Federal Register / Vol. 89, No. 210 / Wednesday, October 30, 2024 / Rules and Regulations 86245 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 17 and 51 

RIN 2900–AR61 

Determining Eligibility for Domiciliary 

Care 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) adopts as final, with minor 

changes, a proposed rule amending its 

medical and State Veterans Home (State 

home) regulations to update the criteria 

used by VA in determining eligibility 

for domiciliary care and to implement 

VA’s authority to waive certain 

eligibility requirements for receipt of 

State home domiciliary care per diem. 

DATES: This rule is effective November 

29, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Lauren Crotts, Chief, State Veterans 

Homes, Geriatrics and Extended Care 

(12GEC), Veterans Health 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue NW, 

Washington, DC 20420; (202) 461–6750 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: In a 

document published in the Federal 

Register (FR) on September 1, 2023, VA 

proposed to amend its medical and 

State home regulations in parts 17 and 

51 of title 38, Code of Federal 

Regulations (CFR). VA proposed to 

amend part 17 to update the criteria VA 

uses to determine eligibility for 

domiciliary care. In particular, VA 

proposed to amend the criteria that 

establishes whether a veteran has no 

adequate means of support by shifting 

the focus of the regulatory language 

from the veterans’ ability to pursue 

substantially gainful employment to a 

broader consideration of available 

support systems and medical conditions 

or disabilities that might impact the 

veteran’s ability to live independently. 

88 FR 60417. VA also proposed to 

amend 38 CFR part 51 to implement 

VA’s authority to waive certain 

requirements for State homes to receive 

per diem payments for a veteran 

receiving domiciliary care. Id. 

VA provided a 60-day comment 

period, which ended on October 31, 

2023. Four comments were received. 

These comments are summarized and 

addressed by topic in the discussion 

below. VA makes two changes to the 

rule based on the comments received, 

which are discussed in more detail 

below. To the extent commenters raised 

concerns with their individual situation 

or circumstances and provided their 

personal information, VA reached out to 

them directly to address their concerns. 

Public Comments 

I. Length of Time for State Homes To 

Submit Requests for Retroactive 

Payments 

As mentioned above, in the proposed 

rule, VA proposed establishing a waiver 

for certain eligibility requirements that 

otherwise would have to be met for VA 

to pay a per diem payment to a State 

home for a veteran receiving domiciliary 

care at that State home pursuant to the 

new authority granted to VA in Public 

Law (Pub. L.) 116–315, Section 3007(a). 

VA proposed a framework in 38 CFR 

51.42(c) for State homes to request 

retroactive per diem payments under 

this authority, which included a 30-day 

deadline after the effective date of the 

rule for State homes to submit a written 

list of veterans’ names for whom the 

State homes request VA to consider for 

waiver under the new waiver authority 

detailed in § 51.51(b)(2). 

Two commenters recommended VA 

extend the time allowed under proposed 

§ 51.42(c)(1) for State homes to submit 

required documentation to request 

retroactive per diem payments for 

domiciliary care from 30 days to either 

60 or 90 days. These commenters 

suggested that the proposed time period 

of 30 calendar days is insufficient, and 

more time is necessary. One commenter 

also noted that the time allowed to 

submit completed VA Form 10–5588 

under § 51.42(c)(4) was unclear in the 

proposed regulatory text and requested 

that State homes have 90 days to submit 

the requisite forms in addition to the list 

of names. 

VA agrees with these commenters’ 

recommendations to extend the time 

period under proposed § 51.42(c)(1) and 

(c)(4) and to provide clarity as to how 

long the State homes have to submit the 

necessary form. To ensure State homes 

have sufficient time to compile and 

submit required documentation to 

request retroactive per diem payments 

for domiciliary care, VA is revising the 

time period in proposed § 51.42(c)(1) to 

90 calendar days. Thus, as revised, 

§ 51.42(c)(1) will state that within 90 

calendar days of [effective date of final 

rule] the State home provides VA a 

written list of veterans’ names for whom 

completed forms were received by VA 

on or after January 5, 2021, and the State 

home requests that VA consider them 

for a waiver under § 51.51(b)(2). VA is 

also revising § 51.42(c)(4) to include 

language clarifying that within 90 

calendar days of [effective date of final 

rule] the State home submits to VA a 

completed VA Form 10–5588, State 

Home Report and Statement of Federal 

Aid Claimed, for each month that the 

State home provided domiciliary care to 

a veteran for whom the home is 

requesting a waiver. The form would 

only cover the veterans not originally 

included on the form when submitted 

previously for that month. VA makes no 

other changes based on these comments. 

