responses submitted against
the criteria in the RFP to determine those facilities in which
residents will be placed or whether funding will be made available for
certain costs of establishing new medical residency programs. In
administering GME programming under section 7302(e), VA forms
relationships with non-VA institutions that sponsor graduate medical
educational programs (most often medical schools or teaching
hospitals), and it is those sponsoring institutions that provide the
residents that would be available for placement in VA facilities. VA,
therefore, does not control the pool of participating educational
programs or available residents, although VA does assess the
requirements under section 7302(e) to determine the best placement for
such residents in VA facilities. VA in effect then does not place
residents but does provide for resident positions to be filled in VA
facilities. Under section 7302(d), VA forms academic affiliations with
sponsoring institutions to delineate the responsibilities regarding the
training of the residents, and VA enters into other separate agreements
to control funding of both certain residency program educational costs
(such as accreditation fees and National Resident Match Program fees)
and the costs of paying resident stipends and benefits. VA envisions
that the pilot program authorized under section 403 would be conducted
under the same basic tenets of GME programming as presented above, such
that there would be agreements formed with academic affiliations with
sponsoring institutions and the covered facilities recognized in
section 403 and in which residents would be placed under the pilot. We
will note throughout these proposed regulations where we expect there
to be administrative and substantive similarities and differences
between VA's statutory GME programming under 38 U.S.C. 7302 and the
pilot program required by section 403.
We propose to establish several new regulation sections in part 17
of title 38 Code of Federal regulation (CFR) in Sec. Sec. 17.243
through 17.248 to implement this mandated pilot program, as further
discussed below.
Sec. 17.243 Purpose and scope.
Proposed Sec. 17.243(a) would establish that proposed Sec. Sec.
17.243 through 17.248 would implement the VA Pilot Program on Graduate
Medical Education and Residency (PPGMER) to place residents in existing
or new residency programs in covered facilities and to reimburse
certain costs associated with establishing new residency programs in
covered facilities, as authorized by section 403 of Public Law 115-182.
Proposed Sec. 17.243(b) would establish the scope of the PPGMER by
stating that Sec. Sec. 17.243 through 17.248 would apply only to the
PPGMER as authorized under section 403 of Public Law 115-182, and not
to VA's more general administration of GME programs in VA facilities as
authorized under 38 U.S.C. 7302(e). Establishing the scope of the
PPGMER as separate from VA's more general GME programming under 38
U.S.C. 7302(e) would be necessary because the PPGMER is a time-limited
pilot program that will sunset on August 7, 2031 (unless statutorily
reauthorized or made permanent), and because section 403 of the MISSION
Act establishes PPGMER-specific criteria that do not otherwise apply to
VA's administration of GME programs under 38 U.S.C. 7302(e).
Additionally, although the PPGMER would be a separately administered
program under these proposed regulations, the PPGMER would utilize some
of the same administrative concepts or procedures as VA uses to
administer programs under 38 U.S.C. 7302(e). For instance, some
definitions as proposed in these regulations may be the same as
established in certain VA policy used to administer GME programming
under section 7302(e), as will be explained in discussion of proposed
Sec. 17.244. Proposed Sec. 17.243 would not state the 2031 sunset
date of the PPGMER, as the authority for PPGMER may be extended or made
permanent in the future. If the authority for PPGMER were not extended
or made permanent, VA would cease to implement the PPGMER and would
issue a publication in the Federal Register to remove and reserve the
regulation.
Sec. 17.244 Definitions.
Proposed Sec. 17.244 would establish definitions to apply to the
PPGMER under proposed Sec. Sec. 17.243 through 17.249.
The term benefit would be defined to mean a benefit provided by VA
to a resident that has monetary value in addition to a resident's
stipend, which may include but not be limited to health insurance, life
insurance, worker's compensation, disability insurance, Federal
Insurance Contributions Act (FICA) taxes, and retirement contributions.
We believe this would be a commonly understood definition of this term
as it is consistent with the characterization of benefits in VA policy
that is used to administer programs under the authority of 38 U.S.C.
7302(e). This definition would be relevant as VA would pay benefits to
residents as applicable, as explained later in the discussion of
proposed Sec. 17.248.
The term covered facility would be defined to mean any facility
identified in Sec. 17.245, as that section is proposed and discussed
later in this rulemaking. We would define covered facility in relation
to proposed Sec. 17.245, to avoid having to reference Sec. 17.245 in
every instance in which the term covered facility would be used in the
proposed regulation text.
The term educational activities would be defined to mean all
activities in which residents participate to meet educational goals or
curriculum requirements of a residency program, to include but not be
limited to: Clinical duties; attendance in didactic sessions; research;
attendance at VA facility committee meetings; scholarly activities that
are part of an accredited training program; and approved educational
details. We believe this would be a commonly understood definition of
this term as it is consistent with the characterization of existing
educational activities in VA policy (see, e.g., Veterans Health
Administration (VHA) Directive 1400.09, Education of Physicians and
Dentists) that is used to administer programs under the authority of 38
U.S.C. 7302(e). This term would be relevant as it would be used to
qualify those stipend and benefits payments VA may make for residents
[[Page 6458]]
under the PPGMER, as explained later in the discussion of proposed
Sec. 17.248.
The term resident would be defined to mean physician trainees
engaged in post-graduate specialty or subspecialty residency programs
that are either accredited by the Accreditation Council for Graduate
Medical Education or in the application process for accreditation. The
term resident would further be defined to include individuals in their
first post-graduate year (PGY-1) of training (often referred to as
Interns), and individuals who have completed training in their primary
specialty and continue training in a subspecialty graduate medical
education program and (generally referred to as Fellows). These Fellows
would often be PGY-4 and above, depending upon the specialty. This term
is relevant as it would be used throughout these proposed regulations,
and we believe this proposed definition would be commonly understood as
it is consistent with the characterization of a resident in VA policy
that is used to administer programs under the authority of 38 U.S.C.
7302(e). Because this definition would require the residency programs
to be accredited or in the process for such accreditation by the
Accreditation Council of Graduate Medical Education, VA would not
consider individuals in non-accreditable programs, including VA
Advanced Fellows or post-training chief residents, as residents under
this pilot. While section 7302(e) uses the term residency position, for
purposes of this proposed rule, we propose to use the term resident
because that was the term used in sections 403(a)(4) through (6) and
(b) of the MISSION Act. Additionally, the proposed definition of
resident would permit VA to consider more than one resident as
occupying a single resident position (such as a split assignment, which
VA would track according to the percentage of VA assigned educational
activities).
The term stipend would be defined to mean the annual salary paid by
VA for a resident. We believe this proposed definition would be
commonly understood as it is consistent with the characterization of a
stipend in VA policy that is used to administer programs under the
authority of 38 U.S.C. 7302(e). This definition would be relevant as VA
would pay stipends to residents as applicable, as explained later in
the discussion of proposed Sec. 17.248.
