[Federal Register Volume 89, Number 210 (Wednesday, October 30, 2024)]
[Rules and Regulations]
[Pages 86245-86250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24912]
[[Page 86245]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 17 and 51
RIN 2900-AR61
Determining Eligibility for Domiciliary Care
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with
minor changes, a proposed rule amending its medical and State Veterans
Home (State home) regulations to update the criteria used by VA in
determining eligibility for domiciliary care and to implement VA's
authority to waive certain eligibility requirements for receipt of
State home domiciliary care per diem.
DATES: This rule is effective November 29, 2024.
FOR FURTHER INFORMATION CONTACT: Lauren Crotts, Chief, State Veterans
Homes, Geriatrics and Extended Care (12GEC), Veterans Health
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420; (202) 461-6750 (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register (FR) on September 1, 2023, VA proposed to amend its medical
and State home regulations in parts 17 and 51 of title 38, Code of
Federal Regulations (CFR). VA proposed to amend part 17 to update the
criteria VA uses to determine eligibility for domiciliary care. In
particular, VA proposed to amend the criteria that establishes whether
a veteran has no adequate means of support by shifting the focus of the
regulatory language from the veterans' ability to pursue substantially
gainful employment to a broader consideration of available support
systems and medical conditions or disabilities that might impact the
veteran's ability to live independently. 88 FR 60417. VA also proposed
to amend 38 CFR part 51 to implement VA's authority to waive certain
requirements for State homes to receive per diem payments for a veteran
receiving domiciliary care. Id.
VA provided a 60-day comment period, which ended on October 31,
2023. Four comments were received. These comments are summarized and
addressed by topic in the discussion below. VA makes two changes to the
rule based on the comments received, which are discussed in more detail
below. To the extent commenters raised concerns with their individual
situation or circumstances and provided their personal information, VA
reached out to them directly to address their concerns.
Public Comments
I. Length of Time for State Homes To Submit Requests for Retroactive
Payments
As mentioned above, in the proposed rule, VA proposed establishing
a waiver for certain eligibility requirements that otherwise would have
to be met for VA to pay a per diem payment to a State home for a
veteran receiving domiciliary care at that State home pursuant to the
new authority granted to VA in Public Law (Pub. L.) 116-315, Section
3007(a). VA proposed a framework in 38 CFR 51.42(c) for State homes to
request retroactive per diem payments under this authority, which
included a 30-day deadline after the effective date of the rule for
State homes to submit a written list of veterans' names for whom the
State homes request VA to consider for waiver under the new waiver
authority detailed in Sec. 51.51(b)(2).
Two commenters recommended VA extend the time allowed under
proposed Sec. 51.42(c)(1) for State homes to submit required
documentation to request retroactive per diem payments for domiciliary
care from 30 days to either 60 or 90 days. These commenters suggested
that the proposed time period of 30 calendar days is insufficient, and
more time is necessary. One commenter also noted that the time allowed
to submit completed VA Form 10-5588 under Sec. 51.42(c)(4) was unclear
in the proposed regulatory text and requested that State homes have 90
days to submit the requisite forms in addition to the list of names.
VA agrees with these commenters' recommendations to extend the time
period under proposed Sec. 51.42(c)(1) and (c)(4) and to provide
clarity as to how long the State homes have to submit the necessary
form. To ensure State homes have sufficient time to compile and submit
required documentation to request retroactive per diem payments for
domiciliary care, VA is revising the time period in proposed Sec.
51.42(c)(1) to 90 calendar days. Thus, as revised, Sec. 51.42(c)(1)
will state that within 90 calendar days of [effective date of final
rule] the State home provides VA a written list of veterans' names for
whom completed forms were received by VA on or after January 5, 2021,
and the State home requests that VA consider them for a waiver under
Sec. 51.51(b)(2). VA is also revising Sec. 51.42(c)(4) to include
language clarifying that within 90 calendar days of [effective date of
final rule] the State home submits to VA a completed VA Form 10-5588,
State Home Report and Statement of Federal Aid Claimed, for each month
that the State home provided domiciliary care to a veteran for whom the
home is requesting a waiver. The form would only cover the veterans not
originally included on the form when submitted previously for that
month. VA makes no other changes based on these comments.
