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The Department of Veterans Affairs (VA) revises its regulations concerning its claims and appeals process governing various programs administrated by the Veterans Health Administration.  In preparation for the launch of modernized claims and appeals processes mandated by the Veterans Appeals Improvement and Modernization Act of 2017, VA has reviewed the regulations governing various programs administered by its Veterans Health Administration and determined that certain sections are inconsistent with statutory requirements.  This rulemaking amends those sections to ensure that they are no longer inconsistent with requirements contained in the law.

Overall Description of Deadline: Pub. L. 115-55, section 2(x), provides generally that the new review system will apply to all claims for which a notice of decision is provided by the agency of original jurisdiction on or after the later of (a) 540 days from the date of enactment, which falls on February 14, 2019, or (b) 30 days after the date on which the Secretary certifies to Congress that VA is ready to carry out the new appeals system.

Statement of Need:

The Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. 115-55, overhauled VA’s rules for processing claims and appeals, effective February 19, 2019. To successfully implement changes in the context of healthcare benefits administered by VA’s Veterans Health Administration (VHA), VA must make minor revisions to multiple sections of title 38 regulations applicable to healthcare benefits and appeals processing, and VA must enact delimiting dates to end certain processes, such as claim reconsideration, that are no longer permissible under the revised law.

Summary of the Legal Basis:

Pub. L. 115-55 requires VA to publish the regulations to coincide with the effective date of this law.

Alternatives:

VA initially determined that a subsequent regulation to VA’s 2900-AQ26 regulation was not necessary, because VHA adopted VBA’s part 3 procedural rules some time ago through our own internal guidance, and those rules remain in effect until we publish rulemaking to the contrary.  In practical terms, this means that in the absence of VHA-specific Appeals Modernization Act (AMA) notice and comment rulemaking, applicable provisions of 2900-AQ26, and other 38 CFR part 3 processes apply to VHA as they do to VBA. However, VA intends to publish this rulemaking to provide additional regulatory clarity.

Anticipated Costs and Benefits:

TBD

Risks:

If VA does not make minor revisions and add necessary delimiting dates, there is a risk that the Court of Appeals for Veterans Claims, which reviews VA benefit appeals, could determine that healthcare claimants have rights that are inconsistent with (essentially in addition to) revised statutory authorities. This would place VHA claimants in the enviable position of enjoying rights that do not extend to claimants whose benefits are administered by VA’s other administrations Veterans Benefits Administration (VBA) and National Cemetery Administration (NCA) and other adjudication activities, such as VA’s Office of General Counsel (OGC).