Rule2024-13116
Adaptive Equipment Allowance
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
June 17, 2024
Effective
July 17, 2024
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) amends its regulations governing the provision of a monetary allowance to certain veterans and eligible members of the Armed Forces who require adaptive equipment to operate an automobile or other conveyance. VA proposed establishing in regulation a VA Adaptive Equipment Schedule for Automobiles and Other Conveyances to calculate the amount of the monetary allowance for adaptive equipment based on industry standards and our experience administering this program. We adopt as final this proposed rule, with changes based on public comment. This rulemaking addresses reimbursement to eligible persons who have paid for adaptive equipment and payments made by VA directly to registered adaptive equipment providers, but not the eligibility requirements to receive adaptive equipment.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 117 (Monday, June 17, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 117 (Monday, June 17, 2024)]
[Rules and Regulations]
[Pages 51224-51234]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13116]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AP39
Adaptive Equipment Allowance
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) amends its regulations
governing the provision of a monetary allowance to certain veterans and
eligible members of the Armed Forces who require adaptive equipment to
operate an automobile or other conveyance. VA proposed establishing in
regulation a VA Adaptive Equipment Schedule for Automobiles and Other
Conveyances to calculate the amount of the monetary allowance for
adaptive equipment based on industry standards and our experience
administering this program. We adopt as final this proposed rule, with
changes based on public comment. This rulemaking addresses
reimbursement to eligible persons who have paid for adaptive
[[Page 51225]]
equipment and payments made by VA directly to registered adaptive
equipment providers, but not the eligibility requirements to receive
adaptive equipment.
DATES: The final rule is effective July 17, 2024.
FOR FURTHER INFORMATION CONTACT: Penny Nechanicky, National Program
Director, Prosthetics Sensory Aids Service (10P4R), Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202)
461-0337 (This is not a toll-free number).
SUPPLEMENTARY INFORMATION: Section 3902(b) of Title 38, United States
Code (U.S.C.) requires VA to provide eligible persons with ``the
adaptive equipment deemed necessary to insure that the eligible person
will be able to operate [an] automobile or other conveyance in a manner
consistent with such person's own safety and the safety of others and
so as to satisfy the applicable standards of licensure established by
the State of such person's residency or other proper licensing
authority.'' Under 38 U.S.C. 3901, eligible persons include veterans
and active duty members of the Armed Forces who have been diagnosed
with one or more specified disabilities. Under section 3901(2),
adaptive equipment is defined to include, but is not limited to, power
steering, power brakes, power window lifts, power seats, air
conditioning, and other equipment necessary to help the eligible
individual enter, exit, or operate the automobile or other conveyance.
VA implements these statutory authorities through regulation at Title
38 Code of Federal Regulations (CFR) sections 17.155-17.159. Because VA
does not have the capacity to build or install adaptive equipment for
automobiles or other conveyances, VA instead reimburses eligible
persons or pays registered providers for the cost of the adaptive
equipment. See 38 CFR 17.156.
On March 12, 2020, VA proposed amending its regulations governing
the provision of a monetary allowance to certain veterans and eligible
members of the Armed Forces who require adaptive equipment to operate
an automobile or other conveyance. Among other things, that proposed
rule addressed establishing in regulation a VA Adaptive Equipment
Schedule for Automobiles and Other Conveyances (Schedule) to calculate
the amount of the monetary allowance for adaptive equipment based on
industry standards and our experience administering this program, and
reimbursement to eligible persons who have paid for adaptive equipment
and payments made by VA directly to registered adaptive equipment
providers.
We provided a 60-day period in which interested members of the
public could submit comments. The comment period closed May 11, 2020
and we received four comments, two of which raised substantive issues.
Based on these comments, we adopt as final this proposed rule, with
changes based on public comment.
Sec. 17.157 Definitions.
We proposed making minor revisions to the definition of ``adaptive
equipment'' for purposes of readability and clarity. Adaptive equipment
was defined to include ``any term specified by the Under Secretary for
Health or designee.'' Because adaptive equipment is generally
understood to refer to tangible pieces of equipment rather than words
or terms, we proposed amending the definition to refer to any item. As
amended the proposed definition stated, inter alia, that adaptive
equipment means ``equipment which must be part of or added to a
conveyance manufactured for sale to the general public to make it safe
for use by the eligible person and enable that person and the
conveyance to meet the applicable standards of licensure. Adaptive
equipment includes any item specified by the Under Secretary for Health
or designee as ordinarily necessary for any of the classes of losses or
combination of such losses specified in 38 CFR 17.156, or as deemed
necessary in an individual case for an eligible person.''
One commenter requested clarification on whether ``any item''
includes both tangible and non-tangible (i.e., software and other
electronic interface technologies) equipment, which are and will
continue to be essential for the safe and functional operation of
modified automobiles and adaptive equipment. The commenter recommended
amending the definition of adaptive equipment to specifically address
this issue. We agree with the comment to the extent that software and
other electronic interface technologies are and may continue to be
essential for the safe and functional operation of modified automobiles
and adaptive equipment. However, we do not believe that adding
modifying language such as ``tangible,'' ``non-tangible,'' or
``intangible'' to the definition of ``adaptive equipment'' would
provide the additional clarity that the commenter seeks. We believe
those terms are too subjective, and further we do not know of
standardized definitions or characterizations of those terms in
National Highway Traffic System Administration (NHTSA) guidance or
regulations. We do, however, amend the definition of ``adaptive
equipment'' to specifically include language related to equipment being
essential for the continued safety and functionality of a modified or
altered automobile and adaptive equipment. We believe this will assist
to capture software or other electronics-based equipment to ensure it
is covered in the definition of ``adaptive equipment.''
One commenter stated that the definition for adaptive equipment
deviates from the statutory definition of that same term in 38 U.S.C.
3901(2) and stated that VA should explain why the definitions are not
the same. We first note that the definition of adaptive equipment found
in Sec. 17.157 is essentially unchanged from when the rule first
published in 1988 (53 FR 46608, Nov. 18, 1988). The only prior
amendment to this section occurred in 1996, when the section was
redesignated and a nonsubstantive change of job title from Chief
Medical Director to Under Secretary for Health established. (61 FR
21966, 21968, May 13, 1996). In the present proposed rule, we stated
that we would change the phrase ``any term'' to ``any item'' for
purposes of clarity. We do not agree with the statement that the
regulation deviates from the statute. The statute at 38 U.S.C. 3901(2)
does not define the term adaptive equipment per se but does provide
examples of the types of equipment or modifications that may fall
within the ambit of that term. Section 17.157 defines the term adaptive
equipment, incorporates statutory language regarding what types of
equipment may be included, and then addresses VA's authority to specify
other items as ordinarily necessary for any of the classes of losses or
combination of such losses specified in 38 CFR 17.156, or as deemed
necessary in an individual case for an eligible person. We make no
changes based on this comment.
