Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 60417 

■ d. In paragraph (c), removing 

‘‘electronic works received under 

§ 202.4(e) and § 202.19’’ and adding in 

its place ‘‘electronic works received 

pursuant to paragraph (a) of this 

section’’. 

Dated: August 24, 2023. 

Suzanne V. Wilson, 

General Counsel and Associate Register of 

Copyrights. 

[FR Doc. 2023–18664 Filed 8–31–23; 8:45 am] 

BILLING CODE 1410–30–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 17 and 51 

RIN 2900–AR61 

Determining Eligibility for Domiciliary 

Care 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to amend its 

medical regulations and State Veterans 

Home (State home) regulations. VA 

proposes to update the criteria used by 

VA in determining whether a veteran 

has no adequate means of support 

relative to eligibility for domiciliary 

care, and to shift 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. In addition, we propose 

amending our State home regulations to 

implement VA’s authority to waive 

certain eligibility requirements for 

receipt of State home domiciliary care 

per diem. 

DATES: Comments must be received by 

VA on or before October 31, 2023. 

ADDRESSES: Comments must be 

submitted through www.regulations.gov. 

Except as provided below, comments 

received before the close of the 

comment period will be available at 

www.regulations.gov for public viewing, 

inspection, or copying, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post the comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: http://

www.regulations.gov. VA will not post 

on Regulations.gov public comments 

that make threats to individuals or 

institutions or suggest that the 

commenter will take actions to harm an 

individual. VA encourages individuals 

not to submit duplicative comments. We 

will post acceptable comments from 

multiple unique commenters even if the 

content is identical or nearly identical 

to other comments. Any public 

comment received after the comment 

period’s closing date is considered late 

and will not be considered in the final 

rulemaking. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Burden, Ph.D., National Mental 

Health Director, Mental Health 

Residential Rehabilitation and 

Treatment Programs (11MHSP), 

Veterans Health Administration, 

Department of Veterans Affairs, 810 

Vermont Avenue NW, Washington, DC 

20420; (540) 819–1190 (This is not a 

toll-free number.) 

SUPPLEMENTARY INFORMATION: Section 

1710(b)(2) of title 38, United States Code 

(U.S.C.) authorizes VA to provide 

needed domiciliary care to veterans 

whose annual income does not exceed 

the applicable maximum annual rate of 

VA pension and to veterans VA 

determines have no adequate means of 

support. Historically, domiciliary care 

in VA has primarily been focused on 

delivering care to older residents who 

cannot live independently but who do 

not require admission to a nursing 

home, although the scope of domiciliary 

care provided by VA has expanded over 

the decades to meet the changing needs 

of veterans. 

The term domiciliary care is defined 

in § 17.30(b) of title 38, Code of Federal 

Regulations (CFR), which reflects the 

two alternative models of domiciliary 

care VA is authorized to provide to 

eligible veterans. Domiciliary care is 

defined at § 17.30(b)(1)(i) to mean the 

furnishing of a temporary home to a 

veteran, embracing the furnishing of 

shelter, food, clothing, and other 

comforts of home, including necessary 

medical services. This model focuses on 

the needs of veterans eligible for VA 

domiciliary care who cannot live 

independently but who do not require 

admission to a nursing home. While VA 

retains the authority to directly provide 

domiciliary care under this model, it 

currently pays a per diem to State 

homes to provide this model of 

domiciliary care to eligible veterans. 

The statutory authority for the payment 

program is set forth at 38 U.S.C. 1741– 

43. VA has published regulations 

governing this program at 38 CFR part 

51. VA regulates eligibility for VA 

payment of State home domiciliary care 

per diem at § 51.51. 

The second model for providing 

domiciliary care is defined in 

§ 17.30(b)(1)(ii). There, domiciliary care 

is defined to mean the furnishing of 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 

psychosocial needs such as 

homelessness and unemployment. This 

model focuses on the needs of veterans 

eligible for domiciliary care and who are 

receiving care through VA’s Mental 

Health Residential Rehabilitation 

Treatment Program, including 

Domiciliary Care for Homeless Veterans 

Program; General Domiciliary; 

Domiciliary Substance Use Programs; 

and Domiciliary Post-Traumatic Stress 

Disorder Programs. Today, a VA 

domiciliary consists of intensive 

supervised rehabilitation and treatment 

provided in a therapeutic residential 

setting that is aligned with VA medical 

facilities. 

Veterans must meet the eligibility 

criteria found in 38 CFR 17.46(b) as well 

as §§ 17.47(b)(2) and 17.47(c) to receive 

domiciliary care in a VA domiciliary. 

