Notice2023-15928
Implementation of the Dr. Kate Hendricks Thomas Supporting Expanded Review for Veterans in Combat Environments (SERVICE) Act
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
July 28, 2023
Effective
July 28, 2023
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) is publishing this notice to inform the public about how it is implementing the SERVICE Act.
Full Text
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<title>Federal Register, Volume 88 Issue 144 (Friday, July 28, 2023)</title>
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[Federal Register Volume 88, Number 144 (Friday, July 28, 2023)]
[Notices]
[Pages 48953-48955]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15928]
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DEPARTMENT OF VETERANS AFFAIRS
Implementation of the Dr. Kate Hendricks Thomas Supporting
Expanded Review for Veterans in Combat Environments (SERVICE) Act
AGENCY: Department of Veterans Affairs.
ACTION: Notice.
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SUMMARY: The Department of Veterans Affairs (VA) is publishing this
notice to inform the public about how it is implementing the SERVICE
Act.
DATES: This notice is effective on July 28, 2023.
FOR FURTHER INFORMATION CONTACT: Office of Women's Health, Acting Chief
Officer, Dr. Sally Haskell, at 202-461-7671. This is not a toll-free
telephone number.
SUPPLEMENTARY INFORMATION: The SERVICE Act was signed into law by the
President on June 7, 2022 (Pub. L. 117-133, 136 stat. 1238). The
SERVICE Act amended 38 U.S.C. 7322 to ensure that certain Veterans who
were deployed in support of a contingency operation in certain
locations and during certain time periods can receive a breast cancer
risk assessment and clinically appropriate mammography screening. As
added by the SERVICE Act, 38 U.S.C. 7322(c) requires this eligibility
expansion to be included in the national mammography policy mandated by
subsection (a). This notice provides information on how VA will
implement the amendments made by the SERVICE Act and is not a
solicitation for public comment or request for information regarding
VA's implementation of the SERVICE Act as described in this notice.
Therefore, responses to this notice may not be used to inform VA's
implementation of the SERVICE Act.
VA is announcing its program for breast cancer risk assessment and
clinically appropriate mammography screening for any individual covered
by the SERVICE Act. VA considers the amendments made by the SERVICE Act
to be self-executing. We will therefore issue no regulations but
instead provide this notice to announce operationally how VA will
implement these new authorities. This notice includes sections on
eligible Veterans, eligible services, eligible providers and other
matters.
Eligible Veterans
General Discussion
The SERVICE Act includes as Veterans eligible for a breast cancer
risk assessment and clinically appropriate mammography screening those
Veterans who have ``a record of service in a location and during a
period specified in subsection (d)''. See 38 U.S.C. 7322(b)(2)(B). This
authority allows Veterans under the age of 40 who were not otherwise
previously eligible to be included in VA's National mammography
screening policy but who may have an elevated risk due to in-service
toxic exposures such as an open burn pit. As amended, section
7322(b)(2) requires VA's National policy to include Veterans who are
over the age of 39 and Veterans, without regard to age, who have
clinical symptoms, risk factors, a family history of breast cancer, or
a record of service in a location and during a period specified in
subsection (d). A record is defined as a DD Form 214, Certificate of
Release or Discharge from Active Duty, or original Certificate of
Discharge, military orders, service records and/or records of awards
received. All documentation will be reviewed to determine eligibility.
If these documents are not present, VA will follow its standard process
to attempt retrieval of relevant documents. This information will be
provided to Veterans in the same manner through which they contacted VA
to request SERVICE Act care, unless the Veteran has specified a
preferred alternate means of contact. In these cases, the policy shall,
pursuant to section 7322(b)(3), also provide for clinician discretion
when developing the clinical screening recommendations for the Veteran-
cohorts covered by section 7322(b)(2). Breast cancer screening
(screening mammogram) is generally applicable only to birth sex female
Veterans and transgender women Veterans who have been on hormone
therapy for 5 years or more. Birth sex male Veterans who are not
symptomatic will not be screened, but those who develop breast symptoms
such as breast lump, breast pain, or nipple discharge will be eligible
for a risk assessment and diagnostic mammogram.
[[Page 48954]]
Locations and Periods of Active-Duty Service
Section 7322(d), as added by the SERVICE Act, establishes the
following qualifying locations and service periods:
(A) Iraq during:
(i) The period beginning on August 2, 1990, and ending on February
28, 1991.
(ii) The period beginning on March 19, 2003, and ending on such
date as the Secretary determines burn pits are no longer used in Iraq.
(B) The Southwest Asia theater of operations, other than Iraq,
during the period beginning on August 2, 1990, and ending on such date
as the Secretary determines burn pits are no longer used in such
location, including the following locations:
(i) Kuwait.
(ii) Saudi Arabia.
(iii) Oman.
(iv) Qatar.
(C) Afghanistan during the period beginning on September 11, 2001,
and ending on such date as the Secretary determines burn pits are no
longer used in Afghanistan.
(D) Djibouti during the period beginning on September 11, 2001, and
ending on such date as the Secretary determines burn pits are no longer
used in Djibouti.
