[Federal Register Volume 78, Number 232 (Tuesday, December 3, 2013)]
[Rules and Regulations]
[Pages 72573-72576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28831]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AO84


Specially Adapted Housing Eligibility for Amyotrophic Lateral 
Sclerosis Beneficiaries

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
adjudication regulation regarding specially adapted housing (SAH). The 
amendment authorizes automatic issuance of a certificate of eligibility 
for SAH to all veterans and active servicemembers with service-
connected amyotrophic lateral sclerosis (ALS) rated totally disabling 
under the VA Schedule for Rating Disabilities. The intent and effect of 
this amendment are to establish eligibility for SAH for all persons who 
have service-connected ALS. VA previously amended its Schedule for 
Rating Disabilities to assign a 100-percent disability evaluation for 
any veteran who has service-connected ALS based on the recognition that 
ALS is a rapidly progressive, totally debilitating, and irreversible 
motor neuron disease that results in muscle weakness leading to a wide 
range of serious disabilities, including problems with mobility. 
Because individuals with ALS quickly reach a level of total disability, 
the change was designed to eliminate the need to repeatedly reevaluate 
veterans suffering from ALS over a short period of time as symptoms 
worsen.
    Based on that same rationale, this amendment addresses the 
corresponding eligibility for SAH benefits for veterans and 
servicemembers with service-connected ALS. The overall SAH grant 
approval and oversight process is complex and lengthy, with many parts 
beyond VA's control. This rulemaking streamlines one aspect of the 
process within VA's control, by establishing SAH eligibility for all 
veterans or servicemembers with service-connected, totally disabling 
ALS. By shortening the first stage of the SAH process, this regulatory 
change will assist veterans and servicemembers suffering from ALS in 
adapting their

[[Page 72574]]

homes before their condition becomes too debilitating. It will also 
lengthen the period during which ALS-afflicted veterans and 
servicemembers will be able to utilize the core SAH benefits. VA also 
makes non-substantive technical amendments for clarity.

