Department of Veterans Affairs Issues Final Rules for Expanded Access to Non-VA Care through the Veterans Choice Program

by Arnall Golden Gregory LLP
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The Department of Veterans Affairs (VA) recently issued its final rules and regulations for the Veterans Choice Program (VCP), a program established pursuant to the Veterans Access, Choice and Accountability Act of 2014 (the Act) and specifically designed to expand veterans’ access to care through non-VA health care providers. The final rules amend 38 C.F.R. Part 17, which was published in November 2014 as the VA’s interim rules and regulations and was subsequently amended in April 2015. The final rules are based on over 50 comments received from interested parties since November 2014 regarding various components of the program including VA copayments, duration and scope of the program, eligibility requirements for veterans, authorization of non-VA care, and eligible entities and providers. This article highlights some of the main points of the final rules and regulations regarding these components of the VCP and also identifies the areas in which the VA has promised to publish separate rulemaking announcements in the future.

The final rules provide the following:

  • VA Copayments – Veterans will not be required to make their VA copayments at the time services are rendered by non-VA care providers. The VA’s rule on not requiring the copayments is based, in part, on the VA’s desire to ensure that veterans’ experiences under the VCP are as similar as possible to the veterans’ experiences when provided with non-VA care through other VA programs, where copayments are not due at the time of the appointment.
  • Duration and Scope of the Program – The program is authorized to continue until the $10 billion fund is exhausted or August 7, 2017 – whichever occurs first. Regarding scope of the VCP, the final rule provides that veterans, who participate in the VCP and receive care from a non-VA provider, maintain the right to return to the VA for care at any time. Further, the VA will cover the cost of emergency care in limited circumstances, mainly when the non-VA vendor notifies that VA within 72 hours of the veteran presenting to an emergency department for care.
  • Definition of Episode of Care – Because the Act defined “episode of care” to mean a necessary course of treatment, including follow-up appointments and ancillary and specialty services, that last no longer than 60 days from the date of the first appointment with a non-VA provider under the VCP, non-VA providers providing care to a veteran for longer than a 60-day period risked not getting completely reimbursed for the services and care provided. However, the 60-day limitation on the definition of an “episode of care” has been removed, and the VA will publish a separate rulemaking announcing the removal.
  • Eligible Veterans – To be eligible to participate in the VCP, the veteran must be enrolled in the VA health care system on or before August 1, 2014, and must also meet at least one of the criteria described in § 17.1510(b), which include wait-time eligibility, eligibility based on distance to the VA, and travel burden eligibility. The final rule provides the following regarding the eligibility criteria under § 17.1510(b):
    • Wait-Time Eligibility – Under § 17.1510(b)(1), a veteran is eligible if the veteran attempts, or has attempted, to schedule an appointment with a VA health care provider, but the VA has been unable to schedule an appointment for the veteran within the wait-time goals of the Veterans Health Administration (VHA). However, the Act was amended to expand eligibility for veterans that are unable to be scheduled for an appointment within, “with respect to such care or services that are clinically necessary, the period determined necessary for such care of services if such period is shorter than” VHA’s wait-time goals. Based on this amendment to the Act, the VA will publish a separate rulemaking announcing the additional eligibility criterion as well as changes to the regulations regarding veterans that cannot wait 30 days for an appointment based on immediate care needs.
    • Distance-based Eligibility – Under the Act and § 17.1510(b)(2), a veteran is eligible if he or she resides more than 40 miles from the VA medical facility that is closest to the veteran’s residence. On May 22, 2015, the Construction Authorization and Choice Improvement Act (CA/CI Act) amended the Act to clarify that the 40 miles is to be calculated “based on distance traveled.” VA is interpreting their revision as support for the use of driving distance, rather than the geodesic (or “straight-line”) distance standard VA previously adopted. The VA will not make any further changes to the 40-mile eligibility criterion as a result of the statutory revision enacted in the CA/CI Act.
    • Burden of Travel Eligibility – Under § 17.1510(b)(4), a veteran may be eligible if he or she lives within 40 miles of a VA medical facility but faces an unusual or excessive burden in traveling to the facility. However, the CA/CI Act changed the standard that could be the basis for an unusual or excessive burden. Accordingly, VA will be publishing a separate rulemaking announcing the criteria the VA will use to determine veteran eligibility based on the new law regarding what constitutes an unusual or excessive burden for a veteran in attempting to travel to the facility.
  • Authorizing Non-VA Care – Multiple comments regarding the approval process for authorizing non-VA care and administration of the same were submitted, but the VA maintains that the preauthorization requirements are important to ensure that the VA is not subject to an open-ended commitment and to also ensure that necessary care is authorized for the right veteran with the right provider. Accordingly, the VA will not amend or change the rules and regulations listed under § 17.1515 regarding the process and requirements for pre-authorization of non-VA care under the VCP.
  • Eligible Entities and Providers – The eligibility requirements for non-VA entities and health care providers to be reimbursed for furnishing hospital care and medical services to eligible veterans under the VCP are found under § 17.1530. As initially drafted, there are only four categories of eligible entities or providers: (1) any health care provider, including physicians, that is participating in the Medicare program; (2) any federally-qualified health center (as defined in § 1905(l)(2)(B) of the Social Security Act); (3) the Department of Defense; or (4) the Indian Health Service. However, the Act was amended to expand provider eligibility beyond those providers expressly listed. As a result, the VA will publish a separate rulemaking announcing the additional eligible entities and providers.

In summary, the rules and regulations for the administration of the VCP continues to be a work-in-progress. Non-VA providers should be on the lookout in the near future for the separate rulemaking announcements promised by the VA.

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Department of Veterans Affairs Issues Final Rules for Expanded Access to Non-VA Care through the Veterans Choice Program

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