[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Proposed Rules]
[Pages 60417-60424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18921]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17 and 51

RIN 2900-AR61


Determining Eligibility for Domiciliary Care

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
medical regulations and State Veterans Home (State home) regulations. 
VA proposes to update the criteria used by VA in determining whether a 
veteran has no adequate means of support relative to eligibility for 
domiciliary care, and to shift the focus of the regulatory language 
from the veterans' ability to pursue substantially gainful employment 
to a broader consideration of available support systems and medical 
conditions or disabilities that might impact the veteran's ability to 
live independently. In addition, we propose amending our State home 
regulations to implement VA's authority to waive certain eligibility 
requirements for receipt of State home domiciliary care per diem.

DATES: Comments must be received by VA on or before October 31, 2023.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: http://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the commenter will take actions to harm an 
individual. VA encourages individuals not to submit duplicative 
comments. We will post acceptable comments from multiple unique 
commenters even if the content is identical or nearly identical to 
other comments. Any public comment received after the comment period's 
closing date is considered late and will not be considered in the final 
rulemaking.

FOR FURTHER INFORMATION CONTACT: Jennifer Burden, Ph.D., National 
Mental Health Director, Mental Health Residential Rehabilitation and 
Treatment Programs (11MHSP), Veterans Health Administration, Department 
of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420; (540) 
819-1190 (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Section 1710(b)(2) of title 38, United 
States Code (U.S.C.) authorizes VA to provide needed domiciliary care 
to veterans whose annual income does not exceed the applicable maximum 
annual rate of VA pension and to veterans VA determines have no 
adequate means of support. Historically, domiciliary care in VA has 
primarily been focused on delivering care to older residents who cannot 
live independently but who do not require admission to a nursing home, 
although the scope of domiciliary care provided by VA has expanded over 
the decades to meet the changing needs of veterans.
    The term domiciliary care is defined in Sec.  17.30(b) of title 38, 
Code of Federal Regulations (CFR), which reflects the two alternative 
models of domiciliary care VA is authorized to provide to eligible 
veterans. Domiciliary care is defined at Sec.  17.30(b)(1)(i) to mean 
the furnishing of a temporary home to a veteran, embracing the 
furnishing of shelter, food, clothing, and other comforts of home, 
including necessary medical services. This model focuses on the needs 
of veterans eligible for VA domiciliary care who cannot live 
independently but who do not require admission to a nursing home. While 
VA retains the authority to directly provide domiciliary care under 
this model, it currently pays a per diem to State homes to provide this 
model of domiciliary care to eligible veterans. The statutory authority 
for the payment program is set forth at 38 U.S.C. 1741-43. VA has 
published regulations governing this program at 38 CFR part 51. VA 
regulates eligibility for VA payment of State home domiciliary care per 
diem at Sec.  51.51.
    The second model for providing domiciliary care is defined in Sec.  
17.30(b)(1)(ii). There, domiciliary care is defined to mean the 
furnishing of a day hospital program consisting of intensive supervised 
rehabilitation and treatment provided in a therapeutic residential 
setting for residents with mental health or substance use disorders and 
co-occurring medical or psychosocial needs such as homelessness and 
unemployment. This model focuses on the needs of veterans eligible for 
domiciliary care and who are receiving care through VA's Mental Health 
Residential Rehabilitation Treatment Program, including Domiciliary 
Care for Homeless Veterans Program; General Domiciliary; Domiciliary 
Substance Use Programs; and Domiciliary Post-Traumatic Stress Disorder 
Programs. Today, a VA domiciliary consists of intensive supervised 
rehabilitation and treatment provided in a therapeutic residential 
setting that is aligned with VA medical facilities.
    Veterans must meet the eligibility criteria found in 38 CFR 
17.46(b) as well as Sec. Sec.  17.47(b)(2) and 17.47(c) to receive 
domiciliary care in a VA domiciliary. Per Sec.  17.46(b) domiciliary 
care may be furnished when needed to any veteran whose annual income 
does not exceed the maximum annual rate of pension payable to a veteran 
in need of regular aid and attendance, or any veteran who VA determines 
had no adequate means of support. There is an additional requirement in 
that paragraph that the veteran must be able to perform certain listed 
activities related to self-care. In turn, 38 CFR 17.47(b)(2) addresses 
how VA determines whether a veteran has no adequate means of support 
for purposes of eligibility for domiciliary care. Finally, 38 CFR 
17.47(c) establishes that to be provided domiciliary care, the veteran 
must have a disability, disease, or defect which is essentially chronic 
in type and is producing disablement of such degree and probable 
persistency as will incapacitate from earning a living for a 
prospective period. Eligibility criteria found in Sec. Sec.  17.46 and 
17.47 are applicable to domiciliary care provided by VA in residential 
rehabilitation treatment venues. The same eligibility criteria 
generally are reflected in current 38 CFR 51.51 and are applicable to 
State home domiciliary veterans for purposes of per diem payment 
eligibility.
    We propose multiple changes to our regulations. Initially, we 
propose to make a technical change in part 17 to remove the word 
domiciliary from a regulation that does not address domiciliary care. 
VA also proposes amending both Part 17 and 51 regulations that address 
how VA determines whether a veteran has no adequate means of support 
for purposes

