Urgent Care
| Published date | 05 June 2019 |
| Citation | 84 FR 25998 |
| Record Number | 2019-11468 |
| Section | Rules and Regulations |
| Court | Veterans Affairs Department |
Federal Register, Volume 84 Issue 108 (Wednesday, June 5, 2019)
[Federal Register Volume 84, Number 108 (Wednesday, June 5, 2019)]
[Rules and Regulations]
[Pages 25998-26018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11468]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AQ47
Urgent Care
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) adopts as final a
proposed rule amending its regulations that govern VA health care. This
final rule grants eligible veterans access to urgent care from
qualifying non-VA entities or providers without prior approval from VA.
This rulemaking implements the mandates of the VA MISSION Act of 2018
and increases veterans' ability to choose health care in the community.
DATES: This final rule is effective June 6, 2019.
FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director of Policy and
Planning. 3773 Cherry Creek North Drive, Denver CO 80209.
[email protected]. (303) 370-1637. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on January 31, 2019, VA published a proposed rule, which
proposed to amend its regulations that govern VA health care. 84 FR
627. VA provided a 30-day comment period, which ended on March 4, 2019.
We received 3,285 comments on the proposed rule.
On June 6, 2018, section 105 of Public Law 115-182, the John S.
McCain III,
[[Page 25999]]
Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems
and Strengthening Integrated Outside Networks Act of 2018, or the VA
MISSION Act of 2018, amended title 38 of the United States Code
(U.S.C.) by adding a new section 1725A, Access to walk-in care. The new
section 1725A was further amended through the Department of Veterans
Affairs Expiring Authorities Act of 2018 (Pub. L. 115-251). This
benefit is intended to offer eligible veterans convenient care for
certain, limited, non-emergent health care needs. Section 1725A(a) and
(g) direct the Secretary to establish procedures and regulations to
ensure eligible veterans are able to access such care from qualifying
non-VA entities or providers to ensure their access to care when minor
injury or illness arise. VA is required to develop procedures to ensure
eligible veterans can access this care from qualifying non-VA entities
or providers. Eligible veterans would include any enrolled veteran who
has received care under chapter 17 of title 38 U.S.C. within the 24-
month period preceding the furnishing of care under this section. Care
under chapter 17 of title 38, U.S.C. would include any of the
following: Care provided in a VA facility, care authorized by VA
performed by a community provider, emergency room care authorized by VA
performed by a community provider, care furnished by a State Veterans
home, or urgent care under this proposed section. Qualifying non-VA
entities or providers would include any non-VA entity or provider that
has entered into a contract, agreement, or other arrangement with VA to
provide services under this section.
VA refers to this benefit as urgent care, instead of walk-in care.
This benefit will include care provided at both urgent care facilities
and walk-in retail health clinics.
This rule implements the mandates of section 1725A, as added by the
VA MISSION Act of 2018 as amended, by establishing a new Sec. 17.4600.
Multiple commenters generally supported the proposed rule, but had
several suggestions and concerns on various aspects of the rule, while
others strongly opposed the proposed rule. We have grouped similar
comments into the various sections below for ease of readability.
Positive Comments
VA received numerous comments in favor of the rule. One commenter
stated that the rule would provide veterans vital services as well as
provide longer hours of operation in convenient locations. Another
commenter said urgent care would bring a better sense of care to
veterans in need. A commenter also stated that the proposed rule would
provide access to quality accessible community care to serve the
veteran community. Several commenters stated that the proposed rule
would provide at lower cost many services that veterans might otherwise
seek from an emergency room. Several commenters indicated that the
proposed rule would save veterans time in that they would not have to
travel long distances to their nearest VA medical facility to receive
health care. Another commenter indicated that urgent care would free up
VA medical facility resources so that VA can focus on treating service-
connected conditions and managing long term care. Several commenters
stated that urgent care will ensure that veterans receive timely and
appropriate, immediately necessary care in a short period of time,
which will save lives. Another commenter stated that the proposed rule
is an important step in ensuring that veterans will receive appropriate
care regardless of whether the best treatment is in VA or the private
sector. Another commenter stated that the rule would alleviate the
burden of disabled or elderly veterans who might face obstacles in
reaching VA medical facilities. This commenter also stated that the
rule would help restore trust in the VA health care system. Another
commenter similarly stated that the proposed rule would benefit
veterans who live in rural areas, the homeless, and those veterans who
lack transportation. Several commenters supported VA's decision to call
the new benefit urgent care, which is consistent with industry
practice. Another commenter supported the proposed rule stating that
the rule should expand community care options for veterans. Several
commenters agreed that urgent care should not replace primary and
specialty care coordinated through VA. One commenter also stated that
urgent care would allow for better delivery of timely access for
serious or life-threatening emergency situations in VA medical
facilitates. A commenter supported the proposed rule stating that it
will widen the stream of health care and allow more veterans to get the
care they need. Another commenter supported the proposed rule stating
that urgent care should only be for the treatment of a single condition
and that follow-up care should be managed by the VA medical facility.
The commenter also agreed with the publishing of a list of the non-VA
providers and entities who will provide urgent care, as well as the
establishment of the $30 copayment. One commenter stated that urgent
care has the potential for high value for veterans. We thank the
commenters and make no changes based on these comments.
Comments on Copayments
We stated in the proposed rule that VA would establish a regular
copayment for urgent care of $30. An eligible veteran's liability for
the $30 regular copayment would depend on the veteran's enrollment
category and the number of visits in a calendar year. Veterans enrolled
in priority groups 1 through 6 (except those veterans described in
Sec. 17.36(d)(3)(iii) for all matters not covered by priority category
6), would be required to pay the $30 copayment after their third visit
in the calendar year. All other veterans would be required to pay the
$30 copayment on every visit, subject to certain exceptions explained
further in the proposed rule. Most of the comments received on the
proposed rule were in opposition to VA charging a copayment for urgent
care for veterans enrolled in priority groups 1 through 6, service-
connected veterans, or other specific subsets of veterans. The
commenters' concerns are summarized as follows.
Many commenters stated charging a copayment for service-connected
veterans is unreasonable and unacceptable. Some commenters had more
specific concerns and suggestions about the category of veterans who
should be charged copayments. For instance, some comments stated that
copayments should only be charged for non-service-connected conditions,
veterans who were 100 percent service-connected should not be charged a
copayment, veterans who are enrolled in priority group 1 should not be
charged copayments, and that veterans with a disability rating over 30
percent should not pay a copayment. Another commenter stated that
subjecting American Indian and Alaska Native veterans to a copayment as
a condition of health care violates the Federal trust responsibility.
VA acknowledges that veterans enrolled under priority groups 1
through 6 generally are not required to pay copayments under other
health care programs administered under title 38; however, section
1725A(f)(1)(B) states that an eligible veteran not required to pay a
copayment under the title may access walk-in care without a copayment
for the first two visits in a calendar year. For any additional visits,
a copayment at an amount determined by the Secretary may be required.
VA has decided to utilize this authority to require copayments for
these veterans,
[[Page 26000]]
including for the categories of veterans that the commenters
specifically noted, because the copayment is designed to encourage
appropriate use of the benefit. Collecting a copayment after the third
visit will help ensure that the urgent care benefit is utilized
appropriately and is not being used as a substitute for primary care.
As explained in the proposed rule, copayments are a common feature of
health care, including VA health care, and are an important mechanism
for guiding behavior to ensure that patients receive care at an
appropriate location. The copayment is designed to encourage veterans
to seek care from VA first, when VA can provide the needed care, and to
utilize urgent care when prompt treatment is necessary to prevent the
condition from becoming emergent. Urgent care is considered to be a
convenient option for care, but is not intended to be used as a
substitute for traditional primary care that emphasizes longitudinal
management and care coordination. Also, collecting copayments allows VA
to utilize its health care resources more efficiently. Generally
speaking, copayments are applicable to all similarly situated veterans
and VA care is provided to eligible veterans in connection with
military service. However, VA is not authorized to waive copayments for
specific categories of veterans, such as American Indian or Alaskan
Native veterans, as suggested by one commenter.
In addition, VA has decided to utilize this authority to require
copayments for these veterans, including for the categories of veterans
that the commenters specifically noted, because the copayment is
designed to discourage excessive use or misuse of the benefit. VA
anticipates that veterans, on average, will use this benefit fewer than
three times per year. VA used Medicare sampling data, which is
frequently used by health researchers and others, to estimate that 85
percent of visits are an enrollees' first or second visit. We have
confidence that these data should be accurate given the similarity of
the benefit (open access), the availability of multiple network
providers, and the comparable morbidities between the Medicare
population and the veteran population. While the Medicare data does not
have the same copayment as VA's proposed rate (it assumed a higher
copayment), we have adjusted for this by assuming higher utilization
given the lower cost. Therefore, VA believes that the majority of
service-connected veterans will not pay a copayment, as their first
three visits in the calendar year are exempt from the copayment
requirement.
Many commenters were concerned that the copayment could cause a
financial burden on veterans and some were further concerned that the
copayment may act as a deterrent for using the urgent care benefit. In
particular, one commenter suggested that there should be no copayment
to encourage veterans to use the urgent care benefit instead of
emergency room, which is free. Another commenter stated that veterans
in priority groups 1 through 6 who are 10 percent service-connected are
not required to pay a copayment, and will not be expecting a bill. In
addition, the commenter stated that beneficiaries have been warned
through the military health system and Medicare about providers going
after patients for money they do not owe (so called balance billing
schemes). The commenter added that as such, eligible veterans may have
been conditioned to ignore bills they receive, which could lead to
unpaid medical bills and collection actions against veterans.
VA does not believe the rule as proposed will create a copayment
burden for most veterans. VA has a waiver process for copayments in
place for existing copayments when these liabilities would produce a
financial hardship for veterans, and this process will apply to
copayments assessed under this benefit. In fiscal year (FY) 2018, VA
granted approximately two-thirds of waiver requests from veterans, but
only received fewer than 25,000 such requests. We interpret these data
to mean that those veterans who face an actual hardship are granted
relief, while the copayment liabilities are not an obstacle for most
veterans. VA believes the $30 copayment after three visits is a
reasonable mechanism to help ensure that veterans are going to use
urgent care appropriately. VA worked with the support of contractors to
analyze different copayment structures in the context of the urgent
care benefit and the impact of these copayments on utilization.
Copayments are common for urgent care visits both in the private and
public sectors. The analysis showed that copayments are an appropriate
method to influence utilization. Also, VA has developed educational
materials that will alert the public of the availability of the new
urgent care benefit, the eligibility criteria, as well as the copayment
obligation. VA expects that these educational materials will assist
veterans in taking full advantage of the urgent care benefit while
listing upfront charges for the copayment structure. We are not making
any changes based on these comments.
To ensure that neither the veteran nor their insurer is billed by
the provider when VA is responsible for the payment of urgent care, we
are adding a new paragraph (f). This new paragraph states that payments
made for urgent care constitute payment in full and extinguish the
liability of the veteran. It also states the qualifying non-VA entity
or provider may not impose any additional charge on a veteran or his or
her health care insurer for any urgent care service for which payment
is made by VA. Finally, it states that this section does not abrogate
VA's right under section 1729 to recover or collect from a third party
the reasonable charges of the care or services provided under this
section. These provisions are consistent with current practice under
other authorities for community care and should address the commenters'
concerns. We are also adding a new paragraph (c)(1)(B) that states that
the eligible veteran must declare at the time of the episode of care
that the veteran is using the VA benefit under this section. We believe
this requirement will also help reduce the potential for inadvertent
billing, as the qualifying non-VA entities or providers will know in
advance that this care is being furnished under the VA benefit. A
collateral benefit of this change is that it should also help reduce
the potential that services that are outside the scope of VA's benefit
will be furnished to eligible veterans. We further make a clarifying
edit to the language in paragraph (c)(1) to refer more broadly to
urgent care under this section.
Some commenters suggested that a copayment be charged for veterans
in priority groups 1 through 6 after a different number of visits
(other than after the third visit). For instance, one commenter stated
that copayments should not be imposed until after the sixth visit while
another suggested that the copayment should not be imposed until after
the tenth visit. As previously explained, VA determined it would be
appropriate to require a copayment after the third visit for priority
groups 1 through 6. VA is not limiting the total number of visits a
veteran may make in a year, as VA is striving to ensure veterans will
have access to convenient care when necessary. However, this urgent
care benefit is not meant to supplant primary and specialty care
provided by VA. VA is limiting the types of services provided to ensure
that preventive care is not provided through this benefit and the
veteran's primary care is managed through the veteran's primary care
provider. A copayment after the third visit will encourage
[[Page 26001]]
veterans enrolled in these priority groups to seek only episodic urgent
care from the community and direct other care to the local VA facility.
VA is working to increase internal capacity at medical facilities while
ensuring veterans have access to community facilities to address urgent
care needs.
Many commenters suggested alternative copayment structures. For
instance, one commenter suggested that veterans enrolled in priority
group 1 pay no copayment; priority groups 2 through 6 pay $30 after two
visits; and priority groups 7 and 8 pay $40 after one visit. Another
commenter stated that the copayment should not be more than $12. A
commenter indicated that VA should adopt the $8 copayment that is
charged for Medicare, instead of the proposed $30. Several commenters
stated that the copayment for urgent care should be $5 to $10. A
commenter recommended that VA apply a standard copayment rate for all
beneficiaries and be consistent as to which services require a
copayment. When modeling the proposed rule, VA looked at various
copayment structures between $0 and $75, the effect of requiring
copayments after a different number of visits, and considered
instituting different copayments for the various priority groups. We
believe that these various models reflect the general proposals that we
received suggesting that VA adopt different copayment structures. We
determined that the model proposed and adopted here as final is
appropriate given our goals of ensuring access, reducing over-reliance,
ensuring the right level of care, and being fiscally responsible. In
addition, the $30 copayment is still less than the industry average,
which is $67 based on the market average as determined by analysis
conducted by VA that was published in conjunction with the proposed
rule. We are not making any changes based on these comments.
