Reimbursement for Emergency Treatment
| Published date | 22 February 2023 |
| Record Number | 2023-03339 |
| Court | Veterans Affairs Department |
| Section | Rules and Regulations |
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
Rules and Regulations Federal Register
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Vol. 88, No. 35
Wednesday, February 22, 2023
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 17
RIN 2900–AQ08
Reimbursement for Emergency
Treatment
AGENCY
: Department of Veterans Affairs.
ACTION
: Final rule with comments.
SUMMARY
: The Department of Veterans
Affairs (VA) is finalizing, with some
changes, an interim final rule that
amended its medical regulations
concerning payment or reimbursement
for emergency treatment for non-service-
connected conditions at non-VA
(community) facilities. This final rule
responds to public comments received
on the interim final rule and amends
VA’s emergency treatment regulations to
authorize payment or reimbursement for
coinsurance, temporarily waive the
timely filing requirements for veterans
affected by the interim final rule, and
authorize payment or reimbursement for
emergency transportation associated
with emergency treatment when VA has
paid for the emergency treatment using
a separate authority. Because the change
to § 17.1004 was not addressed in the
Supplementary Information section of
the interim final rule, VA believes the
public should have an opportunity to
comment on the change. Therefore, a
60-day comment period to address this
single topic will be provided.
DATES
:
Effective date: This final rule is
effective April 24, 2023.
Comment Date: Comments on VA
temporarily waiving the timely filing
requirement must be received on or
before April 24, 2023.
ADDRESSES
: Comments must be
submitted through www.regulations.gov.
Except as provided below, comments
received before the close of the
comment period will be available at
www.regulations.gov for public
viewing, inspection, or copying,
including any personally identifiable or
confidential business information that is
included in a comment. We post the
comments received before the close of
the comment period on the following
website as soon as possible after they
have been received: http://
www.regulations.gov. VA will not post
on Regulations.gov public comments
that make threats to individuals or
institutions or suggest that the
commenter will take actions to harm the
individual. VA encourages individuals
not to submit duplicative comments. We
will post acceptable comments from
multiple unique commenters even if the
content is identical or nearly identical
to other comments. Any public
comment received after the comment
period’s closing date is considered late
and will not be considered in the final
rulemaking.
FOR FURTHER INFORMATION CONTACT
:
Joseph Duran, Director, Policy and
Planning VHA Office of Integrated
Veteran Care (16IVC), Veterans Health
Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (303–370–1637).
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION
: In an
interim final rule published in the
Federal Register (FR) on January 9,
2018, 83 FR 974, VA amended its
medical regulations pursuant to a
decision from the Court of Appeals for
Veterans Claims (Veterans Court), Staab
v. McDonald, 28 Vet. App. 50 (2016), to
authorize reimbursement for the costs of
emergency treatment furnished in the
community for a veteran’s non-service-
connected condition when the veteran
is eligible for partial payment of these
costs under a health-plan contract.
Among other changes made, the
interim final rule clarified that VA
would not pay or reimburse for a
copayment, deductible, coinsurance, or
similar payment owed by the veteran.
38 CFR 17.1005(a). In issuing the
interim final rule, VA explained that VA
is statutorily prohibited under section
1725(c)(4)(D) of title 38, United States
Code (U.S.C.) from paying for or
reimbursing a copayment or similar
payment and VA interpreted ‘‘similar
payment’’ to include both deductibles
and coinsurance. 38 CFR 17.1005(a)(5);
83 FR 974 (January 9, 2018).
VA provided a 60-day comment
period, which ended on March 12, 2018.
Twelve comments were received, which
are described in detail in the following
section of this discussion.
Following the comment period, on
March 17, 2022, the United States Court
of Appeals for the Federal Circuit
(Federal Circuit) issued a decision,
Wolfe v. McDonough, No. 2020–1958,
on issues relating to a Writ of
Mandamus granted by the Veterans
Court. This case involved a challenge to
VA’s interpretation of 38 U.S.C.
1725(c)(4)(D) (that is, VA’s prohibition
on paying for copayments, coinsurance,
and deductibles under 38 CFR
17.1005(a)(5)). In its opinion, the
Federal Circuit interpreted 38 U.S.C.
1725(c)(4)(D) to exclude payment by VA
of deductibles, but not coinsurance, as
it found that a deductible is a similar
payment to a copayment, but
coinsurance is not.
However, the decision on the Wolfe
appeal did not specifically invalidate or
otherwise amend VA’s regulations as
they relate to the payment of
coinsurance. Subsequent to the Wolfe
decision, a petition for review was filed
at the Federal Circuit on May 4, 2022.
The petitioners in this case asked for the
court to invalidate the portion of VA’s
regulation that prohibited payment of
coinsurance. On October 25, 2022, the
Federal Circuit issued an order directing
VA to amend its regulations within 120
days to allow for the payment of
coinsurance. Kimmel v. Sec’y of
Veterans Affs, No. 2022–1754, 2022 U.S.
App. LEXIS 29615 (Fed. Cir. Oct. 25,
2022).
For the reasons below and consistent
with the Wolfe decision and subsequent
order related to the Kimmel petition,
this rulemaking will make final the
interim final rule (83 FR 974) with
changes and will permit an additional
comment period on the limited issue of
the timely filing requirement.
Public Comments
Twelve comments were received in
response to the interim final rule.
Several commenters expressed support
for the rule. The remaining substantive
comments are discussed in detail below.
Retroactivity
In the interim final rule, we stated
that judicial decisions invalidating a
statute or regulation, or VA’s
interpretation of a statute or regulation,
cannot affect prior final VA decisions,
meaning decisions that were not timely
appealed and have thus become final.