Per § 17.46(b) domiciliary care may be 

furnished when needed to any veteran 

whose annual income does not exceed 

the maximum annual rate of pension 

payable to a veteran in need of regular 

aid and attendance, or any veteran who 

VA determines had no adequate means 

of support. There is an additional 

requirement in that paragraph that the 

veteran must be able to perform certain 

listed activities related to self-care. In 

turn, 38 CFR 17.47(b)(2) addresses how 

VA determines whether a veteran has no 

adequate means of support for purposes 

of eligibility for domiciliary care. 

Finally, 38 CFR 17.47(c) establishes that 

to be provided domiciliary care, the 

veteran must have a disability, disease, 

or defect which is essentially chronic in 

type and is producing disablement of 

such degree and probable persistency as 

will incapacitate from earning a living 

for a prospective period. Eligibility 

criteria found in §§ 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 

38 CFR 51.51 and are applicable to State 

home domiciliary veterans for purposes 

of per diem payment eligibility. 

We propose multiple changes to our 

regulations. Initially, we propose to 

make a technical change in part 17 to 

remove the word domiciliary from a 

regulation that does not address 

domiciliary care. VA also proposes 

amending both Part 17 and 51 

regulations that address how VA 

determines whether a veteran has no 

adequate means of support for purposes 


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60418 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 

of eligibility for domiciliary care or 

domiciliary care per diem. VA proposes 

to amend its regulations to update the 

criteria used by VA in determining 

whether a veteran has no adequate 

means of support relative to eligibility 

for domiciliary care, and to shift 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 to assist the veteran in living 

independently, consideration of the 

veteran’s ability to access that support 

system, and any medical conditions or 

disabilities that might impact that 

ability. In addition, we propose 

amending our State home regulations to 

implement VA’s authority to waive 

certain eligibility requirements for 

eligibility for State home domiciliary 

care per diem and to permit waivers of 

these eligibility requirements retroactive 

to January 5, 2021. 

Section 17.43 Persons Entitled to 

Hospital or Domiciliary Care. 

The title of this section references 

domiciliary care as does the 

introductory sentence. However, the 

remaining content focuses on eligibility 

for hospital care. Eligibility for 

domiciliary care, as noted above, is 

addressed in subsequent sections of Part 

17. We propose deleting references to 

domiciliary care in § 17.43. 

Section 17.46 Eligibility for Hospital, 

Domiciliary or Nursing Home Care of 

Persons Discharged or Released From 

Active Military, Naval, or Air Service. 

Current § 17.46(b)(2) states that 

domiciliary care may be provided to any 

veteran who the Secretary determines 

had no adequate means of support. This 

paragraph further states that a veteran 

eligible for domiciliary care must be 

able to make rational and competent 

decisions as to their desire to remain or 

leave the facility and perform tasks 

related to self-care listed at 

§ 17.46(b)(2)(i)–(viii). One task on the 

list, at paragraph (b)(2)(vii), provides 

that the veterans must be able to share 

in some measure, however slight, in the 

maintenance and operation of the 

facility. We propose removing this 

requirement, as the purpose of 

providing domiciliary care is treatment 

and rehabilitation, and requiring the 

veteran to participate in the 

maintenance and operation of the 

facility is inconsistent with that 

purpose. For this reason, we propose 

removing this requirement and 

redesignating current (b)(2)(viii) as 

(b)(2)(vii). 

Section 17.47 Considerations 

Applicable in Determining Eligibility 

for Hospital Care, Medical Services, 

Nursing Home Care, or Domiciliary 

Care. 

Current § 17.47(b)(2) specifies that 

‘‘. . . the phrase no adequate means of 

support refers to an applicant for 

domiciliary care whose annual income 

exceeds the annual rate of pension for 

a veteran in receipt of regular aid and 

attendance, as defined in 38 U.S.C. 

1503, but who is able to demonstrate to 

competent VA medical authority, on the 

basis of objective evidence, that deficits 

in health and/or functional status render 

the applicant incapable of pursuing 

substantially gainful employment, as 

determined by the Chief of Staff of the 

VA medical center, and who is 

otherwise without the means to provide 

adequately for self, or be provided for in 

the community.’’ 

The foci of current 38 CFR 17.47(b)(2) 

is on the ability to engage in 

substantially gainful employment and 

on self-reliance and achieving or 

sustaining independence in the 

community. VA believes that 

predicating eligibility for domiciliary 

care on the ability of the veteran to 

engage in gainful employment, is 

inconsistent with delivery of patient 

centered care. In patient-centered care, 

an individual’s specific health needs 

and desired health outcomes are the 

driving force behind all health care 

decisions. Historically, domiciliary care 

in VA was primarily focused on 

delivering care to older residents who 

could not live independently but who 

did not require admission to a nursing 

home. The scope of domiciliary care 

provided by VA has expanded over the 

decades to meet the changing needs of 

veterans. Today, VA domiciliary care 

consists of intensive supervised 

rehabilitation and treatment provided in 

a therapeutic residential setting that is 

aligned with VA medical facilities. As 

discussed in further detail below, VA 

proposes taking a different approach to 

determining whether a veteran has no 

adequate means of support. 

