Rule2023-00298
Emergent Suicide Care
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
January 17, 2023
Effective
January 17, 2023
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) amends its medical regulations to implement section 201 of the Veterans Comprehensive Prevention, Access to Care, and Treatment Act of 2020, which directs VA to furnish, reimburse, and pay for emergent suicide care for certain individuals, to include the provision of emergency transportation necessary for such care.
Full Text
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<title>Federal Register, Volume 88 Issue 10 (Tuesday, January 17, 2023)</title>
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[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Rules and Regulations]
[Pages 2526-2537]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00298]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AR50
Emergent Suicide Care
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: The Department of Veterans Affairs (VA) amends its medical
regulations to implement section 201 of the Veterans Comprehensive
Prevention, Access to Care, and Treatment Act of 2020, which directs VA
to furnish, reimburse, and pay for emergent suicide care for certain
individuals, to include the provision of emergency transportation
necessary for such care.
DATES:
Effective date: This interim final rule is effective on March 20,
2023.
Comments: Comments must be received on or before March 20, 2023.
ADDRESSES: Comments must be submitted through <a href="http://www.regulations.gov">www.regulations.gov</a>.
Except as provided below, comments received before the close of the
comment period will be available at <a href="http://www.regulations.gov">www.regulations.gov</a> 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: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. VA will not post on
<a href="http://Regulations.gov">Regulations.gov</a> 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, Office of Integrated
Veteran Care (16EO3), Veterans Health Administration, Department of
Veterans Affairs, Ptarmigan at Cherry Creek, Denver, CO 80209; (303)
370-1637. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On December 5, 2020, the Veterans
Comprehensive Preventions, Access to Care and Treatment Act of 2020,
Public Law (Pub. L.) 116-214 (the Act), was enacted into law. Section
201 of the Act created a new section 1720J in title 38, United States
Code (U.S.C.), to authorize VA to provide emergent suicide care to
certain individuals. Section 1720J(b) of 38 U.S.C. provides that an
individual is eligible for emergent suicide care if they are in acute
suicidal crisis and are either (1) a veteran as defined in 38 U.S.C.
101, or (2) an individual described in 38 U.S.C. 1720I(b). Individuals
described in section 1720I(b) are (1) former members of the Armed
Forces, including the reserve components; who, (2) while serving in the
active military, naval, air, or space services, were discharged or
released therefrom under a condition that is not honorable but is also
not (A) a dishonorable discharge or (B) a discharge by court-martial;
who (3) is not enrolled in the health care system established by
section 1705 of title 38 U.S.C.; and (4)(A)(i) served in the Armed
Forces for a period of more than 100 cumulative days; and (ii) was
deployed in a theater of combat operations, in support of a contingency
operation, or in an area at a time during which hostilities are
occurring in that area during such service, including by controlling an
unmanned aerial vehicle from a location other than such theater or
area; or (B) while serving in the Armed Forces, was the victim of a
physical assault of a sexual nature, a battery of a sexual nature, or
sexual harassment (as defined in section 1720D(f) of title 38 U.S.C.).
Section 1720J(a) requires VA to (1) furnish emergent suicide care
to an eligible individual at a medical facility of the Department; (2)
pay for emergent suicide care provided to an eligible individual at a
non-Department facility; and (3) reimburse an eligible individual for
emergent suicide care provided to
[[Page 2527]]
the eligible individual at a non-Department facility. This interim
final rule will establish new regulations in title 17, Code of Federal
Regulations (CFR), at 38 CFR 17.1200 through 17.1230, to implement the
provisions of 38 U.S.C. 1720J as described above as well as implement
other substantive provisions as required by 38 U.S.C. 1720J to include:
the duration of emergent suicide care that VA must provide; prohibition
on charge for such care provided; rates VA will pay or reimburse for
emergent suicide care (to include for emergency transportation required
for such care); and required definitions.
17.1200 Purpose and Scope
Section 17.1200 explains the purpose and scope of these new
regulations. Paragraph (a) states that Sec. Sec. 17.1200 through
17.1230 implement VA's authority under 38 U.S.C. 1720J to provide
emergent suicide care. This language will use the term provide, which
VA will define in Sec. 17.1205 to mean furnished directly by VA, paid
for by VA, or reimbursed by VA. This language will both expressly
recognize in regulation VA's statutory authority to provide this care,
as well as the three means by which VA must provide this care,
consistent with 38 U.S.C. 1720J(a). We will explain at a later point in
this preamble (in the section regarding payments) the different
considerations that apply when VA provides care directly in a VA
facility compared to when VA pays or reimburses for care provided in a
non-VA facility.
Paragraph (b) states that Sec. Sec. 17.1200 through 17.1230
establish criteria specific to VA's provision of emergent suicide care
under 38 U.S.C. 1720J, which do not affect eligibility for other care
under chapter 17 of title 38, U.S.C., that may otherwise be received by
an individual eligible under Sec. 17.1210 (where Sec. 17.1210 will
establish eligibility for emergent suicide care, as explained later in
this preamble). We believe this language is necessary to clarify that
VA's provision of emergent suicide care under section 1720J is distinct
from other care under chapter 17 of title 38 U.S.C., because VA has
been providing the same types of care to veterans under the authority
of section 1710 and 38 CFR 17.38 as part of the medical benefits
package. However, we note that section 1720J not only expands
eligibility for this care to individuals who would not be eligible to
receive the same care under section 1710, but also offers the
additional benefits of (1) having such care be at no cost to the
individual (e.g., not subject to otherwise applicable VA copayments),
and (2) having VA pay the cost of emergency transportation necessary to
receive the care, without the individual having to meet otherwise
applicable transportation criteria in VA regulations. Because emergent
suicide care offered under section 1720J offers benefits in addition to
those already administered by VA under other authorities (e.g., section
1720J provides that there will be no charges for such care, and
provides for coverage of emergency transportation necessary to receive
such care), Sec. 17.1200(b) will state that if an individual is
eligible under Sec. 17.1210, they will receive emergent suicide care
in accordance with Sec. Sec. 17.1200-17.1230 and not under other
regulations through which emergent or other care may be provided. We
believe this will ensure that the additional benefits under section
1720J as stated above will be available to individuals eligible under
Sec. 17.1210. However, language in Sec. 17.1200(b) will also clarify
that eligibility under Sec. 17.1210 does not affect eligibility for
other care under chapter 17 of title 38 U.S.C. We believe this language
will ensure that receipt of care under Sec. Sec. 17.1200 through
17.1230 does not impact the receipt of other care.
17.1205 Definitions
Section 17.1205 will define key terms that apply to Sec. Sec.
17.1200-17.1230. The definitions are listed in alphabetical order,
beginning with the term acute suicidal crisis, and are consistent with
the terms defined in 38 U.S.C. 1720J(h).
The term acute suicidal crisis is defined to mean an individual was
determined to be at imminent risk of self-harm by a trained crisis
responder or health care provider. This definition is necessary to
qualify when an individual is eligible to have VA provide emergent
suicide care, as required by section 1720J(b), and is identical to the
definition of acute suicidal crisis in section 1720J(h)(1). We will
further define the terms trained crisis responder and health care
provider to clarify who may make the determination that an individual
is in acute suicidal crisis. We will more comprehensively discuss the
determination of acute suicidal crisis in the section of the preamble
that addresses eligibility criteria. The term acute suicidal crisis
will be used in a regulatory section related to eligibility for
emergent suicide care, as explained later in this preamble.
The term crisis residential care is defined as emergent suicide
care provided in a residential facility other than a hospital (that is
not a personal residence) that provides 24-hour medical supervision.
This definition is necessary to qualify a type of setting in which VA
can provide emergent suicide care in section 1720J(c)(1)(A). This
definition is also consistent with the definition of crisis residential
care in section 1720J(h)(2), although VA's definition would add that
the facility other than a hospital must not be a personal residence and
must be able to provide 24-hour medical supervision. The additional
criterion related to 24-hour medical supervision will clarify that VA
only provides emergent suicide care in a residential facility setting
that can adequately monitor the safety and medical condition of an
individual that has been determined to be in acute suicidal crisis.
Such crisis residential settings could include but not be limited to
crisis residential programs (such as residential treatment centers)
administered by either a State or private business but would not
include any care that could be received in a personal residence because
section 1720J(h)(2)(B) requires that emergent suicide care be provided
in a facility. We will not define more specific types of modality,
therapies, or treatments that may be received as part of crisis
residential care, as that would be unduly limiting given that care and
treatment for individuals in acute suicidal crisis will vary. This term
will be used in a regulatory section related to the duration of
emergent suicide care, as explained later in this preamble.