Multiple commenters also suggested that the copayment structure
mirror the copayment structure VA uses for care provided at VA
facilities. A commenter stated that the proposed rule as drafted raises
the standard copayment from $15 to $30 for all urgent care visits
without adequate justification. The commenter indicated that currently,
veterans seeking same-day services for urgent non-service connected
care are required to pay a copayment amount equivalent to a primary
care visit, which is $15, not $30. The commenter also noted that the
proposed rule's cost-benefit analysis failed to provide data comparing
the existing $15 copayment to the proposed $30 copayment to justify the
increase. The comment further explained that our MISSION Act Copayment
Study Assessment Analysis (assessment) concluded this would be the
least disruptive option, while new copayment levels would result in
``significant disruption from a people, process, and technology
perspective''. The commenter added that the disparity in copayments
between VA facilities and qualifying non-VA entities will punish
veterans for using health facilities outside of VA for urgent care and
that raising the copayment rates for urgent care will financially
punish veterans for seeking routine health care.
As previously explained, section 1725A(f) allows VA to establish a
copayment for each episode of care furnished under this section. In
preparation for the implementation of the VA MISSION Act of 2018, VA
reviewed industry copayment structures for urgent care. The assessment
reviewed commercial best practices and cost sharing structures and the
applicability of those structures to VA. The assessment defined several
scenarios and provided analytics based on utilization data and behavior
change assumptions to develop costs and benefits for each possibility
to make a recommendation on how VA could structure a copayment for
urgent/walk-in care. VA acknowledges that this assessment recommended a
$15 copayment for the urgent care benefit and the assessment did not
provide data comparing the existing $15 copayment to the proposed $30
copayment to justify the increase; however, the assessment did not look
at the clinical consideration to make certain that the veterans receive
the right level of care, better care coordination, and patient
outcomes. In this regard, the higher copayment VA proposed would
encourage veterans to seek care with their primary care providers at a
lower copayment. In addition, although VA's assessment did not include
data using a $30 copayment, it did analyze various different dollar
amounts. In our assessment of copayments, we found that copayments
ranged from $15 to $100, and the majority of copayments in commercial,
health maintenance organization (HMO), preferred provider organization
(PPO), and government plans fell between $40 and $70. Moreover, we
considered both a $15 copayment and an escalating copayment, both with
a requirement for preauthorization beyond the second visit. However, we
believe that a $30 copayment for each visit without a preauthorization
requirement is consistent with the need to ensure that veterans receive
the right level of care, better care coordination, and improved patient
outcomes. This copayment is below what other commercial and government
plans charge and is in line with the copayment structure used by
TRICARE Prime for retirees. Regarding the technological concern stated
by the commenter, VA is addressing this concern through system changes
to facilitate the charging of the different copayments for urgent care.
Once the system changes are in place, this will allow for automation,
thereby streamlining our process and ensuring that employee workload is
no greater than what it is for charging copayments for other community
care claims today. We are not making any changes based on these
comments.
A commenter stated that there is an exception to the copayment rule
for veterans described in 38 CFR 17.36(d)(3)(iii) and questioned how
the exception applies to veterans in priority group 4 based on
catastrophic disability. We initially note that the exception in Sec.
17.36(d)(3)(iii) does not affect veterans enrolled in priority group 4.
Veterans who are enrolled in priority group 4 will not have a copayment
for the first three urgent visits in each calendar year at an eligible
facility, but they will be required to pay a $30 copayment starting on
the fourth visit of such calendar year. This copayment requirement
includes veterans who are determined to be catastrophically disabled by
VA under priority group 4. There is no limit on the number of urgent
care visits for an eligible veteran. The $30 copayment discourages over
utilization of the benefit, while still making on-demand care
accessible and without prior authorization.
A commenter stated that they do not agree with the $30 copayment
after a few urgent care visits because it will create an added burden
on VA staff to manage. Although VA acknowledges that administrative
actions will be required to collect the copayment, VA believes that the
burden will not be unreasonable, and VA has implementation plans in
place to address the administrative aspects of implementing the rule.
We are not making any edits changes on this comment.
A commenter agreed with the $30 copayment but suggested that VA
periodically adjust the copayment to account for market changes in the
cost of delivering health care. VA has the authority to adjust the $30
copayment for urgent care visits through subsequent rulemaking and may
choose to do so in the future. We are not making any changes based on
this comment.
[[Page 26002]]
A commenter stated that the copayment for urgent care does not seem
to control usage because a non-service connected veteran would pay $30
for urgent care, which is less than the copayment for a specialty
visit. VA acknowledges that a copayment for specialty care is $50.
Urgent care may be used for services that VA considers specialty care,
for example x-rays, however, these services must be provided in a
single visit. We believe that it is unlikely that veterans will be this
selective in terms of only seeking specialty care services through
qualifying non-VA entities or providers. Moreover, VA believes that
most types of specialty care are longitudinal care, which is not
covered under the section 1725A. We defined longitudinal management of
conditions in the proposed rule to mean outpatient care that addresses
important disease prevention and treatment goals and is dependent upon
bidirectional communications that are ongoing over an extended period
of time. For purposes of this section, the term ``longitudinal
management of conditions'' and ``longitudinal care'' are synonymous.
Another commenter requested clarification that non-VA urgent care
entities will not be responsible for collection of veteran copayments.
We stated in the proposed rule that eligible veterans would not owe
copayments at the time of service, consistent with current practice for
VA and VA-authorized community care. VA finds that this language is
sufficiently clear in that VA does not intend for members of the non-VA
urgent care network to collect or bill veterans for copayments
resulting from urgent care visits.
A commenter stated that VA should waive copayments for urgent care
visits during which a flu shot is the only service provided. The
proposed rule, in Sec. 17.4600(d)(2), already provided that an urgent
care visit consisting solely of an immunization against influenza (flu
shot), as well as a visit consisting solely of a service VA has
identified under Sec. 17.4600(b)(5)(iii) (VA's authority to provide
additional services not typically covered by this benefit, now
(b)(5)(iv)) is not subject to the $30 copayment amount.
Several commenters were under the impression that the proposed rule
would establish a new copayment for urgent care provided in a VA
medical facility and opposed such change. The urgent care benefit under
38 U.S.C. 1725A will not be provided at VA medical facilities. This
benefit will be provided by qualifying non-VA entities or providers.
The copayment requirements for similar care provided at VA medical
facilities will not be amended by this rule. We are not making any
changes based on these comments.
Several commenters indicated that instead of charging a copayment
for urgent care, VA should stop collecting severance pay from their
service-connected disability compensation. Section 3.700(a)(3) of 38
CFR states that where the disability or disabilities found to be
service-connected are the same as those upon which disability severance
pay is granted, or where entitlement to disability compensation was
established on or after September 15, 1981, an award of compensation
generally will be made subject to recoupment of the disability
severance pay. The proposed rule only addressed urgent care authorized
under section 1725A. The recoupment of disability severance pay is
beyond the scope of the proposed rule. We are not making any changes
based on these comments.
Several commenters stated that undocumented immigrants are afforded
free health care and veterans who have served their countries are
charged copayments. The proposed rule addressed urgent care authorized
by 38 U.S.C. 1725A. Health care for undocumented immigrants is beyond
the scope of the proposed rule. We are not making any edits based on
these comments.
One commenter was concerned that the rule would destroy the
priority care afforded to service-connected disabled veterans. The
commenter added that when service-connected veterans are stripped of
their priority status for care and placed on the same level as veterans
with no service connected disability then you have created the problem
of access to services. The new urgent care benefit does not change any
priority status for veterans. Furthermore, we contemplate that the
availability of urgent care in the community will be sufficient to
provide ready access to veterans qualifying for that service. We are
not making any changes based on this comment.
We are making further revisions to our amendments to Sec. 17.108.
In our proposed rule, we proposed amending paragraph (e) of that
section to apply the exceptions identified in that paragraph to
copayments for the urgent care benefit. Upon closer review, we have
determined that applying all of the copayment exceptions under Sec.
17.108(e) to urgent care copayments would create inequities that VA did
not intend. For example, Sec. 17.108(e)(1) provides that care for a
veteran for a non-compensable zero percent service-connected disability
is not subject to an outpatient copayment. Applying this exception to
the urgent care benefit would create an illogical result where
treatment for zero percent service connected disabilities were not
subject to a copayment, but treatment for 100 percent service connected
disabilities (after a third visit by that veteran) were subject to a
copayment. Similarly, subparagraphs (2), (4), and (10) apply to other
care that, while not service connected, is generally treated as the
equivalent of service connected, and thus would generate the same
inequities. We are also omitting the exception under Sec.
17.108(e)(14) from applying to the urgent care copayments, as this
provision exempts laboratory services, flat film radiology services,
and electrocardiograms from copayments. Exempting these services from
copayment liabilities in the context of the urgent care benefit could
create an incentive for veterans to receive these services through this
benefit, but these procedures are typically necessary for the
longitudinal management of conditions, and are always needed for
purposes of care coordination. As we explained in the proposed rule and
do so again here in further detail below, we believe that care
coordination by a primary care provider is essential to overall health,
and thus we seek to reduce the potential for fragmentation and
duplication of care that could occur through multiple providers
ordering lab services or radiology services. As a result, we are
amending section 17.108(e) to state that the exceptions in
subparagraphs (1), (2), (4), (10), and (14) do not apply as exceptions
to the copayment obligation under the urgent care benefit in Sec.
17.4600.
Comments on Scope of Available Services
Several commenters had questions regarding the scope of services
that would be provided under the urgent care benefit. These commenters
indicated that there should be clear guidance for what VA would
consider episodic care and questioned what the dispute process would be
if care was provided that was not considered episodic. A commenter
specifically questioned what would happen if a veteran went to an
urgent care clinic for care that is not considered episodic.
The urgent care benefit under 38 U.S.C. 1725A(h) is limited to
eligible veterans seeking immediate, non-emergent care from a
qualifying non-VA entity or provider that furnishes episodic care and
not longitudinal management of conditions. VA further proposed defining
the term episodic
[[Page 26003]]
care in Sec. 17.4600(b)(2) as applying to a particular health
condition, or a limited set of particular health conditions, without an
ongoing relationship being established between the eligible veteran and
the qualifying non-VA entity or provider. VA will provide educational
materials to the public that will state that VA will not pay for
preventive care, such as annual examinations and routine screenings,
and will post such materials on VA's website at www.va.gov. VA will not
provide an exhaustive list to account for the needed flexibility in
administering the benefit. VA will monitor utilization of this benefit
and may make further revisions to the website in the future. Any
services provided that are outside of the scope of this benefit are the
financial liability of the veteran. These educational materials will be
provided to comply with section 121 of the VA MISSION Act of 2018. VA
will educate the third-party administrators (TPA), as discussed below,
on the urgent care benefit, as required by section 122 of the VA
MISSION Act of 2018.
The veteran will be responsible for any urgent care medical claims
that do not meet the criteria set forth in this rulemaking.
Specifically, a veteran could be liable if: The veteran is not an
eligible veteran (i.e., the veteran is either not enrolled or has not
received care under chapter 17 of title 38 within the prior 24 months);
the provider is not a qualifying non-VA entity or provider (meaning it
does not meet the requirements in Sec. 17.4600(b)(4), such as having a
contract, agreement, or other arrangement with VA to furnish care and
services under this section); or if the care or services do not meet
the definition of urgent care in Sec. 17.4600(b)(5) (i.e., the care is
not care available from an entity or provider submitting claims for
payment as a walk-in retail health clinic or an urgent care facility;
or the care is preventive care, is dental care, or is managing a
chronic disease). To reduce the potential of veterans' facing
unexpected copayments, VA will be available by phone, in person, and by
other means to advise veterans who are unsure of their eligibility for
this benefit. VA also will make a list of qualifying non-VA entities or
providers available on VA's website (www.va.gov) so that veterans know
where to go and which providers can furnish this care. VA will provide
information regarding the services that are generally available through
this benefit on a website and will work with its contractors to educate
them on the scope of services VA covers. Veterans will also have the
option to contact either a VA call center or the non-VA entity or
provider to discuss urgent care benefit information including
eligibility, covered services, and the nearest qualifying facility and
location. Although VA does not anticipate that the urgent care
providers will provide care outside of the scope of the urgent care
benefit, if this does occur, the veteran would be charged for the cost
of care, but both the provider and the veteran would have the ability
to appeal this determination. We are not making any changes based on
this comment.
Several commenters had concerns regarding follow-up care. A
commenter strongly disagreed with VA's proposal that episodic care is
addressed in a single visit. The commenter wants the urgent care/walk-
in care benefit to be expanded to allow for follow-up care as a
clinical best practice. Another commenter stated that the definition in
the proposed rule fails to recognize the role of urgent care facilities
in the health care delivery system and continuity of care and could
create a barrier to necessary follow-up care subsequent to an urgent
care encounter for illness or injury. We appreciate the commenters'
perspective regarding whether or not episodic care can be furnished in
a single visit; however, VA maintains that in order to ensure that care
provided is not longitudinal, episodic care is care that can be
furnished in a single visit. For this reason, we are amending Sec.
17.4600(b)(2) to amend the definition of episodic care to specifically
state that the care must be provided in a single visit.
Another commenter asked who will determine cases where a veteran
argues that an episode of care requires several follow-up visits to
ensure continuity and full treatment of an acute condition. The
commenter further asked whether each visit will count against the three
visits that are not subject to a copayment or if the provision
regarding three visits without a copayment apply to three visits for
unrelated episodes of care. Under our regulations, each visit either
counts as one of the three free visits or is subject to a copayment,
depending upon the eligible veteran's priority group, the number of
visits, and whether the visit is exclusively for a flu shot (or a
similar treatment under Sec. 17.4600(b)(5)(iv). Based upon this and
other comments, we are amending Sec. 17.4600(b)(5)(iii) to clarify
that veterans requiring follow-up care as a result of an urgent care
visit under this section must contact VA or their VA-authorized primary
care provider to arrange such care. At the time that the veteran
contacts VA for follow-up care, VA will schedule the necessary follow-
up care at a VA medical facility or by referral through a community
provider. If a veteran instead chose to subsequently go to a qualifying
non-VA entity or provider for a follow-up visit, this visit would
either count as another visit or could be determined to be not covered
if it constituted the longitudinal management of a condition if the
encounter was not episodic. VA staff will make the determination of
whether care is episodic or not, and an appeals process will be
available for providers and patients as described above. VA also makes
a minor clarifying edit to the language in this provision to change the
conjunction.