The term VA health care facility would be defined to mean any VA-
owned or VA-operated location where VA physicians provide care to
Veterans, to include but not be limited to a VA medical center,
independent outpatient clinic, domiciliary, nursing home (community
living center), residential treatment program, and community-based
clinic. This definition would be relevant to characterize one type of
covered facility under proposed Sec. 17.245, and relevant to
characterize one assessment criterion under proposed Sec.
17.246(a)(7). We believe this definition is reasonable because it would
capture the VA settings in which a VA physician provides care to
Veterans, as it would be physicians who are teaching residents to be
placed under the PPGMER.
Sec. 17.245 Covered facilities.
Proposed Sec. 17.245 would list the covered facilities in which
residents may be placed under the PPGMER, consistent with section
403(a)(2) of the MISSION Act. We would restate the list of covered
facilities from section 403(a)(2), versus merely cross-referencing
section 403 or the statutory note to 38 U.S.C. 7302, for clarity and to
provide regulatory citations that characterize or define certain terms
related to covered facilities as applicable. Listing the facility types
versus cross referencing section 403 would also allow proposed Sec.
17.245 to include applicable regulatory citations. For instance,
section 403(a)(2)(B) establishes that one type of covered facility are
those health care facilities operated by an Indian tribe or tribal
organization as those terms are defined in 25 U.S.C. 5304; proposed
Sec. 17.245(b) would restate this language from section 403 and would
add the relevant regulatory citations for the definitions of Indian
tribe and tribal organization.
Proposed Sec. 17.245 would establish the following types of
facilities as covered facilities under the PPGMER, consistent with
section 403(a)(2) of the MISSION Act: (1) A VA health care facility as
defined in Sec. 17.244; (2) a health care facility operated by an
Indian tribe or tribal organization, as those terms are defined in 25
U.S.C. 5304 and at 25 CFR 273.106; (3) a health care facility operated
by the Indian Health Service; (4) a federally-qualified health center
as defined in 42 U.S.C. 1396d(l)(2)(B); (5) a health care facility
operated by the Department of Defense; or (6) other health care
facilities deemed appropriate by VA. We note that although a VA health
care facility is listed as a covered facility under section
403(a)(2)(A) and would also be listed as a covered facility in proposed
Sec. 17.245(a), we do not anticipate the PPGMER being a vehicle for
the placement of residents in VA facilities, as VA intends to continue
operating its GME programming to place residents in VA facilities as
authorized under 38 U.S.C. 7302 and 7406, separate from the PPGMER for
the duration in which the PPGMER is implemented. We believe the
authority under section 7302 is sufficient to place residents in VA
facilities. However, we would not want to exclude from this proposed
rule an express type of covered facility as listed in section 403(a)(2)
of the MISSION Act. Similarly, proposed Sec. 17.245(f) would provide,
consistent with section 403(a)(2)(F), that a covered facility could be
any other health care facility as VA considers appropriate, giving VA
the ability to place residents in a variety of facilities, such as
those recognized by the Department of Health and Human Services as
Rural Health Clinics, without curtailing the discretion provided to VA
by section 403(a)(2)(F) in the administration of the PPGMER.
Sec. 17.246 Consideration factors for placement of residents.
Proposed Sec. 17.246 would establish factors that VA would
consider when determining in which covered facilities residents would
be placed under the pilot. Consistent with section 403(a)(4)(A)-(G) of
the MISSION Act, proposed Sec. 17.246(a)(1) through (7) would
generally provide that VA would evaluate these factors in the context
of whether there is a clinical need for providers in the area in which
a covered facility is located. Proposed paragraphs (a)(1) through (7)
would then restate from section 403(a)(4)(A)-(G) the specific factors
VA must consider when determining whether there is a clinical need for
providers in an area (those specific factors are discussed in detail
further in this section of the preamble). We note that these proposed
factors, consistent with section 403(a)(4), would not be weighted in
any particular manner in the regulation text under proposed Sec.
17.246(a), to allow flexibility for VA to consider the relative import
of factors throughout the duration of the pilot. Although these factors
would not be weighted in regulatory text, it may be the case that VA
would assign levels of relative importance to these factors as part of
its selection process, as discussed in the section of this preamble
related to proposed Sec. 17.247. Additionally, only one factor in
proposed paragraphs (a)(1) through (7) would be required to be met for
VA to determine that a covered facility would be in an area with a
clinical need for providers. As discussed below, it may be the case
that some covered facilities could be considered to meet the same
factor under paragraphs (a)(1) through (7) of proposed Sec. 17.246,
and that
[[Page 6459]]
additional factors would need to be considered.
Before discussing the specific factors that VA would consider in
proposed Sec. 17.246(a)(1) through (7) to determine the clinical need
for providers in an area, we clarify that VA would not be soliciting
the interest of covered facilities to participate in the PPGMER through
a public funding announcement, a public request for proposal, or by
establishing an public application process, because section 403 of the
MISSION Act is not an express grant or cooperative agreement authority
through which VA may offer a public funding opportunity. Further,
section 403 does not authorize any amount of money to be appropriated
to implement the PPGMER, separate from VA's administration of its
existing GME programing authorized under 38 U.S.C. 7302 and 7406.
Because VA does not interpret that section 403 of the MISSION Act to
authorize a public funding opportunity for which covered facilities may
apply or submit a proposal to be considered, VA would not conduct a
public solicitation. Rather, the parameters of VA's selection process
for covered facilities would be established in proposed Sec. 17.247,
as discussed later in this proposed rule.
Consistent with section 403(a)(4)(A) of the MISSION Act, proposed
Sec. 17.246(a)(1) would establish that VA would evaluate the ratio of
veterans to VA providers for a standardized geographic area surrounding
a covered facility, including a separate ratio for general
practitioners and specialists. Proposed Sec. 17.246(a)(1)(i) would
establish that VA considers a standardized geographic area to mean the
county in which a covered facility is located. We believe this is a
reasonable interpretation of a standardized geographic area by which to
compare ratios of veterans to VA providers, as most covered facilities
as well as VA should be able to access such data. We understand that
proposing to use a county as the standardized geographic area would
mean that covered facilities in the same county would have the same
ratios of veterans to VA providers, making such facilities incomparable
in terms of this consideration factor. We reiterate, therefore, that
this is only one of multiple factors that VA would consider when
determining the need for clinical providers in an area, and we do not
anticipate that this factor would prevent covered facilities in the
same county from being considered, provided other factors that indicate
clinical need are met. Proposed Sec. 17.246(a)(1)(ii) would clarify
that when deciding the clinical need for providers in an area, VA may
consider either or both of the ratio(s) for general practitioners and
specialists, where a higher ratio of veterans to VA providers would
indicate a higher need for health care providers in an area. We believe
these clarifications would be consistent with section 403(a)(4)(A).
