On April 4, 2023, the Department of Veterans Affairs (VA) waived the copayment requirement for American Indian and Alaskan Native veterans receiving care at VA healthcare centers. The VA published the final rule in the Federal Register at 88 FR 19862-19873 (Final Rule). The rule will be codified in 38 C.F.R. Part 17. The Final Rule is available here.
The Final Rule explicitly recognizes the United States’ treaty and trust relationship with Indian tribes. Also, in response to comments made during the Final Rule’s consultation period with tribes, the VA took important steps to affirm the unique political status of tribes compared to other racial groups.
The VA’s Final Rule states that “the Congressional record is clear that Congress’s rationale for exempting Indian and urban Indian veterans from copayments was based on fulfilling the promise this country made to Tribal nations as part of its trust and treaty responsibilities to provide American Indians and Alaska Natives with free health care, increasing access to care, and supporting parity for the provision of care by VA and other Federal agencies.”
The Final Rule amends 38 C.F.R. Part 17, specifically sections 17.108, 17.110, 17.111 and 17.4600. In these sections, the Final Rule states that “if an eligible veteran meets the definition of Indian or urban Indian, … they are exempt from copayments…” for the care received at a VA facility on or after January 5, 2022. In addition, veterans who made copayments on or after January 5, 2022, may apply for reimbursement of those payments.
The definition of Indian or urban Indian cited in the Final Rule is the definition used for Indian health care found at 25 U.S.C. § 1603 (13) and (28). Care provided by the VA may include inpatient hospital care or outpatient medical care, urgent care, medications, and noninstitutional extended care, including adult day health care, noninstitutional respite care, and noninstitutional geriatric evaluation.
The Final Rule provides that American Indian and Alaskan Native veterans must complete Form 10-334 and provide documentation that they are American Indian or Alaskan Native. Form 10-334 is available here.
Patterson Earnhart Real Bird & Wilson LLP is dedicated to the representation of American Indian tribes, tribal entities, and individual Indians across the United States. Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our tribal clients. To learn more about how we can assist your tribe, contact our Colorado office at (303) 926-5292.