19426 Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Rules and Regulations 

§ 165.T05–0263 Safety Zone: Mill Creek, 

Fort Monroe, VA, USNORTHCOM Civic 

Leader Tour and Aviation Demonstration. 

(a) Regulated Area. The following area 

is a safety zone: All waters in the 

vicinity of the Fort Monroe Military 

Reservation on Mill Creek within a 

1,320 foot radius of position 037°04′04′′ 

N/076°18′04′′ W (NAD 1983). 

(b) Definition: For the purposes of this 

part, Captain of the Port Representative: 

means any U.S. Coast Guard 

commissioned, warrant or petty officer 

who has been authorized by the Captain 

of the Port, Hampton Roads, Virginia to 

act on his behalf. 

(c) Regulations: (1) In accordance with 

the general regulations in § 165.23 of 

this part, entry into this zone is 

prohibited unless authorized by the 

Captain of the Port, Hampton Roads or 

his designated representatives. 

(2) The operator of any vessel in the 

immediate vicinity of this safety zone 

shall: 

(i) Stop the vessel immediately upon 

being directed to do so by any 

commissioned, warrant or petty officer 

on shore or on board a vessel that is 

displaying a U.S. Coast Guard Ensign. 

(ii) Proceed as directed by any 

commissioned, warrant or petty officer 

on shore or on board a vessel that is 

displaying a U.S. Coast Guard Ensign. 

(3) The Captain of the Port, Hampton 

Roads can be contacted on VHF–FM 

marine band radio channel 16 (156.8 

Mhz) or at telephone number 757–668– 

5555. 

(4) The Coast Guard Representatives 

enforcing the safety zone can be 

contacted on VHF–FM marine band 

radio channel 13 (165.65 Mhz) and 

channel 16 (156.8 Mhz). (d) 

Enforcement Period: This regulation 

will be enforced from 9 a.m. to 11:30 

a.m. and from 1:30 p.m. to 4 p.m. on 

April 28, 2009, and from 2:30 p.m. to 

4:30 p.m. on April 29, 2009. 

Dated: April 10, 2009. 

J.P. Novotny, 

Commander, U.S. Coast Guard, Captain of 

the Port, Hampton Roads, Acting. 

[FR Doc. E9–9798 Filed 4–28–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 51 and 58 

RIN 2900–AM97 

Per Diem for Nursing Home Care of 

Veterans in State Homes 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) amends its regulations 

which set forth a mechanism for paying 

per diem to State homes providing 

nursing home care to eligible veterans. 

More specifically, we are updating the 

basic per diem rate, implementing 

provisions of the Veterans Benefits, 

Health Care, and Information 

Technology Act of 2006, and making 

several other changes to better ensure 

that veterans receive quality care in 

State homes. 

DATES: Effective date: May 29, 2009. The 

incorporation by reference of certain 

publications listed in this rule is 

approved by the Director of the Federal 

Register as of May 29, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Theresa Hayes at (202) 461–6771 (for 

issues concerning per diem payments), 

and Christa Hojlo, PhD at (202) 461– 

6779 (for all other issues raised by this 

document), Office of Geriatrics and 

Extended Care, Veterans Health 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420. (The telephone 

numbers set forth above are not toll-free 

numbers.) 

SUPPLEMENTARY INFORMATION: This 

document amends the regulations at 38 

CFR part 51 (referred to below as the 

regulations), which set forth a 

mechanism for paying per diem to State 

homes providing nursing home care to 

eligible veterans. Under the regulations, 

VA pays per diem to a State for 

providing nursing home care to eligible 

veterans in a facility if the Under 

Secretary for Health recognizes the 

facility as a State home based on a 

determination that the facility meets the 

standards set forth in subpart D of the 

regulations. The standards set forth 

minimum requirements that are 

intended to ensure that VA pays per 

diem for eligible veterans only if the 

State homes provide quality care. This 

document also makes corresponding 

changes concerning VA forms set forth 

at 38 CFR part 58. 

This final rule is based on a proposed 

rule published in the Federal Register 

on November 28, 2008 (73 FR 72399). 

The proposed rule called for a 30 day 

comment period that ended on 

December 29, 2008. We received a 

number of comments from eight 

commenters (one commenter provided 

two submissions). One commenter 

merely agreed with the proposed 

changes. The other comments are 

discussed below. Based on the rationale 

set forth in the proposed rule and this 

document, we have adopted the 

provisions of the proposed rule as a 

final rule with changes discussed below. 

Nurse Practitioners 

Proposed § 51.2 defined the term 

‘‘nurse practitioner’’ as ‘‘a licensed 

professional nurse who is currently 

licensed to practice in the State; who 

meets the State’s requirements 

governing the qualifications of nurse 

practitioners; and who is currently 

certified as an adult, family, or 

gerontological nurse practitioner by a 

nationally recognized body that 

provides such certification for nurse 

practitioners, such as the American 

Nurses Credentialing Center or the 

American Academy of Nurse 

Practitioners.’’ 

Three commenters argued directly or 

implicitly that certification is not 

essential for the provision of high 

quality care and that licensure is a 

sufficient measure of competence. One 

of the commenters argued that national 

certification would create an undue 

burden for nurse practitioners (‘‘enroll 

in an exam course, pay for course work, 

travel, lodging and registration fees, and 

sit for the exam’’) and indicated that 

some may fail the exam or fail to meet 

renewal requirements. The commenter 

further asserted that nurse practitioners 

who are currently employed should be 

subject to a grandfather clause that 

allows them to work as nurse 

practitioners without national 

certification. We made no changes based 

on these comments. The proposed rule 

did not create a new certification 

requirement but merely broadened the 

list of certifying organizations to any 

nationally recognized certifying body 

because the previously listed 

organization does not provide such 

certification. 

Recognition and Certification 

Proposed § 51.30(a)(1) provided that 

VA would not conduct the recognition 

survey until the new facility has at least 

21 residents or the number of residents 

consists of at least 50 percent of the new 

bed capacity of the facility. 

One commenter seemed to read the 

provisions at proposed § 51.30(a)(1) by 

associating the portion of the formula 

regarding 21 residents with new 

facilities and associating the portion of 

the formula regarding 50 percent of the 

new bed capacity to renovations. This is 

not what was intended. Both portions of 

the formula were intended to apply to 

recognition surveys. Accordingly, we 

clarified the regulation to state that the 

recognition survey will be conducted 

only after the new facility either has at 

least 21 residents or has a number of 

residents that consist of at least 50 

percent of the new bed capacity of the 

new facility. We also note that under 


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§ 51.30(b), a separate recognition is 

required for changes involving an 

annex, branch, enlargement, expansion, 

or relocation. 

Two commenters asserted that the 

portion of the formula concerning 21 

residents is excessive. One commenter 

noted that CMS (Centers for Medicare & 

Medicaid Services) only requires 3 

residents to determine whether a facility 

meets the CMS standards. Another 

commenter asserted that a facility 

should only be required to have ten 

residents for an initial test survey and 

that per diem could begin after the 

initial test survey with a more detailed 

survey to follow. New providers/ 

suppliers must be in operation and 

providing services to patients when 

surveyed. This means that at the time of 

survey, the institution must have 

opened its doors to admissions, be 

furnishing all services necessary to meet 

the applicable provider or supplier 

definition, and demonstrate the 

operational capability of all facets of its 

operations. To be considered ‘‘fully 

operational,’’ initial applicants must be 

serving a sufficient number of patients 

so that compliance with all 

requirements can be determined. 

Centers for Medicare & Medicaid 

Services, State Operations Manual, Pub. 