II. Process for Waiver Under Proposed 

§ 51.51 

One commenter expressed concerned 

that the Chief of Staff of the VA medical 

center of jurisdiction (VAMC), or 

designee, would approve waiver 

requests under § 51.51(b)(1) even though 

VA would not be providing any care to 

the veteran in the State home, and 

another commenter asked for 

clarification on the waiver process. 

While VA does not make any changes 

based on these comments, clarification 

of the waiver process is provided below. 

Although when veterans are admitted 

into a State home, the State home is 

responsible for all primary care medical 

needs under § 51.340, which means VA 

primary care teams no longer provide 

primary care to veterans in State homes, 

VA will have sufficient information to 

determine whether a waiver should be 

granted. The physician responsible for 

providing primary care to veterans in 

State homes will evaluate the veteran’s 

physical condition on pages one and 

two of VA Form 10–10SH and will then 

submit it to the VAMC. The VAMC will 

review the form and determine whether 

the veteran is able to perform the seven 

activities of daily living (ADL) based on 

the information provided. If the veteran 

can perform not fewer than four ADL, 

the VA Chief of Staff or designee (e.g., 

a VA clinician) may waive the 

requirements on VA Form 10–10SH and 

approve domiciliary level of care if it is 

in the best interest of the veteran, 

pursuant to the proposed amendments 

to § 51.51. 

One of the same commenters 

expressed a similar concern regarding 

how the Chief of Staff of the VA medical 

center of jurisdiction, or designee, 

would have sufficient information to 

make a finding that a State home has the 

capability to provide the domiciliary 

care that the veteran needs under 

proposed § 51.51(b)(2) without the 

ability to observe the facility. VA does 

not make any changes based on this 

comment. 

In subpart B of part 51, VA regulates 

the recognition and certification process 

for State homes to obtain per diem 

payments from VA. In order to be 

recognized for purposes of receiving per 

diem from VA States must follow the 


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steps outlined in § 51.20. State homes 

may receive per diem payments for 

veterans only after requesting 

recognition and certification by VA. 

Through the recognition and 

certification process and the submission 

of the VA Form 10–10SH and 10–10EZ, 

in accordance with § 51.41(e) and 

§ 51.42, the Chief of Staff of the VA 

medical center of jurisdiction, or 

designee, would have sufficient 

information with which to make a 

finding that the State home has the 

capability to provide domiciliary care 

for purposes of § 51.51(b)(2) without 

ever having observed the State home 

facility. 

III. Definition, Purpose and Scope, and 

Duration of Domiciliary Care 

Another commenter requested VA 

amend the rule to provide a more 

detailed description of domiciliary care 

and how it differs from other types of 

residential care. In particular, the 

commenter requested specificity on 

what factors are considered to 

determine eligibility for domiciliary 

care, how long a veteran can stay in 

domiciliary care, what factors are 

considered to determine discharge, and 

what follow-up services are available 

after discharge. VA does not make any 

changes to the rule based on this 

comment. 

As to the definition of domiciliary 

care, the commenter expressed 

confusion as to whether domiciliary 

care is a residential rehabilitation and 

treatment program that provides a 

temporary home-like environment or 

whether domiciliary care is the 

furnishing of a home to a veteran, 

including shelter, food, clothing, and 

necessary medical services. The 

commenter further suggested that VA 

either use the term ‘‘home’’ or 

‘‘residential program’’ throughout. 

