[Federal Register Volume 77, Number 187 (Wednesday, September 26, 2012)]
[Rules and Regulations]
[Pages 59087-59090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23730]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 60

RIN 2900-AN79


Fisher House and Other Temporary Lodging

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule amends Department of Veterans Affairs (VA) 
regulations concerning Fisher Houses and other temporary lodging 
furnished by VA while a veteran is experiencing an episode of care at a 
VA health care facility. This final rule better describes the 
application process for this lodging and clarifies the distinctions 
between Fisher Houses and other temporary lodging provided by VA. This 
final rule generally reflects current VA policy and practice, and 
conforms to industry standards and expectations.

DATES: This final rule is effective October 26, 2012.

FOR FURTHER INFORMATION CONTACT: Deborah Amdur, Chief Consultant, Care 
Management and Social Work Service (10P4C), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (202) 461-6780. (This is not a toll free number.)

SUPPLEMENTARY INFORMATION: This document adopts as a final rule without 
substantive change a proposed rule amending VA regulations. On March 
16, 2012, VA published in the Federal Register (77 FR 15650) a proposal 
to amend its regulations concerning Fisher Houses and other temporary 
lodging furnished by VA while a veteran is experiencing an episode of 
care at a VA health care facility. Under 38 U.S.C. 1708, VA may furnish 
certain persons with temporary lodging in a Fisher House or other 
appropriate facility in connection with the examination, treatment, or 
care of a veteran. VA implements its authority under section 1708 in 38 
CFR part 60. This authority to provide temporary lodging assists VA in 
providing appropriate treatment and care to veterans, because 
individuals receiving such treatment or care often respond better when 
they are accompanied by relatives, close friends, or caregivers.
    Interested persons were invited to submit comments to the proposed 
rule on or before May 15, 2012, and we received no comments. Therefore, 
we make no changes based on comments. However, we make minor changes 
from the proposed rule in certain places in Sec. Sec.  60.15 and 60.20, 
because the phrases ``VA health care facility,'' ``VA medical center,'' 
and ``VA medical facility'' were inadvertently used interchangeably 
with regards to: Where an application for temporary lodging may be 
obtained and where a completed application must be returned (Sec.  
60.15(a)); the location of non-utilized beds in VA facilities that may 
serve as temporary lodging (Sec.  60.15(b)(3) and Sec.  60.20(d)); the 
type of VA facility whose Director may determine whether hotels or 
motels are appropriate temporary lodging (Sec.  60.15(b)(4)); and where 
a denied application may be referred (Sec.  60.15(b)(7)). The intended 
usage was to refer only to a ``VA health care facility'' throughout the 
proposed rule, because this phrase broadly encompasses all VA 
facilities that are under the jurisdiction of the Veterans Health 
Administration and VA. By contrast, a ``VA medical center'' is a 
specific type of ``VA health care facility'' that distinctly provides, 
among other things, 24-hour inpatient care. VA has never limited, and 
it was not the intent of the proposed rule to limit criteria for 
temporary lodging, to only be considered in the context of a ``VA 
medical center.''
    Use of the broader phrase ``VA health care facility'' in this final 
rule reflects current and longstanding VA practice, and the proposed 
rule emphasized that it would generally reflect current VA practice. 
See 77 FR 15650, 15652-15653. Additionally, use of the phrase ``VA 
health care facility'' is consistent with 38 CFR part 60 prior to this 
revision, versus the phrase ``VA medical facility.'' The public 
therefore should be familiar with the phrase ``VA health care 
facility,'' as well as the intent of the proposed rule. Indeed, the 
fact that we received no comments on the inadvertent usage of the 
phrases ``VA medical center'' and ``VA medical facility'' in the 
proposed rule indicates that the public did not understand these 
phrases to propose new limitations regarding temporary lodging provided 
by VA.
    Changes in this final rule to consistently use ``VA health care 
facility'' additionally do not broaden substantive criteria for 
temporary lodging from the proposed rule, because the proposed rule 
accurately used the phrase ``VA health care facility'' when describing 
substantive criteria to the public. Therefore, consistent use of the 
broader phrase ``VA health care facility'' in the final rule is not a 
substantive change from the proposed rule that requires an additional 
notice and comment period. For instance, the proposed rule clearly 
stated in Sec.  60.2 that Fisher Houses and other temporary lodging may 
be located at or near a ``VA health care facility.'' See Sec.  60.2 as 
proposed, and unchanged by this final rule, for the definitions of 
``Fisher House'' and ``Other temporary lodging,'' which base location 
of temporary lodging at or near a ``VA health care facility.'' The 
substantive criteria in proposed Sec.  60.2, related to where temporary 
lodging may be located, correctly stated that temporary lodging may be 
located at or near a VA health care setting that is broader than a ``VA 
medical center.'' Proposed Sec.  60.15(a), however, incorrectly stated 
that applications for temporary lodging could be obtained from and 
returned to only ``VA medical center[s].'' Proposed Sec.  60.15(a) 
intended to alert the public that applications for temporary lodging 
can be obtained from and returned to those places where temporary 
lodging may be located. Therefore, the final rule must accurately 
indicate that applications for temporary lodging may be obtained from 
and returned to a ``VA health care facility,'' and not only obtained 
from and returned to a ``VA medical center.'' See Sec.  60.15(a) as