DATES: Effective Date: This interim final rule is effective December 3, 
2013.
    Comment Date: Comments must be received by VA on or before February 
3, 2014.
    Applicability Date: The provisions of this regulatory amendment 
apply to all applications for SAH pending before VA on or received 
after December 3, 2013.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (02REG), Department of Veterans Affairs, 810 
Vermont Ave. 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-AO84--Specially Adapted Housing Eligibility for 
Amyotrophic Lateral Sclerosis Beneficiaries.'' Copies of comments 
received will be available for public inspection in the Office of 
Regulation Policy and Management, Room 1068, between the hours of 8:00 
a.m. and 4:30 p.m., Monday through Friday (except holidays). Please 
call (202) 461-4902 for an appointment. (This is not a toll-free 
number.) In addition, during the comment period, comments may be viewed 
online through the Federal Docket Management System (FDMS) at 
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Stephanie Caucutt Li, Section Chief, 
Regulations Staff (211D), Compensation Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420, (202) 461-9700. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on December 20, 2011 (76 FR 78823), VA amended its regulations 
pertaining to the percent disability evaluation assignable for service-
connected ALS. As of January 19, 2012, the effective date of that 
amendment, 38 CFR 4.124a, diagnostic code 8017, provides a 100-percent 
disability evaluation for any veteran who has service-connected ALS. VA 
determined that assigning a 100-percent evaluation in all cases 
eliminates the need to unnecessarily reevaluate veterans with ALS 
repeatedly over a short period of time as the condition worsens and 
inevitably progresses to total disability. The change was necessary to 
adequately compensate veterans who suffer from this progressive, 
untreatable, and fatal disease. However, the change did not 
specifically address corresponding eligibility for SAH benefits.
    Section 2101(a)(1), title 38, United States Code (U.S.C.), 
authorizes the award of SAH to veterans who are entitled to disability 
compensation for a ``permanent and total service-connected disability'' 
meeting any of the criteria specified in section 2101(a)(2)(B). Section 
2101A(a) of title 38, U.S.C., authorizes VA to provide the same 
assistance to a member of the Armed Forces serving on active duty who 
is suffering from a disability meeting the same requirements if the 
disability was incurred or aggravated in line of duty in active 
service, which is to say that the disability is service connected.
    Among the specified criteria the disability must meet are the 
following: (1) being due to loss of use of both lower extremities such 
as to preclude locomotion without the aid of braces, crutches, canes, 
or a wheelchair; (2) being due to loss of use of one lower extremity 
together with residuals of organic disease or injury which so affect 
the functions of balance or propulsion as to preclude locomotion 
without the aid of braces, crutches, canes, or a wheelchair; (3) being 
due to loss of use of one lower extremity together with the loss of use 
of one upper extremity which so affect the functions of balance or 
propulsion as to preclude locomotion without the aid of braces, 
crutches, canes, or a wheelchair; and (4) being due to the loss of use 
of both upper extremities such as to preclude use of the arms at or 
above the elbows. VA's SAH adjudication regulations, 38 CFR 3.809(b), 
which were promulgated to implement sections 2101(a) and 2101A(a), 
include these four SAH eligibility criteria regarding loss of use of 
extremities.
    Because ALS is a rapidly progressive, totally debilitating, and 
irreversible disease, VA has determined that progression of ALS will 
routinely, and quickly, satisfy these existing SAH eligibility 
criteria. This interim final rule permits VA to determine SAH 
eligibility as soon as a veteran or servicemember establishes service 
connection for ALS, eliminating the need for additional development and 
reducing wait times. By streamlining the eligibility process, this 
regulatory amendment will allow veterans and servicemembers with 
service-connected ALS to receive and utilize to maximum advantage the 
SAH benefit, without unnecessary delay.
    From the standpoint of SAH qualification procedures, the effect of 
this regulatory amendment is to allocate resources most efficiently and 
ensure a better lifestyle for veterans and servicemembers with service-
connected ALS who want to adapt their homes so they can remain in them 
for as long as possible. In this regard, one major patient or caretaker 
decision concerning ALS--the implementation of tracheotomy and assisted 
ventilation--can in many instances leave the patient homebound. 
Veterans and servicemembers who experience slower progression of ALS 
can be managed at home with extensive home care. Thus, there exists an 
immediate need for VA to focus this regulatory change upon the SAH 
certificate of eligibility process and timeframe. Because the prognosis 
of the progression of ALS is typically established after a brief period 
of observation, in most cases less than 3 months, VA has determined 
that it is fair and reasonable to provide a certificate of eligibility 
for SAH upon determination of service connection for ALS.
    VA's Loan Guaranty Service continues to identify and implement 
process improvements to the SAH program, while also recognizing the 
impact an expedited rating will have on reducing the grant processing 
timeline. Pursuant to the authority granted in 38 U.S.C. 2101(a)-(c), 
the Secretary has established in 38 CFR 36.4405 a two-phase approval 
process for the SAH program, a conditional approval and a final 
approval. Due to the complex and variable nature of the SAH grant, the 
process for overall approval can take as little as 6 months, but in 
rare instances, as long as 1 year, and the time to actually complete 
the construction of the adaptation can consume an additional 6 months.
    For conditional approval, the Secretary must determine that the 
veteran and the home meet the disability, suitability, and feasibility 
requirements of the SAH program, and that the veteran has not exceeded 
the program's applicable dollar and usage limitations. 38 CFR 
36.4405(a)(1). If these conditional requirements are met, the Secretary 
can then authorize pre-construction costs, to include architectural 
services, land surveys, and legal fees. 38 CFR 36.4405(a)(2). Final 
grant approval is contingent on the approval of property plans and 
specifications, the verification of ownership of the property, the 
submission of certifications regarding any future sale or rental of the 
property, the showing that flood insurance has been obtained, and the 
compliance with certain geographical limits. 38 CFR 36.4405(b)(2). This 
approval process