Multiple commenters had concerns with follow-up care and one
commenter indicated that the standard should be that urgent care
providers are allowed to provide the same level and scope of care in
that urgent care visit for the complete course of treatment that a VA
operated urgent care provider would provide as part of the course of
treatment in that urgent care visit. The commenter added that to
require the course of treatment by the urgent care provider to be
arbitrarily and prematurely terminated simply to protect some standard
of separation for ``longitudinal care'' is not justified. The treatment
that would be provided at a non-VA urgent care facility should be the
same as that treatment received in a VA urgent care facility. VA
believes that limiting urgent care to a single visit is appropriate
because it is important that a veteran's care be provided by a primary
care provider to eliminate duplicate treatment and improve health
outcomes. Moreover, the separation of longitudinal care as being
outside the scope of this benefit is statutorily prescribed in section
1725A(h).
A commenter questioned if a clinical determination was made before
or after the fact and based on whose judgement. The commenter also
questioned how the best medical interest provision would apply in cases
where the veteran believes that care was urgent and not preventative.
VA notes that the best medical interest provision in the MISSION Act is
a specific eligibility criterion for care that is authorized under the
Veterans Community Care Program under section 1703 of title 38, as
modified by section 101 and as addressed in VA's separate rulemaking,
RIN 2900-AQ46 (Veterans Community Care Program), which is published
elsewhere in this issue of the Federal Register. As previously stated,
this urgent care benefit provides certain veterans access to urgent and
walk-in care from qualifying non-VA entities or providers without prior
approval by VA.
[[Page 26004]]
The urgent care benefit will provide the treatment of conditions that
are episodic in nature. Eligible veterans have a dedicated primary care
provider and this benefit is intended only to supplement, not supplant,
such providers. These dedicated primary care providers coordinate care
and reduce the duplication of care to improve patient outcomes. In
these cases, if follow up care is required after an urgent care visit,
the veteran will need to coordinate such care with VA, as explained
above. Further, and as also discussed above, determinations regarding
whether services are covered within the benefit will be made by VA
staff, and veterans or providers who disagree may appeal this
determination.
A commenter recommends that VA publish a list of conditions and
symptoms for which veterans can seek urgent care. They state that most
individuals are not familiar with the names of services that are used
to diagnose and treat the symptoms they may be experiencing, and they
believe a list would reassure veterans their urgent care visit would be
covered. While VA understands the commenter's concern, VA is not going
to list symptoms because we would not want to inadvertently divert care
from the appropriate level of care. For instance, pain is a symptom,
and could be indicative of a minor illness that would be appropriately
treated at an urgent care facility but could also be indicative of a
life-threatening condition necessitating emergency treatment. VA will
provide examples of care and services that are excluded from the
benefit and will make that available to the public at www.va.gov. VA
will consult with clinical staff, including women's health care
providers, in developing the services available at the urgent care and
walk-in care facilities.
The same commenter stated that VA should cover emergency
contraception for women veterans who request it during an urgent care
visit. Urgent care facilities generally do not administer the
medication suggested by the commenter during a visit. VA encourages
women veterans to use their women's health care provider as their
primary care provider, who may provide these services. However, women
veterans may access certain services through this benefit that might
otherwise be provided by a women's health care provider, such as
treatment for urinary tract infections or vaginitis.
This commenter also recommended flu shots and therapeutic vaccines
in the urgent care benefit to be available for all veterans, including
pregnant women. In addition, the commenter recommended that VA waive
copayments for urgent care visits during which a flu shot is the only
service provided. VA agrees with the commenter. The new urgent care
benefit will include immunizations against influenza (flu shots), which
will be available to all veterans as clinically appropriate, including
pregnant women. The proposed rulemaking provides an urgent care visit
consisting solely of an immunization against influenza (flu shot) is
not subject to the $30 copayment amount. VA, in response to other
comments, is amending proposed Sec. 17.4600(d)(2) to exempt visits
that consist solely of flu shots from the number of visits an eligible
veteran may receive before being charged a copayment.
A commenter stated that their urgent care representative stated
that veterans must have a pre-authorization to receive urgent care, and
that their local VA medical facility indicated that urgent care is not
covered for veterans. The commenter stated that women veterans are not
receiving equal access to health care and added that VA should help all
veterans have equal access to health care. We wish to clarify two
points in light of this comment. First, eligible veterans will not be
required to request VA authorization prior to receiving urgent care
from a qualifying non-VA entity or provider under this benefit. As
stated previously, VA will consult with health care providers,
including women's health care providers, regarding this benefit to
ensure equal access to health care. Second, the new urgent care benefit
authorized under 38 U.S.C. 1725A has not been effective prior to this
rulemaking, and thus the statement by the local VA medical facility was
accurate at the time it was made, as all VA community care (except for
emergency care provided under 38 U.S.C. 1725 or 1728) has required VA
authorization prior to veterans seeing community providers. We are not
making any changes based on this comment.
Another commenter had questions about prior authorization required
for the urgent care visit as well as any necessary follow-up care.
Urgent care benefits under section 1725A do not require authorization
from VA. However, follow-up care must be coordinated by VA, and it is
the veteran's responsibility to coordinate follow-up care and must
contact VA or their VA-authorized primary care provider to arrange such
care.
Another commenter stated that urgent care centers have a role in
preventive care, ranging from influenza vaccines to diabetes and
hepatitis screenings. The commenter further stated that irrational
barriers being proposed in this rule disallowing urgent care centers
from providing follow-up care after an acute care visit or preventive
care should be removed so urgent care facilities are not restricted
from improving the health of our nation's veterans. The commenter also
stated that urgent care facilities serve an essential role as part of
the primary care safety net across the country. We understand the
commenters point, but note that eligible veterans are not like other
potential users of urgent care centers or walk-in retail health
clinics, as they, by definition, are enrolled in VA health care and are
receiving care and services from VA. As such, the ability of urgent
care centers to serve as a primary care safety net and to provide
preventive care for eligible veterans is less important because they
already have means of accessing these services. Cost-free preventive
care is already available to all eligible enrolled veterans at VA
clinics and hospitals, usually on a walk-in or same-day basis; there is
no need for a veteran to seek such care at a retail walk-in clinic or
urgent care center. Veterans requiring services that are not available
within walk-in retail health clinics or urgent care centers will need
to contact VA, or in the case of a medical emergency, seek care at the
nearest emergency room. We are, however, making one edit based on these
comments. We are revising Sec. 17.4600(b)(5)(ii)(B) to authorize
specifically screenings related to the treatment of symptoms associated
with an immediate illness or exposure. We believe this addresses some
of the commenter's concerns and should provide additional flexibility
so that patients who present for care with symptoms may receive
diagnostic screenings for purposes of identifying the specific clinical
need and treating it appropriately.
Several commenters encouraged VA to include preventive services
generally, or at least certain preventive services (such as physical
therapy services), and to cover a broader range of immunizations than
influenza, not just on an as-needed or as-appropriate basis. Section
1725A(h) does not provide for urgent care to be used for the
longitudinal management of health care, such as physical therapy.
Preventive health services are excluded because such services are best
coordinated and managed by a primary health care provider who addresses
important disease prevention and treatment goals through bidirectional
communication. We are clarifying that urgent care in Sec.
17.4600(b)(5)(ii)(A) does not include
[[Page 26005]]
preventive care or chronic disease management. Also, physical therapy
services are considered ``rehabilitative services'', which are not
included in the definition of preventive services in 38 U.S.C. 1701(9).
Continuous care generally reduces the risk of adverse reactions,
and that is one of VA's primary goals, but we have made an exception
here for flu shots and therapeutic vaccines because there is so little
risk in these areas and because they are necessary as part of treatment
of certain conditions. VA considers other types of preventive care
vaccines to be part of the veteran's longitudinal care, and as such,
these other vaccines should be provided by the veteran's primary care
provider and not as part of urgent care. Other vaccines may produce
unique risks of adverse reaction or duplication that could potentially
harm the patient. Managing these vaccines through a primary health care
provider reduces these risks. In response to the example provided by
the commenter, physical therapy, if not properly coordinated and
performed, can lead to worse health outcomes.
One commenter stated that in the proposed rule, VA acknowledged
that there may be other preventive treatments with minimal risk of
adverse action; however, VA considered these preventive care treatments
to be part of the veteran's longitudinal care, and accordingly these
other treatments should be provided by the veteran's primary care
provider and not as part of urgent care. The commenter questioned
whether these other services would not be paid by VA and added if there
would be some discussion as to paying for some services as outpatient
care because urgent/walk-in care providers do not provide inpatient
care or extended care services and would this result in an argument
over payment. Urgent care is authorized under section 1725A and only
includes the limited scope of services; however, additional care can be
authorized in the community under a separate authority. This type of
care is addressed under a separate rulemaking with distinct eligibility
criteria, which is published elsewhere in this issue of the Federal
Register.
Another commenter stated that they were in favor of the proposed
rule, but added that for the service to be effective, urgent care
should include lab tests. VA agrees with the commenter and the benefit
would cover certain lab tests, such as sexually transmitted disease
testing and blood tests.
A commenter stated that the rule should clearly define urgent care
versus convenience care. Specifically, the commenter stated that VA
should distinguish convenience care for a veteran who goes to an urgent
care clinic to refill a medication for a chronic condition or a visit
strictly for obtaining a flu shot versus a flu shot given
opportunistically to a veteran who is at the urgent care clinic for
another purpose. The commenter also stated that the rule should specify
the services provided; for example, diagnostic studies should be
limited to those necessary for the acute condition that can be
accomplished in that visit. VA appreciates the comment regarding
refilling medication and addresses this topic below in more detail.
Veterans will be permitted to refill medications, however, VA will only
pay or reimburse for a 14 day supply; anything beyond that would have
to be submitted to VA. Also, the visit to obtain a refill of a
medication for a chronic condition may not be considered urgent care
and may be considered as part of the veteran's longitudinal care. In
addition, veterans can use the benefit for obtaining a flu shot and
would also be able to obtain the flu shot if the veteran was at the
qualifying non-VA entity or provider for another purpose. The rule
clearly provides that flu shots are available through this benefit.
Similarly, VA believes the rule is clear that services provided are
limited to those necessary to treat a particular health condition, or a
limited set of particular health conditions, without an ongoing
relationship being established between the eligible veteran and
qualifying non-VA entities or providers. In this rulemaking, we further
clarified that episodic care has to be addressed in a single visit.
The commenter also suggested that diagnostics requiring scheduling
at a later date should be coordinated by VA, as well as prosthetic
items that are not readily available in retail stores, in addition to
specialty care consultations. The commenter also stated that follow-up
care should also be coordinated through VA.
When a veteran has seen an urgent care provider, the veteran is
responsible for contacting VA to arrange for any follow-up care that is
needed. We agree with the commenter in that prosthetics that are not
readily available in retail stores should not be covered under urgent
care. As discussed further below, in response to comments, VA is
including language in a new paragraph (e) regarding prescriptions for
medications, medical equipment, and medical devices for urgent care. VA
will determine whether to provide the necessary care and services, such
as prosthetic items, at a VA facility or through a community health
care provider.
We are comparing the prescription of urgent care medications to the
Veterans Community Care Program, under a separate rulemaking (RIN 2900-
AQ46), which is published elsewhere in this issue of the Federal
Register. We are addressing VA's payment and fulfillment of
prescriptions obtained by covered veterans from eligible entities and
providers, but would clarify VA's current practice that distinguishes
circumstances under which VA pays for (versus fills) such prescriptions
in new paragraph Sec. 17.4600(e). Paragraph Sec. 17.4600(e)(1) would
match the practice proposed in Sec. 17.4025 in RIN 2900-AQ46, and
would also retain the practice in the Veterans Choice Program that VA
will pay for prescriptions, including prescription drugs, over-the-
counter drugs, and medical and surgical supplies available under the VA
national formulary system written by non-VA health care providers
furnishing services through VA community care, but would clarify that
such payment would be for a course of treatment for urgent care that
lasts no longer than 14 days. This current practice to limit payment
for non-VA prescriptions is reasonable, as it would allow VA to ensure
that any amount of medication in excess of 14 days would be filled
through VA's Consolidated Mail Order Pharmacy system to ensure cost and
quality controls. VA believes that the economies of scale related to
bulk purchase of medications allow for the best maximization of Federal
resources. Paragraph Sec. 17.4600(e)(2) establishes the correlate rule
from the Veterans Choice Program, and the rule proposed in RIN 2900-
AQ46, that VA would fill longer-term prescriptions available under the
VA national formulary system for courses of treatment that exceed 14
days if they are filled through VA's Consolidated Mail Order Pharmacy
system. We note that these authorities would only be available for
prescriptions furnished as part of urgent care under this section.
Paragraph Sec. 17.4600(e)(3) further clarifies current practice
under the Veterans Choice Program and would mirror provisions proposed
in RIN 2900-AQ46 regarding VA paying for or filling prescriptions
written by non-VA health care providers for durable medical equipment
(DME) and devices. As we stated in our proposed rule for the Veterans
Community Care Program (RIN 2900-AQ46), the Veterans Choice Program
currently permits VA to pay for such prescriptions to be furnished by a
community provider only when there is an urgent or emergent need for
the
[[Page 26006]]
durable medical equipment or medical device, meaning the veteran has a
medical condition of acute onset or exacerbation manifesting itself by
severity of symptoms including pain, soft tissues symptomatology, bone
injuries, etc. Urgent DME or medical devices may include, but are not
limited to: Splints, crutches, canes, slings, soft collars, walkers,
and manual wheelchairs. This current practice to limit payment for non-
VA prescriptions of DME or medical devices to only what is immediately
needed is reasonable, as VA must ensure administrative oversight as
well as clinical appropriateness of all other DME and medical devices
prescribed by non-VA health care providers. DME and medical devices are
specific to a particular clinical need and in most cases are further
specifically tailored to fit or serve an individual, and as such
require direct provision by VA (except when urgently needed) to ensure
clinical appropriateness and the best use of Federal resources.
Paragraph Sec. 17.4600(e)(3) establishes that VA may pay for
prescriptions written by eligible entities or providers for covered
veterans that have an immediate need for durable medical equipment and
medical devices to address urgent conditions, and parenthetically
references a non-exhaustive list of such devices to include splints,
crutches, and manual wheelchairs. These provisions of the final rule
are a logical outgrowth of both the proposed rule and the comments we
received seeking clarification as to the scope of prescription benefits
under this program.