II. Process for Waiver Under Proposed Sec. 51.51
One commenter expressed concerned that the Chief of Staff of the VA
medical center of jurisdiction (VAMC), or designee, would approve
waiver requests under Sec. 51.51(b)(1) even though VA would not be
providing any care to the veteran in the State home, and another
commenter asked for clarification on the waiver process. While VA does
not make any changes based on these comments, clarification of the
waiver process is provided below.
Although when veterans are admitted into a State home, the State
home is responsible for all primary care medical needs under Sec.
51.340, which means VA primary care teams no longer provide primary
care to veterans in State homes, VA will have sufficient information to
determine whether a waiver should be granted. The physician responsible
for providing primary care to veterans in State homes will evaluate the
veteran's physical condition on pages one and two of VA Form 10-10SH
and will then submit it to the VAMC. The VAMC will review the form and
determine whether the veteran is able to perform the seven activities
of daily living (ADL) based on the information provided. If the veteran
can perform not fewer than four ADL, the VA Chief of Staff or designee
(e.g., a VA clinician) may waive the requirements on VA Form 10-10SH
and approve domiciliary level of care if it is in the best interest of
the veteran, pursuant to the proposed amendments to Sec. 51.51.
One of the same commenters expressed a similar concern regarding
how the Chief of Staff of the VA medical center of jurisdiction, or
designee, would have sufficient information to make a finding that a
State home has the capability to provide the domiciliary care that the
veteran needs under proposed Sec. 51.51(b)(2) without the ability to
observe the facility. VA does not make any changes based on this
comment.
In subpart B of part 51, VA regulates the recognition and
certification process for State homes to obtain per diem payments from
VA. In order to be recognized for purposes of receiving per diem from
VA States must follow the
[[Page 86246]]
steps outlined in Sec. 51.20. State homes may receive per diem
payments for veterans only after requesting recognition and
certification by VA. Through the recognition and certification process
and the submission of the VA Form 10-10SH and 10-10EZ, in accordance
with Sec. 51.41(e) and Sec. 51.42, the Chief of Staff of the VA
medical center of jurisdiction, or designee, would have sufficient
information with which to make a finding that the State home has the
capability to provide domiciliary care for purposes of Sec.
51.51(b)(2) without ever having observed the State home facility.
III. Definition, Purpose and Scope, and Duration of Domiciliary Care
Another commenter requested VA amend the rule to provide a more
detailed description of domiciliary care and how it differs from other
types of residential care. In particular, the commenter requested
specificity on what factors are considered to determine eligibility for
domiciliary care, how long a veteran can stay in domiciliary care, what
factors are considered to determine discharge, and what follow-up
services are available after discharge. VA does not make any changes to
the rule based on this comment.
As to the definition of domiciliary care, the commenter expressed
confusion as to whether domiciliary care is a residential
rehabilitation and treatment program that provides a temporary home-
like environment or whether domiciliary care is the furnishing of a
home to a veteran, including shelter, food, clothing, and necessary
medical services. The commenter further suggested that VA either use
the term ``home'' or ``residential program'' throughout.
The term domiciliary care in Sec. 17.30(b) provides that it is the
furnishing of: (i) a temporary home to a veteran, embracing the
furnishing of shelter, food, clothing and other comforts of home,
including necessary medical services; or a day hospital program
consisting of intensive supervised rehabilitation and treatment
provided in a therapeutic residential setting for residents with mental
health or substance use disorders, and co-occurring medical or psycho
social needs such as homelessness and unemployment. This definition
encompasses the two models of domiciliary care VA is authorized to
provide to eligible veterans. The first model of care focuses on the
needs of eligible veterans who cannot live independently but do not
require admission to a nursing home, and the second model focuses on
the needs of eligible veterans who are receiving care through VA's
Mental Health Residential Rehabilitation Treatment Program (MH RRTP),
as referenced in Sec. 17.46 and Sec. 17.47. Therefore, the definition
provides for the two distinct models of domiciliary care that can be
provided to veterans. Thus, VA cannot exclusively use either the term
``home'' or the term ``residential program'' throughout the regulations
because VA must be able to describe both models of domiciliary care. VA
believes that this definition is clear, consistently applied throughout
the regulations, and demonstrates how this type of care would differ
from other types of residential care.
