2023-00364. Copayment Exemption for Indian Veterans

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) proposes to amend its medical regulations to implement a statute exempting Indian and urban Indian veterans from copayment requirements for the receipt of hospital care or medical services, including the initial three urgent care visits in a calendar year, under laws administered by VA.

DATES:

Comments must be received on or before February 13, 2023.

ADDRESSES:

Comments must be submitted through www.regulations.gov. Except as provided below, comments received before the close of the comment period will be available at www.regulations.gov for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. VA will not post on Regulations.gov public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm the individual. VA encourages individuals not to submit duplicative comments. We will post acceptable comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period's closing date is considered late and will not be considered in the final rulemaking.

FOR FURTHER INFORMATION CONTACT:

Mark Upton, Acting Deputy to the Deputy Under Secretary for Health, Office of the Deputy Under Secretary for Health (10A), 810 Vermont Avenue NW, Washington, DC 20420, 202-461-7459. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

Pursuant to section 1730A of title 38, United States Code (U.S.C.), catastrophically disabled veterans are exempt from copayment for the receipt of hospital care or medical services under laws administered by VA. On January 5, 2021, the President signed into law the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 (the “Act”). Public Law 116-315. Section 3002 of the Act amended section 1730A to add a copayment exemption for veterans who are either Indian or urban Indian, as those terms are defined in section 4 of the Indian Health Care Improvement Act. This amendment to section 1730A took effect one year after the date of enactment of the Act (that is, the statutory amendment became effective on January 5, 2022). In accordance with 38 U.S.C. 1730A, this rulemaking is using the terms Indian and urban Indian as provided in 38 U.S.C. 1730A and as defined in 25 U.S.C. 1603(13) and (28). This rulemaking proposes to revise several VA regulations concerning copayment exemptions to be consistent with the amendment made to 38 U.S.C. 1730A by section 3002 of the Act.

Definitions of Indian and Urban Indian

As explained above, section 3002 of the Act defines Indian and urban Indian based on those terms' definitions in section 4 of the Indian Health Care Improvement Act for purposes of copayment exemption under 38 U.S.C. 1730A. Section 4 of the Indian Health Care Improvement Act is codified at 25 U.S.C. 1603, and the definitions for Indian and urban Indian are located in paragraphs 13 and 28, respectively, of section 1603.

Paragraph 13 of section 1603 defines the term Indians or Indian as any person who is a member of an Indian tribe, as that term is further defined in section 1603(14), except that, for the purpose of 25 U.S.C. 1612 and 1613, such terms shall mean any individual who: (1) irrespective of whether he or she lives on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (2) is an Eskimo or Aleut or other Alaska Native; (3) is considered by the Secretary of the Interior to be an Indian for any purpose; or (4) is determined to be an Indian pursuant to regulations promulgated by the Secretary of Health and Human Services.

Section 1603(13) refers to members of an Indian tribe in the definition of Indian. Section 1603(14) defines Indian tribe to mean any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or group or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. For purposes of this rulemaking, when VA uses the term Indian tribe in this rulemaking, it is doing so to be consistent with, and to incorporate, the definition of Indian tribe in section 1603(14).

Paragraph 28 of section 1603 defines the term urban Indian as any individual who resides in an urban center (as such term is further defined in section 1603(27)) and who meets at least one or more of the four criteria in the definition of Indian in 25 U.S.C. 1603(13) (as described above in a previous paragraph regarding the definition of Indians or Indian).

For purposes of implementing the copayment exemption for Indian and urban Indian veterans as required by 38 U.S.C. 1730A, VA is using the definitions of Indian and urban Indian in 25 U.S.C. 1603(13) and (28). Doing so ensures that VA is adhering to the statutory definitions referenced in section 1730A and will allow VA to immediately implement any changes made by Congress to those definitions without requiring amendment to the definitions of Indian and urban Indian in VA's medical regulations. As explained subsequently in this rulemaking, we propose to revise §§ 17.108, 17.110, 17.111 and 17.4600 of title 38, Code of Federal Regulations (CFR) to include these definitions of Indian and urban Indian under section 1603(13) and (28).