[[Page 60418]]

of eligibility for domiciliary care or domiciliary care per diem. VA 
proposes to amend its regulations to update the criteria used by VA in 
determining whether a veteran has no adequate means of support relative 
to eligibility for domiciliary care, and to shift the focus in the 
regulatory language from the veterans' ability to pursue substantially 
gainful employment to a broader consideration of the availability of a 
family and/or community support system to assist the veteran in living 
independently, consideration of the veteran's ability to access that 
support system, and any medical conditions or disabilities that might 
impact that ability. In addition, we propose amending our State home 
regulations to implement VA's authority to waive certain eligibility 
requirements for eligibility for State home domiciliary care per diem 
and to permit waivers of these eligibility requirements retroactive to 
January 5, 2021.

Section 17.43 Persons Entitled to Hospital or Domiciliary Care.

    The title of this section references domiciliary care as does the 
introductory sentence. However, the remaining content focuses on 
eligibility for hospital care. Eligibility for domiciliary care, as 
noted above, is addressed in subsequent sections of Part 17. We propose 
deleting references to domiciliary care in Sec.  17.43.

Section 17.46 Eligibility for Hospital, Domiciliary or Nursing Home 
Care of Persons Discharged or Released From Active Military, Naval, or 
Air Service.

    Current Sec.  17.46(b)(2) states that domiciliary care may be 
provided to any veteran who the Secretary determines had no adequate 
means of support. This paragraph further states that a veteran eligible 
for domiciliary care must be able to make rational and competent 
decisions as to their desire to remain or leave the facility and 
perform tasks related to self-care listed at Sec.  17.46(b)(2)(i)-
(viii). One task on the list, at paragraph (b)(2)(vii), provides that 
the veterans must be able to share in some measure, however slight, in 
the maintenance and operation of the facility. We propose removing this 
requirement, as the purpose of providing domiciliary care is treatment 
and rehabilitation, and requiring the veteran to participate in the 
maintenance and operation of the facility is inconsistent with that 
purpose. For this reason, we propose removing this requirement and 
redesignating current (b)(2)(viii) as (b)(2)(vii).

Section 17.47 Considerations Applicable in Determining Eligibility for 
Hospital Care, Medical Services, Nursing Home Care, or Domiciliary 
Care.