We proposed adopting several definitions found in the National
Traffic and Motor Vehicle Safety Act (Pub. L. 89-563) as amended. We
proposed defining the term ``manufacturer'' to mean the same as in 49
U.S.C. 30102(a)(6). One commenter stated that the correct citation is
to 49 U.S.C. 30102(a)(5). We disagree. While the definition of
manufacturer was originally designated at 49 U.S.C. 30102(a)(5), it was
redesignated as paragraph (a)(6) in Public Law 114-94, section
24109(b)(2). We make no changes based on this comment.
We proposed defining registered provider and unregistered provider.
We
[[Page 51226]]
proposed defining a registered provider as a manufacturer, modifier, or
alterer registered with the NHTSA's Modifiers Identification Database
currently available at <a href="https://www.nhtsa.gov/apps/modifier/index.htm">https://www.nhtsa.gov/apps/modifier/index.htm</a>.
Any manufacturer, modifier, or alterer who is not registered is
considered an unregistered provider.
The purpose of the NHTSA Modifiers Identification Database is to
provide a running and cumulative listing of all individuals or entities
that have sought identification as a vehicle modifier under the
requirements of 49 CFR part 595. NHTSA does not approve or endorse any
of the modifiers who have furnished information under part 595.
One commenter stated that VA should reconsider its proposed
reliance on NHTSA to ensure quality, as NHTSA's expertise in the
adaptive equipment arena is focused on vehicle safety and not on the
quality of adaptive equipment installation, replacement, or repair. The
commenter stated that the data provided in the database is only as
accurate as the information submitted by each modifier and is not
verified or validated by NHTSA. Furthermore, the database is updated as
new information is received but is not purged of those modifiers who
may have over time changed names, addresses, or gone out of business.
NHTSA does not assess the abilities of any of the listed modifiers to
perform any requested or represented modification services. The
commenter stated that VA's reliance on the Database as an indicator of
vendor competence would be misplaced, misleading, and potentially
dangerous. The commenter stated that the Database is not a listing of
credible vendors proven to meet objective quality and safety criteria.
The commenter also indicated that it believed a better source for
identifying qualified modifiers would be reliance on membership in its
organization.
We do not agree. The purpose of the NHTSA Modifiers Identification
Database is to provide a running and cumulative listing of all
individuals and entities that have sought identification as a vehicle
modifier under the requirements of 49 CFR part 595. We are using the
database because registration is indicative of the provider
acknowledging that it is cognizant of the relevant regulatory
requirements. The database is available to the public for the purpose
of identifying a modifier in a given geographical area. VA believes it
is prudent to rely on a database, created by a sister Federal agency
with subject matter expertise, that serves as a readily accessible
resource for eligible persons seeking registered providers of adaptive
equipment installation and repair.
As noted by two commenters, registered providers can be reimbursed
for labor costs while unregistered providers cannot. One commenter
stated that VA should clearly state that in the regulation. This was
stated in proposed 38 CFR 17.158(b)(3)(iii). We make no changes based
on these comments.
One commenter asked what manner or by what method VA intends to
confirm that unregistered providers are not conducting or being
reimbursed for activities intended to be performed exclusively by
registered providers. We do not distinguish providers based on the
activities they perform and do not possess the necessary knowledge or
expertise to delineate identified activities related to adaptive
equipment installation, repair, reinstallation, or replacement
exclusively to registered or unregistered providers. As stated in
proposed 38 CFR 17.158(b)(2)(ii), VA will reimburse eligible persons
identified in 38 CFR 17.156(a) who have purchased adaptive equipment
(e.g., installations, repairs, reinstallations, replacements) from
unregistered providers. However, VA does not reimburse or pay
unregistered providers for labor costs as mentioned in the foregoing
paragraph. We make no changes based on this comment.
One commenter expressed concern that there may be areas of the
country where veterans with disabilities do not have access to
registered providers, or perhaps they have a long-standing relationship
with an unregistered provider. The commenter indicated VA should create
limited exceptions to its rule regarding labor costs so that these
veterans are not disadvantaged. The commenter noted that under the
provisions of Public Law 114-256, Sec. 3(b)(8), where technically
appropriate, VA is to allow veterans to receive vehicle modifications
``at their residence or location of choice.'' We note that any provider
of adaptive equipment may register with the NHTSA database regardless
of location, in the United States or elsewhere. We make no changes
based on this comment.
Sec. 17.158 Limitations on Assistance.
We proposed amending paragraph (b) to state that VA will reimburse
eligible persons or pay registered providers for adaptive equipment
that VA determines is needed based on the information submitted and the
Schedule. In addition to payment or reimbursement rates for specific
types of adaptive equipment listed in the Schedule, VA would pay or
reimburse for roadside service, waste disposal fees, and hourly labor
rates listed in the Schedule, subject to this section. Payment or
reimbursement rates would be based on the information submitted, the
Schedule in effect on the date installation, reinstallation,
replacement, or repair is complete and the characterization of the
equipment as new, used, or unlisted.
Proposed paragraph (b)(3) would establish how VA would use the
Schedule for calculating the amount reimbursed to eligible persons or
payments made to registered providers for labor costs. VA proposed
creating a Schedule that would set national payment/reimbursement rates
utilizing the high cost itemized in National Mobility Equipment Dealers
Association's (NMEDA) Average Price Survey, which we stated was
published annually. One commenter requested that VA correct the
reference in the proposed rule to how often the NMEDA's Average Price
Survey is published because that survey is conducted and published
every other year. We thank the commenter for the correction and clarify
that this was a misstatement in the proposed rule rather than a
substantive misunderstanding; VA will use the most recently conducted
and published survey. However, as this reference to how often the
survey is published is not reflected in regulatory language, we make no
changes based on this comment.
In the preamble for the proposed rule we included an example of a
Schedule, which was intended to provide the public an indication of
what the Schedule would look like and the types of adaptive equipment
that may be listed consistent with what is listed in NMEDA's Average
Price Survey, and payment or reimbursement rates for adaptive equipment
or other related services. We used data from the 2018 Average Price
Survey to compile this example.
One commenter stated that the Schedule as printed in the proposed
regulation and the proposed definition at Sec. 17.157 departs from the
statutory definition in 38 U.S.C. 3901, and that VA should explain its
departure from the statutory language. As VA did not propose to define
the term ``schedule,'' and given the remaining context of the comment,
we assume the commenter was referring to the definition of ``adaptive
equipment'' as proposed. We reiterate from our response above that the
term ``adaptive equipment'' as proposed in Sec. 17.157 is consistent
with the definition in 38 U.S.C. 3901(2). Further, the Schedule as
printed in the proposed rule is not limited to items
[[Page 51227]]
specifically included in the statutory definition, although the
equipment and services found in the sample Schedule are wholly within
the definition of adaptive equipment found in the statute and
implementing regulation. We make no changes based on this comment.
One commenter stated that the Schedule published in the preamble
for the proposed rule is based on data collected nearly two years ago.
The commenter recommended that VA's proposed Schedule utilize the most
current survey of this type.