Documentation

In identifying ways in which VA could determine whether a veteran meets the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28) for purposes of copayment exemption under 38 U.S.C. 1730A, VA sought input and guidance from American Indian and Alaska Native tribal governments and individuals who may be considered to meet the definition of Indian and urban Indian under section 1730A. On April 1, 2021, VA published a Federal Register (FR) notice of a virtual tribal consultation session scheduled for April 29, 2021, regarding documentation that can be used by VA's health care system to identify those veterans who are considered to meet the definition of the terms Indian and urban Indian under section 1730A. See86 FR 17267. The Federal Register notice further explained that related written comments may also be submitted to VA before May 29, 2021. Ninety-six individuals, including representatives from American Indian and Alaska Native tribal governments and veterans, attended the virtual consultation session on April 29, 2021, and more than twenty attendees provided feedback during the session. VA also received eighteen written comments from various sources including American Indian and Alaska Native tribal governments and American Indian and Alaska Native health organizations.

The majority of the comments, including comments from American Indian and Alaska Native tribal governments, supported submission of documentation ( e.g., tribal letter, tribal enrollment card, Certificate of Degree of Indian Blood, enhanced tribal identification card, kinship report). Some commenters supported veteran self-certification. Some commenters recommended American Indian and Alaska Native tribal governments determine the documentation VA should accept, rather than VA determining the appropriate documentation. Other commenters recommended VA adopt the same documentation requirements of the Indian Health Service (IHS).

A recording of the April 29, 2021, virtual consultation session can be found at: https://vacctraining.adobeconnect.com/​pz8n69p0aov1/​. The written comments received from this notice are publicly available online at www.regulations.gov.

Based on the feedback VA received from consultation that supported requiring veterans submit documentation, VA proposes that, for purposes of exempting from copayment veterans who meet the definition of the terms Indian and urban Indian under section 1730A, VA will require documentation from a veteran that they are an Indian or urban Indian as those terms are defined in 25 U.S.C. 1603(13) and (28). VA proposes to require documentation as this recognizes tribal sovereignty and promotes the Nation-to-Nation relationship that exists between the United States and tribal governments. As the vast majority of comments from American Indian and Alaska Native tribal governments supported documentation, requiring documentation would be consistent with the preferences of tribal leaders. American Indian and Alaska Native tribal governments recognize their members and provide individual members with documentation to recognize that they are members of an American Indian and Alaska Native tribe. This approach would acknowledge each tribal government's right to determine their tribal membership and how best to substantiate it.

Further, requiring veterans to submit documentation would also align with how other Federal agencies, such as IHS, determine eligibility for benefits or services. When determining eligibility for benefits or service based on status as a member of an American Indian or Alaska Native tribe, Federal agencies may accept documentation issued by American Indian and Alaska Native tribal governments to tribal members to show membership in the tribe. VA would defer to the American Indian and Alaska Native tribal governments with respect to the documentation showing who is a tribal member, as described later in this discussion which, as noted above, is consistent with IHS practices. While some commenters suggested American Indian and Alaska Native tribal governments determine the documentation that is required to meet the definitions of Indian and urban Indian under 25 U.S.C. 1603(13) and (28), part of VA's responsibility is to ensure that those who are eligible for the copayment exemption under 38 U.S.C. 1730A receive that benefit and that the documentation submitted meets the definitions in the law. VA reiterates that it would defer to the American Indian and Alaska Native tribal governments as to the documentation that they provide to their members to submit to VA to demonstrate they meet those definitions of Indian and urban Indian.

While some commenters supported self-attestation, VA believes that self-attestation presents an unreasonable risk that VA would provide the copayment exemption to veterans who do not meet the legal definition of Indian or urban Indian under section 1603(13) and (28) as the definition of Indian and urban Indian under section 1603(13) and (28) may be inaccurately interpreted by veterans. This confusion and misunderstanding of whether a veteran would meet the definition of Indian or urban Indian may result in good-faith but mistaken self-attestations resulting in VA paying benefits to individuals who are not eligible. Requiring documentation rather than self-attestation would allow VA to ensure through audits that it is fulfilling its duty to only exempt those veterans who are eligible pursuant to section 1730A. For these reasons, VA believes documentation would be appropriate to ensure that this copayment exemption is administered only to veterans eligible for it under 38 U.S.C. 1730A.

Documentation VA proposes to accept to verify an individual meets the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28) would be as follows:

(1) Documentation issued by a federally-recognized Indian tribe that shows that a veteran is a member of the tribe;

(2) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(3) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;

(4) Documentation issued by the U.S. Department of the Interior (DOI) showing that the veteran is considered by DOI to be an Indian for any purpose;

(5) Documentation showing that the veteran is considered by the U.S. Department of Health and Human Services (HHS) to be an Indian under that Department's regulations;

(6) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:

(a) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(b) Is an Eskimo or Aleut or other Alaska Native;

(c) Is considered by DOI to be an Indian for any purpose; or

(d) Is considered by HHS to be an Indian under that Department's regulations.

