Priorities for Outpatient Medical Services and Inpatient Hospital Care

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This final rule affirms without change an interim final rule that amended VA's medical regulations. The rule established that in scheduling appointments for non-emergency outpatient medical services and admissions for inpatient hospital care, VA will give priority to veterans with service-connected disabilities rated 50 percent or greater and veterans needing care for a service-connected disability. The Veterans' Health Care Eligibility Reform Act of 1996 authorizes VA to ensure that these two categories of veterans receive priority access to this type of care. The intended effect of this final rule is to carry out that authority.

DATES:

Effective Date: June 18, 2004.

FOR FURTHER INFORMATION CONTACT:

Ruth Hoffman, Office of the Assistant Deputy Under Secretary for Health (10A5A), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, at (202) 273-8934.

SUPPLEMENTARY INFORMATION:

We published in the Federal Register on September 17, 2002 (67 FR 58528), an interim final rule amending VA's medical regulations at 38 CFR 17.49 to include a new provision establishing for certain veterans a priority for outpatient medical services and inpatient hospital care. The priority was for two groups of veterans: Veterans needing care for service-connected conditions, and veterans with service-connected disability rated at 50 percent or more. We provided a 60-day comment period that ended on November 18, 2002. We received comments from thirteen commenters, and three of them expressed support for the rule. The issues raised by the commenters are discussed below.

One commenter stated that 38 U.S.C. 1705 and 1706 prohibit the Secretary from promulgating the interim final rule. The commenter stated that the plain language of 38 U.S.C. 1705 and 1706 prohibits VA from establishing criteria to determine when health care will be accorded a veteran, and what type of health care is provided, that are unrelated to the medical needs of enrolled veterans. The commenter stated that VA has no authority to insert barriers based solely upon status and not upon medical judgment. The commenter noted that some veterans are exempted from the requirement of enrollment as a precondition for receiving VA health care, but stated that this exemption does not lead to an absolute priority in scheduling appointments for outpatient medical services and admissions for inpatient hospital care. The commenter stated that Congress intended the priority system in section 1705 to control access to VA when resources are scarce, and that the ability to enroll or disenroll veterans based on priority categories is VA's tool to ensure that care to enrollees is timely and of acceptable quality. The commenter stated that once enrolled, veterans are to be accorded health care based on medical need, and not on legal status. The commenter also stated that veterans who are unemployable are not exempted from the necessity of enrollment, and are outside the authority VA claims for the interim rule.

No changes are made based on this comment. The Veterans' Health Care Eligibility Reform Act of 1996, Public Law 104-262 (Eligibility Reform Act), supports the rule's provisions in 38 CFR 17.49 granting priority access to veterans with service-connected disabilities rated at 50 percent or greater based on one or more disabilities or unemployability and veterans needing care for a service-connected disability. Under the Eligibility Reform Act, these veterans are to be provided hospital care and medical services regardless of whether they enroll for care. The statute specifically directs the Secretary, in designing the enrollment system, to give highest priority to their needs when granting access to VA health care. The commenter asserts that veterans who are unemployable are not exempted from enrollment, but the commenter fails to note that there is a distinction between veterans determined to be unemployable for compensation purposes and veterans determined to be unemployable for pension purposes. Veterans determined to be unemployable for compensation purposes (see, e.g., 38 CFR 3.341 and 4.16) are awarded a total disability rating based on service-connected disabilities and thus would be exempted from enrollment. Other veterans, lacking sufficient service-connected disability to establish unemployability for compensation purposes, are found unemployable for pension purposes (see, e.g., 38 CFR 3.342 and 4.17), which would not provide a basis for exemption from enrollment. The reference to unemployability in § 17.49 pertains only to veterans “with service-connected disabilities rated 50 percent or greater based on * * * unemployability.” Thus, all of the veterans to whom § 17.49 applies would be exempted from enrollment.

One commenter agreed that service-connected veterans should receive timely access to care, but stated that any such change should not create further delays for the veterans currently waiting for care. The commenter discussed the Eligibility Reform Act, noting that under this law, VA offers a full range of medical benefits for eligible and enrolled veterans, and that once enrolled, veterans have access to all of the health care services offered in VA's medical benefits package. The commenter expressed a concern that the interim final rule will compound waiting times. The commenter stated that all enrolled veterans deserve timely access to health care, and stated that inadequate discretionary funding causes waiting lists. The commenter described various proposals made to Congress to strengthen the annual VA medical care budget, and suggested that waiting times can be shortened by improving third-party collections, allowing Medicare reimbursement, and making VA medical care funding a mandatory account. The commenter stated that improved funding would ensure that all veterans receive quality healthcare in a timely manner. A number of additional commenters, including one who supported the rule, described current difficulties in obtaining timely VA care. One commenter stated that all veterans should be treated equally, regardless of their service-connected condition. No changes are made based on these comments. The Secretary has authority, under the Eligibility Reform Act, to provide priority access to the veterans identified in this final rule. While our goal is to decrease or eliminate all wait periods, the final rule provides that those veterans with the highest claim to VA care, as identified by Congress, will have priority access to that care.

One commenter stated that there should be priority access for service-connected veterans with no percentage limit. One commenter indicated general support for the regulation, but suggested that priority should be given first to combat veterans with service-connected disabilities; then to all other combat veterans; and finally, to all other veterans. One commenter stated that top priority should be given to any veteran who served in a war, as well as veterans awarded the Purple Heart. As noted above, Congress has granted VA authority to provide priority access to the veterans identified in this final rule. Statutory authority does not allow VA to accord veterans priority access on the alternative bases described by the commenters.

One commenter suggested that documentation of service connection is focused on physical ailments, and that VA records do not adequately track outpatient care such as psychology. The rule does not distinguish between service-connected conditions on the basis of physical or psychological conditions. In implementing the rule, all service-connected conditions must be considered.

One commenter expressed concern that veterans who already have appointments may lose their appointment times. Under VA policy implementing this rule, cancellation of a current appointment for another veteran is not permitted to be used as a mechanism to accommodate the priority scheduling described in the final rule.

One commenter stated that the local VA facility is not following the interim final rule, and suggested that the regulation be amended to mandate immediate and punitive action against any clinic or hospital director that refuses to service all veterans for their medical conditions. The change suggested concerns agency management of its personnel, which is beyond the scope of this rulemaking.

One commenter stated that veterans should not be required to pay any copayments for medications or medical services at VA facilities. Congress requires VA to charge copayments for certain hospital care and medical services. The issue of whether copayments should be charged is not within the scope of this rulemaking.

For the reasons stated above, no changes are made based on these comments.

Based on the rationale set forth in the preamble to the interim final rule and in this preamble, we are adopting the provisions of the interim final rule as a final rule without change.

Administrative Procedure Act

This document affirms without any changes an interim final rule that is already in effect. Accordingly, we have determined under 5 U.S.C. 553 that there is good cause for dispensing with a delayed effective date based on the conclusion that such procedure is impracticable and unnecessary.

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This final rule would have no such effect on State, local, or tribal governments, or the private sector.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Secretary hereby certifies that this regulatory amendment would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This amendment would not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers for the programs affected by this document are 64.005, 64.007, 64.008, 64.009, 64.010, 64.011, 64.012, 64.013, 64.014, 64.015, 64.016, 64.018, 64.019, 64.022, and 64.025.

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

Accordingly, the interim final rule amending 38 CFR part 17 which was published at 67 FR 58528 on September 17, 2002, is adopted as a final rule without change.