Rule2023-06954
Copayment Exemption for Indian Veterans
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
April 4, 2023
Effective
April 4, 2023
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) adopts as final, with changes, a proposed rule to amend its medical regulations to implement a statute exempting Indian and urban Indian veterans from copayment requirements for the receipt of hospital care or medical services. This final rule also exempts such veterans from copayments for all urgent care visits.
Full Text
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<title>Federal Register, Volume 88 Issue 64 (Tuesday, April 4, 2023)</title>
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[Federal Register Volume 88, Number 64 (Tuesday, April 4, 2023)]
[Rules and Regulations]
[Pages 19862-19873]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-06954]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AR48
Copayment Exemption for Indian Veterans
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with
changes, a proposed rule to amend its medical regulations to implement
a statute exempting Indian and urban Indian veterans from copayment
requirements for the receipt of hospital care or medical services. This
final rule also exempts such veterans from copayments for all urgent
care visits.
DATES: This rule is effective April 4, 2023.
FOR FURTHER INFORMATION CONTACT: Mark Upton, Deputy to the Deputy Under
Secretary for Health, Office of the Deputy Under Secretary for Health
(10A), 810 Vermont Avenue NW, Washington, DC 20420, 202-461-7459. (This
is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register (FR) on January 12, 2023, VA proposed to amend its medical
regulations at Sec. Sec. 17.108, 17.110, 17.111, and 17.4600 of title
38, Code of Federal Regulations (CFR) to exempt from copayments
veterans who submit documentation to VA to demonstrate they are either
Indian or urban Indian, as those terms are defined in section 4 of the
Indian Health Care Improvement Act (further codified at 25 U.S.C.
1603(13) and (28)), for hospital care or medical services received on
or after January 5, 2022. 88 FR 2038. VA also proposed retroactive
reimbursement for copayments already paid by these veterans for such
care provided on or after January 5, 2022. VA provided a 30-day comment
period, which ended on February 13, 2023. Forty-four comments were
received, of which one was a duplicate comment, for a total of forty-
three unique comments. Nine commenters expressed support for the
proposed rule in whole. VA appreciates these commenters' support and
does not further address their comments below. The remaining commenters
expressed concerns with the proposed rule in whole or in part, and
their comments are addressed below by topic. As explained in more
detail below, VA makes changes to the rule based on the comments.
Discrimination
VA received several comments alleging that this copayment exemption
is discriminatory and unfair to those
[[Page 19863]]
veterans who are not Indian or urban Indian. Commenters asserted that
the proposed rule gives preference based on ethnicity or race and
questioned why VA is not eliminating copayments for other veterans
based on race, ethnicity, or sex. One commenter was neutral on the
proposed rule, but asked VA to clarify why it was providing this
copayment exemption to this group of veterans over other races. Some of
these commenters also alleged that this rulemaking is part of a current
political agenda. VA makes no changes to the rule based on these
comments.
Pursuant to section 1710(f) and (g) of title 38, United States Code
(U.S.C.), VA must charge certain veterans a copayment for hospital
care, nursing home care, and medical services furnished by VA, unless
otherwise exempted under law. As VA explained in the proposed rule,
Congress mandated that VA exempt from copayments for hospital care or
medical services those veterans who are Indian or urban Indian, as such
terms are defined in section 4 of the Indian Health Care Improvement
Act (codified in 25 U.S.C. 1603). This mandate is codified in law at 38
U.S.C. 1730A (as amended by section 3002 of the Johnny Isakson and
David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of
2020 (the ``Act''), Pub. L. 116-315).
The underlying bill, the Native American PACT Act (H.R. 4908) which
became part of the Act, was separately passed by the U.S. House of
Representatives on September 22, 2020. In support of this legislation,
Democratic and Republican representatives explained Congress's
rationale for introducing and passing this legislation. Representative
Mark Takano explained, in pertinent part:
The Federal Government has a legal and moral obligation to
uphold its treaty obligations to Tribal nations, which include the
provision of healthcare. Our responsibility to ensure care is
compounded when American Indians and Alaska Natives serve this
country in uniform . . . For far too many Native Americans,
particularly those in rural areas, the copay burden is a barrier to
care. These veterans, who may be unable to access specialty care
from their Tribal health systems, are then unable to access VA due
to cost. Eliminating the copay burden is a step toward upholding the
treaties between the United States and Tribal nations while also
bringing immediate relief to veterans unable to access care during
these distressing times.
See House Congressional Record dated September 22, 2020, H4678-
4679.
Representative David P. Roe further stated, in pertinent part:
[A]lmost a century ago, Congress passed the Snyder Act, which
guaranteed healthcare to Native Americans free of charge. In
recognition of that, the Native American PACT Act would prohibit VA
from charging copayments to Native American veterans regardless of
whether the care they receive from the VA is for a service-connected
condition or not . . . [t]his bill would increase access to care for
those brave veterans and create parity between the care provided to
them through the VA, the Centers for Medicare and Medicaid Services,
and the Indian Health Service. It would also uphold the United
States Government's longstanding trust and treaty responsibilities
to the Native American community. Id. at H4679.
Thus, the Congressional record is clear that Congress's rationale
for exempting Indian and urban Indian veterans from copayments was
based on fulfilling the promise this country made to Tribal nations as
part of its trust and treaty responsibilities to provide American
Indians and Alaska Natives with free health care, increasing access to
care, and supporting parity for the provision of care by VA and other
Federal agencies. Furthermore, on numerous occasions, the United States
Supreme Court specifically has upheld legislation that singles out
American Indians or Alaska Natives for particular and special
treatment. See, for example, Morton v. Mancari, 417 U.S. 535 (1974).
To comply with the mandate in 38 U.S.C. 1730A, VA proposed to
revise its regulations to exempt from copayments those veterans who are
Indian or urban Indian as defined in 25 U.S.C. 1603(13) and (28).
Unless explicitly allowed by law, VA cannot exempt from copayments
other groups of veterans. See 38 U.S.C. 1710(f) and (g). Contrary to
commenters' assertions, this copayment exemption for such individuals
was not based on discrimination or VA showing preference for certain
races or ethnicity, it was a requirement of law.
In response to those commenters who suggest that this is part of a
current political agenda, the copayment exemption mandated by section
1730A was signed into law by then President Trump on January 5, 2021.
As reflected in the excerpts from the Congressional record related to
H.R. 4908 discussed further above, there was also bipartisan
Congressional support for exempting Indian and urban Indian veterans
from copayments. See also, Tester, Moran Introduce Bipartisan Bill to
Increase Native American Veterans' Access to VA Health Care, Eliminate
Copays, Nov. 18, 2020, <a href="https://www.veterans.senate.gov/2020/11/tester-moran-introduce-bipartisan-bill-to-increase-native-american-veterans-access-to-va-health-care-eliminate-copays">https://www.veterans.senate.gov/2020/11/tester-moran-introduce-bipartisan-bill-to-increase-native-american-veterans-access-to-va-health-care-eliminate-copays</a>.
Trust Responsibility
Some commenters requested VA clarify in the rulemaking that the
copayment exemption under 38 U.S.C. 1730A is due to the Federal
government's trust responsibility. VA's specific statutory authority
and mandate for the copayment exemption is 38 U.S.C. 1730A as amended
by section 3002 of the Act. However, as discussed above, the
Congressional history for this copayment exemption illustrates that
Congress proposed this legislation in part based on a trust
responsibility with American Indian and Alaska Native communities. As
discussed below, VA considered this trust responsibility in the
response to comments received that suggested VA exempt copayments for
all urgent care visits.
Definition of Indian or Urban Indian
One commenter supported using a definition of Indian used by the
Indian Health Service (IHS) as such definition is familiar to Tribal
members and would provide consistency, avoid confusion, and improve the
tribes' ability to notify Tribal members of changes. Another commenter
suggested that American Indian and Alaska Native veterans from a
federally or State recognized Tribe or a Native Nation, or who are
descendants of a Tribal or Native Nation member should be eligible for
this copayment exemption. VA does not make any changes to the rule
based on these comments.