The commenter further suggested VA explain what the terms
``assistance'' and ``independently'' mean in the context of domiciliary
care. As to the term ``independence,'' VA proposed revising Sec.
17.47(b)(2) to explain how VA would determine eligibility for
domiciliary care based on a veteran having no adequate means of
support. This involves assessing a veteran's ability to achieve or
sustain ``independence'' in the community. As stated in the rule, being
able to achieve or sustain ``independence'' includes consideration of
the following non-exhaustive factors: (i) the impact of the severity of
the veteran's medical condition, disabilities, and symptoms on the
veteran's safety in the community; (ii) the impact of the severity of
the veteran's medical condition, disabilities, and symptoms on the
veteran's ability to provide self-care; (iii) the availability of
community or family support systems; (iv) the impact of the severity of
the veteran's medical condition, disabilities, and symptoms on the
veteran's ability to access and utilize community support systems; (v)
the risk of loss of housing in the community; (vi) the risk of loss of
the veteran's income; (vii) access to outpatient mental health and
substance use disorder care; and (viii) the current effectiveness of
any outpatient mental health and substance use disorder care provided
to the veteran. VA believes the list should be sufficiently clear for
veterans and other stakeholders to understand what independence means
and therefore does not believe any additional explanation or
clarification is required in the regulation.
As to the term ``assistance,'' VA proposed revising Sec. 51.51(b)
to explain what a veteran must be able to perform to be eligible for
domiciliary care in a State home, which includes several functions that
require little to no ``assistance,'' such as (i) daily ablutions, such
as brushing teeth, bathing, combing hair, and body eliminations,
without assistance; (ii) dressing themselves with a minimum of
assistance; (iii) proceeding to and return from the dining hall without
aid; and (iv) feeding themselves. VA intends the word assistance to
have the ordinary meaning of the word, such as the act of helping or
assisting someone. www.merriam-webster.com. Therefore, VA does not
believe any further clarification is necessary in the regulation.
The commenter further suggested that the regulation be amended to
provide additional information about eligibility and duration in
domiciliary care, to include factors that are used to determine
eligibility and discharge such as medical condition, functional status,
or housing situation. Eligibility criteria for domiciliary care is
provided in Sec. Sec. 17.46(b), 17.47(b)(2), 17.47(c), and 51.51.
Eligibility criteria found in Sec. Sec. 17.46 and 17.47 are applicable
to domiciliary care provided by VA in residential rehabilitation
treatment venues. The same eligibility criteria generally are reflected
in current Sec. 51.51 and are applicable to State home domiciliary
veterans for purposes of per diem payment eligibility. As explained in
the proposed rule, VA proposed revising the eligibility criteria in
current Sec. 17.46(b)(2) to be more consistent with the purpose of
domiciliary care, which is to provide treatment and rehabilitation to
veterans who VA determines have no adequate means of support. VA refers
the commenter to its discussion and the proposed regulatory text
beginning at 88 FR 60417. These regulations provide sufficient guidance
as to when domiciliary care would be appropriate and provided to a
veteran.
VA does not regulate more specific factors to qualify for
domiciliary care or how long veterans may stay in domiciliary care
because duration and level of care are clinical determinations to be
made by medical professionals on a case-by-case basis. Therefore, there
is not uniform criteria that could be included into a regulation; VA
needs to ensure that clinical providers have the flexibility to make a
decision based on clinical indications. Similarly, the decision to
discharge a veteran is also part of clinical decision-making process
and VA clinicians require the flexibility to assess the veteran and
make a clinical decision as to when discharge is appropriate. VA notes
that discharge typically occurs when a veteran has either completed
aspects of residential care, or when a veteran is no longer able to
engage in treatment. It is vital that VA providers have flexibility in
practice to move veterans between different levels
[[Page 86247]]
of care depending on the individual needs of each veteran, including
decisions to discharge a veteran.