The term crisis stabilization care is defined to mean, with respect
to an individual in acute suicidal crisis, care that ensures, to the
extent practicable, immediate safety and reduces: the severity of
distress; the need for urgent care; or the likelihood that the severity
of distress or need for urgent care will increase during the transfer
of that individual from a facility at which the individual has received
care for that acute suicidal crisis. This definition is necessary to
provide context for VA's provision of care under section 1720J(a) and
is identical to the definition of crisis stabilization care in section
1720J(h)(3). This term also qualifies the term emergent suicide care,
as discussed below.
The term emergent suicide care is defined to mean crisis
stabilization care provided to an individual eligible under Sec.
17.1210 pursuant to a recommendation from the Veterans Crisis Line or
when such individual has presented at a VA or non-VA facility in an
acute suicidal crisis. This definition is necessary to provide context
for VA's provision of care under section 1720J(a) and is consistent
with the definition of emergent suicide care in 1720J(h)(4). A
[[Page 2528]]
section of this preamble related to Sec. 17.1220 will discuss some
examples of care that we envision being provided as emergent suicide
care, but we do note here that we do not intend to define such care
more specifically by identifying distinct modalities, therapies, or
treatments--we do not want the definition of emergent suicide care to
unduly limit potentially stabilizing services that will vary based on
the unique needs of the individuals in acute suicidal crisis.
The term health care provider is defined as a VA or non-VA provider
who is licensed to practice health care by a State and who is
performing within the scope of their practice as defined by a State or
VA practice standard. This definition is necessary to qualify who may
make the determination of whether an individual is in acute suicidal
crisis as required by section 1720J(b) and (h)(1). This term is not
defined in section 1720J, so we have based the definition on a similar
definition used in VHA Directive 1100.20, which relates to the
credentialing of VA health care providers. Such providers will include
but not be limited to physicians and registered nurses. This term will
be used in a regulatory section related to eligibility for emergent
suicide care, as explained later in this preamble.
The term health plan contract is defined as having the same meaning
as that term is defined in 38 U.S.C. 1725(f)(2). This definition is
necessary because section 1720J(f)(3) provides that VA may recover the
costs of emergent suicide care it provides, other than for such care
for a service-connected disability, if the eligible individual that
received such care was entitled to the care or payment for such care
under a health-plan contract. This term will be used in a regulatory
section related to VA's payment for emergent suicide care, as explained
later in this preamble.
The term inpatient care is defined to mean care received by an
individual during their admission to a hospital. This definition is
necessary to qualify the types of settings in which VA can provide
emergent suicide care in section 1720J(c)(1)(A). The term inpatient
care is not defined in section 1720J, and VA has based its definition
on plain language that we believe is clearly understandable. This term
will be used in a regulatory section related to the duration of
emergent suicide care that VA provides, as explained later in this
preamble.
Non-VA facility is defined to mean a facility that meets the
definition in 38 U.S.C. 1701(4). This definition is necessary to
qualify a type of facility in which emergent suicide care may be
provided and where VA must pay or reimburse for such care under section
1720J(a)(2) and (3). We note that the term non-VA facility is intended
to be equivalent to the term ``non-Department facilities'' that will be
cross referenced in section 1701(4). Because the term in section
1701(4) is further dependent on the definition of ``facilities of the
Department'' in section 1701(3), we will further define the term VA
facility later in the definitions (to cross reference section 1701(3)).
We recognize that defining non-VA facility to cross reference the
definition in section 1701(4) will essentially qualify any facility
type that is not owned or operated by VA. However, we will not further
characterize the types of non-VA facilities (e.g., hospitals, or
outpatient clinics), as 1720J authorizes VA to provide for both
inpatient and outpatient care.
The term outpatient care is defined to mean care received by an
individual that is not described within the definition of inpatient
care under Sec. 17.1205 to include telehealth, and without the
provision of room or board. This term is not defined in section 1720J,
and VA has based its definition on plain language that we believe is
clearly understandable. We will not define more specific types of
modality, therapies, or treatments that may be received as outpatient
care, as that would be unduly limiting. This term will be used in a
regulatory section related to the duration of emergent suicide care
that VA provides, as explained later in this preamble.
The terms provide, provided, or provision are defined to mean
furnished directly by VA, paid for by VA, or reimbursed by VA. These
terms will simplify mention of VA's obligations under section
1720J(a)(1)-(3) for ease of understanding as appropriate throughout the
regulations.
The term trained crisis responder is defined as an individual who
responds to emergency situations in the ordinary course of their
employment and therefore can be presumed to possess adequate training
in crisis intervention. This definition is necessary to qualify who may
make the determination of whether an individual is in acute suicidal
crisis as required by section 1720J(b) and (h)(1). This term is not
defined in section 1720J, and VA only has expertise in the training
levels of its own Veterans Crisis Line (VCL) responders. VA considered
but ultimately decided against defining the term trained crisis
responder to be limited to only VCL responders, as that would have
unnecessarily limited those individuals that may, in the ordinary
course of their employment, have the knowledge and expertise to assess
suicidal crisis and in fact direct individuals in such crisis to seek
care. Instead, the definition of trained crisis responder uses plain
language to qualify training that would be expected of individuals who
respond to emergencies, where such individuals include but are not
limited to Veteran Crisis Line responders, law enforcement or police
officers, firefighters, and emergency medical technicians. We note that
a determination of acute suicidal crisis is a qualifier for eligibility
for VA's provision of emergent suicide care, and that determination can
be made by either a health care provider or a trained crisis responder
under section 1720J(b). However, the level and duration of emergent
suicide care to be provided to individuals eligible for such care is a
medical determination to be made only by health care providers, as will
be discussed later in the section of the preamble related to duration
of care.
VA facility is defined to mean a facility that meets the definition
in 38 U.S.C. 1701(3). This definition is necessary to qualify a type of
facility in which emergent suicide care must be directly furnished by
VA under section 1720J(a)(1). We note that the definition that will be
cross referenced in section 1701(3) is for ``facilities of the
Department,'' which is equivalent to a VA facility. We will not more
specifically list the types of VA facilities (e.g., VA Medical Center
or VA Community Based Outpatient Clinic) in which emergent suicide care
will be directly furnished by VA, as this will be too limiting if VA
nomenclature for types of VA facilities changes or if level of services
available in types of VA facilities changes. VA will be able to
internally track those facilities that meet the definition in section
1701(3) for purposes of directly furnishing emergent suicide care.
Veterans Crisis Line is defined to mean the hotline under 38 U.S.C.
1720F(h). This definition is consistent with section 1720J(h)(6) and is
necessary to provide context for the use of this same term in the
definition of emergent suicide care.
17.1210 Eligibility
Section 17.1210 will establish criteria to determine an
individual's eligibility for emergent suicide care. Paragraph (a) will
establish that an individual is eligible if they were determined to be
in acute suicidal crisis and are either: (1) a veteran as that term is
defined in 38 U.S.C. 101, or (2) an individual described in 38 U.S.C.
1720I(b). Language in Sec. 17.1210(a) will mirror
[[Page 2529]]
eligibility language from section 1720J(b), as we believe such language
is clear and does not require further interpretation through
regulation. Particularly, we will not regulate characteristics of how
acute suicidal crisis may appear or present in an individual or other
parameters that must be met, beyond the definition of acute suicidal
crisis in Sec. 17.1205 to mean the individual was determined to be at
imminent risk of self-harm by a trained crisis responder or health care
provider. The determination of imminent risk of self-harm could vary
greatly based on the individual and be based on a totality of
circumstances and information as assessed by the trained crisis
responder or health care provider, to include but not be limited to
direct statements from an individual, as well as other pertinent
information such as knowledge of an individual's past or present
behaviors that signal a risk of self-harm, or even an individual's past
suicide attempts that could evidence additional risk of self-harm. We
will not regulate, however, that an individual must communicate any
particular language, or that their behavior must meet any particular
parameters, or that they must have any type of diagnosis to indicate
that they are in acute suicidal crisis.
Regarding language in section 1720J(b)(1) and Sec. 17.1210(a)(1),
a veteran as defined in section 101, means a person who served in the
active military, naval, air, or space service, and who was discharged
or released therefrom under conditions other than dishonorable. Rather
than restating this definition from 38 U.S.C. 101, Sec. 17.1210(a)(1)
will reference section 101 in the event the definition of veteran under
the statute may change (for instance, the definition of veteran in
section 101 was amended by sec. 926(a)(1) of Public Law 116-283 on
January 1, 2021, to substitute ``air, or space service'' for ``or air
service''). We note that section 1720J(b)(1) does not establish that a
veteran must be enrolled in VA healthcare in accordance with VA's
healthcare enrollment authority in section 1705 and as regulated in
Sec. 17.36. We therefore will also amend Sec. 17.37, VA's regulation
related to veteran enrollment not being required to receive certain
health care and services, to add a new paragraph (l) to establish that
a veteran need not be enrolled to receive emergent suicide care
pursuant to 38 CFR 17.1200-17.1230.
