[Federal Register Volume 76, Number 218 (Thursday, November 10, 2011)]
[Proposed Rules]
[Pages 70076-70078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29157]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 51

RIN 2900-AO02


Technical Revisions To Update Reference to the Required 
Assessment Tool for State Nursing Homes Receiving Per Diem Payments 
From VA

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations to update the reference to the required resident assessment 
tool for State homes that receive per diem from VA for providing 
nursing home care to veterans. The proposed rule would require State 
nursing homes receiving per diem from VA to use the most recent version 
of the Centers for Medicare and Medicaid Services (CMS) Resident 
Assessment Instrument/Minimum Data Set (MDS), which is version 3.0. 
This will ensure that the standard used to assess veterans is the same 
as the standard applicable to Medicare and Medicaid beneficiaries.

DATES: Comments must be received by VA on or before January 9, 2012.

ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand delivery to the Director, Office 
of Regulation Policy and Management (02REG), Department of Veterans 
Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by 
fax to (202) 273-9026. Comments should indicate that they are submitted 
in response to ``RIN 2900-AO02, Technical Revisions to Update Reference 
to the Required Assessment Tool for State Nursing Homes Receiving Per 
Diem Payments From VA.'' Copies of comments received will be available 
for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 
(this is not a toll-free number) for an appointment. In addition, 
during the comment period, comments may be viewed online through the 
Federal Docket Management System at http://www.regulations.gov.

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

SUPPLEMENTARY INFORMATION: On April, 2009, VA published in the Federal 
Register a rule amending part 51 of title 38, Code of Federal 
Regulations, which set forth a mechanism for paying per diem to State 
homes providing nursing home care to eligible veterans. 74 FR 19426-01 
(Apr. 29, 2009). This regulation went into effect on May 29, 2009. 38 
CFR 51.110. This proposed rule would amend 38 CFR part 51 to update 
reference to the required resident assessment tool for State homes 
providing nursing home care, The Centers for Medicare and Medicaid 
Services (CMS) Resident Assessment Instrument/Minimum Data Set (MDS). 
The MDS is a core set of screening, clinical, and functional status 
elements that form the foundation of the comprehensive assessment for 
all residents of long term care facilities certified to participate in 
Medicare and Medicaid. While these certified facilities complete the 
MDS as a condition of receiving CMS payments for the provision of long 
term care to Medicare and Medicaid beneficiaries, the MDS is the 
standardized assessment instrument in long term care generally, and is 
designed to identify the health care needs of residents and generate a 
plan of care regardless of source of payment for the individual 
resident. VA therefore requires State homes receiving per diem for the 
provision of long term care to veterans to use the MDS, and to transmit 
data from the MDS electronically to the VA Austin Information 
Technology Center (AITC), for the purpose of monitoring certain care 
indicators for the benefit of veterans. The MDS version currently 
required by the regulation is MDS 2.0. 38 CFR 51.110(b)(1)(i).
    On October 1, 2010, all CMS certified long term care facilities 
were required to update their assessment from MDS 2.0 to MDS 3.0. It is 
critical that VA mandate by regulation that State homes receiving per 
diem to provide long term care to veterans use the most up to date 
version of MDS as well. This will ensure that the most comprehensive 
assessment is performed for all veterans in State homes receiving per 
diem, and thereby that the highest standard of care is provided for 
those veterans. Indeed, if veterans are assessed under the former 2.0 
standard, VA would essentially permit State homes to care for veterans 
using a lower assessment standard than that afforded other Federally 
funded patients.
    The most significant change in the MDS 3.0 update requires that a 
direct interview be conducted with all residents who are able to be 
understood at least some of the time, such that staff must directly 
communicate with the resident to complete certain sections of the MDS. 
This is in contrast to staff relying on the medical record to complete 
certain MDS sections, as was permitted under MDS 2.0. The sections in 
MDS 3.0 which now require a direct interview to complete relate to the 
topics of cognition, mood, daily activities and preferences, and pain. 
For instance, a staff member providing rehabilitation services to a 
resident can no longer rely on a previous entry of a Registered Nurse 
in the medical record regarding a resident's level of pain to complete 
that staff member's section of the MDS. Direct interviewing ensures 
firsthand, real time monitoring in the MDS, improving accuracy of the 
entered information. We agree with CMS's changes because we believe 
that MDS 3.0 provides a more accurate assessment and will help ensure 
that the most comprehensive care plan is developed, and will help 
ensure that the highest standard of care is provided.
    The MDS assessment process itself generates Quality Indicators, 
Quality Measures, and Resource Utilization Groups (RUGs). The RUGs are 
used in nurse staffing methodology to determine resident case mix, or 
how residents may be categorized so that resources are maximized to 
provide the highest standard of care. The MDS 3.0 update has increased 
the number of RUGs from 53 to 66. This increase reflects technological 
advances in healthcare and changes in resident and staff mix, as well 
as changes in healthcare practice. For example, conditions and services 
such as mood assessment and the pain interview have been added, and the 
behavior section has been modified, which now ensures these issues are 
considered in care planning. Because this change should lead to 
improved long term care, we believe that it is appropriate to require 
the

