[Federal Register Volume 87, Number 133 (Wednesday, July 13, 2022)]
[Rules and Regulations]
[Pages 41594-41603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14285]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AP02
Civilian Health and Medical Program of the Department of Veterans
Affairs
AGENCY: Department of Veterans Affairs
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with
changes, a proposed rule to amend its medical regulations concerning
the Civilian Health and Medical Program of the Department of Veterans
Affairs (CHAMPVA). The final rule clarifies
[[Page 41595]]
and updates these regulations to conform to changes in law and policy
that control the administration of CHAMPVA and include details
concerning the administration of CHAMPVA that were previously not
reflected in regulation. The amendments improve our ability to
effectively administer CHAMPVA and make technical revisions to make our
regulations more understandable. In addition, this rulemaking expands
covered services and supplies, to include certain preventive services,
and eliminates cost-share amounts and deductibles for certain covered
services.
DATES: Effective date: This final rule is effective August 12, 2022.
Applicability date: The provisions of this final rule shall apply
to all applications for benefits that are received by VA on or after
the effective date of this final rule or that are pending before VA,
the United States Court of Appeals for Veterans Claims, or the United
States Court of Appeals for the Federal Circuit on the effective date
of this final rule.
FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director, Policy and
Planning, Office of Integrated Veteran Care (OIVC), 3773 Cherry Creek
North Drive, Denver, Colorado 80209, [email protected], (303) 370-
1637. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: CHAMPVA is a health benefits program in
which the Department of Veterans Affairs (VA) shares the cost of
covered medical care services and supplies with spouses, children,
survivors, and certain caregivers of veterans who meet eligibility
criteria under 38 U.S.C. 1781. One criterion is that CHAMPVA
beneficiaries cannot be eligible for TRICARE, a health care program
administered by the Department of Defense (DoD) that is authorized to
provide health care to certain family members of veterans. Another
criterion is that primary family caregivers designated under 38 U.S.C.
1720G(a)(7)(A) cannot be entitled to services under a health-plan
contract as defined in 38 U.S.C. 1725(f).
VA must operate the CHAMPVA program and provide for medical care in
the same or similar manner and subject to the same or similar
limitations as medical care is furnished to certain dependents and
survivors of active duty and retired members of the Armed Forces under
the CHAMPUS program. See 38 U.S.C. 1781(b). CHAMPUS was the original
program administered by DoD to provide civilian health benefits for
active duty military personnel, military retirees, and their
dependents. See 32 CFR 199.1. Although the CHAMPUS program is still
referenced in DoD regulations, DoD effectively replaced the CHAMPUS
program with what is commonly known as the TRICARE Select plan
(``TRICARE''). See 32 CFR 199.1(r), 199.17(a)(6)(ii)(D) (identifying
TRICARE Select as the basic CHAMPUS program). TRICARE's current benefit
structure offers varying degrees of medical benefits under multiple
plan options beyond its Select plan. However, we administer CHAMPVA in
the same or similar manner as TRICARE Select because the basic program
is what is referenced by the CHAMPUS authority. Thus, all references in
this rulemaking to TRICARE are to the TRICARE Select plan, which we
refer to simply as TRICARE throughout most of this rulemaking for ease
of reference.
VA interprets the ``same or similar manner'' language in 38 U.S.C.
1781(b) to mean that we must generally administer CHAMPVA in a same or
similar manner as the TRICARE Select plan. We do not interpret this
statutory language as requiring VA to operate CHAMPVA in an identical
manner to TRICARE. Rather, we interpret this language as affording VA
needed flexibility to administer the program for CHAMPVA beneficiaries.
For this reason, not every aspect of CHAMPVA will find a corollary in
the TRICARE Select Plan.
On January 17, 2018, VA proposed to amend its regulations governing
CHAMPVA to expand covered services and supplies to include certain
preventive services, improve our ability to effectively administer
CHAMPVA, and waive cost-shares as well as deductibles for certain
covered services. See 83 FR 2396. VA provided a 60-day period during
which the public could submit comments to our proposal. The public
comment period ended on March 19, 2018, and we received six comments on
the proposed rule. Public comments were generally supportive, however
several comments suggested substantive changes to the proposed rule. We
respond to these public comments here.
Sec. 17.270 General Provisions and Definitions
We proposed amending paragraph (b) by adding definitions for terms
used in the CHAMPVA program. We proposed defining an ``authorized non-
VA provider'' to mean an individual or institutional non-VA provider of
CHAMPVA-covered medical services and supplies who is licensed or
certified by a State to provide the covered medical services and
supplies, or is otherwise certified by an appropriate national or
professional association that sets standards for the specific medical
provider. We stated that this requirement for State licensure or other
certification would be similar to TRICARE, which requires that its
providers be either licensed or certified by a State, or, where States
do not offer licensure or certification, be otherwise certified by an
appropriate national or professional association that sets standards
for the specific medical provider. See TRICARE Policy Manual 6010.60-M,
Chapter 11 (``Providers''), section 3.2 (``State Licensure And
Certification'').
One commenter generally supported the proposed definition of
authorized non-VA provider, and encouraged VA to continue to adopt this
language throughout the CHAMPVA regulations to increase consistency and
ensure that all healthcare providers, including nurse practitioners,
are authorized to provide treatment and services to CHAMPVA members to
the full extent of their licensure and certification. To clarify, this
rulemaking does not address the scope of practice of health care
professionals and does not authorize health care professionals to
practice beyond the scope of their state license, certification, or
registration. However, we note that CHAMPVA beneficiaries can seek care
from qualified nurse practitioners practicing within the scope of their
State license and privileges. We thank the commenter for their
recommendations and make no changes to the rule based on the comment.
One commenter opposed the inclusion of the language ``otherwise
certified by an appropriate national or professional association that
sets standards for the specific medical provider.'' The commenter was
concerned that this language granted full practice authority to non-
physician providers. To clarify, this rulemaking does not grant full
practice authority to non-physician providers and does not supersede
any State laws. The language was included to address the limited
instance where members of a health care occupation or specialty
practice area are not governed by a state through its licensure or
certification procedures, but instead are governed by the requirements
of a national or professional association such as the Joint Commission
(previously known as the Joint Commission on Accreditation of Health
Care Organizations) and the Commission on Accreditation of
Rehabilitation Facilities (CARF).
Changes to paragraph (c). In addition, VA makes technical edits to
the rule for clarity. Proposed paragraph (c) addresses VA's
discretionary authority
[[Page 41596]]
to waive certain regulatory requirements. The second sentence of this
proposed paragraph states that ``it is VA's intent that such
discretionary authority would be used only under very unusual and
limited circumstances and not to deny any individual any right,
benefit, or privilege provided to him or her by statute or these
regulations.'' We are amending proposed paragraph (c) to remove the
phrase ``It is VA's intent that'' at the beginning of the second
sentence in the definition as VA does not believe this predicate is
necessary. VA is also amending the paragraph by replacing the word
``shall'' with ``will'' in the last sentence of the paragraph for
clarity.