[[Page 59088]]

revised by this rulemaking, versus Sec.  60.15(a) as proposed. 
Accurately stating in the final rule that an application for temporary 
lodging may be obtained from and returned to a ``VA health care 
facility'' versus a ``VA medical center'' does not affect the location 
of temporary lodging, and does not affect any other substantive 
criteria such as eligibility for temporary lodging or access to 
temporary lodging. The change in this final rule in Sec.  60.15(a) to 
use the phrase ``VA health care facility,'' therefore, is not 
substantive but rather merely standardizes the use of the correct and 
intended phrase, where otherwise multiple phrases will be confusing.
    As another example, the proposed rule clearly stated in Sec.  
60.15(b)(5) that ``the person responsible for coordinating the Fisher 
House and other temporary lodging program(s) at the VA health care 
facility of jurisdiction is responsible for making decisions to grant 
temporary lodging.'' The substantive criteria in proposed Sec.  
60.15(b)(5), related to VA staff that decide whether to grant temporary 
lodging, correctly stated that such staff may work in a VA health care 
setting that is broader than a ``VA medical center.'' Proposed Sec.  
60.15(b)(7), however, incorrectly stated that if temporary lodging is 
denied, then the application would be referred to VA staff only ``at 
the VA medical center of jurisdiction to determine if other 
arrangements can be made.'' Proposed Sec.  60.15(b)(7) intended to 
alert the public that if an application is denied, the application will 
be referred back to the setting where the original decision was made to 
determine if other lodging options are available. Therefore, the final 
rule must indicate that if an application for temporary lodging is 
denied, that VA will refer the application to a ``VA health care 
facility of jurisdiction'' to determine other options, and not limit 
the referral of the application to only a ``VA medical center of 
jurisdiction.'' See Sec.  60.15(b)(7) as revised by this rulemaking, 
versus Sec.  60.15(b)(7) as proposed. Accurately stating in the final 
rule that a denied application for temporary lodging is referred back 
to a ``VA health care facility'' versus a ``VA medical center'' does 
not affect the availability of other lodging options when temporary 
lodging is denied, and does not affect any other substantive criteria 
such as eligibility for temporary lodging or access to temporary 
lodging. The change in this final rule in Sec.  60.15(b)(7) to use the 
phrase ``VA health care facility,'' therefore, is not substantive but 
rather merely standardizes the use of the correct and intended phrase, 
where otherwise multiple phrases will be confusing.
    All other changes to use the broader phrase ``VA health care 
facility'' in Sec. Sec.  60.15 and 60.20 are similarly not substantive, 
because they merely standardize the use of the correct and intended 
phrase, where otherwise multiple phrases will be confusing. We amend 
the language of the proposed rule to remove all mention of a ``VA 
medical center'' or ``VA medical facility,'' and replace those phrases 
with ``VA health care facility'' in this final rule.
    Therefore, based on the rationale set forth in the proposed rule 
and above, VA is adopting the proposed rule as a final rule without 
substantive change.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, represents VA's implementation of its legal authority 
on this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    Although this action contains provisions constituting collections 
of information at 38 CFR 60.15, under the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501-3521), no new or revised collections of 
information are associated with this final rule. The information 
collection requirements for Sec.  60.15 are currently approved by the 
Office of Management and Budget (OMB) and have been assigned OMB 
control number 2900-0630.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule does 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 directly affects only individuals and will not 
directly affect small entities. Any impact on small entities involved 
in the lodging industry would be indirect and insignificant. Therefore, 
pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial 
and final regulatory flexibility analyses requirements of 5 U.S.C. 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) classifies a 
``significant regulatory action,'' requiring review by 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 
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 of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles for the programs affected by this document are 64.007, Blind