VA believes that all veterans who are Indian and urban Indian pursuant to the definitions in 25 U.S.C. 1603(13) and (28) would be able to obtain and submit to VA the documents listed above that are applicable to their status in order to establish their status as Indian or urban Indian. It is important to note that any documentation submitted to VA would be safeguarded and protected consistent with all applicable privacy and security laws.^[1] As American Indian and Alaska Native tribal governments issue a variety of documents to demonstrate an individual's membership in a federally-recognized Indian tribe, VA would accept documentation issued by a federally-recognized Indian tribe that shows that a veteran is a member of the tribe. This would include, for example, cards issued by a federally-recognized Indian tribe showing that the veteran is a member of that tribe or documentation issued by a federally-recognized Indian tribe on tribal letterhead that shows that a veteran is a member of the tribe. Submission of such documentation would be required to show that a veteran meets the definition of Indian in 25 U.S.C. 1603(13). VA notes that as explained previously, VA proposes to use the definition of Indian tribe in 25 U.S.C. 1603(14) for purposes of defining the term Indian tribe.

VA would accept documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member. Submission of such documentation would show that a veteran meets the definition of Indian in 25 U.S.C. 1603(13), specifically that the individual, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member. See 25 U.S.C. 1603(13)(A). This would include those veterans who are members of a State-recognized Indian tribe or formerly federally-recognized Indian tribe.

VA would accept documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native. Submission of such documentation would show that a veteran meets the definition of Indian in 25 U.S.C. 1603(13), specifically that the individual is an Eskimo or Aleut or other Alaska Native. See 25 U.S.C. 1603(13)(B).

DOI and HHS issue documentation that may show a veteran meets the definition of Indian. Thus, VA would accept documentation issued by DOI that shows that the veteran is considered by DOI to be an Indian for any purpose. Submission of such documentation would show that a veteran meets the definition of Indian in 25 U.S.C. 1603(13), specifically that the individual is considered by the Secretary of Interior to be an Indian for any purpose. See 25 U.S.C. 1603(13)(C). VA would also accept documentation that shows that the veteran is considered by HHS to be an Indian under that Department's regulations. Submission of such documentation would show that a veteran meets the definition of Indian in 25 U.S.C. 1603(13), specifically that the individual is determined to be an Indian under regulations promulgated by the Secretary [of HHS]. See 25 U.S.C. 1603(13)(D).

To be eligible for the copayment exemption under 38 U.S.C. 1730A, veterans would also be able to submit documentation showing that they reside in an urban center and meet one or more of the following criteria: (a) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (b) Is an Eskimo or Aleut or other Alaska Native; (c) is considered by DOI to be an Indian for any purpose; or (d) Is considered by HHS to be an Indian under HHS regulations. Submission of such documentation would show that a veteran meets the definition of urban Indian in 25 U.S.C. 1603(28). As the definition of urban Indian in section 1603(28) refers to and incorporates (A) through (D) of the definition of Indian in section 1603(13), VA acknowledges that urban Indians would be able to meet both the definition of Indian and urban Indian and would be able to submit documentation that shows they meet both of these definitions. However, a veteran would only be required to submit documentation that show that they meet one definition. VA believes the proposed list of documentation to show a veteran meets the definition of Indian would likely capture those who meet the definition of urban Indian. However, to be consistent with 38 U.S.C. 1730A, VA would add a separate category of documentation for those veterans that meet the definition of urban Indian under section 1603(28). VA seeks input during the comment period from Indian and urban Indian veterans and American Indian and Alaska Native tribal governments on whether there is any other documentation VA should consider including in this proposed list of documentation to show that a veteran meets the definition of urban Indian.

This new copayment exemption would not be automatic; regardless of whether a veteran is already enrolled in VA health care or is enrolling in VA health care for the first time, the veteran would need to submit documentation to VA. Until veterans submit documentation that confirms that they meet the definition of the term Indian or urban Indian under 25 U.S.C. 1603(13) and (28), VA would be unable to exempt such veterans from copayments. However, once the documentation is submitted and processed, VA would exempt the veteran from copayments unless and until they notify VA that they no longer meet the definition of Indian or urban Indian under section 1603(13) and (28) or VA determines that the veteran does not meet the definition of Indian or urban Indian as defined in section 1603(13) and (28).