Consistent with section 403(a)(4)(B) of the MISSION Act, proposed
Sec. 17.246(a)(2) would establish that VA would evaluate the range of
clinical specialties of VA and non-VA providers for a standardized
geographic area surrounding a covered facility, where the presence of
fewer clinical specialties indicates a higher need for health care
providers in an area, which we believe is a reasonable interpretation
of section 403(a)(4)(B) to reflect a commonplace understanding that
fewer types of providers in an area can indicate a greater clinical
need. Proposed Sec. 17.246(a)(2) would consider the range of
specialties of both VA and non-VA providers in an area because section
403(a)(4)(B) is not specific to only VA providers. We note that the
term standardized geographic area as used in proposed Sec.
17.246(a)(2) would mean the county in which a covered facility is
located, consistent with how that term is defined in proposed Sec.
17.246(a)(1)(i).
Consistent with section 403(a)(4)(C) of the MISSION Act, proposed
Sec. 17.246(a)(3) would establish that VA would evaluate whether the
specialty of a provider is included in the most recent staffing
shortage determination by VA under 38 U.S.C. 7412. Under section
7412(a), not later than September 30 of each year, the Inspector
General of VA shall determine, certain clinical and nonclinical
occupations for which there are the largest staffing shortages with
respect to each VA medical center of the Department. The type of
providers considered under proposed Sec. 17.246(a)(3) would be based
on the list developed pursuant to 38 U.S.C. 7412(a). We note that the
list developed pursuant to 38 U.S.C. 7412(a) is a national list (based
on data from all VA medical centers in the country related to shortages
of providers), and that this factor would not be evaluated in relation
to provider types or numbers at any one VA facility. We also note that
a covered facility would not similarly have to have a shortage of the
type of provider on the list developed pursuant to 38 U.S.C. 7412, as
it may be that a sufficient number of such providers at a covered
facility could indicate the best conditions in which VA should place
residents (as these would be the very types of providers VA needs more
of). We would not regulate this factor more specifically, however, to
provide VA the flexibility in assessing the list developed pursuant to
38 U.S.C. 7412.
Consistent with section 403(a)(4)(D) of the MISSION Act, proposed
Sec. 17.246(a)(4) would establish that VA would evaluate whether a
covered facility is located in the local community of a VA facility
that has been designated by VA as an underserved facility pursuant to
criteria developed under section 401 of Public Law 115-182. We note
that section 403(a)(4)(D) of the MISSION Act would require VA to
consider whether the local community is designated as underserved
pursuant to criteria developed under section 401 of Public Law 115-182.
Section 401 of Public Law 115-182 relates to VA's criteria to designate
its facilities as underserved, rather than communities at large. To
clarify any potential inconsistency between the reference to
underserved VA facilities in section 401 and underserved communities in
section 403, we believe a reasonable reading of section 403(a)(4)(D)
provides for VA to consider whether covered facilities are located in a
local community in which a VA facility has been designated as
underserved under section 401. In developing the criteria to identify
underserved VA facilities under section 401, VA must consider various
factors, including the ratio of veterans to VA health care providers in
an area, the range of clinical specialties offered, whether the local
community is medically underserved, data on open consults, whether the
facility is meeting the wait-time goals of the Department, and such
other factors that VA considers important in determining which
facilities are not adequately serving area veterans. For purposes of
this factor, if a covered facility is located in the same Veterans
Integrated Service Network (VISN) as a VA facility designated as
underserved pursuant to section 401, then VA would consider that
covered facility to be located in the same local community as the VA
facility. We believe the service area of a VISN would allow VA to
consider a broad range of covered facilities, but we would not regulate
that requirement more specifically in the event that VA facility
service area names change in the future. Using the phrase local
community in proposed Sec. 17.246(a)(4) would also be consistent with
section 403(a)(4)(D) of the MISSION Act, and would allow VA the
flexibility to consider a service area that is different from a VISN in
the future, in which case VA would clearly indicate a different
standard in the request for proposal that is sent to VA health care
facilities for consideration.
[[Page 6460]]
Lastly, we note that under section 401, a VA facility is characterized
as a medical center, ambulatory care facility, and a community-based
outpatient clinic. Proposed Sec. 17.246(a)(4) would reference VA
facility to be consistent with section 401.
Consistent with section 403(a)(4)(E) of the MISSION Act, proposed
Sec. 17.246(a)(5) would establish that VA would evaluate whether the
covered facility is located in a community designated by the Secretary
of Health and Human Services (HHS) as a health professional shortage
area under 42 U.S.C. 254e. Under 42 U.S.C. 254e(a)(1), a health
professional shortage is an area in an urban or rural area that has
been determined to have a provider shortage and which is not reasonably
accessible to an adequately served area, a population group that has
been determined to have such a shortage, or a public or nonprofit
private medical facility or other public facility that has been
determined to have such a shortage.
Consistent with section 403(a)(4)(F) of the MISSION Act, proposed
Sec. 17.246(a)(6) would establish that VA would evaluate whether the
covered facility is in a rural or remote area. Proposed paragraph
(a)(6)(i) would further interpret a rural area to mean those areas
identified by the U.S. Census Bureau as rural. Section 403 does not
specifically define or characterize the meaning of the term rural, and
therefore, we believe it is rational to use the definition provided by
the U.S. Census Bureau. The Census Bureau's classification of rural
consists of all territory, population, and housing units located
outside of urbanized areas and urban clusters. Interested parties are
referred to the Census Bureau's website (<a href="https://www.census.gov/programs-surveys/geography/guidance/geo-areas/urban-rural.html">https://www.census.gov/programs-surveys/geography/guidance/geo-areas/urban-rural.html</a>) for
additional information. Proposed paragraph (a)(6)(ii) would further
interpret a remote area to mean an area within a zip-code designated as
a frontier and remote area (FAR) code by the Economic Research Service
within the United States Department of Agriculture, based on the most
recent decennial census and to include all identified FAR code levels.
VA would adopt this characterization of a remote area because it does
not have a similarly comprehensive characterization of remote areas in
statute or regulation. As we are unsure of the level of familiarity
with this standard related to a frontier or remote area, as opposed to
the characterization of a rural area as proposed above, we provide the
following background. The Economic Research Service within the United
States Department of Agriculture has developed ZIP-code-level FAR
designations, where the phrase frontier and remote is used to describe
territory characterized by some combination of low population size and
high geographic remoteness. The most updated set of FAR codes is based
on urban-rural data from the 2010 decennial census and provides four
FAR definition levels, ranging from one that is relatively inclusive
(12.2 million FAR level one residents) to one that is more restrictive
(2.3 million FAR level four residents). FAR areas are defined in
relation to the time it takes to travel by car to the edges of nearby
urban areas, and four FAR levels are necessary because rural areas
experience degrees of remoteness at higher or lower population levels
that affect access to different types of goods and services. For
instance, a larger number of people live significant distances from
cities providing high order goods and services, such as advanced
medical procedures, stores selling major household appliances, regional
airport hubs, or professional sports franchises, and level one FAR
codes are meant to approximate this degree of remoteness. A smaller
number of people have difficulty accessing low order goods and
services, such as grocery stores, gas stations, and basic health-care
services, and level-four FAR codes more closely coincide with this
higher degree of remoteness. Other types of goods and services--
clothing stores, car dealerships, movie theaters--fall somewhere in
between. We would use all four levels of FAR codes to characterize
remote areas for purposes of these proposed rules.