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As such, VA stated it will not
retroactively pay benefits for claims
filed under § 17.1002(f) that were finally
decided before April 8, 2016, the date of
the Veterans Court’s Staab decision. We
received multiple comments stating that
VA should apply the amendments made
in the interim final rule retroactively to
February 1, 2010, the date of enactment
of the Expansion of Veteran Eligibility
for Reimbursement Act, Public Law
111–137 (hereinafter referred to as the
‘‘2010 Act’’).
One commenter stated that VA has
the authority to consider these claims
because section 1725 provides VA with
broad authority to establish the claim
and payment process. Another
commenter stated that the Staab
decision requires VA to provide
reimbursement to veterans with claims
pending on or after February 1, 2010,
because the court stated that VA must
re-adjudicate the appellant’s claim,
which was for reimbursement for
treatment in December 2010. The
commenter also stated that a judicial
interpretation of a statute defines the
meaning of the statute as of the date of
enactment, not the date of the judicial
decision. The commenter cited to the
Federal Circuit’s decision in Patrick v.
Shinseki, 668 F.3d 1325, 1329 (Fed. Cir.
2011), to support that proposition.
We also received three comments
concerning the need for retroactive
application of the Staab decision from
members of the United States Congress.
Two of the comments were nearly
identical. One was from the United
States House of Representatives
Committee on Veterans’ Affairs and one
was from members of the United States
Senate. The comments requested that
the interim final rule include those
veterans whose claims were decided
between the date of enactment of the
2010 Act, February 1, 2010, and the date
of the Staab decision, April 8, 2016, so
that veterans can take full advantage of
a benefit Congress intended for them to
receive. The Secretary of Veterans
Affairs responded to these two
comments in letters sent to each
member of Congress who signed the two
comments. The letter stated that the
Secretary shared the concern of the
members of Congress about veterans
who, prior to the Staab decision, had
their claims for reimbursement denied
on the sole grounds that their health-
plan contracts had made partial
payments for their emergency treatment,
thereby leaving them with personal
liability for the remaining costs of that
treatment.
Under 38 U.S.C. 7105(c), a decision of
a VA agency of original jurisdiction
(AOJ) that is not appealed in a timely
manner is considered final and the
claim may not thereafter be reopened or
allowed ‘‘except as provided by
regulations not inconsistent with this
title.’’ Under 38 U.S.C. 7104(b), when a
claim is disallowed by the Board of
Veterans’ Appeals (Board), it may not
thereafter be reopened and allowed
‘‘[e]xcept as provided in section 5108 of
this title.’’ To the extent these statutes
may be construed to permit VA by
regulation to create additional
exceptions to the finality of AOJ
decisions, but not Board decisions, we
decline to exercise that authority here.
Such a rule would depart significantly
from the well-established principle,
discussed below, that new judicial
interpretations of a statute do not
provide a basis for reopening final
decisions, and it would create an unfair
distinction among claimants based upon
whether their last final decision was
issued by an AOJ or the Board.
Moreover, as explained below, other
authorities provide a basis for
addressing claims involving expenses
incurred on or after February 1, 2010, in
a manner we believe to be more
equitable and consistent with
established precedents.
There are only two statutory
exceptions to the rule of finality, new
and material evidence and clear and
unmistakable error, 38 U.S.C. 5108,
neither of which authorizes VA to
proactively re-open and re-adjudicate
finally decided claims as a result of the
Staab decision as suggested by the
commenters. See 38 U.S.C. 5108, 5109A,
and 7111; Cook v. Principi, 318 F.3d
1334, 1339 (Fed. Cir 2002). As these two
exceptions relate to the lines of
reasoning raised by the commenters
above, we do not believe that the
authority provided in section 1725
authorizes VA to re-adjudicate the
claims in a manner that is inconsistent
with 38 U.S.C. 5108, 5109A, and 7111.
In addition, we do not believe that the
Staab decision requires VA to re-
adjudicate all finally decided claims
retroactive to the effective date of the
law. Significantly, the court did not
order VA to re-adjudicate all finally
decided claims from the date of
enactment; instead, the court vacated
the Board’s decision that denied Mr.
Staab’s individual claim and ordered
VA to re-adjudicate Mr. Staab’s
individual claim, which was not finally
decided because he filed a timely
appeal. In order to adjudicate the claim
and address the court’s invalidation of
§ 17.1002(f), VA amended its payment
regulations to establish a payment
methodology for claims, like Mr.
Staab’s, that involve partial payment by
a health-plan contract. The Staab
decision did not address and does not
govern VA’s authority to apply the new
methodology to claims that were finally
decided prior to the decision.
Further, in George v. McDonough, 142
S. Ct. 1953, the Court held that
invalidation of a VA regulation after a
veteran’s benefits decision becomes
final cannot support a claim for
collateral relief based on clear and
unmistakable error. Therefore, neither
the Staab decision, nor later decisions in
the Wolfe or Kimmel matters create a
clear and unmistakable error that would
allow for readjudication of already
denied claims.
However, when an intervening and
substantive change in law occurs and
creates a new basis for entitlement to a
benefit (e.g., judicial interpretation and
invalidation of a regulation results in
expansion of entitlement to a benefit),
VA may review a new claim based on
the same facts as the finally decided
claim. Spencer v. Brown, 17 F.3d 368,
372 (Fed. Cir.) (1994). In this situation,
individuals whose claims were finally
decided prior to the change in law may
submit new claims to be adjudicated
under the revised standard. We
therefore explained to the members of
Congress that VA can reach claims that
were finally decided prior to the Staab
decision (on the sole grounds that
partial payment would be, or had been,
made under the veterans’ health-plan
contract), if the veterans or providers
file new claims for the same benefits
that were previously denied. VA further
explained that we will adjudicate claims
from providers or veterans who, due to
their awareness of the former
interpretation of the law (former
§ 17.1002(f)), chose not to file claims
because partial payment had been made
or would be made under the veterans’
health-plan contracts. The Secretary
also informed the members of Congress
that we would create a solution, through
amendatory rulemaking, to avoid denial
of these claims as untimely under the
current filing deadlines specified in
regulation. It was further explained that
all providers or veterans seeking
reimbursement under the revised
regulation would be required to submit
evidence showing the amount paid by
their health insurance plan and the
amount of the veteran’s remaining
liability. The reason for this requirement
is explained below.
