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Federal Register / Vol. 86, No. 174 / Monday, September 13, 2021 / Rules and Regulations A commenter that operates a psychiatric facility raised multiple issues. First, the commenter noted that veterans often face specialized mental health needs, including combat related needs such as those resulting from post-traumatic stress disorder PTSD or traumatic brain injury TBI.
In light of VAs specialized experience in those clinical areas, the commenter urged VA to share its knowledge of combat related illnesses with mental health providers and indicated that VA
should require mental health providers furnishing care pursuant to VCAs to be adequately trained to handle mental health needs that are unique to or more frequently experienced by veterans. In this regard, the commenter specifically recommended that the certification process in 17.4110 of the interim final rule should require special training in the area of mental health. We interpret this recommendation to mean that such training should be required solely for mental health providers and should pertain to those clinical areas for which VA has special expertise, including PTSD and TBI. In response, we note that VA agrees that it is critical for veterans to receive competent care from qualified non-VA providers and that VA can contribute to that result in certain instances by providing training and/or education to non-VA providers in clinical areas for which VA has special expertise, including PTSD and TBI. In this regard, we note that VA will take a number of actions that will result in the provision of relevant training and education to non-VA providers furnishing care and services authorized pursuant to VCAs. For example, in accordance with section 133 of the MISSION Act codified at 38 U.S.C.
1701 note, VA established competency standards and requirements, including training requirements, for the provision of care by non-VA providers in clinical areas for which VA has special expertise, including PTSD and TBI.
Such requirements apply to providers furnishing care and services pursuant to VCAs. Also, in accordance with section 123 of the MISSION Act codified at 38
U.S.C. 1701 note, VA established a program to provide continuing medical education to non-VA medical professionals furnishing care to VA
beneficiaries, including pursuant to VCAs. Moreover, VA provides appropriate oversight of care and services furnished pursuant to VCAs as VA administers those agreements. For example, VA established and imposed quality standards in accordance with 38
U.S.C. 1703C and monitors and assess the quality of the care and services
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provided pursuant to VCAs in accordance with 38 U.S.C. 1703Ag.
However, adding specific training requirements to the certification process in 17.4110 through the regulation process, as opposed through the VCA
agreements themselves, would not be an appropriate means of establishing such training requirements and ensuring that non-VA providers fulfill the appropriate training requirements prior to furnishing mental health care that VA
obtains through VCAs in clinical areas for which VA has special expertise, including PTSD and TBI. Training requirements for mental health providers furnishing care and services pursuant to VCAs may need to be changed over time, potentially quickly in certain instances, for reasons including developments in clinical practice or new legal requirements with which VA must comply. So, establishing training requirements in the terms of VCAs, rather than in the certification process set forth in the final rule resulting from this rulemaking, will ensure VA retains the flexibility to more quickly and efficiently adjust those training requirements as appropriate based on evolving circumstances and requirements. For the foregoing reasons, we do not adopt the commenters recommendation to add a training requirement to the certification process set forth in 17.4110 of the interim final rule.
The same commenter also provided recommendations regarding the authority set forth in 17.4020d of the interim final rule, which authorizes VA
to establish payment rates exceeding the applicable Medicare-based limitations in 17.4120ab when VA determines that it is not practicable to limit payment to those rates. Specifically, the commenter recommended that the authority to make the determinations referenced in 17.4120d should be delegated to officials at individual VHA
medical facilities and should not be subject to an overly burdensome justification and approval process. In response, VA notes that although the authority to generate determinations referenced in 17.4120d of the interim final rule is delegated to officials at individual VHA medical facilities, that authority is circumscribed by a requirement that each such determination must be approved by VHAs national Office of Community Care. This centralized oversight by the Office of Community Care is intended to enhance the effectiveness and integrity of VAs use of VCAs, as well as the entire VCCP, by bringing that offices resources, data, and enterprise-wide
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view of VCAs and the VCCP to bear in a manner that will promote consistency and quality in how VA interprets and applies the impracticability standard in 17.4120d of the interim final rule and that will ensure VA is appropriately assessing and accounting for the potential impacts, if any, of such determinations on the VCCP more broadly. Consequently, VA does not make any changes to the interim final rule based on these comments.
The same commenter also indicated that the non-VA entities and providers furnishing care pursuant to VCAs need to be adequately compensated on a timely basis for their services. In response, we note that VA agrees with this comment and will work to ensure timely payments for care and services obtained pursuant to VCAs, as required by 38 U.S.C. 1703D. All VCAs contain payment terms that require VA to make payment in accordance with the timeframes required by statute, so it would serve no relevant purpose to add those same payment timeliness requirements to this final rule.
Consequently, we do not make any changes to the interim final rule based on this comment.
The same commenter also asserted that VA must develop and partner with a network of dedicated providers and that service-disabled veteran owned small businesses SDVOSB, veteran owned small businesses VOSB, and prior VA clinicians should be given priority. The comment indicated that the reasons for recommending that VA
prioritize utilization of SDVOSBs and VOSBs include that veterans which we presume refers to the veteran owners of those businesses have shared military experience that improves the efficacy of counseling services provided to fellow veterans and that such veteran owners are highly motivated, dedicated, and willing to make sacrifices to help their fellow veterans. As it pertains to the subject matter of this rulemaking, VCAs, we interpret this comment recommending that VA give priority to SDVOSBs, VOSBs, and prior VA
clinicians to mean that when VA is obtaining needed hospital care, medical services, or extended care services for a veteran through a VCA, in accordance with the legal criteria for doing so,4 two or more VCAs are feasibly available for that purpose, and one or more of those feasibly available VCAs was entered into with an entity thats an SDVOSB or a VOSB or with a provider thats a prior 4 As previously noted, the circumstances when VA is legally authorized to use VCAs to obtain hospital care, medical services, or extended care services are specified in 38 U.S.C. 1703Aa and in 17.4115a of the interim final rule.

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