Regarding language in section 1720J(b)(2) and Sec. 17.1210(a)(2),
individuals described in section 1720I(b) are: (1) former members of
the Armed Forces, including the reserve components; who, (2) while
serving in the active military, naval, air, or space services, were
discharged or released therefrom under a condition that is not
honorable but is also not (A) a dishonorable discharge or (B) a
discharge by court-martial; who (3) is not enrolled in the health care
system established by section 1705 of title 38 U.S.C.; and (4)(A)(i)
served in the Armed Forces for a period of more than 100 cumulative
days; and (ii) was deployed in a theater of combat operations, in
support of a contingency operation, or in an area at a time during
which hostilities are occurring in that area during such service,
including by controlling an unmanned aerial vehicle from a location
other than such theater or area; or (B) while serving in the Armed
Forces, was the victim of a physical assault of a sexual nature, a
battery of a sexual nature, or sexual harassment (as defined in section
1720D(f) of title 38 U.S.C.). Rather than restating these requirements
from statute, Sec. 17.1210(a)(2) will reference section 1720I(b) in
the event such qualifying eligibility under the statute may change.
VA believes it is important to avoid delays in receipt of emergent
suicide care if an individual's status as a veteran or status as
described in section 1720I(b) cannot be confirmed upon a determination
of acute suicidal crisis or prior to the need to initiate the provision
of care. Therefore, Sec. 17.1210(b) will establish that VA may
initiate the provision of emergent suicide care for an individual in
acute suicidal crisis prior to that individual's status under Sec.
17.1210(a)(1) or (2) being confirmed. If VA is unable to confirm an
individual's status under paragraph (a)(1) or (2) of this section, and
such individual is not otherwise eligible for care under another VA
authority, VA shall charge that individual for the care provided
consistent with 38 CFR 17.102(a) and (b)(1), which are regulatory
provisions applicable to VA's provision of care to individuals later
found to be ineligible.
17.1215 Periods of Emergent Suicide Care
Section 17.1215 will establish criteria related to the length of
time an eligible individual will be provided emergent suicide care,
consistent with section 1720J(c).
Paragraph (a) will establish that, unless extended under paragraph
(b), emergent suicide care will be provided to an eligible individual
under Sec. 17.1210 from the date acute suicidal crisis is determined
to exist (as determined to exist by a trained crisis responder or
health care provider, per the definition of acute suicidal crisis in
Sec. 17.1205): (1) through inpatient care or crisis residential care,
as long as the care continues to be clinically necessary, but not to
exceed 30 calendar days; or (2) If inpatient care or crisis residential
care is unavailable, or if such care is not clinically appropriate,
through outpatient care, as long as the care continues to be clinically
necessary, but not to exceed 90 calendar days. The 30-day limitation
for a period of inpatient or crisis residential care in Sec.
17.1215(a)(1) is required by section 1720J(c)(1)(A), and the 90-day
period limitation for outpatient care in Sec. 17.1215(a)(2) is
required by section 1720J(c)(1)(B). Section 17.1215(b) will permit VA
to extend either of these limited timeframes in the event VA determines
that an individual continues to require care to address the effects of
an acute suicidal crisis, consistent with section 1720J(c)(2).
Section 17.1215(a)(1) and (2) will establish the 30- and 90-day
time limits as calendar day limits. There is no indication in section
1720J that these time limits should be measured in business days, and
calendar days is the reasonable measurement in the context of
furnishing emergent suicide care because the risk of self-harm and
stabilization of an individual's condition continues despite weekend
days or holidays. We note that Sec. 17.1215(b) will allow an extension
of the timeframes in the event VA determines the individual continues
to require care to address the effects of acute suicidal crisis and,
therefore, requires additional emergent suicide care.
Section 17.1215(a)(1) and (2) will establish the availability of 30
calendar days of inpatient and crisis residential care, as well as 90
days of outpatient care, instead of only one type of care (inpatient/
residential versus outpatient) being available for an individual
eligible under Sec. 17.1210. We do not interpret the word ``or'' in
section 1720J(c)(1)(A) to mean that outpatient care under section
1720J(c)(1)(B) is available only if an individual did not receive
inpatient or crisis residential care. Rather, we interpret that
sections 1720J(c)(1)(A) and (B) should be read together to afford an
individual the opportunity to receive inpatient care (except if such
care is not available or is inappropriate) but not to prevent such an
individual from then receiving outpatient care to ensure they remain
stable. Even if an individual is medically stable for discharge from an
inpatient or crisis residential care setting, continued treatment after
discharge from a facility may be necessary to prevent immediate relapse
[[Page 2530]]
into a new or worsened state of crisis or to otherwise provide
clinically necessary care to address the effects of the acute suicidal
crisis. Indeed, the definition of crisis stabilization care in Sec.
17.1205 provides that such care is not only that which ensures, to the
extent practicable, immediate safety but is also care that ``reduces:
the severity of stress, [and] the need for urgent care. . . .''.
Therefore, VA will not regulate outpatient care to be solely available
as an alternative to inpatient or crisis residential care, as we
envision nearly all individuals in acute suicidal crisis will require
some level of emergent suicide care on an inpatient basis to be
followed by care on an outpatient basis.
Paragraph (b) in Sec. 17.1215 will permit the 30 and 90 calendar
day timeframes in Sec. 17.1215(a)(1) and (2) to be extended if VA
determines that an individual continues to require care to address the
effects of the acute suicidal crisis. This language is consistent with
section 1720J(c)(2), where only the Secretary [of VA] is authorized to
extend a period of care beyond the 30 or 90 days. Although we recognize
that non-VA health care providers may be able to determine if an
individual continues to require care to address the effects of the
acute suicidal crisis upon the expiration of a 30-day or 90-day
timeframe, such an extension of care would still need to be approved by
VA as clinically necessary before VA would pay or reimburse for the
additional care. This would not necessarily mean that VA's approval of
an extension must always occur prior to care being extended; VA would
not want to create situations where administrative matters could delay
the extension of required care. Rather, VA would only pay or reimburse
for extensions of care if VA found such extensions to be warranted. The
process of non-VA health care providers submitting claims for payment
for providing emergent suicide care is discussed below in the section
related to Sec. 17.1225. In that process, we would expect that, in
most cases, non-VA providers would submit requests for extensions of
care to VA prior to a 30- or 90-day period of care lapsing.
Sec. 17.1220 Provision of Emergent Suicide Care
As stated earlier in the preamble we will not specifically regulate
any distinct modalities, therapies, or treatments as falling under or
being excluded from the meaning of the term emergent suicide care,
because we do not want to unduly limit the provision of care that will
vary based on the needs of individuals in acute suicidal crisis.
However, we do not want this lack of specificity to imply that any type
of care or service that may be recommended would be provided by VA as
emergent suicide care. To better characterize the types of care that
will be provided, we interpret the phrases ``immediate safety'' and
``reduce severity'' from the definition of crisis stabilization care,
which is incorporated into the definition of emergent suicide care in
Sec. 17.1205, to enable VA to provide care and services that are
needed to immediately stabilize an individual's vital signs and ensure
their physical safety, as well as care and services to reduce the
severity of symptoms related to the acute suicidal crisis. Such care
can include medical and surgical services as well as mental health
services. For instance, an individual in acute suicidal crisis could
require emergency room care to stabilize bleeding from a self-inflicted
injury and then require inpatient hospitalization to further monitor
vitals and personal safety. Upon discharge from the hospital, this
individual could then require some level of outpatient care to attend
group or individual mental health therapy, as well as receive
prescription medications, to reduce the severity of symptoms related to
the acute suicidal crisis.
As stated above, while VA is interpreting emergent suicide care
more broadly than that which is immediately necessary to stabilize an
individual, we do not want to imply that any type of care or service
will be covered. Therefore, Sec. 17.1220(a) will establish that
emergent suicide care will be provided to individuals eligible under
Sec. 17.1210 only if it is determined by a health care provider to be
clinically necessary and in accord with generally accepted standards of
medical practice. This language will allow clinicians to make
appropriate decisions about what care should be provided. The types of
care described in the preceding paragraph, for instance, would be
clinically necessary and generally in accord with the standards of
medical practice of emergent care and supportive care after an
emergency. To further ensure the safety and appropriateness of emergent
suicide care provided under these regulations, Sec. 17.1220(b) will
establish that prescription drugs, biologicals, and medical devices
that may be provided during a period of emergent suicide care under
Sec. 17.1215 must be approved by the Food and Drug Administration,
unless the treating VA facility or non-VA facility is conducting formal
clinical trials under an Investigational Device Exemption or an
Investigational New Drug application, or the drugs or biologicals are
prescribed under a compassionate use exemption. VA regulates this same
general restriction for FDA-approval with certain caveats under the
medical benefits package available to all enrolled veterans in 38 CFR
17.38, and we find it to be reasonable to apply to this program of
emergent suicide care.
