Federal Register Extracts

Agency: "Department of Veterans Affairs."

SUMMARY: This final rule adopts, with changes, a proposed rule amending the Department of Veterans Affairs (VA) Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) program regulations. This final rule allows nurse practitioners to sign a hospital or facility-approved pass for a member to leave a hospital or treating facility as part of the member's treatment plan. This final rule also responds to comments received during a reopened 60-day comment period on the response to a petition for rulemaking and withdraws a proposed revision to the TSGLI schedule of losses for traumatic injuries from burns.

DATES: This rule is effective April 14, 2023.

FOR FURTHER INFORMATION CONTACT: Paul Weaver, Department of Veterans Affairs Insurance Service (310/290B), 5000 Wissahickon Avenue, Philadelphia, PA 19144, (215) 842-2000, ext. 4263. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On August 19, 2020, VA published a proposed rule in the Federal Register, 85 FR 50,973, to amend its regulations governing the TSGLI program, and addressed and denied a petition for rulemaking submitted to VA on March 16, 2015, requesting that VA amend the TSGLI regulations to cover traumatic injuries due to illness and disease caused by explosive ordnance. VA provided a 60-day comment period, which ended on October 19, 2020. We received comments from 10 individuals during this comment period. Overall, the comments supported our proposed rulemaking; however, several of the commenters made additional recommendations, which we address below.

On March 23, 2021, we published a supplemental notice of proposed rulemaking (SNPRM), 86 FR 15,448, that provided a new opportunity for the public to submit comments pertaining to our proposal to deny the petition for rulemaking requesting that VA amend the TSGLI regulations to cover traumatic injuries due to illness and disease caused by explosive ordnance. We received three comments during the SNPRM comment period and address these comments in this final rulemaking. In addition, we explain VA is withdrawing the proposed amendment to the TSGLI burn standard that was published in the Federal Register in August 2020.

1. Definition of Therapeutic Trip

We received one comment from the American Association of Nurse Practitioners, suggesting that VA amend the proposed definition of the term "therapeutic trip" in new 38 CFR 9.21(a)(11) to allow a nurse practitioner, as well as an attending physician, to sign a member's hospital or facility-approved pass to leave the hospital or facility as part of the member's treatment plan. The comment indicated that nurse practitioners have similar, full practice authority within VA medical facilities, and that these nurse practitioners will likely be the primary provider for members in settings such as hospitals and long-term care facilities. The comment also stated that the group believed that this change would serve to ensure that members are able to receive approved passes for therapeutic trips without unnecessary delay. We agree and, therefore, are revising the proposed definition of the term therapeutic pass so that nurse practitioners will have authority to endorse a member's pass to leave a hospital or other facility as part of the member's treatment plan.

2. Eligibility Requirements Regarding Causation

One commenter stated that VA does not explain the standard we propose to determine whether an illness or disease caused a member's loss. They further stated the concept for using the standard is amorphous and highly subjective, and that medical opinions regarding the extent the illness or disease contributed to the member's loss could differ, making it very difficult to determine how much of a factor a pre-existing illness or disease could have been in contributing to the member's loss. TSGLI is modeled on commercial accidental death and dismemberment (AD&D) insurance coverage, and this coverage does not cover losses caused by illness or disease. 70 FR 75,940, 75,942 (Dec. 22, 2005). We explained in the TSGLI interim final rulemaking published in 2005 that 38 U.S.C. 1980A(e)(4) and (5) obligate VA "to manage the TSGLI program 'on the basis of sound actuarial principles,' " and that private AD&D coverage has proven to be actuarially sound over the long-term in the commercial insurance industry. Id. at 75,940. We also explained that limitations set forth in the TSGLI regulations follow insurance-industry standards and are based upon sound actuarial and financial principles that VA must utilize in administering TSGLI. Id. at 75,942. In addition, in our proposed rulemaking we stated that, in AD&D cases, courts have interpreted the phrase "direct result of a traumatic injury and no other cause" that 38 CFR 9.20(d)(2) uses, to mean that a loss is not covered if a preexisting condition or disease "substantially contributed" to the loss. 85 FR at 50,974. The proposed directive in 38 CFR 9.20(d)(2) that a scheduled loss would not result directly from a traumatic injury and no other cause if a preexisting disease, illness, or condition substantially contributed to the loss is based on the courts' interpretation. Because we are obligated to administer TSGLI on the basis of sound actuarial and financial principles that have been adopted by commercial insurers, and commercial AD&D insurers utilize the same "substantially contributed" standard to evaluate whether illness or disease caused the loss, we are not making any change to proposed 38 CFR 9.20(d).