No. 100–07, Ch. 2 sec. 2008A. The 

commenters ultimately asserted that the 

proposed provisions would place a 

financial burden on veterans who might 

be responsible for costs until VA begins 

paying per diem. We made no changes 

based on these comments. Based on our 

experience in conducting surveys and 

following the progress of new State 

homes in meeting VA standards, the 

criteria as proposed set forth the 

minimum requirements (21 residents or 

50 percent of new bed capacity) for 

conducting a survey that could 

determine whether a facility meets VA 

standards. 

Proposed § 51.30(d), (e), and (f) sets 

forth the process by which a State may 

appeal a decision by a director of a VA 

medical center of jurisdiction that a 

State home facility or facility 

management did not meet the standards 

of subpart D. The appeal is made to the 

Under Secretary for Health. The 

proposed provisions were intended to 

allow appeals to the Under Secretary in 

response to directors’ recommendations 

regardless of whether the 

recommendations were made prior to 

recognition or after recognition. One 

commenter indicated that there is no 

procedure to appeal the decision of the 

Under Secretary. A decision of the 

Under Secretary, however, may be 

appealed to the Board of Veterans’ 

Appeals. For further information on this 

appeal process, please refer to 38 U.S.C. 

7104 and 7105 and 38 CFR part 20. We 

clarified § 51.30(f) to state that the 

decisions of the Under Secretary are 

final decisions that may be appealed to 

the Board of Veterans’ Appeals. The 

commenter further asserted that there is 

no requirement that the Under Secretary 

take into account the arguments and 

evidence presented in a State’s appeal. 

We made no changes based on this 

comment. Section 51.30(f) states that the 

Under Secretary will review any 

relevant supporting information. This 

would include the arguments and 

evidence presented by the State. 

Rate Based on Service Connection 

The provisions of 38 U.S.C. 1745(a), 

which were established by section 211 

of the Veterans Benefits, Health Care, 

and Information Technology Act of 2006 

(Pub. L. 109–461), set forth a 

mechanism for paying a higher per diem 

rate for certain veterans with serviceconnected disabilities receiving nursing 

home care in State homes. 

Under this authority, the per diem 

rate was increased for: 

• Any veteran in need of nursing 

home care for a service-connected 

disability, and 

• Any veteran who has a serviceconnected disability rated at 70 percent 

or more and is in need of nursing home 

care. 

Under the cited statutory authority, 

the new per diem rate is the lesser of the 

following: 

• The applicable or prevailing rate 

payable in the geographic area in which 

the State home is located, as determined 

by the Secretary, for nursing home care 

furnished in a non-Department nursing 

home (i.e., a public or private institution 

not under the direct jurisdiction of VA 

which furnishes nursing home care); or 

• A rate not to exceed the daily cost 

of care in the State home facility, as 

determined by the Secretary, following 

a report to the Secretary by the director 

of the State home. 

Several commenters seemed to be 

confused about the connection between 

higher per diem for certain veterans 

with service-connected disabilities and 

the provision of drugs and medicines to 

veterans in State homes. As more fully 

explained below, under the Veterans 

Benefits, Health Care, and Information 

Technology Act of 2006, VA does not 

have authority to provide drugs and 

medicines to veterans who are receiving 

care for which the higher per diem is 

payable. 

Proposed § 51.41(a)(2) stated that the 

higher per diem rate for certain veterans 

with service-connected disabilities 

would apply to a veteran with a rating 

of total disability based on individual 

unemployability. One commenter 

questioned whether all veterans must 

have a rating of total disability based on 

individual unemployability as a 

condition for receiving the higher rate of 

per diem based on service connection. 

Another commenter questioned whether 

§ 51.41(a)(2) would be applicable to an 

individual who is unemployable 

because of disabilities that are not 

service connected. We made no changes 

based on these comments. Veterans who 

are otherwise eligible for the higher per 

diem do not also need a rating of total 

disability based on individual 

unemployability from VA for the State 

to receive the higher rate of per diem on 

their behalf. However, the law permits 

VA to pay a higher per diem for veterans 

only based on their service-connected 

disabilities. States thus would not 

receive the higher per diem for veterans 

who are unemployable based on 

disabilities that are not service 

connected unless these veterans also 

have service-connected disabilities that 

meet the requirements for payment of 

the higher per diem. 

With respect to the higher per diem 

rate for certain veterans in State homes, 

one commenter questioned whether a 

State home would receive different 

amounts based on the rating, i.e., 70 

percent of the maximum per diem for a 

veteran with a rating of 70 percent, 80 

percent of the maximum per diem for a 

veteran with a rating of 80 percent, and 

so on. We made no changes based on 

this comment. Under the statutory 

provisions of 38 U.S.C. 1745 and 

§ 51.41, the State home would receive 

the same per diem amount for these 

veterans. 

With respect to the calculation of the 

higher per diem, commenters objected 

to the methodology in the proposed 

rule. One commenter asserted that the 

higher per diem rate should be the 

actual cost of care as determined by the 

State home. The commenter also 

asserted that the amount should be not 

less than the Medicare amount, the 

Medicaid amount, or the amount VA 

pays for veterans in private nursing 

homes. One commenter argued that, 

compared to the population used in the 

proposed methodology, these serviceconnected veterans would need more 

care because they are generally older 

and mostly male. The commenter also 

indicated that the population used for 

the calculations would be based in large 

part on Medicare factors and asserted 

that some nursing homes do not take 

Medicare payments. The commenter 

further asserted that VA should use data 

from State homes. We made no changes 

based on these comments. The statutory 


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provisions at 38 U.S.C. 1745 require that 

the new higher per diem rate be the 

lesser of the following: 

• The applicable or prevailing rate 

payable in the geographic area in which 

the State home is located, as determined 

by the Secretary, for nursing home care 

furnished in a non-Department nursing 

home (i.e., a public or private institution 

not under the direct jurisdiction of VA 

which furnishes nursing home care); or 

• A rate not to exceed the daily cost 

of care in the State home facility, as 

determined by the Secretary, following 

a report to the Secretary by the director 

of the State home. 

The law thus requires VA to use the 

actual cost of care in State homes based 

on a report from the home in 

determining the higher per diem, and 

the home will receive its actual cost if 

it is less than the applicable or 

prevailing rate. However, as stated in 

the preamble to the proposed rule: ‘‘VA 

is considering a modification to the 

proposed payment structure to be 

introduced after two or three years of 

experience with the [Resource 

Utilization Group-III (RUG III)] 

approach. In the modification, VA 

would use the actual case-mix of the 

individual state veteran nursing home to 

determine the reimbursement rate, 

rather than assuming that every nursing 

home has an equal number of veterans 

in each of the 53 RUG III levels. This 

modification will allow for more 

accurate payments, reimbursing nursing 

homes at a higher rate for treating 

veterans with more intensive needs.’’ 

One commenter asserted that we should 

use the earlier time frame of two years 

to take action to modify the payment 

structure. We made no changes based on 

this comment. We will work as fast as 

possible to take any actions necessary to 

improve the payment methodology. 

One commenter asserted that there is 

no indication in the proposed rule as to 

how frequently adjustments would be 

made to payments under § 51.41(b)(1) 

and further asserted that the regulations 

should include the process for 

adjustment. One commenter questioned 

whether VA would recalculate amounts 

each month for the higher per diem rate. 

In response, we note that the preamble 

to the proposed rule made clear that the 

adjustments would be made annually 

(see 73 FR 72401–72402). As stated in 

the preamble, the formula for 

establishing the rate includes CMS 

information that is published in the 

Federal Register every summer and is 

effective beginning October 1 for the 

entire fiscal year. We have added 

information in the note to § 51.41(b)(1), 

explaining that adjustments will be 

made annually. 