As we noted in our discussion of the proposed rule, the Schedule we
included in the preamble is intended to be an example of what the final
version would look like. We agree that the final Schedule published in
conjunction with the final rule should be based on the most current
data. VA believes there is some confusion on this issue created by a
drafting error in proposed paragraph (b)(7) where we stated that ``VA
will establish the Schedule for each fiscal year after September 30,
2019 and publish that Schedule on a publicly accessible page on the
<a href="http://www.prosthetics.va.gov">www.prosthetics.va.gov</a> website.'' The reference to September 30, 2019,
is an artifact from an earlier internal VA draft of the proposed rule.
We amend paragraph (b)(7) to state that VA will establish the Schedule
on July 17, 2024 based on the most recent available data and each
fiscal year thereafter, and publish that Schedule on a publicly
accessible page on the <a href="http://www.prosthetics.va.gov">www.prosthetics.va.gov</a> website.
In paragraph (b)(4) we proposed addressing payment or reimbursement
for installation of new adaptive equipment, where paragraph (b)(4)(i)
states that VA will pay the lesser of the amount for the new adaptive
equipment listed in either a final itemized: (1) Invoice, (2) paid
receipt, or (3) bill of sale for the purchase; or (4) the amount listed
in the Schedule. One commenter asked whether paragraph (b)(4)(i)(4)
permits a veteran to be reimbursed at the schedule rate if the price of
certain adaptive equipment is not set out separately in the receipt of
a new vehicle because such equipment has already been installed and
included in the overall cost of the vehicle (such as air conditioning
or power steering). We clarify that paragraph (b)(4)(i)(4) does provide
that VA will reimburse at the schedule rate, which would address
situations where the adaptive equipment is already installed on a new
vehicle and the price of such equipment is not separately itemized as
provided in paragraphs (b)(4)(i)(1) through (3).
We make no changes based on this comment.
Proposed paragraph (b)(4)(i) states that VA will pay the lesser of
the amount for the new adaptive equipment listed in either a final
itemized: (1) Invoice, (2) paid receipt, or (3) bill of sale for the
purchase; or (4) the amount listed in the Schedule. One commenter
stated that VA should place the Schedule reference first in this
subsection, effectively making the Schedule the default assumption for
reimbursement given modern invoicing requirements and dealer practices.
Paragraph (b)(4)(i) is not intended as a hierarchical list. The
Schedule amount is not the default preference as it relates to payment
or reimbursement amounts. We make no change based on this comment.
In paragraph (b)(5) we proposed addressing payment or reimbursement
for installation and repair of used adaptive equipment. We proposed
that for used adaptive equipment listed in the Schedule that is more
than one (1) year old from the date of manufacture VA will depreciate
it by twenty (20%) percent per year from the time the equipment was
pre-installed or installed as new on an automobile or other conveyance
to the time of its reinstallation for which reimbursement or payment is
being sought for a period up to five (5) years. VA would reimburse an
eligible person, who meets the requirements of (b)(2)(i) or (ii), or
pay a registered provider who meets the requirements of (b)(2)(iii) the
lesser of the amount of the adaptive equipment listed in the final
itemized invoice, paid receipt, or bill of sale for the purchase or the
amount listed in the Schedule reduced by twenty (20%) percent for each
year from the time the equipment was pre-installed or installed on the
automobile or other conveyance for a period up to five (5) years. We
proposed that VA would reimburse or pay any labor costs consistent with
paragraph (b)(3) of this section, but would not reimburse or pay labor
costs for used equipment that is more than five (5) years old from the
date of manufacture.
One commenter argues that the proposed rule regarding depreciation
is a drastic departure from current practice, and that VA has
accelerated the depreciation schedule to the detriment of veterans with
disabilities but has not explained its departure from its long-standing
practice. The commenter references a VHA policy regarding reimbursement
for adaptive equipment when used vehicles are purchased.
The VHA policy the commenter references is VHA Handbook 1173.4
Automobile Adaptive Equipment Program, which bases the reimbursement
rate for prescribed adaptive equipment on a used vehicle on the age of
the vehicle regardless of the age of the adaptive equipment. However,
VHA determined that adaptive equipment depreciates at a faster rate
than the vehicle itself and the functional lifespan of that equipment
is five years. Because of the finite functional lifespan of adaptive
equipment, VA does not recommend use of any specific adaptive equipment
older than five years to ensure the continued safety and functionality
of a modified automobile and adaptive equipment. VA's adoption of a 20%
annual depreciation standard for reimbursement or payment for used
adaptive equipment reflected in the proposed rule accounts for the
five-year functional lifespan of the adaptive equipment which also
aligns with eligible persons being entitled to new adaptive equipment
at the end of a four-year period (in other words, every five years). We
make no changes based on this comment, but do note that VHA Handbook
1173.4 will be rescinded and replaced with updated guidance upon this
final rule being effective. We note that VHA Handbook 1173.4, paragraph
13 is similar to VBA's policy, VA Manual MP4, Part IV, Chapter 18,
section 18A.03, which provides payment information for prescribed
adaptive equipment on a used vehicle on the age of the vehicle
regardless of the age of the adaptive equipment. We will work with VBA
to harmonize its guidance with VHA policy and regulation following
publication of this rulemaking.
One commenter stated that the deprecation rule affects
reimbursement for repair of adaptive equipment, and that decreasing the
depreciation period is unreasonable and contradicts 38 U.S.C. 3902(c)
which requires reimbursement for repair of adaptive equipment, with no
restriction on the age of the equipment.
We do not agree. Section 3902(c) begins with the language ``[i]n
accordance with regulations that the Secretary shall prescribe,'' to
further mandate, among other things, that VA repair adaptive equipment.
This is discretionary language that provides VA authority to determine
conditions related to that repair, to include establishing and
modifying a depreciation period associated with reimbursements of
repair of adaptive equipment. Paragraph (c) of 38 U.S.C. 3902 must also
be read in conjunction, and harmonized, with other provisions of
Chapter 39. VA must provide each eligible person the adaptive equipment
deemed necessary to ensure that the
[[Page 51228]]
eligible person will be able to operate the automobile or other
conveyance in a manner consistent with such person's own safety and the
safety of others. See 38 U.S.C. 3902(b)(1). Adaptive equipment, like
any other automotive component, experiences wear and tear after
installation from normal use as well as any conditions specific to the
environment in which it must operate. In addition, installed adaptive
equipment has a finite service life which can be maintained or extended
by component repair or replacement. However, service life is reset if
the adaptive equipment is replaced, and VA believes that new adaptive
equipment is less likely to require repair in order to maintain
functionality at a level sufficient to ensure that an eligible person
can operate the automobile or other conveyance in a manner consistent
with such person's own safety and the safety of others. Further,
repeated repair of older installed adaptive equipment rather than
replacement deprives an eligible person of any medical benefit that
could accrue from design changes or improvements that a manufacturer
may incorporate into later models of that adaptive equipment. In
addition, adaptive equipment incorporates relevant standards in place
at the time of manufacture. By requiring replacement rather than repair
of adaptive equipment older than five years VA can ensure, to the
greatest extent practicable, that eligible persons have access to and
use of adaptive equipment that is manufactured consistent with up to
date quality standards. We make no changes based on this comment.
