Rule2023-03339
Reimbursement for Emergency Treatment
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 22, 2023
Effective
April 24, 2023
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) is finalizing, with some changes, an interim final rule that amended its medical regulations concerning payment or reimbursement for emergency treatment for non-service-connected conditions at non-VA (community) facilities. This final rule responds to public comments received on the interim final rule and amends VA's emergency treatment regulations to authorize payment or reimbursement for coinsurance, temporarily waive the timely filing requirements for veterans affected by the interim final rule, and authorize payment or reimbursement for emergency transportation associated with emergency treatment when VA has paid for the emergency treatment using a separate authority. Because the change to Sec. 17.1004 was not addressed in the Supplementary Information section of the interim final rule, VA believes the public should have an opportunity to comment on the change. Therefore, a 60-day comment period to address this single topic will be provided.
Full Text
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<title>Federal Register, Volume 88 Issue 35 (Wednesday, February 22, 2023)</title>
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[Federal Register Volume 88, Number 35 (Wednesday, February 22, 2023)]
[Rules and Regulations]
[Pages 10835-10842]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03339]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 88, No. 35 / Wednesday, February 22, 2023 /
Rules and Regulations
[[Page 10835]]
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AQ08
Reimbursement for Emergency Treatment
AGENCY: Department of Veterans Affairs.
ACTION: Final rule with comments.
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SUMMARY: The Department of Veterans Affairs (VA) is finalizing, with
some changes, an interim final rule that amended its medical
regulations concerning payment or reimbursement for emergency treatment
for non-service-connected conditions at non-VA (community) facilities.
This final rule responds to public comments received on the interim
final rule and amends VA's emergency treatment regulations to authorize
payment or reimbursement for coinsurance, temporarily waive the timely
filing requirements for veterans affected by the interim final rule,
and authorize payment or reimbursement for emergency transportation
associated with emergency treatment when VA has paid for the emergency
treatment using a separate authority. Because the change to Sec.
17.1004 was not addressed in the Supplementary Information section of
the interim final rule, VA believes the public should have an
opportunity to comment on the change. Therefore, a 60-day comment
period to address this single topic will be provided.
DATES:
Effective date: This final rule is effective April 24, 2023.
Comment Date: Comments on VA temporarily waiving the timely filing
requirement must be received on or before April 24, 2023.
ADDRESSES: Comments must be submitted through <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, Director, Policy and
Planning VHA Office of Integrated Veteran Care (16IVC), Veterans Health
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (303-370-1637). (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In an interim final rule published in the
Federal Register (FR) on January 9, 2018, 83 FR 974, VA amended its
medical regulations pursuant to a decision from the Court of Appeals
for Veterans Claims (Veterans Court), Staab v. McDonald, 28 Vet. App.
50 (2016), to authorize reimbursement for the costs of emergency
treatment furnished in the community for a veteran's non-service-
connected condition when the veteran is eligible for partial payment of
these costs under a health-plan contract.
Among other changes made, the interim final rule clarified that VA
would not pay or reimburse for a copayment, deductible, coinsurance, or
similar payment owed by the veteran. 38 CFR 17.1005(a). In issuing the
interim final rule, VA explained that VA is statutorily prohibited
under section 1725(c)(4)(D) of title 38, United States Code (U.S.C.)
from paying for or reimbursing a copayment or similar payment and VA
interpreted ``similar payment'' to include both deductibles and
coinsurance. 38 CFR 17.1005(a)(5); 83 FR 974 (January 9, 2018).
VA provided a 60-day comment period, which ended on March 12, 2018.
Twelve comments were received, which are described in detail in the
following section of this discussion.
Following the comment period, on March 17, 2022, the United States
Court of Appeals for the Federal Circuit (Federal Circuit) issued a
decision, Wolfe v. McDonough, No. 2020-1958, on issues relating to a
Writ of Mandamus granted by the Veterans Court. This case involved a
challenge to VA's interpretation of 38 U.S.C. 1725(c)(4)(D) (that is,
VA's prohibition on paying for copayments, coinsurance, and deductibles
under 38 CFR 17.1005(a)(5)). In its opinion, the Federal Circuit
interpreted 38 U.S.C. 1725(c)(4)(D) to exclude payment by VA of
deductibles, but not coinsurance, as it found that a deductible is a
similar payment to a copayment, but coinsurance is not.
However, the decision on the Wolfe appeal did not specifically
invalidate or otherwise amend VA's regulations as they relate to the
payment of coinsurance. Subsequent to the Wolfe decision, a petition
for review was filed at the Federal Circuit on May 4, 2022. The
petitioners in this case asked for the court to invalidate the portion
of VA's regulation that prohibited payment of coinsurance. On October
25, 2022, the Federal Circuit issued an order directing VA to amend its
regulations within 120 days to allow for the payment of coinsurance.
Kimmel v. Sec'y of Veterans Affs, No. 2022-1754, 2022 U.S. App. LEXIS
29615 (Fed. Cir. Oct. 25, 2022).