Sec. 17.272 Benefits Limitations/Exclusions
As part of our reorganization of this section we proposed
redesignating multiple subparagraphs in paragraph (a) which addresses
exclusions from CHAMPVA coverage, including redesignating paragraph
(a)(31) as paragraph (a)(30). This paragraph addresses excluded
preventive services from CHAMPVA coverage, except for certain listed
services. In addition, we proposed amending two listed exceptions,
expanding one exception, and adding three exceptions. The proposed
changes are intended to generally align CHAMPVA exceptions with those
under TRICARE.
One commenter recommended that VA health plans cover all preventive
services with Grade ``A'' or ``B'' recommendations from the U.S.
Preventive Services Task Force (USPSTF). The USPSTF is an independent,
volunteer panel of national experts in prevention and evidence-based
medicine. The Task Force makes evidence-based recommendations about
clinical preventive services such as screenings, counseling services,
and preventive medications.
Consistent with our mandate to operate the CHAMPVA program in a
same or similar manner as TRICARE, we follow TRICARE by adding to our
list of covered preventive screenings the following preventive
services: colorectal cancer screenings, breast cancer screenings,
cervical cancer screenings, prostate cancer screenings, and
immunizations. As explained in the proposed rule, TRICARE expanded its
program to include certain preventive services, in response to specific
statutory requirements. However, for the reasons also explained in the
proposed rule, we add annual physical exams to this list, even though
not included under TRICARE. 83 FR at 2401. A review of the USPSTF Grade
``A'' or ``B'' recommendations reveals that the task force recommends
52 specific preventive medical screenings or interventions, many of
which would be part of a routine annual physical examination or
otherwise addressed in CHAMPVA preventive services exceptions. Lastly,
this rulemaking is limited to amending CHAMPVA regulations, and to the
extent this public comment touches on other aspects of VA health care,
the recommended changes exceed the scope of this rulemaking.
We proposed redesignating paragraph (a)(51) as paragraph (a)(49).
This paragraph excludes food, food substitutes, vitamins or other
nutritional supplements, including those related to prenatal care for a
home patient whose condition permits oral feeding, from CHAMPVA
coverage.
One commenter asked why CHAMPVA does not cover prescription
prenatal vitamins for pregnant beneficiaries when TRICARE provides
prenatal vitamins. As stated earlier, CHAMPVA must operate in the same
or similar manner to TRICARE. See 38 U.S.C. 1781(b). TRICARE covers
medically necessary vitamins used for the management of a covered
disease or condition pursuant to a prescription, order, or
recommendation of a TRICARE authorized provider acting within the
provider's scope of license/certificate of practice. The term ``covered
disease or condition'' includes pregnancy in relation to prenatal
vitamins, with the limitation that the prenatal vitamins that require a
prescription in the United States may be covered for prenatal care
only. 32 CFR 199.4(d)(3)(vi)(D)(5). We agree that prenatal vitamins
should be provided when deemed medically necessary as part of a
treatment plan for a pregnant beneficiary. Accordingly, we are amending
redesignated paragraph (a)(49), removing the explicit restriction on
prenatal care, and amending the paragraph to include clarifying
language. As amended, newly redesignated paragraph (a)(49) excludes
food, food substitutes, vitamins or other nutritional supplements,
including those related to care for a home patient whose condition
permits oral feeding, except for prenatal vitamins which are medically
necessary as a component of prenatal care and prescribed by a VA
provider or an authorized non-VA provider as defined in Sec. 17.270.
Previously, smoking cessation services and supplies were
specifically excluded from CHAMPVA coverage. In paragraph (a)(76) we
proposed that over-the-counter pharmaceutical smoking cessation
supplies approved by the U.S. Food and Drug Administration, prescribed,
and provided through Medications by Mail (MbM), would not be excluded
from CHAMPVA coverage. In a related provision, in 38 CFR
17.270(a)(3)(ii), we proposed that smoking cessation pharmaceutical
supplies would be available only through MbM. Smoking cessation
supplies would be available to CHAMPVA beneficiaries who are not
eligible for Medicare and do not have any other prescription health
insurance.
One commenter supported the proposed change but recommended that VA
increase opportunities for family physicians and other healthcare
clinicians to counsel patients about tobacco cessation. We agree with
the commenter and believe that the changes we proposed to CHAMPVA
exclusions support efforts to promote smoking cessation. By removing
the regulatory restrictions and allowing for smoking cessation services
and supplies VA believes it is increasing the opportunities for
physicians to care for beneficiaries who use tobacco products and
improving payment for primary care cessation counseling. Under this
final rule, smoking cessation counseling, including coverage of
pharmaceuticals, is a covered benefit when CHAMPVA is the primary payer
and any prescribed, FDA-approved smoking cessation pharmaceutical
products are delivered through MbM. This mirrors TRICARE, which covers
smoking cessation pharmaceutical products only when delivered through
its mail order pharmacy program. Thus, we are covering these services
in a similar manner to TRICARE. Additionally, by providing smoking
cessation products through MbM, the beneficiary avoids any CHAMPVA
cost-sharing amounts which might otherwise apply if purchased through a
retail pharmacy. We make no changes based on this comment.
Sec. 17.273 Preauthorization
We proposed revising preauthorization requirements by adding
language to indicate when a beneficiary has ``other health insurance''
that provides primary coverage for the benefit, preauthorization
requirements will not apply. To provide benefits in a similar fashion
as TRICARE we proposed waiving any requirement for preauthorization
where other health insurance covers the benefit. In addition, we
proposed removing the requirement for preauthorization for durable
medical equipment (DME) as a covered service or supply.
One commenter encouraged VA to apply prior authorization principles
in
[[Page 41597]]
CHAMPVA and other health plans under VA's purview such as: activities
requiring prior authorization must be justified in terms of financial
recovery, cost of administration, workflow burden, and lack of another
feasible method of utilization control; prior authorization should be
eliminated for physicians with aligned financial incentives (e.g.,
shared savings) and proven successful stewardship; and eliminate prior
authorization for DME, imaging, supplies, and generic drugs. To the
extent this comment addresses health care provided by VA other than
CHAMPVA, it focuses on issues beyond the scope of this rulemaking. VA
follows guidelines in its CHAMPVA regulations specifying the need for
prior authorization under specific sets of circumstances. Also, with
the removal of prior authorization for DME in this final rule, CHAMPVA
no longer requires preauthorization for DME, imaging, supplies, or
generic drugs. Whenever prior authorization is required, however, we
note that VA always determines need based on the best interest of the
beneficiaries we serve.