    Current Sec.  17.47(b)(2) specifies that ``. . . the phrase no 
adequate means of support refers to an applicant for domiciliary care 
whose annual income exceeds the annual rate of pension for a veteran in 
receipt of regular aid and attendance, as defined in 38 U.S.C. 1503, 
but who is able to demonstrate to competent VA medical authority, on 
the basis of objective evidence, that deficits in health and/or 
functional status render the applicant incapable of pursuing 
substantially gainful employment, as determined by the Chief of Staff 
of the VA medical center, and who is otherwise without the means to 
provide adequately for self, or be provided for in the community.''
    The foci of current 38 CFR 17.47(b)(2) is on the ability to engage 
in substantially gainful employment and on self-reliance and achieving 
or sustaining independence in the community. VA believes that 
predicating eligibility for domiciliary care on the ability of the 
veteran to engage in gainful employment, is inconsistent with delivery 
of patient centered care. In patient-centered care, an individual's 
specific health needs and desired health outcomes are the driving force 
behind all health care decisions. Historically, domiciliary care in VA 
was primarily focused on delivering care to older residents who could 
not live independently but who did not require admission to a nursing 
home. The scope of domiciliary care provided by VA has expanded over 
the decades to meet the changing needs of veterans. Today, VA 
domiciliary care consists of intensive supervised rehabilitation and 
treatment provided in a therapeutic residential setting that is aligned 
with VA medical facilities. As discussed in further detail below, VA 
proposes taking a different approach to determining whether a veteran 
has no adequate means of support.
    To determine that a veteran has no adequate means of support, 
current Sec.  17.47(b)(2) requires a determination by VA on separate 
but interconnected issues. VA must determine that the veteran has an 
annual income that exceeds the annual rate of pension for a veteran in 
receipt of regular aid and attendance, as defined in 38 U.S.C. 1503. In 
addition, VA must determine that the veteran is able to demonstrate to 
VA medical authority that deficits in health and/or functional status 
render them incapable of pursuing substantially gainful employment and 
that the veteran is otherwise without the means to provide adequately 
for self, or be provided for in the community. VA does not consider the 
inability to pursue substantially gainful employment as a prime 
determinant in assessing a veteran's need for domiciliary care. VA 
believes that it also needs to consider the veteran's condition, 
medical and financial, in its entirety in the context of the veteran's 
ability to sustain and maintain independence in the community given 
available support systems and the veteran's ability to access those 
systems. For the purpose of determining eligibility for domiciliary 
care, VA believes that veterans with annual income above the rate set 
in the current regulation could still not have adequate means of 
support because having adequate means of support may also require the 
availability of a family and/or community support system to assist the 
veteran in living independently and the veteran's ability to access 
that support system, which takes into account any medical conditions or 
disabilities that might impact that ability.
    VA proposes to amend Sec.  17.47(b)(2) to state that for purposes 
of determining eligibility for domiciliary care, the phrase no adequate 
means of support refers to an applicant for or recipient of domiciliary 
care whose annual income exceeds the maximum annual rate of pension for 
a veteran in receipt of regular aid and attendance, as defined in 38 
U.S.C. 1503, whose deficits in health and/or functional status may 
render the veteran incapable of achieving or sustaining independence in 
the community as determined by the Chief of Staff of the VA medical 
center, or designee. In assessing a veteran's ability to achieve or 
sustain independence in the community, the Chief of Staff or designee 
will make a determination of eligibility for domiciliary care based on 
objective evidence, considering factors including, but not limited to: 
(i) the impact of the severity of the veteran's medical condition, 
disabilities, and symptoms on the veteran's safety in the community; 
(ii) the impact of the severity of the veteran's medical condition, 
disabilities, and symptoms on the veteran's ability to provide self-
care; (iii) the availability of community or family support systems; 
(iv) the impact of the severity of the veteran's medical condition, 
disabilities, and symptoms on the veteran's ability to access and 
utilize community support systems; (v) the risk of loss of housing in 
the community; (vi) the risk of loss

[[Page 60419]]

of the veteran's income; (vii) access to outpatient mental health and 
substance use disorder care; and (viii) the current effectiveness of 
any outpatient mental health and substance use disorder care provided 
to the veteran.
    VA believes that this list of factors that must be considered, 
which is not intended to be all inclusive, would provide guidance to 
the Chief of Staff of a VA medical center, or designee, on the criteria 
that must be considered in determining eligibility for domiciliary care 
in those cases where the veteran's annual income exceeds the annual 
rate of pension for a veteran in receipt of regular aid and attendance.
    Additionally, VA proposes to clarify existing language in 38 CFR 
17.47(b)(2) by referring to the ``maximum annual rate of pension'' as 
opposed to ``annual rate of pension''. Section 17.47(b)(2) addresses 
how VA determines whether a veteran has no adequate means of support, 
while Sec.  17.46(b) provides the eligibility requirements for 
domiciliary care. Specifically, Sec.  17.46(b)(1) refers to the maximum 
annual rate of pension. VA believes that this is a non-substantive 
change that will maintain consistency with Sec. Sec.  17.46(b)(1) and 
17.47(b)(2). Further, VA proposes to add ``or designee'' when referring 
to the Chief of Staff. The authority to make determinations on 
eligibility for domiciliary care is exercised by the Chief of Staff of 
the VA medical center; however, the Chief of Staff may delegate this 
responsibility to another clinical reviewer in the VA medical center.
    We propose deleting paragraph (c) and marking that paragraph 
designation as Reserved. Current Sec.  17.47(c) addresses three 
distinct issues. It provides a definition for the term disability, 
disease, or defect; it clarifies that domiciliary care is intended to 
provide a temporary home (not permanent) with ambulant care as needed; 
and it provides that to receive domiciliary care from VA, an applicant 
must consistently have a disability, disease, or defect which is 
essentially chronic in type and that disables the veteran to such a 
degree and probable persistency that the veteran will be unable to earn 
a living for a prospective period. The term disability, disease, or 
defect was used in earlier versions of our Part 17 regulations as an 
eligibility criterion for one class of veterans eligible for 
domiciliary care. The term disability, disease, or defect is not used 
anywhere else in Part 17 of 38 CFR except in the last sentence of 
current Sec.  17.47(c), which is discussed below. We note that it is 
used in the definition of domiciliary care found in Sec.  59.2, which 
defines terms relevant to grants to States for construction or 
acquisition of State homes. However, there is no reference to Sec.  
17.47(c) in Sec.  59.2, and VA believes that the Sec.  17.47(c) 
definition of disability, disease, or defect is not necessary for 
understanding the use of that term in Part 59. For those reasons, we 
propose removing the definition of disability, disease, or defect.
    The second sentence in paragraph (c) states that ``domiciliary 
care, as the term implies, is the provision of a temporary home, with 
such ambulant medical care as is needed.'' This definition of 
domiciliary care is not as complete as the definition already in Sec.  
17.30(b) which includes the following: The term domiciliary care . . . 
[m]eans the furnishing of . . . [a] temporary home to a veteran, 
embracing the furnishing of shelter, food, clothing and other comforts 
of home, including necessary medical services. Because the regulations 
already have a more complete definition of domiciliary care in Sec.  
17.30(b), we propose deleting the second sentence in Sec.  17.47(c).
    The final sentence in current Sec.  17.47(c) states that to be 
provided with domiciliary care, the applicant must consistently have a 
disability, disease, or defect which is essentially chronic in type and 
is producing disablement of such degree and probable persistency as 
will incapacitate from earning a living for a prospective period. We 
propose removing this sentence because it ties eligibility for 
domiciliary care solely to incapacity to earn a living, which is 
inconsistent with VA's view that eligibility for domiciliary care needs 
to consider the veteran's condition, medical and financial, in its 
entirety as noted above.