The commenter further suggested that VA describe the follow-up
services available after discharge. Once a veteran is discharged from
domiciliary care, the veteran will have follow-up services available to
them, as appropriate, which may include those identified by the
commenter. However, the follow-up services available to a veteran
discharged from domiciliary care will vary based on the veteran's
clinical needs and their eligibility for such services. Therefore, VA
does not believe it is appropriate to include the types of services
that may or may not be available based on the individual veteran's
needs in the regulation.
IV. Supporting Data or Evidence
The same commenter opined that VA did not provide any data or
evidence, including studies or reports, to support the changes in the
proposed rule. VA does not make any changes based on this comment.
VA has provided sufficient rationale to support the changes it made
in the rule. Pursuant to section 1710(b)(2) of title 38, United States
Code (U.S.C.), VA proposed to expand eligibility for domiciliary care
by updating the criteria used to determine whether a veteran has no
adequate means of support, shifting the focus in the regulatory
language from the veterans' ability to pursue substantially gainful
employment to a broader consideration of the availability of a family
and/or community support system. 88 FR 60418. Like all other areas of
medical and psychosocial care that have evolved over the past several
decades, VA's approach to domiciliary care has also evolved to meet the
changing needs of veterans, including expanding eligibility to
domiciliary care. VA determined that basing eligibility for domiciliary
care on metrics like annual income or incapacity to earn a living did
not lead to patient-centered care. VA proposed these changes to
modernize the regulatory approach to eligibility for domiciliary care
to reflect the more patient-centered model veterans have grown to
expect from VA. In patient-centered care, an individual's specific
health needs and desired health outcomes are the driving force behind
all health care decisions. In the proposed rule, VA also proposed
allowing for the waiver of certain eligibility requirements for
eligibility for State home domiciliary care per diem and permitting
waivers of such requirements retroactive to January 5, 2021. Id.
Section 3007 of Public Law 116-315 required VA to modify 38 CFR
51.51(b) to provide VA the authority to waive certain requirements for
domiciliary care. 88 FR 60418-21. VA's full rationale for the changes
can be found in the proposed rule. See 88 FR 60417-60421.
This commenter also asserted that VA did not provide any estimates
or projections of how many veterans would be eligible for domiciliary
care under the proposed rule or how much it would cost VA to implement
the proposed rule. For detailed information regarding the projected
number of veterans in domiciliary care programs and costs associated
with such projections, please refer to the regulatory impact analysis
that accompanies both the proposed and final rules. VA makes no changes
to the rule based on this comment.
V. Comment Beyond the Scope of Rulemaking
A commenter was concerned that the proposed rule did not address
the potential challenges or limitations of providing domiciliary care
to homeless veterans or those at risk for homelessness and that the
rule did not consider the potential impact of the rule on other VA
programs that serve homeless veterans. Additionally, the commenter
requested clarification as to the goals domiciliary care programs may
have for veterans who are homeless or at risk of homelessness. This
commenter provided suggestions on potential modifications to program
operations, such as ensuring domiciliary care is integrated with other
VA programs and services, establishing guidelines and standards for
quality and safety, and enhancing socialization and community
integration. Specifically, the commenter suggested that the rule should
consider the impact of the proposed rule on other VA programs and
include the coordination and collaboration of these programs in the
rule. VA does not make any changes based on this comment. While VA
appreciates the commenter's concern, these suggestions are beyond the
scope of the rulemaking which was limited to amending discrete
eligibility requirements and implementing an authority to waive certain
eligibility criteria.
The commenter also expressed concern that an implementation plan or
timeline were not included in the proposed rule, including when the
rule would take effect and how long it would be in effect. VA does not
make any changes to the rule based on this comment. This concern is
better addressed in sub-regulatory and administrative guidance. VA
notes that the changes made to parts 17 and 51 of 38 CFR by this final
rule will become effective 30 days after the final rule's publication
in the Federal Register. It will remain in effect indefinitely.