The term domiciliary care in 

§ 17.30(b) provides that it is the 

furnishing of: (i) a temporary home to a 

veteran, embracing the furnishing of 

shelter, food, clothing and other 

comforts of home, including necessary 

medical services; or a day hospital 

program consisting of intensive 

supervised rehabilitation and treatment 

provided in a therapeutic residential 

setting for residents with mental health 

or substance use disorders, and cooccurring medical or psycho social 

needs such as homelessness and 

unemployment. This definition 

encompasses the two models of 

domiciliary care VA is authorized to 

provide to eligible veterans. The first 

model of care focuses on the needs of 

eligible veterans who cannot live 

independently but do not require 

admission to a nursing home, and the 

second model focuses on the needs of 

eligible veterans who are receiving care 

through VA’s Mental Health Residential 

Rehabilitation Treatment Program (MH 

RRTP), as referenced in § 17.46 and 

§ 17.47. Therefore, the definition 

provides for the two distinct models of 

domiciliary care that can be provided to 

veterans. Thus, VA cannot exclusively 

use either the term ‘‘home’’ or the term 

‘‘residential program’’ throughout the 

regulations because VA must be able to 

describe both models of domiciliary 

care. VA believes that this definition is 

clear, consistently applied throughout 

the regulations, and demonstrates how 

this type of care would differ from other 

types of residential care. 

The commenter further suggested VA 

explain what the terms ‘‘assistance’’ and 

‘‘independently’’ mean in the context of 

domiciliary care. As to the term 

‘‘independence,’’ VA proposed revising 

§ 17.47(b)(2) to explain how VA would 

determine eligibility for domiciliary 

care based on a veteran having no 

adequate means of support. This 

involves assessing a veteran’s ability to 

achieve or sustain ‘‘independence’’ in 

the community. As stated in the rule, 

being able to achieve or sustain 

‘‘independence’’ includes consideration 

of the following non-exhaustive factors: 

(i) the impact of the severity of the 

veteran’s medical condition, disabilities, 

and symptoms on the veteran’s safety in 

the community; (ii) the impact of the 

severity of the veteran’s medical 

condition, disabilities, and symptoms 

on the veteran’s ability to provide 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 

of the veteran’s income; (vii) access to 

outpatient mental health and substance 

use disorder care; and (viii) the current 

effectiveness of any outpatient mental 

health and substance use disorder care 

provided to the veteran. VA believes the 

list should be sufficiently clear for 

veterans and other stakeholders to 

understand what independence means 

and therefore does not believe any 

additional explanation or clarification is 

required in the regulation. 

As to the term ‘‘assistance,’’ VA 

proposed revising § 51.51(b) to explain 

what a veteran must be able to perform 

to be eligible for domiciliary care in a 

State home, which includes several 

functions that require little to no 

‘‘assistance,’’ such as (i) daily ablutions, 

such as brushing teeth, bathing, 

combing hair, and body eliminations, 

without assistance; (ii) dressing 

themselves with a minimum of 

assistance; (iii) proceeding to and return 

from the dining hall without aid; and 

(iv) feeding themselves. VA intends the 

word assistance to have the ordinary 

meaning of the word, such as the act of 

helping or assisting someone. 

www.merriam-webster.com. Therefore, 

VA does not believe any further 

clarification is necessary in the 

regulation. 

The commenter further suggested that 

the regulation be amended to provide 

additional information about eligibility 

and duration in domiciliary care, to 

include factors that are used to 

determine eligibility and discharge such 

as medical condition, functional status, 

or housing situation. Eligibility criteria 

for domiciliary care is provided in 

§§ 17.46(b), 17.47(b)(2), 17.47(c), and 

51.51. 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 § 51.51 

and are applicable to State home 

domiciliary veterans for purposes of per 

diem payment eligibility. As explained 

in the proposed rule, VA proposed 

revising the eligibility criteria in current 

§ 17.46(b)(2) to be more consistent with 

the purpose of domiciliary care, which 

is to provide treatment and 

rehabilitation to veterans who VA 

determines have no adequate means of 

support. VA refers the commenter to its 

discussion and the proposed regulatory 

text beginning at 88 FR 60417. These 

regulations provide sufficient guidance 

as to when domiciliary care would be 

appropriate and provided to a veteran. 

VA does not regulate more specific 

factors to qualify for domiciliary care or 

how long veterans may stay in 

domiciliary care because duration and 

level of care are clinical determinations 

to be made by medical professionals on 

a case-by-case basis. Therefore, there is 

not uniform criteria that could be 

included into a regulation; VA needs to 

ensure that clinical providers have the 

flexibility to make a decision based on 

clinical indications. Similarly, the 

decision to discharge a veteran is also 

part of clinical decision-making process 

and VA clinicians require the flexibility 

to assess the veteran and make a clinical 

decision as to when discharge is 

appropriate. VA notes that discharge 

typically occurs when a veteran has 

either completed aspects of residential 

care, or when a veteran is no longer able 

to engage in treatment. It is vital that VA 

providers have flexibility in practice to 

move veterans between different levels 


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of care depending on the individual 

needs of each veteran, including 

decisions to discharge a veteran. 