Sec. 17.1225 Payment or Reimbursement for Emergent Suicide Care
Section 17.1225 will establish criteria related to VA's payment or
reimbursement of emergent suicide care, consistent with sections
1720J(d) and (f).
We will first discuss the provisions established in 1720J(f)
related to the prohibitions on charge for individuals who are eligible
to receive emergent suicide care under section 1720J. Section
1720J(f)(1)(A) establishes that if VA provides care to an eligible
individual under section 1720J(a) (meaning VA directly furnishes such
care, pays for such care furnished in a non-VA facility, or reimburses
an eligible individual for care that was furnished in a non-VA
facility), VA may not charge the eligible individual for any costs of
such care. Paragraph (a) of Sec. 17.1225 will therefore state that VA
may not charge individuals eligible under Sec. 17.1210 for care
received under Sec. 17.1215, and Sec. 17.1225(a)(1) and (a)(2) will
more specifically characterize this lack of charge in the context of
care VA furnishes directly in a VA facility as compared to care
furnished in a non-VA facility, respectively.
Paragraph (a)(1) of Sec. 17.1225 will state that for care
furnished in a VA facility, VA will not charge any copayment or other
costs that would otherwise be applicable under chapter 17 of 38 CFR.
Because veterans eligible under 17.1210(a)(1) may be subject to
copayments for other types of care they received from VA, we will
further amend applicable VA copayment regulations at Sec. Sec. 17.108
and 17.110 (related to veteran copayments for inpatient and outpatient
care, and for medications, respectively) to ensure that veterans who
are eligible for emergent suicide care under section 1720J(b)(1) and
Sec. 17.1210(a)(1) are not subject to charges for such care furnished
in a VA facility. Former members of the Armed Forces receiving care
under 38 U.S.C. 1720I are not subject to VA's copayments so no further
exceptions are needed. We note that this prevention of charge to such
individuals will only apply to the extent they were eligible under
Sec. 17.1210(a); if VA is not able to confirm eligibility under Sec.
17.1210(a),
[[Page 2531]]
then VA shall charge an individual under Sec. 17.1210(b) (at charges
consistent with 38 CFR 17.102(a) and (b)(1)).
Paragraph (a)(2) of Sec. 17.1225 will establish that for care
furnished in a non-VA facility, VA will either: (i) pay for the care
furnished, subject to paragraphs (b)-(d) of Sec. 17.1225, or (ii)
reimburse an eligible individual under Sec. 17.1210 for the costs
incurred by the individual for the care received, subject to paragraph
(e) of Sec. 17.1225. The language in Sec. 17.1225(a)(2)(i) and (ii)
implements VA's payment and reimbursement of emergent suicide care
under 1720J(a)(2)-(3) and the prohibition of charge under section
1720J(f)(A).
Paragraphs (b) through (d) of Sec. 17.1225 will further outline
parameters for VA's payment of care, consistent with provisions in
section 1720J(f)(2). Section 1720J(f)(2)(A) requires VA to reimburse a
non-VA facility for the reasonable value of emergent suicide care if VA
pays for such care to be provided in a non-VA facility under section
1720J(a)(2), and section 1720J(f)(2)(B)(i) further provides that VA may
determine such reimbursement amounts in a similar manner as VA
determines reimbursement amounts for medical care and services provided
in non-VA facilities under any other provision of chapter 17 of title
38 U.S.C. We interpret the provisions of section 1720J(f)(2)(A) and
(f)(2)(B)(i) together to allow VA to establish rates it will pay for
emergent suicide care provided in non-VA facilities in accordance with
parameters VA has already established to pay for medical care provided
in non-VA facilities. VA pays non-VA providers and facilities under the
Veterans Community Care Program (VCCP) as established by 38 U.S.C.
1703. Under that authority VA is required to purchase care through
negotiated agreements. Therefore, when emergent suicide care is
provided pursuant to a contract, VA will pay for that care in
accordance with the terms of that contract.
Unlike VCCP, it is possible that a non-VA provider or facility
could provide emergent suicide care not pursuant to a contract, but
still be eligible for payment from VA. In these instances, rather than
looking to a different authority under which VA pays for medical care
provided in non-VA facilities, VA will establish a payment structure
that is substantively similar to the terms of its existing agreements
for the purchase of care under VCCP when a provider or facility is not
under contract with VA. This will establish parity in payments rates
between contracted and non-contracted emergent suicide care, and a
hierarchy of payment rates that will ensure that the public will be
able to determine what the payment rates are and ensure that a rate
always exists for any eligible care.
Paragraph (b) of Sec. 17.1225 will therefore establish that the
amounts paid by VA for care furnished under Sec. 17.1225(a)(2)(i) will
either: (1) be established pursuant to contracts, or (2) if there no
amount determinable under paragraph (b)(1) (e.g., there is no
contract), VA will pay amounts as established in Sec. 17.1225(b)(2)(i)
through (v).
Depending on where the care was provided, and what pricing schedule
amounts exist for the specific services provided, VA will pay the
Alaska VA Fee Schedule Amount (as calculated pursuant to 38 CFR
17.56(b)), the Medicare fee schedule or prospective payment system
amount, the Critical Access Hospital rate, the VA Fee Schedule amount
(as posted on <a href="http://VA.gov">VA.gov</a>), or billed charges. The hierarchy established in
Sec. 17.1225(b)(2)(i) through (v) is substantively similar to
methodologies VA uses to calculate payment rates for care purchased
under an agreement and furnished to veterans by non-VA providers and
facilities, and we believe is reasonable to apply when emergent suicide
care is furnished not pursuant to a contract.
Paragraph (c) of Sec. 17.1225 will establish that payment by VA
under Sec. 17.1225(a)(2)(i) (i.e., payment for emergent suicide care
provided in non-VA facilities) shall, unless rejected and refunded
within 30 calendar days of receipt, extinguish all liability on the
part of the individual who received care, and that neither the absence
of a contract or agreement between the Secretary and the provider nor
any provision of a contract, agreement, or assignment to the contrary
shall operate to modify, limit, or negate this requirement. This
language is consistent with section 1720J(f)(2)(B)(ii), which
establishes that the requirements of section 1725(c)(3) will apply with
respect to payments VA makes under section 1720J(f)(2)(A) (i.e., those
payments VA makes for emergent suicide care provided in a non-VA
facility). Section 1725(c)(3) establishes that payment by VA on behalf
of a veteran to a provider of emergency treatment shall, unless
rejected and refunded by the provider within 30 days of receipt,
extinguish any liability on the part of the veteran for that treatment,
and that neither the absence of a contract or agreement between VA and
the provider nor any provision of a contract, agreement, or assignment
to the contrary shall operate to modify, limit, or negate this
requirement.
Paragraph (d) of Sec. 17.1225 will establish criteria to obtain
payment from VA for emergent suicide care provided in a non-VA
facility. Although section 1720J does not contain language related to
such criteria (there is no language related to the submission of any
particular billing or claims information to VA, in any specific format
or within a certain timeframe), minimal regulation is necessary to
provide a framework for submission of information to be reviewed by VA.
Notably, section 1720J only refers to VA payment for emergent suicide
care to non-VA facilities (see 1720J(f)(2)). However, to ensure we
capture all potential sources through which such care may be provided
in non-VA facilities and for which VA may pay, Sec. 17.1225(d) will
establish that either a health care provider or a non-VA facility (as
those terms are defined in Sec. 17.1205) may obtain payment from VA.
Paragraph (d)(1) will address care furnished pursuant to a contract
with VA, and paragraph (d)(2) will address when care is not furnished
pursuant to a contract.
Paragraph (d)(1) of Sec. 17.1225 will establish that health care
providers and non-VA facilities who provide emergent suicide care
pursuant to a contract will follow all applicable provisions and
instructions in such contract to receive payment. Paragraph (d)(2) will
establish that if the care was not provided pursuant to a contract,
providers or facilities will submit to VA a standard billing form and
other information as required no later than 180 calendar days from the
date the care was furnished. We will not state a specific form name or
number in Sec. 17.1225(d)(2) to avoid having to revise our regulations
if the form may change in the future. However, paragraph (d)(2) will
further provide a website to locate more specific procedures and
instructions for submission of that form and other information within
the 180-day timeframe. The 180-day timeframe in which to submit to VA
information for payment is consistent with the timeframe that non-VA
entities or providers must submit claims for payment to VA for hospital
care or medical services furnished in non-VA facilities under 38 U.S.C.