VA is using the definitions of Indian and urban Indian required by
law for purposes of this rulemaking. Section 1730A of 38 U.S.C. was
amended to add a copayment exemption for veterans who are either Indian
or urban Indian, as further defined in 25 U.S.C. 1603(13) and (28). 88
FR 2038-2039. Paragraph 13 of section 1603 defines the term Indians or
Indian as any person who is a member of an Indian Tribe, as that term
is further defined in section 1603(14), except that, for the purpose of
25 U.S.C. 1612 and 1613, such terms shall mean any individual who: (1)
irrespective of whether he or she lives on or near a reservation, is a
member of a Tribe, band, or other organized group of Indians, including
those tribes, bands, or groups terminated since 1940 and those
recognized now or in the future by the State in which they reside, or
who is a descendant, in the first or second degree, of any such member;
(2) is an Eskimo or Aleut or other Alaska Native; (3) is considered by
the Secretary of the Interior to be an Indian for any purpose; or (4)
is determined to be an Indian pursuant to regulations
[[Page 19864]]
promulgated by the Secretary of Health and Human Services.
Paragraph 28 of section 1603 defines the term urban Indian as any
individual who resides in an urban center (as such term is further
defined in section 1603(27)) and who meets at least one or more of the
four criteria in the definition of Indian in 25 U.S.C. 1603(13) (as
described above in a previous paragraph regarding the definition of
Indians or Indian). Thus, these definitions apply to those eligible for
the provision of healthcare by IHS and include those individuals the
commenter references, such as members of federally and State recognized
tribes and descendants of such members.
To the extent the commenters are suggesting VA expand eligibility
beyond those defined as Indian or urban Indian in 25 U.S.C. 1603(13)
and (28), VA is unable to do so as the statute is clear that VA must
use those definitions.
Documentation
Several commenters had a variety of concerns related to the
proposed requirement that veterans submit documentation to demonstrate
they meet the definition of Indian or urban Indian. These commenters
suggested that instead VA allow such veterans to self-attest that they
meet the definition of Indian or urban Indian. As explained in more
detail below, their concerns focused on evaluating and verifying
documentation, the benefits of self-attestation, the Tribal
consultation process, and acceptable forms of documentation. VA makes
no changes to the rule based on these comments for the reasons
explained below.
Evaluating and Verifying Documentation
Some commenters were concerned that VA does not have the capability
to receive, process, evaluate, and validate the documentation that VA
proposes to require veterans submit in order to verify that they meet
the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and
(28). The commenters were particularly concerned given the diversity
and volume of potential documents.
VA will be able to properly evaluate the submitted documents to
determine if a veteran meets the definition of Indian or urban Indian
under 25 U.S.C. 1603(13) and (28). VA will have dedicated staff to
perform this function who will receive robust training on the types of
acceptable documentation and how to properly evaluate and verify such
documentation. This will include input and guidance from VA's own
Tribal experts, such as its Office of Tribal Government Relations and
Office of Tribal Health. Collecting and evaluating documentation to
determine an individual's membership in a Tribe is something that other
agencies, such as IHS and the Bureau of Indian Affairs (BIA), as well
as many American Indian and Alaska Native health organizations do. In
fact, VA intends to mirror how IHS makes these determinations. VA does
not believe it will be an undue burden on VA staff to perform these
tasks. Other commenters were concerned that VA verifying and
determining the legitimacy of the documents will usurp Tribal
sovereignty. Another commenter also stated that there should not be an
administrative burden put on Tribal enrollment staff to document a
veteran's status as Indian or urban Indian.
While there are 574 federally recognized tribes that may have
different types of documentation, VA will defer to American Indian and
Alaska Native Tribal governments regarding the documentation they issue
to members of their Tribe. VA will accept such documentation as proof
that a veteran meets the definition of Indian or urban Indian in 25
U.S.C. 1603(13) and (28) for purposes of this copayment exemption. VA
will not require American Indian and Alaska Native Tribal governments
to issue specific documentation for the purpose of demonstrating that a
member of the Tribe meets the definition of Indian or urban Indian.
Therefore, VA will not be usurping Tribal sovereignty or imposing
additional burdens on American Indian and Alaska Native Tribal
governments to issue documentation other than what they already issue
members of their Tribe. A Tribe's existing documentation of an
individual's status as a member of a Tribe will be sufficient.
Requiring submission of documentation also shows respect for American
Indian and Alaska Native Tribal governments and acknowledges that the
tribes determine who are members.
Benefits of Self-Attestation
Some commenters supported self-attestation because they stated that
other agencies use self-attestation. VA agrees that it is important for
VA to understand how other agencies determine an individual's status as
an Indian or urban Indian under 25 U.S.C. 1603(13) and (28). VA learned
that IHS, BIA, and other American Indian health organizations require
documentation in order to be eligible for their benefits and services.
Therefore, for purposes of Federal benefits and services, tribes are
familiar with providing their members with documentation and their
members are familiar with providing documentation to Federal agencies
to receive health care benefits.
Some commenters raised concerns that some Indian and urban Indian
veterans may face barriers in obtaining documentation due to
homelessness, financial instability, moving during military service,
and lack of resources or culturally competent representation which can
discourage these veterans from seeking the copayment exemption. VA
believes that submission of documentation will not be a burden on most
such veterans since they already have this documentation or could
easily obtain it. In addition, VA staff will be available to provide
veterans with information on documentation that VA will accept for
purposes of this copayment exemption and can assist veterans with
reacquiring documentation they may have lost. VA will also proactively
communicate with American Indian and Alaska Native veterans about this
copayment exemption and how they may apply. Additionally, VA is engaged
in a robust effort to educate all stakeholders about this copayment
exemption and is committed to continued engagement with its
stakeholders about how best to implement and educate others about the
rule.
Some commenters opined that self-attestation increases access to
health care without compromising the integrity of VA's services. Other
commenters stated that despite VA's concern that self-attestation may
present an unreasonable risk that VA would provide the copayment
exemption to veterans who do not meet the definition of Indian or urban
Indian under 25 U.S.C. 1603(13) and (28), self-attestation would not
present an unreasonable risk and that VA failed to provide any evidence
of such unreasonable risk. The commenters further stated that existing
authorities, such as 38 U.S.C. 6103 and 18 U.S.C. 1035, can help
minimize risk of misrepresentation of a veteran's status as Indian or
urban Indian in self-attestations.
VA believes that self-attestation could result in veterans who are
not eligible for the benefit erroneously receiving the benefit. VA has
a responsibility to ensure that only those who are eligible for this
copayment exemption receive it. As explained in the proposed rule,
requiring documentation rather than self-attestation would allow VA to
ensure, through audits, that it is fulfilling its duty to only exempt
those veterans who are eligible pursuant to section 1730A. 88 FR 2040.
VA is unable to audit the information provided in a self-
attestation without
[[Page 19865]]
additional documentation to support the self-attestation. Therefore
would not be in a position to establish that a veteran accurately
attested to being an Indian or urban Indian on the VA Forms 10-10EZ or
10-10EZR without obtaining additional information if it were to adopt
self-attestation. In this regard, while VA Forms 10-10EZ and 10-10EZR
previously had a question about whether a veteran meets these
definitions of Indian or urban Indian, that question was removed in
February 2023. The current VA Form 10-10EZ does have a question on
race, which includes American Indian or Alaska Native. However, VA Form
10-10EZR does not. Regardless, if VA used either of these questions to
establish a veteran met the definition of Indian or urban Indian, there
would be no way to audit that attestation without requesting additional
documentation. Requiring documentation allows VA to audit whether a
veteran meets the definition of Indian or urban Indian in 25 U.S.C.
1603(13) and (28) without the need to later collect more information.
If VA allowed self-attestation only, it could result in those who
are ineligible receiving the copayment exemption, and VA failing to
fulfill its responsibilities under the law. While VA acknowledges that
under certain existing authorities it is a violation of Federal law to
knowingly or willingly make a false statement related to benefits, some
veterans may genuinely believe they meet the definition of Indian or
urban Indian under 25 U.S.C. 1603(13) and (28), but simply do not.
Therefore, it would not be clear that these veterans were knowingly or
willingly making a false statement or representation, and it is not
certain that they would be deterred from indicating on the VA Form 10-
10EZ that they meet the definition.