For the reasons below and consistent with the Wolfe decision and
subsequent order related to the Kimmel petition, this rulemaking will
make final the interim final rule (83 FR 974) with changes and will
permit an additional comment period on the limited issue of the timely
filing requirement.
Public Comments
Twelve comments were received in response to the interim final
rule. Several commenters expressed support for the rule. The remaining
substantive comments are discussed in detail below.
Retroactivity
In the interim final rule, we stated that judicial decisions
invalidating a statute or regulation, or VA's interpretation of a
statute or regulation, cannot affect prior final VA decisions, meaning
decisions that were not timely appealed and have thus become final.
[[Page 10836]]
As such, VA stated it will not retroactively pay benefits for claims
filed under Sec. 17.1002(f) that were finally decided before April 8,
2016, the date of the Veterans Court's Staab decision. We received
multiple comments stating that VA should apply the amendments made in
the interim final rule retroactively to February 1, 2010, the date of
enactment of the Expansion of Veteran Eligibility for Reimbursement
Act, Public Law 111-137 (hereinafter referred to as the ``2010 Act'').
One commenter stated that VA has the authority to consider these
claims because section 1725 provides VA with broad authority to
establish the claim and payment process. Another commenter stated that
the Staab decision requires VA to provide reimbursement to veterans
with claims pending on or after February 1, 2010, because the court
stated that VA must re-adjudicate the appellant's claim, which was for
reimbursement for treatment in December 2010. The commenter also stated
that a judicial interpretation of a statute defines the meaning of the
statute as of the date of enactment, not the date of the judicial
decision. The commenter cited to the Federal Circuit's decision in
Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011), to support
that proposition.
We also received three comments concerning the need for retroactive
application of the Staab decision from members of the United States
Congress. Two of the comments were nearly identical. One was from the
United States House of Representatives Committee on Veterans' Affairs
and one was from members of the United States Senate. The comments
requested that the interim final rule include those veterans whose
claims were decided between the date of enactment of the 2010 Act,
February 1, 2010, and the date of the Staab decision, April 8, 2016, so
that veterans can take full advantage of a benefit Congress intended
for them to receive. The Secretary of Veterans Affairs responded to
these two comments in letters sent to each member of Congress who
signed the two comments. The letter stated that the Secretary shared
the concern of the members of Congress about veterans who, prior to the
Staab decision, had their claims for reimbursement denied on the sole
grounds that their health-plan contracts had made partial payments for
their emergency treatment, thereby leaving them with personal liability
for the remaining costs of that treatment.
Under 38 U.S.C. 7105(c), a decision of a VA agency of original
jurisdiction (AOJ) that is not appealed in a timely manner is
considered final and the claim may not thereafter be reopened or
allowed ``except as provided by regulations not inconsistent with this
title.'' Under 38 U.S.C. 7104(b), when a claim is disallowed by the
Board of Veterans' Appeals (Board), it may not thereafter be reopened
and allowed ``[e]xcept as provided in section 5108 of this title.'' To
the extent these statutes may be construed to permit VA by regulation
to create additional exceptions to the finality of AOJ decisions, but
not Board decisions, we decline to exercise that authority here. Such a
rule would depart significantly from the well-established principle,
discussed below, that new judicial interpretations of a statute do not
provide a basis for reopening final decisions, and it would create an
unfair distinction among claimants based upon whether their last final
decision was issued by an AOJ or the Board. Moreover, as explained
below, other authorities provide a basis for addressing claims
involving expenses incurred on or after February 1, 2010, in a manner
we believe to be more equitable and consistent with established
precedents.
There are only two statutory exceptions to the rule of finality,
new and material evidence and clear and unmistakable error, 38 U.S.C.
5108, neither of which authorizes VA to proactively re-open and re-
adjudicate finally decided claims as a result of the Staab decision as
suggested by the commenters. See 38 U.S.C. 5108, 5109A, and 7111; Cook
v. Principi, 318 F.3d 1334, 1339 (Fed. Cir 2002). As these two
exceptions relate to the lines of reasoning raised by the commenters
above, we do not believe that the authority provided in section 1725
authorizes VA to re-adjudicate the claims in a manner that is
inconsistent with 38 U.S.C. 5108, 5109A, and 7111. In addition, we do
not believe that the Staab decision requires VA to re-adjudicate all
finally decided claims retroactive to the effective date of the law.
Significantly, the court did not order VA to re-adjudicate all finally
decided claims from the date of enactment; instead, the court vacated
the Board's decision that denied Mr. Staab's individual claim and
ordered VA to re-adjudicate Mr. Staab's individual claim, which was not
finally decided because he filed a timely appeal. In order to
adjudicate the claim and address the court's invalidation of Sec.
17.1002(f), VA amended its payment regulations to establish a payment
methodology for claims, like Mr. Staab's, that involve partial payment
by a health-plan contract. The Staab decision did not address and does
not govern VA's authority to apply the new methodology to claims that
were finally decided prior to the decision.
Further, in George v. McDonough, 142 S. Ct. 1953, the Court held
that invalidation of a VA regulation after a veteran's benefits
decision becomes final cannot support a claim for collateral relief
based on clear and unmistakable error. Therefore, neither the Staab
decision, nor later decisions in the Wolfe or Kimmel matters create a
clear and unmistakable error that would allow for readjudication of
already denied claims.