One commenter argued that the 

conclusion that the physician portion 

should be based on one hour per month 

is too little. Another commenter asked 

how the formula would include costs 

for physician extenders. Another 

commenter questioned whether a 

facility would receive a higher payment 

‘‘if it is determined that each patient 

receives (and needs) substantially more 

than one hour of combined physician 

contact each month.’’ Another 

commenter asserted that Texas does not 

use salaried physicians at their State 

homes and questioned whether Texas 

State homes would receive higher 

amounts to offset this practice. As an 

alternative, the commenter asserted that 

State homes should be allowed to 

continue to use Medicare Part B for the 

physician portion. We made no changes 

based on these comments. Based on our 

experience, we believe that one hour is 

the appropriate amount of time for the 

calculations for all of the primary care 

that would be provided by physicians or 

physician extenders as authorized under 

the regulations. The rate is based on 

averages, and it would not be 

administratively feasible to make a 

separate formula for each facility. 

One commenter further asserted that 

State homes should not be required to 

pay for outside specialist costs. We 

made no changes based on this 

comment. Outside specialty care is not 

considered a part of nursing home care. 

One commenter asked for VA to 

provide sample calculations to show 

how the formula works for VA’s 

computation of the higher per diem. We 

made no changes based on this 

comment. The commenter was sent a 

sample calculation. We would be happy 

to provide sample per diem calculations 

to others upon request (see FOR FURTHER

INFORMATION CONTACT above for contact 

information). 

One commenter asserted that the 

higher per diem rate should be made 

applicable to VA programs outside of 

the State home program. We made no 

changes based on this comment because 

it is not within the scope of this 

rulemaking proceeding. This rule 

implements only the statutory 

provisions at 38 U.S.C. 1741–1743 and 

1745 regarding nursing home care 

provided in State homes. 

Drugs and Medicines 

The provisions of 38 U.S.C. 1745(b) 

require VA to furnish recognized State 

homes with such drugs and medicines 

as may be ordered by prescription of a 

duly licensed physician as specific 

therapy in the treatment of illness or 

injury for certain veterans with serviceconnected disabilities. 

One commenter questioned whether 

veterans for whom the higher per diem 

rate is payable would also receive drugs 

and medicines under section 1745(b). 

Two commenters argued that the 

payment of the higher per diem for 

veterans should not bar the receipt of 

drugs and medicines under 38 U.S.C. 

1712(d) and corresponding VA 

regulations. One of the commenters 

questioned whether all veterans with a 

service-connected disability would 

receive drugs and medicines under 

proposed § 51.41. We made no changes 

based on these comments. Section 

1745(b) states that drugs and medicines 

provided under that statutory provision 

cannot be provided to veterans who are 

being provided nursing home care for 

which the higher per diem is payable. 

In addition, section 1745(a)(3) provides 

that payment by VA of the higher per 

diem constitutes payment in full to the 

State home for the veteran’s nursing 

home care. We interpret this provision 

to mean that the higher per diem 

includes the cost of drugs and 

medicines, which provides the basis for 

the provision in § 51.41 that, as a 

condition of receiving payments, the 

State home must agree not to accept 

drugs and medicines from VA on behalf 

of veterans provided under 38 U.S.C. 

1712(d) and corresponding VA 

regulations. Also, section 1745(b) does 

not authorize VA to provide drugs to all 

veterans with a service-connected 

disability. 

One commenter questioned, for 

purposes of proposed § 51.42, who 

would determine if drugs and medicines 

are needed and how fast these 

determinations would be made. We 

made no changes based on these 

comments. As indicated in § 51.42, the 

physician prescribing the drug or 

medicine would make this 

determination. These determinations 

would be made in the normal course of 

business. 

One commenter questioned whether a 

facility would have a choice in how the 

medications sent to the facility would 

be packaged, e.g., punch cards, unit 

doses, stock. We made no changes based 

on this comment. VA will work with 

State homes and when practical meet 

the requests of State homes for 

packaging the drugs and medications. 

One commenter questioned how 

veterans would receive drugs and 

medicines that may be needed before 

they could be supplied by VA. Two 

commenters questioned how the State 

home would receive reimbursement for 

supplying such drugs and medications. 

We made no changes based on these 

comments. The statute at 38 U.S.C. 

1745(b) does not authorize VA to 


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Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Rules and Regulations 19429 

reimburse States for the cost of drugs 

and medicines. However, as we have 

done in the existing VA program under 

which VA provides drugs and 

medicines to State homes on behalf of 

certain service-connected veterans, VA 

will work with State homes to establish 

working relationships that will allow for 

the most efficient methods of supplying 

drugs and medicines. 

Retroactive Payments 

Section 211(a)(5) of Public Law 109– 

461 required the higher per diem rate 

based on service connection to take 

effect on March 21, 2007 (90 days after 

enactment of the law). This authority 

also required that the provision of drugs 

and medicines for specified veterans 

take effect on the same date. 

Accordingly, the preamble to the 

proposed rule indicated that VA would 

make retroactive payments constituting 

the difference between the basic per 

diem actually paid and the higher per 

diem required for care provided to 

specified veterans on and after March 

21, 2007. The preamble also indicated 

that VA would make retroactive 

payments constituting the amount State 

homes paid for drugs and medicines for 

specified veterans on and after March 

21, 2007 (not including any 

administrative costs) (73 FR 72401). 

The preamble to the proposed rule 

also asserted that VA would not make 

retroactive payments if the State home 

received any payment for such care or 

for such medicines and drugs from any 

source unless the amount received was 

returned to the payor (73 FR 72401). 

One commenter indicated that States 

should not be required to make refunds 

prior to receipt of VA payments because 

some States may not have sufficient 

funds to advance the payor. One 

commenter asserted that VA should 

establish a process for returning 

payments received under the Medicare 

and Medicaid programs. The commenter 

also asserted that VA should establish a 

process for reimbursing physicians who 

are not State employees and who 

obtained payments under Medicare Part 

B. One commenter asserted that a State 

should make repayments to the estate of 

a deceased veteran prior to receiving 

retroactive payments from VA that cover 

payments previously made by the 

veteran. We made no changes based on 

these comments. Regardless of whether 

the return of payment is made prior to 

VA’s payment or immediately after VA’s 

payment, the responsibility for the 

return of a payment rests with the State 

home that received the payment. 

One commenter questioned whether 

VA will make retroactive payments from 

March 2007. As stated in the preamble 

to the proposed rule (73 FR 72401), VA 

will make retroactive payments for care 

provided on and after March 21, 2007, 

and for drugs and medicines provided 

on and after March 21, 2007. 

Proposed § 51.43(d) provided that per 

diem payments would be made 

retroactively for care that was provided 

on and after the date of the completion 

of VA’s survey of the facility that 

provided the basis for determining that 

the facility met VA’s standards. One 

commenter asserted that VA should pay 

per diem payments retroactively back to 

the date the State home opened for 

operation. We made no changes based 

on this comment. The statutory 

provisions at 38 U.S.C. 1741(d) provide 

for payment of per diem to commence 

on the date of the completion of the 

inspection that recognized the State 

home as meeting VA’s standards, as 

determined by the Secretary. 

One commenter essentially 

questioned when new VA Form 10– 

0460 (captioned ‘‘Request for 

Prescription Drugs from an Eligible 

Veteran in a State Home’’) would be 

used by State homes. We made no 

changes based on this comment. The 

form should be used from the effective 

date of this document. 

