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Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / Rules and Regulations
Authority: 38 U.S.C. 501, and as noted in specific sections.

2. Amend 17.108 by revising paragraphs e16 and 17 and adding paragraph e18 to read as follows:
17.108 Copayments for inpatient hospital care and outpatient medical care.

e
16 In-home video telehealth care;
17 Mental health peer support services; and 18 An outpatient care visit solely for education on the use of opioid antagonists to reverse the effects of overdoses of specific medications or substances.

3. Amend 17.110 by adding paragraph c12 to read as follows:
17.110

Copayments for medication.

c
12 Opioid antagonists furnished to a veteran who is at high risk for overdose of a specific medication or substance in order to reverse the effect of such an overdose.
i For purposes of this paragraph c12, a veteran who is at high risk for overdose of a specific medication or substance in order to reverse the effect of such an overdose is a veteran:
A Who is prescribed or using opioids, or has an opioid use history, and who is at increased risk for opioid overdose as determined by VA; or B Whose provider deems, based on their clinical judgment, that the veteran may benefit from ready availability of an opioid antagonist.
ii Examples of a veteran who is at high risk for overdose of a specific medication or substance in order to reverse the effect of such an overdose include, but are not limited to, the following:
A A veteran with an opioid or substance use disorder diagnosis;
B A veteran receiving treatment for an opioid or substance use disorder diagnosis, such as receiving opioid agonist therapy or inpatient, residential, or outpatient treatment for such diagnosis, or attending a support group for such diagnosis;
C A veteran with a history of prescription opioid misuse or injection opioid use;
D A veteran with a history of previous opioid overdose;
E A veteran who is taking an extended-release or long-acting prescription opioid;
F A veteran with household or community access to opioids who is at
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increased risk for overdose e.g., psychiatric disorder or high risk for suicide as determined by VA; or G A veteran predicted to be at high risk for overdose based on standardized assessments or predictive models e.g., Risk Index for Overdose or Serious Opioid-induced Respiratory Depression RIOSORD; Stratification Tool for Opioid Risk Mitigation STORM.
Note 1 to paragraph c12. The examples in paragraphs c12iiA through G of this section apply even if the veteran has had a period of abstinence from opioids e.g., due to treatment, detoxification, incarceration because loss of tolerance can increase the risk for an overdose.
FR Doc. 202120196 Filed 91721; 8:45 am BILLING CODE 832001P

DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 38
RIN 2900AR03

Referral for VA Administrative Decision for Character of Discharge Determinations Department of Veterans Affairs.
Final rule.

AGENCY:
ACTION:

The Department of Veterans Affairs VA is amending its regulations to clarify that, when determining eligibility for interment or memorialization benefits, the National Cemetery Administration NCA will refer cases involving other than honorable OTH discharges, certain other discharges, or potential statutory or regulatory bars to benefits, to the Veterans Benefits Administration VBA
for character of discharge determinations. VA is merely updating its regulations to conform with statute and current practice.
DATES: This rule is effective October 20, 2021.
FOR FURTHER INFORMATION CONTACT: Jerry Sowders, Division Chief, Eligibility Verification Division, National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420.
Telephone: 3144166369. This is not a toll-free number.
SUPPLEMENTARY INFORMATION: On December 18, 2020, VA published in the Federal Register 85 FR 82399 a proposed rule revising its regulations to clarify that, when determining eligibility for interment or memorialization benefits, NCA will refer cases involving OTH discharges or other character of discharge issues to SUMMARY:

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VBA for an administrative decision. The public comment period ended on February 16, 2021.
VA received one comment that expressed disagreement with the proposed rule, stating that the referral of cases for a character of discharge determination was morally and ethically reprehensible. The commenter also asserted that the proposed rule sought to assume Congresss role to write statute by redefining the term veteran, and suggested that VA use an automated formula to evaluate whether an individual satisfies the statutory definition of veteran. We thank the commenter for this comment.
However, we disagree that this rule redefines the term veteran in any way. While the supplemental information in the proposed rule explained that eligibility for NCAadministered benefits is tied to an individual establishing veteran status or meeting other specified conditions, this rule does not affect the statutory definition of veteran as provided by Congress in 38 U.S.C. 1012. The rule only amends 38 CFR 38.620 by adding a note following paragraph i to inform that a benefit request, pertaining to a decedent whose character of discharge may potentially bar eligibility to that benefit, may be referred to VBA for review in accordance with 38 CFR 3.12
Character of discharge or other applicable sections. As such, we make no changes based on the comment.
We appreciate the commenters suggested alternative approach to determining whether an individual satisfies the statutory definition of veteran, but Congress has delegated to VA the authority to promulgate reasonable regulations on VA benefits eligibility, which it has done in 38 CFR
3.12. See Garvey v. Wilkie, 972 F.3d 1333 Fed. Cir. 2020. It is not 38 CFR
38.620 or this rule which merely clarifies NCA current practice, but 38
CFR 3.12, that seems to pertain more to the commenters concern.
Under 38 CFR 3.12a, some discharges, such as honorable and general under honorable conditions automatically convey veteran status.
However, other types of discharges require in-depth examination under the provisions of 38 CFR 3.12d to determine whether the discharge should be considered to have been issued under dishonorable conditions. Moreover, the provisions of 38 CFR 3.12c, commonly referred to as the statutory bars to benefits since they are derived from 38
U.S.C. 5303a may also be implicated.
Because of VBAs expertise and familiarity with 38 CFR 3.12, NCA has
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