However, when an intervening and substantive change in law occurs
and creates a new basis for entitlement to a benefit (e.g., judicial
interpretation and invalidation of a regulation results in expansion of
entitlement to a benefit), VA may review a new claim based on the same
facts as the finally decided claim. Spencer v. Brown, 17 F.3d 368, 372
(Fed. Cir.) (1994). In this situation, individuals whose claims were
finally decided prior to the change in law may submit new claims to be
adjudicated under the revised standard. We therefore explained to the
members of Congress that VA can reach claims that were finally decided
prior to the Staab decision (on the sole grounds that partial payment
would be, or had been, made under the veterans' health-plan contract),
if the veterans or providers file new claims for the same benefits that
were previously denied. VA further explained that we will adjudicate
claims from providers or veterans who, due to their awareness of the
former interpretation of the law (former Sec. 17.1002(f)), chose not
to file claims because partial payment had been made or would be made
under the veterans' health-plan contracts. The Secretary also informed
the members of Congress that we would create a solution, through
amendatory rulemaking, to avoid denial of these claims as untimely
under the current filing deadlines specified in regulation. It was
further explained that all providers or veterans seeking reimbursement
under the revised regulation would be required to submit evidence
showing the amount paid by their health insurance plan and the amount
of the veteran's remaining liability. The reason for this requirement
is explained below.
The third Congressional comment (from the Senate Committee on
Veterans' Affairs) stated that the timely filing requirement for these
claims should be waived completely. The comment further stated that VA
should proactively reach out to veterans whose
[[Page 10837]]
claims were denied under the previous regulations because making
veterans refile their claims would be unduly burdensome and create a
barrier to filing that will disproportionately impact veterans whom the
comment described as already being vulnerable.
VA agrees that it is necessary to provide the two groups of
claimants described above with an opportunity to file new claims for
payment or reimbursement of emergency treatment costs incurred in the
community on or after February 1, 2010, up to April 8, 2016 (the date
of the Staab decision), and to adjudicate these claims under the new
legal standard, subject to the one-year filing deadline established in
Sec. 17.1004(f), as revised by this final rule. To simply waive the
timely filing requirement for these claims would be problematic,
however, as it would prevent VA from being able to reliably forecast
budgetary and other claims processing needs relative to these claims.
Moreover, health insurance claims are generally processed in accordance
with firm time limits established by the governing contracts, including
those applicable to the carriers' appeals processes. Thus, the amounts
paid under veterans' health-plan contracts have already been
identified. Unless these records are no longer retained by the
carriers, this historical information exists and can be requested. In
the alternative, the veteran may have personal possession of these
historical records. In either event, VA believes that a one-year filing
deadline is reasonable and gives these claimants an adequate
opportunity to seek payment or reimbursement for costs incurred during
the covered time-period. VA will therefore not waive the timely filing
requirement for claimants affected by the Staab decision.
In order to address the concerns raised, and in response to
comments that VA received on the IFR, VA will amend Sec. 17.1004 to
afford veterans affected by the Staab decision an opportunity to file a
new claim based on the change in law. Specifically, VA is amending
Sec. 17.1004(f), which currently provides an exception to the timely
filing requirements in Sec. 17.1004(d) for dates of service between
July 19, 2001, and 90 days before May 21, 2012, if the claimant files a
claim for reimbursement no later than one year after May 21, 2012.
Because the time frame for the waiver in current Sec. 17.1004(f) has
passed, we will amend this paragraph by removing the previous time
frame for the waiver and, in its place, allow claimants to file a
claim, notwithstanding paragraph (d) of this section, for reimbursement
of costs of non-VA emergency treatment rendered on or after February 1,
2010 and more than 90 days before February 22, 2023 for which partial
payment was paid or payable under the veterans' health-plan contracts,
provided the claimants file their claims for reimbursement no later
than one year after February 22, 2023. This amendment will thus provide
all claimants affected by the Staab decision, regardless of whether
they previously filed claims for reimbursement, an opportunity to
submit a claim for payment or reimbursement of the costs of non-VA
emergency treatment they received on or after the effective date of the
2010 Act.
VA has additionally determined that anyone who had been potentially
adversely affected by the issues raised in the Wolfe litigation, or the
subsequent Kimmel petition, would fall within this waiver period.
Therefore, they would also be able to seek adjudication of their claims
under the new standard. To the extent the issues here are distinct from
those raised by the Staab case, the inclusion within these timeframes
will still allow for those issues to be addressed.
As a matter of prudence, and because this precise change to Sec.
17.1004 differs from the interim final rule, VA is inviting the public
to comment on the change. Therefore, a 60-day comment period to address
this single topic will be provided.
Copayments and Similar Payments
Section 1725(c)(4)(D) prohibits VA from reimbursing a veteran for a
copayment or similar payment that the veteran owes a third party or is
responsible to pay under a health-plan contract. The interim final rule
interpreted ``similar payment'' to include deductibles and coinsurance.
