Reconsideration of Denied Claims

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AJ03

Reconsideration of Denied Claims

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs'

``Medical'' regulations by adding a new section to set forth

reconsideration procedures regarding claims for benefits administered

by the Veterans Health Administration. These procedures would not only

allow for more reflective decisions at the local level but would also

allow some disputes to be resolved without the need for further appeal

to the Board of Veterans' Appeals.

DATES: Effective Date: August 17, 1999.

FOR FURTHER INFORMATION CONTACT: Troy L. Baxley, Health Administration

Service (10C3), Department of Veterans Affairs, 810 Vermont Avenue, NW,

Washington DC 20420, telephone (202) 273-8301. (This is not a toll-free

number).

SUPPLEMENTARY INFORMATION: In a document published in the Federal

Register on February 27, 1998 (63 FR 9990), we proposed to amend the

``Medical'' regulations (38 CFR part 17) by adding a new section to set

forth reconsideration procedures regarding claims for benefits

administered by the Veterans Health Administration (VHA). We provided a

60-day comment period, which ended April 28, 1998. We received comments

from two sources.

Both commenters asserted that the VA person rendering a decision

upon reconsideration should not be the same person who rendered the

original decision. We agree and have delegated the authority for making

the reconsideration decision to the immediate supervisor of the initial

VA decision-maker.

[[Page 44660]]

One commenter asserted that under Sec. 17.133(a) of the proposed

rule, the examples provided are, indeed, examples and are not all

inclusive. We agree. We have revised the text to more clearly emphasize

that, unless other reconsideration procedures apply, the

reconsideration procedures of this rule apply to VHA decisions that are

appealable to the Board of Veterans' Appeals. Also, we have clarified

the procedures to state that they do not apply to decisions made

outside VHA, such as rating decisions made by the Veterans Benefits

Administration and adopted by VHA for decisionmaking.

Paperwork Reduction Act of 1995

The Office of Management and Budget (OMB) has cleared the

information collection and has assigned an OMB control number 2900-

0600.

Regulatory Flexibility Act

The Secretary hereby certifies that the adoption of this final rule

would not have a significant impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act (RFA), 5

U.S.C. 601-612. Although the adoption of the final rule could affect

small businesses, it would not have a significant impact on any small

business. Therefore, pursuant to 5 U.S.C. 605(b), the proposed rule is

exempt from the initial and final regulatory flexibility analysis

requirements of Secs. 603 and 604.

There are no Catalog of Federal Domestic Assistance program

numbers.

List of Subjects in 38 CFR Part 17

Administrative practice and procedure, Alcohol abuse, Alcoholism,

Claims, Day care, Dental health, Drug abuse, Foreign relations,

Government contracts, Grant programs-health, Grant programs-veterans,

Health care, Health facilities, Health professions, Health records,

Homeless, Medical and dental schools, Medical devices, Medical

research, Mental health programs, Nursing homes, Philippines, Reporting

and recordkeeping requirements, Scholarships and fellowships, Travel

and transportation expenses, Veterans.

Approved: June 28, 1999.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 17 is

amended to read as follows:

PART 17--MEDICAL

1. The authority citation for part 17 continues to read as follows:

Authority: 38 U.S.C. 501(a), 1721, unless otherwise noted.

2. In part 17, an undesignated center heading and Sec. 17.133 are

added to read as follows:

Reconsideration of Denied Claims

Sec. 17.133 Procedures.

(a) Scope. This section sets forth reconsideration procedures

regarding claims for benefits administered by the Veterans Health

Administration (VHA). These procedures apply to claims for VHA benefits

regarding decisions that are appealable to the Board of Veterans'

Appeals (e.g., reimbursement for non-VA care not authorized in advance,

reimbursement for beneficiary travel expenses, reimbursement for home

improvements or structural alterations, etc.). These procedures do not

apply when other regulations providing reconsideration procedures do

apply (this includes CHAMPVA (38 CFR 17.270 through 17.278) and spina

bifida (38 CFR 17.904) and any other regulations that contain

reconsideration procedures). Also, these procedures do not apply to

decisions made outside of VHA, such as decisions made by the Veterans

Benefits Administration and adopted by VHA for decisionmaking. These

procedures are not mandatory, and a claimant may choose to appeal the

denied claim to the Board of Veterans' Appeals pursuant to 38 U.S.C.

7105 without utilizing the provisions of this section. Submitting a

request for reconsideration shall constitute a notice of disagreement

for purposes of filing a timely notice of disagreement under 38 U.S.C.

7105(b).

(b) Process. An individual who disagrees with the initial decision

denying the claim in whole or in part may obtain reconsideration under

this section by submitting a reconsideration request in writing to the

Director of the healthcare facility of jurisdiction within one year of

the date of the initial decision. The reconsideration decision will be

made by the immediate supervisor of the initial VA decision-maker. The

request must state why it is concluded that the decision is in error

and must include any new and relevant information not previously

considered. Any request for reconsideration that does not identify the

reason for the dispute will be returned to the sender without further

consideration. The request for reconsideration may include a request

for a meeting with the immediate supervisor of the initial VA decision-

maker, the claimant, and the claimant's representative (if the claimant

wishes to have a representative present). Such a meeting shall only be

for the purpose of discussing the issues and shall not include formal

procedures (e.g., presentation, cross-examination of witnesses, etc.).

The meeting will be taped and transcribed by VA if requested by the

claimant and a copy of the transcription shall be provided to the

claimant. After reviewing the matter, the immediate supervisor of the

initial VA decision-maker shall issue a written decision that affirms,

reverses, or modifies the initial decision.

Note to Sec. 17.133: The final decision of the immediate

supervisor of the initial VA decision-maker will inform the claimant

of further appellate rights for an appeal to the Board of Veterans'

Appeals.

(The Office of Management and Budget has approved the information

collection requirements in this section under control number 2900-

0600)

(Authority: 38 U.S.C. 511, 38 U.S.C. 7105)

[FR Doc. 99-21249 Filed 8-16-99; 8:45 am]

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