Document Headings

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###### Department of Veterans Affairs

          - 38 CFR Part 51
          - RIN 2900-AN96

# AGENCY:

Department of Veterans Affairs.

# ACTION:

Final rule.

# SUMMARY:

This document amends Department of Veterans Affairs (VA) regulations concerning the payment of per diem to a State for providing nursing home care to eligible veterans. The amendments remove a restriction on VA's payment of per diem, which required all non-veteran residents of a State home to be spouses of veterans, or parents of veterans all of whose children died while serving in the Armed Forces of the United States. Under this final rule, non-veteran residents of the State home must be spouses of veterans, or parents of veterans any of whose children died while serving in the Armed Forces.

# DATES:

*Effective Date:*                         This final rule is effective August 22, 2011.                    

# FOR FURTHER INFORMATION CONTACT:

Nancy Quest, Chief, State Veterans Home Clinical & Survey Oversight, Geriatrics and Extended Care Services (114), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-6064. (This is not a toll free number.)

# SUPPLEMENTARY INFORMATION:

Under current 38 CFR 51.210(d), VA pays per diem to a State for providing nursing home care to eligible veterans in a State home if, among other things, all non-veteran residents of the home are spouses of veterans or parents of veterans all of whose children died while serving in the Armed Forces of the United States. In Public Law 111-246, Congress mandated that VA administer § 51.210(d) to permit a State home to provide services to “a non-veteran any of whose children died while serving in the Armed Forces.” This final rule implements Public Law 111-246 by amending § 51.210(d) to incorporate the language mandated by Congress. As amended, § 51.210(d) allows States to admit parents, “any” of whose children died while serving in the Armed Forces, to State homes without affecting VA per diem payments to States for care provided to veterans.

## Effect of Rulemaking

Title 38, Code of Federal Regulations, as revised by this final rule, represents VA's implementation of its exclusive legal authority on this subject. Other than future amendments to this regulation or governing statute or public law, no contrary rules or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

## Administrative Procedure Act

These amendments incorporate a specific program requirement mandated by Congress. Accordingly, this rule is exempt from the prior notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553.

## 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 regulatory action as a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, if it is a 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                           ( print page 52275)                        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.                

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

## 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 expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule would have no such effect on State, local, or Tribal governments, or on the private sector.

## Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

## Regulatory Flexibility Act

The initial and final regulatory flexibility analyses requirements of section 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs 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. The State homes referenced in this final rule are State government entities under the control of State governments. All State homes are owned, operated and managed by State governments except for a small number that are operated by entities under contract with State governments. These contractors are not small entities. Therefore, this final rule is also exempt, pursuant to 5 U.S.C. 605(b), 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 64.005, Grants to States for Construction of State Home Facilities; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019.

## 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 July 7, 2011, for publication.                

# List of Subjects in 38 CFR Part 51

      - Administrative practice and procedure
      - Claims
      - Government contracts
      - Grant programs-health
      - Grant programs-veterans
      - Health care
      - Health facilities
      - Health professions
      - Health records
      - Mental health programs
      - Nursing homes
      - Reporting and recordkeeping requirements
      - Travel and transportation expenses
      - Veterans

Dated: August 16, 2011.

Robert C. McFetridge,

Director of Regulation Policy and Management, Office of the General Counsel, Department of Veterans Affairs.

For the reasons stated in the preamble, VA amends 38 CFR part 51 as follows:

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

1. The authority citation for part 51 continues to read as follows: 

Authority:38 U.S.C. 101, 501, 1710, 1741-1743, 1745.

2. Amend § 51.210 by: 

a. In paragraph (d), removing “or parents all of whose children died while serving in the armed forces” and adding, in its place, “, or parents any of whose children died while serving in the Armed Forces”. 

b. Revising the authority citation at the end of the section. 

The revision reads as follows:

§ 51.210 

* * * * *
38 U.S.C. 10150117101741-17438135Pub. L. 111-246

[FR Doc. 2011-21292 Filed 8-19-11; 8:45 am]

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