We received multiple comments that coinsurance and deductibles are not
``similar payments'' to copayments and should be removed from the list
of payments for which VA will not provide reimbursement. Following the
public comment period, the Federal Circuit's order regarding the Kimmel
petition held that coinsurance was the type of payment envisioned by
Congress that VA would pay or reimburse while deductibles were similar
to copayments and therefore prohibited from payment or reimbursement
pursuant to 38 U.S.C. 1725(c)(4)(D).
Consistent with this decision, we are removing coinsurance from the
list of prohibited payments in Sec. 17.1005(a)(5) but will not remove
deductibles from that list.
The following discussion specifically addresses the related
comments we received during the public comment period on this issue.
Commenters explained that a copayment, by definition, is
distinguishable from other forms of cost-sharing, such as deductibles
and coinsurance, and that copayments result in much lower liabilities
than deductibles and coinsurance. The commenters stated that each term
is a ``term of art'' with a specific, accepted, meaning and that the
term copayment cannot be read to include these different obligations.
One commenter defined copayment as the set dollar amount the patient
pays for care after the deductible is paid, deductible as the amount an
insured must pay each year before the insurance source pays its share,
and coinsurance as the percent of costs the enrollee must pay. Another
commenter similarly defined a copayment as a fixed, flat fee, amount
paid by an insured for each particular covered health care service
after paying any deductible, a deductible as a fixed amount an insured
pays each year for eligible medical services or medicines before
insurance will make any payment, and coinsurance as a portion of all
the medical costs that an insured must pay of all costs subject to the
coinsurance.
In Wolfe v. McDonough, No. 2020-1958, Fed. Cir. (Mar. 17, 2022),
the Federal Circuit indicated that copayments and deductibles were
similar payments, as they are both fixed quantities which become known
once insurance is purchased, while coinsurance is a variable quantity
that becomes known after medical expenses are incurred. The Federal
Circuit also found that the legislative history supports that
deductibles were intentionally excluded from reimbursement as a similar
payment but coinsurance was not. Later, in the response to the Kimmel
petition, the Federal Circuit determined that coinsurance was the type
of payment envisioned by Congress that VA would pay or reimburse while
deductibles were similar to copayments and therefore prohibited from
payment or reimbursement pursuant to 38 U.S.C. 1725(c)(4)(D).
Several commenters stated that the rules of statutory construction
require us to presume Congress meant what it said and that, in other
statutory contexts, Congress has not used the specific term, copayment,
to include other forms of cost-sharing. One commenter noted that they
do not believe there is a Congressional reference to copayments that
includes
[[Page 10838]]
coinsurance and deductibles. The commenters provided the following
examples: 38 U.S.C. 1729(a)(3) uses ``deductible or copayment;'' under
the essential health benefit limitations on cost-sharing, Congress
refers to ``copayments and coinsurance;'' in establishing premium and
cost sharing subsidies for low-income individuals, Congress made
reference to copayment separately from coinsurance; and in the
statutory authority for VA to require copayments for medications, the
law referred to copayments and did not include coinsurance or
deductibles. The commenters stated that had Congress intended
deductibles or coinsurance be excluded from reimbursement, it would
have used such language.
To clarify, VA does not believe that Congress intended for the term
``copayment'' in section 1725(c)(4)(D) to, by itself, encompass
deductibles. Instead, VA believes it is the phrase ``or similar
payment'' that is intended to include other forms of cost sharing, such
as deductibles. VA agrees that we must presume Congress meant what it
said, and in section 1725, Congress said ``copayment or similar
payment.'' A statute must be interpreted, ``so that effect is given to
all its provisions, so that no part will be inoperative or superfluous,
void or insignificant.'' Corley v. United States, 556 U.S. 303, 304
(2009). To find meaning in the phrase ``similar payment,'' VA must
identify and consider other payments for which a veteran is responsible
under a health plan contract. VA can find no payment more similar to a
copayment than a deductible, which serves as a fixed-amount cost-
sharing measure to which the insured freely agrees to pay as a
condition of insurance coverage. As noted in Wolfe, similar payments
necessarily means that some payments that are not copayments are
similar payments. The Federal Circuit found that deductibles were
envisioned by Congress to be similar to copayments and thus prohibited
from payment or reimbursement. The Federal Circuit looked at the
legislative history for 38 U.S.C. 1725 and determined that it supports
that Congress intentionally excluded deductibles from reimbursement as
a similar payment.
Another commenter stated that VA did not provide any legal
authority to broaden the statutory language in section 1725(c)(4)(D) to
include deductibles and coinsurance. We disagree. First, Congress
explicitly gave VA broad authority to implement section 1725 in
regulations prescribed by the Secretary. Specifically, section
1725(c)(1)(B) provides that, ``The Secretary, in accordance with
regulations prescribed by the Secretary, shall . . . delineate the
circumstances under which such payments may be made . . . .'' Moreover,
as crafted, the language of section 1725(c)(4)(D) plainly allows for
other payments to be included within its scope, provided they are
similar to the one named. As noted throughout this discussion, the
Federal Circuit in Wolfe and Kimmel acknowledged that inclusion of the
phrase ``similar payments'' in the statute necessarily means that some
payments that are not copayments are similar payments. The Federal
Circuit interpreted section 1725(c)(4)(D) and its legislative history
to determine that a deductible is a similar payment to a copayment and
thus excluded from payment or reimbursement. For these reasons, we
believe that VA has authority to interpret the phrase ``or similar
payment'' in paragraph (4)(D) of subsection (c).