Multiple commenters did not agree with VA changing the name of the
benefit from walk-in care to urgent care. One commenter suggested that
the benefit should be referred to as walk-in care with a clear
distinction between retail clinics (those in pharmacies, grocery
stores, and big-box stores) that are places of service code (POS) 17
and urgent care facilities recognized as places of service code (POS)
20. Another commenter stated that in calling the benefit urgent care,
VA is trying to deter veterans from using it because they will not
think their conditions are ``urgent''. The commenter also cited to a
Congressional report describing this benefit as offering non-urgent
care. The comment further noted that other provisions of regulations
and VA's Community Care Network proposal use the term differently.
VA appreciates the comments, but does not believe that veterans
will be deterred from using this benefit based upon the name. The lack
of consistency in defining the name both in the industry and within the
comments signifies the importance that VA define its own benefit and
therefore VA looks towards a name that is easy to remember and has some
market relevance. VA also does not believe it is necessary to
distinguish between retail clinics that are POS 17 and urgent care
facilities recognized as POS 20. VA will continue to develop
educational materials on the benefit that will be available to
veterans. Congress provided the Secretary authority to define what
walk-in care includes through section 1725A(h). VA has exercised its
authority to include services that are available at walk-in retail
health clinics and urgent care facilities. As noted at the beginning of
Sec. 17.4600(b), the definitions only apply to this section.
Regarding the services provided by walk-in clinics, the commenter
cited several examples of major chains (CVS, Walgreens) that offer
preventive services (the commenter says about half of the services they
offer appear to be preventive), but these would not be included in the
benefit. The commenter argued that VA's rationale (the need to
coordinate preventive care) is invalid because clinics have to provide
records, and VA is required to coordinate care. Also, the commenter
asked who would be liable if the veteran goes to an urgent clinic for
something that VA considers preventive care and thus not within the
scope of this benefit.
As we have already stated in this rulemaking, care is not just
about providing the veteran's medical record, care includes the veteran
establishing a relationship with the veteran's primary care provider,
which cannot be accomplished in one urgent care visit. Regarding the
exclusion of preventive services, such services are best coordinated
and managed by a primary health care provider who addresses important
disease prevention and treatment goals through bidirectional
communication. Such a provider can also ensure that care is not
duplicated, both improving patient care while reducing costs. The
veteran would be liable for the cost for any care that VA determines is
not within the scope of the benefit. We are not making any changers
based on these comments.
A commenter asked whether the definition of urgent care would also
include several key conditions or other uses of the term ``urgent
care'' or ``urgent services'' in other VA regulations, specifically
Sec. Sec. 17.101, 17.106, and 70.71. Also, the commenter asked if the
change of the statutory term walk-in care to urgent care would create
confusion in the veteran community that could lead to billing disputes.
The commenter also asked what is the likelihood that any care that is
provided to an eligible veteran that does not meet this definition of
urgent care, whether it be that the care was provided by a non-
qualifying entity or provider or that the care provided was beyond the
scope of urgent care as defined in this section, will not be covered by
VA. The commenter stated that in these situations, the eligible veteran
would be liable for the cost of such care and questioned how this
determination will be made and whether there will be any provision for
review and/or appeal. As stated in the proposed rule, the urgent care
definition under Sec. 17.4600(b)(5) only applies to the mandates under
38 U.S.C. 1725A. Regarding the regulations listed by the commenter,
those regulations were developed at a separate time and address other
types of benefits not provided under this rulemaking. We do not believe
that the change in name to urgent care would result in billing
disputes, but we can amend these regulations in the future if VA
encounters any confusion regarding the interaction between this rule
and the ones listed by the commenter. Moreover, bills can only be
submitted by parties who have a contract, agreement, or other
arrangement to furnish care and services under this section. By statute
and regulation, only in-network providers can furnish urgent care under
this section. Urgent care provided at an out-of-network facility will
not be covered, and the veteran will be responsible for the cost of
that care. An eligible veteran will be responsible for the payment for
any care that does not meet the definition of urgent care; a non-
eligible veteran would be liable for any care provided by any provider,
whether in or out of VA's network. VA staff will determine whether the
care meets the requirements of this section, and veterans and providers
will be notified of their appeal rights in connection with VA's
decision.
One commenter stated that veterans enrolled in priority group 4 who
are paraplegic with bladder problems should be able to see any hospital
to meet their health care needs, especially if they have to drive more
than 30 miles to the nearest VA medical facility. Several commenters
similarly indicated that veterans should be able to go to any doctor,
hospital, or clinic for all of their care and not have to drive 60
miles to receive VA care. Section 1725A does not place a mileage limit
for non-VA entities or providers that would offer urgent care. The
intent of the urgent care benefit is to provide care that is
[[Page 26007]]
accessible to eligible veterans and is within the veterans' community.
The provision of any other types of health care services, such as
hospital or primary care, that is not covered under section 1725A is
beyond the scope of the proposed rule. We are not making any changes
based on these comments.
A commenter requested that urgent care be expanded to care that is
directly related to a veteran's service-connected condition,
specifically for wound care. This commenter stated that there is a
dividing line between ongoing care and urgent care, especially if the
veteran has a chronic condition, which may be service-connected, that
sometimes has urgent symptoms. The commenter questioned if such a
veteran would still qualify to receive urgent care. Under this rule,
urgent care may be provided for the immediate treatment of a chronic
condition, including a service-connected condition, that does not
address important disease prevention and treatment goals. We are not
making any changes based on this comment.
One commenter stated that the proposed definition of urgent care in
Sec. 17.4600(b)(5) defines urgent care, in part, as those services
being provided by walk-in retail health clinics or urgent care
facilities, as designated by the Centers for Medicare & Medicaid
Services (CMS). The commenter indicated that they were not aware of any
process by which the CMS ``designates'' urgent care facilities. Rather,
the link in the Supplementary Information section of the proposed rule
leads to the CMS website listing of places of service codes (POS) used
for billing purposes. The commenter further stated that while CMS does
designate POS codes that providers must use to bill for services, this
does not result in CMS designating specific facilities as specific
types of providers. We appreciate the commenter's input and agree that
VA's proposed rule was not sufficiently clear on this issue. We are
amending the definition of urgent care in paragraph (b)(5)(i) to state
that urgent care includes services available from entities or providers
submitting claims for payment as a walk-in retail health clinic (CMS
Place of Service code 17) or urgent care facility (CMS Place of Service
code 20). This concept had previously been included in the introductory
language of paragraph (b)(5), but is now, with minor revisions, being
relocated to paragraph (b)(5)(i), which has subsequently resulted in a
renumbering of the other clauses and conforming amendments to other
provisions of the regulation citing these provisions.
The same commenter stated that relying on Medicare POS codes is not
an appropriate means to define urgent care providers. The commenter
suggested that VA broaden the definition of urgent care to include all
providers or facilities that provide episodic walk-in or urgent care
services to Medicare beneficiaries. We think that the reliance on
entities or providers who furnish services and bill as POS 17 or 20
facilities is consistent with the scope of services established under
section 1725A. These facilities generally offer clinically appropriate
and convenient care. See S. Rpt. 115-212, page 18. We recognize that VA
was not required to limit the types of services to those available from
providers who submit claims for payment under POS 17 and 20, but we
believe that the services available from these types of facilities
would offer a clear and readily verifiable distinction between those
facilities that are included and those that are not.
A commenter recommended that Congress add a new benefit similar to
the commercial Silver Sneakers to provide overweight veterans with
limited income assistance in weight reduction. This comment recommends
action by Congress on a separate program, which is beyond the scope of
this rulemaking. We are not making any changes based on this comment.
One commenter stated that VA needs to provide dental services for
veterans. Although the proposed rule was silent on dental care, we are
clarifying in Sec. 17.4600(b)(5)(ii)(A) that dental care is not
covered under the urgent care benefit. Eligibility for dental care is
complex and a limited number of eligible veterans qualify for this
benefit under 38 U.S.C. 1712. In addition, there are a limited number
of urgent care facilities that provide dental care. Eligible veterans
seeking dental care will need to contact their local VA Dental Service.
We are not making any changes based on this comment.
Comments on Medications Prescribed in Urgent Care Visit
Several commenters questioned how veterans would fill prescriptions
that were prescribed during an urgent care visit. The commenters raised
the following questions: What does a veteran need to do to get a
prescription filled? would a veteran submit the prescription to VA and
wait another week to obtain the prescription? what is the procedure for
obtaining prescriptions? and who is responsible for the cost and what
is the cost? Another commenter stated that they were in favor of the
proposed rule, but added that for service to be effective, urgent care
should include prescriptions. A commenter stated that the rule should
specify that medications prescribed during an urgent care visit should
be limited to a two-week supply. Another commenter recommended that VA
address non-VA physicians' writing prescriptions for veterans eligible
for non-VA care adding that those veterans should be allowed to have
those prescriptions filled by a pharmacy.
As discussed above, VA is adding a new paragraph (e) to state that
veterans will be allowed to have prescriptions written by the urgent
care providers filled by VA. In addition, prior to the deployment of
the new community care network contract, veterans who need a short-term
medication (14 days or less fill) immediately may take it to any
pharmacy and have it filled at their expense and be reimbursed by VA.
Upon deployment of the Community Care Network contract, veterans will
be able to use contracted pharmacies to fill the immediate need
medications without paying out of pocket.
Long term medications must be sent to VA to be filled by VA,
typically through a Consolidated Mail Outpatient Pharmacy. The
copayments for medications under the new urgent care benefit follow
VA's tiered medication copayment system. For more information on
medication copayments see 38 CFR 17.110(b) or https://www.va.gov/COMMUNITYCARE/revenue_ops/copays.asp#Medications. We are not making any
changes beyond the inclusion of paragraph (e) based on these comments.
Comments on Information Included on Website and Communications
Many commenters had concerns about how information regarding the
new urgent care benefit would be disseminated to veterans and what type
of information would be included on VA's website. Several commenters
had suggestions on the type of information that should be provided on
the website and the type of information that should be communicated to
veterans on this benefit.
One commenter recommended that the rule should focus more on the
importance of creating a website that outlines urgent care in an
accessible way. The commenter stated that the website should include
the name, locations, contact information for the qualifying non-VA
entity or provider, and the type of care that a veteran is eligible to
receive. Similarly, several commenters wanted to ensure that veterans
would be able to see which providers would be covered, whether
preauthorization would be required, and
[[Page 26008]]
the scope of services (what constitutes episodic care versus
longitudinal care). Similarly, another commenter encouraged VA to
ensure that information about available services is carefully defined,
vetted, and communicated clearly to veterans. Another commenter stated
that, as proposed, the information about the scope of services offered
should be ``site specific,'' and the directory of locations should be
updated regularly to ensure accuracy. A commenter added that in order
for the program to be successful, VA must make it easy for the veteran
to identify urgent care facilities within their community. Along with
information regarding scope of services and locations, the commenter
urged VA to also include information about the required copay amounts
that veterans will be charged when seeking urgent care. In addition,
one commenter was concerned how veterans will know that they are
eligible for urgent care, particularly in cases when driving time, as
determined by geospatial mapping can be disputed.
VA agrees with the commenters that it is important to provide
veterans with information on the new urgent care benefit. Veterans will
have access to urgent care benefit information on VA's website
(www.va.gov), and they can call their local VA medical facility to
confirm eligibility. The website, which will be updated regularly, will
include information on eligibility, examples of excluded services,
copayment requirements, and a list of qualifying non-VA entities or
providers. We are making one minor edit to this portion of the rule, to
clarify that VA's website will provide the information described above.
It is possible that in the future, much of this information will be
presented on a contractor's website, so to avoid duplicating content
(or potentially creating inconsistencies between two sites), we are
revising the rule to not state that VA's website will contain this
information, but merely provide it. If, in the future, a contractor's
website is used, VA's website will provide veterans the information
they need through links to these third party sites. To clarify for the
commenters, any enrolled veteran who has received VA care under chapter
17 in the last 24-months is eligible for the urgent care benefit. Drive
time and geospatial mapping are not a consideration for the new urgent
care benefit. In addition, only urgent care received from a qualifying
non-VA entity or provider will be covered under the benefit; veterans
obtaining urgent care from out-of-network providers will be responsible
for the cost of the care.
Another commenter stated that VA should publish a website
containing information on urgent care. However, if this website
experienced technical difficulties, the commenter asked if veterans
would be able to use a 24 hour a day/7 day a week/365 day a year toll-
free number to verify whether a non-VA provider or entity is in VA's
network. VA agrees with the need to provide this information through
other means, and eligible veterans may call their nearest VA medical
facility, which will have a list of authorized providers. VA fact
sheets on this benefit will list both the online web address and call-
in numbers. However, this is an operational matter and does not require
regulation, so we are not making changes to the rule based on these
comments.
Another commenter recommended that VA provide notice to veterans of
the proposed rule changes upon implementation. The commenter indicated
that simply providing this information on the VA website will not be
sufficient notice and that VA should post this information in prominent
places within each VA medical facility, including information about the
location of the nearest urgent care centers. VA agrees that
communication about this benefit will be crucial, and as a result, VA
is developing posters, fact sheets, and other guidance that will detail
what care and services are included in the urgent care benefit and will
be provided when the new benefit goes into effect. The name and
location of qualifying non-VA entities or providers will be available
on VA's website or by contacting VA. We are not making any changes
based on this comment.
A commenter stated that VA would publish a website with the
information on the non-VA entities or provides but questioned how often
this site would be updated to indicate additions to the list as well as
deletions from the list. The commenter added that without requiring
prior approval from VA, a veteran could, through no fault of his or her
own, receive services from a non-VA provider who is no longer approved
for the program. VA will update the list of qualifying non-VA entities
and providers under this program on a regular basis. VA is not making
any changes based on this comment.
A commenter recommends that preventative measures be in place to
alert veterans prior to incurring charges that they will be liable for
the costs of care. VA will provide urgent care benefit information on
VA's website at www.va.gov, which will include information on veteran
eligibility for the benefit, available services, and qualifying non-VA
entities or providers. If a veteran is not eligible, receives services
that are not covered, or receives care from an out-of-network provider,
the veteran may be responsible for the cost of that care.
Another commenter was concerned that the VA website will not
provide sufficient information for veterans to allow them to determine
whether a retail walk-in care clinic or the more extensive range of
services available at an urgent care facility better suits their needs.