The commenter further suggested that 

VA describe the follow-up services 

available after discharge. Once a veteran 

is discharged from domiciliary care, the 

veteran will have follow-up services 

available to them, as appropriate, which 

may include those identified by the 

commenter. However, the follow-up 

services available to a veteran 

discharged from domiciliary care will 

vary based on the veteran’s clinical 

needs and their eligibility for such 

services. Therefore, VA does not believe 

it is appropriate to include the types of 

services that may or may not be 

available based on the individual 

veteran’s needs in the regulation. 

IV. Supporting Data or Evidence 

The same commenter opined that VA 

did not provide any data or evidence, 

including studies or reports, to support 

the changes in the proposed rule. VA 

does not make any changes based on 

this comment. 

VA has provided sufficient rationale 

to support the changes it made in the 

rule. Pursuant to section 1710(b)(2) of 

title 38, United States Code (U.S.C.), VA 

proposed to expand eligibility for 

domiciliary care by updating the criteria 

used to determine whether a veteran has 

no adequate means of support, shifting 

the focus in the regulatory language 

from the veterans’ ability to pursue 

substantially gainful employment to a 

broader consideration of the availability 

of a family and/or community support 

system. 88 FR 60418. Like all other 

areas of medical and psychosocial care 

that have evolved over the past several 

decades, VA’s approach to domiciliary 

care has also evolved to meet the 

changing needs of veterans, including 

expanding eligibility to domiciliary 

care. VA determined that basing 

eligibility for domiciliary care on 

metrics like annual income or 

incapacity to earn a living did not lead 

to patient-centered care. VA proposed 

these changes to modernize the 

regulatory approach to eligibility for 

domiciliary care to reflect the more 

patient-centered model veterans have 

grown to expect from VA. In patientcentered care, an individual’s specific 

health needs and desired health 

outcomes are the driving force behind 

all health care decisions. In the 

proposed rule, VA also proposed 

allowing for the waiver of certain 

eligibility requirements for eligibility for 

State home domiciliary care per diem 

and permitting waivers of such 

requirements retroactive to January 5, 

2021. Id. Section 3007 of Public Law 

116–315 required VA to modify 38 CFR 

51.51(b) to provide VA the authority to 

waive certain requirements for 

domiciliary care. 88 FR 60418–21. VA’s 

full rationale for the changes can be 

found in the proposed rule. See 88 FR 

60417–60421. 

This commenter also asserted that VA 

did not provide any estimates or 

projections of how many veterans 

would be eligible for domiciliary care 

under the proposed rule or how much 

it would cost VA to implement the 

proposed rule. For detailed information 

regarding the projected number of 

veterans in domiciliary care programs 

and costs associated with such 

projections, please refer to the 

regulatory impact analysis that 

accompanies both the proposed and 

final rules. VA makes no changes to the 

rule based on this comment. 

V. Comment Beyond the Scope of 

Rulemaking 

A commenter was concerned that the 

proposed rule did not address the 

potential challenges or limitations of 

providing domiciliary care to homeless 

veterans or those at risk for 

homelessness and that the rule did not 

consider the potential impact of the rule 

on other VA programs that serve 

homeless veterans. Additionally, the 

commenter requested clarification as to 

the goals domiciliary care programs may 

have for veterans who are homeless or 

at risk of homelessness. This commenter 

provided suggestions on potential 

modifications to program operations, 

such as ensuring domiciliary care is 

integrated with other VA programs and 

services, establishing guidelines and 

standards for quality and safety, and 

enhancing socialization and community 

integration. Specifically, the commenter 

suggested that the rule should consider 

the impact of the proposed rule on other 

VA programs and include the 

coordination and collaboration of these 

programs in the rule. VA does not make 

any changes based on this comment. 

While VA appreciates the commenter’s 

concern, these suggestions are beyond 

the scope of the rulemaking which was 

limited to amending discrete eligibility 

requirements and implementing an 

authority to waive certain eligibility 

criteria. 