Time Limits 

One commenter asserted that a State 

home should be given 30 days to apply 

for retroactive payments and monthly 

per diem and VA should be given 30 

days to act on applications and begin 

making payments. We made no changes 

based on this comment. State homes are 

allowed to submit immediately for VA 

retroactive payments and are allowed to 

submit requests for monthly payments 

as soon as they are due. The regulation 

imposes no deadline on when States 

must seek retroactive payments. VA will 

respond promptly to States’ requests but 

will not establish the deadline suggested 

by the commenter because it is difficult 

to predict the availability of resources at 

any given time. 

Compensation 

One commenter asserted that those 

veterans receiving VA compensation 

should not be required to use any of 

such funds for the cost of their State 

home care. We made no changes based 

on this comment. We know of no basis 

for treating VA compensation differently 

from other income or other funds of a 

resident except that the State home is 

prohibited from charging a veteran for 

nursing home care when VA pays the 

higher per diem rate based on service 

connection because VA’s payment 

constitutes payment in full for the care 

provided (see 38 U.S.C. 1745(a)(3)). 

Bed Holds 

We proposed to make changes to the 

bed hold rule. Proposed § 51.43(c) 

provided that per diem would be paid 

for a bed hold only if the veteran has 

established residency by being in the 

facility for 30 consecutive days 

(including overnight stays) and the 

facility has an occupancy rate of 90 

percent or greater. In addition, we 

proposed that per diem for a bed hold 

would be paid ‘‘only for the first 10 

consecutive days during which the 

veteran is admitted as a patient in a VA 

or other hospital (this could occur more 

than once in a calendar year) and only 

for the first 12 days in a calendar year 

during which the veteran is absent for 

purposes other than receiving hospital 

care.’’ 

One commenter argued that residency 

should be established by admission and 

that a transfer to an acute care facility 

should not affect residency. The 

commenter further asserted that the 

proposed rule failed to provide a 

rationale for the residency requirement. 

One commenter asserted that the 

regulations should allow a bed hold for 

at least 15 days for a resident who is 

absent due to hospitalization unless the 

nursing home documents that it has 

objective information from the hospital 

confirming that the patient will not 

return to the nursing home within 15 

days of the hospital admission. We 

made no changes based on these 

comments. As we indicated in the 

preamble to the proposed rule, VA 

believes that State homes should receive 

per diem for bed holds only if the State 

would likely fill the bed without such 

payments and only if the veteran has 

established residency at the State home 

(73 FR 72402). We believe that 30 days 

is a minimal amount of time for 

demonstrating that a veteran intends to 

be a resident at the State home and that 

the veteran was not temporarily placed 

in the State home. 

With respect to hospital absences, one 

commenter questioned whether the 

regulations provide for VA to pay per 

diem ‘‘for only 10 consecutive overnight 

hospital absences or any number of 

overnight hospital absences but only up 

to ten consecutive days maximum 

period each time.’’ We have clarified the 

regulations to state that VA will provide 

per diem ‘‘only for the first 10 

consecutive days during which the 

veteran is admitted as a patient for any 

stay in a VA or other hospital (a hospital 

stay could occur more than once in a 

calendar year).’’ 

One commenter asserted that the 90 

percent occupancy requirement should 

not apply to a new facility for the first 


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19430 Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Rules and Regulations 

two years of operation. The commenter 

asserted that this would afford the time 

to safely fill the building to the 90 

percent occupancy rate. We made no 

changes based on this comment. The 

request is inconsistent with the purpose 

of a bed hold. As stated in the preamble 

to the proposed rule, payments for bed 

holds are intended to assure that 

nursing home residents who are 

hospitalized or who are granted leave 

for other purposes are assured a nursing 

home bed upon return to the nursing 

home (73 FR 72402). It is unlikely that 

facilities with an occupancy of less than 

90 percent would fill the bed of an 

absent resident. 

One commenter questioned how to 

determine when a facility has an 

occupancy rate of 90 percent or greater. 

We made no changes based on this 

comment. The occupancy rate would be 

determined by dividing the number of 

residents by the number of beds 

identified in the recognition process. If 

a facility is recognized as a 100 bed 

facility and has 90 residents, the 

occupancy rate is 90 percent. 

One commenter asserted that their 

facility was constructed with a 400-bed 

capacity but now, because of a nurse 

shortage, operates at a maximum of 300 

beds. The commenter asked whether the 

90 percent requirement would apply to 

the lower amount. We made no changes 

based on this comment. The lower 

amount would apply only if the amount 

were based on a formal re-recognition 

action. 

Resident Rights 

Proposed § 51.70(c)(5) provided that 

‘‘[u]pon the death of a resident with a 

personal fund deposited with the 

facility, the facility management must 

convey within 90 calendar days the 

resident’s funds, and a final accounting 

of those funds, to the individual or 

probate jurisdiction administering the 

resident’s estate; or other appropriate 

individual or entity, if State law 

allows.’’ One commenter asserted that 

the regulations should provide a waiver 

from the 90 day requirement in those 

cases when ‘‘funds are inadequate, there 

are multiple creditors and relatives and 

the matter is tied in probate or no 

relative or creditor is located or willing 

to open an estate.’’ We made no changes 

based on this comment. The regulations 

only require that the time limit be met 

when the funds can be conveyed ‘‘to the 

individual or probate jurisdiction 

administering the resident’s estate; or 

other appropriate individual or entity, if 

State law allows.’’ VA sees no reason 

why funds should be retained for longer 

periods under these circumstances. 

Quality of Life 

Proposed § 51.100(h)(2) clarified the 

regulations to specify that a nursing 

home with 100 or more beds would be 

required to employ one or more 

qualified social workers who work for a 

total period that equals at least the work 

time of one full-time employee (FTE). 

We also proposed to clarify the 

regulations to specify that a State home 

must provide qualified social worker 

services in proportion to the total 

number of beds in the home, 

specifically one or more social worker 

FTE per 100 beds. For example, under 

the proposal a nursing home with 50 

beds would be required to employ one 

or more qualified social workers who 

work for a total period equaling at least 

one-half FTE and a nursing home with 

150 beds would be required to employ 

qualified social workers who work for a 

total period equaling at least one and 

one-half FTE. One commenter asserted 

that this requirement is too onerous and 

that others could perform the social 

work under the supervision of a social 

worker. The commenter further asserted 

that a grandfather clause, a waiver, or a 

phase-in time should be allowed for 

those not meeting the requirement. The 

commenter also asserted that, instead of 

a 1:100 ratio, VA should establish the 

ratio of 1:120. 

We believe that a resident must have 

access to a quality social work program 

to help ensure the well being of the 

resident. We believe that we could 

increase the ratio to 1:120, which is the 

CMS standard and still allow for 

sufficient availability of social workers. 

Accordingly, the final rule reflects this 

change. However, we made no further 

changes because we believe that only 

qualified social workers would have the 

skills necessary to provide this 

specialized help needed by residents. 

Resident Assessment 

Section 51.110 requires facility 

management to ‘‘conduct initially, 

annually and as required by a change in 

the resident’s condition a 

comprehensive, accurate, standardized, 

reproducible assessment of each 

resident’s functional capacity.’’ Section 

51.110(b)(3) also requires quarterly 

reassessments. 

Proposed § 51.110(b)(1)(i) required 

officials conducting such assessments, 

among other things, to use the Centers 

for Medicare and Medicaid Services 

(CMS) Resident Assessment Instrument 

Minimum Data Set (RAI/MDS), Version 

2.0. Two commenters asserted that the 

version will be updated and that we 

should use a generic reference so that 

we could require compliance with the 

changed versions as they are adopted. 

We made no changes based on these 

comments. We prefer our incremental 

approach because it allows us to review 

each new version of the standard prior 

to making it applicable. 