VA will provide information on qualifying non-VA entities and providers
on a website. Veterans will also be able to call the qualifying non-VA
entity or provider to determine which services they provide. VA
believes this will allow them to determine which qualifying non-VA
entity or provider can best address their particular needs. In addition
to VA's website, VA is developing posters, fact sheets, and news
releases to educate and inform veterans, VSOs and community providers
about the new benefit. VA will be able to update this information to
reflect concerns, trends, and advances in this benefit as needed.
Another commenter stated that new rules need to be very clearly
defined and that VA should post flyers in every VA medical facility as
well as mail such flyers to accredited Veteran Service Offices, County
Veteran Service Offices, and Tribal Veteran Service Offices. VA is
developing guidance on the changes to health care and services that
will be provided under 38 U.S.C. 1725A. This guidance will be widely
distributed in a variety of formats to veterans, Veterans Service
Organizations (VSO), and the public. We are not making any changes
based on these comments.
Another commenter recommended that VA provide patient and clinician
education regarding aspects of this proposed rule. VA will provide
training and education on our website for both providers and veterans.
In accordance with section 121 of the MISSION Act, VA will be
developing and administering an education program that teaches veterans
about their health care options through VA; moreover, VA will be
communicating with veterans through multiple avenues, with VA's website
being the most comprehensive method of obtaining information on the new
urgent care benefit. Additionally, as required by section 122 of the
MISSION Act, VA is developing and implementing a training program to
train employees and contractors of the Department on how to administer
non-VA health care programs, including the
[[Page 26009]]
urgent care benefit. We are not making any changes to the rule based on
these comments.
One commenter stated that veterans should not have to make
telephone calls to arrange for or confirm care. VA agrees with the
commenter and is constantly searching for new avenues to expand veteran
access for health care services. In addition to traditional in-person
or telephone scheduling of appointments, veterans can communicate with
their medical team using secure email via the My HealtheVet portal, and
many services are now available electronically via video telehealth,
allowing veterans to schedule appointments and even to receive face-to-
face care from their home, office, or other location without traveling
to a VA facility. We are not making any changes based on this comment.
We note here we made minor revisions to Sec. 17.4600(a) to clarify
the scope of the urgent care benefit under this rulemaking.
Specifically, we emphasize that eligible veterans may obtain urgent
care in accordance with the requirements and processes set forth in
this section, and that qualifying non-VA entities or providers must be
in VA's network and will be identified in accordance with paragraph
(c)(2). We regard these are clarifying edits only. We also make minor
clarifying edits to paragraph (c)(2) to note the website will provide
information on urgent care, and that the contact information will be
for qualifying non-VA entities or providers from which urgent care is
available under this section.
Comments on Emergency Care
Many commenters had suggestions and recommendations regarding the
inclusion of emergency care or emergency follow-up care as part of this
benefit.
Several commenters suggested that a patient should be admitted to a
local non-VA hospital at VA expense if the urgent care provider deems
it necessary. Similarly, some commenters questioned what would happen
if a veteran seeks care in an urgent care clinic and during this visit
the health care professional determines that the veteran requires
emergency care--would the veteran be billed for the subsequent
emergency care visit? Another commenter requested that VA allow access
to emergency care without pre-authorization. Another commenter
similarly stated that they lived 45 miles from their nearest VA medical
facility and that they should be able to visit their local hospital
emergency room (5 miles away) in the event they encounter an emergency.
Several other commenters suggested that the rule should also include
emergency room care. Another commenter also stated that veterans should
have access to urgent care for the emergency treatment of conditions
incurred in service.
The intent of this rulemaking is to provide eligible veterans the
ability to receive treatment for certain, limited, non-emergent care
from approved walk-in retail health clinics and urgent care centers.
The authority for this new benefit, section 1725A, precludes the
inclusion of emergent care by its definition of walk-in care in
1725A(h). Therefore, any emergent care deemed necessary by the urgent
care provider will not be provided under section 1725A and the urgent
care benefit. Instead, VA's authority to provide emergency treatment in
the community is 38 U.S.C. 1725 and 38 U.S.C. 1728. The eligibility
criteria for emergency treatment in the community are defined through
these statutes and their implementing regulations and are also
administered separately. Veterans seeking emergency care may be liable
for the cost of such care. We are not making any changes based on these
comments.
A commenter additionally stated that Congress should give VA the
ability to pay copayments, even in the case of emergency. We appreciate
the commenter's suggestion, but as noted in the comment itself, this
would require Congressional action. As such, this is beyond the scope
of the rulemaking, and we are not making any changes based on this
comment.
One commenter suggested that the urgent care benefit under 38
U.S.C. 1725A meant care provided in non-VA emergency rooms and that
veterans would now be charged for emergency room care. As previously
stated in this rulemaking, the current regulations that address
emergency room care at non-VA medical facilities will not be amended by
this rule. We are not making any changes based on this comment.
Several commenters stated that patients are often confused between
the definition of urgent care and emergency care and encouraged VA to
clearly define what is meant by urgent care, and how this is
distinguished from emergency care. The term emergency treatment is
defined in statute at section 1725(f)(1)(B) as care or services
rendered in a medical emergency of such nature that a prudent layperson
reasonably expects that delay in seeking immediate medical attention
would be hazardous to life or health. Urgent care, as defined in the
proposed rule, is care that does not require immediate, emergent
medical attention. If veterans are unsure whether or not they are
having a medical emergency, they should call 9-1-1 or visit their
nearest emergency room. We are not making any changes to the rule based
on these comments.
Comments on Contracts With Non-VA Entities or Providers and Billing
Several commenters requested that community health care providers
accepting Medicare or Medicaid be required to accept veterans and that
veterans be able to receive care at any facility. Health care providers
are independent businesses, licensed by the State in which they are
offering health care services to the public. There are no statutes or
Federal regulations that require an independent business to contract
with a Federal agency to provide health care services without the
consent of the provider. The comment addresses VA's community care
program more broadly and is thus beyond the scope of this rulemaking,
which is limited just to the urgent care benefit.
One commenter questioned how the contracts between the urgent care
facilities and VA would be written, specifically asking if VA or the
veteran will be the payer. The commenter indicated that the veteran
should not be billed when VA fails to pay the urgent care facility
timely. One commenter was also concerned that the non-VA entities or
providers may not accept VA patients because VA has not issued payments
timely. Similarly, another commenter further questioned whether the
payment to the urgent care facility will be faster than similar
payments to care in the community. The commenter was concerned that if
the payment to the urgent care facility takes too long, the bill for
care could be sent for collection, destroying the veteran's credit
rating. Also, the commenter asked what would happen if VA took too long
to pay and the urgent care facility billed the veteran's Medicare or
other health insurance, incurring a bill above the VA copayment saying
that they gave VA a reasonable amount of time to pay. Qualifying non-VA
entities or providers must have a contract, agreement, or other
arrangement to furnish benefits under this section. The terms of these
contracts or agreements will define the provider's ability to seek
payment and VA's responsibilities for payment. VA will be administering
this benefit through a managed network, where VA has a contractual
relationship with a third-party administrator (TPA) that in turn has
contracts or agreements with a network of providers. Payments are
similarly separated--VA pays the TPA,
[[Page 26010]]
and the TPA pays the provider. We believe that these arrangements
provide sufficient assurances that eligible veterans will not be billed
for urgent care furnished by qualifying non-VA entities or providers.
As we have stated previously, though, if an eligible veteran received
urgent care from an entity or provider that is not a qualifying non-VA
entity or provider, VA would have no contract or mechanism to prohibit
that provider from billing the veteran. We recommend veterans contact
VA if they have any question as to whether or not the walk-in retail
health clinic or urgent care center they are planning to access is in
VA's network. We are not making any changes based on this comment.
A commenter indicated that the proposed rule would increase access
to much needed health care. However, the commenter was concerned that
non-VA doctors would not want to enter into contracts with VA because
the pay may be less than their regular fees. VA has entered into
contracts with TPAs to administer this benefit, and we believe the
payment rates for providers under these contracts are sufficient to
maintain an adequate network of providers because they are comparable
to rates negotiated by other Federal health care agencies and third-
party health plan contracts. We are not making any changes based on
this comment.
A commenter recommended that if an agreement currently exists with
a non-VA provider or entity, VA should amend such contracts by adding
an addendum to include urgent care. The commenter wanted to avoid
creating a separate agreement for urgent care because it would cause an
undue burden on the non-VA entity or provider and having said addendum
would fast track the process and bring needed service expansion to
eligible veterans. The method VA uses to procure these services is
outside the scope of this rulemaking, which deals exclusively with the
scope of the benefit, not how it will be purchased. We are not making
any changes based on this comment.
Another commenter stated that the rule would be a huge advantage
for veterans to receive timely access to urgent care services. However,
the commenter cautioned that CMS should impose strict billing
guidelines so that veterans do not end up with surprise bills. The
commenter suggested that facilities and providers be attested with CMS
and thoroughly perform Recovery Audit Contractors (RAC) audits of any
facility treating veterans. Another commenter cautioned that VA must
make certain that veterans are not burdened with a financial obligation
beyond the copayment. We note that CMS billing is not applicable to VA;
while VA generally pays CMS rates, CMS does not pay claims on VA's
behalf or audit VA's community network of providers. VA does not
anticipate veterans will have surprise bills for the reasons described
above concerning VA's contractual arrangements with TPAs, and the TPAs'
relationships with providers. Veterans will only be charged a copayment
for the services, if applicable, by VA. However, as noted, care that is
provided to a non-eligible veteran or by a non-qualifying entity or
provider could be billed to the veteran. We are not making any changes
based on these comments.
Another commenter was concerned that VA contracts with retail walk-
in clinics and urgent care centers will not adequately address the
difference in the care offered by the various types of retail walk-in
clinics versus urgent care centers. VA understands and appreciates the
differences and similarities between the types of care offered at
urgent care facilities and walk in care clinics in the private sector.
VA will provide information on a website on the qualifying non-VA
providers and entities. VA believes that veterans will be able to call
the qualifying non-VA entity or provider would best address their
needs. We are going to have TPA contracts that require the TPA to
provide a network of providers to furnish these services on our behalf.
VA appreciates the commenters concern and will ensure that the
information available to veterans is adjusted to ensure veterans
understand this benefit and can use it as intended. The veteran will be
able to go to whichever contracted facility has the service that they
require.
One commenter requested clarification on the process stated in
proposed Sec. 17.4600(b)(4) stating that VA will enter into an
agreement with non-VA entities or providers to furnish urgent care. The
commenter stated that they believed that it is in the best interest of
the veteran that a streamlined process be established to ensure the
availability of urgent care to veterans, particularly those who live in
rural areas. The commenter also requested that VA specify that the
payment for urgent care services will be at the same rates Medicare
pays the specific providers for those services. VA will be contracting
with TPAs to provide urgent care. The payment rate for care and
services will be included in the terms of the contract. We are not
making any changes based on these comments. We revise the proposed
definition of a qualifying non-VA entity or provider to recognize
explicitly that VA intends to use third-party administrators to make
urgent care available to veterans. In implementing this authority, VA
intends to utilize contracts with non-VA entities, third-party
administrators, to furnish services under this section. The third-party
administrators would, in turn, have their own contracts or agreements
with direct care providers in the community that furnish urgent care to
veterans under this section. To remove any ambiguity as to what we mean
when we refer to qualifying non-VA entities or providers in this
regulation, we are recognizing this arrangement with this new language.
This is consistent with both the plain language of the statute, as well
as Congressional intent. In a Committee report, the Senate Veterans'
Affairs Committee stated in the context of section 1725A(c) that, ``It
is the Committee's intent that the authority in this section be
exercised nation-wide, among several types of entities or providers to
ensure adequate coverage, so that all veterans have the option of
utilizing this convenient, walk-in care.'' S. Rpt. 115-212, p. 19.
One commenter suggested that VA should consider changing its
current policy to serve as the secondary payer for urgent non-service
connected care delivered in the community. VA does not have authority
to act as a secondary payer for urgent care; such a change would
require Congress to amend VA's statutory authority. We are not making
any changes based on this comment.
A commenter was concerned how VA would qualify the non-VA entities
or providers as ``approved'' vendors. VA will be entering into
contracts or agreements with TPAs to access a network of urgent care
centers and walk-in retail health clinics to create a network of
qualified local providers. VA defines a qualifying non-VA entity or
provider to mean a non-VA entity or provider that has entered into a
contract, agreement, or other arrangement with VA to furnish urgent
care. We are not making any changes based on these comments.
Comments on Information Sharing With Community Providers
Multiple commenters had concerns and suggestions regarding medical
record sharing with qualifying non-VA entities or providers.
One commenter indicated that strategically-placed partnerships with
urgent care providers must be combined with bidirectional access to the
veterans' medical data through VA provided highly secure encrypted
hardware that will not locally store
[[Page 26011]]
personal health information (PHI). Another commenter similarly stated
that VA medical records should be shared with the urgent care clinics.
One commenter suggested that physicians and insurers enroll and certify
in VA-mandated reporting and integration of the veterans' medical
records. A commenter proposed that VA set forth the expectation that
non-VA entities or providers must provide electronic interoperable
visit summaries to VA so that this information can be added to the
electronic health record. The commenter further stated that submission
of these visit summaries should be a condition for payment. Another
commenter worried that the urgent care provider would not be able to
provide the veteran the best care needed because the provider does not
have access to the veteran's VA health record at the time of the urgent
care visit. The commenter also noted that this lack of access to
medical records may, in turn, not reflect that the veteran is addicted
to opioids, or the urgent care facility could dispense medication that
may adversely interfere with a medication that has been prescribed by
VA. Another commenter suggested that non-VA urgent care entities
possess the information technology capabilities to be able to interface
with VA electronic medical record system.
Section 1725A(e) of 38 U.S.C. requires VA to ensure continuity of
care for this new benefit; specifically, VA is required to establish a
mechanism to receive medical records from walk-in care providers and
provide pertinent medical records to providers of walk-in care. VA
participates in industry standard Health Information Exchanges (HIE) to
share medical records, which has security measures in place to protect
the veteran's medical records. If the provider does not participate in
an HIE, VA can provide pertinent medical records through other means,
including through requesting access to a secure web-based version of
veterans' medical records (Community Viewer). Therefore, although VA
acknowledges the commenter's concern about potential negative health
outcomes, which include adverse reactions to medications or substance
abuse of opioids, if the qualifying non-VA entity or provider is not
provided access to the veteran's medical records, VA has systems in
place, either through the HIE or through community viewer, to make the
needed health information available to the qualifying non-VA entity or
provider at the point of care.