In paragraph (b)(6) we proposed addressing payment or reimbursement
for any adaptive equipment that does not appear on the Schedule but
meets the definition of adaptive equipment in Sec. 17.157.
One commenter stated that new technologies will be developed
independently of VA's Schedule maintenance, and the regulations lack
clear instructions for veterans who purchase a vehicle before the
Schedule update occurs. The commenter believes that it may be confusing
for veterans to have customized equipment lumped together with
equipment that is likely to move onto the Schedule. The commenter
provided examples of a vehicle manufacturers adding a feature that
would qualify as adaptive equipment that becomes available for purchase
starting January 1, and veterans purchasing the new equipment earlier.
Specifically, the commenter raised the issue of equitable treatment.
The commenter also expressed concern that veterans may delay vehicle
purchases until the Schedule update is published to be sure their
equipment will be included.
For adaptive equipment that is not listed on the Schedule but meets
the definition of adaptive equipment, VA will pay or reimburse the
lesser of the cost of the adaptive equipment when equal to or less than
what VA has paid for a similar item in the past or, when available, the
commercially available price for a similar item. In many cases, VA will
have paid for a similar item in the past, or VA will be able to compare
the item to other items available commercially. If the price of a
similar commercially available item is not available, or VA has not
previously paid for a similar item, VA will pay or reimburse the billed
charges. Authorizing payment of actual cost by obtaining the final
invoice, paid receipt, or bill of sale for the purchase would provide
VA with information that can be used in future revisions to the
Schedule. We make no changes based on this comment.
In proposed paragraph (b)(7) we addressed annual adjustments to the
Schedule. We proposed that VA will increase the reimbursement amounts
in the Schedule using the indices for two expenditure categories of the
Consumer Price Index (CPI) for All Urban Consumers. The index for the
expenditure category for ``motor vehicle parts and equipment'' will be
used to calculate the increase in the reimbursement amounts for
adaptive equipment on the Schedule, and the index for ``motor vehicle
maintenance and repair'' will be used to calculate the increase in the
reimbursement amounts for labor.
One commenter stated that VA should not rely on CPI to update costs
on the Schedule. The commenter stated that vehicular and adaptive
equipment technologies are evolving and will continue to evolve, and
the associated expenses must be accounted for if VA's Schedule is
intended to be accurate and credible. The commenter stated that
increasingly sophisticated automobile technology and newly developed
adaptive equipment product prices may not be accurately reflected by a
CPI-reliant update.
We do not agree. VA believes that the two CPI expenditure
categories will adequately reflect changes to both equipment and labor
costs, and we have been unable to identify any other alternate
categories that would better serve that purpose. We note that our usage
of the CPI for all urban consumers as the basis for adjusting payment
and reimbursement amounts for adaptive equipment listed on the Schedule
is consistent with the statutory scheme found at 38 U.S.C. 3902(e) for
annual adjustments for VA payments of the total purchase price of the
automobile or other conveyance under paragraph (a) of that section. We
make no changes based on this comment.
Miscellaneous
One commenter requested that VA confirm that, consistent with the
Veterans Mobility Safety Act of 2016 (Pub. L. 114-256), it will develop
a comprehensive policy that covers quality standards for providers
(both registered and unregistered) of automobile adaptive equipment
services to eligible persons; consistently apply (to both registered
and unregistered providers) those standards for safety and quality of
both equipment and installation throughout VA; and provide for third-
party certification of both registered and unregistered providers.
Another commenter requested confirmation that both evaluations and
installation reviews will be addressed in subsequent VA rulemaking. The
current rulemaking focuses on issues related to payment and
reimbursement for the installation, repair, replacement, and
reinstallation of new and used adaptive equipment. Quality and safety
standards for adaptive equipment are outside the scope of this
rulemaking. We make no changes based on these comments.
Lastly, two commenters recommended that VA engage with relevant
stakeholders on implementation of this rulemaking when it becomes
final. We make no changes based on these comments, but do note that VA
has made a longstanding commitment to internal and external
stakeholders including eligible persons, veteran services
organizations, industry representatives, and others, to engage in
meaningful dialogue regarding VA's adaptive equipment program and seek
input and advice on how best to serve our Nation's veterans. We
reiterate from the proposed rule that VA conducted public hearings with
NHTSA, industry representatives, manufacturers of adaptive equipment,
and other entities with expertise in the installation, repair,
replacement, and manufacturing of adaptive equipment or development of
mobility accreditation standards for adaptive equipment in compliance
with section 3 of Public Law 114-256. VA published a Federal Register
Notice (FRN) requesting information and comments to assist in the
development of the program required by the Act on February 2, 2017. See
82 FR 9114. VA received numerous comments from adaptive equipment
[[Page 51229]]
manufacturers, providers, trade associations, and other interested
external stakeholders. Additionally, VA met in person with several
parties, including adaptive equipment manufacturers, alterers and
modifiers; and adaptive equipment related associations who requested to
meet with VA concerning their comments to the FRN.
VA makes nonsubstantive changes to the last sentence of Sec.
17.158(b) as proposed, which characterized ``low technology'' labor.
These are editorial revisions that do not change meaning and that are
consistent with the proposed characterization of ``high technology,''
where the last sentence of Sec. 17.158(b) now reads ``In Shop (low
technology) means labor performed on or modification of adaptive
equipment devices that do not meet the definition of High Technology.''
Based on the rationale set forth in the proposed rule and in this
document, VA adopts the proposed rule as final, with changes as noted
above.
Executive Orders 12866 and 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
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. Executive Order 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rulemaking is not a significant regulatory action under Executive Order
12866, as amended by Executive Order 14094. 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.
In 38 CFR 17.157 as proposed we would define modifier to mean a
motor vehicle repair business that modifies a motor vehicle to enable a
person with a disability to operate, or ride as a passenger in, the
motor vehicle, and would define alterer to mean the same as in 49 CFR
567.3. Registered provider would also be defined to mean a
manufacturer, modifier, or alterer registered with the Department of
Transportation's National Highway Traffic Safety Administration (NHTSA)
Modifiers Identification Database (``Database'') currently available at
<a href="https://vpic.nhtsa.dot.gov/mid/home/ModifierSearch/">https://vpic.nhtsa.dot.gov/mid/home/ModifierSearch/</a>. Any manufacturer,
modifier, or alterer who is not registered would be considered an
unregistered provider. The final rule establishes a national schedule
for the maximum allowable reimbursement amounts for the listed adaptive
equipment. The schedule also includes the maximum hourly labor rates
for installation, repair, reinstallation, and replacement of this
equipment and allowable fees that VA will pay for. It also establishes
standards for applying for reimbursement or payment for items listed in
this schedule and delineate limitations on VA's payment for adaptive
equipment and related services.
