[Federal Register Volume 76, Number 174 (Thursday, September 8, 2011)]
[Rules and Regulations]
[Pages 55570-55572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22920]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17 and 51

RIN 2900-AN63


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

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its regulations 
concerning per diem payments to States to permit continuation of such 
payments in some situations for veterans who have been evacuated from a 
State home as a result of an emergency. Per diem is the daily rate paid 
by VA to a State for providing a specified level of care to eligible 
veterans in a facility that is officially recognized and certified by 
VA. This final rule authorizes VA to continue to pay per diem when 
veterans for whom VA is paying per diem are evacuated as a result of an 
emergency from a State home to a facility that is not recognized by VA 
as a State home. The rule requires, in order for per diem payments to 
continue while the veteran is relocated due to an emergency, that an 
appropriate VA official determine whether an emergency exists and 
whether the facility to which veterans may be evacuated (evacuation 
facility) complies with certain minimum standards. The rule establishes 
the minimum standards that facilities to which veterans are evacuated 
must meet in order for States to continue receiving per diem for 
relocated veterans. These standards also apply to evacuation facilities 
when veterans are evacuated from contract nursing homes.

DATES: Effective Date: This final rule is effective October 11, 2011. 
This final rule applies to all applications for reimbursement pending 
with VA or received by VA on or after the effective date of this rule.

FOR FURTHER INFORMATION CONTACT: Theresa A. Hayes, MPH, RN, Office of 
Patient Care Services (114), Veterans Health Administration, Department 
of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, 
(202) 461-6771 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: Pursuant to 38 U.S.C. 1741-1745, VA provides 
per diem payments to reimburse States for each eligible veteran 
receiving nursing home care, domiciliary care, and adult day health 
care in State home facilities that are recognized and certified by VA. 
Section 1742 specifically provides that ``[n]o payment or grant may be 
made to any home * * * unless such home is determined by the Secretary 
to meet such standards as the Secretary shall prescribe, which 
standards with respect to nursing home care shall be no less stringent 
than those prescribed pursuant to section 1720(b) of this title.'' The 
statutes do not address circumstances in which veterans may need to be 
evacuated temporarily to another facility due to an emergency.
    VA implemented its authority to provide per diem payments to States 
in, inter alia, 38 CFR parts 17 and 51. In a document published in the 
Federal Register on March 23, 2011 (76 FR 16354), VA proposed to amend 
those regulations to address VA's authority to continue per diem 
payments to a State for a veteran during an emergency evacuation of the 
veteran to a temporary or substitute State home facility where the 
State continues to provide care.
    VA provided a 60-day comment period that ended May 23, 2011. VA 
received no comments. Based on the rationale set forth in the proposed 
rule and in this document, we are adopting the proposed rule as a final 
rule without change.

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 final rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This final rule does not contain any collections of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Executive Order 12866

    Executive order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities; 
(2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency; (3) materially alter the 
budgetary impact of entitlements, grants, user fees, or loan programs 
or the rights and obligations of recipients thereof; or (4) raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this final rule and has concluded that it does 
not constitute a significant regulatory action under the Executive 
Order.

Regulatory Flexibility Act

    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. This final rule affects veterans receiving care in State 
facilities and will not have a significant economic impact on any small 
entities. Accordingly, pursuant to 5 U.S.C. 605(b), this final rule is 
exempt from the initial and final regulatory flexibility analysis 
requirements of section 604.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance numbers and titles are 
64.009 Veterans Medical Care Benefits, 64.010 Veterans Nursing Home 
Care, and 64.011 Veterans Dental Care.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on September 1, 2011, for publication.

[[Page 55571]]

List of Subjects

38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs--health, Government programs--
veterans, Health care, Health facilities, Health professions, Health 
records, Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Reporting and 
recordkeeping requirements, Scholarships and fellowships, Travel and 
transportation expenses, Veterans.

38 CFR Part 51

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

    Dated: September 1, 2011.
William F. Russo,
Deputy Director, Office of Regulations Policy and Management, Office of 
the General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA amends 38 CFR parts 17 
and 51 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.


0
2. Add Sec.  17.58 to read as follows:


Sec.  17.58  Evacuation of community nursing homes.

    When veterans are evacuated from a community nursing home as the 
result of an emergency, they may be relocated to another facility that 
meets certain minimum standards, as set forth in 38 CFR 51.59(c)(1).