To determine that a veteran has no 

adequate means of support, current 

§ 17.47(b)(2) requires a determination by 

VA on separate but interconnected 

issues. VA must determine that the 

veteran has an annual income that 

exceeds the annual rate of pension for 

a veteran in receipt of regular aid and 

attendance, as defined in 38 U.S.C. 

1503. In addition, VA must determine 

that the veteran is able to demonstrate 

to VA medical authority that deficits in 

health and/or functional status render 

them incapable of pursuing 

substantially gainful employment and 

that the veteran is otherwise without the 

means to provide adequately for self, or 

be provided for in the community. VA 

does not consider the inability to pursue 

substantially gainful employment as a 

prime determinant in assessing a 

veteran’s need for domiciliary care. VA 

believes that it also needs to consider 

the veteran’s condition, medical and 

financial, in its entirety in the context 

of the veteran’s ability to sustain and 

maintain independence in the 

community given available support 

systems and the veteran’s ability to 

access those systems. For the purpose of 

determining eligibility for domiciliary 

care, VA believes that veterans with 

annual income above the rate set in the 

current regulation could still not have 

adequate means of support because 

having adequate means of support may 

also require the availability of a family 

and/or community support system to 

assist the veteran in living 

independently and the veteran’s ability 

to access that support system, which 

takes into account any medical 

conditions or disabilities that might 

impact that ability. 

VA proposes to amend § 17.47(b)(2) to 

state that for purposes of determining 

eligibility for domiciliary care, 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 selfcare; (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 


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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 that this list of factors 

that must be considered, which is not 

intended to be all inclusive, would 

provide guidance to the Chief of Staff of 

a VA medical center, or designee, on the 

criteria that must be considered in 

determining eligibility for domiciliary 

care in those cases where the veteran’s 

annual income exceeds the annual rate 

of pension for a veteran in receipt of 

regular aid and attendance. 

Additionally, VA proposes to clarify 

existing language in 38 CFR 17.47(b)(2) 

by referring to the ‘‘maximum annual 

rate of pension’’ as opposed to ‘‘annual 

rate of pension’’. Section 17.47(b)(2) 

addresses how VA determines whether 

a veteran has no adequate means of 

support, while § 17.46(b) provides the 

eligibility requirements for domiciliary 

care. Specifically, § 17.46(b)(1) refers to 

the maximum annual rate of pension. 

VA believes that this is a nonsubstantive change that will maintain 

consistency with §§ 17.46(b)(1) and 

17.47(b)(2). Further, VA proposes to add 

‘‘or designee’’ when referring to the 

Chief of Staff. The authority to make 

determinations on eligibility for 

domiciliary care is exercised by the 

Chief of Staff of the VA medical center; 

however, the Chief of Staff may delegate 

this responsibility to another clinical 

reviewer in the VA medical center. 

We propose deleting paragraph (c) 

and marking that paragraph designation 

as Reserved. Current § 17.47(c) 

addresses three distinct issues. It 

provides a definition for the term 

disability, disease, or defect; it clarifies 

that domiciliary care is intended to 

provide a temporary home (not 

permanent) with ambulant care as 

needed; and it provides that to receive 

domiciliary care from VA, an applicant 

must consistently have a disability, 

disease, or defect which is essentially 

chronic in type and that disables the 

veteran to such a degree and probable 

persistency that the veteran will be 

unable to earn a living for a prospective 

period. The term disability, disease, or 

defect was used in earlier versions of 

our Part 17 regulations as an eligibility 

criterion for one class of veterans 

eligible for domiciliary care. The term 

disability, disease, or defect is not used 

anywhere else in Part 17 of 38 CFR 

except in the last sentence of current 

§ 17.47(c), which is discussed below. 

We note that it is used in the definition 

of domiciliary care found in § 59.2, 

which defines terms relevant to grants 

to States for construction or acquisition 

of State homes. However, there is no 

reference to § 17.47(c) in § 59.2, and VA 

believes that the § 17.47(c) definition of 

disability, disease, or defect is not 

necessary for understanding the use of 

that term in Part 59. For those reasons, 

we propose removing the definition of 

disability, disease, or defect. 

The second sentence in paragraph (c) 

states that ‘‘domiciliary care, as the term 

implies, is the provision of a temporary 

home, with such ambulant medical care 

as is needed.’’ This definition of 

domiciliary care is not as complete as 

the definition already in § 17.30(b) 

which includes the following: The term 

domiciliary care . . . [m]eans the 

furnishing of . . . [a] temporary home to 

a veteran, embracing the furnishing of 

shelter, food, clothing and other 

comforts of home, including necessary 

medical services. Because the 

regulations already have a more 

complete definition of domiciliary care 

in § 17.30(b), we propose deleting the 

second sentence in § 17.47(c). 