The third Congressional comment
(from the Senate Committee on
Veterans’ Affairs) stated that the timely
filing requirement for these claims
should be waived completely. The
comment further stated that VA should
proactively reach out to veterans whose
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claims were denied under the previous
regulations because making veterans
refile their claims would be unduly
burdensome and create a barrier to filing
that will disproportionately impact
veterans whom the comment described
as already being vulnerable.
VA agrees that it is necessary to
provide the two groups of claimants
described above with an opportunity to
file new claims for payment or
reimbursement of emergency treatment
costs incurred in the community on or
after February 1, 2010, up to April 8,
2016 (the date of the Staab decision),
and to adjudicate these claims under the
new legal standard, subject to the one-
year filing deadline established in
§ 17.1004(f), as revised by this final rule.
To simply waive the timely filing
requirement for these claims would be
problematic, however, as it would
prevent VA from being able to reliably
forecast budgetary and other claims
processing needs relative to these
claims. Moreover, health insurance
claims are generally processed in
accordance with firm time limits
established by the governing contracts,
including those applicable to the
carriers’ appeals processes. Thus, the
amounts paid under veterans’ health-
plan contracts have already been
identified. Unless these records are no
longer retained by the carriers, this
historical information exists and can be
requested. In the alternative, the veteran
may have personal possession of these
historical records. In either event, VA
believes that a one-year filing deadline
is reasonable and gives these claimants
an adequate opportunity to seek
payment or reimbursement for costs
incurred during the covered time-
period. VA will therefore not waive the
timely filing requirement for claimants
affected by the Staab decision.
In order to address the concerns
raised, and in response to comments
that VA received on the IFR, VA will
amend § 17.1004 to afford veterans
affected by the Staab decision an
opportunity to file a new claim based on
the change in law. Specifically, VA is
amending § 17.1004(f), which currently
provides an exception to the timely
filing requirements in § 17.1004(d) for
dates of service between July 19, 2001,
and 90 days before May 21, 2012, if the
claimant files a claim for reimbursement
no later than one year after May 21,
2012. Because the time frame for the
waiver in current § 17.1004(f) has
passed, we will amend this paragraph
by removing the previous time frame for
the waiver and, in its place, allow
claimants to file a claim,
notwithstanding paragraph (d) of this
section, for reimbursement of costs of
non-VA emergency treatment rendered
on or after February 1, 2010 and more
than 90 days before February 22, 2023
for which partial payment was paid or
payable under the veterans’ health-plan
contracts, provided the claimants file
their claims for reimbursement no later
than one year after February 22, 2023.
This amendment will thus provide all
claimants affected by the Staab
decision, regardless of whether they
previously filed claims for
reimbursement, an opportunity to
submit a claim for payment or
reimbursement of the costs of non-VA
emergency treatment they received on
or after the effective date of the 2010
Act.
VA has additionally determined that
anyone who had been potentially
adversely affected by the issues raised
in the Wolfe litigation, or the subsequent
Kimmel petition, would fall within this
waiver period. Therefore, they would
also be able to seek adjudication of their
claims under the new standard. To the
extent the issues here are distinct from
those raised by the Staab case, the
inclusion within these timeframes will
still allow for those issues to be
addressed.
As a matter of prudence, and because
this precise change to § 17.1004 differs
from the interim final rule, VA is
inviting the public to comment on the
change. Therefore, a 60-day comment
period to address this single topic will
be provided.
Copayments and Similar Payments
Section 1725(c)(4)(D) prohibits VA
from reimbursing a veteran for a
copayment or similar payment that the
veteran owes a third party or is
responsible to pay under a health-plan
contract. The interim final rule
interpreted ‘‘similar payment’’ to
include deductibles and coinsurance.
We received multiple comments that
coinsurance and deductibles are not
‘‘similar payments’’ to copayments and
should be removed from the list of
payments for which VA will not provide
reimbursement. Following the public
comment period, the Federal Circuit’s
order regarding the Kimmel petition
held that coinsurance was the type of
payment envisioned by Congress that
VA would pay or reimburse while
deductibles were similar to copayments
and therefore prohibited from payment
or reimbursement pursuant to 38 U.S.C.
1725(c)(4)(D).
Consistent with this decision, we are
removing coinsurance from the list of
prohibited payments in § 17.1005(a)(5)
but will not remove deductibles from
that list.
The following discussion specifically
addresses the related comments we
received during the public comment
period on this issue.
Commenters explained that a
copayment, by definition, is
distinguishable from other forms of cost-
sharing, such as deductibles and
coinsurance, and that copayments result
in much lower liabilities than
deductibles and coinsurance. The
commenters stated that each term is a
‘‘term of art’’ with a specific, accepted,
meaning and that the term copayment
cannot be read to include these different
obligations. One commenter defined
copayment as the set dollar amount the
patient pays for care after the deductible
is paid, deductible as the amount an
insured must pay each year before the
insurance source pays its share, and
coinsurance as the percent of costs the
enrollee must pay. Another commenter
similarly defined a copayment as a
fixed, flat fee, amount paid by an
insured for each particular covered
health care service after paying any
deductible, a deductible as a fixed
amount an insured pays each year for
eligible medical services or medicines
before insurance will make any
payment, and coinsurance as a portion
of all the medical costs that an insured
must pay of all costs subject to the
coinsurance.