The commenter also expressed 

concern that an implementation plan or 

timeline were not included in the 

proposed rule, including when the rule 

would take effect and how long it would 

be in effect. VA does not make any 

changes to the rule based on this 

comment. This concern is better 

addressed in sub-regulatory and 

administrative guidance. VA notes that 

the changes made to parts 17 and 51 of 

38 CFR by this final rule will become 

effective 30 days after the final rule’s 

publication in the Federal Register. It 

will remain in effect indefinitely. 

This commenter also asserted that the 

proposed rule did not describe how VA 

would monitor or evaluate the outcomes 

or impacts of the rule on veterans. VA 

does not make any changes based on 

this comment. This concern similarly is 

better addressed in sub-regulatory and 

administrative guidance. However, VA 

conducts monitoring and evaluation of 

its domiciliary care programs and will 

continue to do so after this rule is final 

and effective. 

Executive Orders 12866, 13563 and 

14094 

Executive Order 12866 (Regulatory 

Planning and Review) directs agencies 

to assess the costs and benefits of 

available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, and other advantages; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

14094 (Executive Order on Modernizing 

Regulatory Review) supplements and 

reaffirms the principles, structures, and 

definitions governing contemporary 

regulatory review established in 

Executive Order 12866 of September 30, 

1993 (Regulatory Planning and Review), 

and Executive Order 13563 of January 

18, 2011 (Improving Regulation and 

Regulatory Review). The Office of 

Information and Regulatory Affairs has 

determined that this rulemaking is not 

a significant regulatory action under 

Executive Order 12866, as amended by 

Executive Order 14094. The Regulatory 

Impact Analysis associated with this 

rulemaking can be found as a 

supporting document at 

www.regulations.gov. 

Regulatory Flexibility Act (RFA) 

The Secretary hereby certifies that 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities as they are 

defined in the Regulatory Flexibility Act 

(5 U.S.C. 601–612). The factual basis for 

this certification is that this rule would 

directly affect only individuals who are 

veterans applying for domiciliary care 

as well as States operating State homes 

and would not directly affect small 

entities. Therefore, pursuant to 5 U.S.C. 


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605(b), the initial and final regulatory 

flexibility analysis requirements of 5 

U.S.C. 603 and 604 do not apply. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This final rule will have no 

such effect on State, local, and tribal 

governments, or on the private sector. 

Paperwork Reduction Act (PRA) 

This final rule includes a provision 

constituting a revision to a current/valid 

collection of information under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3521). The revision also 

requires approval by the Office of 

Management and Budget (OMB). 

Accordingly, under 44 U.S.C. 3507(d), 

VA has submitted a copy of this 

rulemaking action to OMB for review 

and approval. VA received no 

comments on the revised collection of 

information. 

OMB has received the revised 

collection of information. OMB’s receipt 

of the revised collection of information 

is not an approval to conduct or sponsor 

an information collection under the 

Paperwork Reduction Act of 1995. In 

accordance with 5 CFR 1320, the 

revised collection of information 

associated with this rulemaking is not 

approved by OMB at this time. OMB’s 

approval of the revised collection of 

information will occur within 30 days 

after the Final rulemaking publishes. If 

OMB does not approve the new 

collection of information as requested, 

VA will immediately remove the 

provision containing a new collection of 

information or take such other action as 

is directed by OMB. 

The revised collection of information 

contained in 38 CFR 51.42(c) is 

described immediately following this 

paragraph, under its respective title. 

Title: List of Veteran Names for Claim 

Reconsideration. 

OMB Control No: 2900–0160. 

CFR Provision: 38 CFR 51.42(c). 

• Summary of collection of 

information: The collection of 

information in 38 CFR 51.42(c) would 

allow State homes to submit a list of 

veteran names whose completed forms 

were received by VA on or after January 

5, 2021, but VA subsequently denied the 

State home’s request for payment for the 

care of these veterans pursuant to 

current § 51.51(b), to VA for 

consideration of a waiver under 

§ 51.51(b)(2). This is a time limited 

opportunity—the list of names must be 

received within 90 days of the effective 

date of the rule. 

• Description of need for information 

and proposed use of information: The 

information will be used by VA to 

conduct retrospective reviews of denied 

applications and allow VA to process 

applicable retroactive payments in a 

timely manner. 