1703D(b). Section 1703D is applicable to all such care that VA is
authorized to provide under chapter 17 of 38 U.S.C., including 1720J.
Section 1720J(d) does require an eligible individual who receives
emergent suicide care at a non-VA facility (or a person acting on
behalf of the individual) to notify VA of such care
[[Page 2532]]
within seven days of admission to such facility. We interpret this
provision to evidence Congressional intent that, if VA will be
responsible for payment of care in a non-VA facility, VA must have
reasonable notice of the care having been initiated. Without such
notice, VA will not be able to: confirm eligibility for such care;
evaluate whether care that has or will be furnished meets the
definition of emergent suicide care and is generally in accord with
standards of medical practice; determine whether an extension of
emergent suicide care might be warranted; or coordinate for potential
continued care (for which the individual may be eligible) after
emergent suicide care is no longer necessary. However, section
1720J(f)(4) also provides that VA may not charge an eligible individual
for any cost of emergent suicide care provided solely by reason of VA
not having been notified of such care within the seven days pursuant to
section 1720J(d). We interpret the language in section 1720J(f)(4) to
mean that VA may not itself charge an eligible individual or hold them
liable for the costs of emergent care provided in a non-VA facility for
lack of notice, such that VA may not regulate a seven-day notice
requirement with regards to limiting or barring payment to non-VA
providers for emergent suicide care furnished in a non-VA facility.
Therefore, VA has elected not to regulate any notice requirement.
However, VA will make materials available on its public facing websites
to communicate the importance of timely notice to VA of emergent
suicide care received at a non-VA facility (as VA does for its other
programs of emergency care) for purposes of care coordination and
timely consideration of factors to support VA's payment of or
reimbursement for such emergent suicide care.
Paragraph (e) of Sec. 17.1225 will implement the requirement in
section 1720J(a)(3) that VA must reimburse an eligible individual for
emergent suicide care provided in a non-VA facility. Consistent with
the rationale expressed above, Sec. 17.1225(e) will mirror language in
Sec. 17.1225(d)(2), to establish that individuals eligible under Sec.
17.1210 must submit to VA a standard billing form and other information
as required no later than 180 calendar days from the date the
individual paid for emergent suicide care to obtain reimbursement from
VA. Paragraph (e) will also contain language to direct individuals to a
VA website to obtain more specific information related to the specific
billing form and other required information, as well as submission
procedures, to obtain reimbursement. Although individuals eligible
under Sec. 17.1210 may not themselves be non-VA entities or providers
as contemplated under the section 1703D(b) requirement to submit claims
information within 180 days, we nonetheless find this timeframe
reasonable, and section 1720J does not contain language that
specifically addresses the timeframe in which information must be
submitted to VA for purposes of reimbursement. We also note that we do
not anticipate many reimbursement requests to be submitted to VA, as we
believe a majority of health care providers and non-VA facilities (as
those terms are defined in Sec. 17.1205) will submit claims for
payment to VA directly for emergent suicide care furnished in non-VA
facilities.
Paragraph (f) of Sec. 17.1225 will establish that VA may recover
costs of care it has paid or reimbursed under Sec. 17.1225(a)(2)(i)
and (ii), other than for such care for a service-connected disability,
if the individual who received the care is entitled to the care (or
payment of the care) under a health plan contract (as that term is
defined in section 1725(f)(2), as referenced in 1720J(h)(5) and Sec.
17.1205). This language is consistent with section 1720J(f)(3), which
authorizes VA to recover the costs of emergent suicide care (other than
for a service-connected disability) if the individual that received the
care is entitled to receive it or have it paid for under a health plan
contract. Paragraph (f) will further provide that such recovery would
generally follow VA regulations at 38 CFR 17.100 through 17.106, which
implement VA's right under 38 U.S.C. 1729 to recover from a third party
the charges for care or services that VA furnished or paid under
chapter 17 of title 38 U.S.C., to the extent the recipient of such
services would be eligible to receive payment for the care or services
from such third party if VA had not already furnished or paid. We
believe reference to the regulations that implement recovery under
section 1729 is reasonable to inform VA's recovery of costs for
emergent suicide care because section 1729 applies to all care and
services that VA is obligated by law to furnish or pay for under
chapter 17 of title 38 U.S.C., and section 1720J(f)(3) does not
otherwise expressly require VA to follow any specific VA statute or
regulations related to recovery of costs for care and services
furnished or paid.
Sec. 17.1230 Payment or Reimbursement for Emergency Transportation
Section 17.1230 will establish criteria related to VA's payment or
reimbursement of emergency transportation to a facility for the receipt
of emergent suicide care, consistent with sections 1720J(f)(1)(B).
Section 1720J(f)(1)(B) provides that VA will pay the costs of
emergency transportation to a facility for emergent suicide care, as
such costs are determined pursuant to 38 U.S.C. 1725, to the extent
practicable. Although section 1720J does not further define the term
``emergency transportation,'' we believe it is reasonable to
characterize it as an ambulance or air ambulance, as these are common
transports for individuals to receive emergent care such as emergent
suicide care. We also believe it is reasonable to interpret that
emergency transport can be furnished to either a VA or a non-VA
facility, as those are the two types of facilities where section 1720J
authorizes care to be furnished (see section 1720J(a), (d), and (f)).
Therefore, Sec. 17.1230(a) will state that VA will pay or reimburse
for the costs of emergency transportation (i.e., ambulance or air
ambulance) to a VA facility or non-VA facility for the provision of
emergent suicide care to an eligible individual under Sec. 17.1210.
The language in section 1720J(f)(1)(B) provides that VA will pay
for the costs of emergency transportation as such costs are determined
pursuant to 38 U.S.C. 1725, to the extent practicable. Section 1725
establishes VA's authority to pay or reimburse for the reasonable value
of emergency treatment furnished in a non-VA facility to a veteran for
emergency care that is not associated with a service-connected
condition. Notably, section 1725 does not contain language related to
VA paying or reimbursing for emergency transportation that is necessary
to receive authorized emergency care. However, VA regulates the
provision of emergency transportation necessary to receive emergency
care furnished under section 1725 (in 38 CFR 17.1003) and regulates a
methodology to calculate rates VA will pay or reimburse for such
transportation (in 38 CFR 17.1005). Therefore, we interpret section
1720J(f)(1)(B) to authorize VA to calculate the costs VA will pay or
reimburse for emergency transportation necessary to receive emergent
suicide care under section 1720J(a) pursuant to 38 CFR 17.1005, to the
extent practicable. Because VA finds it practicable to apply Sec.
17.1005 to emergency transportation necessary to receive emergent
suicide care,
[[Page 2533]]
Sec. 17.1230(a)(1) will establish that for claims submitted by
providers of emergency transportation, rates of payment for
transportation under Sec. 17.1230(a) will be calculated as they are
under 38 CFR 17.1005(a)(1) through (3). We note that Sec. 17.1005(a)
establishes the general payment limitations and parameters to calculate
payments, although we believe only paragraphs (a)(1)-(a)(3) would be
applicable for emergency transportation necessary to receive emergent
suicide care (and the remainder of Sec. 17.1005(b) through (d)
establishes other substantive restrictions that would not apply in the
context of emergency transportation for emergent suicide care under
Sec. Sec. 17.1200 through 17.1230). Section 17.1230(a)(1) would
further clarify that, for purposes of Sec. 17.1230, the term emergency
treatment in Sec. 17.1005(a) should be read to mean emergency
transportation. Similar to reimbursement for emergent suicide care
under Sec. 17.1225, Sec. 17.1230(a)(2) will establish that for claims
of reimbursement for emergency transportation from individuals eligible
under Sec. 17.1210, VA will reimburse the costs such individuals
incurred for the emergency transportation.
To maintain parity in claims processing between the emergent
suicide care and the emergency transportation necessary to receive such
care, Sec. 17.1230(b) and (c) will establish essentially the same
procedures that must be followed in Sec. 17.1225(d)(2) and (e) to be
paid or reimbursed by VA for the emergent suicide care itself.
Paragraphs (b) and (c) of Sec. 17.1230 will state that, to obtain
payment or reimbursement (respectively) for emergency transportation
furnished under paragraph (a) of this section, the provider of such
services or the individual eligible to receive reimbursement for
services must submit to VA a standard billing form and other required
information no later than 180 calendar days from the date the services
were furnished or the date that the individual paid for the services,
and that submission instructions to include required form(s) and other
information can be found at <a href="http://www.va.gov">www.va.gov</a>.