This commenter also asserted that the proposed rule did not
describe how VA would monitor or evaluate the outcomes or impacts of
the rule on veterans. VA does not make any changes based on this
comment. This concern similarly is better addressed in sub-regulatory
and administrative guidance. However, VA conducts monitoring and
evaluation of its domiciliary care programs and will continue to do so
after this rule is final and effective.
Executive Orders 12866, 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, when regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, and other advantages;
distributive impacts; and equity). Executive Order 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rulemaking is not a significant regulatory action under Executive Order
12866, as amended by Executive Order 14094. The Regulatory Impact
Analysis associated with this rulemaking can be found as a supporting
document at www.regulations.gov.
Regulatory Flexibility Act (RFA)
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). The factual basis for this certification is that this rule would
directly affect only individuals who are veterans applying for
domiciliary care as well as States operating State homes and would not
directly affect small entities. Therefore, pursuant to 5 U.S.C.
[[Page 86248]]
605(b), the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act (PRA)
This final rule includes a provision constituting a revision to a
current/valid collection of information under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3521). The revision also requires approval
by the Office of Management and Budget (OMB). Accordingly, under 44
U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to
OMB for review and approval. VA received no comments on the revised
collection of information.
OMB has received the revised collection of information. OMB's
receipt of the revised collection of information is not an approval to
conduct or sponsor an information collection under the Paperwork
Reduction Act of 1995. In accordance with 5 CFR 1320, the revised
collection of information associated with this rulemaking is not
approved by OMB at this time. OMB's approval of the revised collection
of information will occur within 30 days after the Final rulemaking
publishes. If OMB does not approve the new collection of information as
requested, VA will immediately remove the provision containing a new
collection of information or take such other action as is directed by
OMB.
The revised collection of information contained in 38 CFR 51.42(c)
is described immediately following this paragraph, under its respective
title.
Title: List of Veteran Names for Claim Reconsideration.
OMB Control No: 2900-0160.
CFR Provision: 38 CFR 51.42(c).
Summary of collection of information: The collection of
information in 38 CFR 51.42(c) would allow State homes to submit a list
of veteran names whose completed forms were received by VA on or after
January 5, 2021, but VA subsequently denied the State home's request
for payment for the care of these veterans pursuant to current Sec.
51.51(b), to VA for consideration of a waiver under Sec. 51.51(b)(2).
This is a time limited opportunity--the list of names must be received
within 90 days of the effective date of the rule.
Description of need for information and proposed use of
information: The information will be used by VA to conduct
retrospective reviews of denied applications and allow VA to process
applicable retroactive payments in a timely manner.
Description of likely respondents: State home
administrators and State homes that have admitted veterans in reliance
on the authority granted by Public Law 116-315, section 3007(a) and
that want these veterans considered for a waiver under Sec.
51.51(b)(2).
Estimated number of respondents: Two.
Estimated frequency of responses: Once.
Estimated average burden per response: 90 minutes.
Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
3 burden hours. Using the annual number of respondents 2, VA estimates
a total annual reporting and recordkeeping burden of 3 hours for
respondents.
Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $177.21. Using VA's average annual
number of respondents, VA estimates the total information collection
burden cost to be $177.21 per year *. (3 burden hours for respondents x
$59.07 per hour).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) mean hourly wage for hourly wage
for ``General and Operations Managers'' of $59.07 per hour. This
information is available at https://www.bls.gov/oes/current/oes_nat.htm#13-0000.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), the Office of Information and Regulatory Affairs
designated this rule as not satisfying the criteria under 5 U.S.C.
804(2).
List of Subjects
38 CFR Part 17
Administrative practice and procedure, Claims, Domiciliary care,
Government contracts, Health care, Health facilities, Mental health
programs, Reporting and recordkeeping requirements, Veterans.
