Changes to the Provision of Health Care for World War II Veterans

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Parts 17 and 51</CFR> <RIN>RIN 2900-AS01</RIN> <SUBJECT>Changes to the Provision of Health Care for World War II Veterans</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This final rule amends the Department of Veterans Affairs (VA) medical regulations and its regulations on per diem for nursing home care of veterans in State homes to conform with section 101 of the Joseph Maxwell Cleland and Robert Joseph Dole Memorial Veterans Benefits and Health Care Improvement (Cleland-Dole) Act of 2022, which expanded the provision of hospital care, medical services, and nursing home care to World War II (WWII) veterans. VA is also amending its medical regulations to remove existing references to Mexican border and World War I (WWI) veterans. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective May 23, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Ralph Weishaar, Director, VHA Member Services (15MEM) Business Support Office, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (254) 755—0407. (This is not a toll-free telephone number.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> VA has authority to furnish hospital care, medical services, and nursing home care pursuant to section 1710 of title 38, United States Code (U.S.C.). In general, section 1710(a)(1) lists the categories of veterans to whom the Secretary shall furnish hospital care and medical services that the Secretary determines to be needed; section 1710(a)(2) lists the categories of veterans to whom the Secretary shall furnish hospital care and medical services and may furnish nursing home care, which the Secretary determines to be needed; and section 1710(a)(3) states that in the case of a veteran who is not described in section 1710(a)(1) and (2), the Secretary may, to the extent resources and facilities are available, furnish hospital care, medical services, and nursing home care, which the Secretary determines to be needed. Whether a veteran is eligible for VA care under section 1710(a)(1), (2), or (3) determines, among other benefits, priority for enrollment in VA health care. Section 1705(a) establishes eight priority categories for purposes of enrollment in VA health care. For example, priority category six includes veterans eligible for hospital care, medical services, and nursing home care under section 1710(a)(2) who are not otherwise eligible for priority category one through five. See 38 U.S.C. 1705(a)(6). In addition to determining placement in a priority category, section 1710(a)(1) and (2) help determine whether a veteran is exempt from copayments for hospital care and medical services. Sections 1710(f)(1) and (g)(1) only require VA to charge a veteran a copayment for hospital care and medical services, if that veteran is eligible for such care under section 1710(a)(3). That is, veterans eligible to receive hospital care and medical services under section 1710(a)(1) and (2) do not have to pay a copayment for such care and services. Furthermore, VA shall pay per diem for eligible veterans receiving nursing home care in a State home pursuant to 38 U.S.C. 1741. <E T="03">See</E> 38 Code of Federal Regulations (CFR) 51.50. VA has regulated priority categories at § 17.36 and copayment exemption for inpatient hospital care and outpatient medical care at § 17.108. VA also has regulated eligibility for purposes of payment of per diem for nursing home care at State homes in § 51.50. Historically, veterans of WWII were not listed as a category of veterans in 38 U.S.C. 1710(a)(1) or (2). Therefore, they were only eligible for hospital care, medical services, or nursing home care if they were otherwise eligible under other criteria in section 1710(a)(1), (2), or (3), or 38 U.S.C. 1710A. As such, some WWII veterans had to pay copayments for inpatient hospital care and outpatient medical care because they were eligible for VA health care under section 1710(a)(3) and others were not eligible to enroll in VA health care at all because they were in subcategories (v) and (vi) of priority category eight (which are not currently eligible to enroll in VA health care). See 38 CFR 17.36(c)(2). <HD SOURCE="HD1">II. The Consolidated Appropriations Act, 2023</HD> On December 29, 2022, the Cleland-Dole Act was signed into law. Effective March 31, 2023, section 101 of the Cleland-Dole Act amended 38 U.S.C. 1710(a)(2)(E) to expressly include veterans of WWII. WWII is defined in 38 U.S.C. 101(8) to mean the period beginning on December 7, 1941, and ending on December 31, 1946. As the plain language of section 101 of the Cleland-Dole Act is clear and requires no interpretation, VA began implementing section 101 on March 31, 2023. In this regard, VA placed any WWII veteran who was in priority category seven or eight into priority category six. This made WWII