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###### Department of Veterans Affairs

          - 38 CFR Parts 17 and 51
          - RIN 2900-AN63

# AGENCY:

Department of Veterans Affairs.

# ACTION:

Proposed rule.

# SUMMARY:

                        The Department of Veterans Affairs (VA) proposes to amend its regulations concerning per diem payments to States to permit                               ( print page 16355)                            continuation of such payments in some situations for veterans who have been evacuated from a State home as a result of an emergency. Per diem is the daily rate paid by VA to a State for providing a specified level of care to eligible veterans in a facility that is officially recognized and certified by VA. This regulation would authorize VA to continue to pay per diem when veterans for whom VA is paying per diem are evacuated as a result of an emergency from a State home to a facility that is not recognized by VA as a State home. The regulation would require, in order for per diem payments to continue while the veteran is relocated due to an emergency, that an appropriate VA official determine whether an emergency exists and whether the facility to which veterans may be evacuated (evacuation facility) complies with certain minimum standards. This regulation would establish the minimum standards that facilities to which veterans are evacuated must meet in order for States to continue receiving per diem for relocated veterans. These standards would apply also to evacuation facilities when veterans are evacuated from contract nursing homes.                    

# DATES:

Comments must be received by VA on or before May 23, 2011.

# ADDRESSES:

                        Written comments may be submitted through                         *http://www.Regulations.gov;*                         by mail or hand-delivery to the Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AN63 Per Diem Payments for the Care Provided to Eligible Veterans Evacuated from a State Home as a Result of an Emergency.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please call (202) 273-9515 for an appointment (this is not a toll-free number). In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at                         *http://www.Regulations.gov.*

# FOR FURTHER INFORMATION CONTACT:

Theresa A. Hayes, MPH, RN, Office of Patient Care Services (114), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-6771 (this is not a toll-free number).

# SUPPLEMENTARY INFORMATION:

Pursuant to 38 U.S.C. 1741-1745, VA provides per diem payments to reimburse States for each eligible veteran receiving nursing home care, domiciliary care, and adult day health care in State home facilities that are recognized and certified by VA. Section 1742 specifically provides that “[n]o payment or grant may be made to any home * * * unless such home is determined by the Secretary to meet such standards as the Secretary shall prescribe, which standards with respect to nursing home care shall be no less stringent than those prescribed pursuant to section 1720(b) of this title.” The statutes do not address circumstances in which veterans may need to be evacuated temporarily to another facility due to an emergency.

VA implemented its authority to provide per diem payments to States in 38 CFR 17.190-17.200 and parts 51, 52, and 58. However, current regulations do not address VA's authority to continue per diem payments to a State for a veteran during an emergency evacuation of the veteran to a temporary or substitute State home facility where the State continues to provide care. We propose to amend these regulations to clarify our interpretation of VA's authority to continue per diem payments during such evacuations and to establish certain minimum standards for temporary or substitute facilities used by States in these situations.

Certain recent emergencies have established the need to address emergency situations. VA believes that States should continue to receive per diem payments when they move veterans out of the State home during an emergency but continue to provide or pay for the care.

This proposed rule would provide that, when a State temporarily evacuates residents of a State home and relocates them to a non-recognized facility due to an emergency that would make it unsafe for them to remain in the recognized State home facility, VA may continue to make per diem payments to the State for the evacuated residents. This regulation would provide for the continuation of per diem payments for care provided to a veteran in an evacuation facility that is not recognized by VA as a State home if the director of the VA medical center (VAMC) of jurisdiction determines, or the director of the Veterans Integrated Service Network (VISN) in which the State home is located (if the VAMC director is not capable of doing so) determines, that an emergency exists and that the evacuation facility meets certain minimum standards.