The commenters also stated that the legislative history and the
Veterans Court's Staab decision provide that the purpose of the 2010
Act was to make VA responsible for the cost (of the emergency
treatment) exceeding the amount payable or paid by the third-party
insurer, noting that a deductible or coinsurance amount is not payable
or paid by the third-party insurer. VA agrees that part of the
legislative history related to the 2010 Act and the Staab decision each
reflect an expectation or understanding that the 2010 Act amendments
effectively enable VA to pay the entire remainder owed to the emergency
provider after partial payment is made or payable under the veteran's
health-plan contract. However, even if this were intended, the 2010 Act
did not accomplish this goal. The still relevant provisions of section
1725(c) explicitly require VA to limit the amount of reimbursement
available under section 1725. Indeed, the header for subsection (c) is
``Limitations on reimbursement.'' To this end, section 1725(c)(1)
directs VA to promulgate regulations that limit payment, to include
establishing a maximum amount payable under section 1725. In addition,
section 1725(c)(4)(D) expressly prohibits VA from reimbursing a veteran
for any copayment or similar payment that the veteran owes the third
party or for which the veteran is responsible under a health-plan
contract. These, along with the other likewise intact provisions of
subsection (c), reflect a continuing requirement to limit the budgetary
impact of section 1725. If the drafters of the 2010 Act believed that
VA's secondary payment would cover all of the eligible veterans' out-
of-pocket costs, we conclude that they failed to execute all the
amendments needed to accomplish this, and the Federal Circuit confirmed
this by its interpretation of the statute.
Multiple commenters mentioned that the bar on reimbursement of
deductibles and coinsurance acts as a disincentive to purchasing health
insurance coverage. They suggest that the exclusion of veterans' out-
of-pocket (cost sharing) costs could result in veterans foregoing the
purchase of health insurance, leaving VA with increased costs as their
sole payer. One of the commenters stated that veterans will always have
personal liability if they have Medicare Part B and the proposed change
will do nothing to resolve the veteran's personal liability. The
commenter further stated that it will encourage veterans to discontinue
their Medicare Part B and recommends that the rule require veterans to
have Medicare Part B.
As discussed above, VA interprets ``similar payments'' to include
deductibles; thus, VA does not have authority to reimburse these costs.
As a matter of policy, VA interprets ``similar payments'' this way in
order to avoid any conflict with the Federal Circuit. VA acknowledges
that veterans who do not have health insurance would likely pay no out-
of-pocket costs while veterans who do have health insurance may have
out-of-pocket costs resulting from their cost share obligations.
Nonetheless, VA does not believe that this potential disparity will
deter veterans from purchasing health insurance. Most veterans enrolled
in the VA health care system have an additional type of health
insurance coverage. It seems unlikely that they would forego their
health insurance protection for all other medical conditions, which are
likewise subject to their plan's deductible requirements, merely to
avoid having to pay copayments and similar payments owed in connection
with the receipt of non-VA emergency treatment. Again, these are cost
shares that they freely agreed to pay in exchange for health insurance
coverage independent of their VA benefits. Ultimately, whether to keep
or obtain health insurance is a personal financial decision for
veterans enrolled in VA's health care system to make based on their own
needs, financial capability, and preferences.
As it concerns veterans who are eligible for reimbursement under
section 1725 and who also have coverage for emergency treatment under
Medicare Part A, VA has no authority to require that they be enrolled
in Medicare Part B as a condition of
[[Page 10839]]
payment or reimbursement under section 1725.
Based on these comments and the Wolfe decision and Kimmel order, we
are removing coinsurance from the list of prohibited payments in Sec.
17.1005(a)(5) but will not remove deductibles from that list. We are
also retaining the ``or similar payment'' qualifier on the end of the
list to maintain the flexibility originally envisioned by Congress's
initial inclusion of the phrase in section 1725. Retaining ``or similar
payment'' allows VA to be flexible in the future, should some new type
of health care cost sharing arise.
Payment Limitations
Several commenters raised a concern that VA's payment limitation of
70 percent of the Medicare fee schedule rate was too low. The
commenters requested that VA amend the rule to pay the fair market
value for the services rendered. One commenter explained that payment
below the fair market value could jeopardize the financial viability of
the emergency care safety net.
To clarify, the scope of this rulemaking is to amend VA's
regulations to comply with case law interpreting the scope of VA's
reimbursement authority. Therefore, this rulemaking only affects
reimbursement when the veteran has partial payment from a third party;
it does not affect the amount VA will pay when the veteran has no other
coverage, which is governed by a different provision of the payment
regulation. When the veteran has partial payment for the emergency
treatment expenses from a third party, VA is the secondary payer. Under
the amended payment regulation, VA pays the lesser of: the amount for
which the veteran is still personally liable after payment by a third
party (including a health-plan contract); or 70 percent of the
applicable Medicare fee schedule rate.