Section 51.42 Payment Procedures

    Section 51.42 addresses per diem payment procedures under part 51, 
and we propose to add a new paragraph (c) to implement per diem 
payments to a State home domiciliary because of the new authority 
granted by Public Law (Pub. L.) 116-315, section 3007(a). As explained 
later in this rulemaking, we propose to revise eligibility for per diem 
for domiciliary care in Sec.  51.51(b) to implement the new authority 
as of January 5, 2021. In proposed Sec.  51.42(c) we would state that 
VA will make per diem payments under this part retroactive to the date 
specified by Sec.  51.42(b)(3), or January 5, 2021, whichever date is 
later, if all the requirements in proposed Sec.  51.42(c)(1) through 
(4) are met. We would make per diem payments retroactive pursuant to 
Sec.  51.42(b)(3) (i.e., from the date of receipt of the completed 
forms or from the date care began if the State home submitted completed 
forms (no later than 10 calendar days after care began)). State homes 
have and continue to be required to submit the following forms no later 
than 10 calendar days after care begins to receive payments retroactive 
to the date of admission: (1) VA Form 10-10EZ, Application for Medical 
Benefits (or VA Form 10-10EZR, Health Benefits Renewal Form); and (2) 
VA Form 10-10SH, State Home Program Application of Care--Medical 
Certification. Further, we believe State homes that have admitted 
veterans in reliance on this new discretionary authority have continued 
to submit completed forms for per diem payments for these veterans 
under Sec.  51.42.
    Proposed Sec.  51.42(c)(1) would set forth one of the requirements 
that must be met for VA to make per diem payments under this part 
retroactive to the date specified by paragraph (b)(3) of this section: 
that within 30 calendar days of the effective date of the rule, a State 
home provides VA a written list of veterans' names for whom completed 
forms were received by VA on or after January 5, 2021, and the State 
home requests that VA consider them for a waiver under proposed Sec.  
51.51(b)(2). It would be administratively burdensome for VA to conduct 
a retrospective review of every denied application since January 5, 
2021 and review current applications in a timely manner. Not all denied 
applications would be eligible for a waiver under Sec.  51.51(b). 
Therefore, we would require State homes to submit to VA a written list 
of veterans whose completed forms have been denied pursuant to current 
Sec.  51.51(b) on or after January 5, 2021, and whom the State home 
wants to have considered for a waiver under proposed Sec.  51.51(b)(2). 
We believe this would result in the most efficient retrospective review 
of denied applications and allow VA to process applicable retroactive 
per diem payments in a timely manner. We would require that the list be 
provided within 30 days of the effective date of the rule because we 
believe State homes have already been tracking which veterans they 
believe might receive a waiver under this new authority and would be on 
notice upon publication of this proposed rule of our intent to require 
that a written list be provided within that time period. Also, we would 
limit retrospective reviews to completed forms received by VA on or 
after January 5, 2021. We would use January 5, 2021, as this is 
consistent with the effective date of Public Law 116-315, section 
3007(a) granting the new authority and the date we propose to use in 38 
CFR 51.51(b)(1). We would