Covered Services

As previously discussed, 38 U.S.C. 1730A exempted those veterans determined to be catastrophically disabled from copayments for hospital care and medical services prior to the Act. Section 3002 of the Act amended section 1730A to add veterans who meet the definition of the terms Indian and urban Indian as covered veterans exempt from copayments for hospital care and medical services. VA considers the terms hospital care and medical services as defined in 38 U.S.C. 1701(5) and (6) and in 38 CFR 17.30(a).

The copayment exemptions for catastrophically disabled veterans, as authorized under 38 U.S.C. 1730A, were implemented in 38 CFR 17.108, 17.110, and 17.111. Section 17.108 sets forth the copayments for inpatient hospital care and outpatient medical care and exempts catastrophically disabled veterans from copayments for such care. Section 17.110 sets forth the copayments for medication provided by VA on an outpatient basis (other than medication administered during treatment) and exempts catastrophically disabled veterans from copayments for such medication. Section 17.111 sets forth the copayments for extended care services and exempts catastrophically disabled veterans from copayments for adult day health care, noninstitutional geriatric evaluation, and noninstitutional respite care.

In addition to “hospital care” and “medical services,” veterans exempted from copayments under section 1730A are also exempt from copayments for at least two visits to qualifying non-Department providers for urgent care in a year. See38 U.S.C. 1725A(f)(1)(B). However, VA has the authority to require copayments for this care for such veterans after the second urgent care visit in a year. Id. VA has exercised this authority and requires veterans otherwise exempt from copayments, including veterans exempt pursuant to 38 U.S.C. 1730A, to pay copayments for urgent care from qualifying non-Department providers after the third urgent care visit in a calendar year. The copayments for urgent care under 38 U.S.C. 1725A are established separately in § 17.4600(d).

VA utilizes the authority provided under section 1725A to require copayments for all veterans, irrespective of their priority group in VA enrollment, level of service-connected disability, or designation as catastrophically disabled, after the first three visits in a calendar year because the copayment is designed to encourage appropriate use of the benefit. Collecting a copayment after the third visit helps ensure that the urgent care benefit is utilized appropriately and is not being used as a substitute for primary care. 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 urgent care copayment is designed to encourage all 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.

As section 3002 of the Act amended 38 U.S.C. 1730A to include veterans who meet the definition of the terms Indian and urban Indian as copayment exempt, with no distinction between this new cohort and those considered catastrophically disabled with regards to the care for which these copayments are exempted, VA would interpret the copayment exemption for veterans who meet the definition of the terms Indian and urban Indian under section 1730A the same as VA has for catastrophically disabled veterans. Thus, as explained later in this discussion, VA proposes to amend 38 CFR 17.108, 17.110, and 17.111 to include veterans who meet the definition of the terms Indian and urban Indian as exempt from copayment for inpatient hospital care, outpatient medical care, outpatient medications, adult day health care, noninstitutional geriatric evaluation, and noninstitutional respite care. However, these veterans would still be required to pay copayments for domiciliary care, institutional respite care, institutional geriatric evaluation, and nursing home care. Similarly, consistent with how VA applies copayment exemptions for catastrophically disabled veterans for urgent care visits, VA proposes to amend the urgent care copayment regulation at § 17.4600(d)(1) to include veterans who meet the definition of the terms Indian and urban Indian to ensure that these veterans are not charged a copayment until their fourth urgent care visit.

The changes VA proposes to make to 38 CFR part 17 are explained in more detail below in the section describing the regulations proposed to be amended.

Retroactive Copayment Reimbursement

In order to allow time for veterans to learn about this new benefit and submit to VA documentation that verifies they meet the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28), VA proposes to reimburse Indian and urban Indian veterans for copayments paid to VA for hospital care, medical services, and urgent care provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect. This would also allow these veterans to be reimbursed for copayments that were paid for such care provided on or after January 5, 2022, irrespective of when this rulemaking is published and effective or when these veterans submit their documentation for processing.

After a veteran submits to VA the required documentation, VA would review the documentation to determine if the veteran meets the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28). If the veteran meets the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28), the veteran's record would be updated to reflect their Indian or urban Indian status so that future copays are not charged. VA would then process reimbursement payments for any copayments that were paid for hospital care, medical services, and urgent care provided on or after January 5, 2022. VA would not require veterans to submit claims for reimbursement of copayments for such care. However, veterans would not be prohibited from submitting claims for reimbursement. If VA would be unable to determine the veteran meets the definition of Indian or urban Indian as defined in 25 U.S.C. 1603(13) and (28) based on the submitted documentation, VA would notify the veteran of such determination.