In addition, the commenter recommended the VA apply transitional
steps for changing preauthorization requirements, and offered
suggestions primarily related to VA's relationship to VA contractors.
Generally, CHAMPVA does not engage VA contractors to provide health
care to CHAMPVA beneficiaries. The only instance where a CHAMPVA
beneficiary could possibly receive care from a VA contractor working in
that capacity is where a beneficiary who is not eligible for Medicare
receives care in a VA medical facility on a space available basis
through the CHAMPVA In-house Treatment Initiative (CITI). In that
instance, if the VA provider is operating in the VA medical facility on
a contractual basis the provider works under the same rules as a health
care provider who is a VA employee. The transitional steps listed by
the commenter are beyond the scope of this rulemaking, and we make no
changes based on this comment.
Sec. 17.274 Cost Sharing
This section addresses cost sharing and deductibles. Proposed
paragraph (b) focuses on annual deductibles ($50 per beneficiary or
$100 per family) as well as instances where the deductible is waived.
One commenter expressed concern with the patients' inability to afford
medically necessary care. The commenter stated that the escalation in
deductibles is limiting access to care, and higher deductibles create a
financial disconnect between individuals, their primary care physician,
and the broader health care system. CHAMPVA does not have a high
deductible plan but an annual deductible of $50 per beneficiary or $100
per family. CHAMPVA deductible amounts have not escalated and have
remained unchanged since at least 1999. The commenter's general concern
regarding escalating deductibles limiting access to care does not apply
to the CHAMPVA program. We make no changes based on this comment.
However, we are making one minor edit to paragraph (a)(1)(v) to
clarify that CHAMPVA beneficiary cost-share requirements do not apply
to various other preventive services as determined by the Secretary of
Veterans Affairs. VA determined that this subparagraph was not specific
enough in that it did not specify that ``preventive'' services as
determined by the Secretary is not subject to CHAMPVA beneficiary cost-
share requirements.
Sec. 17.275 CHAMPVA Determined Allowable Amount Calculation
We proposed adding a new Sec. 17.275 to describe the various
payment methodologies used by CHAMPVA to calculate the CHAMPVA
determined allowable amount for covered services and supplies. We
stated that CHAMPVA uses the same or similar payment methodologies to
establish allowable reimbursement amounts for providers as TRICARE, and
that proposed payment methodologies would be consistent with current VA
practice.
One commenter expressed concerns regarding CHAMPVA's non-VA
provider reimbursement amounts not being equal to Medicare
reimbursement amounts in response to CHAMPVA's clarification of a
provider accepting assignment. When feasible, CHAMPVA determines its
allowable charges using TRICARE's reimbursement methodologies. In this
instance, CHAMPVA uses TRICARE's physician fee schedule, which is
equivalent to Medicare's physician fee schedule, to determine the
CHAMPVA Maximum Allowable Charge. Additionally, this commenter stated
that VA should offer contracts at least at the Medicare rate, so family
physicians and other non-VA entities can afford to treat veterans.
CHAMPVA does not contract with providers to treat veterans. CHAMPVA is
a family member health benefits program for dependents of permanently
and totally disabled and certain other veterans and certain caregivers.
Under it, VA uses the TRICARE physician fee schedule amount, which is
equivalent to the Medicare physician fee schedule amount, to determine
the CHAMPVA Maximum Allowable Charge. We make no changes based on this
comment.
Proposed paragraph (h) provided that reimbursement for durable
medical equipment, prosthetics, orthotics, and supplies (DMEPOS) would
be based on the same amounts established under the Centers for Medicare
& Medicaid Services (CMS) DMEPOS fee schedule under 42 CFR part 414,
subpart D, which is the same methodology used in TRICARE regulations to
calculate DMEPOS payments. See 32 CFR 199.14(k). The allowed amount
would be that which is in effect in the specific geographic location at
the time CHAMPVA-covered services and supplies are provided to a
CHAMPVA beneficiary.
One commenter urged VA to review Medicare's current policies
related to the Medicare benefit for DMEPOS to evaluate potential access
to care for our beneficiaries. The commenter stated that Medicare's fee
schedules in non-competitive bidding areas, which are based on single
payment amounts, results in reduced access to DMEPOS and inadequate
payment to suppliers. Although we understand the commenter's concern,
we chose to revise our regulations to be consistent with the Medicare
fee schedule because TRICARE uses the Medicare fee schedule. Also, we
believe that matching TRICARE payment methodologies as closely as
possible is the best way to provide for medical care in the same or
similar manner as TRICARE pursuant to 38 U.S.C. 1781(b). The rates at
which VA pays for care are an integral part of the ``provision'' of
care, and therefore, we think this is an area where VA should remain in
line with TRICARE. We thank the commenter for their suggestion, but
make no changes to the rule based on this comment.
In paragraph (j) we proposed establishing in regulation the current
CHAMPVA reimbursement methodology for hospice care. This methodology
uses rates in the CMS hospice per diem rate payment system, which is
the same methodology used in TRICARE regulations to calculate hospice
payments. See 32 CFR 199.14(g)(9).
One commenter inquired whether CHAMPVA will use Medicare rates for
each year by hospice level of care, including two tiers of payment for
routine home care. Although TRICARE regulations do not reflect the two-
tiered payment system, it is reflected in its reimbursement manual. See
TRICARE Reimbursement Manual 6010.61-M, April 1, 2015, Chapter 11,
Section 4, Subsection 3.1.1.3. TRICARE
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implemented the two-tiered payment rates for routine home care (RHC)
levels of care effective January 1, 2016. CHAMPVA cannot, however,
implement the two-tiered payment system due to current IT system
limitations. We will consider adopting this methodology in the future,
dependent on increased system capabilities. CHAMPVA already uses
Medicare's annual hospice rates and utilizes Medicare's rates for each
level of hospice service, with the exception of the ``61-day and over''
routine home care (RHC) rates. For RHC, CHAMPVA currently only
reimburses Medicare's 1-60 day RHC rate for all routine home care days,
regardless of the number of days RHC is provided. For RHC provided for
61 days or more, CHAMPVA reimburses at a higher rate than allowable
under Medicare rules. The final rule codifies these practices.
In addition, the commenter asked how CHAMPVA will track any updates
that Medicare makes in the structure of its hospice payment system.
CHAMPVA annually reviews Medicare's hospice proposed rules and final
rules in the Federal Register to maintain awareness of any potential
change in TRICARE reimbursement methodologies. If TRICARE implements
any Medicare reimbursement updates in the future, CHAMPVA will assess
the feasibility of implementing such changes.
The commenter inquired as to whether changes in the hospice payment
structure by CMS are mirrored by CHAMPVA in the same time frame as
Medicare. CHAMPVA is not based on the Medicare program, but instead
must operate in the same or similar manner as TRICARE.