Implementation of VA's authority to continue payment of per diem in an emergency would be set forth in a new section, proposed § 51.59. We note that we are currently considering reorganizing the regulations governing the State home per diem program and, specifically, are considering revising part 51 to include regulations governing domiciliary care. We have carefully crafted proposed § 51.59 to fit within such a possible reorganization or revision, as well as to fit within the current organization of part 51. The language of the proposed rule would apply for per diem payments for veterans receiving domiciliary care as well as nursing home care. We also note that the minimum standards in the proposed rule for evacuation facilities would also be applicable when veterans are evacuated from contract nursing homes. This is to ensure compliance with the requirement under 38 U.S.C. 1742(a) that the standards for State homes must be no less stringent than the standards for facilities with whom VA contracts to provide nursing home care under section 1720. We would place the rule in the body of regulations governing per diem because it authorizes the continuing payment of per diem. We would also, for purposes of clarity and organization, add a reference to the proposed rule in the part 17 regulations that govern community nursing home care facilities.

                    We propose to define “emergency” in proposed paragraph (a). The definition would contain three requirements. First, an emergency would “mean[ ] an occasion or instance where * * * [i]t would be unsafe for veterans receiving care at a State home facility to remain in that facility”. This criterion is obvious and necessary, because if the facility is not unsafe then there is no reason to evacuate patients. The second criterion would be that “[t]he State is not, or believes that it will not be, able to provide care in the State home on a temporary or long-term basis for any or all of its veteran residents due to a situation involving the State home”. We would make the requirement specific to “a situation involving the State home” in order to distinguish it from a situation involving a particular patient, which we do not believe should require evacuation. We would also clarify that the rule does not apply to “a situation where a particular veteran's medical condition requires that the veteran be transferred to another facility, such as for a period of hospitalization.” Third, we would require that “[t]he State determine[ ] that the veterans must be evacuated to another facility or facilities.” We believe that the State, and not VA, will be in the best position to make this initial determination concerning the State facility. This is a                           ( print page 16356)                        broad definition, which would cover the temporary relocation of veterans in many situations, including the case of a natural disaster or in which the integrity of part or all of the facility is compromised.                

Proposed § 51.59(b) would provide that “VA will continue to pay per diem for a period not to exceed 30 days for any eligible veteran who resided in a State home, and for whom VA was paying per diem, if such veteran is evacuated during an emergency into a facility other than a VA facility if the State is responsible for providing or paying for the care.” The regulation would require discontinuance of per diem payments after 30 days if the veteran remains in the evacuation facility unless “the official who approved the emergency response under paragraph (e) of this section determines that it is not reasonably possible to return the veteran to a State home within the 30-day period, in which case such official will approve additional period(s) in accordance with this section.” The additional period(s) would be for no more than 30 days per period and would be approved in accordance with proposed § 51.59(b). It is important that the veterans for whom we provide per diem payments be returned to a State home as soon as possible, and this provision will help facilitate this result. Finally, we would require that the evacuation facility meet certain minimum standards established in proposed paragraph (c)(1) as a condition of payment and would enforce this requirement through retroactive recovery of any payments made for care provided to a veteran in a substandard facility.

Although it may be critical to enable States to continue to receive per diem payments during an emergency relocation, it is also important that VA ensure that the facilities in which these veterans are cared for meet certain minimum standards for the welfare of the veterans. Therefore, in proposed paragraph (c)(1), we propose standards applicable to evacuation facilities, requiring that “[e]ach veteran who is evacuated must be placed in a facility that, at a minimum, will meet the needs for food, shelter, toileting, and essential medical care of that veteran.” We believe that these requirements are essential. Although 38 U.S.C. 1742(a) provides that “[n]o payment * * * may be made to any [State] home * * * unless such home is determined by the Secretary to meet such standards as the Secretary [has] prescribe[d]” at 38 CFR part 51, subpart D, and part 52, subpart D, the minimum standards under proposed § 51.59(c)(1) should ensure that our veterans receive what is necessary despite the emergency and evacuation, without imposing requirements that may be impossible to meet during a crisis. Although it may not be feasible for VA to physically inspect such sites before veterans are evacuated, we would enforce the minimum-standard requirement by enabling VA to stop payment of per diem and/or recover all payments made while a veteran was placed at a site that does not meet the minimum standards. These standards would also apply when veterans are evacuated from facilities that are contracted for nursing home care under 38 U.S.C. 1720, for the reasons discussed above. As a matter of policy, it makes sense to permit a lower facility standard in the event of an emergency evacuation of a contract nursing home for the same reasons that it makes sense to allow the lower standard in the event of the emergency evacuation of a State home.