Several commenters recommended VA allow veterans to initially self-
attest they meet the definitions of Indian or urban Indian, after which
the veteran can submit necessary documentation to show they meet the
definitions within a certain period of time, which, as one of the
commenters opined, could be extended if there was a good faith effort
on the veteran's part to acquire the documentation. These commenters
opined that this will allow VA to implement a policy where it can
verify or review documentation later while ensuring that American
Indian and Alaska Native veterans receive this copayment exemption
immediately and do not encounter a barrier to care. One of these
commenters suggested that if VA needs an additional document from a
veteran who self-attests, the copayment exemption should remain in
place until an appeal is completed.
VA will be providing reimbursement retroactive to January 5, 2022,
to eligible veterans after VA reviews the submitted documentation and
updates the veteran's record to make them exempt from copayments.
Therefore, VA does not believe allowing for self-attestation followed
by documentation is necessary. These veterans will be reimbursed for
copayments for care provided on or after January 5, 2022, regardless of
when they submit their documentation. Thus, any hardship based on when
they submit documentation will be reduced by VA's reimbursement once
documentation is received.
As discussed above, VA also does not believe that veterans should
experience undue burden submitting documentation as they likely already
have it or can easily obtain it, particularly as the documentation VA
will accept includes those commonly issued by American Indian and
Alaska Native Tribal governments to members of their tribes and are
required by IHS to receive healthcare services.
Additionally, allowing veterans to self-attest that they meet the
definition of Indian or urban Indian and then provide additional
documentation at a later date would create administrative and
logistical challenges for VA and potential hardships for the veterans.
If VA were to exempt a veteran based on self-attestation with
additional documentation to follow at a later date, VA would have the
added responsibility of tracking this preliminary eligibility and, in
cases where a veteran did not submit the required additional
documentation, VA would have to follow up with the veteran to request
the documentation, potentially on several occasions. If VA ultimately
does not receive acceptable documentation from the veteran, VA would
have to collect from the veteran any copayments that had been
inappropriately exempted, resulting in an added burden to VA and
potential hardship for the veteran.
Tribal Consultation
Several commenters alleged that VA mischaracterized or
misrepresented the information it requested and received during Tribal
consultation related to this rulemaking. These commenters opined that
the questions posed by VA as part of Tribal consultation were narrower
in scope than the definitions of Indian and urban Indian in 25 U.S.C.
1603 and incorrectly framed the statutory language that authorizes the
exception. These commenters also opined that VA's statement in the
proposed rule that it published a notice regarding the documentation
that VA can use to identify veterans who meet the definitions of Indian
or urban Indian under 38 U.S.C. 1730A was inaccurate. These commenters
further stated that this did not provide American Indian and Alaska
Native Tribal government leaders with the opportunity to fully consider
the extent of American Indian and Alaska Native veterans eligible for
the copayment exemption or provide feedback on documentation that may
be required to determine eligibility for the copayment exemption. The
commenters were concerned that VA inappropriately and misleadingly
claimed that American Indian and Alaska Native Tribal governments
supported requiring all American Indian and Alaska Native veterans to
submit documentation to determine eligibility for the copayment
exemption although VA never posed this question during Tribal
consultation. Thus, these commenters opined that VA improperly relied
upon the feedback received during consultation to support its decision
to require veterans submit documentation for purposes of this copayment
exemption.
In the Federal Register Notice (FRN) dated April 1, 2021, VA
referenced the definitions of Indian and urban Indian as defined in 25
U.S.C. 1603(3). Moreover, in the supplementary section of the FRN, VA
explained the changes made to 38 U.S.C. 1730A by section 3002 of the
Act to exempt from copayments those who are Indian or urban Indian as
defined in section 4 of the Indian Health Care Improvement Act (25
U.S.C. 1603). 86 FR 17267 (April 1, 2021). VA further stated that it
was seeking input from Tribal governments, Indians, and urban Indians
regarding documentation that can be used by VA's health care system to
identify those veterans who are Indians or urban Indians (as defined in
25 U.S.C. 1603). Id. VA further notes that section 1603(13) defines
Indian, in pertinent part, to mean any person who is a member of an
Indian Tribe. Thus, with regards to information that VA was seeking to
determine eligibility for this copayment exemption, the FRN was not
narrower than the statutory authority.
Additionally, VA asked for input on specific documentation, as well
as other information or documentation that is available for determining
if a veteran is a member of an Indian Tribe, potential sources of the
information or documentation, and how VA should determine whether a
veteran is a member of an Indian Tribe (whether through documentation,
self-certification, other methods). Id.
[[Page 19866]]
As VA explained in the proposed rule, the majority of comments
received during the Tribal consultation session and in the 30-day
period after it, in which written comments could be submitted to VA,
supported documentation, with some commenters providing examples of
documentation VA could use. However, several commenters supported self-
attestation. To the extent that the request was not clear, VA provided
an opportunity to submit comments during the April 29, 2021 Tribal
consultation and for a period of 30 days after such Tribal consultation
and to submit comments on the proposed rule. VA has taken all comments
received into consideration when establishing the final rule.
Acceptable Documentation
One commenter appeared to oppose the submission of documentation to
demonstrate a catastrophically disabled veteran meets the definition of
Indian or urban Indian for purposes of copayment exemption under 38
U.S.C. 1730A.
While not entirely clear, it appears this commenter believes that
VA is requiring veterans who are catastrophically disabled and are also
Indian or urban Indian to submit documentation to show such status. VA
clarifies that section 1730A requires copayment exemption for two
different groups of veterans: (1) veterans who are catastrophically
disabled and (2) veterans who are Indian or urban Indian as defined in
25 U.S.C. 1603. A veteran can qualify under either category for this
copayment exemption, but does not need to qualify under both.
For a veteran to be eligible for this copayment exemption as a
catastrophically disabled veteran under 38 U.S.C. 1730A(b)(1), they
must undergo examination and be found by VA to have a permanent
severely disabling injury, disorder, or disease that compromises the
ability to carry out the activities of daily living to such a degree
that the individual requires personal or mechanical assistance to leave
home or bed or requires constant supervision to avoid physical harm to
self or others. See 38 CFR 17.36(e). In order to be eligible for this
copayment exemption as an Indian or urban Indian under 38 U.S.C.
1730A(b)(2), the veteran must provide documentation establishing that
they meet the definition of Indian or urban Indian as defined in 25
U.S.C. 1603(13) and (28).
However, a catastrophically disabled veteran who also meets the
definition of Indian or urban Indian as defined in 25 U.S.C. 1603(13)
and (28) does not need to provide additional documentation that
demonstrates they are Indian or urban Indian unless they are interested
in a copayment exemption for more than three urgent care visits in a
calendar year. This is discussed in more detail below. VA is not
otherwise adding an additional requirement for catastrophically
disabled veterans. Some commenters supported accepting identification
and verification issued by American Indian and Alaska Native Tribal
governments, such as Tribal identifications cards, for purposes of this
copayment exemption. Another commenter recommended VA expand the list
of acceptable documentation to include Tribal government verification,
Tribal enrollment or identification cards, Tribal letters, kinship
reports, and other documentation that promotes a veteran's ability to
receive copayment exempt benefits.
As explained in the proposed rule, VA will defer to American Indian
and Alaska Native Tribal governments with respect to the documentation
they issue to show who is a member of their Tribe. 88 FR 2039. This may
include some of the documents that the commenters listed such as Tribal
identification and enrollment cards, Tribal letters, and other
documentation issued by tribes to demonstrate an individual is a member
of their Tribe. VA will issue additional communications that provide
veterans with examples of acceptable documents so that veterans know
the documentation they may submit to demonstrate that they meet the
definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28)
and are eligible for this copayment exemption. However, in this
rulemaking, VA has provided a description of the types of acceptable
documents rather than an enumerated list of all acceptable documents to
allow for additional documents if developed by American Indian and
Alaska Native Tribal governments.
While one of these commenters suggested VA accept kinship reports,
VA declines to include that in the description of acceptable documents
as those would not demonstrate that a veteran meets the definition of
Indian or urban Indian under 25 U.S.C. 1603(13) and (28). That same
commenter also suggested VA accept other documentation that promotes a
veteran's ability to receive copayment exempt benefits but did not
provide examples of what those other documents may be. To the extent
they are suggesting VA accept documentation other than those consistent
with VA's description of acceptable documentation, VA declines to do so
as the categories of acceptable documentation align with the statutory
definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28).