[[Page 70077]]

increased RUGS under our per diem regulations.
    Other important changes in the MDS 3.0 update, which also ensure 
the most comprehensive assessment and that the highest standard of care 
is provided to veterans, include the following requirements: 
documentation of a significant change for any resident who enrolls in a 
hospice program; documentation of pressure ulcers present on admission; 
documentation of the type of injury sustained in a fall; and a resident 
assessment at discharge. The following have been eliminated: the 
reverse staging of pressure ulcers to document healing and 
documentation of the use of a catheter to show a patient is continent. 
Additionally, a section has been included concerning the return of the 
resident to the community.
    We note that the vast majority of State homes receiving per diem 
from VA are CMS certified and receiving payments from CMS for the 
provision of long term care to Medicare and Medicaid beneficiaries, 
and, therefore, are already using MDS 3.0. These State homes do not use 
the former MDS 2.0 to separately assess veterans whose long term care 
is covered instead by per diem payments from VA. This rulemaking will 
affect only those State homes that are not CMS certified, do not 
receive CMS payments for the provision of long term care, and have not 
updated to MDS 3.0. We estimate that this will affect only 56 out of 
the 140 State homes who receive per diem payments from VA.

Effect of Rulemaking

    The Code of Federal Regulations, as revised by this proposed 
rulemaking, would represent the exclusive legal authority on this 
subject. No contrary rules or procedures would be authorized. All VA 
guidance would be read to conform with this proposed rulemaking if 
possible, or, if not possible, such guidance would be superseded by 
this rulemaking.

Paperwork Reduction Act

    This proposed rule contains no collections of information under the 
Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed regulatory 
amendment would not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is 
that these amendments would not directly affect any small entities, as 
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. Therefore, under 
5 U.S.C. 605(b), this proposed amendment is exempt from the initial and 
final regulatory flexibility analysis requirements of sections 603 and 
604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct 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 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (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 
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 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
issuing any rule that may result in expenditure by State, local, or 
Tribal governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any given year. 
This rule would have no such effect on State, local, or Tribal 
governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers

    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; 64.009, Veterans Medical Care 
Benefits; 64.010, Veterans Nursing Home Care; 64.015, Veterans State 
Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 
64.019, Veterans Rehabilitation, Alcohol and Drug Dependence.

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 November 4, 2011, for publication.

List of Subjects in 38 CFR Part 51

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

    Dated: November 7, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to amend 38 CFR part 51 as follows:

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

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

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


[[Page 70078]]


    2. Amend Sec.  51.110(b)(1)(i) by removing the phrase ``Version 
2.0'' and adding, in its place, ``Version 3.0''.

[FR Doc. 2011-29157 Filed 11-9-11; 8:45 am]
BILLING CODE 8320-01-P