For example, a veteran has an initial liability of $100 dollars. 70
percent of the Medicare fee schedule is $70 and the veteran's health-
plan contract paid the provider 80 percent of the Medicare fee schedule
rate ($80). If the veteran has remaining liability to the provider
(other than a copayment, deductible or similar payment), then VA would
still be able to pay up to $20 towards the veteran's remaining
liability even after the payment of $80 from the health plan contract.
Although VA can pay up to 70 percent of the Medicare fee schedule,
which is $70, the veteran's remaining liability in this instance would
only be $20 after deducting the health-plan contract's payment of $80
from the $100 liability. As secondary payer, VA's maximum allowable
amount is in addition to the amount already paid (or payable) by the
health-plan contract. For this reason, VA believes that emergency
treatment providers will ultimately receive at least fair market value
for their services; consequently, this final rulemaking will not
jeopardize the financial viability of emergency departments. VA does
not make any changes to the rule based on these comments.
Other commenters stated that the low reimbursement rate would
encourage health care professionals to deny treatment to veterans for
fear of inadequate reimbursement. All veterans affected by this
rulemaking already have coverage for emergency treatment expenses under
their health-plan contracts, with rates presumably negotiated (by the
carriers and providers) to ensure adequate reimbursement. Again, VA is
secondary payer to these contracts. The combined payment by the primary
payer (health-plan contract) and VA for the same emergency treatment
episode should thus provide adequate reimbursement, as discussed above.
In addition, a Medicare-participating hospital with an emergency
department that denies emergency care to an individual due to the
individual's inability to pay would arguably violate the Emergency
Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. 1395dd, as
amended. Under EMTALA, if any individual (regardless of Medicare-
eligibility) seeks examination or treatment for a medical condition at
a covered hospital, then the hospital must provide a screening
examination to determine whether an emergency medical condition exists.
If so, the hospital is, in general, required to furnish needed
emergency treatment until the individual is stabilized and able to be
transferred irrespective of the patient's ability to pay. For these
reasons, we do not make any changes to the rule based on these
comments.
Another commenter stated that Congress did not intend for VA to set
such a low rate and cited to a study that found that in-network
emergency physician claims were paid at 297 percent of the Medicare
rate and out-of-network emergency physicians charged an average of 798
percent of the Medicare rate. The legislative history from when 38
U.S.C. 1725 was originally enacted demonstrates that Congress intended
for VA to set a rate that is lower than the Medicare fee schedule rate.
The legislative history reads, ``The Committee thus envisions that VA
would establish rates that are significantly below those paid under the
Medicare or Medicaid system (or under 38 United States Code, section
1728).'' House Report 106-237 (July 16, 1999). Therefore, VA believes
that the rate it set is precisely what Congress envisioned, and we do
not make any changes to the rule based on this comment.
The commenter also noted that the interim final rule permits
emergency providers to reject the payment amount, which would
presumably leave the veteran fully responsible for the payment. Given
the low rate, the commenter feared that these providers may reject the
amount and seek full payment from the veteran. As noted above, VA has
been paying 70 percent of the applicable Medicare fee schedule rate in
instances when VA is the sole payer ever since the regulations were
effective on May 29, 2000 (66 FR 36470) (unless, of course, the amount
owed to the provider was less than 70 percent of the Medicare fee
schedule rate, thereby requiring the lesser amount to be paid). Since
that time, very few, if any, of VA's payments have been rejected,
presumably because these debts would have otherwise been written off by
the providers. Because emergency providers may view the new cohort of
veterans covered by the court's decision as having the ability to self-
pay more than the VA allowable amount, we have devised a payment
methodology to reduce the likelihood that the providers will reject VA
payment. Emergency providers will be receiving greater than 70 percent
of the Medicare fee schedule rate; again, they will receive a combined
payment comprised of the third party's payment and VA's payment. At
this time, and in the absence of compelling evidence requiring a
changed approach, we decline to make any changes to the rule based on
this comment.
One commenter sought clarification on liability for cost-sharing.
In particular, the commenter asked whether a veteran's cost sharing
responsibilities are also extinguished if a health care provider
accepts payment from VA for the emergency treatment. We clarify that
some of the veteran's cost sharing obligations, such as a copayment or
deductible, are not extinguished by VA payment. Those are contractual
payment obligations, non-reimbursable by VA, that are owed by the
veteran to the provider, consistent with the terms of the veteran's
health-plan contract. We do note however, under this amended rule, VA
will pay or reimburse for a veteran's coinsurance as part of its
underlying payment for medical treatment. Therefore,
[[Page 10840]]
acceptance of payment from VA will extinguish any coinsurance
responsibility on the part of the veteran. See 38 CFR 17.1005(a)(4). We
do not make any changes to the rule based on this comment.