Lastly, we will reiterate in Sec. 17.1230(d) the same requirement
from Sec. 17.1225(e), that payment by VA for emergency transportation
shall, unless rejected and refunded within 30 calendar days of receipt,
extinguish all liability on the part of the individual who received
care, and that no provision of a contract, agreement, or assignment to
the contrary shall operate to modify, limit, or negate this
requirement. Section 17.1230(d) will apply this requirement to VA
payments for emergency transportation, although the requirement in
section 1720J(f)(2)(B)(ii) relates only to payments VA makes for
emergent suicide care in a non-VA facility under section
1720J(f)(2)(A). However, we do not read section 1720J to otherwise
prevent VA from applying this same requirement to the emergency
transportation necessary to receive emergent suicide care, and we
believe is reasonable to ensure that the individual who received such
care is not subject to any potential balance billing for associated
emergency transportation.
Administrative Procedure Act
The Administrative Procedure Act (APA), codified in part at 5
U.S.C. 553, generally requires agencies publish substantive rules in
the Federal Register for notice and comment.
However, pursuant to 5 U.S.C. 553(b)(B), general notice and the
opportunity for public comment are not required with respect to a
rulemaking when an ``agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' In accordance with 5
U.S.C. 553(b)(B), the Secretary has concluded that there is good cause
to publish this rule without prior opportunity for public comment. This
rule implements the mandates of 38 U.S.C. 1720J to establish a new
program to provide emergent suicide care to ensure, to the extent
practicable, the immediate safety and reduced distress of an eligible
individual in acute suicidal crisis.
Suicide is a national public health concern, and it is preventable.
The rate of veteran suicide in the United States remains high, despite
great effort. As detailed in VA's 2021 National Veteran Suicide
Prevention Annual Report, the average number of veteran suicide deaths
per day in 2019 was 17.2. (Available online: <a href="https://www.mentalhealth.va.gov/docs/data-sheets/2021/2021-National-Veteran-Suicide-Prevention-Annual-Report-FINAL-9-8-21.pdf">https://www.mentalhealth.va.gov/docs/data-sheets/2021/2021-National-Veteran-Suicide-Prevention-Annual-Report-FINAL-9-8-21.pdf</a>). Of those 17.2
deaths per day, 6.8 were veterans who recently used VA health care
(that is, these veterans had received VA health care services within
the preceding two years) and 10.4 were veterans who had not recently
used VA health care. See <a href="https://www.mentalhealth.va.gov/docs/data-sheets/2021/2021-National-Veteran-Suicide-Prevention-Annual-Report-FINAL-9-8-21.pdf">https://www.mentalhealth.va.gov/docs/data-sheets/2021/2021-National-Veteran-Suicide-Prevention-Annual-Report-FINAL-9-8-21.pdf</a>. There has also been an increase in call volume to the
Veterans Crisis Line (VCL). In fiscal year (FY) 2019, VCL answered an
average daily call volume of 1590.67 calls compared with 1765.02 in FY
2020 and 1807.52 in FY 2021, with VCL call volume increasing over 22%
in direct-date comparisons from FY 2019 to FY 2021. Additionally, as of
July 16, 2022, the new National Suicide Prevention Hotline number (988)
has a feature to connect veterans to the Veterans Crisis Line, which
may also encourage individuals who are veterans but do not seek VA care
to be made aware of emergent suicide care under this program. This rule
will also implement payment or reimbursement of emergent suicide care
for veterans regardless of enrollment status, to include costs
associated with emergency transportation to receive such care, which VA
believes will assist more veterans and former service members in
seeking care to prevent suicide.
Veterans, in particular, may be uniquely vulnerable to negative
mental health effects of the Coronavirus Disease-2019 (COVID-19)
pandemic such as suicidality due to their older age, previous trauma
exposures, and higher pre-pandemic prevalence of physical and
psychiatric risk factors and conditions. See Na, P.J., Tsai, J., Hill,
M.L., Nichter, B., Norman, S.B., Southwick, S.M., & Pietrzak, R.H.
(2021). Prevalence, risk and protective factors associated with
suicidal ideation during the COVID-19 pandemic in U.S. military
veterans with pre-existing psychiatric conditions. Journal of
Psychiatric Research, 137, 351-359. In an analysis of data from the
National Health and Resilience in Veterans Study, researchers found
that 19.2% of veterans screened positive for suicidal ideation during
the pandemic, and such veterans had lower income, were more likely to
have been infected with COVID-19, reported greater COVID-19-related
financial and social restriction stress, and increases in psychiatric
symptoms and loneliness during the pandemic when compared to veterans
without suicidal ideation. See the National Health and Resilience in
Veterans Study. Additionally, they found that among veterans who were
infected with COVID-19, those aged 45 or older and who reported lower
purpose in life were more likely to endorse suicidal ideation. See the
National Health and Resilience in Veterans Study. These researchers
noted that monitoring for suicide risk and worsening psychiatric
symptoms in older veterans who have been infected with COVID-19 may be
important, and that interventions that enhance purpose in life may help
protect against suicidal ideation in this population.
[[Page 2534]]
Furthermore, studies have shown increased rates of suicide after
pandemics such as the 1918 Influenza (H1N1) pandemic and the 2003
Severe Acute Respiratory Syndrome (SARS) outbreak, in which increased
risk factors associated with negative impacts of pandemics were
believed to contribute to suicide. See Wasserman IM. The impact of
epidemic, war, prohibition and media on suicide: United States, 1910-
1920. Suicide Life Threat Behav. 1992 Summer;22(2):240-54. PMID:
1626335.; See also, Cheung YT., Chau PH., and Yip PS. A revisit on
older adults' suicides and severe acute respiratory syndrome (SARS)
epidemic in Hong Kong. Int J Geriatr Psychiatry. 2008; 23: 1231-1238.
Thus, increased suicide death could occur after the COVID-19 pandemic
unless action is taken. See Gunnell, D., Appleby, L., Arensman, E.,
Hawton, K., John, A., Kapur, N., Khan, M., O'Connor, R.C., & Pirkis, J.
(2020). Suicide risk and prevention during the COVID-19 pandemic. The
Lancet Psychiatry, 7(6), 468-471. Consistent with the recommendations
of this research, this rule will support both VA and non-VA facilities
in providing emergent suicide care, to enable more resources to reach
veterans.
It is critical that this rulemaking publish without delay and that
the rule be effective upon publication, as the emergent suicide care
will reach a specific population at risk of suicide, particularly those
veterans who are not enrolled with VA, which is especially needed
during the COVID-19 pandemic and the immediate period following this
pandemic. Delay in implementing this rule would have a severe
detrimental impact on the availability of health care for veterans in
life threatening situations.
The expanded eligibility for this care, the associated
transportation to receive such care, and the prohibition on charge for
the care are all unique factors that we believe will encourage
individuals to seek care where they may not have previously. These
unique factors, however, also created a need for VA to take additional
time beyond the Congressional deadline in section 201(c) of the Act to
complete the required policy analysis and decision-making processes
that preceded this rule--this is particularly true because the Act
requires VA not only to directly furnish emergent suicide care, but
then also to pay and reimburse for such care furnished in non-VA
facilities. VA did not want to implement this program of emergent
suicide care piecemeal, and additional time beyond the Congressional
deadline was needed to ensure VA could simultaneously furnish this care
directly, as well as enable processes whereby the care could be paid
for or reimbursed when furnished in non-VA facilities. For instance, VA
has had to plan and initiate multiple systems changes to ensure that
copayments or other potential costs are not charged to individuals who
would be eligible for this care. Systems changes were also needed to
recognize expanded eligibility for this care, particularly because such
eligibility changes depending on whether an acute suicidal crisis is
present or whether symptoms related to such crisis continue to require
care under this program.
For these reasons, the Secretary has concluded that ordinary notice
and comment procedures would be impracticable and contrary to the
public interest and is accordingly issuing this rule as an interim
final rule. The Secretary will consider comments that are received
within 60 days after the date that this interim final rule is published
in the Federal Register and address them in a subsequent Federal
Register document announcing a final rule incorporating any changes
made in response to the public comments.
For the reasons set forth above, the Secretary also finds that
there is good cause under 5 U.S.C. 553(d)(3) to publish this rule with
an effective date that is less than 30 days from the date of
publication.
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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable
to this rulemaking because notice of proposed rulemaking is not
required. 5 U.S.C. 601(2), 603(a), 604(a).
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This interim final rule will have no such
effect on State, local, and Tribal governments, or on the private
sector.
