2020-03432. VHA Claims and Appeals Modernization

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

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, [phone] (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 [phone]. 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 [phone] 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 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 §§ 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 § 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

1. The authority citation for part 17 continues to read as follows:

Authority: 38 U.S.C. 501, and as noted in specific sections.

* * * * *

2. Amend § 17.132 by:

a. Designating the text as paragraph (b); and

b. Adding paragraph (a).

The addition to read as follows:

§ 17.132

Appeals.

(a) This section applies only to legacy claims.

* * * * *

3. Amend § 17.133 by revising paragraph (a) to read as follows:

§ 17.133

Procedures.

(a) Scope. This section sets forth reconsideration procedures regarding claims for benefits administered by the Veterans Health Administration (VHA). This section applies only to legacy claims.

* * * * *

4. Amend § 17.276 by:

a. Designating the text as paragraph (b); and

b. Adding paragraph (a).

The addition to read as follows:

§ 17.276

Appeal/Review Process

(a) This section applies only to legacy claims.

* * * * *

5. Amend § 17.904 by:

a. Designating the text as paragraph (b); and

b. Adding paragraph (a).

The addition to read as follows:

§ 17.904

Review and Appeal Process

(a) This section applies only to legacy claims.

* * * * *

§ 17.1006

[Amended].

6. Amend § 17.1006 by removing the words “reconsideration and” from the last sentence.

PART 70—VETERANS TRANSPORTATION PROGRAMS

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.

2. Amend § 70.40 by:

a. Designating the text as paragraph (b); and

b. Adding paragraph (a).

The addition to read as follows:

§ 70.40

Administrative Procedures

(a) This section applies only to legacy claims.

* * * * *