Federal Register Extracts

Agency: "Department of Veterans Affairs."

SUMMARY: The Department of Veterans Affairs (VA) proposes amending its medical regulations regarding Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) coverage. This rulemaking would align with the Department of Defense for benefits administered through TRICARE and more closely align with requirements of other Federal programs. This rulemaking would remove the exclusion from CHAMPVA coverage for audio-only telehealth. In addition, we propose removing limitations on outpatient mental health visits as well as removing cost sharing requirements for certain contraceptive services and contraceptive products approved, cleared, or granted by the U.S. Food and Drug Administration (FDA).

DATES: Comments must be received by VA on or before November 23, 2022.

ADDRESSES: Comments must be submitted through www.regulations.gov. Except as provided below, comments received before the close of the comment period will be available at www.regulations.gov for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. VA will not post on Regulations.gov public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm the individual. VA encourages individuals not to submit duplicative comments. We will post acceptable comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period's closing date is considered late and will not be considered in the final rulemaking.

FOR FURTHER INFORMATION CONTACT: Joseph Duran, Director, Policy, Office of Integrated Veteran Care (OIVC), Veterans Health Administration (VHA), Department of Veterans Affairs, Ptarmigan at Cherry Creek, Denver, CO 80209; 303-370-1637 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: The Department of Veterans Affairs (VA) proposes amending Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) exclusions to allow coverage of telephonic (audio-only) medical visits and to remove limits on mental health coverage to be consistent with the Department of Defense (DoD) TRICARE program and current standards of practice in mental health and substance use care as well as the Mental Health Parity and Addiction Equity Act of 2008. In addition, we propose removing cost-sharing requirements for contraceptive services and contraceptive products approved, cleared, or granted by the U.S. Food & Drug Administration (FDA). VA believes these proposed changes are consistent with the goals and objectives of Executive Order (E.O.) 14070 (April 5, 2022) titled, "Continuing to Strengthen Americans' Access to Affordable, Quality Health Coverage." The E.O. directs federal agencies "with responsibilities related to Americans' access to health coverage" to "review agency actions to identify ways to continue to expand the availability of affordable health coverage."

Pursuant to 38 U.S.C. 1781, CHAMPVA is a health benefits program in which VA shares the cost of covered medical care services and supplies with certain spouses, children, survivors, and caregivers of veterans who meet specific eligibility criteria. Under section 1781(b), VA "shall provide for medical care in the same or similar manner and subject to the same or similar limitations as medical care is furnished to certain dependents and survivors of active duty and retired members of the Armed Forces under chapter 55 of title 10 [United States Code] (CHAMPUS)." VA has implemented this requirement through the promulgation of its regulations at 38 CFR 17.270 et seq. We note that VA has consistently interpreted the "same or similar" language in 38 U.S.C. 1781(b) to mean that CHAMPVA is not required to provide coverage identical to that provided by TRICARE. When warranted, CHAMPVA coverage and exclusions may differ from TRICARE due to factors such as dissimilarities in the respective patient populations, or policy considerations.

We note that CHAMPUS was the original program administered by DoD to provide civilian health benefits for active duty military personnel, military retirees, and their dependents. 32 CFR 199.1. Although the CHAMPUS program is still referenced in DoD regulations, DoD effectively replaced the CHAMPUS program with what was commonly known as the "TRICARE Standard" plan ("TRICARE"). See 32 CFR 199.1(r), 199.17(a)(6)(ii)(D) (identifying "TRICARE Standard" as the basic CHAMPUS program available prior to January 1, 2018). In December 2017, Section 701 of the National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, required inter alia the termination of TRICARE Standard as a distinct plan and the establishment of the TRICARE Select healthcare option. The CHAMPUS basic program benefits under 32 CFR 199.4 continue as the baseline of benefits for TRICARE Select. VA, therefore, administers CHAMPVA in the same or similar manner as TRICARE Select and, except where we discuss laws or regulations generally applicable to all TRICARE program options, references in this rulemaking to "TRICARE" are to TRICARE Select.

Audio-Only Telehealth

Historically, TRICARE regulations excluded audio-only telehealth. 32 CFR 199.4(g)(52) (2019). Similarly, the CHAMPVA regulations at 38 CFR 17.272(a)(44) specifically exclude coverage for audio-only telehealth. However, on January 31, 2020, the Secretary of Health and Human Services (HHS) determined that a public health emergency existed since January 27, 2020. On March 13, 2020, the President declared a national emergency due to COVID-19. In light of the spread of COVID-19, the Centers for Disease Control and Prevention (CDC) urged Americans to work and engage in schooling from home whenever possible as well as to avoid congregating in groups. Various States and localities imposed more rigid restrictions on gatherings, requiring many businesses to restrict or close their operations, to prevent further spread of the disease. To prevent the spread of COVID-19 in accordance with local restrictions and guidelines, and to prioritize in-person treatments for seriously ill patients, health care professionals around the country limited in-person medical appointments. While in-person appointments were converted to video telehealth visits when possible, some patients were limited to audio-only telehealth appointments because either they or their providers didn't have access to the communications equipment, internet service, or internet bandwidth required for video telehealth.

DoD published an interim final rule (IFR) on May 12, 2020, effective that same day, to temporarily remove the exclusion for audio-only telehealth. 85 FR 27927. DoD temporarily removed the exclusion because doing so was necessary to ensure the health and safety of TRICARE beneficiaries. Allowing audio-only telehealth would permit beneficiaries to have their symptoms (which include COVID-19 symptoms, or symptoms of other covered illness or injury) evaluated by a provider over the telephone before, or in lieu of, obtaining an in-person appointment, which ultimately may not be necessary. In 2022, DoD provided that this temporary removal of the exclusion would cease to be in effect upon termination of the national emergency declared by the President in Proclamation 9994, in accordance with applicable law and regulation (e.g., 50 U.S.C. 1622(a)).

Following publication of the IFR, DoD reviewed claims data from TRICARE private sector care as well as published industry information from the Centers for Medicare & Medicaid Services (CMS), health insurance plans, and statements from physicians' professional organizations regarding telephonic office visits to determine if this should be a permanent telehealth benefit. 87 FR 33002 (June 1, 2022). This data reflected utilization rates for telehealth services including telephonic (audio-only) medical visits, while statements from physicians' professional organizations reflected opinions of many health care provider regarding telehealth. The TRICARE claims data between mid-March and mid-September 2020 indicated beneficiary utilization of telephonic office visits was a small portion of all telehealth claims. Medicare and health insurance plans reported data indicating substantial utilization of telephonic office visits. Physicians' professional organizations issued statements indicating that physicians had a favorable experience with telephonic office visits.

--This is a summary of a Federal Register article originally published on the page number listed below--

Proposed rule.

CFR Part: "38 CFR Part 17"

RIN Number: "RIN 2900-AR55"

Citation: "87 FR 64190"

Federal Register Page Number: "64190"

"Proposed Rules"