(E) Syria during the period beginning on September 11, 2001, and
ending on such date as the Secretary determines burn pits are no longer
used in Syria.
(F) Jordan during the period beginning on September 11, 2001, and
ending on such date as the Secretary determines burn pits are no longer
used in Jordan.
(G) Egypt during the period beginning on September 11, 2001, and
ending on such date as the Secretary determines burn pits are no longer
used in Egypt.
(H) Lebanon during the period beginning on September 11, 2001, and
ending on such date as the Secretary determines burn pits are no longer
used in Lebanon.
(I) Yemen during the period beginning on September 11, 2001, and
ending on such date as the Secretary determines burn pits are no longer
used in Yemen.
(J) Such other locations and corresponding periods as set forth by
the Airborne Hazards and Open Burn Pit Registry established under
section 201 of the Dignified Burial and Other Veterans' Benefits
Improvement Act of 2012 (Pub. L. 112-260; 38 U.S.C. 527, note).
Section 7322(d)(1)(K) authorizes VA, in collaboration with the
Department of Defense, to include such other locations and
corresponding periods as determined appropriate in a report to Congress
pursuant to section 7322(d)(2). At this time, VA has identified no such
locations and has not yet submitted a report to Congress; the first
report to Congress is due no later than June 7, 2024. VA will announce
any added locations and periods of service, which will only be
effective at the time of such announcement. There will be no individual
ad hoc decisions made by VA providers, making this content self-
executing.
Section 7322(d)(3) provides that a location under this subsection
does not include any body of water around or any airspace above such
location. VA has no discretion in this regard.
Section 7322(d)(4) defines the term ``burn pit'' to mean an area of
land that--(A) is used for disposal of solid waste by burning in the
outdoor air; and (B) does not contain a commercially manufactured
incinerator or other equipment specifically designed and manufactured
for the burning of solid waste. VA has no discretion in this regard.
For any individual who seeks a mammography screening under section
7332(c), VA will confirm an individual's qualifying service under
section 7332(d).
Application
This eligibility for mammography screening in section 7322(c) is
akin to eligibility for a registry examination. For registry
examinations, individuals must apply for such screening. Consistent
with this practice, VA will require individuals to apply for a
mammography screening pursuant to section 7322. Veterans can choose to
either apply for enrollment in VA health care or to apply only for care
under the SERVICE Act. If Veterans are seeking SERVICE Act care only,
they will need to check the Registration box on the 10-10EZ (under
``Type of Benefit(s) Applying for''), and VA will then ensure they are
placed in the system as registered only.
VA will provide applicants an eligibility determination in
accordance with the requirements set forth in 38 U.S.C. 5104. Eligible
Veterans will be provided a mammogram only when clinically appropriate,
as determined by a VA clinician. A VA clinician's decision to deny an
eligible Veteran's request for a mammogram may be appealed under VA's
Clinical Appeals processes.
Eligible Services
Veterans who served in certain locations during specific periods
identified by law, regardless of their enrollment in VA health care,
may receive clinically appropriate mammography screening, risk
evaluation and counseling. We recognize that without these amendments,
asymptomatic individuals less than 40 years of age with qualifying
service in a covered location would not likely be able to receive
mammography screening on that basis outside the VA health care system.
Further, section 7322(c) ensures that Veterans who are not enrolled in
VA health care or eligible to receive VA health care without enrolling
may receive a breast cancer risk assessment and clinically appropriate
mammography under this Act. The screening will be furnished to all
eligible Veterans at no cost to the individual.
While section 7322(c) refers to eligibility for ``a mammography
screening by a health care provider of the Department,'' this must be
clinically indicated in the first place, and if clinically indicated,
would require the prior, voluntary informed consent of the individual
in accordance with 38 U.S.C. 7331 and 38 CFR 17.32. Each eligible
individual who seeks a mammogram under section 7322(c) will receive, in
advance of such screening, a breast cancer risk assessment to determine
if further evaluation is clinically needed. If so, the individual will
receive all relevant clinical information about the nature of the
screening, their individual risk assessment for breast cancer based on
all relevant clinical factors and histories, reasonably foreseeable
associated risks, complications or side effects of the screening,
reasonable and available alternatives to undergoing the screening and
anticipated results if no screening occurs. In other words, they will
receive all the relevant information an individual would want to make a
full, informed, consensual decision. The determination of clinical need
and informed consent can occur at the same encounter, but the latter is
dependent on the former.
Veterans seeking care under this Act are understandably concerned
about any long-term adverse health consequences associated with any in-
service toxic exposures they may have experienced while deployed on
active duty to a covered location, even if they are not experiencing
symptoms. We emphasize, though, the inherent risk in undergoing
mammography; mammography screening is not currently recommended by the
United States Preventive Services Task Force, the American Cancer
Society, or other agencies for average-risk women younger than 40 years
of age because interpretation is hindered by dense breast tissue in
young women, leading to frequent false positive results.