The database, accessed on February 15, 2024, lists a total of 1,252
modifiers. Many modifiers reflected in the database have multiple
listings, with some having more than 15 separate listings.
In conducting this Regulatory Flexibility Act analysis, we looked
to the estimated number of modifier respondents as analyzed as part of
information collection estimates under the Paperwork Reduction Act for
OMB Control Number 2900-0188 (as associated with VA's AAE program, and
as has been submitted to OMB for review and approval), who are
requesting payment from VA for adaptive equipment. We estimate the
number of total respondents to this information collection to be 6,800
annually, of which 6,250 would be eligible persons (veterans or
servicemembers) and 550 would be the modifiers themselves. In analyzing
the Regulatory Flexibility Act effect here, and based on our proposed
definition of modifier, we will refer to these 550 as registered
providers. The final rule also addresses unregistered providers.
Unregistered providers are those that are not listed in the NHTSA
database, and VA believes it is not possible to determine an accurate
number for unregistered providers, some of which may be individuals
rather than small entities. NHTSA has advised that it does not know the
number of modifiers, alterers, or manufacturers of adaptive equipment
that have not registered in the database. For purposes of this analysis
we will assume 100 unregistered providers would provide services under
this rule.
The North American Industry Classification System (NAICS) is the
standard used by Federal statistical agencies in classifying business
establishments for the purpose of collecting, analyzing, and publishing
statistical data related to the U.S. business economy. VA has
identified three broad categories of NAICS codes that we believe
encompass the term manufacturer from the proposed rule. We define that
term to mean the same as that found at 49 U.S.C. 30102(a)(6), which
includes a person manufacturing or assembling motor vehicles or motor
vehicle equipment; or importing motor vehicles or motor vehicle
equipment for resale. While the definition of manufacturer found at 49
U.S.C. 30102(a)(6) is broad, including the manufacturing, assembly, or
import of motor vehicles, the final rule focuses narrowly on
reimbursement and payment for installation, replacement, or repair of
adaptive equipment. Applying the relevant part of the statutory
definition of manufacturer, the final rule focuses on a person
manufacturing or assembling motor vehicle adaptive equipment, or the
import of motor vehicle adaptive equipment for resale. We note here
that major automobile manufacturers do not convert automobiles or vans
for their disabled customers.
NAICS Code 336390--Other Motor Vehicle Parts Manufacturing,
comprises establishments primarily engaged in manufacturing and/or
rebuilding motor vehicle parts and accessories (except motor vehicle
gasoline engines and engine parts, motor vehicle electrical and
electronic equipment, motor vehicle steering and suspension components,
motor vehicle brake systems, motor vehicle transmissions and power
train parts, motor vehicle seating and interior trim, and motor vehicle
stampings). NAICS Code 339113, Surgical Appliance and Supplies
Manufacturing, comprises establishments primarily engaged in
manufacturing surgical appliances and supplies. Examples of products
made by these establishments are orthopedic devices, prosthetic
appliances, surgical dressings, crutches, surgical sutures, personal
industrial
[[Page 51230]]
safety devices (except protective eyewear), hospital beds, and
operating room tables. NAICS Code 423120--Motor Vehicle Supplies and
New Parts Merchant Wholesalers comprises establishments primarily
engaged in the merchant wholesale distribution of motor vehicle
supplies, accessories, tools, and equipment; and new motor vehicle
parts (except new tires and tubes).
These three NAICS codes cover a broad range of manufacturers of
either medical equipment or motor vehicle equipment, including
manufacturers VA believes are subject to this final rule. While the
categories are overinclusive we believe that analysis of the regulatory
impact based on these codes will result in a reasonable approximation
of costs or impact of the final rule on small entities engaged in the
manufacture of adaptive equipment.
Applying the small business standards promulgated in 13 CFR
121.201, a small entity for NAICS Code 336390 is 1,000 employees or
less; NAICS Code 339113 is 750 employees or less; and NAICS Code 423120
is 200 employees or less. Data compiled by the US Census Bureau from
the 2017 Statistics of U.S. Businesses (SUSB) found at <a href="https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html">https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html</a>
reflects the following for the NAICS codes:
----------------------------------------------------------------------------------------------------------------
Enterprise Estimated Estimated
NAICS code employment Number of receipts receipts per
size firms ($1,000) firm ($1,000)
----------------------------------------------------------------------------------------------------------------
336390.......................................... <1,000 3,050 37,926,230 12,435
336390.......................................... 1,000+ 99 40,676,330 410,872
339113.......................................... <750 4,343 17,141,123 3,947
339113.......................................... 750+ 37 5,086,564 137,475
423120.......................................... <200 14,510 52,776,110 3,637
423120.......................................... 200+ 8,495 200,217,265 23,569
----------------------------------------------------------------------------------------------------------------
As noted, these NAICS codes are very broad, encompassing many
aspects of either medical/surgical or automotive supplies. VA does not
know with any degree of certainty the total number of these
manufacturers who build, manufacture or import adaptive equipment. We
have estimated that the number of modifiers who would be impacted by
this final rule is 550. For purposes of this analysis we will assume
that the final rule would affect 250 manufacturers of adaptive
equipment that would qualify as a small entity. We believe this is most
likely a high estimate.
We have identified one six-digit NAISC code that would apply to
modifiers. We propose to define alterer to mean the same as provided in
49 CFR 567.3, and modifier to have a similar meaning as provided in 49
CFR 595.6(a). NAICS 5 Digit Industry 81112 Automotive Body, Paint,
Interior, and Glass Repair comprises establishments primarily engaged
in providing one or more of the following: repairing or customizing
automotive vehicles, such as passenger cars, trucks, and vans, and all
trailer bodies and interiors; painting automotive vehicle and trailer
bodies; replacing, repairing, and/or tinting automotive vehicle glass;
and customizing automobile, truck, and van interiors for the physically
disabled or other customers with special requirements. We believe NAICS
Code 811121 Automotive Body, Paint and Interior Repair and Maintenance
most closely reflects what VA, in this final rule, refers to as alterer
or modifier. Applying the small business standards promulgated in 13
CFR 121.201, a small entity for the NAICS Code series 811121 reflects
that an entity with $9,000,000 in annual receipts is considered a small
entity.
----------------------------------------------------------------------------------------------------------------
Estimated Estimated
NAICS code Enterprise employment Number of receipts receipts per
size firms ($1,000) firm ($1,000)
----------------------------------------------------------------------------------------------------------------
811121................................ ALL..................... 32,696 38,296,468 1,171,289
----------------------------------------------------------------------------------------------------------------
Data compiled by the US Census Bureau from the 2017 Statistics of
U.S. Businesses (SUSB) found at <a href="https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html">https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html</a> reflects that most, if not all, of
the 32,427 entities in NAICS Code 811121 would qualify as a small
entity based on 13 CFR 121.201.