Several commenters suggested that VA accept specific documents
issued by entities, such as IHS, Tribal Health Programs (THP), and
Urban Indian Organizations (UIO) that provide health care to American
Indians and Alaska Natives. Suggested documents include proof of prior
visit, health care records, patient registration record, and other
records that show eligibility status. One commenter suggested VA
improve coordination and interoperability of systems to allow sharing
of records between VA and IHS for purposes of determining a veteran is
eligible for this copayment exemption.
As explained directly above, while VA will not include in the
regulations an enumerated list of documents that may be submitted to
demonstrate that a veteran meets the definition of Indian or urban
Indian as defined in 25 U.S.C 1603(13) and (28), the documents
suggested by these commenters also appear problematic because it
appears that some individuals who are eligible to receive healthcare
from IHS, THP, and UIO do not meet the definition of Indians or urban
Indians in 25 U.S.C. 1603(13) and (28). See 42 CFR 136.12. Relying on
documents that may be issued to individuals who received care from IHS,
THP, or UIO but that do not meet the section 1603(13) and (28)
definitions essentially would allow these organizations, rather than
VA, to make determinations that veterans meet the definition of Indian
or urban Indian when they may not.
VA makes no changes based on these comments.
Covered Services
Several commenters, including Tribal Nations, intertribal
organizations, Tribal health boards, and Indian health clinics,
together serving hundreds of Tribal Nations, suggested VA waive all
copayments for all health care services provided to veterans who meet
the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and
(28). VA has authority to exempt copayments of hospital care and
medical services pursuant to 38 U.S.C. 1730A. VA has distinct authority
related to copayments for the hospital care and medical services
provided to veterans through the urgent care benefit under 38 U.S.C.
1725A. VA interprets the comments to request additional exemptions both
beyond hospital care and medical services pursuant to section 1730A and
section 1725A. We will address both scenarios below and will make
changes to the rule based on the comments related to urgent care.
[[Page 19867]]
One Tribal Nation asserted that there should be no limitation on
the exemption for copayments as VA should not be more restrictive than
the statutory authority. Another of these commenters further noted that
copayment exempt elder care services are important since obtaining such
care through VA will lighten the burden on IHS and Tribal health care
providers, particularly as Tribal members are having longer lifespans.
VA interprets these comments to mean that VA should provide a copayment
exemption for all services furnished by VA even if they are not
hospital care and medical services.
Section 1730A explicitly exempts copayments for hospital care and
medical services. VA has interpreted those terms consistent with their
statutory definitions in 38 U.S.C. 1701(5) and (6) and in 38 CFR
17.30(a).
Section 1701(5), in pertinent part, defines hospital care to
include medical services rendered in the course of the hospitalization
of any veteran, and travel and incidental expenses pursuant to the
provisions of 38 U.S.C. 111.
Section 1701(6) defines medical services to include, in addition to
medical examination, treatment, and rehabilitative services, the
following: (1) surgical services; (2) dental services and appliances as
described in 38 U.S.C 1710 and 1712; (3) optometric and podiatric
services; (4) preventive health services; (5) noninstitutional extended
care services, including alternatives to institutional extended care
that the Secretary may furnish directly, by contract, or through
provision of case management by another provider or payer; (6) in the
case of a person otherwise receiving care or services under chapter 17,
wheelchairs, artificial limbs, trusses, and similar appliances, special
clothing made necessary by the wearing of prosthetic appliances, and
such other supplies or services as the Secretary determines to be
reasonable and necessary; (7) travel and incidental expenses pursuant
to 38 U.S.C. 111; and (8) chiropractic services.
Consistent with section 1701(6), VA has defined medical services in
38 CFR 17.30(a) to include, in addition to medical examination,
treatment, and rehabilitative services: (1) surgical services, dental
services and appliances as authorized in 38 CFR 17.160 through 17.166,
optometric and podiatric services, (in the case of a person otherwise
receiving care or services under this chapter) the preventive health
care services set forth in 38 U.S.C. 1701(9), noninstitutional extended
care, wheelchairs, artificial limbs, trusses and similar appliances,
special clothing made necessary by the wearing of prosthetic
appliances, and such other supplies or services as are medically
determined to be reasonable and necessary; (2) consultation,
professional counseling, marriage and family counseling, training, and
mental health services for the members of the immediate family or legal
guardian of the veteran or the individual in whose household the
veteran certifies an intention to live, as necessary in connection with
the veteran's treatment; and (3) transportation and incidental expenses
for any person entitled to such benefits under the provisions of 38 CFR
70.10.
Section 3002 of Public Law 116-315 amended 38 U.S.C. 1730A to
include Indian and urban Indian veterans as covered veterans who are
exempted from making copayments for the receipt of hospital care or
medical services. That law requires VA to apply the copayment exemption
to hospital care and medical services as those terms are defined in
statute; section 1701(5) and (6) of title 38 of United States Code.
Thus, VA interprets 38 U.S.C. 1730A to refer only to hospital care and
medical services as defined in 38 U.S.C. 1701(5) and (6) and is
exempting Indian and urban Indian veterans from copayments under
17.108, 17.110, and 17.111 for inpatient hospital care, outpatient
medical care, medication, noninstitutional extended care including
adult day health care, noninstitutional respite care, and
noninstitutional geriatric evaluation, respectively. Therefore, these
veterans would still be required to pay copayments for domiciliary
care, institutional respite care, institutional geriatric evaluation,
and nursing home care. See 38 U.S.C. 1730B.
Several commenters expressed concern with VA's proposal to charge a
copayment for urgent care after the third visit for this group of
veterans. Some commenters, including Tribal Nations, intertribal
organizations, Tribal health boards, and Indian health clinics,
together serving hundreds of Tribal Nations, specifically recommended
VA exempt all urgent care visits from copayments as they explained that
charging for urgent care visits after the first three visits in a
calendar year is contrary to Congressional intent and the Federal
government's trust responsibility. Some of these commenters asserted
that veterans may delay or forgo needed care if they are charged a
copayment for urgent care visits beyond the first three visits in a
calendar year, especially as primary care is often less accessible than
urgent care for American Indians and Alaska Natives. Relatedly, other
commenters suggested VA exempt copayments for all urgent care as such
care fills gaps where primary care is scarce or nonexistent, and
copayments for such care can be a barrier for those who have to travel
far for needed care, such as those in Alaska. One of these commenters
suggested that alternatively, VA could exempt copayments for urgent
care beyond three visits in a calendar year when an American Indian or
Alaska Native veteran has to travel more than 100 miles or travel more
than two or three hours for urgent care. Another commenter recommended
VA extend the copayment exemption for urgent care visits beyond the
initial three in a calendar year if extenuating circumstances warrant
additional urgent care visits, such as when a medical appointment is
canceled and cannot be rescheduled within the time that the veteran may
need to address their medical issue. One commenter also recommended all
urgent care visits at Indian health care providers and IHS, THP, or UIO
facilities be exempt from copayments.
VA considered these comments and has decided not to finalize its
proposal to exempt only the first three urgent care visits from
copayments for Indian or urban Indian veterans. Instead, VA will exempt
all urgent care visits from copayments for such veterans. As explained
in the proposed rule, VA has discretion under 38 U.S.C. 1725A to
determine the appropriate copayment for urgent care visits, after the
first two visits, for veterans who are otherwise exempt from copayments
for VA care. Section 1725A(f)(1)(B) provides that an eligible veteran
not required to pay a copayment under this title may access walk-in
care (urgent care) without a copayment for the first two visits in a
calendar year. For any additional visits, a copayment at an amount
determined by the Secretary may be required. VA has previously utilized
the authority provided under section 1725A to require copayments for
all veterans, irrespective of their priority group enrollment, level of
service-connected disability, or designation as catastrophically
disabled, after the first three visits in a calendar year because the
copayment is designed to encourage appropriate use of the benefit. 88
FR 2041. However, based on the comments received, VA has determined
that eligible Indian and urban Indian veterans will not be required to
pay a copayment for urgent care visits under section 1725A.