[[Page 48955]]
False positive results can lead to unnecessary additional imaging or
diagnostic testing through their personal treating providers, including
biopsies and unnecessary surgeries, the costs of which may be borne by
the subject individual. Veterans seeking a mammography screening under
section 7322(c) will be assessed to ensure that further evaluation is
clinically needed, and if so, Veterans will receive a risk assessment,
along with clinically appropriate discussions before an ultimate
decision is made on whether to furnish a mammography.
There are several important limitations regarding the authority in
section 7322(c) that should be made clear. First, the expanded
eligibility authority in section 7322(c) does not create eligibility
for Veterans to obtain mammography screening if it is not determined to
be clinically appropriate. Clinical necessity is a threshold
requirement for the delivery of all care. If care is clinically,
indicated, a patient must also provide informed consent to receive such
care. Second, section 7322(c) does not independently authorize the
provision of any recommended or additional needed medical care through
VA; Veterans who are enrolled in VA health care or eligible to receive
VA health care without enrolling may receive any necessary follow up
care from VA, but Veterans without such eligibility can only receive
the breast cancer risk assessment and clinically appropriate
mammography screening as authorized by section 7322(c). Section 7322(c)
does not authorize the delivery of any care or services for the
treatment of breast cancer or any other condition for Veterans who are
not enrolled in VA health care. Asymptomatic Veterans less than 40
years of age may return for the breast cancer risk assessment and
mammogram screening as indicated every 5 years until age 40 when they
would become eligible for standard breast cancer screening. This is
consistent with current national guidelines and standards. Veterans who
are eligible for care exclusively under the SERVICE Act will be
eligible to present for a breast cancer risk assessment and mammogram
screening as indicated more frequently than once every 5 years at any
time in which they develop interim symptoms such as breast lump, breast
pain or nipple discharge. This is also consistent with current national
guidelines and standards. Third, section 7322(c) does not establish a
claim for service-connection. Section 7322(c) only authorizes the
provision of a breast cancer risk assessment and mammogram screening;
it has no effect on establishing eligibility for any other benefits.
The American College of Radiology has established a uniform way for
radiologists to describe mammogram findings. See <a href="https://www.cancer.gov/types/breast/mammograms-fact-sheet#what-is-the-breast-imaging-reporting-and-database-system-bi-rads">https://www.cancer.gov/types/breast/mammograms-fact-sheet#what-is-the-breast-imaging-reporting-and-database-system-bi-rads</a>. The Breast Imaging
Reporting and Data System (BI-RADS) categories included in mammography
reports help inform radiologists and other providers whether any
follow-up testing, or imaging is recommended or needed, including any
MRI imaging, biopsy, or sonagram. Id. VA will ensure the mammography
screening performed is of the quality required for the assigned
radiologist to reliably list the appropriate BI-RADS category. BI-RADS
are scored from 0-6. BI-RADS 0 represents an incomplete evaluation. In
this case, VA must perform additional imaging as needed, such as
ultrasound, to assign a final BI-RADS category. VA may perform
additional imaging, such as ultrasound, for all SERVICE Act eligible
Veterans to reach a ``complete'' exam designation (BIRADS 1-6). VA is
not authorized under the SERVICE Act to provide further care to
Veterans based on the results of the breast cancer risk assessment and/
or clinically appropriate mammogram. If the Veteran is enrolled in VA
health care, VA may perform the additional imaging that is required
because of an abnormal BI-RADS (3-6). However, if the Veteran is not
enrolled in VA health care and additional imaging is needed beyond
establishing the final BI-RADS (such as follow up for an abnormal BI-
RADS category (3, 4, 5 or 6), VA will not be able to provide that care
and will advise such individuals to pursue follow-up care promptly with
their health care provider.
Eligible Providers
Section 7332(c) establishes a Veteran's eligibility for a
mammography screening ``by a health care provider of the Department.''
This language allows for screenings to be conducted by VA-authorized
community providers who have entered into an appropriate agreement with
VA to furnish such care. As mentioned above, many Veterans who qualify
under section 7322(c) would not be eligible for a mammography screening
in the community (based on applicable screening standards to which the
health care system outside of VA is bound). Based on the Veteran's
eligibility under section 7322(c), however, VA can provide the
mammography screening in-house or through a contractual arrangement.
Any service VA is authorized to provide the mammography screening, it
may also provide by contract or agreement, subject to other applicable
law and regulations. Veterans who are covered under the Veterans
Community Care Program (38 U.S.C. 1703 and Sec. Sec. 17.4000 through
17.4040 of title 38, CFR) may elect to receive their screening in the
community if they are eligible to make such an election under that
Program. For Veterans who are not covered for purposes of 38 U.S.C.
1703 and Sec. Sec. 17.4000 through 17.4040 of title 38, CFR, if VA is
not able to furnish the mammography screening itself, a VA provider
will order such a screening to be performed, and, per the terms of the
authorization, receive a report of the imaging results. We do not view
this as conflicting with the language of the SERVICE Act because it is
the VA provider who still provides this preventive health care benefit,
even if indirectly in some cases.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on July 20, 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.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
[FR Doc. 2023-15928 Filed 7-27-23; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on July 28, 2023.
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