[[Page 72575]]

varies from case to case, as each eligible person may choose the 
project type, location, contractor, and architect, and each home may 
require specific unique adaptations to meet the person's needs.
    Following grant approval, VA continues its oversight of the grant 
disbursement until each project is completed, by establishing escrow 
accounts, reviewing local and state building permits, and ensuring that 
compliance inspections meet local, state, and Federal building 
requirements along with VA minimum property requirements. The overall 
process from eligibility determination to occupancy of the home adapted 
to meet the person's specific requirements can take from 12 to 18 
months, absent this rulemaking.
    As stated above, therefore, in order to ensure that an eligible 
person can take advantage of this benefit to live independently as 
quickly as possible, an expeditious SAH eligibility determination is 
both critical and essential. Since the SAH event cycle is largely 
variable and reliant on factors beyond the control of VA, but ALS 
implications are known and unique, VA is regulating an arena that VA 
does control, that is, reducing the certification timeframes with 
regard to SAH claimants with service-connected ALS.
    VA, therefore, intends to establish SAH eligibility for all persons 
with service-connected ALS rated as totally disabling. VA is doing so 
by adding a new provision to 38 CFR 3.809, which governs eligibility 
for SAH under 38 U.S.C. 2101(a) or 2101A(a). The new regulation adds 
the following sole criterion for ALS claimants, as an alternative to 
the previously listed criteria: the veteran or member of the Armed 
Forces serving on active duty has service-connected ALS rated 100-
percent disabling under diagnostic code 8017 of 38 CFR 4.124a. By 
satisfying this added sole criterion, an ALS veteran or servicemember 
becomes eligible for the SAH grant, without further development and 
delay. VA incorporates this new category of criteria in Sec.  3.809 as 
new paragraph (d).
    VA is also reorganizing Sec.  3.809 for ease of readability and 
clarity. First, VA is retitling Sec.  3.809 to reflect that Sec.  3.809 
applies to a veteran or a member of the Armed Forces serving on active 
duty who is eligible for SAH benefits under 38 U.S.C. 2101(a)(2)(A)(i) 
but not those who are eligible under 38 U.S.C. 2101(a)(2)(A)(ii). On 
August 6, 2012, Congress provided temporary eligibility for SAH 
benefits to a veteran who served in the Armed Forces on or after 
September 11, 2001, if the veteran is entitled to compensation under 
chapter 11 of title 38 for a permanent service-connected disability 
meeting certain criteria. 38 U.S.C. 2101(a)(2)(A)(ii); Andrew Connolly 
Veterans Housing Act, Public Law 112-154, Sec.  202, 126 Stat. 1176 
(2012). Section 3.809 does not address those veterans. VA has been 
relying on the statute to provide SAH benefits to those veterans. 
Second, VA is amending the introductory text to Sec.  3.809. Third, VA 
is removing current Sec.  3.809(a) because its content is outdated and 
unnecessary. Fourth, VA is redesignating current Sec.  3.809(b) as new 
Sec.  3.809(a) with the exception of the last phrase and revising the 
heading to match its contents. Fifth, VA is rewording the last phrase 
of current Sec.  3.809(b) in new Sec.  3.809(b). Sixth, VA also makes 
four non-substantive technical amendments for purposes of clarity, by 
removing two erroneously placed periods at the conclusion of current 
Sec.  3.809(b)(3) and (b)(4), removing two extraneous commas in current 
Sec.  3.809(b)(1), removing ``or'' at the end of current Sec.  
3.809(b)(1)-(4), and removing the quotation marks from the title of 
Sec.  3.809(c). Finally, in promulgating this rule, VA relies on its 
general authority granted under 38 U.S.C. 501(a)(1) to prescribe 
regulations to carry out the laws administered by VA, including those 
concerning the nature and extent of proof and evidence in order to 
establish the right to benefits. Therefore, VA is updating the 
authority citation to Sec.  3.809 to refer to section 501(a). VA makes 
these formatting changes in order to incorporate the new ALS criterion 
in the clearest manner.