As noted with manufacturers who may be affected by this final rule,
NAICS Code 811121 is very broad, applying to 32,427 business entities.
However, only a small percentage of those entities will be subject to
the final rule as an alterer or modifier of adaptive equipment. We
believe that this NAICS code is the appropriate code for any registered
providers not already captured by the other three codes listed above as
well as unregistered providers that would qualify as a business entity.
We believe that number is accurate for purposes of determining whether
this final rule will have a significant economic impact on a
substantial number of small entities as they are defined in the
Regulatory Flexibility Act.
Title 38 CFR 17.158 addresses limitations on payment. Paragraph (b)
would state that VA will reimburse or pay for adaptive equipment based
on the information submitted and the VA Adaptive Equipment Schedule for
Automobiles and Other Conveyances (Schedule). In addition to payment or
reimbursement rates for specific types of adaptive equipment listed in
the Schedule, VA will pay or reimburse labor costs, roadside service,
and waste disposal fees consistent with the Schedule. Payment or
reimbursement rates are based on the Schedule in effect on the date
installation, reinstallation, replacement, or repair is complete. The
Schedule establishes, inter alia, a national monetary limit on payment
or reimbursement for adaptive equipment.
The Schedule is based on results of the National Mobility Equipment
and
[[Page 51231]]
Dealers Association (NMEDA) 2021 Auto Mobility Price Survey. Out of the
334 NMEDA members who were invited to participate; 171 dealer members
met the 100% completion rate. The survey results encompass 106
individual items grouped into eight categories: vehicle conversions,
driving aids, driving controls, mobility device securements, mobility
device carriers, adaptive seating, steering & braking modifications,
and miscellaneous services and equipment. Reported returns by region:
North 21%, South 23%, West 25%, Midwest 29%, and Canada 2%.
The example of the Schedule we publish in this final rulemaking
reflects the high limit for prices reported by the 171 respondents to
the survey. The high reported price limit for individual items
reflected in the NMEDA survey is significantly higher than the low
reported price in some instances. To highlight one example, for lowered
floor conversions of mini vans, domestic powered side entry fold out
conversions reported, the high price is $41,050; U.S National average
is $37,692 and low price is $26,900. The survey results do not reflect
variations in the type of specific categories of adaptive equipment
that are included in these reported prices. Generally, there is a close
correlation between average prices and high prices reported for the
individual categories of adaptive equipment. Typically, South and
Midwest regions reported lower prices than other regions. VA believes
that the survey responses are a valid representation of regional costs
and that the number of respondents in each region supports that
conclusion.
The final rule states that VA will reimburse eligible persons
identified in 38 CFR 17.156(a) who have purchased adaptive equipment
(e.g., installations, repairs, reinstallations, replacements) from
registered providers. The eligible person must sign and submit to VA a
completed VA Form 10-1394, an itemized estimate, and provide VA with
either a final itemized invoice, paid receipt, or bill of sale for the
purchase. VA may reimburse eligible persons identified in 38 CFR
17.156(a) who have purchased adaptive equipment (e.g., installations,
repairs, reinstallations, replacements) from unregistered providers.
The eligible person must submit to VA a completed VA Form 10-1394 and a
final itemized invoice, paid receipt, or bill of sale for the purchase.
In addition, VA will pay registered providers for adaptive equipment
(e.g., installations, repairs, reinstallations, replacements) furnished
to eligible persons identified in 38 CFR 17.156(a). The eligible person
or the registered provider must submit to VA a completed VA Form 10-
1394 and an itemized estimate prior to the completion of work. The
eligible person or registered provider must provide VA with a final
itemized invoice after the work is completed. See 38 CFR
17.158(b)(2)(i) through (iii). Labor costs per hour for registered
providers are reimbursed or paid based on the lesser amount of what is
reflected in the Schedule, the estimate, or the final invoice. No
payment for labor costs would be approved for pre-installed (i.e.,
original equipment manufacturer) equipment, or labor costs billed by an
unregistered provider. See 38 CFR 17.158(b)(3).
For installation of new adaptive equipment, VA would pay or
reimburse the lesser of the amount for the new adaptive equipment
listed in either a final itemized invoice, paid receipt, or bill of
sale for the purchase, or the amount established in the Schedule. 38
CFR 17.158(b)(4).
VA will use two representative categories of adaptive equipment
costs from the 2021 NMEDA Auto Mobility Price Survey to estimate
economic impact on small entities: Domestic manual side entry in-floor
conversion and exterior transfer seats. VA believes these categories
are a reasonable representation of adaptive equipment costs. VA will
likewise analyze retail hourly labor rates (in-shop and high-tech).
Domestic Manual Side Entry In-Floor Conversion
------------------------------------------------------------------------
------------------------------------------------------------------------
Average cost................... $36,123
High cost...................... 37,800 $1,677 above Average
cost.
Low cost....................... 24,695 $13,105 below High
cost, $11,428 below
Average.
------------------------------------------------------------------------
Exterior Transfer Seat
------------------------------------------------------------------------
------------------------------------------------------------------------
Average cost................... $11,142
High cost...................... 11,545 $403 above Average.
Low cost....................... 7,500 $4,045 below High,
$10,392 below Average.
------------------------------------------------------------------------
Retail Labor Rates/Hr--In Shop Labor
------------------------------------------------------------------------
------------------------------------------------------------------------
Average........................ $127
High........................... 145 $18 above Average.
Low............................ 95 $50 below High, $32
below Average.
------------------------------------------------------------------------
Retail Labor Rates/Hr--High-Tech Labor
------------------------------------------------------------------------
------------------------------------------------------------------------
Average........................ $139
High........................... 185 $46 above Average.
Low............................ 85 $100 below High, $54
below Average.
------------------------------------------------------------------------
As noted above, VA believes that approximately 6,250 eligible
persons will apply for adaptive equipment payment or reimbursement
annually. For purposes of this analysis we are assuming a total of 550
registered providers and 100 unregistered providers will provide
services under this final rule. We do not have accurate information
readily available on regional distribution of either eligible persons,
registered providers, or unregistered providers. We will assume for
purposes of this analysis that adaptive equipment services for eligible
[[Page 51232]]
persons will be equally distributed between providers, as we believe an
analysis based on actual distribution would not impact our conclusions.
Rounding up to the whole person, each provider would provide services
to 10 eligible persons.
VA will reimburse or pay for adaptive equipment at the amount
listed in either a final itemized invoice, paid receipt, or bill of
sale for the purchase; or the amount listed in the Schedule, whichever
is less. For domestic manual side entry in-floor conversions, assuming
a provider billed at the Schedule amount, the provider would experience
a net gain of $1,677 to $13,105 per transaction over invoicing at a
different amount. Exterior transfer seat equipment costs vary from $403
to $4,045 from the High cost per transaction. Labor costs per hour vary
from $95 to $145 per hour for in shop labor, and $85 to $185 for high
tech labor. We note that unregistered providers would not be eligible
for payment for labor costs and would experience a loss of potential
revenue as a result.