In Wolfe v. McDonough, No. 2020–
1958, Fed. Cir. (Mar. 17, 2022), the
Federal Circuit indicated that
copayments and deductibles were
similar payments, as they are both fixed
quantities which become known once
insurance is purchased, while
coinsurance is a variable quantity that
becomes known after medical expenses
are incurred. The Federal Circuit also
found that the legislative history
supports that deductibles were
intentionally excluded from
reimbursement as a similar payment but
coinsurance was not. Later, in the
response to the Kimmel petition, the
Federal Circuit determined that
coinsurance was the type of payment
envisioned by Congress that VA would
pay or reimburse while deductibles
were similar to copayments and
therefore prohibited from payment or
reimbursement pursuant to 38 U.S.C.
1725(c)(4)(D).
Several commenters stated that the
rules of statutory construction require
us to presume Congress meant what it
said and that, in other statutory
contexts, Congress has not used the
specific term, copayment, to include
other forms of cost-sharing. One
commenter noted that they do not
believe there is a Congressional
reference to copayments that includes
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coinsurance and deductibles. The
commenters provided the following
examples: 38 U.S.C. 1729(a)(3) uses
‘‘deductible or copayment;’’ under the
essential health benefit limitations on
cost-sharing, Congress refers to
‘‘copayments and coinsurance;’’ in
establishing premium and cost sharing
subsidies for low-income individuals,
Congress made reference to copayment
separately from coinsurance; and in the
statutory authority for VA to require
copayments for medications, the law
referred to copayments and did not
include coinsurance or deductibles. The
commenters stated that had Congress
intended deductibles or coinsurance be
excluded from reimbursement, it would
have used such language.
To clarify, VA does not believe that
Congress intended for the term
‘‘copayment’’ in section 1725(c)(4)(D) to,
by itself, encompass deductibles.
Instead, VA believes it is the phrase ‘‘or
similar payment’’ that is intended to
include other forms of cost sharing,
such as deductibles. VA agrees that we
must presume Congress meant what it
said, and in section 1725, Congress said
‘‘copayment or similar payment.’’ A
statute must be interpreted, ‘‘so that
effect is given to all its provisions, so
that no part will be inoperative or
superfluous, void or insignificant.’’
Corley v. United States, 556 U.S. 303,
304 (2009). To find meaning in the
phrase ‘‘similar payment,’’ VA must
identify and consider other payments
for which a veteran is responsible under
a health plan contract. VA can find no
payment more similar to a copayment
than a deductible, which serves as a
fixed-amount cost-sharing measure to
which the insured freely agrees to pay
as a condition of insurance coverage. As
noted in Wolfe, similar payments
necessarily means that some payments
that are not copayments are similar
payments. The Federal Circuit found
that deductibles were envisioned by
Congress to be similar to copayments
and thus prohibited from payment or
reimbursement. The Federal Circuit
looked at the legislative history for 38
U.S.C. 1725 and determined that it
supports that Congress intentionally
excluded deductibles from
reimbursement as a similar payment.
Another commenter stated that VA
did not provide any legal authority to
broaden the statutory language in
section 1725(c)(4)(D) to include
deductibles and coinsurance. We
disagree. First, Congress explicitly gave
VA broad authority to implement
section 1725 in regulations prescribed
by the Secretary. Specifically, section
1725(c)(1)(B) provides that, ‘‘The
Secretary, in accordance with
regulations prescribed by the Secretary,
shall . . . delineate the circumstances
under which such payments may be
made . . . .’’ Moreover, as crafted, the
language of section 1725(c)(4)(D) plainly
allows for other payments to be
included within its scope, provided
they are similar to the one named. As
noted throughout this discussion, the
Federal Circuit in Wolfe and Kimmel
acknowledged that inclusion of the
phrase ‘‘similar payments’’ in the statute
necessarily means that some payments
that are not copayments are similar
payments. The Federal Circuit
interpreted section 1725(c)(4)(D) and its
legislative history to determine that a
deductible is a similar payment to a
copayment and thus excluded from
payment or reimbursement. For these
reasons, we believe that VA has
authority to interpret the phrase ‘‘or
similar payment’’ in paragraph (4)(D) of
subsection (c).
The commenters also stated that the
legislative history and the Veterans
Court’s Staab decision provide that the
purpose of the 2010 Act was to make
VA responsible for the cost (of the
emergency treatment) exceeding the
amount payable or paid by the third-
party insurer, noting that a deductible or
coinsurance amount is not payable or
paid by the third-party insurer. VA
agrees that part of the legislative history
related to the 2010 Act and the Staab
decision each reflect an expectation or
understanding that the 2010 Act
amendments effectively enable VA to
pay the entire remainder owed to the
emergency provider after partial
payment is made or payable under the
veteran’s health-plan contract. However,
even if this were intended, the 2010 Act
did not accomplish this goal. The still
relevant provisions of section 1725(c)
explicitly require VA to limit the
amount of reimbursement available
under section 1725. Indeed, the header
for subsection (c) is ‘‘Limitations on
reimbursement.’’ To this end, section
1725(c)(1) directs VA to promulgate
regulations that limit payment, to
include establishing a maximum
amount payable under section 1725. In
addition, section 1725(c)(4)(D) expressly
prohibits VA from reimbursing a veteran
for any copayment or similar payment
that the veteran owes the third party or
for which the veteran is responsible
under a health-plan contract. These,
along with the other likewise intact
provisions of subsection (c), reflect a
continuing requirement to limit the
budgetary impact of section 1725. If the
drafters of the 2010 Act believed that
VA’s secondary payment would cover
all of the eligible veterans’ out-of-pocket
costs, we conclude that they failed to
execute all the amendments needed to
accomplish this, and the Federal Circuit
confirmed this by its interpretation of
the statute.