Continuity of care will be managed because the urgent care provider
must submit medical documentation back to VA so that the veteran's VA
provider has access to the information. If further treatment is
required, the veteran is responsible for contacting VA to coordinate
any follow-up care. We are not making any changes based on these
comments.
Comments on Other VA Health Care Programs
Many commenters submitted comments related to VA's Community Care
Program or Veterans Choice Program. These comments are beyond the scope
of the rulemaking as this rulemaking only implements 38 U.S.C. 1725A,
which is distinct from VA's authority to provide the care in the
community generally under 38 U.S.C. 1703, as amended by section 101 of
the MISSION Act. However, we are summarizing them here in the interest
of transparency.
One commenter indicated that they wanted to comment on the first
two items of the VA News Letter dated January 30, 2019. Because the
commenter could not find a comment section in the VA News Letter, the
commenter decided to comment on the rule. The commenter added that
urgent care was the third item, for which they didn't provide a
comment. Instead, the commenter requested more information on the
grandfathering of the Veterans Choice Program and the qualification
standards for the new access standards for the program that would
replace the Veterans Choice Program. Another commenter asked if the
proposed rule would mean that if a veteran lives more than 30 minutes
away from their nearest VA medical facility the veteran can do all of
their health care outside VA. Multiple commenters stated that they
routinely had their appointments cancelled when they sought care in the
community and that the average wait time for the appointment was five
to six months. One commenter added that they had no choice in where to
receive the care in the community because the VA physician ordered the
appointment. A commenter similarly asked if the proposed rule means
that since it takes a month to get a VA mental health appointment, the
veteran can go to a local health care provider. Another commenter
suggested that the drive distance to obtain urgent care should be 50
miles. The commenter stated that they had to receive care from
emergency rooms because they were not able to obtain an appointment in
a VA medical facility timely. Another commenter stated that the
proposed new travel distances, travel times, and appointment wait times
do nothing to improve a veteran's care. The commenter further stated
that changing from travel distance to travel time criteria will allow
more veterans in metropolitan areas where there are large VA hospitals
to use non-VA providers, which will deplete VA funds and deprive rural
veterans of non-VA care for services not provided in smaller VA
hospitals and clinics. Another commenter concurs with the proposed
access standards and holds VA accountable for meeting, if not exceeding
them. Another commenter also states that distance and time are major
factors when someone is suffering from injury or pain and mentions that
the 40 mile criterion is essential for all rural areas. Similarly, a
commenter questioned if the proposed rule meant that the veteran can
find a local cardiologist rather than the 75-mile drive to the nearest
VA medical facility.
This rulemaking does not implement or affect eligibility under
section 1703 for VA's Community Care Program of Veterans Choice
Program. Travel distances are also not a consideration for urgent care.
Section 1725A does not place a mileage limit for non-VA entities or
providers that would offer urgent care. VA will enter into contracts or
agreements with qualifying non-VA entities or providers within the
community, and we believe this will expand access to care in the
community (through additional locations) and in VA facilities (by
freeing up some resources). These comments are beyond the scope of the
rulemaking. We will not make any changes to the rule based on these
comments.
One veteran was not in favor of the rule, stating that the rule
morphs fee basis in name only in an attempt to convince veterans that
something has changed for the better. The commenter recommends that VA
replace the Choice Act with the Civilian Health and Medical Program of
the Department of Veterans Affairs (CHAMPVA). The Veterans Choice
Program authorizes VA to furnish hospital care and medical services to
eligible veterans, as defined in Sec. 17.1510, through agreements with
eligible entities or providers, as defined in Sec. 17.1530. See
Sec. Sec. 17.1500 through 17.1540. The authority for the Veterans
Choice Program is Sec. 101, Public Law 113-146, 128 Stat. 1754, as
amended, and VA's authority to furnish care and services under that
Program will end on June 6, 2019. CHAMPVA furnishes medical care to
certain dependents and survivors of active duty and retired members of
the Armed Forces and is authorized under 38 U.S.C. 1781. The proposed
rule did not address the Veterans Choice Program, the Veterans
Community Care Program, or CHAMPVA, and any comment regarding
[[Page 26012]]
those programs is beyond the scope of this rulemaking.
Comments on Quality
Several commenters were concerned that the quality of providers at
urgent care facilities would not be as good as the quality of care
veterans receive at VA facilities. One commenter stated that VA already
provides same-day access to veterans at every VA facility. The
commenter stated that this is the preferred source of care in terms of
quality, cost effectiveness, and coordination of care. If there are
staffing or space needs to ensure same day urgent care access at every
VA facility, that should be addressed first through oversight and
funding to fill the over 40,000 unfilled positions in the Veterans
Health Administration. Another commenter recommended that treatment for
rated illnesses and complex issues should be under tighter VA control
and tight certification of non-VA providers. VA agrees with the
commenter that quality health care services are important; therefore,
we have revised the procedures under Sec. 17.4600(c) to add a new
paragraph (4) that states that urgent care furnished under this section
must meet VA's standards for quality established under 38 U.S.C. 1703C,
as applicable. We note that VA's standards for quality may not be fully
incorporated into the contracts or agreements by the effective date of
this regulation, or some standards may refer to population-based
metrics that are not relevant in individual circumstances, and
therefore we have included the language ``as applicable'' to
demonstrate that urgent care will only be required to meet the
standards for quality once those standards have been articulated and
are in the contracts or agreements. VA reiterates that it is solely the
veteran's choice whether to seek urgent care at a qualifying non-VA
entity or provider or seek care at a VA facility. VA further notes that
the funding to fill the over 40,000 VA unfilled positions as stated by
the commenter is beyond the scope of the proposed rule.
A commenter stated that there must be a mechanism to generate data
to assess quality improvements and cost savings and accountability for
the $1.4 billion in spending for the urgent care benefit. VA is working
on processes to assess quality improvements and cost savings for the
benefit. We will conduct reviews once the benefit is implemented.
However, as these are internal administrative matters, we are making no
changes to the rule based on this comment.
A commenter questioned how the proposed rule would affect providers
and what provisions are being taken to ensure there is no provider
burnout as clinical roles have a high burnout rate. The commenter added
that it would be unfortunate to have greater access, but poorer quality
of care due to burnout. We do not expect this benefit would affect or
contribute to provider burnout. If the commenter is referring to
qualifying non-VA entities or providers, they are independent
businesses, licensed by the individual States in which they are
offering health care services to the public. It is their
responsibility, and in their interest, to determine how many patients
can be treated. VA agrees with the commenter that quality health care
services are important; therefore, VA will require the urgent care
furnished under this section to meet VA's standards for quality under
section 1703C. If the commenter is referring to burnout of VA health
care professionals, although the proposed rule itself does not address
provider burnout, VA is using VA patient aligned care teams (PACT) help
manage the flow of care and information. Several studies have shown
PACTs to be associated with lower provider burnout.\1\ We are not
making any changes based on this comment.
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\1\ Karin M. Nelson, MD, MSHS; Christian Helfrich, MPH, Ph.D.;
Haili Sun; et al: Implementation of the Patient-Centered Medical
Home in the Veterans Health Administration Associations With Patient
Satisfaction, Quality of Care, Staff Burnout, and Hospital and
Emergency Department Use: JAMA Intern Med. June 23,
2014;174(8):1350-1358; Christian D. Helfrich, MPH, Ph.D., Joseph A.
Simonetti, MD, MPH, Walter L. Clinton, Ph.D.; et al: The Association
of Team-Specific Workload and Staffing with Odds of Burnout Among VA
Primary Care Team Members: J Gen Intern Med February 23,
2017:32(7):760-6.
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A commenter stated that the proposed rule should address quality as
well as access. The commenter urged VA to include in the contracts with
the non-VA entity or provider a requirement that they have earned the
National Committee for Quality Assurance Patient-Centered Connected
Care Recognition. The commenter indicated that this program is designed
to help ensure that urgent, retail, and other clinics connect and
coordinate with the patient's primary care provider. The commenter
further stated that Patient-Centered Connected Care Recognition creates
a roadmap for how urgent care and retail clinics can fit into the
medical neighborhoods of Patient-Centered Medical Homes and Patient-
Centered Specialty Practices, which closely align with the VA MISSION
Act of 2018's non-urgent care quality standards by avoiding re-creating
the wheel and requiring non-VA entities or providers to meet ready-made
standards. The National Committee for Quality Assurance (NCQA) is a
private organization that contracts its services out to the private
sector and government agencies to assist them with measuring and
improving quality. Another commenter suggested that non-VA entities
receive Joint Commission accreditation prior to being included in the
VA urgent care network of providers. The commenter also indicated that
the proposed rule does not mention assessing quality metrics for the
non-VA entities or providers who will provide urgent care services. The
commenter recommends that every provider should be pre-screened for
equivalent credentials, training, and expertise that is required of VA
health care professionals. Lastly, the commenter recommended that every
provider of urgent care should track and report quality processing and
outcomes of the veteran patients in order to adequately assess the
quality of care provided.
As stated before, VA agrees with the commenters that quality health
care services are important; therefore, we have revised the procedures
associated with urgent care under Sec. 17.4600(c) to include a new
paragraph (4) that states that urgent care furnished under this section
must meet VA's standards for quality established under 38 U.S.C. 1703C,
as applicable. We are not making any changes based on this comment.
A commenter stated that VA is the national leader in integrating
primary care and mental health, and they believe that walk-in clinics
will result in inferior, fragmented mental health care by providers
with significantly less training and supervision. Although the majority
of the care provided for mental health is generally considered
longitudinal care, if a veteran has a need for urgent mental health
care, they may receive such care through this benefit. VA emphasizes
that long-term mental health care should be coordinated through the
veteran's primary care provider and not through the urgent care
benefit. VA has also been expending resources to expand access to
immediate and urgent mental health care, and we believe that better
patient outcomes can be achieved by furnishing such care through VA. In
2007, VA established the Veterans Crisis Line, which provides
confidential support to veterans in crisis. Veterans, as well as their
family and friends, can call, text, or chat online with a caring,
qualified responder, regardless of eligibility for VA care or
enrollment in VA's health care system. VA is committed to
[[Page 26013]]
providing free and confidential crisis support to veterans 24 hours a
day, 7 days a week. In addition, VA has implemented a ``no wrong door''
philosophy so that every VA employee will assist veterans in need.
Comments on VA Staffing, Hiring, and Budget
Several commenters had concerns and suggestions regarding internal
VA structure, including VA's staffing, hiring, and budget
considerations. We are addressing the comments related to these
subjects in this section, but because they are outside the scope of
this rulemaking, we will not be making changes as a result of these
comments.
Multiple commenters expressed concerns that, absent increased and
dedicated funding by Congress equal to the actual costs of the new
urgent care program, which they noted may be grossly underestimated by
the administration and the Congressional Budget Office, funds may be
diverted from traditional medical services within VA or other VA
services. One commenter suggested Congress should provide funding for
double the estimated usage. Another commenter strongly urged VA to work
with Congress to provide the necessary additional funding to existing
VA medical facilities that have the capability to provide urgent care
services. VA performed an actuarial analysis to estimate the total cost
of the increased reliance that would result from the new MISSION
standards. We will continue to monitor resource needs and utilization
and respond accordingly. The provision of funds from Congress for the
urgent care benefit is beyond the scope of the proposed rule.
Several commenters stated that privatizing VA health care, or any
move towards privatization, is the wrong move and will eventually harm
veterans and cost taxpayers hundreds of billions of dollars in
giveaways to the private sector. VA has no intention to privatize and
does not believe that this benefit moves towards privatization. The
purpose of this benefit is to implement section 1725A by providing
veterans a convenient option for seeking episodic care.
One commenter additionally suggested that because the government
already has TRICARE and Medicare, VA should authorize a special class
of eligible users and provide separate funding for the anticipated
impact that would allow veterans more access to civilian care, but
within already established program channels. TRICARE and Medicare are
not entities that are governed by VA and, as such, the substitution of
VA care for these two benefits is beyond the scope of the proposed rule
and is neither authorized nor even contemplated by law. We are not
making any changes based on these comments.
Multiple commenters were concerned with the rule because they
believe that veterans' care should be managed by VA. VA is the primary
provider of care and services to veterans; the proposed rule will not
change that. The proposed rule will increase veterans' access to care
and services available from local community providers in limited
circumstances. VA believes that the implementation of this new benefit,
as structured, will encourage veterans to seek care from VA facilities
for primary and longitudinal care and only access urgent care when
necessary and appropriate to treat an episodic condition.
One commenter suggested that VA staff VA medical facilities with
medical personnel from the Reserve and National Guard to accomplish
their active duty training. The commenter added that VA should
incentivize civilian workers and retired medical persons to volunteer
their services, possibly under the supervision of an active duty
medical person. We appreciate the commenter's suggestion; however, the
appointment of health care professionals as VA employees or volunteers
is beyond the scope of the proposed rule. We are not making any changes
based on this comment.
One commenter suggested that VA medical facilities have longer
operating hours and use local doctors and nurses to work in VA medical
facilities. In doing so, VA would not have a need to use the Veterans
Choice Program. The operating hours of VA medical facilities are beyond
the scope of the proposed rule, but we note that VA is implementing the
Improving Capacity, Efficiency, and Productivity initiative, a
collaboration among VA offices focused on creating efficient practice
solutions, including offering extended hours (evenings and Saturdays),
using telehealth and video appointments, providing facilities with
appropriate guidance for overbooking, and adopting point-of-care
scheduling. We are making no changes based on this comment.
One commenter stated that VA cannot staff their VA medical
facilities and questioned why VA was trying to make veterans think that
VA could open walk-in clinics. Although VA provides same-day services
at VA medical facilities, the urgent care benefit will not be creating
new VA medical facilities to provide urgent care to eligible veterans,
nor will it impose any new obligations on VA facilities in terms of
care delivery. Urgent care will be furnished through qualifying non-VA
entities or providers, as stated in 38 U.S.C. 1725A. We are not making
any changes based on this comment.