Regulations To Be Amended

As previously explained, VA has implemented regulations concerning copayments for hospital care and medical services at 38 CFR 17.108, 17.110, 17.111, and 17.4600. In this rulemaking, VA proposes to amend these regulations to align with the statutory requirement to exempt from copayment veterans who are an Indian or urban Indian as those terms are defined in section 4 of the Indian Health Care Improvement Act.

Section 17.108

Copayments for inpatient hospital care and outpatient medical care are established in 38 CFR 17.108. Paragraph (d) of § 17.108 lists categories of veterans who are not subject to the copayment requirements of this section. VA proposes to amend § 17.108(d) by adding a new paragraph (14). Proposed paragraph (14) explains that a veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), would be exempt from copayment under this section. In addition, it would include language explaining that the exemption is applicable for care provided on or after January 5, 2022. This is consistent with 38 U.S.C. 1730A, as amended by section 3002 of the Act which exempts these veterans from copayments for care received on or after January 5, 2022.

Proposed paragraph (14) would further inform veterans that to demonstrate they meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), they must submit to VA any of the following documentation: (i) documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe; (ii) documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (iii) documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native; (iv) documentation issued by DOI showing that the veteran is considered by DOI to be an Indian for any purpose; (v) documentation showing that the veteran is considered by HHS to be an Indian under that Department's regulations; or (vi) documentation showing that the veteran resides in an urban center and meets one or more of the following criteria: (A) irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (B) is an Eskimo or Aleut or other Alaska Native; (C) is considered by DOI to be an Indian for any purpose; or (D) is considered by the HHS to be an Indian under that Department's regulations.

VA also proposes to amend § 17.108 by adding a new paragraph (g) to explain that after VA determines the documentation submitted by the veteran meets paragraph (d)(14) and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA would reimburse veterans exempt under paragraph (d)(14) of this section for any copayments that were paid to VA for inpatient hospital care and outpatient medical care provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect.

Section 17.110

Copayments for medications are established in 38 CFR 17.110. Paragraph (c) of § 17.110 lists medications that are not subject to the copayment requirements of this section. Similar to the proposed amendments to § 17.108, VA proposes to amend § 17.110(c) by adding paragraph (13) to include as exempt from copayment under such section a veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), for medications provided on or after January 5, 2022.

In addition, VA would include in proposed § 17.110(c)(13) the same language under § 17.108(d)(14) to inform veterans that to demonstrate they meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), the veteran must submit to VA any of the following documentation: (i) documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe; (ii) documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (iii) documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native; (iv) documentation issued by DOI showing that the veteran is considered by DOI to be an Indian for any purpose; (v) documentation showing that the veteran is considered by HHS to be an Indian under that Department's regulations; or (vi) documentation showing that the veteran resides in an urban center and meets one or more of the following criteria: (A) irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (B) is an Eskimo or Aleut or other Alaska Native; (C) is considered by DOI to be an Indian for any purpose; or (D) is considered by HHS to be an Indian under that Department's regulations.

VA also proposes to add paragraph (d) to § 17.110 to state that after VA determines the documentation submitted by the veteran meets paragraph (c)(13) and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA would reimburse veterans exempt under paragraph (c)(13) of this section for any copayments that were paid to VA for medications provided on or after January 5, 2022 if they would have been exempt from making such copayments if this regulation had been in effect.

Section 17.111

Copayments for extended care services are established in § 17.111. Section 17.111(f) lists categories of veterans and care that are not subject to the copayment requirements of this section. While 38 U.S.C. 1730A only exempts Indian and urban Indian veterans from copayments for hospital care and medical services, noninstitutional extended care services are included in the definition of medical services. 38 U.S.C. 1701(6)(E); 38 CFR 17.38(a)(1)(xi). Similar to the proposed amendments to §§ 17.108 and 17.110, VA proposes to add a new paragraph (11) to § 17.111(f) to include, as exempt from copayment under such section, a veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), for adult day health care, noninstitutional respite care, and noninstitutional geriatric evaluation provided on or after January 5, 2022.

VA also proposes to add language to inform veterans that to demonstrate they meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), they must submit to VA any of the following documentation: (i) documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe; (ii) documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (iii) documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native; (iv) documentation issued by DOI showing that the veteran is considered by DOI to be an Indian for any purpose; (v) documentation showing that the veteran is considered by HHS to be an Indian under that Department's regulations; or (vi) documentation showing that the veteran resides in an urban center and meets one or more of the following criteria: (A) irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (B) is an Eskimo or Aleut or other Alaska Native; (C) is considered by DOI to be an Indian for any purpose; or (D) is considered by HHS to be an Indian under that Department's regulations.