Multiple commenters mentioned that
the bar on reimbursement of deductibles
and coinsurance acts as a disincentive
to purchasing health insurance
coverage. They suggest that the
exclusion of veterans’ out-of-pocket
(cost sharing) costs could result in
veterans foregoing the purchase of
health insurance, leaving VA with
increased costs as their sole payer. One
of the commenters stated that veterans
will always have personal liability if
they have Medicare Part B and the
proposed change will do nothing to
resolve the veteran’s personal liability.
The commenter further stated that it
will encourage veterans to discontinue
their Medicare Part B and recommends
that the rule require veterans to have
Medicare Part B.
As discussed above, VA interprets
‘‘similar payments’’ to include
deductibles; thus, VA does not have
authority to reimburse these costs. As a
matter of policy, VA interprets ‘‘similar
payments’’ this way in order to avoid
any conflict with the Federal Circuit.
VA acknowledges that veterans who do
not have health insurance would likely
pay no out-of-pocket costs while
veterans who do have health insurance
may have out-of-pocket costs resulting
from their cost share obligations.
Nonetheless, VA does not believe that
this potential disparity will deter
veterans from purchasing health
insurance. Most veterans enrolled in the
VA health care system have an
additional type of health insurance
coverage. It seems unlikely that they
would forego their health insurance
protection for all other medical
conditions, which are likewise subject
to their plan’s deductible requirements,
merely to avoid having to pay
copayments and similar payments owed
in connection with the receipt of non-
VA emergency treatment. Again, these
are cost shares that they freely agreed to
pay in exchange for health insurance
coverage independent of their VA
benefits. Ultimately, whether to keep or
obtain health insurance is a personal
financial decision for veterans enrolled
in VA’s health care system to make
based on their own needs, financial
capability, and preferences.
As it concerns veterans who are
eligible for reimbursement under
section 1725 and who also have
coverage for emergency treatment under
Medicare Part A, VA has no authority to
require that they be enrolled in
Medicare Part B as a condition of
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payment or reimbursement under
section 1725.
Based on these comments and the
Wolfe decision and Kimmel order, we
are removing coinsurance from the list
of prohibited payments in
§ 17.1005(a)(5) but will not remove
deductibles from that list. We are also
retaining the ‘‘or similar payment’’
qualifier on the end of the list to
maintain the flexibility originally
envisioned by Congress’s initial
inclusion of the phrase in section 1725.
Retaining ‘‘or similar payment’’ allows
VA to be flexible in the future, should
some new type of health care cost
sharing arise.
Payment Limitations
Several commenters raised a concern
that VA’s payment limitation of 70
percent of the Medicare fee schedule
rate was too low. The commenters
requested that VA amend the rule to pay
the fair market value for the services
rendered. One commenter explained
that payment below the fair market
value could jeopardize the financial
viability of the emergency care safety
net.
To clarify, the scope of this
rulemaking is to amend VA’s
regulations to comply with case law
interpreting the scope of VA’s
reimbursement authority. Therefore,
this rulemaking only affects
reimbursement when the veteran has
partial payment from a third party; it
does not affect the amount VA will pay
when the veteran has no other coverage,
which is governed by a different
provision of the payment regulation.
When the veteran has partial payment
for the emergency treatment expenses
from a third party, VA is the secondary
payer. Under the amended payment
regulation, VA pays the lesser of: the
amount for which the veteran is still
personally liable after payment by a
third party (including a health-plan
contract); or 70 percent of the applicable
Medicare fee schedule rate.
For example, a veteran has an initial
liability of $100 dollars. 70 percent of
the Medicare fee schedule is $70 and
the veteran’s health-plan contract paid
the provider 80 percent of the Medicare
fee schedule rate ($80). If the veteran
has remaining liability to the provider
(other than a copayment, deductible or
similar payment), then VA would still
be able to pay up to $20 towards the
veteran’s remaining liability even after
the payment of $80 from the health plan
contract. Although VA can pay up to 70
percent of the Medicare fee schedule,
which is $70, the veteran’s remaining
liability in this instance would only be
$20 after deducting the health-plan
contract’s payment of $80 from the $100
liability. As secondary payer, VA’s
maximum allowable amount is in
addition to the amount already paid (or
payable) by the health-plan contract. For
this reason, VA believes that emergency
treatment providers will ultimately
receive at least fair market value for
their services; consequently, this final
rulemaking will not jeopardize the
financial viability of emergency
departments. VA does not make any
changes to the rule based on these
comments.
Other commenters stated that the low
reimbursement rate would encourage
health care professionals to deny
treatment to veterans for fear of
inadequate reimbursement. All veterans
affected by this rulemaking already have
coverage for emergency treatment
expenses under their health-plan
contracts, with rates presumably
negotiated (by the carriers and
providers) to ensure adequate
reimbursement. Again, VA is secondary
payer to these contracts. The combined
payment by the primary payer (health-
plan contract) and VA for the same
emergency treatment episode should
thus provide adequate reimbursement,
as discussed above.
In addition, a Medicare-participating
hospital with an emergency department
that denies emergency care to an
individual due to the individual’s
inability to pay would arguably violate
the Emergency Medical Treatment and
Active Labor Act (EMTALA), 42 U.S.C.
1395dd, as amended. Under EMTALA,
if any individual (regardless of
Medicare-eligibility) seeks examination
or treatment for a medical condition at
a covered hospital, then the hospital
must provide a screening examination
to determine whether an emergency
medical condition exists. If so, the
hospital is, in general, required to
furnish needed emergency treatment
until the individual is stabilized and
able to be transferred irrespective of the
patient’s ability to pay. For these
reasons, we do not make any changes to
the rule based on these comments.
Another commenter stated that
Congress did not intend for VA to set
such a low rate and cited to a study that
found that in-network emergency
physician claims were paid at 297
percent of the Medicare rate and out-of-
network emergency physicians charged
an average of 798 percent of the
Medicare rate. The legislative history
from when 38 U.S.C. 1725 was
originally enacted demonstrates that
Congress intended for VA to set a rate
that is lower than the Medicare fee
schedule rate. The legislative history
reads, ‘‘The Committee thus envisions
that VA would establish rates that are
significantly below those paid under the
Medicare or Medicaid system (or under
38 United States Code, section 1728).’’
House Report 106–237 (July 16, 1999).