One commenter requested that VA fill the existing vacancies at all
VA departments. The commenter added that not hiring persons for empty
existing vacancies is causing problems for veterans. We presume that
the commenter meant the hiring of VA health care professionals. The
proposed rule addressed urgent care authorized by 38 U.S.C. 1725A. The
hiring of VA health care professionals is beyond the scope of the
proposed rule. We are not making any changes based on this comment.
One commenter stated that one of the most important programs within
the VA system is training of residents. The commenter expressed concern
that a reduction in volume at VA facilities due to reliance on the new
urgent care benefit may result in a reduction in this program, or a
reduction in the types of training or opportunities it could provide.
The commenter states that if these training programs for residents are
reduced or eliminated it could have a far-reaching downstream effect,
not only on the nation's veterans but on the nation as a whole. We do
not believe that the urgent care benefit is a diversion of care away
from VA medical facilities. We are not making any changes based on this
comment.
Multiple commenters addressed the need for triage or a nurse line.
In particular, one commenter agreed that urgent care is a nice addition
to VA health care, but believed that VA should have a few checks and
balances for the use of urgent care. The commenter recommended that
every veteran who seeks urgent care should be required to call their VA
clinic or be provided triage or VA nurse helpline prior to running out
and receiving urgent care. The commenter also recommended hiring more
health care staff and manning a VA urgent care clinic after hours. The
commenter stated that when possible, the health care needs of the
veteran should be kept in the VA health care system. Veterans always
have the ability to contact a VA call center or their VA or VA-
authorized primary care provider for guidance or to seek care within
the VA health care system. However, pre-approval from VA is not a
requirement for eligible veterans to receive urgent care, and this
benefit is intended to be a supplement to existing VA services. We are
not making any changes based on this comment.
[[Page 26014]]
One commenter recommends delaying the implementation of the
proposed rule. For the reasons stated under the Congressional Review
Act heading below, we do not believe it would be in the public interest
to delay the effective date of this rule. We are not making any changes
based on this comment.
Comments on Veteran Eligibility and Other Benefits
One commenter opposed the use of walk-in clinics to supplement the
primary and specialty care provided by VA and demanded that VA place a
firm limit on the number of times a patient may use these walk-in
clinics and the type of services that will be provided, exercise
oversight authority over these clinics as providers, and work to
increase VA's ability to provide same-day access at VA facilities. VA
agrees with the commenter as the urgent care benefit is not meant to
supplant primary and specialty care provided by VA. VA is not limiting
the number of visits, as VA is striving to ensure veterans will have
access to convenient care when necessary. VA is limiting the types of
services provided to ensure that preventive care is not provided
through this benefit and the veteran's primary care is managed through
the veteran's primary care physician. VA is working on increasing
internal capacity at medical facilities while ensuring veterans have
access to facilities to address urgent care needs.
Several commenters recommended that VA allow veterans to present
their VA medical card as insurance to any health care facility in the
community. Another commenter similarly recommended that VA provide a
State and County wide database that contains all of the veterans in the
VA health care system that can be accessed by the attending physician.
The commenter added that the chip in the veteran's VA or Veterans
Choice Program card can be used for this purpose. Similarly, one
commenter recommended that VA patient identification cards contain all
the data related to the veteran's status, including priority group,
enrollment status for the Veterans Choice Program (40 mile rule), and
disability rating. The commenter also stated that if a care center or
doctor accepts Medicare or Medicaid, they should also accept any
authorized care, including Veterans Choice and Tri-West. Several
commenters similarly stated that veterans should automatically receive
urgent care at any non-VA entity or provider in the country by simply
showing the VA card with the veteran's picture on it, and getting
reimbursed by VA, rather than having to drive to the VA facility miles
away. With today's technology, the commenter indicated that a veteran
should not be making calls to arrange or confirm care. These comments
all deal with programs or benefits that are beyond the scope of this
rulemaking. While VA provides the Veteran Health Identification Card
(VHIC) for veterans enrolled in the VA health care system, VA is not an
insurance program and the cards do not provide proof of health
insurance coverage. VA does not place the veteran's personal or medical
information on electronic chips embedded in VA issued cards; instead,
VA utilizes a secure national database available to VA clinicians and
staff charged with the responsibility for providing care and services
to eligible veterans. We are not making any changes based on these
comments.
One commenter indicated that they highly recommend physical therapy
assistants and occupational therapy assistants as TRICARE providers.
The commenter added that both health care professionals are supervised
by physical therapists and occupational therapists and are an
underutilized health care resource. The use of physical therapy
assistants and occupational therapy assistants as TRICARE providers is
beyond the scope of the proposed rule. We are not making any changes
based on this comment.
One commenter was concerned with what constitutes having received
health care for purposes of meeting the 24-month eligibility
requirement. Another commenter did not believe VA should limit the
urgent care to veterans seen by VA within the last 24 months. The
eligibility requirement is set forth in 38 U.S.C. 1725A(b), and VA
cross-referenced this requirement in its proposed rule without further
elaboration. However, as we explained, this provision of law requires
the veteran be enrolled in VA's health care system and have received
care under chapter 17 within the 24-month period preceding the
furnishing of walk-in or urgent care. This latter requirement would be
met in any of the following circumstances: Care provided in a VA
facility, care authorized by VA performed by a community provider, care
reimbursed under VA's Foreign Medical Program (38 U.S.C. 1724) or an
emergency treatment authority (38 U.S.C. 1725 or 1728) care furnished
by a State Veterans Home, or urgent care furnished under this
authority. A commenter also questioned what does not constitute
received health care for purposes of meeting the 24-month eligibility
requirement. Any care furnished to a veteran that is not furnished
under a provision in chapter 17 of title 38, United States Code, would
not satisfy the requirement in section 1725A(b)(2). We are not making
any changes based on these comments.
Another commenter was concerned that the proposed rule would
exclude veterans who receive care under the Foreign Medical Program
because they might not meet the 24-month requirement. The commenter
recommended that the rule be amended to specifically state that
eligible veterans include those in the Foreign Medical Program. As
previously stated the Foreign Medical Program is covered under the 24-
month eligibility requirement stated in section 1725A. We are not
making any changes based on these comments.
Another commenter stated that it would be nice if urgent care also
applies to disabled veteran expatriates. The commenter added that
currently even 100 percent disabled veterans not living in the United
States covered by the Foreign Medical Program are not truly covered. VA
currently does not have contracts in foreign countries. Section
1725A(c) requires that VA have contracts in place to provide the urgent
care benefit. Consequently, without such contracts, VA cannot furnish
urgent care through the Foreign Medical Program. We are not making any
changes based on this comment.
One commenter stated that TRICARE and CHAMPVA require enrollment in
Medicare Part B when eligible. The commenter questioned why VA did not
require veterans to enroll in Medicare Part B, when eligible, and added
that this would help offset the cost of non-VA provided care. Section
1725A of 38 U.S.C. provides that any enrolled veteran who has received
care in the last 24-months is eligible for the new urgent care benefit.
Section 1725A does not require the veteran to have other health
insurance coverage, and we do not believe we have the authority to
impose such a requirement under this authority. We are not making any
changes based on this comment.
Another commenter stated that all veterans should be given Medicare
with the Part B supplemental at no cost to allow veterans to use any
private hospital in our nation. Another commenter similarly stated that
VA needs to let Medicare take over billing for veterans and not have
money assigned to Medicare, VA care, and then payments under contracts
for such things as the Veterans Choice Program and the Veterans
Community Care Program. VA does not oversee or implement the Medicare
program, and
[[Page 26015]]
CMS does not have authority to operate programs on VA's behalf. Further
these comments are beyond the scope of the proposed rule. We are not
making any changes based on this comment.
One commenter suggested that travel not be paid for veterans who
use urgent care. Beneficiary travel is regulated under 38 CFR 70.1
through 70.50 and the purpose of the program is to make payments for
travel expenses incurred in the United States to help veterans and
other persons obtain care or services from VA. Eligible veterans who
seek urgent care may also qualify for beneficiary travel if they meet
the requirements of Sec. 70.10. We are not making any changes based on
this comment.
Another commenter stated that VA needs to increase the rate it pays
for beneficiary travel. The commenter also stated that there should be
more programs for helping veterans updating their houses. The commenter
also stated that they were not able to obtain an emotional support dog.
The proposed rule addressed urgent care authorized by 38 U.S.C. 1725A.
These concerns are beyond the scope of the proposed rule. We are not
making any changes based on these comments.
One commenter stated that more information is needed to evaluate
whether or not the new urgent care benefit will improve health care
outcomes or inadvertently harm veterans, particularly those who are
older and disabled. The commenter further stated that older adults with
multiple morbidities are better served in a continuity system and use
of disconnected urgent care visits should not be encouraged. Section
1725A authorizes VA to provide urgent care to eligible veterans. The
scope of services available under this program, and the range of
providers who can furnish this care, will necessarily be limited to
some degree, and patient health will be monitored by VA clinical staff
to ensure eligible veterans who use this benefit receive continuous,
necessary care. We are not making any changes based on this comment.
Another commenter recommended expanding Medicare's definition of
urgent care entities and including primary care clinics and emergency
room departments with fast-tracks for urgent care needs. In defining
qualifying non-VA entities or providers, VA is utilizing the billing
codes CMS has developed for walk-in retail health clinics and urgent
care centers. To the suggestion that VA include primary care clinics
and emergency room departments with fast tracks for urgent care, VA may
consider these facilities as qualifying non-VA entities or providers as
long as they utilize CMS billing codes 17 or 20. We are not making any
changes based on this comment.
Another commenter stated that any walk-in clinic pilot or analysis
should include the input of all key stakeholders, including labor
representatives of frontline employees who are tasked with providing,
arranging, and coordinating care as well as VSOs. The rulemaking
process is meant to ensure stakeholders are allowed to provide input
for the regulations of this new benefit. VA provided a 30-day comment
period for this rulemaking. All interested stakeholders were able to
submit a comment. VA notes that it has used caution and has thoroughly
reviewed the comments we received. VA will provide educational material
on the changes to health care and services under section 1725A. This
material will be widely distributed in a variety of formats through an
aggressive communications plan with VA's internal and external
stakeholders including VA staff and Veteran Service Organizations. We
are not making any changes based on this comment.
Another commenter supported the efforts to expand access for
veterans to non-VA care facilities for immediate, time-sensitive care
and requested that VA take this opportunity to begin the long-delayed
coordination with Urban Indian Health Programs (UIHP) to address these
needs. The commenter supports the inclusion of section 1725A(c)(1) to
clearly define when an eligible veteran can access time-sensitive care
and VA's decision to allow such care to be furnished without prior
approval from VA. The commenter added that VA has never fully
implemented the VA-Indian Health Service Memorandum of Understanding
(MoU) for UIHPs. The commenter stated that VA must expeditiously
implement this MoU so that UIHPs can be reimbursed for providing
culturally competent care (including culturally competent urgent care)
to the American Indian and Alaska Native veterans residing in urban
areas. The commenter stated that VA should ensure that opportunities
and new programs that seek to expand access to care for veterans are
inclusive of UIHPs. The MoU for UIHPs is beyond the scope of the
proposed rule, which only addresses urgent care authorized under
section 1725A.
This commenter was concerned that the proposal to define urgent
care to encompass walk-in care will hinder the ability of UIHPs to
provide services under this program--again leaving UIHPs out of the
equation. The proposal to define urgent care to encompass walk-in care
will have no effect if UIHPs can provide the services and qualify to be
part of our contracted network. As previously explained, VA is defining
urgent care to mean, in general, those services available at facilities
that submit claims utilizing the Medicare Place of Service (POS) codes
17 and 20. We welcome UIHPs to apply to be part of the contracted
network of care to help meet the needs of veterans. We are not making
any changes to the rule based on this comment.
Comments on the Rulemaking Process
Several commenters opposed the shortened public comment period,
stating that it was a devious and underhanded way to restrict the
ability of the public to review and comment and to limit the number of
comments received in opposition, as it is obvious this proposal would
be greatly opposed. One commenter added that the sole and very obvious
purpose of the shortened comments period was to make it appear that not
many people actually oppose this new proposal, and thus ensure its
adoption. As we explained in the proposed rule, we believe that a 30-
day comment period was appropriate because it would allow the Secretary
to expedite the commencement of this new benefit, thereby increasing
access to health care for eligible veterans. We also note that we
received more than 3,000 comments during this 30-day period, and we
believe these comments came from a wide cross-section of the public.
Therefore, we consider the 30-day comment period adequate and
appropriate.
One commenter stated that the proposed rule was too complicated and
that the rule should by simplified. VA understands that some veterans
may need assistance in understanding how to obtain urgent care. As part
of the implementation process of the rule, VA will establish a website
that will state the locations of qualifying non-VA entities or
providers where eligible veterans may receive urgent care in their
community. Veterans may also call their local VA medical facility for
additional assistance in obtaining information on urgent care. We are
not making any changes based on this comment.
Several commenters made remarks on the proposed rule but did not
provide additional information on their comment. In particular,
commenters stated that they looked forward to seeing veterans get the
care they deserve but provided no additional information. Other
commenters opposed the rulemaking but did not explain the basis
[[Page 26016]]
for their opposition. Several commenters simply stated that veterans
should be honored. Other commenters made non-substantive comments that
VA considers inappropriate due to language and content and will not be
addressed in this final rule. We are not making any changes based on
these comments.
Based on the rationale set forth in the Supplementary Information
to the proposed rule and in this final rule, VA is adopting the
proposed rule with the edits described in this rulemaking.
Effect of Rulemaking
The Code of Federal Regulations, as revised by this final
rulemaking, represents the exclusive legal authority on this subject.
No contrary rules or procedures would be authorized. All VA guidance
would be read to conform with this final rulemaking if possible or, if
not possible, such guidance would be superseded by this rulemaking.
Paperwork Reduction Act
This rulemaking does not contain any provisions constituting
collections of information under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule does 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 final rule does not have a significant economic impact on
qualifying non-VA entities or providers. To the extent there is any
such impact, it would result in increased business and revenue for them
based on voluntary entry into contracts to provide care. We also do not
believe there will be a significant economic impact on insurance
companies, as claims would only be submitted for care that would
otherwise have been received if the veteran had received this care in a
primary care visit. Therefore, pursuant to 5 U.S.C. 605(b), this
rulemaking is exempt from the initial and final regulatory flexibility
analysis requirements of 5 U.S.C. 603 and 604.