The final sentence in current 

§ 17.47(c) states that to be provided with 

domiciliary care, the applicant must 

consistently have a disability, disease, 

or defect which is essentially chronic in 

type and is producing disablement of 

such degree and probable persistency as 

will incapacitate from earning a living 

for a prospective period. We propose 

removing this sentence because it ties 

eligibility for domiciliary care solely to 

incapacity to earn a living, which is 

inconsistent with VA’s view that 

eligibility for domiciliary care needs to 

consider the veteran’s condition, 

medical and financial, in its entirety as 

noted above. 

Section 51.42 Payment Procedures 

Section 51.42 addresses per diem 

payment procedures under part 51, and 

we propose to add a new paragraph (c) 

to implement per diem payments to a 

State home domiciliary because of the 

new authority granted by Public Law 

(Pub. L.) 116–315, section 3007(a). As 

explained later in this rulemaking, we 

propose to revise eligibility for per diem 

for domiciliary care in § 51.51(b) to 

implement the new authority as of 

January 5, 2021. In proposed § 51.42(c) 

we would state that VA will make per 

diem payments under this part 

retroactive to the date specified by 

§ 51.42(b)(3), or January 5, 2021, 

whichever date is later, if all the 

requirements in proposed § 51.42(c)(1) 

through (4) are met. We would make per 

diem payments retroactive pursuant to 

§ 51.42(b)(3) (i.e., from the date of 

receipt of the completed forms or from 

the date care began if the State home 

submitted completed forms (no later 

than 10 calendar days after care began)). 

State homes have and continue to be 

required to submit the following forms 

no later than 10 calendar days after care 

begins to receive payments retroactive 

to the date of admission: (1) VA Form 

10–10EZ, Application for Medical 

Benefits (or VA Form 10–10EZR, Health 

Benefits Renewal Form); and (2) VA 

Form 10–10SH, State Home Program 

Application of Care—Medical 

Certification. Further, we believe State 

homes that have admitted veterans in 

reliance on this new discretionary 

authority have continued to submit 

completed forms for per diem payments 

for these veterans under § 51.42. 

Proposed § 51.42(c)(1) would set forth 

one of the requirements that must be 

met for VA to make per diem payments 

under this part retroactive to the date 

specified by paragraph (b)(3) of this 

section: that within 30 calendar days of 

the effective date of the rule, a 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 proposed § 51.51(b)(2). It 

would be administratively burdensome 

for VA to conduct a retrospective review 

of every denied application since 

January 5, 2021 and review current 

applications in a timely manner. Not all 

denied applications would be eligible 

for a waiver under § 51.51(b). Therefore, 

we would require State homes to submit 

to VA a written list of veterans whose 

completed forms have been denied 

pursuant to current § 51.51(b) on or after 

January 5, 2021, and whom the State 

home wants to have considered for a 

waiver under proposed § 51.51(b)(2). We 

believe this would result in the most 

efficient retrospective review of denied 

applications and allow VA to process 

applicable retroactive per diem 

payments in a timely manner. We 

would require that the list be provided 

within 30 days of the effective date of 

the rule because we believe State homes 

have already been tracking which 

veterans they believe might receive a 

waiver under this new authority and 

would be on notice upon publication of 

this proposed rule of our intent to 

require that a written list be provided 

within that time period. Also, we would 

limit retrospective reviews to completed 

forms received by VA on or after 

January 5, 2021. We would use January 

5, 2021, as this is consistent with the 

effective date of Public Law 116–315, 

section 3007(a) granting the new 

authority and the date we propose to 

use in 38 CFR 51.51(b)(1). We would 


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focus on completed forms received 

because 38 U.S.C. 1743 only allows VA 

to pay per diem from the date that VA 

receives the request for VA to determine 

the veteran’s eligibility or from the date 

care began if the request is received 

within 10 days after care begins. If the 

required forms are received after 10 

days from the date care begins, then 

payments will be made from the date 

VA receives the required forms. Id. 

Therefore, we believe that VA lacks the 

statutory authority to make per diem 

retroactive to the date veterans began 

receiving care in a State home 

domiciliary in reliance on Pub. L. 116– 

315, section 3007(a), unless the State 

home submitted the required forms (i.e., 

VA Form 10–10EZ and VA Form 10– 

10SH) within 10 days of that date. For 

example, if a State home admitted a 

veteran in reliance of Public Law 116– 

315, section 3007(a) on January 5, 2021, 

and to date has not submitted the 

required forms, then the earliest VA 

may make per diem payments is as of 

the date VA receives the required forms. 