38 CFR Part 51
Administrative practice and procedure, Claims, Domiciliary care,
Government contracts, Health care, Health facilities, Mental health
programs, Reporting and recordkeeping requirements, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on October 21, 2024, and authorized the undersigned to
sign and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Consuela Benjamin,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR parts 17 and 51 as set forth below:
PART 17--MEDICAL
0
1. The authority citation for part 17 is amended by adding an entry in
numerical order for Sec. 17.47 to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Section 17.47 is also issued under 38 U.S.C. 1701, 1710, 1721,
1722, 1729, 3104(a)(9), 7333, Pub. L. 99-272; 42 U.S.C. 1396 et seq.
* * * * *
Sec. 17.43 [Amended]
0
2. Amend Sec. 17.43 by removing the words ``or domiciliary'' in the
section heading and introductory text.
Sec. 17.46 [Amended]
0
3. Amend Sec. 17.46 by removing paragraph (b)(2)(vii), and
redesignating paragraph (b)(2)(viii) as paragraph (b)(2)(vii).
0
4. Amend Sec. 17.47 by:
0
a. Removing the authority citations immediately following paragraphs
(b)(1), (d)(1)(i), (d)(1)(iii), (d)(2), (d)(3), (d)(4), (d)(5), (e)(1),
(e)(2), (f), (g)(1)(ii), (g)(2)(iv), (i)(2)(vii), (j), and (k);
0
b. Revising paragraph (b)(2); and
0
c. Removing and reserving paragraph (c). The revisions read as follows:
Sec. 17.47 Considerations applicable in determining eligibility for
hospital care, medical services, nursing home care, or domiciliary
care.
* * * * *
(b) * * *
[[Page 86249]]
(2) For purposes of determining eligibility for domiciliary care
under Sec. 17.46(b)(2) of this part, the phrase no adequate means of
support refers to an applicant for or recipient of domiciliary care
whose annual income exceeds the maximum annual rate of pension for a
veteran in receipt of regular aid and attendance, as defined in 38
U.S.C. 1503, whose deficits in health and/or functional status may
render the veteran incapable of achieving or sustaining independence in
the community as determined by the Chief of Staff of the VA medical
center, or designee. In assessing a veteran's ability to achieve or
sustain independence in the community, the Chief of Staff or designee
will make a determination of eligibility for domiciliary care based on
objective evidence, considering factors including, but not limited to:
(i) The impact of the severity of the veteran's medical condition,
disabilities, and symptoms on the veteran's safety in the community;
(ii) The impact of the severity of the veteran's medical condition,
disabilities, and symptoms on the veteran's ability to provide self-
care;
(iii) The availability of community or family support systems;
(iv) The impact of the severity of the veteran's medical condition,
disabilities, and symptoms on the veteran's ability to access and
utilize community support systems;
(v) The risk of loss of housing in the community;
(vi) The risk of loss of the veteran's income;
(vii) Access to outpatient mental health and substance use disorder
care; and
(viii) The current effectiveness of any outpatient mental health
and substance use disorder care provided to the veteran.
(c) [Reserved]
* * * * *
PART 51--PER DIEM FOR NURSING HOME, DOMICILIARY, OR ADULT DAY
HEALTH CARE OF VETERANS IN STATE HOMES
0
5. The authority citation for part 51 is amended by revising Sec.
51.42, and adding an entry in numerical order for Sec. 51.51 to read
as follows:
Authority: 38 U.S.C. 101, 501, 1710, 1720, 1741-1743, 1745, and
as follows.
* * * * *
Section 51.42 also issued under 38 U.S.C. 510, 1744, and Pub. L.
116-315 section 3007.
* * * * *
Section 51.51 also issued under Pub. L. 116-315 section 3007.
* * * * *
0
6. Amend Sec. 51.42 by adding paragraph (c) to read as follows:
Sec. 51.42 Payment procedures.
* * * * *
(c) Retroactive payments. VA will make per diem payments under this
part retroactive to the date specified by paragraph (b)(3) of this
section, or January 5, 2021, whichever date is later, if all the
following are met:
(1) Within 90 calendar days of [EFFECTIVE DATE OF FINAL RULE] the
State home provides VA a written list of veterans' names for whom
completed forms were received by VA on or after January 5, 2021, and
the State home requests that VA consider them for a waiver under Sec.