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), we find that there is 
good cause to dispense with advance public notice and opportunity to 
comment on this rule and good cause to publish this rule with an 
immediate effective date. This interim final rule is necessary to 
implement immediately the Secretary's decision to establish SAH 
eligibility for all persons with totally-disabling service-connected 
ALS. Delay in the implementation of this rule would be impracticable 
and contrary to the public interest, particularly to veterans and 
servicemembers.
    Because the survival period for persons suffering from ALS is 
generally 18-48 months or less from the onset of symptoms, any delay in 
establishing SAH eligibility is extremely detrimental to veterans and 
servicemembers who are currently afflicted with ALS. Any delay in 
implementation until after a public-comment period could delay 
modifying the regulated certificate of eligibility process, depriving 
ALS veterans and servicemembers of quick and efficient access to SAH 
benefits.
    The other revisions and minor punctuation changes made by this rule 
are technical corrections that merely remove unnecessary and 
potentially unclear language and punctuation. The substantive rights 
and duties of all parties affected by these changes have not been 
altered. Advance public notice and opportunity to comment on such 
changes is unnecessary under 5 U.S.C. 553(b)(B), and because of their 
nonsubstantive nature, we find good cause to publish these changes with 
an immediate effective date.
    For the foregoing reasons, the Secretary is issuing this rule as an 
interim final rule with immediate effect.

Paperwork Reduction Act

    This interim final rule contains no provisions constituting a 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this interim 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 interim final rule will not affect any small 
entities. Only VA beneficiaries will be directly affected. Therefore, 
pursuant to 5 U.S.C. 605(b), this interim final rule 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

[[Page 72576]]

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 interim final rule have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Orders 12866 and 13563. VA's impact analysis can be found as 
a supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's Web 
site at http://www1.va.gov/orpm/ by following the link for ``VA 
Regulations Published.''

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This interim final rule will have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are 64.106, Specially Adapted Housing for Disabled 
Veterans and 64.109, Veterans Compensation for Service-Connected 
Disability.

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. Jose D. 
Riojas, Chief of Staff, Department of Veterans Affairs, approved this 
document on November 7, 2013, for publication.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

    Dated: November 26, 2013.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA is amending 38 CFR part 
3 as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

0
2. Revise Sec.  3.809 to read as follows:


Sec.  3.809  Specially adapted housing under 38 U.S.C. 
2101(a)(2)(A)(i).

    In order for a certificate of eligibility for assistance in 
acquiring specially adapted housing under 38 U.S.C. 2101(a)(2)(A)(i) or 
2101A(a) to be extended to a veteran or a member of the Armed Forces 
serving on active duty, the following requirements must be met:
    (a) General. A member of the Armed Forces serving on active duty 
must have a disability rated as permanent and total that was incurred 
or aggravated in line of duty in active military, naval, or air 
service. A veteran must be entitled to compensation under chapter 11 of 
title 38, United States Code, for a disability rated as permanent and 
total.
    (b) Disability. The disability must be due to:
    (1) The loss or loss of use of both lower extremities, such as to 
preclude locomotion without the aid of braces, crutches, canes, or a 
wheelchair,
    (2) Blindness in both eyes, having only light perception, plus the 
anatomical loss or loss of use of one lower extremity,
    (3) The loss or loss of use of one lower extremity together with 
residuals of organic disease or injury which so affect the functions of 
balance or propulsion as to preclude locomotion without the aid of 
braces, crutches, canes, or a wheelchair,
    (4) The loss or loss of use of one lower extremity together with 
the loss or loss of use of one upper extremity which so affect the 
functions of balance or propulsion as to preclude locomotion without 
the aid of braces, crutches, canes, or a wheelchair,
    (5) The loss or loss of use of both upper extremities such as to 
preclude use of the arms at or above the elbow, or
    (6) Full thickness or subdermal burns that have resulted in 
contractures with limitation of motion of two or more extremities or of 
at least one extremity and the trunk.
    (c) Preclude locomotion. This term means the necessity for regular 
and constant use of a wheelchair, braces, crutches or canes as a normal 
mode of locomotion although occasional locomotion by other methods may 
be possible.
    (d) Amyotrophic lateral sclerosis. VA considers Sec.  3.809(b) 
satisfied if the veteran or member of the Armed Forces serving on 
active duty has service-connected amyotrophic lateral sclerosis rated 
100 percent disabling under 38 CFR 4.124a, diagnostic code 8017.

(Authority: 38 U.S.C. 501(a), 1151(c)(1), 2101, 2101A)


    Cross Reference: Assistance to certain disabled veterans in 
acquiring specially adapted housing. See Sec. Sec.  36.4400 through 
36.4410 of this chapter.

[FR Doc. 2013-28831 Filed 12-2-13; 8:45 am]
BILLING CODE 8320-01-P