In the same example, if a State home 

submitted the required forms no later 

than 10 days from January 5, 2021, then 

the State home may receive per diem 

retroactive to January 5, 2021, so long as 

all of the requirements in proposed 38 

CFR 51.42(c)(1) through (4) are met. In 

the same example, if a State home 

submitted the required forms on the day 

on which care began, e.g., January 25, 

2022, then the State home may receive 

per diem retroactive to January 25, 2022, 

so long as all the requirements in 

proposed § 51.42(c)(1) through (4) are 

met. Further, we note that in the 

proposed regulatory text for this 

paragraph, the effective date is 

referenced as ‘‘[EFFECTIVE DATE OF 

FINAL RULE]’’. It is VA’s intent to 

replace this language with the actual 

effective date of this rule which will be 

determined upon publication of the 

final rule. 

Two other requirements would need 

to be met for a State home to receive 

retroactive per diem for care provided 

prior to the effective date of this 

regulation. Proposed § 51.42(c)(2) and 

(c)(3) would provide that with respect to 

the veterans on the written list under 

proposed (c)(1), 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 § 51.51(b) and that, 

upon VA review, the veteran would 

have received a waiver under proposed 

§ 51.51(b)(2) if this regulation had been 

in effect when the request for per diem 

was originally submitted, respectively. 

Upon receipt of a list of veterans whom 

the State home wants to have 

considered for a waiver under proposed 

§ 51.51(b)(2), VA would verify that the 

claim was denied solely pursuant to 

current § 51.51(b), which lists the eight 

tasks and activities a veteran must be 

able to perform to establish eligibility 

for VA per diem for State home 

domiciliary care, because, as discussed 

below, Public Law 116–315, section 

3007(a) requires VA to amend 38 CFR 

51.51(b) to allow waivers of these 

requirements under certain conditions. 

Further, as discussed below we propose 

to revise § 51.51(b) by creating a new 

paragraph (b)(2) to implement the new 

authority. Therefore, after verifying that 

a claim was denied solely due to a 

veteran’s inability to perform the eight 

tasks and activities listed in current 

§ 51.51(b), we would then determine 

whether the claim is eligible for a 

waiver under proposed § 51.51(b)(2). We 

note we will not continue to conduct a 

retrospective review if the claim was 

denied for a reason other than the 

eligibility requirement under current 

§ 51.51(b). Therefore, if a claim was 

denied because the veteran did not meet 

the eligibility requirements in current 

§ 51.51(a), VA would not grant a waiver 

under proposed § 51.51(b)(2). 

The final requirement that would 

need to be met for a State home to 

receive retroactive per diem for care 

provided prior to the effective date of 

this regulation is in proposed 

§ 51.42(c)(4). That provision would 

require the State home to submit 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 

cover only the veterans not originally 

included on the form when submitted 

previously for that month. This 

requirement would enable VA to make 

applicable retroactive per diem 

payments to State homes. VA Form 10– 

5588 is an invoice in VA’s payment 

system and is required for State homes 

to receive payments. The submission of 

VA Form 10–5588 will enable VA to 

make a supplemental payment to State 

homes for veterans who meet the 

requirements for retroactive per diem. 

We believe the changes discussed 

above will allow VA to provide 

retroactive per diem payments to a State 

home domiciliary if the requirements 

under proposed § 51.41(c)(1) through (4) 

are met, irrespective of when this 

rulemaking is effective. 

Section 51.51 Eligible Veterans— 

Domiciliary Care 

Section 51.51 specifies the Veterans 

on whose behalf State homes may 

receive per diem payments from VA for 

domiciliary care in State home 

domiciliaries. The criteria reflected in 

this section derive primarily from 

§§ 17.46(b) and 17.47(b)(2). VA 

determinations regarding which 

veterans on whose behalf VA may pay 

per diem payments for domiciliary care 

in State homes and which are eligible 

for domiciliary care in a VA 

domiciliary, and the factors considered 

by VA in making those determinations, 

are currently the same regardless of 

whether the domiciliary care is 

provided directly by VA or by a State 

home. See 38 U.S.C. 1741. As discussed 

below, under section 3007 of Public 

Law 116–315, VA is required to modify 

38 CFR 51.51(b) to provide VA the 

authority to waive the requirements 

under current § 51.51(b) for a veteran to 

be eligible for per diem payments for 

domiciliary care at a State home if— 

(1) the veteran has met not fewer than 

four of the requirements set forth in 

such section; or 

(2) such waiver would be in the best 

interest of the veteran. 