Given the relatively small number of eligible persons, cost
variations for provision of adaptive equipment, and the estimate of
gross receipts for affected small entities in the identified NAICS
codes, VA believes 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. 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
Although this final rule contains provisions constituting a
collection of information under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3521), there are no provisions
associated with this rulemaking constituting any new collection of
information or any revisions to the existing collection of information.
The collection of information for 38 CFR 17.158 is currently approved
by the Office of Management and Budget (OMB) and has been assigned OMB
control number 2900-0188.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), the Office of Information and Regulatory Affairs
designated this rule as not satisfying the criteria under 5 U.S.C.
804(2).
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs--health, Grant programs--veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing homes, Philippines, Reporting
and recordkeeping requirements, Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on June 7, 2024, 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 follows:
PART 17--MEDICAL
0
1. Amend the authority citation for part 17 by adding the following:
Sections 17.156 and 17.157 are also issued under 38 U.S.C. 3901
and 3902.
Section 17.158 is also issued under 38 U.S.C. 3902 and 3903.
0
2. Amend Sec. 17.156 by:
0
a. Revising the introductory paragraph;
0
b. Revising paragraph (b); and
0
c. Removing the Authority citation at the end of the section.
The additions and revisions read as follows:
Sec. 17.156 Eligibility for automobile adaptive equipment.
Automobile adaptive equipment may be authorized if the Under
Secretary for Health or designee determines that such equipment is
deemed necessary to insure that the eligible person will be able to
operate the automobile or other conveyance in a manner consistent with
such person's safety and so as to satisfy the applicable standards of
licensure established by the State of such person's residency or other
proper licensing authority subject to the definitions and limitations
in Sec. Sec. 17.157 and 17.158.
* * * * *
(b) VA will reimburse or pay for adaptive equipment for automobiles
and other conveyances subject to the requirements of 38 CFR 17.158(b).
0
3. Revise Sec. 17.157 to read as follows:
Sec. 17.157 Definitions.
For the purposes of this part:
Adaptive equipment means equipment which must be part of or added
to a conveyance manufactured for sale to the general public to make it
safe for use by the eligible person and enable that person and the
conveyance to meet the applicable standards of licensure. Adaptive
equipment includes any item specified by the Under Secretary for Health
or designee as ordinarily necessary for any of the classes of losses or
combination of such losses specified in 38 CFR 17.156, or as deemed
necessary in an individual case for an eligible person for the
continued safety and functionality of a modified automobile and
adaptive equipment. Adaptive equipment includes, but is not limited to,
a basic automatic transmission, power steering, power brakes, power
window lifts, power seats, air-conditioning equipment when necessary
for the health and safety of the veteran, and special equipment
necessary to assist the eligible person into or out of the automobile
or other conveyance, regardless of whether the automobile or other
conveyance is to be operated by the eligible person or is to be
operated for such person by another person; and any modification of the
interior space of the automobile or other conveyance if needed because
of the physical condition of such person in order for such person to
enter or operate the vehicle.
Altered vehicle means the same as in 49 CFR 567.3.
Alterer means the same as in 49 CFR 567.3.
Manufacturer means the same as in 49 U.S.C. 30102(a)(6).
Modifier means a motor vehicle repair business that modifies a
motor vehicle
[[Page 51233]]
to enable a person with a disability to operate, or ride as a passenger
in, the motor vehicle. VA does not approve, endorse, or assess the
abilities of any modifiers to perform any requested or represented
modification services.
Registered provider means a manufacturer, modifier, or alterer
registered with the Department of Transportation's National Highway
Traffic Safety Administration (NHTSA) Modifiers Identification Database
currently available at <a href="https://www.nhtsa.gov/apps/modifier/index.htm">https://www.nhtsa.gov/apps/modifier/index.htm</a>.
Any manufacturer, modifier, or alterer who is not registered is
considered an unregistered provider.
Roadside service means emergency roadside services provided to an
eligible person performed in connection with the repair,
reinstallation, or replacement of adaptive equipment already installed
in the automobile or other conveyance. The term is limited solely to
services provided to make the adaptive equipment operational and does
not include mechanical repair of the engine or other vehicle systems,
towing, providing essential fuels and fluids such as gasoline necessary
to operate the vehicle, or providing locksmith services.
VA Adaptive Equipment Schedule for Automobiles and Other
Conveyances (``Schedule'') means the VA schedule that contains the
maximum allowable reimbursement amounts for the listed adaptive
equipment. The Schedule also includes the maximum hourly labor rates
for installation, repair, reinstallation, and replacement of this
equipment and allowable fees that VA will pay.
0
4. Revise Sec. 17.158 to read as follows:
Sec. 17.158 Limitations on assistance.
(a) General. An eligible person will not be provided adaptive
equipment for more than two automobiles or other conveyances at any one
time or during any four-year period except when, due to circumstances
beyond the control of such person, one of the automobiles or other
conveyances for which adaptive equipment was provided during the
applicable four-year period is no longer available for the use of such
person.
(1) Circumstances beyond the control of the eligible person are
those where the automobile or other conveyance was lost due to fire,
theft, accident, or court action; when repairs are so costly as to be
prohibitive; or a different automobile or other conveyance is required
due to a change in the eligible person's physical condition.
(2) For purposes of paragraph (a)(1) of this section, an eligible
person shall be deemed to have access to and use of an automobile or
other conveyance for which the Department of Veterans Affairs has
provided adaptive equipment if that eligible person has sold, given or
transferred the automobile or other conveyance to a spouse, family
member or other person residing in the same household as the eligible
person; or to a business owned by the eligible person, spouse, family
member or other person residing in the same household as the eligible
person.
(b) Basis for payment or reimbursement. VA will reimburse or pay
for adaptive equipment that VA determines is needed in accordance with
this section based on the information submitted and the VA Adaptive
Equipment Schedule for Automobiles and Other Conveyances (Schedule). In
addition to paying or reimbursing for specific types of adaptive
equipment listed in the Schedule, VA will pay, or reimburse for
roadside service, and waste disposal fees consistent with the Schedule.
Determination of payment or reimbursement rates are based on the
Schedule in effect on the date installation, reinstallation,
replacement, or repair is complete. Schedule labor rates are classified
as ``In Shop (low technology)'' or ``High Technology.'' High Technology
means labor performed on or modification of adaptive equipment devices
or systems that are capable of controlling vehicle functions or driving
controls, and operate with a designed logic system, or interface or
integrate with an electronic system of the vehicle. In Shop (low
technology) means labor performed on or modification of adaptive
equipment devices that do not meet the definition of High Technology.
(1) Payments made for adaptive equipment that is authorized under
this section shall constitute payment in full and shall extinguish the
eligible person's liability to the registered provider. The registered
provider may not impose any additional charge on the eligible person
for any adaptive equipment that is authorized under this section and
for which payment is made by VA.
(2) This paragraph sets forth what must be submitted to VA in order
for VA to reimburse or pay for adaptive equipment.