Therefore, VA believes that the rate it
set is precisely what Congress
envisioned, and we do not make any
changes to the rule based on this
comment.
The commenter also noted that the
interim final rule permits emergency
providers to reject the payment amount,
which would presumably leave the
veteran fully responsible for the
payment. Given the low rate, the
commenter feared that these providers
may reject the amount and seek full
payment from the veteran. As noted
above, VA has been paying 70 percent
of the applicable Medicare fee schedule
rate in instances when VA is the sole
payer ever since the regulations were
effective on May 29, 2000 (66 FR 36470)
(unless, of course, the amount owed to
the provider was less than 70 percent of
the Medicare fee schedule rate, thereby
requiring the lesser amount to be paid).
Since that time, very few, if any, of VA’s
payments have been rejected,
presumably because these debts would
have otherwise been written off by the
providers. Because emergency providers
may view the new cohort of veterans
covered by the court’s decision as
having the ability to self-pay more than
the VA allowable amount, we have
devised a payment methodology to
reduce the likelihood that the providers
will reject VA payment. Emergency
providers will be receiving greater than
70 percent of the Medicare fee schedule
rate; again, they will receive a combined
payment comprised of the third party’s
payment and VA’s payment. At this
time, and in the absence of compelling
evidence requiring a changed approach,
we decline to make any changes to the
rule based on this comment.
One commenter sought clarification
on liability for cost-sharing. In
particular, the commenter asked
whether a veteran’s cost sharing
responsibilities are also extinguished if
a health care provider accepts payment
from VA for the emergency treatment.
We clarify that some of the veteran’s
cost sharing obligations, such as a
copayment or deductible, are not
extinguished by VA payment. Those are
contractual payment obligations, non-
reimbursable by VA, that are owed by
the veteran to the provider, consistent
with the terms of the veteran’s health-
plan contract. We do note however,
under this amended rule, VA will pay
or reimburse for a veteran’s coinsurance
as part of its underlying payment for
medical treatment. Therefore,
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acceptance of payment from VA will
extinguish any coinsurance
responsibility on the part of the veteran.
See 38 CFR 17.1005(a)(4). We do not
make any changes to the rule based on
this comment.
Miscellaneous
One commenter requested that VA
provide clarity on two provisions in the
regulations. The first provision is the
prudent layperson standard in 38 CFR
17.1002(b). The regulation provides
that, in order to receive reimbursement,
the veteran must have sought care for
which a prudent layperson would have
reasonably expected that delay in
seeking immediate medical attention
would have been hazardous to life or
health. The commenter recommended
that VA provide a list of services that
would meet this standard to ensure that
emergency treatment claims filed by
veterans are not improperly rejected.
The commenter suggested that VA adopt
the list from the American College of
Emergency Physicians. VA appreciates
the commenter’s suggestion, but the
scope of the rulemaking is narrowly
limited to amending VA’s regulations to
comply with the Staab and Wolfe
decisions and the Kimmel order by
permitting reimbursement when the
veteran has partial payment from a
health-plan contract. Therefore, this
comment is beyond the scope of this
rulemaking, and we do not make any
edits based on the comment. However,
VA will continue to monitor the
program and consider whether
additional rulemaking may be necessary
in the future.
The commenter also requested that
VA amend the rule to affirmatively state
that VA cannot deny a claim after a
veteran passes away if the emergency
medical treatment is furnished prior to
the veteran’s death. The commenter
noted that the interim final rule states
that reimbursement is not available if
death occurs before emergency
treatment is provided. We want to
clarify that the interim final rule does
not state that reimbursement is not
available if death occurs before
emergency treatment is provided.
Instead, the interim final rule provides
that VA can provide reimbursement for
emergency transportation even if the
veteran passes away before emergency
treatment is rendered at the community
hospital. While VA appreciates the
suggestion, VA believes that the interim
final rule, in conjunction with the
explanation provided here, is
sufficiently clear that reimbursement
can be provided even if the veteran
passes away. Therefore, we do not make
any changes to the rule based on this
comment.
One commenter expressed a concern
about whether and how VA informs a
veteran when the veteran has an
outstanding debt with a medical facility
and the veteran’s first notification
comes in the form of a debt collection
letter. The commenter explained that a
veteran received a letter from a local
hospital and it took four months to
determine that there was no outstanding
balance on the veteran’s account and the
letter was sent as a result of a
bookkeeping error on the part of the
hospital. Although VA is sympathetic to
the veteran we note that this is scenario
is not representative of most instances
of reimbursement for emergency
treatment. However, this rulemaking
expands eligibility criteria for
reimbursement for the costs of
emergency treatment rendered by
community emergency providers to
veterans for their non-service-connected
conditions. Because the comment is
beyond the scope of this rulemaking, we
do not make any changes to the rule
based on this comment.
One commenter inquired as to why
they were taken to a community
hospital when a VA medical center was
less than eight minutes away. The
commenter received a bill for the
transportation to the community
hospital. The commenter also discussed
the poor treatment rendered by the
community hospital, as perceived by the
commenter. To the extent that the
commenter seeks reimbursement for the
costs of transport to the community
hospital, we invite the commenter to file
an emergency transportation claim
under section 1725 as implemented by
38 CFR 17.1003 and 17.1004. But again,
because this rulemaking only expands
eligibility requirements for
reimbursement of the costs of
emergency treatment rendered by
community hospitals for veterans’ non-
service-connected conditions, this
comment is beyond the scope of the
rulemaking. No changes are made to the
rule based on these comments.