Finally, the commenter asked about communication regarding hospice
updates to Veterans Integrated Service Networks (VISNs) and local VA
facilities and offered suggestions for improving communications.
Internal VA processes, including avenues of communication between a VA
medical facility and the VISN, are not typically addressed via
regulation. Rather, internal processes and procedures are more properly
delineated in agency policy. We make no changes to this rulemaking
based on these comments.
Changes to paragraph (g). In addition, we are making a technical
edit to paragraph (g). In the proposed rule, we proposed revising this
paragraph to state that the CHAMPVA Skilled Nursing Facility (SNF) care
reimbursement methodology is based on the CMS Prospective Payment
System for SNFs under 42 CFR part 413, subpart J (Medicare Resource
Utilization Group (RUG) rates). See 83 FR 2411. Medicare replaced the
RUG rates in fiscal year 2020 with Patient Driven Payment Model (PDPM)
rates. Therefore, in this rulemaking, we are removing the phrase
``Medicare Resource Utilization Group (RUG) rates'' in the
parenthetical. We note that the PDPM reporting mechanism decreases the
administrative burden on providers but does not impact reimbursement
rates. VA makes no other changes in this paragraph.
Changes to paragraph (k). We are also making a technical edit to
paragraph (k) to conform with minor changes to Medicare payment
methodologies that went into effect after the public comment period
closed. In the proposed rule, we proposed revising paragraph (k) to
state that the CHAMPVA home health care reimbursement methodology,
based on Medicare's home health prospective payment system, uses a
fixed case-mix and wage-adjusted national 60-day episode payment amount
to act as payment in full for costs associated with furnishing home
health services with exceptions allowing for additional payment to be
established. See 83 FR 2396. Additionally, we explained that we would
make the change of adopting TRICARE's reimbursement methodology for
intermittent or part-time home health services, which itself is based
on Medicare's reimbursement methodology. In other words, the proposed
substantive rule for this paragraph is that CHAMPVA will reimburse
these services in a manner similar to TRICARE, which adopts Medicare's
methodology. We received no comments on proposed 17.275(k).
Since the proposed rule was published (January 17, 2018), Medicare
has finalized changes that change aspects of its methodology for paying
for home health services. More specifically, on November 13, 2018, CMS
published a final rule with comment period (RIN 0938-AT29) that amended
42 CFR part 484 to, inter alia, update the Home Health Prospective
Payment System (HH PPS) payment methodology, effective January 1, 2020.
See 83 FR 56406. Of relevance here, that CMS final rule changed its
regulations from requiring a 60-day episode payment to a 30-day episode
payment.
The ``60-day episode of care'' language in the proposed rule at 38
CFR 17.275(k) referred to the substantive content in that paragraph,
which was the proposed use of Medicare's HH PPS payment methodology
when determining payment for intermittent or part-time home health care
consistent with that used by TRICARE. The inclusion of the reference to
the length of the episode of care was intended to be informative in
nature and aligned with Medicare rules as of the date the proposed rule
published. In this final rulemaking we are not changing the payment
methodology that CHAMPVA utilizes when determining payment for
intermittent or part-time home health care. However, we are removing
the reference to a specific episode of care length in reference to
Medicare's HH PPS payment methodology, which no longer uses a 60-day
episode of care. As discussed above, Medicare has adopted a 30-day
episode of care in its final rule, effective January 1, 2020 (see RIN
0938-AT39 (83 FR 56406) published November 13, 2018). Removing
reference to a specific length for an episode of care as it relates to
payment for intermittent or part time home health care will preserve
needed flexibility to adequately implement and update our HH PPS in a
manner consistent with any changes made by TRICARE. The public was
fairly apprised of the potential scope and substance of the proposed
rule--that we would be using Medicare's HH PPS payment methodology for
payment for intermittent or part time home health care, and that
remains the same in the final rule. This rulemaking revises paragraph
(k) to state that the CHAMPVA home health care reimbursement
methodology, based on TRICARE's home health prospective payment system,
uses a fixed case-mix and wage-adjusted episode payment amount to act
as payment in full for costs associated with furnishing home health
services with exceptions allowing for additional payment to be
established. Because the proposed substantive rule for paragraph (k) is
unchanged here, removing the detail describing how it is currently
calculated under Medicare is a technical fix to avoid the need for
future updates of such details.
Sec. 17.277 Appeals
This section addresses appeals. If a CHAMPVA beneficiary or
provider disagrees with a determination concerning CHAMPVA-covered
services and supplies or calculation of benefits, a request for
reconsideration may be made. If the beneficiary or provider disagrees
with the reconsideration determination, the denial of CHAMPVA benefits
based on legal eligibility requirements may be appealed to the Board of
Veterans' Appeals (BVA). Although we received no public comments on
this section, changes are necessary to address issues raised by the
Veterans Appeals Improvement and Modernization Act of 2017 (Pub. L.
115-55) (``the AMA''). The AMA revised processes for resolving VA
benefits
[[Page 41599]]
claims and appeals of VA benefits decisions. In February 2019, VA
promulgated rules to implement the AMA under 38 CFR parts 3 and 8, 14,
19, 20, and 21. 84 FR 138 (January 18, 2019).
On February 21, 2020, VA published a proposed rule to revise
several sections of 38 CFR part 17 including 17.276. See 85 FR 10118.
In that proposed rule, we updated 38 CFR 17.276 to reflect that
reconsideration within the VHA appeals process is only available in
legacy claims. Id. The comment period ended on April 21, 2020. VA
received no comments on the proposed changes to 17.276. Given the
effect these changes have on the CHAMPVA program, VA adopts the
proposed changes to 17.276 from 85 FR 10118 in this rulemaking and
redesignates the section as 17.277.
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 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. The final payment methods in this rulemaking will include new
reimbursement rates for the Outpatient Prospective Payment System
(OPPS), Home Health Prospective Payment System (HH PPS), and Sole
Community Hospitals (SCHs) reimbursement methodologies. These revised
methodologies will not significantly affect small businesses due to the
following reasons: (1) The health care industry, to include Medicare
and TRICARE, is currently using these payment methods and most
providers are used to these reimbursement rates, if not expecting to
receive them; (2) CHAMPVA's beneficiary population is relatively small
compared to these other health care payers. On this basis, the
Secretary certifies that the adoption of 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. 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 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 this
rule to be 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.
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, or 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, or tribal governments, or on the private sector.
Assistance Listing
The Assistance Listing numbers and titles for the programs affected
by this document are 64.009, Veterans Medical Care Benefits; 64.010,
Veterans Nursing Home Care; and 64.011, Veterans Dental Care; 64.012,
Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances;
and 64.019, Veterans Rehabilitation Alcohol and Drug Dependence.