Miscellaneous
One commenter requested that VA provide clarity on two provisions
in the regulations. The first provision is the prudent layperson
standard in 38 CFR 17.1002(b). The regulation provides that, in order
to receive reimbursement, the veteran must have sought care for which a
prudent layperson would have reasonably expected that delay in seeking
immediate medical attention would have been hazardous to life or
health. The commenter recommended that VA provide a list of services
that would meet this standard to ensure that emergency treatment claims
filed by veterans are not improperly rejected. The commenter suggested
that VA adopt the list from the American College of Emergency
Physicians. VA appreciates the commenter's suggestion, but the scope of
the rulemaking is narrowly limited to amending VA's regulations to
comply with the Staab and Wolfe decisions and the Kimmel order by
permitting reimbursement when the veteran has partial payment from a
health-plan contract. Therefore, this comment is beyond the scope of
this rulemaking, and we do not make any edits based on the comment.
However, VA will continue to monitor the program and consider whether
additional rulemaking may be necessary in the future.
The commenter also requested that VA amend the rule to
affirmatively state that VA cannot deny a claim after a veteran passes
away if the emergency medical treatment is furnished prior to the
veteran's death. The commenter noted that the interim final rule states
that reimbursement is not available if death occurs before emergency
treatment is provided. We want to clarify that the interim final rule
does not state that reimbursement is not available if death occurs
before emergency treatment is provided. Instead, the interim final rule
provides that VA can provide reimbursement for emergency transportation
even if the veteran passes away before emergency treatment is rendered
at the community hospital. While VA appreciates the suggestion, VA
believes that the interim final rule, in conjunction with the
explanation provided here, is sufficiently clear that reimbursement can
be provided even if the veteran passes away. Therefore, we do not make
any changes to the rule based on this comment.
One commenter expressed a concern about whether and how VA informs
a veteran when the veteran has an outstanding debt with a medical
facility and the veteran's first notification comes in the form of a
debt collection letter. The commenter explained that a veteran received
a letter from a local hospital and it took four months to determine
that there was no outstanding balance on the veteran's account and the
letter was sent as a result of a bookkeeping error on the part of the
hospital. Although VA is sympathetic to the veteran we note that this
is scenario is not representative of most instances of reimbursement
for emergency treatment. However, this rulemaking expands eligibility
criteria for reimbursement for the costs of emergency treatment
rendered by community emergency providers to veterans for their non-
service-connected conditions. Because the comment is beyond the scope
of this rulemaking, we do not make any changes to the rule based on
this comment.
One commenter inquired as to why they were taken to a community
hospital when a VA medical center was less than eight minutes away. The
commenter received a bill for the transportation to the community
hospital. The commenter also discussed the poor treatment rendered by
the community hospital, as perceived by the commenter. To the extent
that the commenter seeks reimbursement for the costs of transport to
the community hospital, we invite the commenter to file an emergency
transportation claim under section 1725 as implemented by 38 CFR
17.1003 and 17.1004. But again, because this rulemaking only expands
eligibility requirements for reimbursement of the costs of emergency
treatment rendered by community hospitals for veterans' non-service-
connected conditions, this comment is beyond the scope of the
rulemaking. No changes are made to the rule based on these comments.
We also received one comment regarding Executive Order 13771. This
rulemaking was not affected by Executive Order 13771. Therefore, this
comment is beyond the scope of the rulemaking, and we do not make any
changes to the rule based on the comment.
Changes to Sec. 17.1003
While we did not receive any public comments on this issue we are
amending Sec. 17.1003(a)(1) as a logical outgrowth of the interim
final rule to add VA as a clarifying example of payor of emergency
treatment which would not forestall eligibility for emergency
transportation.
In the interim final rule, we amended Sec. 17.1003 to add
paragraph (a)(1) which provides that payment or reimbursement for
ambulance services may be made if payment or reimbursement would have
been authorized under 38 U.S.C. 1725 for emergency treatment had the
veteran's personal liability for the emergency treatment not been fully
extinguished by payment by a third party, including under a health-plan
contract. VA amended Sec. 17.1003 in the interim final rule to address
a long-standing tension in Sec. 17.1003 with VA's interpretation that
emergency transportation is part of emergency treatment. VA has
historically interpreted the phrase ``emergency treatment'' in section
1725(f)(1) to include emergency transportation if the transportation is
provided as part of the emergency medical treatment administered at the
non-VA facility. However, Sec. 17.1003 did not allow VA to pay for the
transportation if the liability for the emergency treatment had already
been extinguished by a third party. The interim final rule explained
that if VA's sole basis to deny a transportation claim is satisfaction
by a third party of the related emergency treatment claim, even if that
transportation claim meets all of the other requirements for
reimbursement under 38 U.S.C. 1725, VA would be, in effect, treating
the emergency transportation claim differently than the related
emergency treatment claim. Therefore, in order to make Sec. 17.1003
consistent with VA's interpretation that the emergency transportation
is part of the claim for emergency treatment, VA amended Sec. 17.1003
to ensure that payment or reimbursement for emergency transportation
would not be prohibited on the sole basis that the emergency treatment
claim was fully extinguished. While in the interim final rule VA only
referenced liability being extinguished by a third party, VA believes
that the public was sufficiently put on notice that the intended effect
of the change was to ensure emergency transportation under Sec.
