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VA is amending its medical regulations to implement a statute exempting Indian veterans from copayment requirements for the receipt of hospital care or medical services under laws administered by VA. These amendments are in accordance with the President’s priorities by advancing equity and support to underserved, vulnerable and marginalized communities.

Overall Description of Deadline: Pursuant to section 1730A of title 38, United States Code (U.S.C.), catastrophically disabled veterans are exempt from copayment for the receipt of hospital care or medical services under laws administered by VA. On January 5, 2021, the President signed into law the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 (the "Act"). Public Law (Pub. L.) 116-315.

Statement of Need:

This rulemaking is needed to amend the Department of Veteran Affairs (VA)’s medical regulations, in accordance with rulemaking authority established in 38 U.S.C. 501, to reflect current changes in law as a result of the Veterans Health Care and Benefits Improvement Act of 2020. In addition, this rulemaking is essential to VA’s attempt to validate veterans who are an Indian and eligible for this new benefit.

Summary of the Legal Basis:

On January 5, 2021, the President signed into law the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 (the Act). Public Law (Pub. L.) 116-315. Section 3002 of the Act amended section 1730A to add a copayment exemption for veterans who are either Indian or urban Indian, as those terms are defined in section 4 of the Indian Health Care Improvement Act. Thus, veterans who are Indians or urban Indians will be exempt from copayments for the receipt of hospital care or medical services under laws administered by VA. This amendment to section 1730A takes effect one year after the date of enactment of the Act (that is, the statutory amendment became effective on January 5, 2022). This rulemaking revises several VA regulations concerning copayment exemptions to be consistent with the amendment made to 38 U.S.C. 1730A by section 3002 of the Act.

Alternatives:

One alternative policy approach considered was the possibility that VA could require veterans who identify as Indian and applying for VA health care enrollment to provide documentation to identify their tribal affiliation. VA could also implement this rulemaking as a two-stage proposed rule instead of an interim final rule which would notify the public of this regulatory action and provide the opportunity for notice and comment from interested parties. Veterans would be asked to indicate their tribal affiliation on VA Form 10-10EZ or VA Form 10-10EZR.

This would add a measure of assurance that the benefit will reach the intended population and reduce the risk that a non-eligible veteran receives the copayment exemption and retroactive reimbursements. However, this places a reporting burden upon veterans who identify as Indian and could delay their enrollment for VA health care. In addition, VA would need additional changes to the enrollment system to capture tribal information for potentially 574 possible responses, including the necessary form changes. Lastly, VA would create a reputational risk by requiring documentation for a specific group who received unique benefits but not all groups that receive unique benefits.

Anticipated Costs and Benefits:

This rulemaking will be an essential part to VA’s attempt to validate veterans who identify as an Indian. This rulemaking will assist Indian veterans by eliminating a cost barrier, which will help increase utilization of VA health care among this veteran population. Public Law (PL) 116-315, sec. 3002 of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 (signed January 5, 2021) amended section 1730A of title 38 of the United States Code (U.S.C.) eliminating the copayment requirements for inpatient hospital care, outpatient medical care, outpatient medications, noninstitutional extended care services and the first three visits for urgent care in a calendar year provided by VA for veterans who are either Indian or urban Indian, as those terms are defined in section 4 of the Indian Health Care Improvement Act.

This amendment to section 1730A takes effect one year after the date of enactment of the Act (that is, the statutory amendment became effective on January 5, 2022). This rulemaking revises several VA regulations concerning copayment exemptions to be consistent with the amendment made to section 1730A by section 3002 of the Act.
For the purposes of the copayment exemption, VA has adopted the Centers for Medicare and Medicaid Services’ (CMS) definition of the term Indian found in 447.51 of title 42 of the Code of Federal Regulations (CFR) for purposes of copayment exemption for Indian and urban Indians under 38 U.S.C. 1730A. VA will amend 38 CFR 17.108, 17.110, 17.111 and 17.4600.

VA will update VA Form 10-10EZ, Enrollment Application for Health Benefits, and VA Form 10-10EZR, Health Benefits Update Form to include Veteran self-attestation to meet the requirements of section 3002 of the Act as well as updates for ancillary systems needed to implement this rulemaking. VA will reimburse Indian veterans for copayments paid to VA for hospital care and medical services provided on or after January 5, 2022. VA will implement an audit process to periodically review its enrollment records.

Risks:

The risks would be non-compliance with statutory authority and/or not being able to provide benefits pursuant to our statutory authority.