Adaptive Equipment Allowance

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 17</CFR> <RIN>RIN 2900-AP39</RIN> <SUBJECT>Adaptive Equipment Allowance</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Veterans Affairs (VA) amends its regulations governing the provision of a monetary allowance to certain veterans and eligible members of the Armed Forces who require adaptive equipment to operate an automobile or other conveyance. VA proposed establishing in regulation a VA Adaptive Equipment Schedule for Automobiles and Other Conveyances to calculate the amount of the monetary allowance for adaptive equipment based on industry standards and our experience administering this program. We adopt as final this proposed rule, with changes based on public comment. This rulemaking addresses reimbursement to eligible persons who have paid for adaptive equipment and payments made by VA directly to registered adaptive equipment providers, but not the eligibility requirements to receive adaptive equipment. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The final rule is effective July 17, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Penny Nechanicky, National Program Director, Prosthetics Sensory Aids Service (10P4R), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-0337 (This is not a toll-free number). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Section 3902(b) of Title 38, United States Code (U.S.C.) requires VA to provide eligible persons with “the adaptive equipment deemed necessary to insure that the eligible person will be able to operate [an] automobile or other conveyance in a manner consistent with such person's own safety and the safety of others and so as to satisfy the applicable standards of licensure established by the State of such person's residency or other proper licensing authority.” Under 38 U.S.C. 3901, eligible persons include veterans and active duty members of the Armed Forces who have been diagnosed with one or more specified disabilities. Under section 3901(2), adaptive equipment is defined to include, but is not limited to, power steering, power brakes, power window lifts, power seats, air conditioning, and other equipment necessary to help the eligible individual enter, exit, or operate the automobile or other conveyance. VA implements these statutory authorities through regulation at Title 38 Code of Federal Regulations (CFR) sections 17.155-17.159. Because VA does not have the capacity to build or install adaptive equipment for automobiles or other conveyances, VA instead reimburses eligible persons or pays registered providers for the cost of the adaptive equipment. See 38 CFR 17.156. On March 12, 2020, VA proposed amending its regulations governing the provision of a monetary allowance to certain veterans and eligible members of the Armed Forces who require adaptive equipment to operate an automobile or other conveyance. Among other things, that proposed rule addressed establishing in regulation a VA Adaptive Equipment Schedule for Automobiles and Other Conveyances (Schedule) to calculate the amount of the monetary allowance for adaptive equipment based on industry standards and our experience administering this program, and reimbursement to eligible persons who have paid for adaptive equipment and payments made by VA directly to registered adaptive equipment providers. We provided a 60-day period in which interested members of the public could submit comments. The comment period closed May 11, 2020 and we received four comments, two of which raised substantive issues. Based on these comments, we adopt as final this proposed rule, with changes based on public comment. <SECTION> <SECTNO>§ 17.157</SECTNO> <SUBJECT>Definitions.</SUBJECT> We proposed making minor revisions to the definition of “adaptive equipment” for purposes of readability and clarity. Adaptive equipment was defined to include “any term specified by the Under Secretary for Health or designee.” Because adaptive equipment is generally understood to refer to tangible pieces of equipment rather than words or terms, we proposed amending the definition to refer to any item. As amended the proposed definition stated, inter alia, that adaptive equipment means “equipment which must be part of or added to a conveyance manufactured for sale to the general public to make it safe for use by the eligible person and enable that person and the conveyance to meet the applicable standards of licensure. Adaptive equipment includes any item specified by the Under Secretary for Health or designee as ordinarily necessary for any of the classes of losses or combination of such losses specified in 38 CFR 17.156, or as deemed necessary in an individual case for an eligible person.” One commenter requested clarification on whether “any item” includes both tangible and non-tangible ( <E T="03">i.e.,</E> software and other electronic interface technologies) equipment, which are and will continue to be essential for the safe and functional operation of modified automobiles and adaptive equipment. The commenter recommended amending the definition of adaptive equipment to specifically address this issue. We agree with the comment to the extent that software and other electronic interface technologies are and may continue to be essential for the safe and functional operation of modified automobiles and adaptive equipment. However, we do not believe that adding modifying language such as “tangible,” “non-tangible,” or “intangible” to the definition of “adaptive equipment” would provide the additional clarity that the commenter seeks. We believe those terms are too subjective, and further we do not know of standardized definitions or characterizations of those terms in National Highway Traffic System Administration (NHTSA) guidance or regulations. We do, however, amend the definition of “adaptive equipment” to specifically include language related to equipment being essential for the continued safety and functionality of a modified or altered automobile and adaptive equipment. We believe this will assist to capture software or other electronics-based equipment to ensure it is covered in the definition of “adaptive equipment.” One commenter stated that the definition for adaptive equipment deviates from the statutory definition of that same term in 38 U.S.C. 3901(2) and stated that VA should explain why the definitions are not the same. We first note that the definition of adaptive equipment found in § 17.157 is essentially unchanged from when the rule first published in 1988 (53 FR 46608, Nov. 18, 1988). The only prior amendment to this section occurred in 1996, when the section was redesignated and a nonsubstantive change of job title from Chief Medical Director to Under Secretary for Health established. (61 FR 21966, 21968, May 13, 1996). In the present proposed rule, we stated that we would change the phrase “any term” to “any item” for purposes of clarity. We do not agree with the statement that the regulation deviates from the statute. The statute at 38 U.S.C. 3901(2) does not define the term adaptive equipment per se but does provide examples of the types of equipment or modifications that may fall within the ambit of that term. Section 17.157 defines the term adaptive equipment, incorporates statutory language regarding what types of equipment may be included, and then addresses VA's authority to specify other items as ordinarily necessary for any of the classes of losses or combination of such losses specified in 38 CFR 17.156, or as deemed necessary in an individual case for an eligible person. We make no changes based on this comment. We proposed adopting several definitions found in the National Traffic and Motor Vehicle Safety Act (Pub. L. 89-563) as amended. We proposed defining the term “manufacturer” to mean the same as in 49 U.S.C. 30102(a)(6). One commenter stated that the correct citation is to 49 U.S.C. 30102(a)(5). We disagree. While the definition of manufacturer was originally designated at 49 U.S.C. 30102(a)(5), it was redesignated as paragraph (a)(6) in Public Law 114-94, section 24109(b)(2). We make no changes based on this comment. We proposed defining registered provider and unregistered provider. We proposed defining a registered provider as a manufacturer, modifier, or alterer registered with the NHTSA's Modifiers Identification Database currently available at <E T="03">https://www.nhtsa.gov/apps/modifier/index.htm</E> . Any manufacturer, modifier, or alterer who is not registered is considered an unregistered provider. The purpose of the NHTSA Modifiers Identification Database is to provide a running and cumulative listing of all individuals or entities that have sought identification as a vehicle modifier under the requirements of 49 CFR part 595. NHTSA does not approve or endorse any of the modifiers who have furnished information under part 595. One commenter stated that VA should reconsider its proposed reliance on NHTSA to ensure quality, as NHTSA's expertise in the adaptive equipment arena is focused on vehicle safety and not on the quality of adaptive equipment installation, replacement, or repair. The commenter stated that the data provided in the database is only as accurate as the information submitted by each modifier and is not verified or validated by NHTSA. Furthermore, the database is updated as new information is received but is not purged of those modifiers who may have over time changed names, addresses, or gone out of business. NHTSA does not assess the abilities of any of the listed modifiers to perform any requested or represented modification services. The commenter stated that VA's reliance on the Database as an indicator of vendor com ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 70k characters. 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