As explained above, Congress decided to adopt a copayment exemption
for Indian and urban Indian veterans in
[[Page 19868]]
recognition of this country's promise to Tribal nations as part of its
trust and treaty responsibilities to provide American Indians and
Alaska Natives with free health care, to increase access to care, and
to support parity for the provision of care by VA and other Federal
agencies. As Representative Takano explained, the ``Federal Government
has a legal and moral obligation to uphold its treaty obligations to
Tribal nations, which include the provision of healthcare.'' Likewise,
Representative Roe explained that the copayment exemption upholds ``the
United States Government's longstanding trust and treaty
responsibilities to the Native American communities.'' Our unique
responsibilities to this community counsel in favor of exempting Indian
and urban Indian veterans from all urgent care copayments.
In addition, as the commenters explained, primary care is often
less accessible than urgent care for American Indians and Alaska
Natives, who often have to travel long distances to receive primary
care. As a result, Indian and urban Indian veterans in some cases may
find it necessary to use urgent care more than three times in a year,
including in circumstances where primary care is not a meaningfully
available alternative. Charging a copayment for those visits could
deter this population from seeking necessary care. VA recognizes that
the current copayment rules for urgent care are designed to encourage
veterans to seek care from their primary care provider first, when VA
can provide the needed care, and to utilize urgent care when prompt
treatment is necessary to prevent the condition from becoming emergent.
But for Indian and urban Indian veterans, that is often not a
reasonably available option.
Several studies document that American Indian and Alaska Native
people are disproportionally affected by chronic health conditions and
die at higher rates than other Americans.\1\ Native Americans,
particularly those living in rural areas, face significant barriers in
accessing health care.\2\ The United States Government has taken
several steps to make health care more accessible, including
strengthening the Indian health care system, granting greater
management control of health care resources to Tribes, and removing
cost sharing requirements for other federally delivered health care
services.
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\1\ Issue Brief: Health Insurance Coverage and Access to Care
for American Indians and Alaska Natives: Current Trends and Key
Challenges, U.S. Department of Health and Human Services, Assistant
Secretary for Planning and Evaluation, July 22, 2021, <a href="https://aspe.hhs.gov/sites/default/files/2021-07/aspe-aian-health-insurance-coverage-ib.pdf">https://aspe.hhs.gov/sites/default/files/2021-07/aspe-aian-health-insurance-coverage-ib.pdf</a> (last visited Mar. 28, 2023).
\2\ Kerry J. Cromer, et al., Barriers to Healthcare Access
Facing American Indian and Alaska Natives in Rural America, Journal
of Community Health Nursing; 36:4, 165-187 (2019), <a href="https://www.tandfonline.com/doi/abs/10.1080/07370016.2019.1665320?journalCode=hchn20">https://www.tandfonline.com/doi/abs/10.1080/07370016.2019.1665320?journalCode=hchn20</a> (last visited Mar. 28,
2023).
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This rule will also promote parity in how other Federal agencies
address copayment rules for Indian and urban Indian veterans--which, as
explained above, was one goal of Congress in adopting the copayment
exemption. In the United States, Indians are generally exempted from
all cost-sharing in health plans. This includes through the Indian
Health Service (IHS), Medicare, and the Marketplace. Under section 1402
(d)(1) of the Patient Protection and Affordable Care Act Public Law
111-148, issuers of qualified plans must eliminate all cost-sharing,
including copayments and deductibles for Indians if they obtain
insurance through the Health Insurance Exchange. There is also no cost
sharing for any Indian for any item or service obtained directly
through IHS, Indian Tribe, Tribal organization, urban Indian
organization or through referrals under contract health services
without regard to income. Section 2902 of the Affordable Care Act also
made permanent the reimbursement for all Medicare Part B services
provided by IHS hospitals and clinics.
For the reasons stated above, in recognition of the Government's
trust responsibility, comments received from Tribes, and to ensure
parity with other Federal health plans, VA will eliminate all
copayments for urgent care visits regardless of the provider of the
urgent care services for Indian and urban Indian veterans under 38
U.S.C. 1725A. For these reasons VA will also reimburse these veterans
copayments for all urgent care visits going back to January 5, 2022.
VA notes that we intend to conduct further consultation and to
publish a public request for information to obtain additional input
from veterans on topics such as primary care access, the use of urgent
care under section 1725A, and its role in health care delivery for all
veterans.
Effective Date
One commenter recommended the changes to the regulations take
effect immediately. The Administrative Procedure Act (APA), codified in
part at 5 U.S.C. 553, generally requires that agencies publish
substantive rules in the Federal Register for notice and comment and
provide not less than 30 days before the rules become effective An
agency may bypass the APA's 30-day delay requirement if good cause
exists, 5 U.S.C. 553(d)(3), or if the rule ``recognizes an exemption or
relieves a restriction,'' 5 U.S.C. 553(d)(1). As this rule recognizes a
copayment exemption, VA finds that it can publish this final rule with
an immediate effective date and forgo the 30-day delay requirement. 38
U.S.C. 553(d)(1).
Cost/Unfunded Mandate
One commenter expressed concern about the cost of this rulemaking
and disagreed with VA's assertion that this rule would not result in an
unfunded mandate. VA makes no changes based on this comment. As stated
in the proposed rule, unfunded mandates apply to 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 rule will not
result in an expenditure by State, local, and Tribal governments, or by
the private sector of $100 million or more (adjusted annually for
inflation) in any one year. As explained in the regulatory impact
analysis accompanying the proposed rule, VA estimated a 5-year impact
of a loss of revenue to VA in the amount of approximately $20.4 million
dollars and a 10-year impact of a loss of revenue to VA in the amount
of approximately $50 million. This rulemaking does not require any
expenditures by any State, local, or Tribal governments, as this rule
only waives copayments for VA health care to certain veterans. VA
refers the commenter to the regulatory impact analysis accompanying
this rulemaking for a detailed analysis of the estimated costs for this
rule.
Comments Outside the Scope of the Rulemaking
One commenter suggested VA spend time on the Paperwork Reduction
Act (PRA) rather than the proposed rule, particularly as they opined
that the proposed rule is redundant, repetitive, and not concise.
However, the commenter did not recommend any specific changes to the
rulemaking. VA considers this comment outside the scope of the
rulemaking and makes no changes based on it.
Another commenter suggested that in future rulemakings that have an
associated information collection subject to PRA, VA coordinate with
the Office of Management and Budget (OMB) to allow tribes and Tribal
organizations to actively participate in the rulemaking process through
the submission of a written comment with sufficient time and notice. As
part of the proposed rule, the public, to include
[[Page 19869]]
tribes and Tribal organizations, had the opportunity to submit comments
on the information collection associated with this rulemaking, which is
the case for all proposed rules that have an associated information
collection. As VA explained in the proposed rule, a comment is best
assured of having its full effect if OMB receives it within 30 days of
publication of the proposed rule. Additionally, VA conducted Tribal
consultation prior to the proposed rule and provided American Indian
and Alaska Native Tribal governments and others the opportunity to
provide VA with feedback about how VA could confirm a veteran meets the
definitions in 25 U.S.C. 1603(13) and (28), including documentation
that could or should be submitted for purposes of this copayment
exemption. Consistent with VA policy, VA will continue to conduct
Tribal consultations on issues that impact veterans who are members of
tribes. The commenter did not recommend any changes to the rulemaking.
VA makes no changes based on this comment.
Some commenters requested that VA host an urban confer and/or an
additional Tribal consultation on this rule and the documentation
requirements. While we consider this comment outside the scope of the
rule, VA conducted Tribal consultation prior to the proposed rule and
provided American Indian and Alaska Native Tribal governments and
others the opportunity to provide VA with feedback on information and
documentation that VA could use to identify veterans who are members of
a Tribe. Additionally, as part of the rulemaking process, VA provided
the public, including American Indian and Alaska Native Tribal
governments, veterans, and Indian health organizations, the opportunity
to comment on its proposed rule. VA seriously considered all comments
received during the consultation and public comment process and made
changes to the rule based on comments received by the tribes. VA does
not believe it is necessary to conduct additional Tribal consultation
or an urban confer on this rulemaking. As explained earlier in this
preamble, VA is engaged in a robust effort to educate all stakeholders
about this copayment exemption and is committed to continued engagement
with its stakeholders about how best to implement and educate others
about the rule. VA makes no changes to the rule based on these
comments.