[[Page 60420]]

focus on completed forms received because 38 U.S.C. 1743 only allows VA 
to pay per diem from the date that VA receives the request for VA to 
determine the veteran's eligibility or from the date care began if the 
request is received within 10 days after care begins. If the required 
forms are received after 10 days from the date care begins, then 
payments will be made from the date VA receives the required forms. Id. 
Therefore, we believe that VA lacks the statutory authority to make per 
diem retroactive to the date veterans began receiving care in a State 
home domiciliary in reliance on Pub. L. 116-315, section 3007(a), 
unless the State home submitted the required forms (i.e., VA Form 10-
10EZ and VA Form 10-10SH) within 10 days of that date. For example, if 
a State home admitted a veteran in reliance of Public Law 116-315, 
section 3007(a) on January 5, 2021, and to date has not submitted the 
required forms, then the earliest VA may make per diem payments is as 
of the date VA receives the required forms. In the same example, if a 
State home submitted the required forms no later than 10 days from 
January 5, 2021, then the State home may receive per diem retroactive 
to January 5, 2021, so long as all of the requirements in proposed 38 
CFR 51.42(c)(1) through (4) are met. In the same example, if a State 
home submitted the required forms on the day on which care began, e.g., 
January 25, 2022, then the State home may receive per diem retroactive 
to January 25, 2022, so long as all the requirements in proposed Sec.  
51.42(c)(1) through (4) are met. Further, we note that in the proposed 
regulatory text for this paragraph, the effective date is referenced as 
``[EFFECTIVE DATE OF FINAL RULE]''. It is VA's intent to replace this 
language with the actual effective date of this rule which will be 
determined upon publication of the final rule.
    Two other requirements would need to be met for a State home to 
receive retroactive per diem for care provided prior to the effective 
date of this regulation. Proposed Sec.  51.42(c)(2) and (c)(3) would 
provide that with respect to the veterans on the written list under 
proposed (c)(1), VA denied the State's request for per diem for the 
veterans when their forms were originally submitted and the denial was 
solely because the veteran did not meet the requirements under Sec.  
51.51(b) and that, upon VA review, the veteran would have received a 
waiver under proposed Sec.  51.51(b)(2) if this regulation had been in 
effect when the request for per diem was originally submitted, 
respectively. Upon receipt of a list of veterans whom the State home 
wants to have considered for a waiver under proposed Sec.  51.51(b)(2), 
VA would verify that the claim was denied solely pursuant to current 
Sec.  51.51(b), which lists the eight tasks and activities a veteran 
must be able to perform to establish eligibility for VA per diem for 
State home domiciliary care, because, as discussed below, Public Law 
116-315, section 3007(a) requires VA to amend 38 CFR 51.51(b) to allow 
waivers of these requirements under certain conditions. Further, as 
discussed below we propose to revise Sec.  51.51(b) by creating a new 
paragraph (b)(2) to implement the new authority. Therefore, after 
verifying that a claim was denied solely due to a veteran's inability 
to perform the eight tasks and activities listed in current Sec.  
51.51(b), we would then determine whether the claim is eligible for a 
waiver under proposed Sec.  51.51(b)(2). We note we will not continue 
to conduct a retrospective review if the claim was denied for a reason 
other than the eligibility requirement under current Sec.  51.51(b). 
Therefore, if a claim was denied because the veteran did not meet the 
eligibility requirements in current Sec.  51.51(a), VA would not grant 
a waiver under proposed Sec.  51.51(b)(2).
    The final requirement that would need to be met for a State home to 
receive retroactive per diem for care provided prior to the effective 
date of this regulation is in proposed Sec.  51.42(c)(4). That 
provision would require the State home to submit to VA a completed VA 
Form 10-5588, State Home Report and Statement of Federal Aid Claimed, 
for each month that the State home provided domiciliary care to a 
veteran for whom the home is requesting a waiver. The form would cover 
only the veterans not originally included on the form when submitted 
previously for that month. This requirement would enable VA to make 
applicable retroactive per diem payments to State homes. VA Form 10-
5588 is an invoice in VA's payment system and is required for State 
homes to receive payments. The submission of VA Form 10-5588 will 
enable VA to make a supplemental payment to State homes for veterans 
who meet the requirements for retroactive per diem.
    We believe the changes discussed above will allow VA to provide 
retroactive per diem payments to a State home domiciliary if the 
requirements under proposed Sec.  51.41(c)(1) through (4) are met, 
irrespective of when this rulemaking is effective.