Proposed paragraph (c)(2) would identify certain facilities that may meet the minimum standards for facilities that would provide care for veterans evacuated from State home nursing homes. It would also provide in a note that, if none of the identified facilities under paragraph (c)(2) are available, other facilities may be used on a temporary basis if they meet the minimum standards under proposed paragraph (c)(1). Proposed paragraph (c)(3) would identify facilities that may meet minimum VA standards for purposes of providing care to veterans evacuated from a State home domiciliary. We note that the authority to continue payments for up to 30 days would be contingent upon proposed paragraph (e), which would require the director of the VAMC, or the director of the VISN in which the State home is located (if the VAMC director is not accessible), to determine that an emergency exists and that the evacuation facility meets the minimum standards set forth in proposed paragraph (c)(1). The director could thus disapprove continuation of VA per diem if the evacuation facility failed to meet the minimum standards.

We delegate this decision-making responsibility to the local authority, rather than to one, nationally centralized individual because we believe that local personnel will be better qualified to assess a regional need and determine whether an emergency exists and whether the evacuation facility meets the minimum standards set forth in proposed paragraph (c)(1).

Proposed paragraph (d) would make this section generally applicable to situations in which veterans in an adult day health care facility are evacuated due to an emergency. The standards and procedures are similar, but because adult day health care facilities are non-residential, the rules can be somewhat simpler and should be organized in a separate paragraph.

## 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 an 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 given year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

## Paperwork Reduction Act

The proposed rule does not contain any collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

## Executive Order 12866

Executive order 12866 directs agencies to assess all 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, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

                    VA has examined the economic, interagency, budgetary, legal, and policy implications of this proposed rule and has concluded that it does not constitute a significant regulatory action under the Executive Order.                          ( print page 16357)    

## Regulatory Flexibility Act

The Secretary hereby certifies that this proposed regulatory amendment would 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. This proposed amendment would not cause a significant economic impact, therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

## Catalog of Federal Domestic Assistance Numbers

The Catalog of Federal Domestic Assistance numbers and titles are 64.009 Veterans Medical Care Benefits, 64.010 Veterans Nursing Home Care, and 64.011 Veterans Dental Care.

## Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document 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. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on March 7, 2011, for publication.

# 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
      - Government programs—veterans
      - Health care
      - Health facilities
      - Health professions
      - Health records
      - Homeless
      - Medical and dental schools
      - Medical devices
      - Medical research
      - Mental health programs
      - Nursing homes
      - Reporting and recordkeeping requirements
      - Scholarships and fellowships
      - Travel and transportation expenses
      - Veterans

Dated: March 17, 2011.

Robert C. McFetridge,

Director, Regulations Policy and Management, Department of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR parts 17 and 51 are proposed to be amended as follows:

# PART 17—MEDICAL

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

Authority: 38 U.S.C. 501, and as noted in specific sections.

2. Add § 17.58 to read as follows:

§ 17.58 

When veterans are evacuated from a community nursing home as the result of an emergency, they may be relocated to another facility that meets certain minimum standards, as set forth in 38 CFR 51.59(c)(1).
38 U.S.C. 5011720

# PART 51—PER DIEM FOR NURSING HOME CARE OF VETERANS IN STATE HOMES

3. The authority citation for part 51 is revised to read as follows:

Authority:38 U.S.C. 101, 501, 1710, 1720, 1741-1743; and as stated in specific sections.

