Department of Veterans Affairs.
Final rule.
This document adopts as a final rule, with changes, a Department of Veterans affairs (VA) proposed rule concerning VA's direct transportation of persons for the purposes of examination, treatment, and care. Section 202 of the Dignified Burial and Other Veterans' Benefits Improvement Act of 2012, as amended, authorized VA to carry out a program to transport any person to or from a VA facility or VA-authorized facility, for the purpose of examination, treatment, or care. VA is authorized to carry out this program until December 31, 2016. These regulations provide guidelines for veterans and the public regarding this program, hereafter referred to as the Veterans Transportation Service (VTS).
David Riley, Director, Veterans Transportation Program, Chief Business Office (10NB2G), 2957 Clairmont Rd., Atlanta, GA 30329–1647, (404) 828–5601. (This is not a toll-free number.)
A proposed rule concerning VA's direct transportation of persons for the purposes of examination, treatment, and care was published in the
VA invited interested persons to submit comments on the proposed rule on or before July 27, 2015, and we received one comment regarding inconsistent use of and reference to the term “service dog” in proposed 38 CFR 70.71(b)(2) and 70.73(a). Section 70.71 relates to eligibility for VTS, and § 70.71(b)(2) as proposed would create VTS eligibility for enrolled veterans for the purpose of retrieval of, adjustment of, or training concerning medications, prosthetic appliances, or a service dog (as defined in 38 CFR 17.148). Section 70.73 relates to arrangement of and requests for transportation under VTS, and § 70.73(a) as proposed would require an eligible person that wanted to use VTS to provide VA with certain information to include any special needs that must be accommodated to allow for transportation (
We agree with the commenter that if a person is eligible for VTS and traveling with a service animal, then the broader definition of “service animal” in § 1.218(a)(11) should be used in VTS regulations. As noted by the commenter, if the broader definition of “service animal” in § 1.218(a)(11) was not used in VTS regulations, then VA may create conflicting situations where a person would be permitted to bring a “service animal” as defined in § 1.218(a)(11) into a VA facility, but would not be able to use VTS to be transported with such an animal to or from a VA facility. We therefore revise § 70.73(a) to add a reference to § 1.218(a)(11). This revision to § 70.73(a) addresses the commenter's concern that VA's definition of “service animal” in § 1.218(a)(11) should be applied consistently in the context of service animal access, whether the issue is a veteran getting into a VA facility with their service animal, or a veteran getting to the entrance of that VA facility with their service animal via VA transportation.
We do not, however, adopt the commenter's suggestion to revise § 70.71(b)(2) to reference “service animal” as defined in § 1.218(a)(11). As stated earlier in this final rule, § 70.71(b)(2) as proposed would create VTS eligibility for, among other things, transportation related to training a “service dog” that is recognized under § 17.148. If we revised § 70.71(b)(2) to replace the reference to “service dog” in § 17.148 with a reference to “service animal” in § 1.218(a)(11), we would instead create VTS eligibility for transportation related to training a “service animal” that is recognized under § 1.218(a)(11). However, this would conflict with VA's service dog benefits standards in § 17.148, because § 17.148(c) has specific training requirements that are not present in § 1.218(a)(11). The commenter's suggested revision to § 70.71(b)(2) would create scenarios where VA could provide VTS transport to support the non-specific training of a “service animal” that is recognized under § 1.218(a)(11), although VA could not recognize that training under § 17.148(c) for the purposes of providing service dog benefits. Such a practice could be interpreted as VA supporting non-specific training that is not recognized under § 17.148(c), and would erode VA's training requirements in § 17.148(c). To avoid this conflict between VA standards related to service animal access in § 1.218(a)(11) and VA standards related to service dog benefits in § 17.148, we do not make the revision to § 70.71(b)(2) as suggested by the commenter.
We additionally clarify that VTS travel to receive training with approved service dogs under § 17.148 would only be approved travel under § 70.72(d). The types of authorized transportation under § 70.72(a)–(c) must be to or from VA or
We additionally clarify one issue that was not raised by the commenter related the transportation of guests using VTS resources. Section 70.71(i) permits guests to travel with a veteran or servicemember if resources are available after providing services to eligible individuals in § 70.71(b)–(h). As permitted by § 70.71(i), guests may travel with a veteran or servicemember, but may not travel unaccompanied. We recognize that in some cases, a guest that travels with a veteran or servicemember to a VA medical facility may need to make a return trip from the VA medical facility unaccompanied, such as when a veteran or servicemember must be admitted to an inpatient treatment setting. In such a case, the guest of such a veteran or servicemember may make the return trip from the VA medical facility unaccompanied, because VA anticipated in any case completing a return trip for the guest as part of the travel permitted under § 70.71(i). We do not make any changes to the regulation text, however, because we interpret a return trip from a VA medical facility for an unaccompanied guest to be part of traveling with the veteran or servicemember under § 70.71(i).