Consistent with 403(a)(4)(G) of the MISSION Act, proposed Sec.
17.246(a)(7) would implement VA's permissive authority, for purposes of
resident placements under PPGMER, to evaluate other criteria that VA
considers important in determining those covered facilities that are
not adequately serving area veterans. Proposed paragraph (a)(7) would
include a non-exhaustive list of criteria VA would consider. Proposed
Sec. 17.246(a)(7)(i) would establish that VA may evaluate the
proximity of a non-VA covered facility to a VA health care facility,
such that residents placed in non-VA covered facilities may also
receive training in VA health care facilities. This criterion would be
useful in assessing to what extent residents placed in non-VA covered
facilities could reasonably be expected to travel to also receive
resident training in VA health care facilities, consistent with the
requirement that the discretionary criteria in section 403(a)(4)(G) of
the MISSION Act relate to identifying those covered facilities that may
not be adequately serving area veterans. For purposes of assessing the
criterion in proposed Sec. 17.246(a)(7)(i), VA would define a VA
health care facility to mean any VA location where VA physicians
provide care to Veterans, such as a VA medical center, independent
outpatient clinic, domiciliary, nursing home (community living center),
residential treatment program, and any of a variety of community-based
clinics. We note that this definition is broader than the term ``VA
facility'' under proposed Sec. 17.246(a)(4), as proposed Sec. 17.246
would relate to an independent characterization of the term VA facility
under section 401 of Public Law 115-182. We also note that proposed
Sec. 17.246(a)(7)(i) does not create any requirement for residents
placed under the PPGMER to necessarily rotate to VA facilities to
receive training, it is merely one additional criterion that VA may
assess in accordance with section 403(a)(4)(G) of the MISSION Act. Any
requirement for rotation to VA facilities for residents placed under
the PPGMER, like other training requirements for such residents, would
be controlled by the agreements formed as will be discussed in the
section of this rule that addresses proposed Sec. 17.248. Proposed
Sec. 17.246(a)(7)(ii) would establish that VA may evaluate
programmatic considerations related to establishing or maintaining a
sustainable residency program when determining facilities are not
adequately serving area veterans, for purposes of placing residents in
covered facilities. These programmatic considerations would include but
not be limited to whether the stated objectives of a residency program
align with VA's workforce needs; the likely or known available
educational infrastructure of a new residency program or existing
residency program (including the ability to attract and retain
qualified teaching faculty); and the ability of the residency program
to remain financially sustainable after the cessation of any financial
support from VA that may be furnished under proposed Sec. 17.248.
These considerations would allow VA to assess the likelihood of a
residency program to be successful and sustainable, thus ensuring VA's
resources in funding residents would be well placed to support the
PPGMER.
Proposed Sec. 17.246(b) would establish that there would be a
prioritized placement of residents under the PPGMER to no fewer than
100 residents for the duration in which the PPGMER
[[Page 6461]]
is administered in covered facilities operated by either the Indian
Health Service, an Indian tribe, a tribal organization, or covered
facilities located in the same areas as VA facilities designated by VA
as underserved pursuant to criteria developed under section 401 of
Public Law 115-182. This minimum number of residents to be placed in
these specific covered facilities is consistent with the requirement in
section 403(a)(5) of the MISSION Act. Proposed Sec. 17.246(b) would
further clarify that the placement of these 100 residents would be for
the duration in which the PPGMER is administered, because we do not
read anything in section 403(a)(5) to require these 100 residents to be
the first residents placed under this pilot program. We also interpret
section 403(a)(5) of the MISSION Act to require VA to consider priority
placement of at least 100 residents and not 100 resident positions,
which is consistent with a plain reading of section 403(a)(5). We
clarify this point because we would define the term resident to permit
multiple residents to occupy a single resident position as appropriate.
We note that, generally, residents placed through the PPGMER could be
at any point in their residency, and that any such placement at any
point in a residency would qualify amongst the 100 priority placements
in proposed Sec. 17.246.
Sec. 17.247 Determination process for placement of residents.
We reiterate from earlier in this proposed rule that VA does not
interpret that section 403 authorizes a public funding opportunity
through which covered facilities or any other entity may apply or
submit a proposal to VA, for VA to then consider having residents
placed in covered facilities and paying their stipends or benefits, or
to reimburse certain costs of new residency programs. The introductory
text to proposed Sec. 17.247 would therefore state that section 403 of
Public Law 115-182 does not authorize a grant program or cooperative
agreement program through which covered facilities or any other entity
may apply for residents to be placed in covered facilities or to apply
for VA to pay or reimburse costs under Sec. 17.248 (where proposed
Sec. 17.248, as discussed later in this rulemaking, would establish
VA's payment of resident stipends and benefits, and VA's reimbursement
of certain costs of new residency programs). The introductory text to
proposed Sec. 17.247 would further establish that VA will therefore
not conduct a public solicitation to determine those covered facilities
in which residents may be places or to determine costs that may be paid
or reimbursed under Sec. 17.248, but that VA would instead make such
determinations based on the parameters further established in proposed
Sec. 17.247(a) through (c).
Proposed Sec. 17.247(a) would state that VA Central Office will
issue a request for proposal (RFP) to VA health care facilities to
announce opportunities for residents to be placed in covered facilities
and to have costs paid or reimbursed under Sec. 17.248 (as explained
later in this rulemaking, proposed Sec. 17.248 will outline the types
of costs available to be paid or reimbursed by VA under the PPGMER.)