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. Under 44 U.S.C. 3507(a), an agency may
not collect or sponsor the collection of information, nor may it impose
an information collection requirement unless it displays a currently
valid Office of Management and Budget (OMB) control number. See also 5
CFR 1320.8(b)(2)(vi).
This interim final rule will impose new collections of information
requirements and burden. Accordingly, under 44 U.S.C. 3507(d), VA has
submitted a copy of this rulemaking action to OMB for review and
approval. Notice of OMB approval for this information collection will
be published in the Federal Register.
OMB assigns control numbers to collections of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. Sections 17.1225 and 17.1230
contain new collections of information under the Paperwork Reduction
Act of 1995. If OMB does not approve the collections of information as
requested, VA will immediately remove the provisions containing a
collection of information or take such other action as is directed by
OMB.
Comments on the new collection of information contained in this
rulemaking should be submitted through <a href="http://www.regulations.gov">www.regulations.gov</a>. Comments
should indicate that they are submitted in response to ``RIN 2900-
AR50--Emergent Suicide Care'' and should be sent within 60 days of
publication of this rulemaking. The collection of information
associated with this rulemaking can be viewed at: <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>.
A comment to OMB is best assured of having its full effect if OMB
receives it
[[Page 2535]]
within 30 days of publication. This does not affect the deadline for
the public to comment on the interim final rule.
The Department considers comments by the public on proposed
collections of information in--
<bullet> Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
<bullet> Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
<bullet> Enhancing the quality, usefulness, and clarity of the
information to be collected; and
<bullet> Minimizing the burden of the collections of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The collections of information contained in 38 CFR 17.1225 and
17.1230 are described immediately following this paragraph, under their
respective titles.
Title: Submission of Medical Record Information Under the COMPACT
Act.
OMB Control No: 2900--(new).
CFR Provisions: 38 CFR 17.1225 and 17.1230.
<bullet> Summary of collection of information: This amended
collection requires providers of emergent suicide care in non-VA
facilities, or providers of emergency transportation necessary to
receive such care, pursuant to 38 U.S.C. 1720J, to submit to VA certain
information to receive payment or reimbursement for the provision of
such care or transportation.
<bullet> Description of need for information and proposed use of
information: This collection of information is necessary to evaluate
and determine eligibility for emergent suicide care and transportation
and to ensure that any payment amounts are for the provision of such
care in accordance with the parameters established in 38 CFR 17.1200-
17.1230.
<bullet> Description of likely respondents: Health care providers
of emergent suicide care in non-VA facilities and providers of
emergency transportation necessary to receive such care.
<bullet> Estimated number of respondents: 26,910 health care and
transportation providers annually.
<bullet> Estimated frequency of responses: 3.4 annually.
<bullet> Estimated average burden per response: 5 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
7,624 hours.
<bullet> Estimated annual cost to respondents for the hour burdens
for collections of information: $ 213,562.
Title: VA form 10-320, Claim reimbursement form.
OMB Control No: 2900--(new).
CFR Provision: 38 CFR 17.1225 and 17.1230.
<bullet> Summary of collection of information: This new collection
of information requires individuals eligible for emergent suicide care,
and who have paid costs for such care or associated emergency
transportation to receive such care, to submit to VA certain
information to receive reimbursement for such costs incurred.
<bullet> Description of need for information and proposed use of
information: This collection of information is necessary to evaluate
and determine eligibility for emergent suicide care and to ensure that
any reimbursement amounts are for the provision of such care in
accordance with the parameters established in 38 CFR 17.1200-17.1230.
<bullet> Description of likely respondents: Individuals eligible
under 38 CFR 17.1210 who have incurred costs for the provision of
emergent suicide care in or associated emergency transportation to non-
VA facilities that VA must reimburse.
<bullet> Estimated number of respondents: 155.
<bullet> Estimated frequency of responses: 1.
<bullet> Estimated average burden per response: 10 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
26 hours.
<bullet> Estimated annual cost to respondents for the hour burdens
for collections of information: $ 728.
Assistance Listings
The Assistance listing number and title for the programs affected
by this document is 64.009, Veterans Medical Care Benefits; 64.011--
Veterans Domiciliary Care; 64.012--Veterans Dental Care; 64.013--
Veterans Prescription Service; 64.014--Veterans Prosthetic Appliances;
64.015--Veterans State Domiciliary Care; 64.026--Veterans State Nursing
Home Care; 64.029--Veterans State Adult Day Health Care; 64.033--
Purchase Care Program; 64.040--CHAMPVA; 64.041--VHA Inpatient Medicine;
64.042--VHA Outpatient Specialty Care; 64.043--VHA Inpatient Surgery;
64.044--VHA Mental Health Residential; 64.045--VHA Home Care; 64.046--
VHA Outpatient Ancillary Services; 64.047--VHA Inpatient Psychiatry;
64.048--VHA Primary Care; 64.049--VHA Mental Health clinics; 64.050--
VHA Community Living Center; 64.053--VHA Diagnostic Care.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996, also known as the Congressional Review Act (5
U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs
designated this rule as not a major rule, as defined by 5 U.S.C.
804(2).
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, 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 August 11, 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,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs revises 38 CFR part 17 as set forth below:
PART 17--MEDICAL
0
1. The authority citation for part 17 is amended to read in part as
follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Section 17.37 is also issued under 38 U.S.C. 101, 1701, 1705,
1710, 1720J, 1721, 1722.
* * * * *
Section 17.108 is also issued under 38 U.S.C. 501, 1703, 1710,
1725A, 1720J, and 1730A.
* * * * *
Section 17.110 is also issued under 38 U.S.C. 501, 1703, 1710,
1720D, 1720J, 1722A, and 1730A.
* * * * *
[[Page 2536]]
Sections 17.1200 through 17.1230 are also issued under 38 U.S.C.
1720J.
* * * * *
0
2. Amend Sec. 17.37 by adding paragraph (l) and removing the authority
citation at the end of the section.
The addition reads as follows:
Sec. 17.37 Enrollment not required--provision of hospital and
outpatient care to veterans.
* * * * *
(l) An individual may receive emergent suicide care pursuant to 38
U.S.C. 1720J and 38 CFR 17.1200-17.1230.
0
3. Amend Sec. 17.108 by adding paragraph (e)(19) to read as follows:
Sec. 17.108 Copayments for inpatient hospital care and outpatient
medical care.
* * * * *
(e) * * *
(19) Emergent suicide care as authorized under 38 CFR 17.1200-
17.1230.
* * * * *
0
4. Amend Sec. 17.110 by adding paragraph (c)(13) to read as follows:
Sec. 17.110 Copayments for medication.
* * * * *
(c) * * *
(13) Medication for an individual as part of emergent suicide care
as authorized under 38 CFR 17.1200-17.1230.
0
5. Add an undesignated section heading and Sec. Sec. 17.1200 through
17.1230 to read as follows:
* * * * *
Emergent Suicide Care
Sec.
17.1200 Purpose and scope.
17.1205 Definitions.
17.1210 Eligibility.
17.1215 Periods of emergent suicide care.
17.1220 Provision of emergent suicide care.
17.1225 Payment or reimbursement for emergent suicide care.
17.1230 Payment or reimbursement of emergency transportation.
* * * * *
Emergent Suicide Care
Sec. 17.1200 Purpose and scope.
(a) Purpose. Sections 17.1200 through 17.1230 implement VA's
authority under 38 U.S.C. 1720J to provide emergent suicide care.
(b) Scope. If an individual is eligible under Sec. 17.1210, VA
will provide emergent suicide care under Sec. Sec. 17.1200 through
17.1230 and not under other regulations in title 38 CFR through which
emergent or other care could be provided. Eligibility under Sec.
17.1210, however, does not affect eligibility for other care under
chapter 17 of title 38, U.S.C.
Sec. 17.1205 Definitions.
For purposes of sections Sec. Sec. 17.1200 through 17.1230:
Acute suicidal crisis means an individual was determined to be at
imminent risk of self-harm by a trained crisis responder or health care
provider.
Crisis residential care means emergent suicide care provided in a
residential facility other than a hospital (that is not a personal
residence) that provides 24-hour medical supervision.
Crisis stabilization care means, with respect to an individual in
acute suicidal crisis, care that ensures, to the extent practicable,
immediate safety and reduces: the severity of distress; the need for
urgent care; or the likelihood that the severity of distress or need
for urgent care will increase during the transfer of that individual
from a facility at which the individual has received care for that
acute suicidal crisis.
Emergent suicide care means crisis stabilization care provided to
an individual eligible under Sec. 17.1210 pursuant to a recommendation
from the Veterans Crisis Line or when such individual has presented at
a VA or non-VA facility in an acute suicidal crisis.