• Description of likely respondents: 

State home administrators and State 

homes that have admitted veterans in 

reliance on the authority granted by 

Public Law 116–315, section 3007(a) 

and that want these veterans considered 

for a waiver under § 51.51(b)(2). 

• Estimated number of respondents: 

Two. 

• Estimated frequency of responses: 

Once. 

• Estimated average burden per 

response: 90 minutes. 

• Estimated total annual reporting 

and recordkeeping burden: VA 

estimates the total annual reporting and 

recordkeeping burden to be 3 burden 

hours. Using the annual number of 

respondents 2, VA estimates a total 

annual reporting and recordkeeping 

burden of 3 hours for respondents. 

• Estimated cost to respondents per 

year: VA estimates the annual cost to 

respondents to be $177.21. Using VA’s 

average annual number of respondents, 

VA estimates the total information 

collection burden cost to be $177.21 per 

year *. (3 burden hours for respondents 

× $59.07 per hour). 

* To estimate the total information 

collection burden cost, VA used the 

Bureau of Labor Statistics (BLS) mean 

hourly wage for hourly wage for 

‘‘General and Operations Managers’’ of 

$59.07 per hour. This information is 

available at https://www.bls.gov/oes/ 

current/oes_nat.htm#13-0000. 

Congressional Review Act 

Pursuant to Subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (known as the 

Congressional Review Act) (5 U.S.C. 801 

et seq.), the Office of Information and 

Regulatory Affairs designated this rule 

as not satisfying the criteria under 5 

U.S.C. 804(2). 

List of Subjects 

38 CFR Part 17 

Administrative practice and 

procedure, Claims, Domiciliary care, 

Government contracts, Health care, 

Health facilities, Mental health 

programs, Reporting and recordkeeping 

requirements, Veterans. 

38 CFR Part 51 

Administrative practice and 

procedure, Claims, Domiciliary care, 

Government contracts, Health care, 

Health facilities, Mental health 

programs, Reporting and recordkeeping 

requirements, Veterans. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, approved and signed 

this document on October 21, 2024, and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. 

Consuela Benjamin, 

Regulation Development Coordinator, Office 

of Regulation Policy & Management, Office 

of General Counsel, Department of Veterans 

Affairs. 

For the reasons stated in the 

preamble, the Department of Veterans 

Affairs amends 38 CFR parts 17 and 51 

as set forth below: 

PART 17—MEDICAL 

■ 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, Pub. L. 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), (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. Revising paragraph (b)(2); and 

■ c. Removing and reserving paragraph 

(c). The revisions read as follows: 

§ 17.47 Considerations applicable in 

determining eligibility for hospital care, 

medical services, nursing home care, or 

domiciliary care. 

* * * * * 

(b) * * * 


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(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: 

Authority: 38 U.S.C. 101, 501, 1710, 1720, 

1741–1743, 1745, and as follows. 

* * * * * 

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

510, 1744, and Pub. L. 116–315 section 3007. 

* * * * * 

Section 51.51 also issued under Pub. L. 

116–315 section 3007. 

* * * * * 

■ 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 90 calendar days of 

[EFFECTIVE DATE OF FINAL RULE] 

the State home provides VA a written 

list of veterans’ names for whom 

completed forms were received by VA 

on or after January 5, 2021, and the State 

home requests that VA consider them 

for a waiver under § 51.51(b)(2); 

(2) With respect to the veterans on the 

written list under paragraph (c)(1) of 

this section, VA denied the State’s 

request for per diem for the veterans 

when their forms were originally 

submitted and the denial was solely 

because the veteran did not meet the 

requirements under 38 CFR 51.51(b) 

(2021); 

(3) Upon VA review, the veteran 

would have received a waiver under 

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

in effect when the request for per diem 

was originally submitted; and 

(4) Within 90 calendar days of 

[EFFECTIVE DATE OF FINAL RULE] 

the State home submits to VA a 

completed VA Form 10–5588, State 

Home Report and Statement of Federal 

Aid Claimed, for each month that the 

State home provided domiciliary care to 

a veteran for whom the home is 

requesting a waiver. The form would 

only cover the veterans not originally 

included on the form when submitted 

previously for that month. 

■ 7. Amend § 51.51 by revising 

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

follows: 

§ 51.51 Eligible veterans—domiciliary 

care. 