[[Page 59089]]

Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, 
Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 
64.011, Veterans Dental Care; 64.013, Veterans Prosthetic Appliances; 
64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing 
Home Care; 64.018, Sharing Specialized Medical Resources; 64.019, 
Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans 
Home Based Primary Care; and 64.024, VA Homeless Providers Grant and 
Per Diem Program.

List of Subjects in 38 CFR Part 60

    Health care, Housing, Reporting and recordkeeping requirements, 
Travel, Veterans.

    Approved: September 20, 2012.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA is revising 38 CFR part 
60 as follows:

PART 60--FISHER HOUSES AND OTHER TEMPORARY LODGING

Sec.
60.1 Purpose and scope.
60.2 Definitions.
60.3 Other donated temporary lodging.
60.10 Eligibility criteria for Fisher House or other temporary 
lodging.
60.15 Application process.
60.20 Duration of Fisher House or other temporary lodging.

    Authority: 38 U.S.C. 501, 1708.


Sec.  60.1  Purpose and scope.

    This part applies to Fisher House and other temporary lodging 
furnished by VA while a veteran is experiencing an episode of care at a 
VA health care facility.

(Authority: 38 U.S.C. 501, 1708)

Sec.  60.2  Definitions.

    For the purposes of this part:
    Accompanying individual means an individual seeking Fisher House or 
other temporary lodging, who provides familial support or the 
equivalent of familial support, to a veteran while the veteran is 
experiencing an episode of care. This term is defined broadly to 
include relatives, close friends, and caregivers.
    Compensation and pension examination means an examination requested 
by VA's Veterans Benefits Administration to be conducted at a VA health 
care facility for the purpose of evaluating a veteran's claim.
    Episode of care means a course of outpatient treatment, or a period 
of hospitalization, during which a veteran receives health care under 
38 U.S.C. chapter 17, or 38 U.S.C. 8111 or 8153. Examples of episodes 
of care include (but are not limited to) the following:
    (1) An appointment at a VA health care facility to receive health 
care or a compensation and pension examination.
    (2) Extended outpatient treatment, such as treatment associated 
with organ transplant, chemotherapy, or radiation.
    (3) Hospitalization for a critical injury or illness; where death 
is imminent; or where a veteran is unable to make medical decisions for 
him/herself and the accompanying individual is authorized to make such 
decisions on the veteran's behalf.
    Fisher House means a housing facility that is located at or near a 
VA health care facility and was constructed by and donated to VA by the 
Fisher House Foundation (formerly the Zachary and Elizabeth M. Fisher 
Armed Services Foundation), or a facility that is treated as if it were 
Fisher House lodging under Sec.  60.3.
    Other temporary lodging includes:
    (1) Lodging at a temporary lodging facility, other than a Fisher 
House, located at a VA health care facility (generally referred to as a 
``hoptel'');
    (2) A hotel or motel;
    (3) Non-utilized beds at a VA health care facility designated as 
lodging beds; and
    (4) Other donated lodging to be used on a temporary basis in 
accordance with 38 U.S.C. 1708.
    VA means the Department of Veterans Affairs.