Congressional Review Act
This regulatory action is a major rule under the Congressional
Review Act, 5 U.S.C. 801-808, because it may result in an annual effect
on the economy of $100 million or more. In accordance with 5 U.S.C.
801(a)(1), VA will submit to the Comptroller General and to Congress a
copy of this Regulation and the Regulatory Impact Analysis (RIA)
associated with the Regulation.
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, 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
Denis McDonough, Secretary of Veterans Affairs, approved this
document on October 8, 2021, 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.
Consuela Benjamin,
Regulations Development Coordinator, 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 (VA) amends 38 CFR part 17 as follows:
PART 17--MEDICAL
0
1. The general authority citation for part 17 continues and authority
citations for Sec. Sec. 17.270, 17,271, 17.278 and 17.279 are added in
numerical order to read as follows to read as follows
38 U.S.C. 501, and as noted in specific sections.
* * * * *
Sections 17.270, and 17.272 through 17.277 are also issued under
38 U.S.C. 1781.
Section 17.271 is also issued under 38 U.S.C. 1720G(a)(7)(A) and
1781.
Section 17.278 is also issued under 38 U.S.C. 1781 and 42 U.S.C.
2651.
Section 17.279 is also issued under 5 U.S.C. 552 and 552a; 38
U.S.C. 1781, 5701, and 7332.
* * * * *
0
2. Revise Sec. 17.270 to read as follows:
Sec. 17.270 General provisions and definitions.
(a) Overview of CHAMPVA. CHAMPVA is the Civilian Health and Medical
Program of the Department of Veterans Affairs (VA). Generally, CHAMPVA
furnishes medical care in the same or similar manner, and subject to
the same or similar limitations, as medical care furnished to certain
dependents and survivors of active duty and retired members of the
Armed Forces under chapter 55 of title 10, United States Code
(CHAMPUS), commonly referred to as the TRICARE Select plan. Under
CHAMPVA, VA shares the cost of medically necessary services and
supplies with eligible beneficiaries within the 50 United States, the
District of Columbia, the U.S. territories, and abroad. Under
[[Page 41600]]
CHAMPVA, medical services and supplies may be provided as follows:
(1) By an authorized non-VA provider.
(2) By a VA provider at a VA facility, on a resource-available
basis through the CHAMPVA In-house Treatment Initiative (CITI) to
CHAMPVA beneficiaries who are not also eligible for Medicare.
(3) Through VA Medications by Mail (MbM).
(i) Only CHAMPVA beneficiaries who do not have any other type of
health insurance that pays for prescriptions, including Medicare Part
D, may use MbM.
(ii) Smoking cessation pharmaceutical supplies will only be
provided through MbM and only to CHAMPVA beneficiaries that are not
also eligible for Medicare.
(b) Definitions. The following definitions apply to CHAMPVA
(Sec. Sec. 17.270 through 17.278):
Accepted assignment refers to the action of an authorized non-VA
provider who accepts responsibility for the care of a CHAMPVA
beneficiary and thereby agrees to accept the CHAMPVA determined
allowable amount as full payment for services and supplies rendered to
the beneficiary. (The provider's acceptance of the CHAMPVA determined
allowable amount extinguishes the beneficiary's payment liability to
the provider with the exception of applicable cost-shares and
deductibles.)
Authorized non-VA provider means an individual or institutional
non-VA provider of CHAMPVA-covered medical services and supplies that
meets any of the following criteria:
(i) Is licensed or certified by a state to provide the medical
services and supplies; or
(ii) Where a state does not offer licensure or certification, is
otherwise certified by an appropriate national or professional
association that sets standards for the specific medical provider.
Calendar year means January 1 through December 31.
CHAMPVA beneficiary means a person enrolled under Sec. 17.271.
CHAMPVA-covered services and supplies mean those medical services
and supplies that are medically necessary and appropriate for the
treatment of a condition and that are not specifically excluded under
Sec. 17.272(a)(1) through (84).
CHAMPVA determined allowable amount has the meaning set forth in
Sec. 17.272(b)(1).
CHAMPVA In-house Treatment Initiative (CITI) means the initiative
under 38 U.S.C. 1781(b) under which participating VA medical facilities
provide medical services and supplies to CHAMPVA beneficiaries who are
not also eligible for Medicare, subject to availability of space and
resources.
Child has the definition established in 38 U.S.C. 101.
Claim means a request by an authorized non-VA provider or by a
CHAMPVA beneficiary for payment or reimbursement for medical services
and supplies provided to a CHAMPVA beneficiary.
Fiscal year means October 1 through September 30.
Medications by Mail (MbM) means the initiative under which VA
provides outpatient prescription medications through the mail to
CHAMPVA beneficiaries.
Other health insurance (OHI) means health insurance plans or
programs (including Medicare) or third-party coverage that provide
coverage to a CHAMPVA beneficiary for expenses incurred for medical
services and supplies.
Payer refers to OHI, as defined in this section, that is obligated
to pay for CHAMPVA-covered medical services and supplies. In a
situation in which, in addition to CHAMPVA, one or more payers is/are
responsible to pay for such services and supplies (i.e., a ``double
coverage'' situation), there would be a primary payer (i.e., the payer
obligated to pay first), secondary payer (i.e., the payer obligated to
pay after the primary payer), etc. In double coverage situations,
CHAMPVA would be the last payer.
Service-connected has the definition established in 38 U.S.C. 101.
Spouse refers to a person who is married to a veteran and whose
marriage is valid as determined under 38 U.S.C. 103(c).
Surviving spouse refers to a person who was married to and is the
widow(er) of a veteran as determined under 38 U.S.C. 103(c).
(c) Discretionary authority. When it is determined to be in the
best interest of VA, VA may waive any requirement in Sec. Sec. 17.270
through 17.278, except any requirement specifically set forth in 38
U.S.C. 1781, or otherwise imposed by statute. Such discretionary
authority would be used only under very unusual and limited
circumstances and not to deny any individual any right, benefit, or
privilege provided to him or her by statute or these regulations. Any
such waiver will apply only to the individual circumstance or case
involved and will in no way be construed to be precedent-setting.
0
3. Amend Sec. 17.271 by:
0
a. Removing the word ``and'' at the end of paragraph (a)(3);
0
b. Redesignating paragraph (a)(4) as paragraph (a)(5);
0
c. Adding a new paragraph (a)(4);
0
d. Removing the authority citation following paragraph (a); and
0
e. Removing the authority citation following paragraph (b)(5).
The addition and revision read as follows:
Sec. 17.271 Eligibility.