(a) * * * 

* * * * * 

(2) A veteran who VA determines has 

no adequate means of support. When an 

applicant’s annual income exceeds the 

rate of pension described in paragraph 

(a)(1) of this section, VA will determine 

if the applicant has no adequate means 

of support. This determination will be 

made through an assessment of the 

veteran’s deficits in health or functional 

status that may render the veteran 

incapable of achieving or sustaining 

independence in the community as 

determined by the Chief of Staff of the 

VA medical center of jurisdiction, or 

designee. Assessment of whether the 

veteran has no adequate means of 

support will be based on objective 

evidence that considers factors that are 

inclusive of but not limited to: 

(i) The impact of the severity of the 

veteran’s medical condition, disabilities, 

and symptoms on the veteran’s safety in 

the community; 

(ii) The impact of the severity of the 

veteran’s medical condition, disabilities, 

and symptoms on the veteran’s ability to 

provide self-care; 

(iii) The availability of community or 

family support systems; 

(iv) The impact of the severity of the 

veteran’s medical condition, disabilities, 

and symptoms on the veteran’s ability to 

access and utilize community support 

systems; 

(v) The risk of loss of housing in the 

community; 

(vi) The risk of loss of the veteran’s 

income; 

(vii) Access to outpatient mental 

health and substance use disorder care; 

and 

(viii) The current effectiveness of any 

outpatient mental health and substance 

use disorder care provided to the 

veteran. 

(b)(1) For purposes of this section, the 

eligible veteran must be able to perform 

the following: 

(i) Daily ablutions, such as brushing 

teeth, bathing, combing hair, and body 

eliminations, without assistance. 

(ii) Dress himself or herself with a 

minimum of assistance. 

(iii) Proceed to and return from the 

dining hall without aid. 

(iv) Feed himself or herself. 

(v) Secure medical attention on an 

ambulatory basis or by use of a 

personally propelled wheelchair. 

(vi) Have voluntary control over body 

eliminations or have control by use of 

an appropriate prosthesis. 

(vii) Make rational and competent 

decisions as to the veteran’s desire to 

remain in or leave the State home; or, 

if the veteran lacks the general capacity 

to make this residential care placement 

decision, as defined by State law, then 

the veteran’s legal representative 

designated in accordance with State 

law, is authorized to make this decision 

on behalf of the veteran. 

(2) The Chief of Staff of the VA 

medical center of jurisdiction, or 

designee, may waive the requirements 

in paragraph (b)(1) of this section for 

purposes of payment of per diem for 

domiciliary care in a State home on or 

after January 5, 2021, if the veteran is 

able to perform not fewer than four of 

the requirements set forth in such 

paragraph; or such waiver would be, 

based on a clinical determination, in the 

best interest of the veteran because 

receipt of domiciliary care in the 


ddrumheller on DSK120RN23PROD with RULES1
86250 Federal Register / Vol. 89, No. 210 / Wednesday, October 30, 2024 / Rules and Regulations 

1For more information and background on the 

OCS regulations generally, the reader may refer to 

the Proposed Rulemaking, December 5, 1991 (56 FR 

63774), and the final rule promulgated September 

4, 1992 (57 FR 40792). 

2Each COA which has been delegated the 

authority to implement and enforce part 55 will use 

its administrative and procedural rules as onshore. 

However, in those instances where EPA has not 

delegated authority to implement and enforce part 

55, as is the case in New Jersey, EPA will use its 

own administrative and procedural requirements to 

implement the substantive requirements. See 40 

CFR 55.14(c)(4). 

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. 2024–24912 Filed 10–29–24; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 55 

[EPA–R02–OAR–2024–0277; FRL 12035–02– 

R2] 

Outer Continental Shelf Air 

Regulations Update To Include New 

Jersey State Requirements 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is finalizing an update of 

a portion of the Outer Continental Shelf 

(OCS) air regulations proposed in the 

Federal Register on July 16, 2024. 

Requirements applying to OCS sources 

located within 25 miles of States’ 

seaward boundaries must be updated 

periodically to remain consistent with 

the requirements of the corresponding 

onshore area (COA), as mandated by the 

Clean Air Act (CAA). The portion of the 

OCS air regulations that is being 

updated here pertains to the 

requirements for OCS sources for which 

the State of New Jersey is the COA. The 

intended effect of approving the OCS 

requirements for the State of New Jersey 

is to regulate emissions from OCS 

sources in accordance with the 

requirements onshore. The requirements 

discussed below are proposed to be 

incorporated by reference into the Code 

of Federal Regulations and listed in the 

appendix to the OCS air regulations. 