Current § 51.51(a)(2) substantively 

mirrors current § 17.47(b)(2), and for 

purposes of consistency, we propose 

amending § 51.51(a)(2) consistent with 

proposed § 17.47(b)(2). We note that the 

addition of these factors that must be 

considered when determining if a 

veteran has no adequate means of 

support would not affect the waiver 

authority granted by Public Law 116– 

315, section 3007(a). Some of the factors 

in proposed §§ 51.51(a)(2) and (b)(1) 

overlap. For example, a veteran’s ability 

to provide self-care in proposed 

paragraph (a)(2) and a veteran’s ability 

to perform daily ablutions, dress or feed 

oneself in proposed paragraph (b)(1). 

However, the factors listed under 

proposed § 51.51(a)(2) are focused, in 

part, on any medical conditions or 

disabilities that might impact a veteran’s 

ability to live independently; whereas 

the factors listed under proposed 

§ 51.51(b) are tasks that a veteran must 

be able to perform and would thus be 

indicative of a veteran’s ability to live 

independently. We believe that any 

requirement waived under proposed 

§ 51.51(b) would be indicative of a 

veteran’s inability to live 

independently. Therefore, a factor 

waived under proposed § 51.51(b)(2) 

could be considered under the proposed 

factors in proposed § 51.51(a)(2) to 

determine whether a veteran has no 

means of adequate support. 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 60421 

Current § 51.51(b) mirrors current 

§ 17.46(b)(2), listing tasks and abilities 

that a veteran must exhibit to be eligible 

for domiciliary care. Public Law 116– 

315, section 3007(a) states that 

notwithstanding 38 U.S.C. 1741, the 

Secretary of Veterans Affairs shall 

modify 38 CFR 51.51(b) (or successor 

regulations), to provide the Secretary 

the authority to waive the requirements 

under § 51.51(b) for a veteran to be 

eligible for per diem payments for 

domiciliary care at a State home if (1) 

the veteran has met not fewer than four 

of the requirements set forth in such 

section; or (2) such waiver would be in 

the best interest of the veteran. 

The authority to make decisions on 

eligibility for domiciliary level of care is 

exercised by the Chief of Staff of the VA 

medical center of jurisdiction, or 

designee. VA believes that this local VA 

official is in the best position to evaluate 

whether there is sufficient evidence to 

establish that an individual veteran is 

eligible for the purposes of payment of 

per diem for domiciliary care in a State 

home, and to know the capabilities and 

level of care provided by the State home 

domiciliary. 

We propose revising § 51.51(b) by 

listing the tasks and activities a veteran 

must be able to perform for VA to pay 

the State home a per diem for 

domiciliary care on behalf of the veteran 

in a new paragraph (b)(1) and creating 

a new paragraph (b)(2) to implement the 

new authority in Public Law 116–315, 

section 3007(a) to waive the 

requirements in paragraph (b)(1). 

Proposed § 51.51(b)(1) would list the 

tasks and activities a veteran must be 

able to perform for VA to pay per diem 

on behalf of the veteran to the State 

home for domiciliary care. This list is 

similar to current 51.51(b), with 

differences discussed below, and would 

mirror that in proposed § 17.46(b)(2), 

with one substantive difference 

discussed below. Proposed 

§ 17.46(b)(2)(vii) states that a veteran 

eligible for domiciliary care must be 

able to make rational and competent 

decisions as to his or her desire to 

remain or leave the facility. This is an 

important requirement for domiciliary 

care provided via a day hospital 

residential rehabilitation treatment 

model, as the primary goal is 

rehabilitation. However, State homes are 

residential sites operated for veterans by 

the States. In those cases, authority to 

make decisions as to whether to remain 

or leave the facility is governed by State 

law. In proposed 51.51(b)(1)(vii), we 

would keep the same language in 

current 51.51(b)(8); however, we would 

add additional language to address that 

in cases of veterans who lack the general 

capacity needed to decide to remain in 

or to leave a State Home, which is a 

community residential placement 

decision, their legal representative as 

designated under State law is 

empowered to make this decision behalf 

of the veteran. 

In our discussion of the rationale for 

removing the requirement in current 

§ 17.46(b)(2)(vii) that a veteran eligible 

for domiciliary care be able to share in 

some measure, however slight, in the 

maintenance and operation of the 

facility, we stated that the purpose of 

providing domiciliary care is treatment 

and rehabilitation, and requiring the 

veteran to share in the maintenance and 

operation of the facility is inconsistent 

with that purpose. As noted, we 

likewise propose removing this similar 

requirement found in current 

§ 51.51(b)(7) for eligibility for per diem 

for domiciliary care provided by a State 

home. The requirement that the veteran 

must ‘‘participate in some measure, 

however slight, in work assignments 

that support the maintenance operation 

of the State home’’ is inconsistent with 

the mission and goals of the State home 

domiciliary program, to include 

domiciliary care as a temporary home as 

one of its primary goals. Further, some 

States prohibit their State homes from 

requiring any type of work from 

domiciliary residents. By removing this 

requirement, the list of tasks that a 

veteran must be capable of performing, 

except in those instances where the 

Chief of Staff of the VA medical center 

of jurisdiction, or designee, grants a 

waiver under paragraph (b)(2), is 

reduced from eight to seven tasks. 