VA proposes to add a new paragraph (g) to 38 CFR 17.111 to explain that after VA determines the documentation submitted by the veteran meets paragraph (f)(11) and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA would reimburse veterans exempt under paragraph (f)(11) of this section for any copayments that were paid to VA for adult day health care, noninstitutional respite care, and noninstitutional geriatric evaluation provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect.

Section 17.4600

VA also proposes to amend 38 CFR 17.4600 for purposes of urgent care visits. Pursuant to 38 U.S.C. 1725A(f)(1)(B), an eligible veteran not required to pay a copayment under title 38, U.S.C., may access urgent care without a copayment for the first two visits in a calendar year. For any additional visits, a copayment at an amount determined by VA may be required. The implementing regulation for 38 U.S.C. 1725A is 38 CFR 17.4600. Section 17.4600(d)(1)(i) explains that certain veterans are exempt from copayment for the first three urgent care visits in a calendar year, but must pay a copayment after those first three visits. VA has determined that a veteran who meets the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), based on the documentation the veteran has submitted, should not be required to pay a copayment for the first three visits in a calendar year. This would be consistent with how VA implements copayments for urgent care visits by catastrophically disabled veterans. VA proposes to amend 38 CFR 17.4600(d)(1) by redesignating current paragraph (ii) as (iii) and adding new paragraph (ii) to exempt from copayment the initial three urgent care visits in a calendar year of a veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28).

VA also proposes to add language to 38 CFR 17.4600(d)(1)(ii) to inform veterans that to demonstrate that they meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), they must submit to VA any of the following documentation: (A) documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe; (B) documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (C) documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native; (D) documentation issued by DOI showing that the veteran is considered by DOI to be an Indian for any purpose; (E) documentation showing that the veteran is considered by HHS to be an Indian under that Department's regulations; or (F) documentation showing that the veteran resides in an urban center and meets one or more of the following criteria: (1) irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (2) is an Eskimo or Aleut or other Alaska Native; (3) is a considered by DOI to be an Indian for any purpose; or (4) is considered by HHS to be an Indian under that Department's regulations.

VA also proposes to amend 38 CFR 17.4600(d)(2), which explains that an eligible veteran who receives urgent care under § 17.4600(b)(5)(iv) or urgent care consisting solely of an immunization against influenza (flu shot) is not subject to a copayment under § 17.4600(d)(1) and such a visit shall not count as a visit for purposes of § 17.4600(d)(1)(i). Because VA proposes to add new paragraph (d)(1)(ii) which is similar to (d)(1)(i) in exempting certain eligible veterans from copayment for the initial three urgent care visits in a calendar year, VA also proposes to add paragraph (d)(1)(ii) so that veterans who meet the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28) are treated the same for purposes of paragraph (d)(2).

VA also proposes to add paragraph (d)(4) to § 17.4600 to state that after VA determines the documentation submitted by the veteran meets § 17.4600(d)(1)(ii) and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA would reimburse veterans exempt under paragraph (d)(1)(ii) of this section for any copayments that were paid to VA for the first three visits for urgent care in a calendar year provided on or after January 5, 2022 if they would have been exempt from making such copayments if this regulation had been in effect.

While there are veterans exempt from copayment under 38 CFR 17.108, 17.110, 17.111, and 17.4600 who have been assigned a specific Priority Group (for example, catastrophically disabled veterans are in Priority Group 4), section 3002 of the Act did not change VA's system for enrolling veterans who meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28) in the VA health care system and assigning them to a Priority Group. VA is thus not proposing to make any changes to the Priority Groups as set forth in 38 CFR 17.36.

Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this proposed rule is a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

The Secretary hereby certifies that this 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 rule would not cause a significant economic impact on small entities since this exemption is limited to individual veterans who VA determines to be Indian or urban Indian. 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.

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.

Paperwork Reduction Act

This proposed rule includes provisions constituting a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval.

OMB assigns control numbers to collection of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Sections 17.108, 17.110, 17.111, and 17.4600 would require documentation be submitted by veterans to be eligible for copayment exemption as an Indian or urban Indian. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing the collection of information or take such other action as is directed by OMB.

Comments on the new collection of information contained in this rulemaking should be submitted through www.regulations.gov. Comments should indicate that they are submitted in response to “RIN 2900-AR48, Copayment Exemption for Indian Veterans” and should be sent within 30 days of publication of this rulemaking. The collection of information associated with this rulemaking can be viewed at: www.reginfo.gov/​public/​do/​PRAMain.

