Rule2023-28726
Changes in Rates VA Pays for Special Modes of Transportation; Delay of Effective Date
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
December 29, 2023
Effective
February 16, 2025
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) published in the Federal Register on February 16, 2023, a final rule to amend its beneficiary travel regulations to establish a new payment methodology for special modes of transportation available through the VA beneficiary travel program. The preamble of that final rule stated the effective date was February 16, 2024. This rulemaking delays that effective date to February 16, 2025.
Full Text
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<title>Federal Register, Volume 88 Issue 249 (Friday, December 29, 2023)</title>
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[Federal Register Volume 88, Number 249 (Friday, December 29, 2023)]
[Rules and Regulations]
[Pages 90120-90121]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28726]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 70
RIN 2900-AS03
Changes in Rates VA Pays for Special Modes of Transportation;
Delay of Effective Date
AGENCY: Department of Veterans Affairs.
ACTION: Final rule; delay of effective date.
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SUMMARY: The Department of Veterans Affairs (VA) published in the
Federal Register on February 16, 2023, a final rule to amend its
beneficiary travel regulations to establish a new payment methodology
for special modes of transportation available through the VA
beneficiary travel program. The preamble of that final rule stated the
effective date was February 16, 2024. This rulemaking delays that
effective date to February 16, 2025.
DATES: The effective date for the final rule published February 16,
2023, at 88 FR 10032, is delayed from February 16, 2024, until February
16, 2025.
FOR FURTHER INFORMATION CONTACT: Ben Williams, Director, Veterans
Transportation Program (15MEM), Veterans Health Administration,
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC
20420, (404) 828-5691. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On November 5, 2020, VA proposed amending
its beneficiary travel regulations to implement the discretionary
authority in 38 U.S.C. 111(b)(3)(C), which permits VA to pay the lesser
of the actual charge for ambulance transportation or the amount
determined by the Centers for Medicare and Medicaid Services (CMS)
Medicare Part B Ambulance Fee Schedule (hereafter referred to the CMS
ambulance fee schedule) established under section 1834(l) of the Social
Security Act (42 U.S.C. 1395m(l)), unless VA has entered into a
contract for that transportation. We provided a 60-day comment period
that ended on January 4, 2021, and we received six comments, five of
which were substantive. Those five comments all raised similar concerns
to 38 CFR 70.30(a)(4) introductory text and (a)(4)(i) and (ii) as
proposed, related to using the CMS ambulance fee schedule or, in the
case of travel by modes other than ambulance, the posted rates from
each State. We responded to all comments in a final rule published in
the Federal Register on February 16, 2023 (88 FR 10032), wherein we
stated that we would not make changes from the proposed rule related to
application of the CMS ambulance fee schedule but would delay the
effective date of the final rule by one year (to be February 16, 2024)
to ensure that ambulance providers have adequate time to adjust to VA's
new methodology for calculating ambulance rates (88 FR 10035). We
further stated in the final rule that such adjustment could include
ambulance providers entering negotiations with VA to contract for
payment rates different than those under the CMS ambulance fee
schedule, as contemplated in the final rule.
Since publication of the final rule, however, VA has received
feedback from both internal and external stakeholders, including VA
employees, ambulance providers, and industry experts, that more time is
necessary for successful implementation of the rule. Specifically, the
delay of the effective date is necessary to accommodate unforeseen
difficulties in air ambulance broker contracting. These difficulties
relate to air ambulance brokers requiring a contract or subcontract in
place with all potential air ambulance providers that covers emergency,
non-VA initiated trips. Based on this feedback and evaluation of the
continued effort that would be required by air ambulance brokers to
negotiate and enter into contracts before February 16, 2024, VA is
delaying the effective date of the regulation by one year. VA believes
a 12-month delay is appropriate based on its experience with
contracting, especially in circumstances like this where subcontracting
actions are required.
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 for notice of proposed rulemaking and to
solicit public comment. However, pursuant to 5 U.S.C. 553(b)(B) of the
APA, general notice and the opportunity for public comment are not
required with respect to a rulemaking when an ``agency for good cause
finds (and incorporates the finding and a brief statement of reasons
therefor in the rules issued) that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public interest.''
VA finds that there is good cause under the APA to issue this rule
without prior notice and opportunity for public comment. The final rule
published at 88 FR 10032 will become effective February 16, 2024. Given
the
[[Page 90121]]
imminence of the effective date, seeking prior notice and the
opportunity for public comment on this delay is impractical.
Specifically, if prior notice and opportunity for public comment are
required to delay the effective date to February 16, 2025, this final
rule will not be issued prior to February 16, 2024. As a result, the
current final rule will become effective February 16, 2024, and
ambulance providers without contracts in place would be subject to
those payment methodologies until contracts have been implemented. For
those entities engaged in the contracting process, this is likely to
cause confusion and uncertainty.
VA also finds that prior notice and opportunity for comment would
be contrary to the public interest because it could adversely impact
veteran care or result in veterans being billed directly for services.
Under the new regulation, VA will pay the lesser of actual charge
associated with an air ambulance service, or the CMS ambulance fee
schedule rate for that service, unless a separate rate has been
established based on local contracts between air ambulance providers
and local VA medical centers. As discussed above, since publication of
the final rule, VA has received feedback that more time is necessary to
accommodate unforeseen difficulties in air ambulance broker
contracting, which relate to air ambulance brokers requiring a contract
or subcontract in place with all potential air ambulance providers that
covers emergency, non-VA initiated trips. The negotiation and
implementation of these contracts will not be completed by February 16,
2024. As a result, absent the delayed effective date, the current final
rule will go into effect on February 16, 2024, and ambulance providers
would be subject to those payment methodologies until contracts have
been implemented. This could be especially concerning for those
entities whose negotiated rates could be higher than the applicable CMS
ambulance fee schedule rate in the event VA determines it may be
justified based on local considerations, such as for rural areas. Air
ambulance providers contend that the Medicare reimbursement rate that
would apply absent a contract is unsustainable for their business
operations, potentially leading to reduction in the availability of air
ambulance services for veterans. While VA is not aware that veterans
are currently receiving preferential treatment from air ambulance
providers by virtue of VA paying billed charges, or that such
preferential treatment would stop were VA to pay CMS ambulance fee
schedule rates in the absence of a contract, VA acknowledges that there
is a risk that veterans could be billed directly for the difference
between the Medicare rate that VA pays for emergency, non-VA initiated
trips and the amount billed by the ambulance provider. For these
reasons, VA finds that good cause exists to dispense with the prior
notice and public comment procedures for this final rule, as it
concludes that such procedures are impracticable and contrary to the
public interest pursuant to 5 U.S.C. 553(b)(B).
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on December 22, 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. 2023-28726 Filed 12-28-23; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on December 29, 2023.
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