Therefore, we believe that the removal 

of this requirement neither diminishes 

the effect nor is contrary to the new 

waiver authority granted by Public Law 

116–315, section 3007(a). 

In proposed 38 CFR 51.51(b)(2), we 

would state that the Chief of Staff of the 

VA medical center of jurisdiction, or 

designee, may waive the requirements 

in § 51.51(b)(1) for purposes 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 

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. 

We would use January 5, 2021, as this 

is consistent with the effective date of 

Public Law 116–315, section 3007(a) 

granting this authority. Also, we would 

include language to define ‘‘in the best 

interest’’ as used in this paragraph. VA 

believes that determinations of ‘‘in the 

best interest’’ must be a clinical 

determination, guided by VA health 

professionals’ judgment on what care 

will best support the health and wellbeing of the veteran—including that 

which offers the best opportunity for 

recovery and rehabilitation, whenever 

possible. In some cases, a clinician may 

determine that other care and 

maintenance options would better 

promote the veteran’s functional 

capabilities and potential for greater 

independence, or that a higher level of 

care may better ensure that the veteran 

receives the level of care necessary. 

Further, we would require the Chief of 

Staff of the VA medical center of 

jurisdiction, or designee, to make a 

finding that the State home has the 

capability to provide the domiciliary 

care that the veteran needs to clearly 

indicate that the decision to waive a 

particular regulatory requirement for 

domiciliary care cannot be made 

independent of an understanding of the 

State home’s capabilities and level of 

care provided to domiciliary residents. 

State home domiciliaries vary in the 

type of resident that can be admitted, 

based on factors such as building 

structure, staffing expertise, staffing 

levels, and availability of support 

equipment. If the veteran’s medical 

status is beyond the scope of care that 

can be provided by the State home 

domiciliary to which admission is 

sought, we do not believe VA should 

encourage the State home domiciliary to 

accept the veteran as a resident by 

paying the home a per diem for the 

veteran. If waiver is requested of an 

eligibility requirement in proposed 38 

CFR 51.51(b)(1) VA must make a 

determination that the State home 

domiciliary is capable of providing the 

level of care necessary if such waiver is 

granted. Evaluating the capabilities 

provided in the State home domiciliary 

is an integral element that must be 

considered when determining to grant a 

waiver. Although this is not explicitly 

stated in current § 51.51, such 


lotter on DSK11XQN23PROD with PROPOSALS1
60422 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 

consideration has been longstanding VA 

policy and practice. 

Section 51.300 Resident Rights and 

Behavior; State Home Practices; Quality 

of Life 

Current 38 CFR 51.300(b) states that 

the State home resident must 

participate, based on his or her ability, 

in some measure, however slight, in 

work assignments that support the 

maintenance and operation of the State 

home. It requires the State home to 

create a written policy to implement the 

work requirement and integrate the 

work requirement into a comprehensive 

care plan. As we would remove the 

requirement that a State home resident 

participate to some degree in work in 

support of maintenance and operation 

of the State home, we likewise propose 

removing this paragraph and marking it 

as reserved. 

Paperwork Reduction Act 

This proposed rule includes 

provisions constituting a revised 

collection of information under the 

Paperwork Reduction Act (PRA) of 1995 

(44 U.S.C. 3501–3521) that 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. 

OMB assigns control numbers to 

collection of information it approves. 

VA may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. If OMB does not approve the 

collection of information as requested, 

VA will immediately remove the 

provisions containing the collection of 

information or take such other action as 

is directed by OMB. 

Comments on the new collection of 

information contained in this 

rulemaking should be submitted 

through www.regulations.gov. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AR61, Determining Eligibility for 

Domiciliary Care’’ and should be sent 

within 60 days of publication of this 

rulemaking. The collection of 

information associated with this 

rulemaking can be viewed at: 

www.reginfo.gov/public/do/PRAMain. 

OMB is required to make a decision 

concerning the collection of information 

contained in this rulemaking between 

30 and 60 days after publication of this 

rulemaking in the Federal Register. 

Therefore, a comment to OMB is best 

assured of having its full effect if OMB 

receives it within 30 days of 

publication. This does not affect the 

deadline for the public to comment on 

the provisions of this rulemaking. 