(a) * * *
(4) An individual designated as a Primary Family Caregiver, under
38 CFR 71.25(f), who is not entitled to care or services under a
health-plan contract (as defined in 38 U.S.C. 1725(f)(2)); and
* * * * *
0
4. Amend Sec. 17.272 by:
0
a. Revising paragraph (a)(2);
0
b. In paragraph (a)(3) introductory text, removing the phrase
``(Medicaid excluded)'';
0
c. Adding paragraphs (a)(3)(iii) and (iv);
0
d. Revising paragraph (a)(21)(ix);
0
e. Removing paragraph (a)(26);
0
f. Redesignating paragraphs (a)(27) through (38) as paragraphs (a)(26)
through (37), respectively;
0
g. In newly redesignated paragraph (a)(30), revising the introductory
text and paragraphs (a)(30)(v) and (vi) and adding paragraphs
(a)(30)(xi) through (xiv);
0
h. Removing paragraph (a)(39);
0
i. Redesignating paragraphs (a)(40) through (56) as paragraphs (a)(38)
through (54), respectively;
0
j. In newly redesignated paragraph (a)(40)(iv), removing
``(a)(42)(iii)(A)'' and adding in its place ``(a)(40)(iii)(A)'';
0
k. Revising redesignated paragraph (a)(49);
0
l. Removing paragraph (a)(57);
0
m. Redesignating paragraphs (a)(58) through (71) as paragraphs (a)(55)
through (68), respectively;
0
n. Revising newly redesignated paragraphs (a)(57) through (59);
0
o. Removing paragraph (a)(72);
0
p. Redesignating paragraphs (a)(73) through (86) as paragraphs (a)(69)
through (82), respectively;
0
q. Revising newly redesignated paragraph (a)(76);
0
r. Adding paragraphs (a)(83) and (84);
0
s. Revising paragraph (b); and
0
t. Removing the authority citation at the end of the section.
The revisions and additions read as follows:
Sec. 17.272 Benefits limitations/exclusions.
(a) * * *
(2) Services and supplies required as a result of an occupational
disease or
[[Page 41601]]
injury for which benefits are payable under workers' compensation or
similar protection plan (whether or not such benefits have been applied
for or paid) except when such benefits are exhausted and the services
and supplies are otherwise not excluded from CHAMPVA coverage.
(3) * * *
(iii) Indian Health Service.
(iv) CHAMPVA supplemental policies.
* * * * *
(21) * * *
(ix) Treatment for stabilization of myofascial pain dysfunction
syndrome, also referred to as temporomandibular joint disorder (TMD).
Authorization is limited to initial imaging such as radiographs,
Computed Tomography, or Magnetic Resonance Imaging; up to four office
visits; and the construction of an occlusal splint.
* * * * *
(30) Preventive care (such as employment-requested physical
examinations and routine screening procedures). The following
exceptions apply, including but not limited to:
* * * * *
(v) Cervical cancer screening.
(vi) Breast cancer screening.
* * * * *
(xi) Colorectal cancer screening.
(xii) Prostate cancer screening.
(xiii) Annual physical examination.
(xiv) Vaccinations/immunizations.
* * * * *
(49) Food, food substitutes, vitamins or other nutritional
supplements, including those related to care for a home patient whose
condition permits oral feeding, except for prenatal vitamins which are
medically necessary as a component of prenatal care and prescribed by a
VA provider or an authorized non-VA provider as defined in Sec. 17.270
of this part.
* * * * *
(57) Unless a waiver for extended coverage is granted in advance:
Inpatient mental health services in excess of 30 days in any calendar
year (or in an admission), in the case of a patient 19 years of age or
older; 45 days in any calendar year (or in an admission), in the case
of a patient under 19 years of age; or 150 days of residential
treatment care in any calendar year (or in an admission).
(58) Outpatient mental health services in excess of 23 visits in a
calendar year unless a waiver for extended coverage is granted in
advance.
(59) Institutional services for partial hospitalization in excess
of 60 treatment days in any calendar year (or in an admission) unless a
waiver for extended coverage is granted in advance.
* * * * *
(76) Over-the-counter products except for pharmaceutical smoking
cessation supplies that are approved by the U.S. Food and Drug
Administration, prescribed, and provided through MbM, and insulin and
related diabetic testing supplies and syringes.
* * * * *
(83) Medications not approved by the U.S. Food and Drug
Administration (FDA), excluding FDA exceptions to the approval
requirement.
(84) Services and supplies related to the treatment of dyslexia.
(b) Costs of services and supplies to the extent such amounts are
billed over the CHAMPVA determined allowable amount are specifically
excluded from coverage.
(1) The CHAMPVA determined allowable amount is the maximum level of
payment by CHAMPVA to an authorized non-VA provider for the provision
of CHAMPVA-covered services and supplies to a CHAMPVA beneficiary. The
CHAMPVA determined allowable amount is determined before consideration
of cost sharing and the application of deductibles or OHI.
(2) A Medicare-participating hospital must accept the CHAMPVA
determined allowable amount for inpatient services provided to a
CHAMPVA beneficiary as payment in full. See 42 CFR 489.25.
(3) An authorized non-VA provider who accepts responsibility for
the care of a CHAMPVA beneficiary thereby agrees to accept the CHAMPVA
determined allowable amount as full payment for services and supplies
rendered to the beneficiary (i.e., accepted assignment). The provider's
acceptance of the CHAMPVA determined allowable amount extinguishes the
beneficiary's payment liability to the provider. Any attempts to
collect any additional amount from the CHAMPVA beneficiary may result
in the provider being excluded from Federal benefits programs. See 42
CFR 1003.105.
0
5. Amend Sec. 17.273 by:
0
a. Revising the introductory text and paragraph (d);
0
b. Removing paragraph (e);
0
c. Redesignating paragraph (f) as paragraph (e);
0
d. Adding new paragraph (f); and
0
e. Removing the authority citation at the end of the section.
The revisions and addition read as follows:
Sec. 17.273 Preauthorization.
Preauthorization or advance approval is required for any of the
following, except when the benefit is covered by the CHAMPVA
beneficiary's other health insurance (OHI):
* * * * *
(d) Dental care. For limitations on dental care, see Sec.
17.272(a)(21)(i) through (xii).
* * * * *
(f) CHAMPVA will perform a retrospective medical necessity review
during the coordination of benefits process if:
(1) It is determined that CHAMPVA is the responsible payer for
services and supplies but CHAMPVA preauthorization was not obtained
prior to delivery of the services or supplies; and,
(2) The claim for payment is filed within the appropriate one-year
period.
0
6. Amend Sec. 17.274 by:
0
a. Revising paragraphs (a), (b), and (c);
0
b. Adding a heading to paragraph (d);
0
c. Adding paragraph (e); and
0
d. Removing the authority citation at the end of the section.
The revisions and additions read as follows:
Sec. 17.274 Cost sharing.
(a) Cost sharing generally. CHAMPVA is a cost sharing program in
which the cost of covered services is shared with the CHAMPVA
beneficiary. CHAMPVA pays the CHAMPVA determined allowable amount less
the CHAMPVA deductible, if applicable, and less the CHAMPVA beneficiary
cost-share.