OMB is required to make a decision concerning the collection of information contained in this rulemaking between 30 and 60 days after publication of this rulemaking in the Federal Register (FR). Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the provisions of this rulemaking.

The Department considers comments by the public on new collection of information in—

• Evaluating whether the new collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Evaluating the accuracy of the Department's estimate of the burden of the new collection of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and

• Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

The collection of information associated with this rulemaking contained in 38 CFR 17.108, 17.110, 17,111, 17.4600 is described immediately following this paragraph, under its respective title.

Title: Documentation of Indian or urban Indian status.

OMB Control No: 2900-XXXX (New/TBD).

CFR Provision:38 CFR 17.108, 17.110, 17,111, 17.4600.

• Summary of collection of information: The new collection of information in 38 CFR 17.108, 17.110, 17.111, and 17.4600 would require veterans to submit certain documentation to VA as evidence that they meet the definition of Indian or urban Indian as defined in 25 U.S.C. 1603(13) and (28).

• Description of need for information and proposed use of information: The information will be used by VA to determine if a veteran meets the definition of Indian or urban Indian as defined in 25 U.S.C. 1603(13) and (28) for purposes of exempting these veterans from copayment for certain health care.

• Description of likely respondents: Veterans.

• Estimated number of respondents: 25,000.

• Estimated frequency of responses: One time.

• Estimated average burden per response: 15 minutes.

• Estimated total annual reporting and recordkeeping burden: 6,250 hours.

• Estimated cost to respondents per year: VA estimates the annual cost to (respondents, etc.) to be $175,062.50. Using VA's estimated annual number of Indian and urban Indian veterans applying for copayment exemption, VA estimates the total information collection burden cost to be $175,062.50 per year *. (6,250 burden hours for respondents × (multiplied by) $28.01 per hour).

* To estimate the total information collection burden cost, VA used the Bureau of Labor Statistics (BLS) mean hourly wage for hourly wage for “00-0000 All Occupations” of $28.01 per hour. This information is available at https://www.bls.gov/​oes/​current/​oes.nat.htm.

List of Subjects in 38 CFR Part 17

• Administrative practice and procedure
• Alcohol abuse
• Alcoholism
• Claims
• Day care
• Dental health
• Drug abuse
• Foreign relations
• Government contracts
• Grant programs—health
• Government programs—veterans
• Health care
• Health facilities
• Health professions
• Health records
• Homeless,

Signing Authority

Denis McDonough, Secretary of Veterans Affairs, approved this document on December 28, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

Jeffrey M. Martin,

Assistant Director, Office of Regulation Policy & Management, Office of General Counsel, Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 17 as set forth below:

PART 17—MEDICAL

1. The authority citation for part 17 is amended by adding entries for §§ 17.111 and 17.4600 in numerical order to read in part as follows:

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

* * * * *

Section 17.111 is also issued under 38 U.S.C. 101(28), 501, 1701(7), 1703, 1710, 1710B, 1720B, 1720D, 1722A, and 1730A.

* * * * *

Section 17.4600 is also issued under 38 U.S.C. 1725A and 1730A.

* * * * *

2. Amend § 17.108 by adding paragraphs (d)(14) and (g), and the information collection control number to read as follows:

§ 17.108

Copayments for inpatient hospital care and outpatient medical care.

* * * * *

(d) * * *

(14) A veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), for inpatient hospital care or outpatient medical care provided on or after January 5, 2022. To demonstrate that they meet the definition of Indian or urban Indian, the veteran must submit to VA any of the documentation listed in paragraphs (d)(14)(i) through (vi) of this section:

(i) Documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe;

(ii) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(iii) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;

(iv) Documentation issued by the Department of Interior (DOI) showing that the veteran considered by DOI to be an Indian for any purpose;

(v) Documentation showing that the veteran is considered by the Department of Health and Human Services (HHS) to be an Indian under that Department's regulations; or

(vi) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:

(A) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(B) Is an Eskimo or Aleut or other Alaska Native;

(C) Is considered by the Department of Interior to be an Indian for any purpose; or

(D) Is considered by HHS to be an Indian under that Department's regulations.

* * * * *

(g) Retroactive copayment reimbursement. After VA determines that the documentation submitted by the veteran meets the criteria in paragraph (d)(14) of this section and VA updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA will reimburse veterans exempt under paragraph (d)(14) for any copayments that were paid to VA for inpatient hospital care and outpatient medical care provided on or after January 5, 2022 if they would have been exempt from making such copayments if this regulation had been in effect.

