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[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Proposed Rules]
[Pages 16354-16358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6737]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17 and 51

RIN 2900-AN63

Per Diem Payments for the Care Provided to Eligible Veterans 
Evacuated From a State Home as a Result of an Emergency

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations concerning per diem payments to States to permit

[[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 Sec.  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 Sec.  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

[[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 Sec.  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 Sec.  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 Sec.  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.

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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 Sec.  17.58 to read as follows:

Sec.  17.58  Evacuation of community nursing homes.

    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).

(Authority: 38 U.S.C. 501, 1720)

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 Sec.  51.59 to read as follows:

Sec.  51.59  Authority to continue payment of per diem when veterans 
are relocated due to emergency.

    (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

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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.

(Authority 38 U.S.C. 501, 1720, 1742)

[FR Doc. 2011-6737 Filed 3-22-11; 8:45 am]
BILLING CODE 8320-01-P
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