Two commenters asserted that VA 

should clarify the purposes for such 

CMS RAI/MDS submissions. One of the 

commenters further questioned whether 

VA would calculate RUG scores from 

this information and questioned how 

differences between VA and facilities 

would be resolved. We made no changes 

based on these comments. The purpose 

for obtaining the information is not to 

challenge the data reviewed. VA uses 

the quality indicators to prepare for 

surveys. 

Also, we proposed to require each 

State home to submit each assessment to 

VA at a VA email address. Two 

commenters asserted that facilities 

should be able to submit the data by 

electronic means other than email. We 

agree that the information should be 

submitted electronically in a form other 

than email. Accordingly, the final rule 

requires the submission to be made 

electronically to the IP address provided 

by VA. 

Physical Environment 

Proposed § 51.200 required State 

home facilities to meet certain 

provisions of the National Fire 

Protection Association’s NFPA 101, Life 

Safety Code and the NFPA 99, Standard 

for Health Care Facilities. These 

documents are incorporated by 

reference in accordance with the 

provisions of 5 U.S.C. 552(a) and 1 CFR 

Part 51. We proposed to change the 

regulations to update these documents 

to refer to the current editions of the 

NFPA code and standard. One 

commenter asserted that the updates 

should apply only to new construction 

and renovation. The commenter further 

asserted that existing State homes 

‘‘should be grandfathered and assessed 

under the standards that were in place 

when the Homes were constructed and 

initially surveyed.’’ These documents 

represent national consensus standards 

that are generally recognized as 

minimum standards for life and safety. 

Ultimately, we believe that State homes 

must work to protect residents by 

meeting the minimum consensus 

standards contained in these 

documents. 

The standards for existing facilities 

take into account that some changes 

may take a considerable amount of time 

to make, such as installation of sprinkler 

systems for existing nursing homes. The 

Centers for Medicare & Medicaid 

Services (CMS) has determined that 


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August 13, 2013, provides a reasonable 

amount of time to install sprinkler 

systems in existing nursing homes, as 

required by paragraph 19.3.5.1 in the 

2006 edition of NFPA 101, which 

specifically states ‘‘Buildings containing 

nursing homes shall be protected 

throughout by an approved, supervised 

automatic sprinkler system in 

accordance with Section 9.7, unless 

otherwise permitted by 19.3.5.4.’’ We 

agree, and therefore based on the above 

comment we have included such a 

requirement in the final rule. We note 

that paragraph 13–3.5.1 in the 1997 

edition of NFPA 101 requires sprinkler 

protection for buildings of certain 

construction types. The requirement for 

sprinkler protection due to construction 

type is also found in paragraph 19.1.6 in 

the 2006 edition of NFPA 101. The 

changes in § 51.200 are not intended to 

postpone enforcement of the existing 

requirement for sprinkler protection in 

nursing homes due to the construction 

type of the building. 

The proposed rule indicated that we 

would incorporate by reference the 2006 

edition of the standard. This was in 

error since the latest edition of the 

standard is the 2005 edition. Therefore, 

we are incorporating by reference the 

2005 edition. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

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

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in an 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

given year. This rule will have no such 

effect on State, local, and tribal 

governments, or on the private sector. 

Paperwork Reduction Act 

The final rule at §§ 51.43, 58.11, 

58.13, and 58.18 contains collections of 

information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3521). The Office of Management and 

Budget (OMB) assigns a control number 

for each 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. These regulations set 

forth a mechanism for State homes to 

obtain per diem payments as well as 

drugs and medicines. 

The final rule at § 51.110 also 

contains a collection of information. VA 

has already obtained OMB clearance for 

the use of Minimum Data Sets (initial, 

annual, significant change in condition, 

and quarterly) (OMB Control Number 

2900–0160). However, the final rule 

requires such Minimum Data Sets to be 

electronically transmitted to VA. 

In a notice published in the Federal 

Register on November 28, 2008 (73 FR 

72399), we requested public comments 

on these collections of information. We 

did not receive any comments. 

OMB has approved those collections 

and a number of other collections in 

part 51 under OMB Control Numbers 

2900–0160 and 2900–0091. We are 

adding a statement to all of the sections 

in part 51 for which collections have 

been approved so that each applicable 

control number is displayed for each 

collection. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity). The 

Executive Order classifies a ‘‘significant 

regulatory action’’ requiring review by 

OMB, as any regulatory action that is 

likely to result in a rule that may: (1) 

Have an annual effect on the economy 

of $100 million or more or adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities; 

(2) create a serious inconsistency or 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

entitlement recipients; (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

The economic, interagency, 

budgetary, legal, and policy 

implications of this final rule have been 

examined and it has been determined to 

be a significant regulatory action under 

Executive Order 12866 because it may 

result in a rule that raises novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this regulatory amendment 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. This 

rulemaking will affect veterans, State 

homes, and pharmacies. The State 

homes that are subject to this 

rulemaking are State government 

entities under the control of State 

governments. All State homes are 

owned, operated and managed by State 

governments except for a small number 

that are operated by entities under 

contract with State governments. These 

contractors are not small entities. Also, 

this rulemaking will have only an 

insignificant impact on a small number 

of pharmacies that could be considered 

small entities. Therefore, pursuant to 5 

U.S.C. 605(b), this amendment is 

exempt from the initial and final 

regulatory flexibility analysis 

requirements of sections 603 and 604. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance numbers and titles for the 

programs affected by this document are 

64.005, Grants to States for Construction 

of State Home Facilities; 64.007, Blind 

Rehabilitation Centers; 64.008, Veterans 

Domiciliary Care; 64.009, Veterans 

Medical Care Benefits; 64.010, Veterans 

Nursing Home Care; 64.011, Veterans 

Dental Care; 64.012, Veterans 

Prescription Service; 64.013, Veterans 

Prosthetic Appliances; 64.014, Veterans 

State Domiciliary Care; 64.015, Veterans 

State Nursing Home Care; 64.016, 

Veterans State Hospital Care; 64.018, 

Sharing Specialized Medical Resources; 

64.019, Veterans Rehabilitation Alcohol 

and Drug Dependence; 64.022, Veterans 

Home Based Primary Care; and 64.026, 

Veterans State Adult Day Health Care. 

List of Subjects in 38 CFR Parts 51 and 

58 

Administrative practice and 

procedure, Claims, Day care, Dental 

health, Government contracts, Grant 

programs—health, Grant programs— 

veterans, Health care, Health facilities, 

Health professions, Health records, 

Incorporation by reference, Mental 

health programs, Nursing homes, 

Reporting and recordkeeping 

requirements, Travel and transportation 

expenses, Veterans. 

Approved: February 27, 2009. 

John R. Gingrich, 

Chief of Staff, Department of Veterans Affairs. 

■ For the reasons set forth in the 

preamble, 38 CFR parts 51 and 58 are 

amended as follows: 

PART 51—PER DIEM FOR NURSING 

HOME CARE OF VETERANS IN STATE 

HOMES 

■ 1. The authority citation for part 51 is 

revised to read as follows: 


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Authority: 38 U.S.C. 101, 501, 1710, 1741– 

1743, 1745. 

■ 2. Amend part 51 by removing the 

phrase ‘‘Geriatrics and Extended Care 

Strategic Healthcare Group’’ each place 

it appears and adding, in its place, 

‘‘Office of Geriatrics and Extended 

Care’’. 

Subpart A—General 

■ 3. Amend § 51.2 by revising the 

definitions of the terms ‘‘Clinical nurse 

specialist’’ and ‘‘Nurse practitioner’’ to 

read as follows: 

§ 51.2 Definitions. 