Section 51.51 Eligible Veterans--Domiciliary Care

    Section 51.51 specifies the Veterans on whose behalf State homes 
may receive per diem payments from VA for domiciliary care in State 
home domiciliaries. The criteria reflected in this section derive 
primarily from Sec. Sec.  17.46(b) and 17.47(b)(2). VA determinations 
regarding which veterans on whose behalf VA may pay per diem payments 
for domiciliary care in State homes and which are eligible for 
domiciliary care in a VA domiciliary, and the factors considered by VA 
in making those determinations, are currently the same regardless of 
whether the domiciliary care is provided directly by VA or by a State 
home. See 38 U.S.C. 1741. As discussed below, under section 3007 of 
Public Law 116-315, VA is required to modify 38 CFR 51.51(b) to provide 
VA the authority to waive the requirements under current Sec.  51.51(b) 
for a veteran to be eligible for per diem payments for domiciliary care 
at a State home if--
    (1) the veteran has met not fewer than four of the requirements set 
forth in such section; or
    (2) such waiver would be in the best interest of the veteran.
    Current Sec.  51.51(a)(2) substantively mirrors current Sec.  
17.47(b)(2), and for purposes of consistency, we propose amending Sec.  
51.51(a)(2) consistent with proposed Sec.  17.47(b)(2). We note that 
the addition of these factors that must be considered when determining 
if a veteran has no adequate means of support would not affect the 
waiver authority granted by Public Law 116-315, section 3007(a). Some 
of the factors in proposed Sec. Sec.  51.51(a)(2) and (b)(1) overlap. 
For example, a veteran's ability to provide self-care in proposed 
paragraph (a)(2) and a veteran's ability to perform daily ablutions, 
dress or feed oneself in proposed paragraph (b)(1). However, the 
factors listed under proposed Sec.  51.51(a)(2) are focused, in part, 
on any medical conditions or disabilities that might impact a veteran's 
ability to live independently; whereas the factors listed under 
proposed Sec.  51.51(b) are tasks that a veteran must be able to 
perform and would thus be indicative of a veteran's ability to live 
independently. We believe that any requirement waived under proposed 
Sec.  51.51(b) would be indicative of a veteran's inability to live 
independently. Therefore, a factor waived under proposed Sec.  
51.51(b)(2) could be considered under the proposed factors in proposed 
Sec.  51.51(a)(2) to determine whether a veteran has no means of 
adequate support.

[[Page 60421]]