Executive Orders 12866, 13563 and 13771
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.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by the Office
of Management and Budget (OMB), as any regulatory action that is likely
to result in a rule that may: (1) Have an annual effect on the economy
of $100 million or more or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this regulatory action and determined that the
action is an economically significant regulatory action under Executive
Order 12866. VA's regulatory impact analysis can be found as a
supporting document at http://www.regulations.gov, usually within 48
hours after the rulemaking document is published. Additionally, a copy
of the rulemaking and its regulatory impact analysis are available on
VA's website at http://www.va.gov/orpm by following the link for VA
Regulations Published from FY 2004 through FYTD. This final rule is
considered an E.O. 13771 regulatory action. Details on the estimated
costs of this final rule can be found in the rule's economic analysis.
VA has determined that the net costs are $34.3 million over a five-year
period (FY2019-FY2023) and $6.8 million per year on an ongoing basis
discounted at 7 percent relative to year 2016, over a perpetual time
horizon.
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.
Congressional Review Act
The Secretary of Veterans Affairs finds that there is good cause
under the provisions of 5 U.S.C. 808(2) to publish this final rule
without full, prior Congressional review under 5 U.S.C. 801 and to make
the rule effective on June 6, 2019. Specifically, the Secretary finds
that it would be contrary to the public interest to delay the date this
rule could be operative and effective because any delay in implementing
the rule would have a severe and detrimental impact on eligible
veterans' health care.
This rule will grant eligible veterans access to urgent and walk-in
care from qualifying non-VA entities or providers without prior
approval from VA. This rulemaking will implement the mandates of 38
U.S.C. 1725A, as added by section 105 of the VA MISSION Act of 2018,
and make it easier for eligible veterans to readily and quickly access
health care in their communities.
The VA MISSION Act of 2018 provides that VA may not use the
authority granted by section 101 of the Veterans Access, Choice, and
Accountability Act of 2014 (Pub. L. 113-146; 38 U.S.C. 1701 note, as
amended) to furnish care and service after June 6, 2019. And the
statute defining and authorizing the new Veterans Community Care
Program (38 U.S.C. 1703) will not go into effect until VA promulgates
regulations under section 101(c) of the VA MISSION Act of 2018. If VA
does not have regulations implementing the new Veterans Community Care
Program in place on June 6, 2019, then, the only authority it would
have to authorize the vast majority of care in the community would be
the existing section 1703. Under this statute, VA could not furnish
care as envisioned by section 101 of the VA MISSION Act of 2018. The
provisions in the existing section 1703, as well as its implementing
regulations, do not provide anywhere near a sufficient legal basis to
meet the requirements of the VA MISSION Act of 2018, or the Veterans
Choice Program, in areas such as eligibility, appeals, and payment
rates. Executing a program inconsistent with both existing section 1703
and its regulations would present significant risks and challenges.
Although a separate rulemaking with distinct eligibility criteria
and benefits is published elsewhere in this issue of the Federal
Register, this rule is integral to the development of VA's
comprehensive Veterans Community
[[Page 26017]]
Care Program (RIN 2900-AQ46) under 38 U.S.C. 1703, as amended by
section 101 of the VA MISSION Act of 2018. Taken together, these rules
develop the system of access to health care in the community called for
by the VA MISSION Act of 2018. The urgent care benefit will complement
the new Veterans Community Care Program because the Veterans Community
Care Program provides access to care generally and the urgent care
benefit will allow timely access to urgent care to create a
comprehensive community care program offering access to multiple levels
of necessary care. In this regard, the Veterans Community Care Program
requires preauthorization and referral for community care. Under the
Veterans Community Care Program, VA technically can send eligible
veterans to urgent care facilities, but the referral and scheduling
takes time and may not be able to accommodate a same day visit on a
weekend. However, the urgent care benefit will allow eligible veterans
to go directly to a qualifying non-VA entity or provider to receive
same-day treatment for urgent care. Therefore, the urgent care benefit
is a necessary component for eligible veterans to be able to access
this level of care in a timely manner as part of a comprehensive
community care program. The VA MISSION Act of 2018 sets an expectation
that the urgent care and traditional, routine care authorized through
the Veterans Community Care Program will work together to provide
eligible veterans with greater choice and access starting on June 6,
2019.
VA also believes that unacceptable risk to eligible veterans'
health and well-being would be created by delaying implementation of
the urgent and walk-in benefit. Approximately one third of veterans
live in rural or highly rural areas, and access to local, walk-in
options in urgent situations prevents care delays and detrimental
health outcomes. The urgent and walk-in care benefit is an important
part of the statutory scheme that Congress enacted to address this
distance barrier (among other barriers to eligible veterans' care), and
VA does not wish to impose a burden on veterans by delaying the
availability of this care option.
Further, the message that urgent care and traditional, routine care
coordinated through the Veterans Community Care Program will work
together to provide eligible veterans with greater choice and access
beginning on June 6, 2019 has been amplified by stakeholders, including
Veterans Service Organizations. VA believes that eligible veterans
understand and are relying upon this synergy. Eligible veterans' belief
that the two options for care are interconnected is evidenced by the
numerous comments VA received on this rulemaking that offered
suggestions and recommendations for separate rulemaking describing the
general Veterans Community Care Program. Even with a comprehensive
communications strategy, delaying urgent care implementation would
create a risk of confusion by eligible veterans. Based on the
expectation of simultaneous delivery no later than June 6, 2019, set
forth in the Act and now amplified, eligible veterans may seek urgent
care prior to implementation and face unexpected financial burden from
the cost of urgent care visits. For those eligible veterans without
insurance, this could result in serious financial hardship. Conversely,
eligible veterans who learn of the delay in implementation could
postpone care due to the cost and risk potentially serious health
complications. Also, urgent care will be provided in locations that are
convenient to the veteran, without having to solely rely on VA medical
facilities to receive care. Thus, RIN 2900-AQ46 Veterans Community Care
Program and RIN 2900-AQ47 Urgent Care must be implemented
simultaneously to improve eligible veterans' health care, achieve
Congressional objectives, and support comprehensive access to care, and
it would be contrary to the public interest to delay the effective date
of the final rule to allow for the Congressional review contemplated by
the Congressional Review Act.
Accordingly, the Secretary finds it would be contrary to the public
interest to delay the effective date of AQ47 and that there is good
cause to dispense with the opportunity for a 60-day period of prior
Congressional review and to publish this final rule with an operative
and effective date of June 6, 2019.
Administrative Procedure Act
For the reasons set forth in the preceding section, the Secretary
finds that there is good cause under 5 U.S.C. 553(d)(3) to publish this
rule with an effective date that is less than 30 days from the date of
publication.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are as follows: 64.009, Veterans
Medical Care Benefits; 64.012, Veterans Prescription Service; 64.013,
Veterans Prosthetic Appliances; and 64.018, Sharing Specialized Medical
Resources.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Claims, Day care, Dental
health, Government contracts, Health care, Health facilities, Health
professions, Health records, Mental health programs, Nursing homes,
Reporting and recordkeeping requirements, Travel and transportation
expenses, Veterans.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document 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. Robert L.
Wilkie, Secretary, Department of Veterans Affairs, approved this
document on April 10, 2019, for publication.
Dated: May 29, 2019.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons set forth in the preamble, we are amending 38 CFR
part 17 as follows:
PART 17--MEDICAL
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1. The authority citation for part 17 is amended by adding entries for
Sec. Sec. 17.105, 17.108, and 17.4600 to read in part as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Section 17.105 is also issued under 38 U.S.C. 501, 1721, 1722A,
1724, and 1725A.
Section 17.108 is also issued under 38 U.S.C. 501, 1710, 1725A,
1730A, Sec. 101, Pub. L. 113-146, 128 Stat. 1754.
* * * * *
Section 17.4600 is also issued under 38 U.S.C. 1725A.
Sec. 17.105 [Amended]
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2. Amend Sec. 17.105 by:
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a. In paragraph (c), removing ``or 17.111'' and adding in its place
``17.111, or 17.4600''.
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b. Removing the authority citation at the end of the section.
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3. Amend Sec. 17.108 by:
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a. Revising paragraph (e) introductory text.
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b. Removing the authority citation at the end of the section.
The revision reads as follows:
Sec. 17.108 Copayments for inpatient hospital care and outpatient
medical care.
* * * * *
[[Page 26018]]
(e) Services not subject to copayment requirements for inpatient
hospital care, outpatient medical care, or urgent care. The following
are not subject to the copayment requirements under this section or,
except for Sec. 17.108(e)(1), (2), (4), (10), and (14), the copayment
requirements under Sec. 17.4600.
* * * * *
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4. Add Sec. 17.4600 to read as follows:
Sec. 17.4600 Urgent care.
(a) Purpose. The purpose of this section is to establish procedures
for accessing urgent care. Eligible veterans may obtain urgent care, in
accordance with the requirements and processes set forth in this
section, from qualifying non-VA entities or providers in VA's network
that are identified by VA in accordance with paragraph (c)(2) of this
section.
(b) Definitions. The following definitions apply to this section.
(1) Eligible veteran means a veteran described in 38 U.S.C.
1725A(b).
(2) Episodic care means care or services provided in a single visit
to an eligible veteran for a particular health condition, or a limited
set of particular health conditions, without an ongoing relationship
being established between the eligible veteran and qualifying non-VA
entities or providers.
(3) Longitudinal management of conditions means outpatient care
that addresses important disease prevention and treatment goals and is
dependent upon bidirectional communications that are ongoing over an
extended period of time. For purposes of this section, the term
``longitudinal management of conditions'' and ``longitudinal care'' are
synonymous.
(4) Qualifying non-VA entity or provider means a non-VA entity or
provider, including Federally-qualified health centers as defined in 42
U.S.C. 1396d(l)(2)(B), that has entered into a contract, agreement, or
other arrangement with the Secretary to furnish urgent care under this
section, or has entered into an agreement with a third-party
administrator with whom VA has a contract to furnish such care.
(5) Urgent care means services provided by a qualifying non-VA
entity or provider, and as further defined in paragraphs (b)(5)(i)
through (iv) of this section.
(i) Urgent care includes service available from entities or
providers submitting claims for payment as a walk-in retail health
clinic (Centers for Medicare and Medicaid Services (CMS) Place of
Service code 17) or urgent care facility (CMS Place of Service code
20);
(ii)(A) Except as provided in paragraph (b)(5)(ii)(B) or (b)(5)(iv)
of this section, urgent care does not include preventive health
services, as defined in section 1701(9) of title 38, United States
Code, dental care, or chronic disease management.
(B) Urgent care includes immunization against influenza (flu
shots), as well as therapeutic vaccines that are necessary in the
course of treatment of an otherwise included service and screenings
related to the treatment of symptoms associated with an immediate
illness or exposure.
(iii) Urgent care may only be furnished as episodic care for
eligible veterans needing immediate non-emergent medical attention, and
it does not include longitudinal care. Veterans requiring follow-up
care as a result of an urgent care visit under this section must
contact VA or their VA-authorized primary care provider to arrange such
care.
(iv) If VA determines that the provision of additional services is
in the interest of eligible veterans, based upon identified health
needs, VA may offer such additional services under this section as VA
determines appropriate. Such services may be limited in duration and
location. VA will inform the public through a Federal Register
document, published as soon as practicable, and other communications,
as appropriate.
(c) Procedures. (1)(i)(A) Eligible veterans may receive urgent care
under this section without prior approval from VA.
(B) Eligible veterans must declare at each episode of care if they
are using this benefit prior to receiving urgent care under this
section.
(2) VA will publish a website providing information on urgent care,
including the names, locations, and contact information for qualifying
non-VA entities or providers from which urgent care is available under
this section.
(3) In general, eligibility under this section does not affect
eligibility for hospital care or medical services under the medical
benefits package, as defined in Sec. 17.38, or other benefits
addressed in this title. Nothing in this section waives the eligibility
requirements established in other statutes or regulations.
(4) Urgent care furnished under this section must meet VA's
standards for quality established under 38 U.S.C. 1703C, as applicable.
(d) Copayment. (1) Except as provided in paragraphs (d)(2) and (3)
of this section, an eligible veteran, as a condition for receiving
urgent care provided by VA under this section, must agree to pay VA
(and is obligated to pay VA) a copayment of $30:
(i) After three visits in a calendar year if such eligible veteran
is enrolled under Sec. 17.36(b)(1) through (6), except those veterans
described in Sec. 17.36(d)(3)(iii) for all matters not covered by
priority category 6.
(ii) If such eligible veteran is enrolled under Sec. 17.36(b)(7)
or (8), including veterans described in Sec. 17.36(d)(3)(iii).
(2) An eligible veteran who receives urgent care under paragraph
(b)(5)(iv) of this section or urgent care consisting solely of an
immunization against influenza (flu shot) is not subject to a copayment
under paragraph (d)(1) of this section and such a visit shall not count
as a visit for purposes of paragraph (d)(1)(i) of this section.
(3) If an eligible veteran would be required to pay more than one
copayment under this section, or a copayment under this section and a
copayment under Sec. 17.108 or Sec. 17.111, on the same day, the
eligible veteran will only be charged the higher copayment.
(e) Prescriptions. Notwithstanding any other provision of this
part, VA will:
(1) Pay for prescriptions written by qualifying non-VA entities or
providers for eligible veterans, including over-the-counter drugs and
medical and surgical supplies, available under the VA national
formulary system to cover a course of treatment for urgent care no
longer than 14 days.
(2) Fill prescriptions for urgent care written by qualifying non-VA
entities or providers for eligible veterans, including over-the-counter
drugs and medical and surgical supplies, available under the VA
national formulary system.
(3) Pay for prescriptions written by qualifying non-VA entities or
providers for eligible veterans that have an immediate need for durable
medical equipment and medical devices that are required for urgent
conditions (e.g., splints, crutches, manual wheelchairs).
(f) Payments. Payments made for urgent care constitute payment in
full and shall extinguish the veteran's liability to the qualifying
non-VA entity or provider. The qualifying non-VA entity or provider may
not impose any additional charge on a veteran or his or her health care
insurer for any urgent care service for which payment is made by VA.
This section does not abrogate VA's right, under 38 U.S.C. 1729, to
recover or collect from a third party the reasonable charges of the
care or services provided under this section.
[FR Doc. 2019-11468 Filed 6-4-19; 8:45 am]
BILLING CODE 8320-01-P