* * * * * 

Clinical nurse specialist means a 

licensed professional nurse who has a 

Master’s degree in nursing with a major 

in a clinical nursing specialty from an 

academic program accredited by the 

National League for Nursing and who is 

certified by a nationally recognized 

credentialing body (such as the National 

League for Nursing, the American 

Nurses Credentialing Center, or the 

Commission on Collegiate Nursing 

Education). 

* * * * * 

Nurse practitioner means a licensed 

professional nurse who is currently 

licensed to practice in the State; who 

meets the State’s requirements 

governing the qualifications of nurse 

practitioners; and who is currently 

certified as an adult, family, or 

gerontological nurse practitioner by a 

nationally recognized body that 

provides such certification for nurse 

practitioners, such as the American 

Nurses Credentialing Center or the 

American Academy of Nurse 

Practitioners. 

* * * * * 

Subpart B—Obtaining Per Diem for 

Nursing Home Care in State Homes 

■ 4. Amend § 51.20 by revising 

paragraph (a) and adding a parenthetical 

statement after the authority citation, to 

read as follows: 

§ 51.20 Application for recognition based 

on certification. 

* * * * * 

(a) Send a request for recognition and 

certification to the Chief Consultant, 

Office of Geriatrics and Extended Care 

(114), VA Central Office, 810 Vermont 

Avenue, NW., Washington, DC 20420. 

The request must be in the form of a 

letter and must be signed by the State 

official authorized to establish the State 

home; 

* * * * * 

(The Office of Management and Budget has 

approved the information collection 

requirements in this section under control 

number 2900–0160.) 

■ 5. Amend § 51.30 as follows: 

■ a. Revise paragraph (a)(1). 

■ b. Revise paragraphs (d), (e), and (f). 

■ c. Add a parenthetical statement after 

the authority citation. 

The revisions and addition read as 

follows: 

§ 51.30 Recognition and certification. 

(a)(1) The Under Secretary for Health 

will make the determination regarding 

recognition and the initial 

determination regarding certification, 

after receipt of a recommendation from 

the director of the VA medical center of 

jurisdiction regarding whether, based on 

a VA survey, the facility and facility 

management meet or do not meet the 

standards of subpart D of this part. The 

recognition survey will be conducted 

only after the new facility either has at 

least 21 residents or has a number of 

residents that consist of at least 50 

percent of the new bed capacity of the 

new facility. 

* * * * * 

(d) If, during the process for 

recognition and certification, the 

director of the VA medical center of 

jurisdiction recommends that the State 

home facility or facility management 

does not meet the standards of this part 

or if, after recognition and certification 

have been granted, the director of the 

VA medical center of jurisdiction 

determines that the State home facility 

or facility management does not meet 

the standards of this part, the director 

will notify the State home facility in 

writing of the standards not met. The 

director will send a copy of this notice 

to the State official authorized to 

oversee operations of the facility, the 

VA Network Director (10N 1–22), the 

Chief Network Officer (10N), and the 

Chief Consultant, Geriatrics and 

Extended Care (114). The letter will 

include the reasons for the 

recommendation or decision and 

indicate that the State has the right to 

appeal the recommendation or decision. 

(e) The State must submit the appeal 

to the Under Secretary for Health in 

writing, within 30 days of receipt of the 

notice of the recommendation or 

decision regarding the failure to meet 

the standards. In its appeal, the State 

must explain why the recommendation 

or determination is inaccurate or 

incomplete and provide any new and 

relevant information not previously 

considered. Any appeal that does not 

identify a reason for disagreement will 

be returned to the sender without 

further consideration. 

(f) After reviewing the matter, 

including any relevant supporting 

documentation, the Under Secretary for 

Health will issue a written 

determination that affirms or reverses 

the previous recommendation or 

determination. If the Under Secretary 

for Health decides that the facility does 

not meet the standards of subpart D of 

this part, the Under Secretary for Health 

will withdraw recognition and stop 

paying per diem for care provided on 

and after the date of the decision (or not 

grant recognition and certification and 

not pay per diem if the appeal occurs 

during the recognition process). The 

decision of the Under Secretary for 

Health will constitute a final decision 

that may be appealed to the Board of 

Veterans’ Appeals (see 38 U.S.C. 7104 

and 7105 and 38 CFR Part 20). The 

Under Secretary for Health will send a 

copy of this decision to the State home 

facility and to the State official 

authorized to oversee the operations of 

the State home. 

* * * * * 

(The Office of Management and Budget has 

approved the information collection 

requirements in this section under control 

number 2900–0160.) 

Subpart C—Per Diem Payments 

■ 6. Revise § 51.40 to read as follows: 

§ 51.40 Basic per diem. 

Except as provided in § 51.41 of this 

part, 

(a) During Fiscal Year 2008 VA will 

pay a facility recognized as a State home 

for nursing home care the lesser of the 

following for nursing home care 

provided to an eligible veteran in such 

facility: 

(1) One-half of the cost of the care for 

each day the veteran is in the facility; 

or 

(2) $71.42 for each day the veteran is 

in the facility. 

(b) During Fiscal Year 2009 and 

during each subsequent Fiscal Year, VA 

will pay a facility recognized as a State 

home for nursing home care the lesser 

of the following for nursing home care 

provided to an eligible veteran in such 

facility: 

(1) One-half of the cost of the care for 

each day the veteran is in the facility; 

or 

(2) The basic per diem rate for the 

Fiscal Year established by VA in 

accordance with 38 U.S.C. 1741(c). 

(Authority: 38 U.S.C. 101, 501, 1710, 1741– 

1744) 

■ 7. Amend part 51 by adding new 

§§ 51.41 through 51.43, to read as 

follows: 


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§ 51.41 Per diem for certain veterans 

based on service-connected disabilities. 

(a) VA will pay a facility recognized 

as a State home for nursing home care 

at the per diem rate determined under 

paragraph (b) of this section for nursing 

home care provided to an eligible 

veteran in such facility, if the veteran: 

(1) Is in need of nursing home care for 

a VA adjudicated service-connected 

disability, or 

(2) Has a singular or combined rating 

of 70 percent or more based on one or 

more service-connected disabilities or a 

rating of total disability based on 

individual unemployability and is in 

need of nursing home care. 

(b) For purposes of paragraph (a) of 

this section, the rate is the lesser of the 

amount calculated under the paragraph 

(b)(1) or (b)(2) of this section. 

(1) The amount determined by the 

following formula. Calculate the daily 

rate for the CMS RUG III (resource 

utilization groups version III) 53 casemix levels for the applicable 

metropolitan statistical area if the 

facility is in a metropolitan statistical 

area, and calculate the daily rate for the 

CMS Skilled Nursing Prospective 

Payment System 53 case-mix levels for 

the applicable rural area if the facility is 

in a rural area. For each of the 53 casemix levels, the daily rate for each State 

home will be determined by multiplying 

the labor component by the nursing 

home wage index and then adding to 

such amount the non-labor component 

and an amount based on the CMS 

payment schedule for physician 

services. The amount for physician 

services, based on information 

published by CMS, is the average hourly 

rate for all physicians, with the rate 

modified by the applicable urban or 

rural geographic index for physician 

work, and then with the modified rate 

multiplied by 12 and then divided by 

the number of days in the year. 

Note to paragraph (b)(1): The amount 

calculated under this formula reflects the 

applicable or prevailing rate payable in the 

geographic area in which the State home is 

located for nursing home care furnished in a 

non-Department nursing home (a public or 

private institution not under the direct 

jurisdiction of VA which furnishes nursing 

home care). Further, the formula for 

establishing these rates includes CMS 

information that is published in the Federal 

Register every summer and is effective 

beginning October 1 for the entire fiscal year. 