51.51(b)(2);
(2) With respect to the veterans on the written list under
paragraph (c)(1) of this section, VA denied the State's request for per
diem for the veterans when their forms were originally submitted and
the denial was solely because the veteran did not meet the requirements
under 38 CFR 51.51(b) (2021);
(3) Upon VA review, the veteran would have received a waiver under
Sec. 51.51(b)(2) if that paragraph had been in effect when the request
for per diem was originally submitted; and
(4) Within 90 calendar days of [EFFECTIVE DATE OF FINAL RULE] the
State home submits to VA a completed VA Form 10-5588, State Home Report
and Statement of Federal Aid Claimed, for each month that the State
home provided domiciliary care to a veteran for whom the home is
requesting a waiver. The form would only cover the veterans not
originally included on the form when submitted previously for that
month.
0
7. Amend Sec. 51.51 by revising paragraphs (a)(2) and (b) to read as
follows:
Sec. 51.51 Eligible veterans--domiciliary care.
(a) * * *
* * * * *
(2) A veteran who VA determines has no adequate means of support.
When an applicant's annual income exceeds the rate of pension described
in paragraph (a)(1) of this section, VA will determine if the applicant
has no adequate means of support. This determination will be made
through an assessment of the veteran's deficits in health or functional
status that may render the veteran incapable of achieving or sustaining
independence in the community as determined by the Chief of Staff of
the VA medical center of jurisdiction, or designee. Assessment of
whether the veteran has no adequate means of support will be based on
objective evidence that considers factors that are inclusive of but not
limited to:
(i) The impact of the severity of the veteran's medical condition,
disabilities, and symptoms on the veteran's safety in the community;
(ii) The impact of the severity of the veteran's medical condition,
disabilities, and symptoms on the veteran's ability to provide self-
care;
(iii) The availability of community or family support systems;
(iv) The impact of the severity of the veteran's medical condition,
disabilities, and symptoms on the veteran's ability to access and
utilize community support systems;
(v) The risk of loss of housing in the community;
(vi) The risk of loss of the veteran's income;
(vii) Access to outpatient mental health and substance use disorder
care; and
(viii) The current effectiveness of any outpatient mental health
and substance use disorder care provided to the veteran.
(b)(1) For purposes of this section, the eligible veteran must be
able to perform the following:
(i) Daily ablutions, such as brushing teeth, bathing, combing hair,
and body eliminations, without assistance.
(ii) Dress himself or herself with a minimum of assistance.
(iii) Proceed to and return from the dining hall without aid.
(iv) Feed himself or herself.
(v) Secure medical attention on an ambulatory basis or by use of a
personally propelled wheelchair.
(vi) Have voluntary control over body eliminations or have control
by use of an appropriate prosthesis.
(vii) Make rational and competent decisions as to the veteran's
desire to remain in or leave the State home; or, if the veteran lacks
the general capacity to make this residential care placement decision,
as defined by State law, then the veteran's legal representative
designated in accordance with State law, is authorized to make this
decision on behalf of the veteran.
(2) The Chief of Staff of the VA medical center of jurisdiction, or
designee, may waive the requirements in paragraph (b)(1) of this
section for purposes of payment of per diem for domiciliary care in a
State home on or after January 5, 2021, if the veteran is able to
perform not fewer than four of the requirements set forth in such
paragraph; or such waiver would be, based on a clinical determination,
in the best interest of the veteran because receipt of domiciliary care
in the
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particular State home would likely be beneficial to the veteran. This
clinical determination must consider whether receiving domiciliary care
in the State home would significantly enhance the veteran's ability to
live safely, would support the veteran's potential progress in
rehabilitation, if such potential exists, and would create an
environment that supports the health and well-being of the veteran. In
granting a waiver of paragraph (b)(1) of this section, the Chief of
Staff of the VA medical center of jurisdiction, or designee, must make
a finding that the State home has the capability to provide the
domiciliary care that the veteran needs.
Sec. 51.300 [Amended]
0
8. Amend Sec. 51.300 by removing and reserving paragraph (b).
[FR Doc. 2024-24912 Filed 10-29-24; 8:45 am]
BILLING CODE 8320-01-P