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

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

0
3. The authority citation for part 51 is revised to read as follows:

    Authority:  38 U.S.C. 101, 501, 1710, 1720, 1741-1743; and as 
stated in specific sections.


0
4. Add Sec.  51.59 to subpart C to read as follows:


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

    (a) Definition of emergency. For the purposes of this section, 
emergency means an occasion or instance where all of the following are 
true:
    (1) It would be unsafe for veterans receiving care at a State home 
facility to remain in that facility.
    (2) The State is not, or believes that it will not be, able to 
provide care in the State home on a temporary or long-term basis for 
any or all of its veteran residents due to a situation involving the 
State home, and not due to a situation where a particular veteran's 
medical condition requires that the veteran be transferred to another 
facility, such as for a period of hospitalization.
    (3) The State determines that the veterans must be evacuated to 
another facility or facilities.
    (b) General authority to pay per diem during relocation period. Not 
with stand ing any other provision of this part, VA will continue to 
pay per diem for a period not to exceed 30 days for any eligible 
veteran who resided in a State home, and for whom VA was paying per 
diem, if such veteran is evacuated during an emergency into a facility 
other than a VA facility if the State is responsible for providing or 
paying for the care. VA will not pay per diem payments under this 
section for more than 30 days of care provided in the evacuation 
facility, unless the official who approved the emergency response under 
paragraph (e) of this section determines that it is not reasonably 
possible to return the veteran to a State home within the 30-day 
period, in which case such official will approve additional period(s) 
of no more than 30 days in accordance with this section. VA will not 
provide per diem if VA determines that a veteran is or has been placed 
in a facility that does not meet the standards set forth in paragraph 
(c)(1) of this section, and VA may recover all per diem payments made 
for the care of the veteran in that facility.
    (c) Selection of evacuation facilities. The following standards and 
procedures apply to the selection of an evacuation facility in order 
for VA to continue to pay per diem during an emergency; these standards 
and procedures also apply to evacuation facilities when veterans are 
evacuated from a nursing home care facility in which care is being 
provided pursuant to a contract under 38 U.S.C. 1720.
    (1) Each veteran who is evacuated must be placed in a facility 
that, at a minimum, will meet the needs for food, shelter, toileting, 
and essential medical care of that veteran.
    (2) For veterans evacuated from nursing homes, the following types 
of facilities may meet the standards under paragraph (c)(1) of this 
section:
    (i) VA Community Living Centers;
    (ii) VA contract nursing homes;
    (iii) Centers for Medicare and Medicaid certified facilities; and
    (iv) Licensed nursing homes.
    Note to paragraph (c)(2): If none of the above options are 
available, veterans may be evacuated temporarily to other facilities 
that meet the standards under paragraph (c)(1) of this section.
    (3) For veterans evacuated from domiciliaries, the following types 
of facilities may meet the standards in paragraph (c)(1) of this 
section:
    (i) Emergency evacuation facilities identified by the city or 
state;
    (ii) Assisted living facilities; and
    (iii) Hotels.
    (d) Applicability to adult day health care facilities. 
Notwithstanding any other provision of this part, VA will continue to 
pay per diem for a period not to exceed 30 days for any eligible 
veteran who was receiving adult day health care, and for whom VA was 
paying per diem, if the adult day health care facility becomes 
temporarily unavailable due to an emergency. Approval of a temporary 
facility for such veteran is subject to paragraph (e) of this section. 
If after 30 days the veteran cannot return to the original adult day 
health care facility, VA will discontinue per diem payments unless the 
official who approved the emergency response under paragraph (e) of 
this section determines that it is not reasonably possible to provide 
care at the original facility or to relocate an eligible veteran to a 
new facility, in which case such official will approve additional 
period(s) of no more than 30 days in accordance with this section. VA 
will not provide per diem if VA determines that a veteran was provided 
adult day health care in a facility that does not meet the standards 
set forth in paragraph (c)(1) of this section, and VA may recover all 
per diem payments made for the care of the veteran in that facility.
    (e) Approval of response. Per diem payments will not be made under 
this section unless and until the director of the VAMC determines, or 
the director of the VISN in which the State home is located (if the 
VAMC director is not capable of doing so) determines, that an emergency 
exists and that the evacuation facility meets VA standards set forth in 
paragraph (c)(1) of this section.

[[Page 55572]]


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


[FR Doc. 2011-22920 Filed 9-7-11; 8:45 am]
BILLING CODE 8320-01-P