Accordingly, VA will adjust the rates 

annually. 

(2) A rate not to exceed the daily cost 

of care for the month in the State home 

facility, as determined by the Chief 

Consultant, Office of Geriatrics and 

Extended Care, following a report to the 

Chief Consultant, Office of Geriatrics 

and Extended Care under the provisions 

of § 51.43(b) of this part by the director 

of the State home. 

(c) Payment under this section to a 

State home for nursing home care 

provided to a veteran constitutes 

payment in full to the State home by VA 

for such care furnished to that veteran. 

Also, as a condition of receiving 

payments under this section, the State 

home must agree not to accept drugs 

and medicines from VA on behalf of 

veterans provided under 38 U.S.C. 

1712(d) and corresponding VA 

regulations (payment under this section 

includes payment for drugs and 

medicines). 

(Authority: 38 U.S.C. 101, 501, 1710, 1741– 

1744) 

(The Office of Management and Budget has 

approved the information collection 

requirements in this section under control 

number 2900–0160.) 

§ 51.42 Drugs and medicines for certain 

veterans. 

(a) In addition to per diem payments 

under § 51.40 of this part, the Secretary 

shall furnish drugs and medicines to a 

facility recognized as a State home as 

may be ordered by prescription of a 

duly licensed physician as specific 

therapy in the treatment of illness or 

injury for a veteran receiving care in a 

State home, if: 

(1) The veteran: 

(i) Has a singular or combined rating 

of less than 50 percent based on one or 

more service-connected disabilities and 

is in need of such drugs and medicines 

for a service-connected disability; and 

(ii) Is in need of nursing home care for 

reasons that do not include care for a 

VA adjudicated service-connected 

disability, or 

(2) The veteran: 

(i) Has a singular or combined rating 

of 50 or 60 percent based on one or 

more service-connected disabilities and 

is in need of such drugs and medicines; 

and 

(ii) Is in need of nursing home care for 

reasons that do not include care for a 

VA adjudicated service-connected 

disability. 

(b) VA may furnish a drug or 

medicine under paragraph (a) of this 

section only if the drug or medicine is 

included on VA’s National Formulary, 

unless VA determines a non-Formulary 

drug or medicine is medically 

necessary. 

(c) VA may furnish a drug or 

medicine under paragraph (a) of this 

section by having the drug or medicine 

delivered to the State home in which 

the veteran resides by mail or other 

means determined by VA. 

(Authority: 38 U.S.C. 101, 501, 1710, 1741– 

1744) 

§ 51.43 Per diem and drugs and 

medicines—principles. 

(a) As a condition for receiving 

payment of per diem under this part, the 

State home must submit to the VA 

medical center of jurisdiction for each 

veteran a completed VA Form 10–10EZ, 

Application for Medical Benefits (or VA 

Form 10–10EZR, Health Benefits 

Renewal Form, if a completed Form 10– 

10EZ is already on file at VA), and a 

completed VA Form 10–10SH, State 

Home Program Application for Care— 

Medical Certification. These VA Forms 

must be submitted at the time of 

admission and with any request for a 

change in the level of care (domiciliary, 

hospital care or adult day health care). 

In case the level of care has changed or 

contact information is outdated, VA 

Forms 10–10EZ and 10–10EZR are set 

forth in full at § 58.12 and VA Form 10– 

10SH is set forth in full at § 58.13. If the 

facility is eligible to receive per diem 

payments for a veteran, VA will pay per 

diem under this part from the date of 

receipt of the completed forms required 

by this paragraph, except that VA will 

pay per diem from the day on which the 

veteran was admitted to the facility if 

the completed forms are received within 

10 days after admission. 

(b) VA pays per diem on a monthly 

basis. To receive payment, the State 

must submit to the VA medical center 

of jurisdiction a completed VA Form 

10–5588, State Home Report and 

Statement of Federal Aid Claimed. This 

form is set forth in full at § 58.11 of this 

chapter. 

(c) Per diem will be paid under 

§§ 51.40 and 51.41 for each day that the 

veteran is receiving care and has an 

overnight stay. Per diem also will be 

paid when there is no overnight stay if 

the veteran has resided in the facility for 

30 consecutive days (including 

overnight stays) and the facility has an 

occupancy rate of 90 percent or greater. 

However, these payments will be made 

only for the first 10 consecutive days 

during which the veteran is admitted as 

a patient for any stay in a VA or other 

hospital (a hospital stay could occur 

more than once in a calendar year) and 

only for the first 12 days in a calendar 

year during which the veteran is absent 

for purposes other than receiving 

hospital care. 

(d) Initial per diem payments will not 

be made until the Under Secretary for 

Health recognizes the State home. 

However, per diem payments will be 

made retroactively for care that was 

provided on and after the date of the 

completion of the VA survey of the 


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facility that provided the basis for 

determining that the facility met the 

standards of this part. 

(e) The daily cost of care for an 

eligible veteran’s nursing home care for 

purposes of §§ 51.40(a)(1) and 

51.41(b)(2) consists of those direct and 

indirect costs attributable to nursing 

home care at the facility divided by the 

total number of residents at the nursing 

home. Relevant cost principles are set 

forth in the Office of Management and 

Budget (OMB) Circular number A–87, 

dated May 4, 1995, ‘‘Cost Principles for 

State, Local, and Indian Tribal 

Governments.’’ 

(f) As a condition for receiving drugs 

and medicines under this part, the State 

must submit to the VA medical center 

of jurisdiction a completed VA Form 

10–0460 for each eligible veteran. This 

form is set forth in full at § 58.18 of this 

chapter. The corresponding 

prescriptions described in § 51.42 also 

should be submitted to the VA medical 

center of jurisdiction. 

(Authority: 38 U.S.C. 101, 501, 1710, 1741– 

1744) 

(The Office of Management and Budget has 

approved the information collection 

requirements in this section under control 

numbers 2900–0091 and 2900–0160.) 

Subpart D—Standards 

■ 8. Amend § 51.70, in paragraph (c)(5), 

by removing ‘‘30 days’’ and adding, in 

its place, ‘‘90 calendar days’’ and after 

the authority citation by adding 

‘‘(The Office of Management and Budget 

has approved the information collection 

requirements in this section under control 

number 2900–0160.)’’. 

■ 9. Amend §§ 51.80, and 51.90 by 

adding after the authority citation for 

each section 

‘‘(The Office of Management and Budget 

has approved the information collection 

requirements in this section under control 

number 2900–0160.).’’ 

■ 10. Amend § 51.100, by revising 

paragraph (h)(2) and adding a 

parenthetical statement after the 

authority citation, to read as follows: 

§ 51.100 Quality of life. 

* * * * * 

(h) * * * 

(2) For each 120 beds, a nursing home 

must employ one or more qualified 

social workers who work for a total 

period that equals at least the work time 

of one full-time employee (FTE). A State 

home that has more or less than 120 

beds must provide qualified social 

worker services on a proportionate basis 

(for example, a nursing home with 60 

beds must employ one or more qualified 

social workers who work for a total 

period equaling at least one-half FTE 

and a nursing home with 180 beds must 

employ qualified social workers who 

work for a total period equaling at least 

one and one-half FTE). 

* * * * * 

(The Office of Management and Budget has 

approved the information collection 

requirements in this section under control 

number 2900–0160.) 

■ 11. Amend § 51.110 by: 

■ a. Revising paragraph (b)(1)(i). 

■ b. Removing paragraph (b)(1)(iii). 

