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Proposed Rule

Hospital and Outpatient Care for Veterans Released From Incarceration to Transitional Housing

Document Details

Information about this document as published in the Federal Register.

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Department of Veterans Affairs.


Proposed rule.


The Department of Veterans Affairs (VA) proposes to amend its regulations to authorize VA to provide hospital and outpatient care to a veteran in a program that provides transitional housing upon release from incarceration in a prison or jail. The proposed rule would permit VA to work with these veterans while they are in these programs with the goal of continuing to work with them after their release. This would assist in preventing homelessness in this population of veterans.


Comments must be received on or before July 12, 2010.


Written comments may be submitted through​; by mail or hand-delivery to the Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AN41 Hospital and Outpatient Care for Veterans Released from Incarceration to Transitional Housing.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at​.

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James McGuire, Program Manager, Healthcare for Re-entry Veterans, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-1591. (This is not a toll free number.)

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Section 1710(h) of title 38, United States Code, states that VA is not required “to furnish care to a veteran to whom another agency of Federal, State, or local government has a duty to provide care in an institution of such government.” The implementing regulation for section 1710(h) is 38 CFR 17.38(c)(5). Generally, § 17.38(c)(5) bars VA from providing “[h]ospital and outpatient care for a veteran who is either a patient or inmate in an institution of another government agency if that agency has a duty to give the care or services.” Typically, government agencies have a duty to provide medical care to inmates who have been released from incarceration in a prison or jail to a temporary housing program (such as a community residential re-entry center or halfway house).

This duty may exist even though the responsible government agency expects Start Printed Page 26684residents in these programs to arrange for their own medical care. Irrespective of whether a duty exists, however, VA wants to be able to provide hospital and outpatient care to eligible veterans in these programs. Under § 17.38(c)(5), VA cannot provide care to veterans in these programs if the other government agency has a duty to provide the care unless that agency is willing to pay VA for the care by contract. Accordingly, we propose to amend § 17.38 to establish that the exclusion in paragraph (c)(5) does not apply to any veteran who is released from incarceration to a transitional housing program. This amendment is necessary to authorize VA hospital and outpatient care for these veterans who often require additional assistance in successfully transitioning from incarceration. This amendment would not be contrary to section 1710(h) because that provision only states that VA is not required to provide care to these veterans; it does not prohibit VA from providing care to them.

VA wants to provide care to these veterans because VA has found that upon release from jail or prison these veterans are particularly at risk of not receiving adequate care and in many cases become homeless after their release from transitional housing programs. Under 38 U.S.C. 2022(a), VA is charged with reaching out “to veterans at risk of homelessness, including particularly veterans who are being discharged or released from institutions after * * * imprisonment.” Outreach workers for the Veterans Health Administration report that veterans with acute or chronic medical or psychiatric problems treated while incarcerated often have difficulty obtaining similar treatment during a transitional period. In particular, if mental health issues are not addressed during the transitional period, upon release, many of these veterans are rendered incapable of finding or maintaining appropriate housing.

In addition to being an important component of VA's duty to attempt to prevent veterans from becoming homeless, establishing that the exclusion in 38 CFR 17.38(c)(5) does not apply to veterans who are residents in transitional housing programs offers potentially significant public benefits and will further other VA policies. For example, section 20 of VHA Handbook 1160.01 specifically requires VA to “engage with veterans being released from prison in need of care.” VHA Handbook 1160.01, section 20(a)(2). As significant numbers of veterans in these programs have difficulty obtaining medical treatment comparable to the treatment they received in prison, some begin to believe the only way they can obtain treatment is to violate the terms of their release and return to prison. A 2008 Urban Institute study of a large re-entry population cohort, found healthcare played a key role in the first months of community readjustment and reduced recidivism. Mallik-Kane, K, and Visher, C.A., Health and prisoner re-entry: How physical, mental, and substance abuse conditions shape the process of re-integration. Urban Institute Justice Policy Center: Washington, DC (2008). In particular, the study noted that access to medications for chronic health and mental health conditions is a low-cost powerful tool in preventing recidivism.

For the foregoing reasons, VA proposes to amend 38 CFR 17.38 to revise the exclusion in the VA medical benefits package for a veteran who is a patient or inmate in an institution of another government agency so that the exclusion does not apply to a veteran who is a resident of a transitional housing program. For purposes of this proposed rule, a “transitional housing program,” would include community residential re-entry centers, halfway houses, and similar residential facilities.

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 an 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 given year. This proposed rule would have no such effect on State, local and tribal governments, on the private sector.

Executive Order 12866

Executive Order 12866 directs agencies to assess all 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, and other advantages; distributive impacts; and equity). The Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), as a 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, State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action planned or taken 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.

The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866.

Paperwork Reduction Act

The proposed rule does not contain any collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

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 would only affect individuals, not small entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

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; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary Care.

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. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on May 3, 2010, for publication.

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List of Subjects in 38 CFR Part 17

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Dated: May 6, 2010.

Robert C. McFetridge,

Director, Regulation Policy and Management, Office of the General Counsel.

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For the reasons stated in the preamble, VA proposes to amend 38 CFR part 17 as follows:

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

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Authority: 38 U.S.C. 501, 1721, and as noted in specific sections.

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2. Amend § 17.38 by revising paragraph (c)(5) to read as follows:

Medical benefits package.
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(c) * * *

(5) Hospital and outpatient care for a veteran who is either a patient or inmate in an institution of another government agency if that agency has a duty to give the care or services. This exclusion does not apply to veterans who are released from incarceration in a prison or jail into a temporary housing program (such as a community residential re-entry center or halfway house).

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[FR Doc. 2010-11177 Filed 5-11-10; 8:45 am]