4. Add § 51.59 to read as follows:

§ 51.59 

                            (a)                             *Definition of emergency.*                             For the purposes of this section, emergency means an occasion or instance where all of the following are true:                        

(1) It would be unsafe for veterans receiving care at a State home facility to remain in that facility.

(2) The State is not, or believes that it will not be, able to provide care in the State home on a temporary or long-term basis for any or all of its veteran residents due to a situation involving the State home, and not due to a situation where a particular veteran's medical condition requires that the veteran be transferred to another facility, such as for a period of hospitalization.

(3) The State determines that the veterans must be evacuated to another facility or facilities.

                            (b)                             *General authority to pay per diem during relocation period.*                             Notwithstanding any other provision of this part, VA will continue to pay per diem for a period not to exceed 30 days for any eligible veteran who resided in a State home, and for whom VA was paying per diem, if such veteran is evacuated during an emergency into a facility other than a VA facility if the State is responsible for providing or paying for the care. VA will not pay per diem payments under this section for more than 30 days of care provided in the evacuation facility, unless the official who approved the emergency response under paragraph (e) of this section determines that it is not reasonably possible to return the veteran to a State home within the 30-day period, in which case such official will approve additional period(s) of no more than 30 days in accordance with this section. VA will not provide per diem if VA determines that a veteran is or has been placed in a facility that does not meet the standards set forth in paragraph (c)(1) of this section, and VA may recover all per diem payments made for the care of the veteran in that facility.                        

                            (c)                             *Selection of evacuation facilities.*                             The following standards and procedures apply to the selection of an evacuation facility in order for VA to continue to pay per diem during an emergency; these standards and procedures also apply to evacuation facilities when veterans are evacuated from a nursing home care facility in which care is being provided pursuant to a contract under 38 U.S.C. 1720.                        

(1) Each veteran who is evacuated must be placed in a facility that, at a minimum, will meet the needs for food, shelter, toileting, and essential medical care of that veteran.

(2) For veterans evacuated from nursing homes, the following types of facilities may meet the standards under paragraph (c)(1) of this section:

(i) VA Community Living Centers;

(ii) VA contract nursing homes;

(iii) Centers for Medicare and Medicaid certified facilities; and

(iv) Licensed nursing homes.

# Note to paragraph (c)(2): 

 If none of the above options are available, veterans may be evacuated temporarily to other facilities that meet the standards under paragraph (c)(1) of this section.

(3) For veterans evacuated from domiciliaries, the following types of facilities may meet the standards in paragraph (c)(1) of this section:

(i) Emergency evacuation facilities identified by the city or state;

(ii) Assisted living facilities; and

(iii) Hotels.

                            (d)                             *Applicability to adult day health care facilities.*                             Notwithstanding any other provision of this part, VA will continue to pay per diem for a period not to exceed 30 days for any eligible veteran who was receiving adult day health care, and for whom VA was paying per diem, if the adult day health care facility becomes temporarily unavailable due to an emergency. Approval of a temporary facility for such veteran is subject to paragraph (e) of this section. If after 30 days the veteran cannot return to the original adult day health care facility, VA will discontinue per diem payments unless the official who approved the emergency response under paragraph (e) of this section determines that it is not reasonably possible to provide care at the original facility or to relocate an eligible veteran to a new facility, in which case such official will approve                                   ( print page 16358)                                additional period(s) of no more than 30 days in accordance with this section. VA will not provide per diem if VA determines that a veteran was provided adult day health care in a facility that does not meet the standards set forth in paragraph (c)(1) of this section, and VA may recover all per diem payments made for the care of the veteran in that facility.                        

                            (e)                             *Approval of response.*                             Per diem payments will not be made under this section unless and until the director of the VAMC determines, or the director of the VISN in which the State home is located (if the VAMC director is not capable of doing so) determines, that an emergency exists and that the evacuation facility meets VA standards set forth in paragraph (c)(1) of this section.                        
38 U.S.C. 50117201742

[FR Doc. 2011-6737 Filed 3-22-11; 8:45 am]

BILLING CODE 8320-01-P