Proposed Sec. 17.247(a) would further state that the RFP issued by VA
Central Office would describe, at a minimum: (1) Consideration factors,
to include the criteria in Sec. 17.246, that will be used to evaluate
any responses to the RFP, as well as the relative importance of such
consideration factors; (2) information required to be in any responses
to the RFP; and (3) the process to submit a response to the RFP. Under
proposed Sec. 17.247(a), the RFP issued by VA Central Office would
provide education to VA health care facilities in the evaluation of the
factors in proposed Sec. 17.246(a)(1) through (7) to determine
clinical need for providers in an area, and the VA health care
facilities would then assess covered facilities that may be located in
such areas to weigh the factors and determine those covered facilities
that meet the criteria under the RFP. We reiterate from earlier in this
rulemaking that VA Central Office conducts an RFP process to administer
its more general GME programming under section 7302(e), and VA
envisions a similar process to be followed under the PPGMER, where VA
Central Office notifies VA facilities (directly, or through channels
via Veterans Integrated Service Networks) of a forthcoming RFP cycle
for the funding of residents or certain resident program costs. The RFP
in turn would provide VA health care facilities with all required
information to complete a response, including a clear statement of the
consideration factors and submission instructions to include any
submission dates as applicable and points of contact for questions. The
RFP will additionally provide a general timeline in which VA health
care facilities will conduct the process of assessing the consideration
factors and reaching out to covered facilities regarding the RFP. The
consideration factors in the RFP for the PPGMER would include those
consideration factors expressly stated in section 403(a)(4) and in
proposed Sec. 17.246, and the relative importance of such factors
(e.g., whether they may be weighted differently). We reiterate from
earlier in the preamble that the consideration factors in proposed
Sec. 17.246 would not be weighted in the regulatory text itself to
allow VA the flexibility to consider the relative importance of factors
over the duration of the pilot, as the relative importance of those
factors may change. For instance, an RFP issued by VA Central Office
for the PPGMER could indicate that there would be more weight assigned
to areas that issued responses with covered facilities operated by
Indian Health Service, an Indian tribe, a tribal organization, or
covered facilities located in the same areas as VA facilities
designated by VA as underserved, as these are deemed priority placement
factors for the PPGMER in section 403(a)(5). Alternatively, an RFP
issued by VA Central Office for the PPGMER could indicate that there
would be more weight assigned depending on the specialty of a provider
included in the most recent staffing shortage determination by VA under
38 U.S.C. 7412.
Proposed Sec. 17.247(b) would then establish that VA health care
facilities, in collaboration with covered facilities, will submit
responses to the RFP to VA Central Office. This language would permit
only VA health care facilities to submit responses to the RFP issued by
VA Central Office, to further reinforce VA's interpretation that
section 403 does not authorize a public funding opportunity for which
covered facilities may apply directly or submit a proposal to be
considered. VA health care facilities would assess covered facilities
in their areas that participate with institutions that sponsor medical
educational programs (most often a medical school or teaching
hospital), where typically VA already has academic partnerships with
such sponsoring institutions and the RFP details the involvement of any
particular sponsoring institution. However, VA would not be prevented
in these proposed regulations from assessing covered facilities that
did not have educational relationships with sponsoring institutions,
and covered facilities would not be prevented from initiating contact
with a VA facility to determine if such covered facilities may meet the
requirements to participate in the PPGMER as detailed in the RFP. We
reiterate that the RFP will provide a general timeline in which VA
health
[[Page 6462]]
care facilities will conduct the process of assessing the consideration
factors and reaching out to covered facilities regarding the RFP.
Proposed Sec. 17.247(c) would then state that VA Central Office
will evaluate responses to the RFP from VA health care facilities and
will determine those covered facilities where residents may be placed
and costs under Sec. 17.248 are paid or reimbursed. In its evaluation,
VA Central Office will assess the consideration factors established in
the RFP to include the criteria in Sec. 17.246, and will weigh those
factors as their relative importance would be established in the RFP.
Sec. 17.248 Costs of funding residents and new residency programs.
Proposed Sec. 17.248 would establish the types of costs that VA
may fund under the PPGMER to place residents in covered facilities or
to reimburse certain costs incurred by new residency programs in
accordance with sections 403(a)(6) and (b)(1)-(b)(5) of the MISSION
Act. Section 403(a)(6) authorizes VA to pay stipends and provide
benefits for residents in positions created under section 403(a)(1),
and section 403(b) authorizes VA to reimburse certain new residency
program costs if VA places a resident in such a program.
To address a few preliminary matters, we note that section
403(a)(6) is a discretionary authority to pay stipends and benefits of
residents, regardless of whether they have been assigned to a VA
facility, and that VA would retain this discretion in proposed Sec.
17.248 to include establishing any general restrictions or conditions
for such payments. We further interpret the discretionary nature of
section 403(a)(6) to authorize VA's funding of resident stipends and
benefits either through a direct payment or reimbursement mechanism, in
accordance with any contract, agreement, or other arrangement VA has
legal authority to form (possibly, to include payment mechanisms as
applicable that VA currently uses to administer its more general GME
programming under 38 U.S.C. 7302(e)). Conversely, we interpret section
403(b) as a mandatory authority to reimburse certain new resident
program costs if VA places a resident in such programs, and further
that subsections (b)(1)-(b)(5) establish the mandatory costs that must
be reimbursed. However, we do not interpret that section 403(b) limits
VA's authority to determine restrictions or criteria for such
reimbursement. Lastly, consistent with section 403(a)(3), and other
authorities under which VA may legally enter into contracts,
agreements, or other arrangements, VA would enter into such contracts,
agreements, or other arrangements to administer the PPGMER. It would be
those contracts, agreements, or other arrangements that would establish
the terms to control costs that could be funded.
The introductory text of proposed Sec. 17.248 would establish that
once VA determines in which covered facilities residents will be
placed, in accordance with Sec. Sec. 17.246 through 17.247, payment or
reimbursement of certain costs would be authorized. Proposed Sec.
17.248(a) would establish the first category of funding available under
the PPGMER, related to resident stipends and benefits, consistent with
section 403(a)(6). Proposed Sec. 17.248(a) would establish that, for
residents placed in covered facilities by VA, VA may pay only the
proportionate cost of resident stipends and benefits that are
associated with residents participating in educational activities
directly related to the PPGMER. This language is intended to limit
payments of stipend and benefits to only those educational activities
that support the PPGMER, to prevent VA's payment for educational
activities a resident may complete when they may engage in duties or
responsibilities associated with portions of their training not
associated with the PPGMER (such as when a resident may have portions
of their training paid for by other entities not engaged with the
PPGMER). We clarify that educational activities directly related to the
PPGMER could be associated with the treatment of non-veteran patients,
as section 403(a)(6) of the MISSION Act clearly permits VA to pay
stipends and benefits for residents outside of VA facilities, and
section 403(b) permits VA to reimburse certain costs associated with
new residency programs established in covered facilities, which
includes non-VA facilities. More generally, a primary purpose of VA's
administration of GME programming under 38 U.S.C. 7302(e), and under
section 403 of the MISSION Act by extension, is to fulfill one of VA's
missions under 38 U.S.C. 7302 to assist in providing an adequate supply
of health personnel to the United States. We reiterate from the
discussion of proposed Sec. 17.246(a)(7)(i) that this rule would not
create any requirement for residents placed under the PPGMER to
necessarily rotate to VA health care facilities to receive training,
and any such requirement (as with other training requirements for
PPGMER residents) would be controlled by the agreements formed as
discussed further in this section of the rule related to proposed Sec.
17.248. Proposed Sec. 17.248(a) would further state that VA's payment
of stipends and benefits would be in accordance with any contract,
agreement, or other arrangement VA has legal authority to form. In
addition, such stipends and benefits will not exceed VA's established
maximum amounts for payments under any existing GME agreements. This
language intends to establish that any criteria or restrictions related
to VA's payment of stipends and benefits would be clearly indicated in
contracts, agreements, or other arrangements outside of the proposed
rule. This language would allow VA the flexibility to establish payment
parameters as would be relevant to a covered facility, within the
appropriate purchasing or other mechanisms that VA may legally use, to
include an agreement permitted under section 403(a)(3) of Public Law
115-182. We note that VA would be bound by any legal requirements as
they exist outside of this proposed rule with regards to these other
authorities to enter into contracts, agreements, or other arrangements.
Proposed Sec. 17.248(a) would not state or reference these other
authorities, or the resulting payment instruments, however, to provide
VA and covered facilities the flexibility that would be needed to
properly implement the payment of resident stipends and benefits.