We also received one comment
regarding Executive Order 13771. This
rulemaking was not affected by
Executive Order 13771. Therefore, this
comment is beyond the scope of the
rulemaking, and we do not make any
changes to the rule based on the
comment.
Changes to § 17.1003
While we did not receive any public
comments on this issue we are
amending § 17.1003(a)(1) as a logical
outgrowth of the interim final rule to
add VA as a clarifying example of payor
of emergency treatment which would
not forestall eligibility for emergency
transportation.
In the interim final rule, we amended
§ 17.1003 to add paragraph (a)(1) which
provides that payment or
reimbursement for ambulance services
may be made if payment or
reimbursement would have been
authorized under 38 U.S.C. 1725 for
emergency treatment had the veteran’s
personal liability for the emergency
treatment not been fully extinguished by
payment by a third party, including
under a health-plan contract. VA
amended § 17.1003 in the interim final
rule to address a long-standing tension
in § 17.1003 with VA’s interpretation
that emergency transportation is part of
emergency treatment. VA has
historically interpreted the phrase
‘‘emergency treatment’’ in section
1725(f)(1) to include emergency
transportation if the transportation is
provided as part of the emergency
medical treatment administered at the
non-VA facility. However, § 17.1003 did
not allow VA to pay for the
transportation if the liability for the
emergency treatment had already been
extinguished by a third party. The
interim final rule explained that if VA’s
sole basis to deny a transportation claim
is satisfaction by a third party of the
related emergency treatment claim, even
if that transportation claim meets all of
the other requirements for
reimbursement under 38 U.S.C. 1725,
VA would be, in effect, treating the
emergency transportation claim
differently than the related emergency
treatment claim. Therefore, in order to
make § 17.1003 consistent with VA’s
interpretation that the emergency
transportation is part of the claim for
emergency treatment, VA amended
§ 17.1003 to ensure that payment or
reimbursement for emergency
transportation would not be prohibited
on the sole basis that the emergency
treatment claim was fully extinguished.
While in the interim final rule VA only
referenced liability being extinguished
by a third party, VA believes that the
public was sufficiently put on notice
that the intended effect of the change
was to ensure emergency transportation
under § 17.1003 would not be
prohibited on the sole basis that the
emergency treatment was fully
extinguished by another source.
In this rulemaking we revise
§ 17.1003(a)(1) by adding the phrase ‘‘or
by VA’’ after health plan contract. This
addition is necessary to ensure that,
consistent with the interpretation
discussed above, VA can pay or
reimburse for emergency transportation
under section 1725 even if VA
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extinguishes the liability for the
underlying emergency treatment using a
different authority, such as under VA’s
Community Care Program at 38 CFR
17.4020(c).
Thus, we are revising § 17.1003(a)(1)
to make clear that a veteran may be
reimbursed for ambulance services
made for transporting a veteran to a
facility if payment or reimbursement
would have been authorized under
section 1725 for emergency treatment
had the veteran’s personal liability for
the emergency treatment not been fully
extinguished by a third party, to include
under a health plan contract, or by VA.
Based on the rationale set forth in the
Supplementary Information sections of
the interim final rule and this final rule,
VA is adopting as final the interim final
rule with the changes stated in this final
rule.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563
direct 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. The Office of
Information and Regulatory Affairs has
determined that this rule is a significant
regulatory action under Executive Order
12866. The Regulatory Impact Analysis
associated with this rulemaking can be
found as a supporting document at
www.regulations.gov.
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). This rule would not
cause a significant economic impact on
small entities since this exemption is
limited to individual veterans who VA
determines to be affected by the Stabb
or Wolfe cases. Only individual veterans
are effects by the virture of being able
to submit claims for coinsurance
reimbursement. Individuals are not the
small entities, they cannot be broken out
by appropriate size standard, number
affected, and business revenue.
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. Although some
eligible entities or providers that
furnished emergency care and services
to veterans under this authority may be
considered small entities, there will be
no significant adverse economic impact
because this rule does not create a new
payment obligation on such entities; it
merely creates a new payment
methodology for services already
rendered.
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
This final rule involves a collection of
information that is controlled by the
requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3521). While there are no provisions
associated with this rulemaking
constituting a new collection of
information, the changes to
reimbursement may constitute
substantive revisions to the existing
collection of information. The Office of
Management and Budget (OMB)
previously approved a Paperwork
Reduction Act (PRA) clearance for
information collected pursuant to 38
U.S.C. 1725 under OMB control number
2900–0620, which expired on July 31,
2018. The collection of information is
being processed for a reinstatement of
the PRA clearance from OMB through a
separate Federal Register notice (FRN)
published in the Federal Register. The
FRN will provide the public with an
opportunity to comment on the
information collection and any revisions
for Payment or Reimbursement for
Emergency Services for Nonservice-
Connected Conditions in Non-
Department Facilities. A final FRN also
will be published in the Federal
Register when the collection of
information is submitted to OMB for
approval of the PRA clearance renewal.
Congressional Review Act
Under the Congressional Review Act,
this regulatory action may result in an
annual effect on the economy of $100
million or more, 5 U.S.C. 804(2), and so
is subject to the 60-day delay in
effective date under 5 U.S.C. 801(a)(3).
In accordance with 5 U.S.C. 801(a)(1),
VA will submit to the Comptroller
General and to Congress a copy of this
Regulation and the Regulatory Impact
Analysis (RIA) associated with the
Regulation.
List of Subjects in 38 CFR Part 17
Administrative practice and
procedure, Claims, Health care, Health
facilities, Health professions, Health
records, Reporting and recordkeeping
requirements, Travel and transportation
expenses, Veterans.
Signing Authority
Denis McDonough, Secretary of
Veterans Affairs, approved this
document on December 30, 2022, 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 interim final rule
amending 38 CFR part 17, which was
published at 83 FR 974 on January 9,
2018, is adopted as final with the
following changes:
PART 17—MEDICAL
■1. The general authority citation for
part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in
specific sections.