(The Office of Management and Budget has approved the information collection provisions in this section under control number 2900-TBD.)

3. Amend § 17.110 by adding paragraphs (c)(13) and (d), and the information collection control number to read as follows:

§ 17.110

Copayments for medication.

* * * * *

(c) * * *

(13) A veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), for medications provided on or after January 5, 2022. To demonstrate that they meet the definition of Indian or urban Indian, the veteran must submit to VA any of the documentation listed in paragraphs (c)(13)(i) through (vi) of this section:

(i) Documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe;

(i) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(iii) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;

(iv) Documentation issued by the Department of Interior (DOI) showing that the veteran is considered by DOI to be an Indian for any purpose;

(v) Documentation showing that the veteran is considered by the Department of Health and Human Services (HHS) to be an Indian under that Department's regulations; or

(vi) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:

(A) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(B) Is an Eskimo or Aleut or other Alaska Native;

(C) Is considered by DOI to be an Indian for any purpose; or

(D) Is considered by HHS to be an Indian under that Department's regulations.

(d) Retroactive copayment reimbursement. After VA determines the submitted documentation meets paragraph (c)(13) of this section and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA will reimburse veterans exempt under paragraph (c)(13) for any copayments that were paid to VA for medications provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect.

(The Office of Management and Budget has approved the information collection provisions in this section under control number 2900-TBD.)

4. Amend § 17.111 by adding paragraphs (f)(11) and (g), and the information collection control number to read as follows:

§ 17.111

Copayments for extended care services.

* * * * *

(f) * * *

(11) A veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), is exempt from copayments for noninstitutional extended care including adult day health care, noninstitutional respite care, and noninstitutional geriatric evaluation provided on or after January 5, 2022. To demonstrate that they meet the definition of Indian or urban Indian, the veteran must submit to VA any of the documentation listed in paragraphs (f)(11)(i) through (vi) of this section:

(i) Documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe;

(ii) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(iii) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;

(iv) Documentation issued by the Department of Interior (DOI) showing that the veteran is considered by DOI to be an Indian for any purpose;

(v) Documentation showing that the veteran is considered by the Department of Health and Human Services (HHS) to be an Indian under that Department's regulations; or

(vi) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:

(A) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(B) Is an Eskimo or Aleut or other Alaska Native;

(C) Is considered by DOI to be an Indian for any purpose; or

(D) Is considered by HHS to be an Indian under that Department's regulations.

(g) Retroactive copayment reimbursement. After VA determines the submitted documentation meets paragraph (f)(11) of this section and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA will reimburse veterans exempt under paragraph (f)(11) for any copayments that were paid to VA for adult day health care, non-institutional respite care, and non-institutional geriatric evaluation provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect.

(The Office of Management and Budget has approved the information collection provisions in this section under control number 2900-TBD.)

5. Amend § 17.4600 by:

a. Redesignating paragraph (d)(1)(ii) as (d)(1)(iii);

b. Adding new paragraph (d)(1)(ii);

c. Revising paragraph (d)(2);

d. Adding paragraph (d)(4);

e. Adding the information collection control number.

The additions and revision read as follows:

§ 17.4600

Urgent Care.

* * * * *

(d) * * *

(1) * * *

(ii) After three visits in a calendar year if such eligible veteran meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28). To demonstrate that they meet the definition of Indian or urban Indian, the veteran must submit to VA any of the documentation listed in paragraphs (A) through (F):

(A) Documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe;

(B) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

(C) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;

(D) Documentation issued by the Department of Interior (DOI) showing that the veteran is considered by DOI to be an Indian for any purpose;

(E) Documentation showing that the veteran is considered by the Department of Health and Human Services (HHS) to be an Indian under that Department's regulations; or

(F) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:

( 1) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;

( 2) Is an Eskimo or Aleut or other Alaska Native;

( 3) Is considered by DOI to be an Indian for any purpose; or

( 4) Is considered by HHS to be an Indian under that Department's regulations.

* * * * *

(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 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) or (ii) of this section.

* * * * *

(4) After VA determines the submitted documentation meets paragraph (d)(1)(ii) of this section and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA will reimburse eligible veterans exempt under paragraph (d)(1)(ii) for any copayments that were paid to VA for the first three visits for urgent care in a calendar year provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect.

* * * * *

(The Office of Management and Budget has approved the information collection provisions in this section under control number 2900-TBD.)

Footnotes

1.  VA's privacy policy— www.va.gov/​privacy-policy/​.