Several commenters made suggestions related to VA's implementation
of this rule, including ensuring staff has adequate training and
expertise to review documentation; ensuring determinations on
eligibility for the copayment exemption are made by those who have
specialized training and requisite subject matter expertise; conducting
outreach to veterans, VA facilities, community providers, and active
duty servicemembers (when they leave service); providing veterans with
clear guidance and assistance on acceptable documentation; providing a
defined process and timeline for identifying the copayments that will
be reimbursed; and sharing data with Indian country on the utilization
of the copayment exemption.
While VA considers these comments outside the scope of this
rulemaking since they concern internal VA processes not appropriate for
regulation, VA considered them while creating the implementation plan
for the copayment exemption. Initially, VA will provide information to
veterans on the types of acceptable documentation that may be submitted
for this copayment exemption and will communicate information on this
copayment exemption to all veterans, including those who are American
Indian and Alaska Native. VA will also have a website that provides
information on the copayment exemption, including a list of acceptable
documentation. VA will have designated staff that will have the
necessary subject matter expertise and training to properly review the
submitted documentation to confirm eligibility for the copayment
exemption. Frontline staff at VA facilities will be expected to direct
veterans to VA's website explaining the benefit and acceptable
documentation as well as direct them to specific employees who can
further address any questions veterans may have. VA will also work
towards ensuring that active duty servicemembers transitioning out of
military service are made aware of this copayment exemption. As part of
implementation, VA is determining how it will collect and analyze data
related to this copayment exemption. As part of that effort, VA intends
to reach out to American Indian and Alaska Native Tribal governments
and will consider sharing utilization with them as appropriate. VA is
developing a process for issuing reimbursements to veterans who are
eligible for such reimbursements retroactive for covered services
provided on or after January 5, 2022. As the time for processing these
reimbursements will be dependent on the volume of veterans who are
determined to be eligible for this copayment exemption, VA will be
unable to provide specific timeframes for reimbursement. However, VA
will make every effort to process reimbursements as quickly as
possible. VA makes no changes to the regulations based on these
comments.
One commenter recommended that VA retain copies of the
documentation once it is submitted and update its records to identify
the veteran as Indian or urban Indian and exempt them from future
copayments. VA considers this comment outside the scope of the rule.
However, VA will retain documentation submitted by veterans and once VA
receives acceptable documentation, VA will update the veteran's VA
records to ensure that VA does not charge eligible veterans copayments
for covered care. VA makes no changes based on this comment.
One commenter stated that veterans should have access to culturally
relevant services and care, and VA should work closely with Urban
Indian Health Organizations or Tribal Health Organizations. While VA
considers this comment outside the scope of the rule, VA is committed
to working with partner stakeholders to better serve Indians and urban
Indian veterans when possible. Future engagements with these
stakeholders may foster the opportunity for new and expanded
partnerships. VA makes no changes to the rule based on this comment.
Some commenters raised concerns regarding lack of access to
culturally competent representation to assist American Indian and
Alaska Native veterans relating to their benefits claims. These
commenters further alleged VA has refused to work with or accredit UIO
as claims representatives. VA considers these comments outside the
scope of the rule and makes no changes based on them.
Regulatory Edits
VA is making several minor technical edits to the language it
previously proposed. VA is also making a substantive edit to address
the exemption for all urgent care visits for Indian and urban Indian
veterans.
After the proposed rule published for public comment, VA published
an interim final rule that amended several of VA's medical regulations,
including 38 CFR 17.110(c). 88 FR 2536 (January 17, 2023). Section
17.110 was revised by the January 17, 2023, rulemaking to include
paragraph (c)(13), ``[m]edication for an individual as part of emergent
suicide care as authorized under 38 CFR 17.1200-17.1230.'' Thus, in
this final rule on the copayment exemption for Indian and urban Indian
Veterans, VA will add paragraph (c)(14) to Sec. 17.110 to
[[Page 19870]]
refer to a veteran who meets the definition of Indian or urban Indian,
as defined in 25 U.S.C. 1603(13) and (28), for medications provided on
or after January 5, 2022. VA will use the exact same language that it
proposed as Sec. 17.110(c)(13) in the proposed rule but it will be in
paragraph (c)(14) instead and all references to paragraph (c)(13) as
proposed will now reference paragraph (c)(14). VA is making no changes
to the substantive language.
VA is also making minor technical edits to the language proposed in
Sec. Sec. 17.108(d)(14), 17.110(c)(13), 17.111(f), and
17.4600(d)(1)(ii). In those proposed paragraphs, VA explained that in
order to demonstrate that a veteran meets the definition of Indian or
urban Indian, the veteran must submit to VA any of the documentation
listed in the subparagraphs that follow the paragraph. However, VA
finds it necessary to replace the word ``listed'' with the word
``described'' to more accurately reflect that the acceptable
documentation identified in these regulations is a description rather
than an exhaustive list of documents. These changes have no substantive
impact on provision of benefits or services to veterans.
We are also making minor revisions to the language proposed in
Sec. Sec. 17.108(d)(14)(ii), 17.110(c)(13)(ii), 17.111(f)(11)(ii), and
17.4600(d)(1)(ii)(B). In those proposed paragraphs, we explained that
acceptable documentation includes documentation showing that the
veteran, irrespective of whether they live on or near a reservation, is
a member of a Tribe, band, or other organized group of Indians
terminated since 1940 and those recognized now or in the future by the
State in which they reside, or who is a descendant, in the first or
second degree, of any such member.
However, VA now revises that language in the final rule to state
that such documentation includes documentation showing that the veteran
is a member of a Tribe, band, or other organized group of Indians.
Thus, the language in Sec. Sec. 17.108(d)(14)(ii), 17.110(c)(14)(ii)
(formerly paragraph (c)(13)(ii) but revised as explained further
above), 17.111(f)(11)(ii), and 17.4600(d)(1)(ii)(B) (formerly paragraph
(d)(1)(ii)(B) but revised as explained further below) will read as
follows: documentation showing that the veteran, irrespective of
whether they live on or near a reservation, is a member of a Tribe,
band, or other organized group of Indians, including those tribes,
bands, or groups terminated since 1940 and those recognized now or in
the future by the State in which they reside, or who is a descendant,
in the first or second degree, of any such member.
The language VA proposed in Sec. Sec. 17.108(d)(14)(i),
17.110(13)(i), 17.111(f)(11)(i), and 17.4600(d)(1)(ii)(A) described
documentation issued by a federally recognized Indian Tribe that shows
that the veteran is a member of the Tribe, which was intended to cover
the part of the definition of Indian in 25 U.S.C. 1603(13)(A) regarding
membership in a Tribe, band, or other organized group of Indians.
Documents described in Sec. Sec. 17.108(d)(14)(i), 17.110(c)(13)(i)
(revised in this final rule as paragraph (c)(14)(i) per the discussion
further above), 17.111(f)(11)(i), and 17.4600(d)(1)(ii)(A) (revised in
this final rule as paragraph (d)(4)(i)(A) per the discussion further
below) could overlap with the revised language to Sec. Sec.
17.108(d)(14)(ii), 17.110(c)(14)(ii), 17.111(f)(11)(ii), and
17.4600(d)(1)(ii)(B) described above. However, to ensure VA is
consistent with the language in the definition of Indian in 25 U.S.C.
1603(13)(A), VA will revise the language proposed in Sec. Sec.
17.108(d)(14)(ii), 17.110(c)(13)(ii) (revised in this final rule as
paragraph (c)(14)(ii) per the discussion further above),
17.111(f)(11)(ii), and 17.4600(d)(1)(ii)(B) (revised in this final rule
as paragraph (d)(4)(i)(B) per the discussion further below), as
explained in the previous paragraph. These changes have no substantive
impact on provision of benefits or services to veterans.
Additionally, we are making minor revisions to the language
proposed in Sec. Sec. 17.108(d)(14)(i), 17.110(c)(13)(ii) (revised in
this final rule as paragraph (c)(14)(ii) per the discussion further
above), 17.111(f)(11)(i), and 17.4600(d)(1)(ii)(A) (revised in this
final rule as paragraph (d)(4)(i)(A) per the discussion further below)
to remove the hyphen between ``federally-recognized'' and replacing it
with space so that the language in those paragraphs states ``federally
recognized''. This is a minor edit to ensure the appropriate use of the
term. These changes have no substantive impact on provision of benefits
or services to veterans.