■ c. Redesignating paragraphs (d) and 

(e) as paragraphs (e) and (f), 

respectively. 

■ d. Adding a new paragraph (d). 

■ e. Adding a parenthetical statement 

after the authority citation. The revision 

and additions read as follows: 

§ 51.110 Resident assessment. 

* * * * * 

(b) * * * 

(1) * * * 

(i) Using the Centers for Medicare and 

Medicaid Services (CMS) Resident 

Assessment Instrument Minimum Data 

Set, Version 2.0; and 

* * * * * 

(d) Submission of assessments. Each 

assessment (initial, annual, change in 

condition, and quarterly) using the 

Centers for Medicare and Medicaid 

Services (CMS) Resident Assessment 

Instrument Minimum Data Set, Version 

2.0 must be submitted electronically to 

VA at the IP address provided by VA to 

the State within 30 days after 

completion of the assessment document. 

* * * * * 

(The Office of Management and Budget has 

approved the information collection 

requirements in this section under control 

number 2900–0160.) 

■ 12. Amend §§ 51.120, 51.130, 51.150, 

51.160, 51.180, and 51.190 by adding 

after the authority citation for each 

section ‘‘(The Office of Management and 

Budget has approved the information 

collection requirements in this section 

under control number 2900–0160.)’’. 

■ 13. Amend § 51.200, by: 

■ a. In paragraph (a), removing the 

phrase, ‘‘(1997 edition)’’ and adding, in 

its place, ‘‘(2006 edition), except that 

the requirement in paragraph 19.3.5.1 

for all buildings containing nursing 

homes to have an automatic sprinkler 

system is not applicable until August 

13, 2013, unless an automatic sprinkler 

system was previously required by the 

Life Safety Code’’; removing the phrase, 

‘‘(1996 edition)’’ each time it appears 

and adding, in its place, ‘‘(2005 

edition)’’; and removing ‘‘Office of 

Regulations Management (02D), Room 

1154,’’ and adding, in its place ‘‘Office 

of Regulation Policy and Management 

(02REG),’’ and by removing ‘‘or at’’ and 

adding, in its place ‘‘, call 202–461– 

4902, or at’’. 

■ b. In paragraph (b), removing the 

phrase, ‘‘(1997 edition)’’ each time it 

appears and adding, in its place, ‘‘(2006 

edition)’’ and removing the phrase, 

‘‘(1996 edition)’’ each time it appears 

and adding, in its place, ‘‘(2005 

edition)’’; and 

■ 14. Amend §§ 51.210 by adding after 

the authority citation ‘‘(The Office of 

Management and Budget has approved 

the information collection requirements 

in this section under control number 

2900–0160.)’’. 

PART 58—FORMS 

■ 15. The authority citation for part 58 

is revised to read as follows: 

Authority: 38 U.S.C. 101, 501, 1710, 1741– 

1743, 1745. 

■ 16. Amend § 58.11 by revising VA 

Form 10–5588 to read as follows: 

§ 58.11 VA Form 10–5588—State Home 

Report and Statement of Federal Aid 

Claimed. 

BILLING CODE 8320–01–P 


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■ 17. Amend § 58.12 by: 

■ a. Revising the section heading. 

■ b. Revising VA Form 10–10EZ. 

■ c. Adding VA Form 10–10EZR. 

The revisions and addition read as 

follows: 

§ 58.12 VA Forms 10–10EZ and 10– 

10EZR—Application for Health Benefits and 

Renewal Form. 


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■ 18. Amend § 58.13 by revising VA 

Form 10–10SH to read as follows: 

§ 58.13 VA Form 10–10SH—State Home 

Program Application for Veteran Care 

Medical Certification. 


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■ 19. Add § 58.18 to read as follows: § 58.18 VA Form 10–0460—Request for 

Prescription Drugs from an Eligible Veteran 

in a State Home. 


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[FR Doc. E9–9753 Filed 4–28–09; 8:45 am] 

BILLING CODE 8320–01–C 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2008–0898; FRL–8898–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania: Transportation 

Conformity Requirement 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Pennsylvania State Implementation Plan 

(SIP) submitted by the Commonwealth 

of Pennsylvania. The revisions establish 

State transportation conformity 

requirements. EPA is approving these 

revisions in accordance with the 

requirements of the Clean Air Act. 

DATES: This rule is effective on June 29, 

2009 without further notice, unless EPA 

receives adverse written comment by 

May 29, 2009. If EPA receives such 

comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2008–0898 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: febbo.carol@epa.gov. 

C. Mail: EPA–R03–OAR–2008–0898, 

Carol Febbo, Chief, Energy, Radiation 

and Indoor Environment Branch, 

Mailcode 3AP23, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the listed EPA 

Region III address. Such deliveries are 

only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2008– 

0898. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available (i.e., CBI or other 

information), disclosure of which is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the State submittal are 

available at the Pennsylvania 

Department of Environmental 

Protection, Bureau of Air Quality 

Control Rachel Carson State Office 

Building, 400 Market Street, 12th Floor, 

Harrisburg, PA 17105–8468. 

FOR FURTHER INFORMATION CONTACT: 

Martin Kotsch, (215) 814–3335, or by email at kotsch.martin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we’’, ‘‘us’’, or ‘‘our’’ is used, we mean 

EPA. 

I. What Is Transportation Conformity? 

Transportation conformity is required 

under Section 176(c) of the Clean Air 

Act to ensure that Federally supported 

highway, transit projects, and other 

activities are consistent with (conform 

to) the purpose of the approved SIP. 

Transportation Conformity currently 

applies to areas that are designated 

nonattainment, and those areas 

redesignated to attainment after 1990 

(maintenance areas), with maintenance 

plans developed under section 175A of 

the Clean Air Act for the following 

transportation related criteria 

pollutants: Ozone, particulate matter 

(PM2.5 and PM10), carbon monoxide 

(CO), and nitrogen dioxide (NO2). 

Conformity with the purpose of the SIP 

means that transportation activities will 

not cause new air quality violations, 

worsen existing violations, or delay 

timely attainment of the relevant 

National Ambient Air Quality Standards 

(NAAQS). The Federal transportation 

conformity regulations (Federal Rule) 

are found in 40 CFR part 93 and 

provisions related to conformity SIPs 

are found in 40 CFR 51.390. 

II. What Is the Background for This 

Action? 

On August 10, 2005, the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU) was signed into 

law. SAFETEA–LU revised certain 

provisions of section 176(c) of the Clean 

Air Act, related to transportation 

conformity. Prior to SAFETEA–LU, 

states were required to address all of the 

Federal Rule’s provisions in their 

conformity SIPs. After SAFETEA–LU, 

state’s SIPs were required to contain all 

or portions of only the following three 

sections of the Federal Rule, modified as 

appropriate to each state’s 

circumstances: 40 CFR 93.105 

(consultation procedures); 40 CFR 

93.122(a)(4)(ii) (written commitments to 

implement certain kinds of control 

measures); and 40 CFR 93.125(c) 

(written commitments to implement 

certain kinds of mitigation measures). 

Pursuant to SAFETEA–LU, States are no 

longer required to submit conformity 

SIP revisions that address the other 

sections of the Federal Rule. 

III. What Did the State Submit and How 

Did We Evaluate It? 

On May 29, 2008, the Pennsylvania 

Department of Environmental Protection 

submitted a revision to its State 

Implementation Plan (SIP) for 

Transportation Conformity purposes. 

The SIP revision consists of eighteen 

executed Memorandams of Agreements 

(MOAs) which will constitute the 

Pennsylvania SIP for transportation 

conformity purposes. The eighteen 

MOAs were executed among the State of 

Pennsylvania and the various 


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