(i) Reimbursement when services performed by registered providers.
VA will reimburse eligible persons identified in 38 CFR 17.156(a) who
have purchased adaptive equipment (e.g., installations, repairs,
reinstallations, replacements) from registered providers. The eligible
person must submit to VA a completed VA Form 10-1394, an itemized
estimate, and provide VA with either a final itemized: (1) invoice, (2)
paid receipt, or (3) bill of sale for the purchase.
(ii) Reimbursement when services performed by unregistered
providers. VA will reimburse eligible persons identified in 38 CFR
17.156(a) who have purchased adaptive equipment (e.g., installations,
repairs, reinstallations, replacements) from unregistered providers.
The eligible person must submit to VA a completed VA Form 10-1394 and a
final itemized (1) invoice, (2) paid receipt, or (3) bill of sale for
the purchase.
(iii) Payments to registered providers for adaptive equipment. VA
will pay registered providers for adaptive equipment (e.g.,
installations, repairs, reinstallations, replacements) furnished to
eligible persons identified in 38 CFR 17.156(a). The following must be
submitted before VA will pay. The eligible person or the registered
provider must sign and submit to VA a completed VA Form 10-1394 and an
itemized estimate prior to the completion of work. The eligible person
or registered provider must provide VA with a final itemized invoice
after the work is completed.
(iv) In the case of any installation, repair or replacement of
adaptive equipment performed outside of the United States where an
invoice, estimate, or bill of sale is calculated in a foreign currency,
an application submitted under this paragraph must include the
conversion rate from the foreign currency to U.S. dollars, and
calculation of the invoice, estimate, or bill of sale amount in U.S.
dollars.
(3) VA will reimburse or pay labor costs as follows:
(i) For any labor costs associated with the installation of
adaptive equipment by a registered provider, VA will reimburse or pay
the lesser of:
(A) The relevant Schedule hourly labor rate, per paragraph (b) of
this section, multiplied by the number of hours listed by the
registered provider;
(B) The labor costs included in the itemized estimate; or
(C) The hourly labor rate provided by the registered provider in
the final itemized invoice multiplied by the number of hours listed by
the registered provider.
(ii) VA does not reimburse or pay labor costs for pre-installed
(i.e., original equipment manufacturer) equipment.
(iii) VA does not reimburse or pay labor costs of unregistered
providers.
(4) New adaptive equipment. VA will reimburse an eligible person
who meets the requirements of (b)(2)(i) or (ii) of this section, or pay
a registered provider who meets the requirements of (b)(2)(iii)
[[Page 51234]]
of this section for new adaptive equipment (including equipment that
has been installed or used for one year or less from the date of
manufacture listed in the Schedule) as follows:
(i) VA will pay the lesser of the amount for the new adaptive
equipment listed in either a final itemized: (1) invoice, (2) paid
receipt, or (3) bill of sale for the purchase; or (4) the amount listed
in the Schedule.
(ii) VA will reimburse or pay any labor costs consistent with
paragraph (b)(3) of this section.
(5) Used adaptive equipment. For used adaptive equipment listed in
the Schedule that is more than one (1) year old from the date of
manufacture:
(i) VA will depreciate it by twenty (20%) percent per year from the
time the equipment was pre-installed or installed as new on an
automobile or other conveyance to the time of its reinstallation for
which reimbursement or payment is being sought for a period up to five
(5) years. VA will reimburse an eligible person, who meets the
requirements of (b)(2)(i) or (ii) of this section, or pay a registered
provider who meets the requirements of (b)(2)(iii) of this section the
lesser of the amount of the adaptive equipment listed in the final
itemized invoice, paid receipt, or bill of sale for the purchase or the
amount listed in the Schedule reduced by twenty (20%) percent for each
year from the time the equipment was pre-installed or installed on the
automobile or other conveyance for a period up to five (5) years.
(ii) VA will reimburse or pay any labor costs consistent with
paragraph (b)(3) of this section, but will not reimburse or pay labor
costs for used equipment that is more than five (5) years old from the
date of manufacture.
(6) Unlisted adaptive equipment. For adaptive equipment not listed
in the Schedule but meeting the definition of adaptive equipment in 38
CFR 17.157, VA will reimburse an eligible person who meets the
requirements of (b)(2)(i) or (ii) of this section, or pay a registered
provider who meets the requirements of (b)(2)(iii) of this section:
(i) the lesser of the cost of the adaptive equipment when equal to
or less than what VA has paid for a similar item in the past or, when
available, the commercially available price for a similar item. If the
price of a similar commercially available item is not available, or VA
has not previously paid for a similar item, VA will pay or reimburse
the billed charges.
(ii) VA will reimburse or pay any labor costs consistent with
paragraph (b)(3) of this section.
(7) VA will establish the Schedule on July 17, 2024 based on the
most recent available data and each fiscal year thereafter, and publish
that Schedule on a publicly accessible page on the
<a href="http://www.prosthetics.va.gov">www.prosthetics.va.gov</a> website. VA will increase the reimbursement
amounts in the Schedule using the indices for two expenditure
categories of the Consumer Price Index (CPI) for All Urban Consumers.
The index for the expenditure category for ``motor vehicle parts and
equipment'' will be used to calculate the increase in the reimbursement
amounts for adaptive equipment on the Schedule, and the index for
``motor vehicle maintenance and repair'' will be used to calculate the
increase in the reimbursement amounts for labor. Such increases to the
Schedule for adaptive equipment and labor will be equal to the
percentage by which the respective index increased during the 12-month
period ending with the last month for which CPI data is available. In
the event that such index does not increase during such period, there
will be no change to the Schedule for the reimbursement amounts for
which the index is used to calculate increases. The amounts for the new
fiscal year will be rounded up to the whole dollar amount.
(c) Repair of used adaptive equipment. Reimbursement or payment for
a repair to an item of used adaptive equipment may be provided for
adaptive equipment installed on an automobile or other conveyance that
meets the limitations of paragraph (a) of this section. VA will pay or
reimburse labor costs associated with the repairs in accordance with
paragraph (b)(3) of this section.
(1) For repairs to used adaptive equipment, VA will reimburse the
eligible person meeting the requirements of (b)(2)(i) or (ii) of this
section as follows: the lesser of the amount of the adaptive equipment
listed in either a final itemized: (1) invoice, (2) paid receipt, or
(3) bill of sale for the purchase.
(2) For repairs to used adaptive equipment, VA will reimburse a
registered provider meeting the requirements of (b)(2)(iii) of this
section as follows: the lesser of the amount of the adaptive equipment
listed in the final itemized (1) invoice, (2) paid receipt, or (3) bill
of sale for the purchase.
(The Office of Management and Budget has approved the information
collection requirements in this section under control number 2900-
0188.)
[FR Doc. 2024-13116 Filed 6-14-24; 8:45 am]
BILLING CODE 8320-01-P
</pre></body>
</html>Indexed from Federal Register on June 17, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.