(1) CHAMPVA beneficiary cost-share requirements do not apply to the
following:
(i) Supplies provided through VA MbM.
(ii) Any medical services and supplies provided to a CHAMPVA
beneficiary through CITI.
(iii) The following services, even if not provided through CITI:
(A) Colorectal cancer screening.
(B) Breast cancer screening.
(C) Cervical cancer screening.
(D) Prostate cancer screening.
(E) Annual physical exams.
(F) Vaccinations/immunizations.
(G) Well child care from birth to age six, as described in Sec.
17.272(a)(30)(i).
(iv) Hospice services.
(v) Or other preventive services as determined by the Secretary of
Veterans Affairs.
(2) [Reserved]
(b) Deductibles. In addition to the CHAMPVA beneficiary cost-share,
an annual (calendar year) outpatient deductible requirement ($50 per
beneficiary or $100 per family) must be satisfied prior to VA payment
of outpatient benefits. The deductible requirement is waived for:
[[Page 41602]]
(1) CHAMPVA-covered services and supplies provided through VA MbM
or through CITI.
(2) Inpatient services.
(3) Preventive services listed in paragraph (a)(1)(iii) of this
section.
(4) Hospice services.
(5) Or other services as determined by the Secretary of Veterans
Affairs.
(c) Cost sharing limitations. To provide financial protection
against the impact of a long-term illness or injury, there is a $3,000
calendar year limit or ``catastrophic cap'' per CHAMPVA eligible family
on the CHAMPVA beneficiary's out-of-pocket costs for allowable services
and supplies. After a family has paid $3,000 in out-of-pocket costs, to
include both cost-share and deductible amounts, in a calendar year,
CHAMPVA will pay the full allowable amounts for the remaining CHAMPVA-
covered services and supplies through the end of that calendar year.
Credits to the annual catastrophic cap are limited to the applied
annual deductible(s) and the CHAMPVA beneficiary cost-share amount.
Costs above the CHAMPVA determined allowable amount, as well as costs
associated with non-covered medical services and supplies, are not
credited toward the catastrophic cap calculation.
(d) Non-payment. * * *
(e) Cost-share calculation. The CHAMPVA beneficiary's cost-share
amount, if not waived under paragraph (a)(1) of this section, is 25
percent of the CHAMPVA determined allowable amount in excess of the
annual calendar year deductible (see Sec. 17.275 for procedures
related to the calculation of the allowable amount for CHAMPVA-covered
services and supplies), except for the following:
(1) For inpatient services subject to the CHAMPVA Diagnosis Related
Group (DRG) payment system, the cost-share is the lesser of:
(i) The per diem rate multiplied by the number of inpatient days;
(ii) 25 percent of the hospital's billed amount; or
(iii) The base CHAMPVA DRG rate.
(2) For inpatient mental health low volume hospitals and units
(less than 25 mental health discharges per federal fiscal year), the
cost-share is the lesser of:
(i) The fixed per diem rate multiplied by the number of inpatient
days; or
(ii) 25 percent of the hospital's billed charges.
0
7. Redesignate Sec. Sec. 17.275 through 17.278 as Sec. Sec. 17.276
through 17.279.
0
8. Add new Sec. 17.275 to read as follows:
Sec. 17.275 CHAMPVA determined allowable amount calculation.
CHAMPVA calculates the allowable amount in the following ways, for
the following covered services and supplies:
(a) Inpatient hospital services (non-mental health). Unless exempt
or subject to a methodology under paragraph (b) or (c) of this section,
inpatient hospital services provided in the 50 states, the District of
Columbia, and Puerto Rico are subject to the CHAMPVA Diagnosis Related
Group (DRG)-based reimbursement methodology. Under the CHAMPVA DRG-
based payment system, hospitals are paid a predetermined amount per
discharge for inpatient hospital services, which will not exceed the
billed amount. Certain inpatient services will be reimbursed under the
CHAMPVA Cost-to-Charge (CTC) reimbursement methodology.
(b) Inpatient hospital services (mental health). The CHAMPVA
inpatient mental health per diem reimbursement methodology is used to
calculate reimbursement for inpatient mental health hospital care in
specialty psychiatric hospitals and psychiatric units of general acute
hospitals that are exempt from the CHAMPVA DRG-based payment system.
The per diem rate is calculated by multiplying the daily rate by the
number of days (length of stay). The daily rate is updated each fiscal
year for both high volume hospitals (25 or more discharges per fiscal
year) and low volume hospitals (fewer than 25 discharges per fiscal
year).
(c) Other inpatient hospital services. (1) The CHAMPVA CTC
reimbursement methodology is used to calculate reimbursement for
inpatient care furnished by hospitals or facilities that are exempt
from either of the methodologies in paragraph (a) or (b) of this
section. Such hospitals or facilities will be paid at the CHAMPVA CTC
ratio times the billed charges that are customary and not in excess of
rates or fees the hospital or facility charges the general public for
similar services in a community.
(2) The following hospitals and services are subject to the CHAMPVA
CTC payment methodology:
(i) Any hospital that qualifies as a cancer hospital under Medicare
standards and has elected to be exempt from the Centers for Medicare &
Medicaid Services (CMS) prospective payment system.
(ii) Christian Science sanatoriums.
(iii) Critical Access Hospitals.
(iv) Any hospital outside the 50 states, the District of Columbia,
or Puerto Rico.
(v) Hospitals within hospitals.
(vi) Long-term care hospitals.
(vii) Non-Medicare participating hospitals.
(viii) Non-VA Federal Health Care Facilities (e.g., military
treatment facilities, Indian Health Service).
(ix) Rehabilitation hospitals.
(x) Hospital or hospital-based services subject to state waiver in
any state that has implemented a separate DRG-based payment system or
similar payment system in order to control costs.
(xi) Hospitals and services as determined by the Secretary of
Veterans Affairs.
(d) Outpatient hospital services. The CHAMPVA outpatient
prospective payment system (OPPS) is used to calculate the allowable
amount for outpatient services provided in hospitals subject to
Medicare OPPS. This will include the utilization of TRICARE's
reimbursement methodology to include specific coding requirements,
ambulatory payment classifications (APCs), nationally established APC
amounts, and associated adjustments.
(e) Outpatient and inpatient non-hospital services. Payments to
individual authorized non-VA providers (not hospitals) for CHAMPVA-
covered medical services and supplies provided on an outpatient or
inpatient basis, including but not limited to, anesthesia services,
laboratory services, and other professional fees associated with
individual authorized non-VA providers, are reimbursed based on the
lesser of:
(1) The CHAMPVA Maximum Allowable Charge;
(2) The prevailing amount, which is the amount equal to the maximum
reasonable amount allowed providers for a specific procedure in a
specific locality; or,
(3) The billed amount.