DATES: This final rule is effective on 

November 29, 2024. The incorporation 

by reference of a certain publication 

listed in this rule is approved by the 

Director of the Federal Register as of 

November 29, 2024. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R02–OAR–2024–0277. All 

documents in the docket are available at 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Viorica Petriman, Air Programs Branch, 

Permitting Section, U.S. Environmental 

Protection Agency, Region 2, 290 

Broadway, New York, New York 10007, 

(212) 637–4021, petriman.viorica@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for this action? 

II. What comments were received in response 

to EPA’s proposed action? 

III. What action is EPA taking? 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

VI. Judicial Review 

I. What is the background for this 

action? 

On July 16, 2024, EPA proposed to 

incorporate by reference into the OCS 

air regulations at 40 CFR part 55 (‘‘Part 

55’’) 1 updated requirements pertaining 

to the State of New Jersey. See 89 FR 

57828. The action that EPA is taking 

today in this rule is to finalize those 

proposed updates. 

Section 328(a) of the CAA requires 

that for such OCS sources located 

within 25 miles of a State’s seaward 

boundary, the requirements shall be the 

same as would be applicable if the 

sources were located in the 

corresponding onshore area (COA). 

Because the OCS requirements are based 

on onshore requirements, and onshore 

requirements may change, CAA section 

328(a)(1) requires that EPA update the 

OCS requirements as necessary to 

maintain consistency with onshore 

requirements. To comply with this 

statutory mandate, EPA must 

incorporate by reference into part 55 all 

relevant State rules in effect for onshore 

sources, so they can be applied to OCS 

sources located offshore. This limits 

EPA’s flexibility in deciding which 

requirements will be incorporated into 

40 CFR part 55 and prevents EPA from 

making substantive changes to the 

requirements it incorporates. As a 

result, EPA may be incorporating rules 

into 40 CFR part 55 that do not conform 

to all of EPA’s State implementation 

plan (SIP) guidance or certain 

requirements of the CAA. Inclusion in 

the OCS rule does not imply that a rule 

meets the requirements of the CAA for 

SIP approval, nor does it imply that the 

rule will be approved by EPA for 

inclusion in the SIP. 40 CFR 55.12 

specifies certain times at which part 

55’s incorporation by reference of a 

State’s rules must be updated. One time 

such a ‘‘consistency update’’ must occur 

is when any OCS source applicant 

submits a Notice of Intent (NOI) under 

40 CFR 55.4 for a new or a modified 

OCS source. 40 CFR 55.4(a) requires that 

any OCS source applicant must submit 

to EPA an NOI before performing any 

physical change or change in method of 

operation that results in an increase in 

emissions if the OCS source is located 

within 25 miles of a State’s seaward 

boundaries. EPA must conduct any 

necessary consistency update when it 

receives an NOI, and prior to receiving 

any application for a preconstruction 

permit from the OCS source applicant. 

40 CFR 55.6(b)(2) and 55.12(f). On May 

10, 2024, EPA received a NOI from 

Atlantic Shores Offshore Wind Project 

3, LLC to submit an OCS permit 

application for the construction of a 

new OCS source (a wind energy project) 

about 7.3 nautical miles offshore New 

Jersey. 

EPA reviewed the New Jersey State 

Department of Environmental Protection 

(‘‘NJDEP’’) air rules currently in effect, 

to ensure that they are rationally related 

to the attainment or maintenance of 

Federal and State ambient air quality 

standards (AAQS) or part C of title I of 

the CAA, that they are not designed 

expressly to prevent exploration and 

development of the OCS, and that they 

are applicable to OCS sources. See 40 

CFR 55.1. EPA has also evaluated the 

rules to ensure they are not arbitrary 

and capricious. See 40 CFR 55.12(e). 

EPA has excluded New Jersey’s 

administrative or procedural rules,2 and 

requirements that regulate toxics which 

are not related to the attainment and 

maintenance of Federal and State 

AAQS. 

II. What comments were received in 

response to EPA’s proposed action? 

EPA’s proposed action provided a 30- 

day public comment period, which 

closed on August 15, 2024. During this 


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