VA is also making minor revisions to capitalize the term ``Tribe''
throughout Sec. Sec. 17.108(d)(14), 17.110(c)(14), 17.111(f)(11), and
17.4600(d)(4), as VA did not capitalize such term in the proposed
regulatory text for such sections. Capitalizing the term ``Tribe'' is
consistent with the Government Publishing Office Style Guide.
Finally, VA is making additional edits to the language it proposed
as part of the urgent care regulation in 38 CFR 17.4600(d) to
accommodate comments and expand the copayment exemption to all urgent
care visits. The language in paragraph (d)(1) is amended so that it
states, ``Except as provided in paragraphs (d)(2) through (4) of this
section.'' This change will accommodate the new exception for Indian
and urban Indian to be copayment exempt for all urgent care visits.
VA is amending the language that was proposed in paragraph
(d)(1)(ii) and adding it as a new paragraph (d)(4)(i) in 38 CFR
17.4600. The language in paragraph (d)(1)(ii) of the proposed rule
stated that a veteran would be required to pay a copayment for urgent
care ``[a]fter three visits in a calendar year if such eligible veteran
meets the definition of Indian or urban Indian, as defined in 25 U.S.C.
1603(13) and (28). To demonstrate that they meet the definition of
Indian or urban Indian, the veteran must submit to VA any of the
documentation listed in paragraphs (A) through (F)''. The first
sentence of (d)(4)(i) will now read ``If an eligible veteran meets the
definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13)
and (28), they are exempt from copayments for all urgent care visits.''
In addition, we revise the second sentence in paragraph (d)(4)(i) to
state ``To demonstrate that they meet the definition of Indian or urban
Indian, the veteran must submit to VA any of the documentation
described in paragraphs (d)(4)(i)(A) through (F) of this section:''.
This change will be consistent with the language proposed in the
changes to Sec. Sec. 17.108, 17.110, and 17.111 and to clarify that we
are referring to paragraphs (A) through (F) of paragraph (d)(4)(i) of
Sec. 17.4600. This revised language also includes the change from
``listed'' to ``described'' as explained further above as well the new
paragraph designation. This change has no substantive impact on
provision of benefits or services to veterans.
VA is adding this revised language as a new paragraph (d)(4)(i)
instead of as proposed paragraph (d)(1)(ii) because paragraph (d)(1),
except as provided in paragraph (d)(2) or (3), explains when an
eligible veteran is obligated to pay a copayment of $30 to VA. Since VA
is expanding the copayment exemption to all urgent care visits, the
revised language is added as an exception to the copayment requirement
in paragraph (d)(1).
Further, the language in paragraph (d)(4)(i) of the proposed rule
is added as new paragraph (d)(4)(ii), and to be consistent with the
structural changes described above, the references to paragraph
(d)(1)(ii) are revised to
[[Page 19871]]
paragraph (d)(4)(i). This change has no substantive impact on provision
of benefits or services to veterans.
Administrative Procedure Act
The Administrative Procedure Act (APA), codified in part at 5
U.S.C. 553, generally requires that agencies publish substantive rules
in the Federal Register and provide a 30-day delay before the rule
becomes effective. However, an agency may bypass the APA's 30-day delay
requirement if the rule ``recognizes an exemption or relieves a
restriction,'' 5 U.S.C. 553(d)(1). This rule recognizes an exemption,
in particular, a copayment exemption for Indian and urban Indian
veterans, and will therefore not have the 30-day delay before it
becomes effective.
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 final 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 will not cause a significant economic impact on small
entities since this exemption is limited to individual veterans who VA
determines to be Indian or urban Indian. Therefore, pursuant to 5
U.S.C. 605(b), the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and Tribal governments, or on the private sector.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that VA consider the impact of paperwork and other information
collection burdens imposed on the public. Government agencies must seek
approval from the Office of Management and Budget (OMB), which assigns
a control number for each collection of information it approves. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays currently
valid OMB control number (5 CFR 1320.8(b)(3)(vi)).
This final rule includes provisions constituting new collections of
information under the Paperwork Reduction Act of 1995 that require
approval by OMB. Accordingly, under 44 U.S.C. 3507(d), VA has submitted
a copy of this rulemaking action to OMB for review.
Sections 17.108, 17.110, 17.111, and 17.4600 contain new
collections of information. OMB has filed a comment on these
information collections that were submitted in conjunction with the
proposed rule. OMB requested that VA develop a cover form as part of
these information collections. Such cover form would accompany the
veteran's documentation demonstrating that they meet the definition of
Indian or urban Indian and would include the veteran's name and contact
information. VA has developed such cover form and submitted it to OMB
for review and approval as part of these information collections. VA
anticipates these information collections to be approved 30 days after
publication of the final rule.
This information will be collected from veterans to determine if
they meet the definition of Indian or urban Indian as defined in 25
U.S.C. 1603(13) and (28) for purposes of exempting such veterans from
copayments for certain health care. Veterans will submit documentation
that demonstrates that they meet these definitions of Indian or urban
Indian. VA estimates that 25,000 veterans will submit their
documentation one time. The estimated average burden per response is 15
minutes. VA estimates the annual cost to all respondents will be
$175,062.50 per year (6,250 burden hours x $28.01 per hour). To
estimate the total information collection burden cost, VA used the
Bureau of Labor Statistics mean hourly wage for hourly wage for ``00-
0000 All Occupations'' of $28.01 per hour. This information is
available at <a href="https://www.bls.gov/oes/current/oes.nat.htm">https://www.bls.gov/oes/current/oes.nat.htm</a>.
If OMB does not approve the collections of information as
requested, VA will immediately remove the provisions containing the
collections of information or take such other action as directed by
OMB. Notice of such OMB approval will be published in a future Federal
Register document.
Congressional Review Act
Pursuant to 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, Claims, Day care, Government
programs--veterans, Health care, Health facilities, Health records,
Medical devices, Mental health programs, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on March 29, 2023, and authorized the undersigned to sign and
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 17 as set forth below:
PART 17--MEDICAL
0
1. The authority citation for part 17 is amended by adding entries for
Sec. Sec. 17.111 and 17.4600 in numerical order to read in part as
follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Section 17.111 is also issued under 38 U.S.C. 101(28), 501,
1701(7), 1703, 1710, 1710B, 1720B, 1720D, 1722A, and 1730A.
* * * * *
Section 17.4600 is also issued under 38 U.S.C. 1725A and 1730A.
* * * * *
0
2. Amend Sec. 17.108 by adding paragraphs (d)(14) and (g) and the
[[Page 19872]]
information collection control number to the end of the section to read
as follows:
Sec. 17.108 Copayments for inpatient hospital care and outpatient
medical care.
* * * * *
(d) * * *
(14) A veteran who meets the definition of Indian or urban Indian,
as defined in 25 U.S.C. 1603(13) and (28), for inpatient hospital care
or outpatient medical care provided on or after January 5, 2022. To
demonstrate that they meet the definition of Indian or urban Indian,
the veteran must submit to VA any of the documentation described in
paragraphs (d)(14)(i) through (vi) of this section:
(i) Documentation issued by a federally recognized Indian Tribe
that shows that the veteran is a member of the Tribe;
(ii) Documentation showing that the veteran, irrespective of
whether they live on or near a reservation, is a member of a Tribe,
band, or other organized group of Indians, including those tribes,
bands, or groups terminated since 1940 and those recognized now or in
the future by the State in which they reside, or who is a descendant,
in the first or second degree, of any such member;
(iii) Documentation showing that the veteran is an Eskimo or Aleut
or other Alaska Native;
(iv) Documentation issued by the Department of Interior (DOI)
showing that the veteran considered by DOI to be an Indian for any
purpose;
(v) Documentation showing that the veteran is considered by the
Department of Health and Human Services (HHS) to be an Indian under
that Department's regulations; or
(vi) Documentation showing that the veteran resides in an urban
center and meets one or more of the following criteria:
(A) Irrespective of whether they live on or near a reservation, is
a member of a Tribe, band, or other organized group of Indians,
including those tribes, bands, or groups terminated since 1940 and
those recognized now or in the future by the State in which they
reside, or who is a descendant, in the first or second degree, of any
such member;
(B) Is an Eskimo or Aleut or other Alaska Native;
(C) Is considered by the Department of Interior to be an Indian for
any purpose; or
(D) Is considered by HHS to be an Indian under that Department's
regulations.