veterans who were in subcategories (v) and (vi) of priority category eight both eligible for enrollment in VA health care as well as exempt from copayment for inpatient hospital care and outpatient medical care. VA's placement of WWII veterans in priority category six also exempted from copayment for inpatient hospital care and outpatient medical care those WWII veterans who were already enrolled in VA health care and in priority category seven and subcategories (i) through (iv) of priority category eight. Additionally, effective March 31, 2023, WWII veterans are eligible veterans for purposes of payment of per diem for nursing home care in State homes. We note that WWII veterans may have been previously eligible for purposes of payment of per diem for nursing home care in State homes prior to March 31, 2023, if they met other eligibility criteria for such payment. See 38 CFR 51.50. In this rulemaking, VA amends its regulations governing VA health care enrollment and priority categories (38 CFR 17.36) and copayments for inpatient hospital care and outpatient medical care (38 CFR 17.108) to conform to section 101 of the Cleland-Dole Act. Similarly, VA also amends its eligibility for purposes of payment of per diem for nursing home care in State homes (38 CFR 51.50) to explicitly include WWII veterans. We note that section 1710(a)(2)(E) expressly recognizes veterans of the Mexican border period and WWI as eligible for hospital care, medical services, or nursing home care under that paragraph. However, there are no longer any living veterans of these eras. <SU>1</SU> <FTREF/> See 80 FR 34793 (June 17, 2015); 83 FR 61250 (December 28, 2018). In this rulemaking, VA also removes references to these veterans as explained in more detail below. <FTNT> <SU>1</SU>  Courson, Paul. <E T="03">Last Living U.S. World War I Veteran Dies.</E> CNN. February 27, 2011. <E T="03">https://www.cnn.com/2011/US/02/27/wwi.veteran.death/;</E> Obituary: Samuel B. Goldberg, Legacy.com. 2024. <E T="03">https://www.legacy.com/us/obituaries/providence/name/samuel-goldberg-obituary?id=16769095</E> (last accessed March 27, 2024). </FTNT> <HD SOURCE="HD1">III. Changes to VA Regulations</HD> <HD SOURCE="HD2">A. 38 CFR 17.36(b) Categories of veterans eligible to be enrolled</HD> Consistent with 38 U.S.C. 1705 and 1710, VA has established health care priority categories in its medical regulations at 38 CFR 17.36(b). Section 17.36(b)(6), in pertinent part, establishes that priority category six includes veterans of the Mexican border period or of WWI, among other groups of veterans listed in 38 U.S.C. 1710(a)(2). VA revises 38 CFR 17.36(b)(6) to include WWII veterans within priority category six, consistent with section 101 of the Cleland-Dole Act. VA also amends 38 CFR 17.36(b)(6) to remove the references to Mexican border period and WWI veterans as there are no living veterans of these eras. Thus, the language in § 17.36(b)(6) is revised by removing the current language, “Veterans of the Mexican border period or of World War I” and adding, in its place, “Veterans of World War II”. <HD SOURCE="HD2">B. 38 CFR 17.108 Copayments for Inpatient Hospital Care and Outpatient Medical Care</HD> Consistent with 38 U.S.C. 1710(f) and (g), VA regulates copayments for inpatient hospital care and outpatient medical care and the groups of veterans that are exempt from such copayments at 38 CFR 17.108. Current § 17.108(d)(8) exempts veterans of the Mexican border period and of World War I from copayments for inpatient hospital care and outpatient medical care. VA revises § 17.108(d)(8) to include WWII veterans as exempt from copayments for inpatient hospital care and outpatient medical care, consistent with section 101 of the Cleland-Dole Act. VA also amends § 17.108(d)(8) to remove the references to Mexican border period and WWI veterans because there are no living veterans of these eras. Thus, the language in § 17.108(d)(8) is revised by removing the current language, “A veteran of the Mexican border period or of World War I” and adding, in its place, “A veteran of World War II”. <HD SOURCE="HD2">C. 38 CFR 51.50 Eligible Veterans—Nursing Home Care</HD> Consistent with 38 U.S.C. 1741 through 1745, VA regulates per diem payments for nursing home care of veterans in State homes in 38 CFR part 51. Section 51.50 describes veterans who are eligible for purposes of payment of per diem for nursing home care in State homes. VA has interpreted, and continues to interpret, amendments to 38 U.S.C. 1710(a)(2) to impact its State home regulations in 38 CFR part 51, including § 51.50. For example, see 80 FR 34801 (June 17, 2015) (proposing to amend § 51.50 to add veterans who were awarded the Purple Heart or the medal of honor as eligible for nursing home care in State homes); 83 FR 61250 (November ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 19k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━