Proposed Sec. 17.248(b) would establish that VA may reimburse
certain costs associated with new residency programs, consistent with
section 403(b)(1)-(5) of the MISSION Act. Consistent with section
403(b), proposed Sec. 17.248(b)(1) would establish that if a covered
facility establishes a new residency program in which VA places a
resident, VA will reimburse certain costs as further detailed in
proposed Sec. 17.248(b)(1)(i) through (v), where the following costs
in proposed paragraphs (b)(1)(i) through (v) mirror the types of costs
established in sections 403(b)(1)-(5), which are: Curriculum
development costs; recruitment and retention of faculty costs;
accreditation costs; faculty salary costs; and resident education
expense costs. Each of the types of costs established in proposed Sec.
17.248(b)(1)(i) through (v) would be further characterized by the
following non-exhaustive examples: (1) Curriculum development costs
would include but not be limited to costs associated with needs
analysis, didactic activities, materials, equipment, consultant fees,
and instructional design; (2) recruitment and retention of faculty
costs would include but not be
[[Page 6463]]
limited to costs associated with advertising available faculty
positions, and monetary incentives to fill such positions such as
relocation costs and educational loan repayment; (3) accreditation
costs would include but not be limited to the administrative fees
incurred by a covered facility in association with applying for only
initial accreditation of the program by the Accreditation Council for
Graduate Medical Education; (4) faculty salary costs would include only
the proportionate cost of faculty performing duties directly related to
the PPGMER; and (5) resident education expense costs, to include but
not be limited to costs associated with the required purchase of
medical equipment and required training, national resident match
program participation fees, and residency program management software
fees. We further note that faculty salary costs in proposed Sec.
17.248(b)(1)(iv) would have a similar qualifying restriction as with
resident stipends and benefits in proposed Sec. 17.248(a), where
faculty salary costs would be limited to only the proportionate cost of
faculty performing duties directly related to the PPGMER. This
restriction would provide an express notice that VA would not, for
instance, reimburse costs for any portion of salary of an attending
physician that correlates with supervising residents that were not
participating in the PPGMER, as it may be the case that a group of
residents being supervised by an attending physician is not fully
comprised of PPGMER participants. Similar to proposed Sec. 17.248(a),
proposed Sec. 17.248(b) would further state that VA's reimbursement of
certain costs associated with a new residency program would be in
accordance with any contract, agreement, or other arrangement VA has
legal authority to form, and that reimbursements for authorized costs
may not exceed VA's established maximum amounts for payment under any
existing GME agreements. This language intends to establish that any
criteria or restrictions related to VA's reimbursement of these costs
would be clearly indicated in contracts, agreements, or other
arrangements outside of the proposed rule, again to allow the
flexibility to establish parameters as would be relevant and within the
appropriate purchasing or reimbursement mechanisms that VA may legally
use. We note that VA would be bound by any legal requirements as exist
outside of this proposed rule with regards to these other authorities
to enter into contracts, agreements, or other arrangements, but that
proposed Sec. 17.248(b) would not state or reference these other
authorities, again to provide VA and covered facilities the flexibility
that would be needed to properly implement the reimbursement of these
costs.
Although proposed Sec. 17.248(a) and (b) would not state any
express criteria or restrictions that might exist in contracts,
agreements, or other arrangements that would control the payment of
resident stipends or benefits or reimbursement of certain new residency
program costs, some examples of such criteria or restrictions could
include: Establishing a discontinuation date for payments or
reimbursements; establishing limitations on payments proportionate to
the number of residents placed by VA; establishing any fixed dollar
amount limits as found relevant or appropriate; or establishing a
restricted look-back period, whereby VA would not reimburse the costs
of, for instance, certain curriculum development costs that might occur
prior to a specified timeframe before VA places a resident. Similarly,
proposed Sec. 17.248(a) and (b) would not expressly list the legal
authorities or types of contracts, agreements, or other arrangements
under which VA may pay resident stipends or benefits, or reimburse
certain costs of new residency programs, or more generally to
administer other typical aspects of GME programming through the PPGMER.
Again, this lack of specificity with regards to identifying specific
legal instruments in regulation would allow VA maximum flexibility to
administer the PPGMER. However, we reiterate from earlier in this
rulemaking that VA would otherwise be bound by any legal requirements
as exist outside of this proposed rule with regards to these other
authorities to enter into contracts, agreements, or other arrangements.
We also reiterate from earlier in this rulemaking that VA would seek to
administer the PPGMER in much the same manner as VA's more general GME
programming is administered under 38 U.S.C. 7302(e), as would be
applicable and permissible, which would likely include the forming of
certain agreements between VA and sponsoring institutions to establish
responsibilities for educating residents and to control VA's funding of
residents and certain costs of new residency programs, or the evidence
that such agreements were formed between sponsoring institutions and
non-VA covered facilities. We therefore provide the following examples
of types of agreements VA uses to administer its more general GME
programming under section 7302(e), to provide some idea of whether the
same or similar instruments might also be used to administer the
PPGMER. Under VA's more general GME programming pursuant to 38 U.S.C.
7302(e), VA uses an affiliation agreement to delineate the duties and
responsibilities regarding the training of residents, where an
affiliation agreement is a central part of the relationship between VA
and the affiliated institution and may involve specific provisions
related to patient care, education, or research. Affiliated
institutions can include academic institutions and other sponsoring
institutions such as community hospitals, clinics, state agencies
military treatment facilities, or Federal Health Education Consortia.
VA would look to an affiliation agreement or similar instrument to form
similar relationships with entities to administer the PPGMER. We note
that VA policy currently recognizes sponsoring institutions and other
entities as able to enter into an affiliation agreement prior to a
subject residency program receiving comprehensive or full
accreditation, such as an institution whose residency program may have
some stage of Accreditation Council for Graduate Medical Education
(ACGME) initial or provisional accreditation. See VHA Handbook 1400.03,
Veterans Health Administration Educational Relationships. Under the
PPGMER, we would retain VA's ability to enter into affiliation
agreements or similar instruments or look to the formation of such
instruments between sponsoring institutions and non-VA covered
facilities, where the subject residency programs may have some form of
initial or provisional ACGME accreditation.
Under VA's more general GME programming pursuant to 38 U.S.C.
7302(e), a disbursement agreement is used to administer stipend and
benefits payments to residents in VA facilities. A disbursement
agreement is an agreement through which VA allows a disbursing agent to
administer salary payments and fringe benefits for medical residents
assigned to a VA facility, where the disbursing agent may be the
sponsoring institution for the residency training program itself or an
entity delegated by the sponsoring institution(s) to handle stipend and
benefit disbursements (e.g., a graduate medical education consortium).
VA may look to a similar instrument to administer stipend and benefits
payments for residents it places in non-VA facilities under the PPGMER,
or any other contract, agreement, or
[[Page 6464]]
other arrangement VA may enter into as permissible and applicable.
Under VA's more general GME programming pursuant to 38 U.S.C.