The Department considers comments 

by the public on a new collection of 

information in— 

• Evaluating whether the new 

collection of information is necessary 

for the proper performance of the 

functions of the Department, including 

whether the information will have 

practical utility; 

• Evaluating the accuracy of the 

Department’s estimate of the burden of 

the new collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and 

• Minimizing the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

The collection of information 

associated with this rulemaking 

contained in 38 CFR 51.42(c) is 

described immediately following this 

paragraph, under its respective title. 

This new information collection will be 

added to OMB control number 2900– 

0160, containing State home program 

forms 10–5588, 10–5588A, and 10– 

10SH, which has a current PRA 

clearance. 

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 revised collection of 

information in proposed 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 § 51.51(b), 

to VA for consideration of a waiver 

under proposed § 51.51(b)(2). This is a 

time limited opportunity—the list of 

names must be received within 30 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 proposed 

§ 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: 3 hours. 

• Estimated cost to respondents per 

year: VA estimates the one-time 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 

× $59.07 per hour). 

* To estimate the total information 

collection burden cost, VA used the 

Bureau of Labor Statistics (BLS) mean 

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. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this proposed rule 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 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. 605(b), the initial 

and final regulatory flexibility analysis 

requirements of 5 U.S.C. 603 and 604 do 

not apply. 

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 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 60423 

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. 

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 proposed rule would 

have no such effect on State, local, and 

tribal governments, or on the private 

sector. 

Assistance Listing 

The Assistance Listing number and 

title for the program affected by this 

document is 64.014—Veterans State 

Domiciliary Care. 

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 this 

document on August 24, 2023, 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 set forth in the 

preamble, the Department of Veterans 

Affairs proposes to amend 38 CFR parts 

17 and 51 as follows: 

PART 17—MEDICAL 

■ 1. The authority citation for part 17 is 

amended by adding an entry in 

numerical order for § 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, Public Law 99–272; 42 

U.S.C. 1396 et seq. 

* * * * * 

§ 17.43 [Amended] 

■ 2. Amend § 17.43 by removing the 

words ‘‘or domiciliary’’ in the section 

heading and introductory text. 

§ 17.46 [Amended] 

■ 3. Amend § 17.46 by removing 

paragraph (b)(2)(vii), and redesignating 

paragraph (b)(2)(viii) as paragraph 

(b)(2)(vii). 

■ 4. Amend § 17.47 by: 

■ a. Removing the authority citations 

immediately following paragraphs 

(b)(1), (b)(2), (c), (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). 

■ b. Revise paragraph (b)(2). 

■ c. Remove and reserve paragraph (c). 

Revisions read as follows: 

§ 17.47 Considerations applicable in 

determining eligibility for hospital care, 

medical services, nursing home care, or 

domiciliary care. 

* * * * * 

(b) * * * 

(2) For purposes of determining 

eligibility for domiciliary care under 

§ 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 

■ 5. The authority citation for part 51 is 

amended by revising § 51.42, and 

adding an entry in numerical order for 

§ 51.51 to read as follows: 

* * * * * 

Section 51.42 also issued under 38 U.S.C. 

510, 1744, and Public Law 116–315 section 

3007. 

* * * * * 

Section 51.51 also issued under Public Law 

116–315 section 3007. 

* * * * * 

■ 6. Amend § 51.42 by adding paragraph 

(c) to read as follows: 

§ 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 30 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 


lotter on DSK11XQN23PROD with PROPOSALS1
60424 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 

on or after January 5, 2021, and the State 

home requests that VA consider them 

for a waiver under § 51.51(b)(2); 

(2) With respect to the veterans on the 

written list under paragraph (c)(1), 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 

§ 51.51(b)(2) if that paragraph had been 

in effect when the request for per diem 

was originally submitted; and 

(4) 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. 

■ 7. Amend § 51.51 by revising 

paragraphs (a)(2) and (b) to read as 

follows: 

§ 51.51 Eligible veterans—domiciliary 

care. 

(a) * * * 

(1) * * * 

(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 

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. 

§ 51.300 [Amended] 

■ 8. Amend § 51.300 by removing and 

reserving paragraph (b). 

[FR Doc. 2023–18921 Filed 8–31–23; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2022–0391; FRL–11368– 

01–R4] 

Air Plan Approval; North Carolina; 

Revisions to Miscellaneous Particulate 

Matter Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the State of North 

Carolina through the North Carolina 

Division of Air Quality (NCDAQ) via a 

letter dated April 13, 2021. The SIP 

revision seeks to modify the State’s 

emission control standards by amending 

several air quality rules and removing a 

redundant rule for electric utility 

boilers. EPA is proposing to approve 

these changes pursuant to the Clean Air 

Act (CAA or Act). 

DATES: Comments must be received on 

or before October 2, 2023. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2022–0391, at 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

www.epa.gov/dockets/commenting-epadockets. 


lotter on DSK11XQN23PROD with PROPOSALS1