    Current Sec.  51.51(b) mirrors current Sec.  17.46(b)(2), listing 
tasks and abilities that a veteran must exhibit to be eligible for 
domiciliary care. Public Law 116-315, section 3007(a) states that 
notwithstanding 38 U.S.C. 1741, the Secretary of Veterans Affairs shall 
modify 38 CFR 51.51(b) (or successor regulations), to provide the 
Secretary the authority to waive the requirements under Sec.  51.51(b) 
for a veteran to be eligible for per diem payments for domiciliary care 
at a State home if (1) the veteran has met not fewer than four of the 
requirements set forth in such section; or (2) such waiver would be in 
the best interest of the veteran.
    The authority to make decisions on eligibility for domiciliary 
level of care is exercised by the Chief of Staff of the VA medical 
center of jurisdiction, or designee. VA believes that this local VA 
official is in the best position to evaluate whether there is 
sufficient evidence to establish that an individual veteran is eligible 
for the purposes of payment of per diem for domiciliary care in a State 
home, and to know the capabilities and level of care provided by the 
State home domiciliary.
    We propose revising Sec.  51.51(b) by listing the tasks and 
activities a veteran must be able to perform for VA to pay the State 
home a per diem for domiciliary care on behalf of the veteran in a new 
paragraph (b)(1) and creating a new paragraph (b)(2) to implement the 
new authority in Public Law 116-315, section 3007(a) to waive the 
requirements in paragraph (b)(1).
    Proposed Sec.  51.51(b)(1) would list the tasks and activities a 
veteran must be able to perform for VA to pay per diem on behalf of the 
veteran to the State home for domiciliary care. This list is similar to 
current 51.51(b), with differences discussed below, and would mirror 
that in proposed Sec.  17.46(b)(2), with one substantive difference 
discussed below. Proposed Sec.  17.46(b)(2)(vii) states that a veteran 
eligible for domiciliary care must be able to make rational and 
competent decisions as to his or her desire to remain or leave the 
facility. This is an important requirement for domiciliary care 
provided via a day hospital residential rehabilitation treatment model, 
as the primary goal is rehabilitation. However, State homes are 
residential sites operated for veterans by the States. In those cases, 
authority to make decisions as to whether to remain or leave the 
facility is governed by State law. In proposed 51.51(b)(1)(vii), we 
would keep the same language in current 51.51(b)(8); however, we would 
add additional language to address that in cases of veterans who lack 
the general capacity needed to decide to remain in or to leave a State 
Home, which is a community residential placement decision, their legal 
representative as designated under State law is empowered to make this 
decision behalf of the veteran.
    In our discussion of the rationale for removing the requirement in 
current Sec.  17.46(b)(2)(vii) that a veteran eligible for domiciliary 
care be able to share in some measure, however slight, in the 
maintenance and operation of the facility, we stated that the purpose 
of providing domiciliary care is treatment and rehabilitation, and 
requiring the veteran to share in the maintenance and operation of the 
facility is inconsistent with that purpose. As noted, we likewise 
propose removing this similar requirement found in current Sec.  
51.51(b)(7) for eligibility for per diem for domiciliary care provided 
by a State home. The requirement that the veteran must ``participate in 
some measure, however slight, in work assignments that support the 
maintenance operation of the State home'' is inconsistent with the 
mission and goals of the State home domiciliary program, to include 
domiciliary care as a temporary home as one of its primary goals. 
Further, some States prohibit their State homes from requiring any type 
of work from domiciliary residents. By removing this requirement, the 
list of tasks that a veteran must be capable of performing, except in 
those instances where the Chief of Staff of the VA medical center of 
jurisdiction, or designee, grants a waiver under paragraph (b)(2), is 
reduced from eight to seven tasks. Therefore, we believe that the 
removal of this requirement neither diminishes the effect nor is 
contrary to the new waiver authority granted by Public Law 116-315, 
section 3007(a).
    In proposed 38 CFR 51.51(b)(2), we would state that the Chief of 
Staff of the VA medical center of jurisdiction, or designee, may waive 
the requirements in Sec.  51.51(b)(1) for purposes of per diem for 
domiciliary care in a State home on or after January 5, 2021, if the 
veteran is able to perform not fewer than four of the requirements set 
forth in such paragraph; or such waiver would be, based on a clinical 
determination, in the best interest of the veteran because receipt of 
domiciliary care in the particular State home would likely be 
beneficial to the veteran. This clinical determination must consider 
whether receiving domiciliary care in the State home would 
significantly enhance the veteran's ability to live safely, would 
support the veteran's potential progress in rehabilitation, if such 
potential exists, and would create an environment that supports the 
health and well-being of the veteran. In granting a waiver of paragraph 
(b)(1) of this section, the Chief of Staff of the VA medical center of 
jurisdiction, or designee, must make a finding that the State home has 
the capability to provide the domiciliary care that the veteran needs.
    We would use January 5, 2021, as this is consistent with the 
effective date of Public Law 116-315, section 3007(a) granting this 
authority. Also, we would include language to define ``in the best 
interest'' as used in this paragraph. VA believes that determinations 
of ``in the best interest'' must be a clinical determination, guided by 
VA health professionals' judgment on what care will best support the 
health and well-being of the veteran--including that which offers the 
best opportunity for recovery and rehabilitation, whenever possible. In 
some cases, a clinician may determine that other care and maintenance 
options would better promote the veteran's functional capabilities and 
potential for greater independence, or that a higher level of care may 
better ensure that the veteran receives the level of care necessary. 
Further, we would require the Chief of Staff of the VA medical center 
of jurisdiction, or designee, to make a finding that the State home has 
the capability to provide the domiciliary care that the veteran needs 
to clearly indicate that the decision to waive a particular regulatory 
requirement for domiciliary care cannot be made independent of an 
understanding of the State home's capabilities and level of care 
provided to domiciliary residents. State home domiciliaries vary in the 
type of resident that can be admitted, based on factors such as 
building structure, staffing expertise, staffing levels, and 
availability of support equipment. If the veteran's medical status is 
beyond the scope of care that can be provided by the State home 
domiciliary to which admission is sought, we do not believe VA should 
encourage the State home domiciliary to accept the veteran as a 
resident by paying the home a per diem for the veteran. If waiver is 
requested of an eligibility requirement in proposed 38 CFR 51.51(b)(1) 
VA must make a determination that the State home domiciliary is capable 
of providing the level of care necessary if such waiver is granted. 
Evaluating the capabilities provided in the State home domiciliary is 
an integral element that must be considered when determining to grant a 
waiver. Although this is not explicitly stated in current Sec.  51.51, 
such

[[Page 60422]]

consideration has been longstanding VA policy and practice.

Section 51.300 Resident Rights and Behavior; State Home Practices; 
Quality of Life

    Current 38 CFR 51.300(b) states that the State home resident must 
participate, based on his or her ability, in some measure, however 
slight, in work assignments that support the maintenance and operation 
of the State home. It requires the State home to create a written 
policy to implement the work requirement and integrate the work 
requirement into a comprehensive care plan. As we would remove the 
requirement that a State home resident participate to some degree in 
work in support of maintenance and operation of the State home, we 
likewise propose removing this paragraph and marking it as reserved.