7302(e), VA uses educational cost contracts to pay pro-rated
educational costs of the affiliated institutions sponsoring residency
programs. These educational cost contracts are entered into pursuant to
38 U.S.C. 8153, where the relevant health care resource being purchased
includes health care support resources and administrative resources to
include the operation of a residency program. The pro-rated educational
costs to be covered are set forth in an educational cost contract in
proportion to the number of residents that actually rotate to a VA
facility. VA may look to a similar instrument to administer payments of
costs associated with the PPGMER, or any other contract, agreement, or
other arrangement VA may enter into as permissible and applicable.
VA also generally uses memoranda of agreement or understanding (MOA
or MOU) as legally permissible to enter into agreements with entities
and may look to such instruments to administer payments of costs
associated with the PPGMER or to administer other aspects of the
PPGMER. For instance, a MOA or MOU might be used to clearly indicate to
a covered facility the extent of reimbursable costs allowable under
proposed Sec. 17.248(b), and could also include instructions for
submitting to VA invoices of such costs and timeframes and modes of
reimbursement.
Proposed Sec. 17.248(b)(2) would lastly establish that VA
considers new residency programs as only those residency programs that
have initial ACGME accreditation or have continued ACGME accreditation
without outcomes, and have not graduated an inaugural class, at the
time VA has determined those covered facilities where residents will be
placed under Sec. 17.247(c). We believe the ACGME status of initial
accreditation or continued ACGME accreditation without outcomes
captures those residency programs still in development and that would
benefit from VA's reimbursement of certain start-up costs in
establishing a residency program. The additional criterion that such
programs must not have graduated an inaugural class further supports
that VA funding will not go to residency programs that otherwise have
fully functioning curriculums and infrastructure to produce graduates.
The ACGME status of initial accreditation is considered a developmental
stage where residency programs can accept residents, and this status
allows for site visits to determine compliance with relevant ACGME
standards. As background, when a status of initial accreditation is
conferred on a sponsoring institution or program, that institution or
program will have a full site visit within two years of the effective
date of initial accreditation, where the effective date is the date of
the decision by the ACGME review committee (or, any effective date such
committee may apply retroactively to the beginning of the academic
year). If a residency program does not matriculate residents in the
first academic year after receiving a status of initial accreditation,
a site visit is conducted within three years from the effective date of
such accreditation. If a sponsoring institution or program demonstrates
substantial compliance at the subsequent review, the ACGME review
committee may confer a status of continued accreditation or continued
accreditation without outcomes. Proposed Sec. 17.248(b)(2) would only
include the ACGME status of continued accreditation without outcomes,
beyond the initial accreditation stage, because continued accreditation
without outcomes indicates that no residents have graduated, which in
turn may indicate that the residency program still requires VA funding
of certain costs to fully develop its curriculum and infrastructure.
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.<a href="http://regulations.gov">regulations.gov</a>.
Consultation and Coordination With Indian Tribal Governments
We have analyzed this proposed rule in accordance with the
principles set forth in Executive Order 13175. We have tentatively
determined that the rule does not contain policies that would have a
substantial direct effect on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. The Agency solicits comments from tribal
officials on any potential impact on Indian Tribes from this proposed
action.
Regulatory Flexibility Act
The Secretary hereby certifies that this rulemaking would not have
a significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. The residents to be placed for training in covered facilities and
to have certain stipend and benefits costs paid for by VA are
individuals and not small entities. To the extent that any covered
facilities are small entities, there is no significant economic impact
because the rulemaking would only permit VA's reimbursement and not
payment of certain costs associated with certain start up costs
associated with new residency programs, there is no funding opportunity
for which covered facilities may apply to be considered and otherwise
no economic gain or loss for covered facilities associated with this
rule. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do
not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that
VA consider the impact of paperwork and other information collection
burdens imposed on the public. Except for emergency approvals under 44
U.S.C. 3507(j), VA may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid Office of Management and Budget (OMB) control number.
This proposed rule contains no provisions constituting a collection of
information under the Paperwork
[[Page 6465]]
Reduction Act of 1995 (44 U.S.C. 3501-3521).
Assistance Listing
The Assistance Listing program numbers and titles for the programs
affected by this document are 64.011--Veterans Dental Care; 64.026--
Veterans State Adult Day Health Care; 64.040--VHA Inpatient Medicine;
64.041--VHA Outpatient Specialty Care; 64.042--VHA Inpatient Surgery;
64.043--VHA Mental Health Residential; 64.045--VHA Outpatient Ancillary
Services; 64.046--VHA Inpatient Psychiatry; 64.047--VHA Primary Care;
64.048--VHA Mental Health clinics; 64.050--VHA Diagnostic Care;
64.054--Research and Development.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs--health, Grant programs--veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing homes, Philippines, Reporting
and recordkeeping requirements, Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on October 8, 2021, 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 Department of Veterans
Affairs proposes to amend 38 CFR part 17 as follows:
PART 17--MEDICAL
0
1. Amend the authority citation for part 17 by adding an entry for
Sec. Sec. 17.243 through 17.248 in numerical order to read in part as
follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Sections 17.243 through 17.248 are also issued under 38 U.S.C. 7302
note.
* * * * *
0
2. Add an undesignated center heading and Sec. Sec. 17.243 through
17.248 to read as follows:
VA Pilot Program on Graduate Medical Education and Residency
Sec.
17.243 Purpose and scope.
17.244 Definitions.
17.245 Covered facilities.
17.246 Consideration factors for placement of residents.
17.247 Determination process for placement of residents.
17.248 Costs of placing residents and new residency programs.
VA Pilot Program on Graduate Medical Education and Residency
Sec. 17.243 Purpose and scope.
(a) Purpose. This section and Sec. Sec. 17.244 through 17.248
implement the VA Pilot Program on Graduate Medical Education and
Residency (PPGMER), which permits placement of residents in existing or
new residency programs in covered facilities and permits VA to
reimburse certain costs associated with establishing new residency
programs in covered facilities, as authorized by section 403 of Public
Law 115-182.
(b) Scope. This section and Sec. Sec. 17.244 through 17.248 apply
only to the PPGMER as authorized under section 403 of Public Law 115-
182, and not to VA's more general administration of graduate medical
residency programs in VA facilities as authorized under 38 U.S.C.
7302(e).
Sec. 17.244 Definitions.
For purposes of Sec. Sec. 17.243 through 17.248:
Benefit means a benefit provided by VA to a resident that has
monetary value in addition to a resident's stipend, which may include
but not be limited to health insurance, life insurance, worker's
compensation, disability insurance, Federal Insurance Contributions Act
taxes, and retirement contributions.
Covered facility means any facility identified in Sec. 17.245.
Educational activities mean all activities in which residents
participate to meet educational goals or curriculum requirements of a
residency program, to include but not be limited to: Clinical duties;
research; attendance in didactic sessions; attendance at facility
committee meetings; scholarly activities that are part of an accredited
training program; and approved educational details.