(f) Pharmacy services and supplies. The CHAMPVA pharmacy services
and supplies payment methodology is based on specific CHAMPVA pharmacy
points of service, which dictate the amounts paid by VA. VA pays:
(1) For services and supplies obtained from a retail in-network
pharmacy, the lesser of the billed amount or the contracted rate; or
(2) For supplies obtained from a retail out-of-network pharmacy,
the lesser of the billed amount plus a dispensing fee or the average
wholesale price plus a dispensing fee.
(g) Skilled Nursing Facility (SNF) care. The CHAMPVA SNF
reimbursement methodology is based on the CMS prospective payment
system for SNFs under 42 CFR part 413, subpart J.
(h) Durable medical equipment, prosthetics, orthotics, and supplies
[[Page 41603]]
(DMEPOS). The CHAMPVA DMEPOS reimbursement methodology is based on the
same amounts established under the CMS DMEPOS fee schedule under 42 CFR
part 414, subpart D. The CHAMPVA determined allowable amount for DMEPOS
is the amount in effect in the specific geographic location at the time
CHAMPVA-covered medical services and supplies are provided to a CHAMPVA
beneficiary.
(i) Ambulance services. CHAMPVA adopts Medicare's Ambulance Fee
Schedule (AFS) for ambulance services, with the exception of services
furnished by a Critical Access Hospital (CAH). Ambulance services are
paid based on the lesser of the Medicare AFS or the billed amount.
Ambulance services provided by a CAH are paid on the same bases as the
CTC method under paragraph (c) of this section.
(j) Hospice care. CHAMPVA hospice reimbursement methodology uses
Medicare per diem hospice rates.
(k) Home health care (intermittent or part-time). CHAMPVA home
health care reimbursement methodology, based on Medicare's home health
prospective payment system, uses a fixed case-mix and wage-adjusted
episode payment amount to act as payment in full for costs associated
with furnishing home health services with exceptions allowing for
additional payment to be established.
(l) Ambulatory surgery. The CHAMPVA reimbursement methodology for
facility charges associated with procedures performed in a freestanding
ambulatory surgery center is based on a prospectively determined
amount, similar to that used by TRICARE. These facility charges do not
include physician fees, anesthesiologist fees, or fees of other
authorized non-VA providers; such independent professional fees must be
submitted separately from facility fees and are calculated under the
methodology in paragraph (e) of this section.
(m) CHAMPVA-covered medical services and supplies provided outside
the United States. VA shall determine the appropriate reimbursement
method(s) for CHAMPVA-covered medical services and supplies provided by
authorized non-VA providers outside the United States.
(n) Sole Community Hospitals. The CHAMPVA reimbursement methodology
for inpatient services provided in a Sole Community Hospital (SCH) will
be the greater of: the allowable amount determined by multiplying the
billed charges by the SCH's most recently available cost-to-charge
ratio from the CMS Inpatient Provider Specific File or the DRG
reimbursement rate.
0
9. Amend newly redesignated Sec. 17.276 by:
0
a. Revising paragraphs (a) introductory text and (b);
0
b. Adding paragraphs (c) and (d); and
0
c. Removing the authority citation at the end of the section.
The revisions and additions read as follows:
Sec. 17.276 Claim-filing deadlines.
(a) Unless an exception is granted under paragraph (b) of this
section, claims for medical services and supplies must be filed no
later than:
* * * * *
(b) Requests for an exception to the claim filing deadline must be
submitted in writing and include a complete explanation of the
circumstances resulting in late filing along with all available
supporting documentation. Each request for an exception to the claim
filing deadline will be reviewed individually and considered on its own
merit. VA may grant exceptions to the requirements in paragraph (a) of
this section if it determines that there was good cause for missing the
filing deadline. For example, when dual coverage exists, CHAMPVA
payment, if any, cannot be determined until after the primary insurance
carrier has adjudicated the claim. In such circumstances an exception
may be granted provided that the delay on the part of the primary
insurance carrier is not attributable to the beneficiary. Delays due to
provider billing procedures do not constitute a valid basis for an
exception.
(c) Claims for CHAMPVA-covered services and supplies provided
before the date of the event that qualifies an individual under Sec.
17.271 are not reimbursable.
(d) CHAMPVA is the last payer to OHI, as that term is defined in
Sec. 17.270(b). CHAMPVA benefits will generally not be paid until the
claim has been filed with the OHI and the OHI has issued a final
payment determination or explanation of benefits. CHAMPVA is secondary
payer to Medicare per the terms of Sec. 17.271(b).
0
10. Revise newly redesignated Sec. 17.277 to read as follows:
Sec. 17.277 Appeals.
(a) This section applies only to legacy claims.
(b) Notice of the initial determination regarding payment of
CHAMPVA benefits will be provided to the CHAMPVA beneficiary on a
CHAMPVA Explanation of Benefits (EOB) form. The EOB form is generated
by the CHAMPVA automated payment processing system. If a CHAMPVA
beneficiary or provider disagrees with the determination concerning
CHAMPVA-covered services and supplies or calculation of benefits, he or
she may request reconsideration. Such requests must be submitted to VA
in writing within one year of the date of the initial determination.
The request must state why the CHAMPVA claimant believes the decision
is in error and must include any new and relevant information not
previously considered. Any request for reconsideration that does not
identify the reason for dispute will be returned to the claimant
without further consideration. After reviewing the claim and any
relevant supporting documentation, VA will issue a written
determination to the claimant that affirms, reverses, or modifies the
previous decision. If the claimant is still dissatisfied, within 90
days of the date of the decision he or she may make a written request
for review by VA. After reviewing the claim and any relevant supporting
documentation, VA will issue a written determination to the claimant
that affirms, reverses, or modifies the previous decision. The decision
of VA with respect to benefit coverage and computation of benefits is
final. When a CHAMPVA beneficiary has other health insurance (OHI), an
appeal must first be filed with the OHI, and a determination made,
before submitting the appeal to CHAMPVA with limited exceptions such as
if the OHI deems the issue non-appealable. Denial of CHAMPVA benefits
based on legal eligibility requirements may be appealed to the Board of
Veterans' Appeals in accordance with 38 CFR part 20. Medical
determinations are not appealable to the Board. 38 CFR 20.101.
0
11. Revise newly redesignated Sec. 17.278 to read as follows:
Sec. 17.278 Medical care cost recovery.
VA will actively pursue medical care cost recovery in accordance
with applicable law.
Sec. 17.279 [Amended]
0
12. In newly redesignated Sec. 17.279, remove the authority citation
at the end of the section.
[FR Doc. 2022-14285 Filed 7-12-22; 8:45 am]
BILLING CODE 8320-01-P