Rule2024-25975
Changes in Rates VA Pays for Special Modes of Transportation; Delay of Effective Date From February 16, 2025, Until February 16, 2029
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
November 12, 2024
Effective
February 16, 2029
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. VA published in the Federal Register on December 29, 2023, a final rule to delay the effective date for the rule from February 16, 2024, to February 16, 2025. This rulemaking further delays the effective date of February 16, 2025, to February 16, 2029.
Full Text
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<title>Federal Register, Volume 89 Issue 218 (Tuesday, November 12, 2024)</title>
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[Federal Register Volume 89, Number 218 (Tuesday, November 12, 2024)]
[Rules and Regulations]
[Pages 88888-88889]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25975]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 70
RIN 2900-AS19
Changes in Rates VA Pays for Special Modes of Transportation;
Delay of Effective Date From February 16, 2025, Until February 16, 2029
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. VA published in the Federal
Register on December 29, 2023, a final rule to delay the effective date
for the rule from February 16, 2024, to February 16, 2025. This
rulemaking further delays the effective date of February 16, 2025, to
February 16, 2029.
DATES: Effective Date: The effective date for the final rule published
February 16, 2023, at 88 FR 10032, and delayed on December 29, 2023, at
88 FR 90120, until February 16, 2025, is further delayed until February
16, 2029.
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
about 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.
After the final rule was published, VA received feedback from both
internal and external stakeholders, including VA employees, ambulance
providers, and industry experts, that more time would be necessary for
successful implementation of the rule. Specifically, delaying the
effective date was intended to accommodate unforeseen difficulties in
air ambulance broker contracting. At the time, VA believed it would be
able to enter into contracts and/or subcontract relationships with air
ambulance service providers for non-VA initiated service calls if given
more time for negotiations. 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
published a final rule on December 29, 2023, (88 FR 90120) that delayed
the effective date of the regulation by one year to February 16, 2025.
After the final rule delaying the effective date to February 2025
was published, however, VA learned through continued discussions with
industry experts, including air ambulance providers and brokers, that
contracting for emergency, non-VA initiated air transportation is not
feasible at this time. Impediments include the lack of air industry
infrastructure for air ambulance brokers to enter into subcontracts
with providers for non-VA initiated ambulance transports, as well as
the general lack of authority of non-VA individuals to enter into
orders or other contractually binding agreements for transportation on
behalf of VA.
Air ambulance providers contend that the Medicare reimbursement
rate that
[[Page 88889]]
will apply absent a contract is unsustainable for their business
operations and may result in either a reduction in the availability of
air ambulance services for both veterans and the public and/or will
place veterans at risk of receiving bills for the balance of charges
for services. As a result, VA is delaying the effective date of the
regulation by four years to allow time for VA to establish additional
protections to veterans against balance billing for non-VA initiated
air emergency ambulance transports that are reimbursed at a rate other
than actual charges. In addition, the delay will provide time for VA to
examine alternative payment methodologies for non-VA initiated air
ambulance transports. VA has determined that a 4-year delay is
necessary to ensure sufficient time to evaluate and address these
concerns, which may require additional notice and comment rulemaking.
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. As stated
previously, VA last delayed the effective date of the final rule (that
published on February 16, 2023, at 88 FR 10032) in late December 2023,
to provide additional time for air ambulance brokers to enter into
subcontracts with ambulance providers for emergency, non-VA initiated
transports. During the first few months of 2024, VA engaged in
continued discussions and further contracting efforts with the
ambulance industry generally, with a particular focus on emergent, non-
VA initiated air ambulance transportation. In the spring of 2024,
however, VA learned that contracting for emergency, non-VA initiated
air transportation is not feasible at this time due to the lack of air
industry infrastructure for ambulance brokers to enter into
subcontracts with providers for non-VA initiated ambulance transports,
as well as the general lack of authority of non-VA individuals to enter
into orders or other contractually binding agreements for
transportation on behalf of VA. As a result, VA promptly began
developing alternative courses of action to address emergent non-VA
initiated air ambulance transportation. However, due to the upcoming
effective date of the final rule, VA ultimately determined that the
best and most veteran-centric way forward would be to further delay the
final rule, to allow additional time for VA to ensure that veterans
would not be negatively impacted by balance billing from these
ambulance providers.
The final rule published at 88 FR 10032 would become effective on
February 16, 2025, pursuant to the final rule delaying its effective
date that published at 88 FR 90120. Seeking prior notice and the
opportunity for public comment on this delay is impracticable.
Specifically, VA was not aware of the need to delay the effective date
until summer of 2024. Given the process for publishing a notice of
proposed rulemaking followed by an adequate public comment period on
the proposed rule, and adequate time to respond to any comments and
publish a final rule, VA does not believe there would be sufficient
time to ensure that the new rule would be effective before February 16,
2025. As a result, the current final rule would become effective
February 16, 2025, and ambulance providers who have been unable to
contract for services would be subject to those payment methodologies,
which is likely to cause confusion, uncertainty, and possibly result in
veterans being billed directly.
Similarly, VA 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. If the new regulation becomes effective on February 16, 2025,
VA will pay the lesser of actual charges associated with an air
ambulance service or the CMS ambulance fee schedule rate for non-VA
initiated ambulance services, because separate contract rates will not
exist (as explained earlier, VA now knows that it cannot effectively
establish contractual or sub contractual relationships with air
ambulance service providers at this time for non-VA initiated emergency
transportation). Air ambulance providers contend that the Medicare
reimbursement rate that would apply is unsustainable for their business
operations and may result in either a reduction in the availability of
air ambulance services for veterans and the public, and/or place
veterans at risk for being 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).
Executive Orders 12866, 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 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>.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on October 31, 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.
Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
[FR Doc. 2024-25975 Filed 11-8-24; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on November 12, 2024.
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