Health care provider means a VA or non-VA provider who is licensed
to practice health care by a State and who is performing within the
scope of their practice as defined by a State or VA practice standard.
Health-plan contract has the same meaning as that term is defined
in 38 U.S.C. 1725(f)(2).
Inpatient care means care received by an individual during their
admission to a hospital.
Non-VA facility means a facility that meets the definition in 38
U.S.C. 1701(4).
Outpatient care means care received by an individual that is not
described within the definition of ``inpatient care'' under this
section to include telehealth, and without the provision of room or
board.
Provide, provided, or provision means furnished directly by VA,
paid for by VA, or reimbursed by VA.
Trained crisis responder means an individual who responds to
emergency situations in the ordinary course of their employment and
therefore can be presumed to possess adequate training in crisis
intervention.
VA facility means a facility that meets the definition in 38 U.S.C.
1701(3).
Veterans Crisis Line means the hotline under 38 U.S.C. 1720F(h).
Sec. 17.1210 Eligibility.
(a) An individual is eligible for emergent suicide care if they
were determined to be in acute suicidal crisis and are either of the
following:
(1) A veteran as that term is defined in 38 U.S.C. 101; or
(2) An individual described in 38 U.S.C. 1720I(b).
(b) VA may initiate provision of emergent suicide care for an
individual in acute suicidal crisis prior to that individual's status
under paragraphs (a)(1) or (2) of this section being confirmed. If VA
is unable to confirm an individual's status under paragraph (a)(1) or
(2) of this section, VA shall bill that individual for the emergent
suicide care provided consistent with 38 CFR 17.102(a) and (b)(1).
Sec. 17.1215 Periods of emergent suicide care.
(a) Unless extended under paragraph (b) of this section, emergent
suicide care will be provided to an individual eligible under Sec.
17.1210 from the date acute suicidal crisis is determined to exist:
(1) Through inpatient care or crisis residential care, as long as
the care continues to be clinically necessary, but not to exceed 30
calendar days; or
(2) If care under paragraph (a)(1) of this section is unavailable,
or if such care is not clinically appropriate, through outpatient care,
as long as the care continues to be clinically necessary, but not to
exceed 90 calendar days.
(b) VA may extend a period under paragraph (a) of this section if
such period is ending and VA determines that an individual continues to
require care to address the effects of the acute suicidal crisis.
Sec. 17.1220 Provision of emergent suicide care.
(a) Emergent suicide care will be provided to individuals eligible
under Sec. 17.1210 only if it is determined by a health care provider
to be clinically necessary and in accord with generally accepted
standards of medical practice.
(b) Prescription drugs, biologicals, and medical devices that may
be provided during a period of emergent suicide care under Sec.
17.1215 must be approved by the Food and Drug Administration, unless
the treating VA facility or non-VA facility is conducting formal
clinical trials under an Investigational Device Exemption or an
Investigational New Drug application, or the drugs, biologicals, or
medical devices are prescribed under a compassionate use exemption.
[[Page 2537]]
Sec. 17.1225 Payment or reimbursement for emergent suicide care.
(a) VA will not charge individuals eligible under Sec. 17.1210 who
receive care under Sec. 17.1215 any costs for such care.
(1) For care furnished in a VA facility, VA will not charge any
copayment or other costs that would otherwise be applicable under 38
CFR chapter 17.
(2) For care furnished in a non-VA facility, VA will either:
(i) Pay for the care furnished, subject to paragraphs (b) through
(d) of this section; or
(ii) Reimburse an individual eligible under Sec. 17.1210 for the
costs incurred by the individual for the care received, subject to
paragraph (e) of this section.
(b) The amounts paid by VA for care furnished under paragraph
(a)(2)(i) of this section will:
(1) Be established pursuant to contracts, or agreements, or
(2) If there is no amount determinable under paragraph (b)(1) of
this section, VA will pay the following amounts:
(i) For care furnished in Alaska for which a VA Alaska Fee Schedule
(see 38 CFR 17.56(b)) code and amount exists: The lesser of billed
charges or the VA Alaska Fee Schedule amount. The VA Alaska Fee
Schedule only applies to physician and non-physician professional
services. The schedule uses the Health Insurance Portability and
Accountability Act mandated national standard coding sets.
(ii) For care not within the scope of paragraph (b)(2)(i) of this
section, and for which an applicable Medicare fee schedule or
prospective payment system amount exists for the period in which the
service was provided (without any changes based on the subsequent
development of information under Medicare authorities) (hereafter
``Medicare rate''): The lesser of billed charges or the applicable
Medicare rate.
(iii) For care not within the scope of paragraph (b)(2)(i) of this
section, furnished by a facility currently designated as a Critical
Access Hospital (CAH) by CMS, and for which a specific amount is
determinable under the following methodology: The lesser of billed
charges or the applicable CAH rate verified by VA. Data requested by VA
to support the applicable CAH rate shall be provided upon request.
Billed charges are not relevant for purposes of determining whether a
specific amount is determinable under the above methodology.
(iv) For care not within the scope of paragraphs (b)(2)(i) through
(iii) of this section and for which there exists a VA Fee Schedule
amount for the period in which the service was performed: The lesser of
billed charges or the VA Fee Schedule amount for the period in which
the service was performed, as posted on <a href="http://VA.gov">VA.gov</a>.
(v) For care not within the scope of paragraphs (b)(2)(i) through
(iv) of this section: Billed charges.
(c) Payment by VA under paragraph (a)(2)(i) of this section shall,
unless rejected and refunded within 30 calendar days of receipt,
extinguish all liability on the part of the individual who received
care. Neither the absence of a contract or agreement between the
Secretary and the provider nor any provision of a contact, agreement,
or assignment to the contrary shall operate to modify, limit, or negate
this requirement.
(d) To obtain payment under paragraph (a)(2)(i) of this section, a
health care provider or non-VA facility must:
(1) If the care was provided pursuant to a contract, follow all
applicable provisions and instructions in such contract to receive
payment.
(2) If the care was not provided pursuant to a contract with VA,
submit to VA a standard billing form and other information as required
no later than 180 calendar days from the date services were furnished.
Submission instructions, to include required forms and other
information, can be found at <a href="http://www.va.gov">www.va.gov</a>.
(e) To obtain reimbursement under paragraph (a)(2)(ii) of this
section, an individual eligible under Sec. 17.1210 must submit to VA a
standard billing form and other information as required no later than
180 calendar days from the date the individual paid for emergent
suicide care. Submission instructions, to include required forms and
other information, can be found at <a href="http://www.va.gov">www.va.gov</a>.
(f) VA may recover costs of care it has paid or reimbursed under
paragraphs (a)(2)(i) and (ii) of this section, other than for such care
for a service-connected disability, if the individual who received the
care is entitled to the care (or payment of the care) under a health
plan contract. Such recovery procedures will generally comply with 38
CFR 17.100-17.106.
Sec. 17.1230 Payment or reimbursement of emergency transportation.
(a) VA will pay or reimburse for the costs of emergency
transportation (i.e., ambulance or air ambulance) to a VA facility or
non-VA facility for the provision of emergent suicide care to an
eligible individual under Sec. 17.1210.
(1) For claims submitted by providers of emergency transportation,
rates of payment for emergency transportation under paragraph (a) of
this section will be calculated as they are under 38 CFR 17.1005(a)(1)
through (3). For purposes of this section, the term ``emergency
treatment'' in Sec. 17.1005(a) should be read to mean ``emergency
transportation.''
(2) For claims submitted by an individual eligible under Sec.
17.1210, VA will reimburse for emergency transportation under paragraph
(a) of this section the costs such individual incurred for the
emergency transportation.
(b) To obtain payment for emergency transportation furnished under
paragraph (a) of this section, the provider of such transportation must
submit to VA a standard billing form and other information as required
no later than 180 calendar days from the date transportation was
furnished. Submission instructions, to include required forms and other
information, can be found at <a href="http://www.va.gov">www.va.gov</a>.
(c) To obtain reimbursement for emergency transportation under
paragraph (a) of this section, an individual eligible under Sec.
17.1210 must submit to VA a standard billing form and other information
as required no later than 180 calendar days from the date the
individual paid for such transportation. Submission instructions, to
include required forms and other information, can be found at
<a href="http://www.va.gov">www.va.gov</a>.
(d) Payment by VA under paragraph (a) of this section shall, unless
rejected and refunded within 30 calendar days of receipt, extinguish
all liability on the part of the individual who received care. No
provision of a contact, agreement, or assignment to the contrary shall
operate to modify, limit, or negate this requirement.
[FR Doc. 2023-00298 Filed 1-13-23; 8:45 am]
BILLING CODE 8320-01-P
</pre></body>
</html>Indexed from Federal Register on January 17, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.