Resident means physician trainees engaged in post-graduate
specialty or subspecialty training programs that are either accredited
by the Accreditation Council for Graduate Medical Education or in the
application process for such accreditation. A resident may include an
individual in their first post-graduate year (PGY-1) of training (often
referred to as an intern), and an individual who has completed training
in their primary specialty and continues training in a subspecialty
graduate medical education program (generally referred to a fellow).
Stipend means the annual salary paid by VA for a resident.
VA health care facility means any VA-owned or VA-operated location
where VA physicians provide care to Veterans, to include but not be
limited to a VA medical center, independent outpatient clinic,
domiciliary, nursing home (community living center), residential
treatment program, and community-based clinic.
Sec. 17.245 Covered facilities.
A covered facility is any of the following:
(a) A VA health care facility;
(b) A health care facility operated by an Indian tribe or tribal
organization, as those terms are defined in 25 U.S.C. 5304 and at 25
CFR 273.106;
(c) A health care facility operated by the Indian Health Service;
(d) A federally-qualified health center as defined in 42 U.S.C.
1396d(l)(2)(B);
(e) A health care facility operated by the Department of Defense;
or
(f) Other health care facilities deemed appropriate by VA.
Sec. 17.246 Consideration factors for placement of residents.
(a) General. When determining in which covered facilities residents
will be placed, VA shall consider the clinical need for health care
providers in an area, as determined by VA's evaluation of the following
factors:
(1) The ratio of veterans to VA providers for a standardized
geographic area surrounding a covered facility, including a separate
ratio for general practitioners and specialists.
(i) For purposes of paragraphs (a)(1) and (2) of this section,
standardized geographic area means the county in which the covered
facility is located.
(ii) VA may consider either or both of the ratio(s) for general
practitioners and specialists, where a higher ratio of veterans to VA
providers indicates a higher need for health care providers in an area.
(2) The range of clinical specialties of VA and non-VA providers
for a standardized geographic area surrounding a covered facility,
where the presence of fewer clinical specialties indicates a higher
need for health care providers in an area.
[[Page 6466]]
(3) Whether the specialty of a provider is included in the most
recent staffing shortage determination by VA under 38 U.S.C. 7412.
(4) Whether the covered facility is in the local community of a VA
facility that has been designated by VA as an underserved facility
pursuant to criteria developed under section 401 of Public Law 115-182.
(5) Whether the covered facility is located in a community that is
designated by the Secretary of Health and Human Services as a health
professional shortage area under 42 U.S.C. 254e.
(6) Whether the covered facility is in a rural or remote area,
where:
(i) A rural area means an area identified by the U.S. Census Bureau
as rural; and
(ii) A remote area means an area within a zip-code designated as a
frontier and remote area (FAR) code by the Economic Research Service
within the United States Department of Agriculture, based on the most
recent decennial census and to include all identified FAR code levels.
(7) Such other criteria as VA considers important in determining
those covered facilities that are not adequately serving area veterans.
These factors may include but are not limited to:
(i) Proximity of a non-VA covered facility to a VA health care
facility, such that residents placed in non-VA covered facilities may
also receive training in VA health care facilities.
(ii) Programmatic considerations related to establishing or
maintaining a sustainable residency program, such as: Whether the
stated objectives of a residency program align with VA's workforce
needs; the likely or known available educational infrastructure of a
new residency program or existing residency program (including the
ability to attract and retain qualified teaching faculty); and the
ability of the residency program to remain financially sustainable
after the cessation of funding that VA may furnish under Sec. 17.248.
(b) Priority in placements. For the duration in which the PPGMER is
administered, no fewer than 100 residents will be placed in covered
facilities operated by either the Indian Health Service, an Indian
tribe, a tribal organization, or covered facilities located in the same
areas as VA facilities designated by VA as underserved pursuant to
criteria developed under section 401 of Public Law 115-182.
Sec. 17.247 Determination process for placement of residents.
Section 403 of Public Law 115-182 does not authorize a grant
program or cooperative agreement program through which covered
facilities or any other entity may apply for residents to be placed in
covered facilities or to apply for VA to pay or reimburse costs under
Sec. 17.248. VA therefore will not conduct a public solicitation to
determine those covered facilities in which residents may be placed or
to determine costs that may be paid or reimbursed under Sec. 17.248.
VA will instead determine those covered facilities in which residents
may be placed and determine any costs to be paid or reimbursed under
Sec. 17.248 in accordance with the following parameters:
(a) VA Central Office will issue a request for proposal (RFP) to VA
health care facilities to announce opportunities for residents to be
placed in covered facilities and to have costs paid or reimbursed under
Sec. 17.248. This RFP will describe, at a minimum:
(1) Consideration factors to include the criteria in Sec. 17.246,
that will be used to evaluate any responses to the RFP, as well as the
relative importance of such consideration factors;
(2) Information required to be in any responses to the RFP; and
(3) The process to submit a response to the RFP.
(b) VA health care facilities, in collaboration with covered
facilities, will submit responses to the RFP to VA Central Office.
(c) Consistent with paragraph (a) of this section, VA Central
Office will evaluate responses to the RFP from VA health care
facilities and will determine those covered facilities where residents
may be placed and costs under Sec. 17.248 are paid or reimbursed.
Sec. 17.248 Costs of placing residents and new residency programs.
Once VA determines in which covered facilities residents will be
placed in accordance with Sec. Sec. 17.246 through 17.247, payment or
reimbursement is authorized for the following costs:
(a) Resident stipends and benefits. For residents placed in covered
facilities, VA may pay only the proportionate cost of resident stipends
and benefits that are associated with residents participating in
educational activities directly related to the PPGMER, in accordance
with any contract, agreement, or other arrangement VA has legal
authority to form.
(b) Costs associated with new residency programs. (1) If a covered
facility establishes a new residency program in which a resident is
placed, VA will reimburse the following costs in accordance with any
contract, agreement, or other arrangement VA has legal authority to
form.
(i) Curriculum development costs, to include but not be limited to
costs associated with needs analysis, didactic activities, materials,
equipment, consultant fees, and instructional design.
(ii) Recruitment and retention of faculty costs, to include but not
be limited to costs associated with advertising available faculty
positions, and monetary incentives to fill such positions such as
relocation costs and educational loan repayment.
(iii) Accreditation costs, to include but not be limited to the
administrative fees incurred by a covered facility in association with
applying for only initial accreditation of the program by the
Accreditation Council for Graduate Medical Education (ACGME).
(iv) Faculty salary costs, to include only the proportionate cost
of faculty performing duties directly related to the PPGMER.
(v) Resident education expense costs, to include but not be limited
to costs associated with the required purchase of medical equipment and
required training, national resident match program participation fees,
and residency program management software fees.
(2) VA considers new residency programs as only those residency
programs that have initial ACGME accreditation or have continued ACGME
accreditation without outcomes, and have not graduated an inaugural
class, at the time VA has determined those covered facilities where
residents will be placed under Sec. 17.247(c).
[FR Doc. 2022-02292 Filed 2-3-22; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on February 4, 2022.
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