(Authority: 38 U.S.C. 501, 1708)

Sec.  60.3  Other donated temporary lodging.

    Whenever VA receives, from a source other than the Fisher House 
Foundation, an undesignated donation of lodging to be used on a 
temporary basis, the lodging will be designated as if it were Fisher 
House lodging or be treated as other temporary lodging based upon the 
types of lodging available in the area. If VA receives a gift that 
specifies the terms of the lodging provided, VA will use the lodging 
provided in the manner specified by the donor.

(Authority: 38 U.S.C. 501, 1708, 8103, 8104)

Sec.  60.10  Eligibility criteria for Fisher House or other temporary 
lodging.

    (a) General. While a veteran is undergoing an episode of care, VA 
may provide either Fisher House or other temporary lodging, as 
appropriate, if the application meets the requirements of this part 60. 
These are the only types of lodging provided by VA under this part. 
Note: Lodging provided for under this part will not be used by a person 
participating in a VA residential treatment program, or as a substitute 
for participation in such a program.
    (b) Eligible persons. (1) Fisher House. VA may provide Fisher House 
lodging to accompanying individual(s) and, in limited circumstances of 
immediate need and no alternative temporary lodging, to a veteran with 
one or more accompanying individual(s). Fisher House lodging will not 
be used to lodge unaccompanied veterans or individuals in need of 
transitional or permanent housing. Note: VA does not impose a general 
limit on the number of persons who may accompany a veteran, but VA may 
in specific cases provide lodging to only a specific number of persons 
due to space or resource limitations.
    (2) Other temporary lodging. VA may provide other temporary lodging 
to a veteran or to a veteran and his or her accompanying individual(s). 
Accompanying individuals may not stay in other temporary lodging unless 
the veteran is also staying in temporary lodging. Note: VA does not 
impose a general limit on the number of persons who may accompany a 
veteran, but VA may in specific cases provide lodging to only a 
specific number of persons due to space or resource limitations.
    (c) Condition of the veteran. Fisher House or other temporary 
lodging will not be provided to a veteran unless the VA official 
reviewing the application determines, based on the application and on 
any necessary clinical information, that the veteran is:
    (1) Medically stable and capable of self-care; or
    (2) Accompanied by an individual who is able to provide all 
necessary care.
    (d) Travel time/distance requirement. Fisher House or other 
temporary lodging may be provided only if the applicant seeking lodging 
must travel at least 50 miles, or for 2 hours, from his or her home to 
the VA health care facility. VA may waive these requirements based on 
exceptional circumstances, such as when the physical condition of an 
accompanying individual and/or the veteran, inclement weather, road 
conditions, or the mode of transportation, make it difficult or 
dangerous to travel to or return from the VA health care facility 
without an overnight stay.
    (e) Special authority for organ transplant cases. Notwithstanding 
any other provision of this part, VA may provide Fisher House or other 
temporary lodging for individuals who must be present on site for 
evaluation, donation, and care related to their status as an organ 
donor for a veteran. VA may also provide Fisher House or other 
temporary lodging for the donor's

[[Page 59090]]

accompanying individuals at all phases of the transplant process.

(Authority: 38 U.S.C. 501, 1708, 1710(a))

Sec.  60.15  Application process.