17.1003 would not be prohibited on the sole basis that the emergency
treatment was fully extinguished by another source.
In this rulemaking we revise Sec. 17.1003(a)(1) by adding the
phrase ``or by VA'' after health plan contract. This addition is
necessary to ensure that, consistent with the interpretation discussed
above, VA can pay or reimburse for emergency transportation under
section 1725 even if VA
[[Page 10841]]
extinguishes the liability for the underlying emergency treatment using
a different authority, such as under VA's Community Care Program at 38
CFR 17.4020(c).
Thus, we are revising Sec. 17.1003(a)(1) to make clear that a
veteran may be reimbursed for ambulance services made for transporting
a veteran to a facility if payment or reimbursement would have been
authorized under section 1725 for emergency treatment had the veteran's
personal liability for the emergency treatment not been fully
extinguished by a third party, to include under a health plan contract,
or by VA. Based on the rationale set forth in the Supplementary
Information sections of the interim final rule and this final rule, VA
is adopting as final the interim final rule with the changes stated in
this final rule.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is a significant regulatory action under Executive Order
12866. The Regulatory Impact Analysis associated with this rulemaking
can be found as a supporting document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). This rule would not cause a significant economic impact on small
entities since this exemption is limited to individual veterans who VA
determines to be affected by the Stabb or Wolfe cases. Only individual
veterans are effects by the virture of being able to submit claims for
coinsurance reimbursement. Individuals are not the small entities, they
cannot be broken out by appropriate size standard, number affected, and
business revenue. Therefore, pursuant to 5 U.S.C. 605(b), the initial
and final regulatory flexibility analysis requirements of 5 U.S.C. 603
and 604 do not apply. Although some eligible entities or providers that
furnished emergency care and services to veterans under this authority
may be considered small entities, there will be no significant adverse
economic impact because this rule does not create a new payment
obligation on such entities; it merely creates a new payment
methodology for services already rendered.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This final rule involves a collection of information that is
controlled by the requirements of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501-3521). While there are no provisions associated with
this rulemaking constituting a new collection of information, the
changes to reimbursement may constitute substantive revisions to the
existing collection of information. The Office of Management and Budget
(OMB) previously approved a Paperwork Reduction Act (PRA) clearance for
information collected pursuant to 38 U.S.C. 1725 under OMB control
number 2900-0620, which expired on July 31, 2018. The collection of
information is being processed for a reinstatement of the PRA clearance
from OMB through a separate Federal Register notice (FRN) published in
the Federal Register. The FRN will provide the public with an
opportunity to comment on the information collection and any revisions
for Payment or Reimbursement for Emergency Services for Nonservice-
Connected Conditions in Non-Department Facilities. A final FRN also
will be published in the Federal Register when the collection of
information is submitted to OMB for approval of the PRA clearance
renewal.
Congressional Review Act
Under the Congressional Review Act, this regulatory action may
result in an annual effect on the economy of $100 million or more, 5
U.S.C. 804(2), and so is subject to the 60-day delay in effective date
under 5 U.S.C. 801(a)(3). In accordance with 5 U.S.C. 801(a)(1), VA
will submit to the Comptroller General and to Congress a copy of this
Regulation and the Regulatory Impact Analysis (RIA) associated with the
Regulation.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Claims, Health care, Health
facilities, Health professions, Health records, Reporting and
recordkeeping requirements, Travel and transportation expenses,
Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on December 30, 2022, and authorized the undersigned to sign
and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the interim final rule
amending 38 CFR part 17, which was published at 83 FR 974 on January 9,
2018, is adopted as final with the following changes:
PART 17--MEDICAL
0
1. The general authority citation for part 17 continues to read as
follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
0
2. Amend Sec. 17.1003 by revising paragraph (a)(1) to read as follows:
Sec. 17.1003 Emergency transportation.
(a) * * *
(1) The veteran's personal liability for the emergency treatment
not been fully extinguished by payment by a third party, including
under a health-plan contract, or by VA; or
* * * * *
0
3. Amend Sec. 17.1004 by revising paragraph (f) to read as follows:
Sec. 17.1004 Filing claims.
* * * * *
(f) Notwithstanding paragraph (d) of this section, VA will provide
retroactive payment or reimbursement for emergency treatment received
by the veteran, on or after February 1, 2010 but more than 90 days
before February 22, 2023, if the claimant was eligible for partial
payment from a health-plan contract for the emergency treatment and the
claimant files a claim for
[[Page 10842]]
reimbursement no later than 1 year after February 22, 2023.
* * * * *
0
4. Amend Sec. 17.1005 by revising paragraph (a)(5) to read as follows:
Sec. 17.1005 Payment limitations.
(a) * * *
(5) VA will not reimburse a veteran under this section for any
copayment, deductible, or similar payment that the veteran owes the
third party or is obligated to pay under a health-plan contract.
* * * * *
[FR Doc. 2023-03339 Filed 2-21-23; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on February 22, 2023.
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