[Federal Register Volume 85, Number 35 (Friday, February 21, 2020)]
[Proposed Rules]
[Pages 10118-10120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03432]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 17 and 70
RIN 2900-AQ44
VHA Claims and Appeals Modernization
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulations concerning its claims and appeals process governing various
programs administrated by the Veterans Health Administration (VHA). The
Veterans Appeals Improvement and Modernization Act of 2017 (AMA)
amended the procedures applicable to administrative review and appeal
of VA decisions on claims for benefits, creating a new, modernized
review system. This rulemaking proposes amendments to sunset certain
VHA regulations which are inconsistent with AMA.
DATES: Comments must be received on or before April 21, 2020.
FOR FURTHER INFORMATION CONTACT: Erik Shepherd, Program Specialist,
Office of Regulatory and Administrative Affairs, Department of Veterans
Affairs, 810 Vermont Ave. NW, Washington, DC 20420, (202) 461-9596
(This is not a toll-free number.).
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Office of
Regulation Policy and Management (00REG), Department of Veterans
Affairs, 810 Vermont Avenue NW, Room 1064, Washington, DC 20420; or by
fax to (202) 273-9026. Comments should indicate that they are submitted
in response to [RIN 2900-AQ44 VHA Appeals Modernization.] Copies of
comments received will be available for public inspection in the Office
of Regulation Policy and Management, Room 1064, between the hours of
8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays).
Please call (202) 461-4902 for an appointment. (This is not a toll-free
number.) In addition, during the comment period, comments may be viewed
online through the Federal Docket Management System (FDMS) at
www.Regulations.gov.
SUPPLEMENTARY INFORMATION: Public Law 115-55, the Veterans Appeals
Improvement and Modernization Act of 2017 (AMA), changes the processes
by which veterans seek review of VA benefits decisions. VA has
implemented the AMA in a rulemaking that is generally applicable to
benefits administered throughout VA, to include benefits administered
by the Veterans Health Administration (VHA). VA Claims and Appeals
Modernization, 84 FR 138, 172 (Jan. 18, 2019). That rulemaking
specifically provides, ``unless otherwise specified in this final rule,
VA amends its regulations applicable to all claims processed under
[[Page 10119]]
the new review system, which generally applies where an initial VA
decision on a claim is provided on or after the effective date or where
a claimant has elected to opt into the new review system under
established procedures.'' 84 FR 138.
However, the VA Claims and Appeals Modernization regulatory
amendments did not explicitly revise or remove VHA specific regulations
which are inconsistent with AMA. In this rulemaking, VA proposes to
sunset multiple VHA regulations that are inconsistent with the AMA and
the VA Claim and Appeals Modernization regulatory amendments. Because
the AMA and VA's January 2019 regulations apply to VHA, these proposed
conforming changes to part 17 will not change the procedures VHA
currently follows under the AMA.
First, the authority to reconsider a VHA decision, which is
established under VHA's regulations at 38 CFR 17.133, 17.276, 17.904,
and 17.1006 and 38 CFR 70.40, is inconsistent with the specific
differentiated lanes for seeking review of a VA decision that are
established by AMA and implemented in the VA Claims and Appeals
Modernization regulatory amendments, particularly the closed record
requirement for higher level review. To conform VHA's regulations to
the procedures applicable under AMA and implementing regulations, VA
proposes to amend Sec. Sec. 17.133, 17.276, 17.904, 17.1006, and 70.40
to make clear that VHA reconsideration is available only in legacy
claims, as defined in Part 3 and 20 of this title.
Similarly, VHA proposes to revise 38 CFR 17.132 regarding appeals
of VHA decisions on certain requests for payment or reimbursement for
care rendered in the community. Section 17.132 affords only one avenue
for disputing a VA decision regarding payment or reimbursement, appeal
to the Board of Veterans' Appeals. For payment requests covered by AMA
and implementing regulations, this is inconsistent with the three
distinct lanes established by that law. Thus, VHA proposes to revise
Sec. 17.132 to clarify that it will apply only to payment decisions
made for legacy claims as described above.
Paperwork Reduction Act
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (5
U.S.C. 601-612). This proposed rule only affects procedures regarding
the appeals process; it does not affect the cost of filing an appeal
nor any amount duly owed to a small entity. Therefore, pursuant to 5
U.S.C. 605(b), the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply.
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.
The Office of Information and Regulatory Affairs has determined that
this rule is a significant regulatory action under Executive Order
12866.
VA's 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 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 rule is not expected to be subject to the requirements of
Executive Order 13771 because this rulemaking is expected to result in
no more than de minimis costs.
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 proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.009--Veterans Medical
Care Benefits; 64.039--CHAMPVA.
List of Subjects in 38 CFR Parts 17 and 70
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs-health, Grant programs-veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing homes, Philippines, Reporting
and recordkeeping requirements, Scholarships and fellowships, Travel
and transportation expenses, Veterans.
Signing Authority
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. Pamela
Powers, Chief of Staff, Department of Veterans Affairs, approved this
document on January 10, 2020, for publication.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to amend 38
CFR parts 17 and 70 as set forth below:
PART 17--MEDICAL
0
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
0
2. Amend Sec. 17.132 by:
0
a. Designating the text as paragraph (b); and
0
b. Adding paragraph (a).
The addition to read as follows:
Sec. 17.132 Appeals.
(a) This section applies only to legacy claims.
* * * * *
0
3. Amend Sec. 17.133 by revising paragraph (a) to read as follows:
Sec. 17.133 Procedures.
(a) Scope. This section sets forth reconsideration procedures
regarding claims for benefits administered by the Veterans Health
Administration (VHA).
[[Page 10120]]
This section applies only to legacy claims.
* * * * *
0
4. Amend Sec. 17.276 by:
0
a. Designating the text as paragraph (b); and
0
b. Adding paragraph (a).
The addition to read as follows:
Sec. 17.276 Appeal/Review Process
(a) This section applies only to legacy claims.
* * * * *
0
5. Amend Sec. 17.904 by:
0
a. Designating the text as paragraph (b); and
0
b. Adding paragraph (a).
The addition to read as follows:
Sec. 17.904 Review and Appeal Process
(a) This section applies only to legacy claims.
* * * * *
Sec. 17.1006 [Amended].
0
6. Amend Sec. 17.1006 by removing the words ``reconsideration and''
from the last sentence.
PART 70--VETERANS TRANSPORTATION PROGRAMS
0
1. The authority citation for part 70 continues to read as follows:
Authority: 38 U.S.C. 101, 111, 111A, 501, 1701, 1714, 1720,
1728, 1782, 1783, and E.O. 11302, 31 FR 11741, 3 CFR, 1966-1970
Comp., p. 578, unless otherwise noted.
0
2. Amend Sec. 70.40 by:
0
a. Designating the text as paragraph (b); and
0
b. Adding paragraph (a).
The addition to read as follows:
Sec. 70.40 Administrative Procedures
(a) This section applies only to legacy claims.
* * * * *
[FR Doc. 2020-03432 Filed 2-20-20; 8:45 am]
BILLING CODE 8320-01-P