    (a) Obtaining and submitting the application. VA Form 10-0408A is 
the application for Fisher House and other temporary lodging. 
Applications may be submitted by mail, telephone, facsimile, in person, 
or electronically. VA Form 10-0408A is available from any VA health 
care facility or may be obtained online at http://vaww4.va.gov/vaforms/medical/pdf/vha-10-0408A-fill.pdf. The completed application must be 
submitted as follows:
    (1) For Fisher House lodging, to the Fisher House Manager at the VA 
health care facility of jurisdiction.
    (2) For other temporary lodging, to the temporary lodging program 
coordinator at the VA health care facility of jurisdiction.
    (b) Processing applications. (1) Applications are generally 
processed in the order that they are received by VA, and temporary 
lodging is then granted on a first come first serve basis; however, in 
extraordinary circumstances, such as imminent death, critical injury, 
or organ donation applications may be processed out of order.
    (2) Temporary lodging is granted on a space-available basis, with 
some consideration given to the compatibility of the applicant(s) and 
the room(s) available. For example, although VA may require an 
applicant to share a room with another veteran's accompanying 
individual, VA would not do so if the persons affected are not the same 
gender.
    (3) Temporary lodging at a VA health care facility, such as non-
utilized beds in a VA health care facility, may be made available only 
if not barred by law and if the Director of the VA health care facility 
determines that such action would not have a negative impact on patient 
care. Non-utilized beds provided to accompanying individuals must be 
reassigned to VA patients when necessary.
    (4) The Director of the VA health care facility of jurisdiction 
will determine whether local funding is sufficient to allow the use of 
temporary lodging in hotels and motels.
    (5) Subject to all criteria provided in this part, the person 
responsible for coordinating the Fisher House and other temporary 
lodging program(s) at the VA health care facility of jurisdiction is 
responsible for making decisions to grant temporary lodging. These 
decisions are considered to be final VA decisions concerning individual 
medical treatment plans and the scheduling and use of VA lodging 
facilities, and they are not appealable to the Board of Veterans' 
Appeals.
    (6) If VA denies an application for one type of lodging, such as at 
a Fisher House, the application will be considered for other temporary 
lodging and vice versa, if the applicant is eligible.
    (7) If VA denies the application for all types of temporary 
lodging, VA will refer the application to a VA social worker at the VA 
health care facility of jurisdiction to determine if other arrangements 
can be made.
    (c) Costs for Fisher House and other temporary lodging under this 
part are borne by VA.

(Authority: 38 U.S.C. 501, 1708)


    (The Office of Management and Budget has approved the 
information collection requirements in this section under OMB 
control number 2900-0630)


Sec.  60.20  Duration of Fisher House or other temporary lodging.

    Fisher House or other temporary lodging may be awarded for the 
following periods:
    (a) While the veteran is undergoing an episode of care.
    (b) While the veteran is hospitalized, if the veteran is admitted 
to a VA health care facility while undergoing an outpatient episode of 
care for which temporary lodging was already provided.
    (c) As extended by the appropriate VA clinician or social worker 
based on an emergency situation or unforeseen circumstances.
    (d) For an indefinite period for accompanying individuals who are 
visiting veterans hospitalized for an indefinite period, provided that 
the accompanying individual is not using a VA health care facility bed. 
Whether a veteran is hospitalized for an indefinite period will be 
based upon the treatment or rehabilitation needs of the veteran as 
determined by the veteran's health care team.
    (e) Temporary lodging may be furnished the night before the day of 
a scheduled appointment if, the veteran leaving home after 8:00 a.m., 
would be unable to arrive at the VA health care facility by the time of 
the scheduled appointment.
    (f) Temporary lodging may be furnished the night of the scheduled 
appointment if, after the appointment, the veteran would be unable to 
return home before 7:00 p.m. When a veteran is undergoing outpatient 
treatment or procedures the veteran and accompanying individual(s) may 
be furnished temporary lodging for the duration of the episode of care 
subject to limitations described in this section.

(Authority: 38 U.S.C. 501, 1708)


[FR Doc. 2012-23730 Filed 9-25-12; 8:45 am]
BILLING CODE 8320-01-P