* * * * *
■2. Amend § 17.1003 by revising
paragraph (a)(1) to read as follows:
§ 17.1003 Emergency transportation.
(a) * * *
(1) The veteran’s personal liability for
the emergency treatment not been fully
extinguished by payment by a third
party, including under a health-plan
contract, or by VA; or
* * * * *
■3. Amend § 17.1004 by revising
paragraph (f) to read as follows:
§ 17.1004 Filing claims.
* * * * *
(f) Notwithstanding paragraph (d) of
this section, VA will provide retroactive
payment or reimbursement for
emergency treatment received by the
veteran, on or after February 1, 2010 but
more than 90 days before February 22,
2023, if the claimant was eligible for
partial payment from a health-plan
contract for the emergency treatment
and the claimant files a claim for
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reimbursement no later than 1 year after
February 22, 2023.
* * * * *
■4. Amend § 17.1005 by revising
paragraph (a)(5) to read as follows:
§ 17.1005 Payment limitations.
(a) * * *
(5) VA will not reimburse a veteran
under this section for any copayment,
deductible, or similar payment that the
veteran owes the third party or is
obligated to pay under a health-plan
contract.
* * * * *
[FR Doc. 2023–03339 Filed 2–21–23; 8:45 am]
BILLING CODE 8320–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 63
[EPA–HQ–OAR–2018–0747; FRL–6934.1–
02–OAR]
RIN 2060–AV38
National Emission Standards for
Hazardous Air Pollutants:
Miscellaneous Coating Manufacturing
Technology Review
AGENCY
: Environmental Protection
Agency (EPA).
ACTION
: Final rule.
SUMMARY
: The U.S. Environmental
Protection Agency (EPA) is taking final
action on the technology review
conducted on the Miscellaneous Coating
Manufacturing (MCM) source category
regulated under the National Emission
Standards for Hazardous Air Pollutants
(NESHAP). These final amendments
include provisions for inorganic
hazardous air pollutant (HAP) standards
for process vessels.
DATES
: This final rule is effective
February 22, 2023.
ADDRESSES
: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2018–0747. All
documents in the docket are listed on
the https://www.regulations.gov/
website. Although listed, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy. With the
exception of such material, publicly
available docket materials are available
electronically in https://
www.regulations.gov/ or in hard copy at
the EPA Docket Center, Room 3334,
WJC West Building, 1301 Constitution
Avenue NW, Washington, DC. The
Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744, and
the telephone number for the EPA
Docket Center is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT
: For
questions about this final action, contact
Ms. Angie Carey, Sector Policies and
Programs Division (E143–01), Office of
Air Quality Planning and Standards,
U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina
27711; telephone number: (919) 541–
2187; fax number: (919) 541–0516; and
email address: carey.angela@epa.gov.
SUPPLEMENTARY INFORMATION
:
Preamble acronyms and
abbreviations. Throughout this
document the use of ‘‘we,’’ ‘‘us,’’ or
‘‘our’’ is intended to refer to the EPA.
We use multiple acronyms and terms in
this preamble. While this list may not be
exhaustive, to ease the reading of this
preamble and for reference purposes,
the EPA defines the following terms and
acronyms here:
1–BP 1-bromopropane
CAA Clean Air Act
CFR Code of Federal Regulations
EJ Environmental Justice
EPA Environmental Protection Agency
FR Federal Register
gr/dscf grains per dry standard cubic feet
HAP hazardous air pollutant(s)
ICR Information Collection Request
km kilometer
MACT maximum achievable control
technology
MCM miscellaneous coating manufacturing
NESHAP national emission standards for
hazardous air pollutants
NTTAA National Technology Transfer and
Advancement Act
OMB Office of Management and Budget
PRD pressure release devices
PM particulate matter
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RTR residual risk and technology review
mg/m3 microgram per cubic meter
UMRA Unfunded Mandates Reform Act
VCS voluntary consensus standards
Organization of this document. The
information in this preamble is
organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document
and other related information?
II. Background
A. What is the statutory authority for this
action?
B. What is this source category and how
does the current NESHAP regulate its
organic and inorganic HAP emissions?
C. What changes did we propose for the
MCM source category in our June 7,
2022, proposal?
III. What is the rationale for our final
decisions and amendments for the
NESHAP for the MCM source category?
A. Inorganic HAP Standards for Process
Vessels
B. Adding 1–BP to the list of HAP
C. What are the effective and compliance
dates of the standards?
IV. Summary of Cost, Enviornmental, and
Economic Impacts and Additional
Analyses Conducted
A. What are the affected sources?
B. What are the air quality impacts?
C. What are the cost impacts?
D. What are the economic impacts?
E. What analysis of enviornmental justice
did we conduct?
V. Statutory and Executive Order Review
A. Executive Order 12866: Regulatory
Planning and 13563 Improving
Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act of 1995
(UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. National Technology Transfer and
Advancement Act (NTTAA) and 1 CFR
Part 51
H. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
I. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
J. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Table 1 of this preamble lists the
NESHAP and associated regulated
industrial source categories that are the
subject of this final rule. Table 1 is not
intended to be exhaustive, but rather
provides a guide for readers regarding
the entities that this final rule is likely
to affect. These final standards, once
promulgated, will be directly applicable
to the affected sources. Federal, state,
local, and tribal government entities
would not be affected by this final rule.
As defined in the Initial List of
Categories of Sources Under Section
112(c)(1) of the Clean Air Act
Amendments of 1990 (see 57 FR 31576;
July 16, 1992) and Documentation for
Developing the Initial Source Category
List, Final Report (see EPA–450/3–91–
030; July 1992), the Manufacture of
Paints, Coatings, and Adhesives source
category ‘‘is any facility engaged in their
manufacture without regard to the
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