Based on the rationale set forth here and in the proposed rule, VA is adopting the provisions of the proposed rule as a final rule with the changes to § 70.73(a) as described above.
Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.
This final rule at § 70.73 contains new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521). On May 27, 2015, in a proposed rule published in the
The Secretary hereby certifies that this final rule will 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 directly affects only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the final regulatory flexibility analysis requirements of 5 U.S.C. 604.
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,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, 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 this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined that it is not a significant regulatory action under Executive Order 12866 because it is likely to result in a regulatory action that may have an annual effect on the economy of $100 million or more. VA's impact analysis can be found as a supporting document at
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.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are as follows: 64.007, Blind Rehabilitation Centers; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.013, Veterans Prosthetic Appliances; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary Care.
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 D. Snyder, Interim Chief of Staff, Department of Veterans Affairs, approved this document on January 28, 2016, for publication.
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.
For the reasons set forth in the preamble, VA amends 38 CFR part 70 as follows:
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.
(a)
(b)
Except as provided in paragraph (j) of this section, VA facilities may provide VTS benefits to the following:
(a)
(b)
(1) A scheduled visit or urgent care;
(2) Retrieval of, adjustment of, or training concerning medications and prosthetic appliances, or a service dog (as defined in 38 CFR 17.148);
(3) An unscheduled visit; or
(4) To participate and attend other events or functions, as clinically determined by VA, for the purposes of examination, treatment, or care.
(c)
(1) A compensation and pension examination;
(2) An unscheduled or walk-in visit;
(3) To apply for enrollment or health care benefits; or
(4) To participate and attend other events or functions, as clinically determined by VA, for the purposes of examination, treatment, or care.
(d)
(e)
(2) VA may provide VTS to a Family Caregiver (who is approved and designated under 38 CFR 71.25) of veteran or servicemember described in paragraphs (b) through (d) of this section to:
(i) Accompany or travel independently from a veteran or servicemember for purposes of examination, treatment, or care of the veteran or servicemember; or
(ii) Receive benefits under 38 CFR 71.40(b) or (c). For health care benefits provided under 38 CFR 71.40(c)(3), Primary Family Caregivers may travel using VTS for care only if it is provided at a VA facility through the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) Inhouse Treatment Initiative (CITI).
(f)
(g)
(h)
(i)
(j)
(1) A person may be ineligible for transportation services if VA determines the person's behavior has jeopardized or could jeopardize the health or safety of other eligible users of VTS or VA staff, or otherwise has interfered or could interfere with the safe transportation of eligible persons to or from a VA facility or other place.
(2) Only one person may travel with an eligible veteran or servicemember as a Family Caregiver, attendant, or guest, unless a VA clinician determines that more than one such person is needed or would otherwise be beneficial to the examination, treatment, or care of the eligible veteran or servicemember. Family Caregivers traveling for benefits under paragraph (e)(1) or (e)(2)(ii) of this section are not subject to this limitation.
(3) Persons under the age of 18 may accompany another person using VTS with the consent of their parent or legal guardian and the medical facility director or designee. VA transportation of children is not available if State law requires the use of a child restraint, such as a child safety seat or booster seat. In making determinations under this provision, the medical facility director or designee will consider:
(i) The special transportation needs of the child, if any;
(ii) The ability to transport the child safely using the available resources;
(iii) The availability of services at the facility to accommodate the needs of the child;
(iv) The appropriateness of transporting the child; and
(v) Any other relevant factors.
The following types of transportation may be provided by VA facilities through VTS:
(a)
(b)
(c)
(d)
(a)
(b)
(1) The person is being discharged from inpatient care;
(2) The person is traveling for an unscheduled visit, pursuant to a recommendation for such a visit by an attending VA clinician; or
(3) The person is being transported to another VA or VA-authorized facility.
(c)
(1) The eligible person's basis for eligibility. Enrolled veterans will receive first priority, followed in order by non-enrolled veterans; servicemembers; Family Caregivers; persons receiving counseling, training, or mental health services under 38 U.S.C. 1782 and 38 CFR 71.50; CITI beneficiaries; and guests. Persons eligible under more than one designation will be considered in the highest priority category for which that trip permits. VA will provide transportation to any attendant accompanying a veteran or servicemember who is approved for transportation.
(2) First in time request.
(3) An eligible person's clinical need.
(4) An eligible person's inability to transport him or herself (
(5) An eligible person's eligibility for other transportation services or benefits.
(6) The availability of other transportation services (
(7) The VA facility's ability to maximize the use of available resources.
(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900–0838.)