3. TSGLI Payment Range

One commenter stated that the TSGLI payment schedule has not been addressed since 2005 and that the proposed rule should have adjusted the range of payment for TSGLI. When the TSGLI interim final rule was published in 2005, we explained that the TSGLI schedule follows the commercial AD&D model. We established the TSGLI payment range based on the AD&D policies that we reviewed. Since 2005, we have conducted a Year-One Review and a Year-Ten Review. See 73 FR 71,926 (Nov. 26, 2008); 85 FR at 50,973; see also https://www.benefits.va.gov/INSURANCE/docs/TSGLI_YTR.pdf. As a result of these reviews, we have published rulemakings that have amended certain sections of the TSGLI schedule to: (1) increase from one to two years the period of time for a loss from a traumatic injury to occur (72 FR 10,362, 10,363 (Mar. 8, 2007)); (2) provide TSGLI benefits for genitourinary losses (76 FR 75,458 (Dec. 2, 2011)); and (3) create a graduated, tiered standard for evaluating losses for reconstruction of limbs (85 FR at 50,981). Furthermore, after reviewing payment amounts during the Year-One and Year-Ten Reviews, we have found the current TSGLI benefit payouts to be larger than the payouts for many commercial AD&D policies. Further, Congress wanted VA to keep the TSGLI premium low to ease the financial stress for Servicemembers and their families and the current premium does not support additional payment amounts. See 151 Cong. Rec. S4095 (2005) (statement of Sen. Craig) ("To meet these needs, our amendment would create a traumatic insurance rider [that] would provide coverage for severely disabling conditions at a cost of approximately $1 a month . . . ."). Therefore, we will not make any change based on this comment.

4. TSGLI Appeals Process

One commenter stated that the proposed rule should have addressed the TSGLI appeals process because it was applied inconsistently for different members serving in various branches of the uniformed services. As part of the TSGLI Year-Ten Review, VA met with TSGLI adjudicators from the uniformed services and reviewed the TSGLI appeals process for each branch. Based on these meetings, VA developed the procedures that we proposed in revised 38 CFR 9.20(h). We explained with regard to the proposed amendments to paragraph (h) that the uniformed services and members must follow the established procedural process that each respective branch has developed for hearing TSGLI claims. 85 FR at 50,976. In addition, new 38 CFR 9.20(h)(4) states that a member is not precluded from pursuing legal remedies under 38 U.S.C. 1975 and 38 CFR 9.13 and can leave the TSGLI appeals process at any time and seek a different venue for their appeal. Because we have reviewed the TSGLI appeals process for the uniformed services and addressed it in the proposed rulemaking by making revisions to the process, we do not make any further changes based on this comment.

5. Two-Year Period To Suffer Loss From Traumatic Injury

Two commenters stated that the two-year eligibility period to suffer a loss from a traumatic injury should be expanded. The commenters indicated that certain losses, such as traumatic brain injury (TBI), often do not become disabling medical conditions until longer than two years following a traumatic injury. One of the commenters suggested increasing the two-year period for a member to suffer a loss from a traumatic injury to two years from the date of diagnosis of the traumatic injury or date surgery is performed, whichever is later. VA is obligated to administer TSGLI according to the sound actuarial and financial practices of commercial AD&D insurers. When TSGLI was created in 2005, a one-year loss period was established because the one-year period reflected the longest loss period for an individual insured under a policy of commercial AD&D. In 2007, we extended this one-year period to two years in response to concerns from the uniformed services that one year was not enough time for a member to decide whether to attempt to salvage a limb. This extension of an additional year to suffer a loss provides more extensive coverage than the coverage offered by most commercial AD&D insurers. Further extending the loss period risks undermining the actuarial soundness of TSGLI and would make it difficult for TSGLI adjudicators to determine if a nexus exists between a traumatic injury and a qualifying loss. Therefore, we do not make any change based on this comment.

6. Exposure to Burn Pits

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

Final rule.

CFR Part: "38 CFR Part 9"

RIN Number: "RIN 2900-AQ53"

Citation: "88 FR 15907"

Federal Register Page Number: "15907"

"Rules and Regulations"