* * * * *
(g) Retroactive copayment reimbursement. After VA determines that
the documentation submitted by the veteran meets the criteria in
paragraph (d)(14) of this section and VA updates the veteran's record
to reflect the veteran's status as an Indian or urban Indian, VA will
reimburse veterans exempt under paragraph (d)(14) for any copayments
that were paid to VA for inpatient hospital care and outpatient medical
care provided on or after January 5, 2022 if they would have been
exempt from making such copayments if paragraph (d)(14) had been in
effect.
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
TBD.)
0
3. Amend Sec. 17.110 by adding paragraphs (c)(14) and (d) and the
information collection control number to the end of the section to read
as follows:
Sec. 17.110 Copayments for medication.
* * * * *
(c) * * *
(14) A veteran who meets the definition of Indian or urban Indian,
as defined in 25 U.S.C. 1603(13) and (28), for medications provided on
or after January 5, 2022. To demonstrate that they meet the definition
of Indian or urban Indian, the veteran must submit to VA any of the
documentation described in paragraphs (c)(14)(i) through (vi) of this
section:
(i) Documentation issued by a federally recognized Indian Tribe
that shows that the veteran is a member of the Tribe;
(ii) Documentation showing that the veteran, irrespective of
whether they live on or near a reservation, is a member of a Tribe,
band, or other organized group of Indians, including those tribes,
bands, or groups terminated since 1940 and those recognized now or in
the future by the State in which they reside, or who is a descendant,
in the first or second degree, of any such member;
(iii) Documentation showing that the veteran is an Eskimo or Aleut
or other Alaska Native;
(iv) Documentation issued by the Department of Interior (DOI)
showing that the veteran is considered by DOI to be an Indian for any
purpose;
(v) Documentation showing that the veteran is considered by the
Department of Health and Human Services (HHS) to be an Indian under
that Department's regulations; or
(vi) Documentation showing that the veteran resides in an urban
center and meets one or more of the following criteria:
(A) Irrespective of whether they live on or near a reservation, is
a member of a Tribe, band, or other organized group of Indians,
including those tribes, bands, or groups terminated since 1940 and
those recognized now or in the future by the State in which they
reside, or who is a descendant, in the first or second degree, of any
such member;
(B) Is an Eskimo or Aleut or other Alaska Native;
(C) Is considered by DOI to be an Indian for any purpose; or
(D) Is considered by HHS to be an Indian under that Department's
regulations.
(d) Retroactive copayment reimbursement. After VA determines the
submitted documentation meets paragraph (c)(14) of this section and
updates the veteran's record to reflect the veteran's status as an
Indian or urban Indian, VA will reimburse veterans exempt under
paragraph (c)(14) for any copayments that were paid to VA for
medications provided on or after January 5, 2022, if they would have
been exempt from making such copayments if paragraph (c)(14) had been
in effect.
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
TBD.)
0
4. Amend Sec. 17.111 by adding paragraphs (f)(11) and (g) and the
information collection control number to the end of the section to read
as follows:
Sec. 17.111 Copayments for extended care services.
* * * * *
(f) * * *
(11) A veteran who meets the definition of Indian or urban Indian,
as defined in 25 U.S.C. 1603(13) and (28), is exempt from copayments
for noninstitutional extended care including adult day health care,
noninstitutional respite care, and noninstitutional geriatric
evaluation provided on or after January 5, 2022. To demonstrate that
they meet the definition of Indian or urban Indian, the veteran must
submit to VA any of the documentation described in paragraphs
(f)(11)(i) through (vi) of this section:
(i) Documentation issued by a federally recognized Indian Tribe
that shows that the veteran is a member of the Tribe;
(ii) Documentation showing that the veteran, irrespective of
whether they live on or near a reservation, is a member of a Tribe,
band, or other organized group of Indians, including
[[Page 19873]]
those tribes, bands, or groups terminated since 1940 and those
recognized now or in the future by the State in which they reside, or
who is a descendant, in the first or second degree, of any such member;
(iii) Documentation showing that the veteran is an Eskimo or Aleut
or other Alaska Native;
(iv) Documentation issued by the Department of Interior (DOI)
showing that the veteran is considered by DOI to be an Indian for any
purpose;
(v) Documentation showing that the veteran is considered by the
Department of Health and Human Services (HHS) to be an Indian under
that Department's regulations; or
(vi) Documentation showing that the veteran resides in an urban
center and meets one or more of the following criteria:
(A) Irrespective of whether they live on or near a reservation, is
a member of a Tribe, band, or other organized group of Indians,
including those tribes, bands, or groups terminated since 1940 and
those recognized now or in the future by the State in which they
reside, or who is a descendant, in the first or second degree, of any
such member;
(B) Is an Eskimo or Aleut or other Alaska Native;
(C) Is considered by DOI to be an Indian for any purpose; or
(D) Is considered by HHS to be an Indian under that Department's
regulations.
(g) Retroactive copayment reimbursement. After VA determines the
submitted documentation meets paragraph (f)(11) of this section and
updates the veteran's record to reflect the veteran's status as an
Indian or urban Indian, VA will reimburse veterans exempt under
paragraph (f)(11) for any copayments that were paid to VA for adult day
health care, non-institutional respite care, and non-institutional
geriatric evaluation provided on or after January 5, 2022, if they
would have been exempt from making such copayments if paragraph (f)(11)
had been in effect.
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
TBD.)
0
5. Amend Sec. 17.4600 by revising paragraph (d)(1) and adding
paragraph (d)(4) and the information collection control number to the
end of the section to read as follows:
Sec. 17.4600 Urgent care.
* * * * *
(d) * * *
(1) Except as provided in paragraphs (d)(2) through (4) of this
section, an eligible veteran, as a condition for receiving urgent care
provided by VA under this section, must agree to pay VA (and is
obligated to pay VA) a copayment of $30:
* * * * *
(4)(i) If an eligible veteran meets the definition of Indian or
urban Indian, as defined in 25 U.S.C. 1603(13) and (28), they are
exempt from copayments for all urgent care visits. To demonstrate that
they meet the definition of Indian or urban Indian, the veteran must
submit to VA any of the documentation described in paragraphs
(d)(4)(i)(A) through (F) of this section:
(A) Documentation issued by a federally recognized Indian Tribe
that shows that the veteran is a member of the Tribe;
(B) Documentation showing that the veteran, irrespective of whether
they live on or near a reservation, is a member of a Tribe, band, or
other organized group of Indians, including those tribes, bands, or
groups terminated since 1940 and those recognized now or in the future
by the State in which they reside, or who is a descendant, in the first
or second degree, of any such member;
(C) Documentation showing that the veteran is an Eskimo or Aleut or
other Alaska Native;
(D) Documentation issued by the Department of Interior (DOI)
showing that the veteran is considered by DOI to be an Indian for any
purpose;
(E) Documentation showing that the veteran is considered by the
Department of Health and Human Services (HHS) to be an Indian under
that Department's regulations; or
(F) Documentation showing that the veteran resides in an urban
center and meets one or more of the following criteria:
(1) Irrespective of whether they live on or near a reservation, is
a member of a Tribe, band, or other organized group of Indians,
including those tribes, bands, or groups terminated since 1940 and
those recognized now or in the future by the State in which they
reside, or who is a descendant, in the first or second degree, of any
such member;
(2) Is an Eskimo or Aleut or other Alaska Native;
(3) Is considered by DOI to be an Indian for any purpose; or
(4) Is considered by HHS to be an Indian under that Department's
regulations.
(ii) After VA determines the submitted documentation meets
paragraph (d)(4)(i) of this section and updates the veteran's record to
reflect the veteran's status as an Indian or urban Indian, VA will
reimburse eligible veterans exempt under paragraph (d)(4)(i) for any
copayments that were paid to VA for urgent care visits provided on or
after January 5, 2022, if they would have been exempt from making such
copayments if paragraph (d)(4)(i) had been in effect.
* * * * *
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
TBD.)
[FR Doc. 2023-06954 Filed 4-3-23; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on April 4, 2023.
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