Paperwork Reduction Act

    This proposed rule includes provisions constituting a revised 
collection of information under the Paperwork Reduction Act (PRA) of 
1995 (44 U.S.C. 3501-3521) that requires approval by the Office of 
Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA 
has submitted a copy of this rulemaking action to OMB for review and 
approval.
    OMB assigns control numbers to 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. If OMB does not approve the 
collection of information as requested, VA will immediately remove the 
provisions containing the collection of information or take such other 
action as is directed by OMB.
    Comments on the new collection of information contained in this 
rulemaking should be submitted through www.regulations.gov. Comments 
should indicate that they are submitted in response to ``RIN 2900-AR61, 
Determining Eligibility for Domiciliary Care'' and should be sent 
within 60 days of publication of this rulemaking. The collection of 
information associated with this rulemaking can be viewed at: 
www.reginfo.gov/public/do/PRAMain.
    OMB is required to make a decision concerning the collection of 
information contained in this rulemaking between 30 and 60 days after 
publication of this rulemaking in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the provisions of this 
rulemaking.
    The Department considers comments by the public on a new collection 
of information in--
     Evaluating whether the new collection of information is 
necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the new collection of information, including the validity 
of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The collection of information associated with this rulemaking 
contained in 38 CFR 51.42(c) is described immediately following this 
paragraph, under its respective title. This new information collection 
will be added to OMB control number 2900-0160, containing State home 
program forms 10-5588, 10-5588A, and 10-10SH, which has a current PRA 
clearance.
    Title: List of Veteran Names for Claim Reconsideration.
    OMB Control No: 2900-0160.
    CFR Provision: 38 CFR 51.42(c).
     Summary of collection of information: The revised 
collection of information in proposed 38 CFR 51.42(c) would allow State 
homes to submit a list of veteran names whose completed forms were 
received by VA on or after January 5, 2021, but VA subsequently denied 
the State home's request for payment for the care of these veterans 
pursuant to current Sec.  51.51(b), to VA for consideration of a waiver 
under proposed Sec.  51.51(b)(2). This is a time limited opportunity--
the list of names must be received within 30 days of the effective date 
of the rule.
     Description of need for information and proposed use of 
information: The information will be used by VA to conduct 
retrospective reviews of denied applications and allow VA to process 
applicable retroactive payments in a timely manner.
     Description of likely respondents: State home 
administrators and State homes that have admitted veterans in reliance 
on the authority granted by Public Law 116-315, section 3007(a) and 
that want these veterans considered for a waiver under proposed Sec.  
51.51(b)(2).
     Estimated number of respondents: Two.
     Estimated frequency of responses: Once.
     Estimated average burden per response: 90 minutes.
     Estimated total annual reporting and recordkeeping burden: 
3 hours.
     Estimated cost to respondents per year: VA estimates the 
one-time annual cost to respondents to be $177.21. Using VA's average 
annual number of respondents, VA estimates the total information 
collection burden cost to be $177.21 per year * (3 burden hours for x 
$59.07 per hour).
    * To estimate the total information collection burden cost, VA used 
the Bureau of Labor Statistics (BLS) mean hourly wage for ``General and 
Operations Managers'' of $59.07 per hour. This information is available 
at https://www.bls.gov/oes/current/oes_nat.htm#13-0000.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule 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. This proposed rule would directly affect only 
individuals who are veterans applying for domiciliary care as well as 
States operating State homes and would not directly affect small 
entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final 
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do 
not apply.

Executive Orders 12866, 13563, and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
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 14094 (Executive Order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in

[[Page 60423]]

Executive Order 12866 of September 30, 1993 (Regulatory Planning and 
Review), and Executive Order 13563 of January 18, 2011 (Improving 
Regulation and Regulatory Review). The Office of Information and 
Regulatory Affairs has determined that this rulemaking is not a 
significant regulatory action under Executive Order 12866, as amended 
by Executive Order 14094. The Regulatory Impact Analysis associated 
with this rulemaking can be found as a supporting document at 
www.regulations.gov.

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

Assistance Listing

    The Assistance Listing number and title for the program affected by 
this document is 64.014--Veterans State Domiciliary Care.

List of Subjects

38 CFR Part 17

    Administrative practice and procedure, Claims, Domiciliary care, 
Government contracts, Health care, Health facilities, Mental health 
programs, Reporting and recordkeeping requirements, Veterans.

38 CFR Part 51

    Administrative practice and procedure, Claims, Domiciliary care, 
Government contracts, Health care, Health facilities, Mental health 
programs, Reporting and recordkeeping requirements, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on August 24, 2023, 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.

Consuela Benjamin,
Regulation Development Coordinator Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, the Department of 
Veterans Affairs proposes to amend 38 CFR parts 17 and 51 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 is amended by adding an entry in 
numerical order for Sec.  17.47 to read as follows:

    Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
    Section 17.47 is also issued under 38 U.S.C. 1701, 1710, 1721, 
1722, 1729, 3104(a)(9), 7333, Public Law 99-272; 42 U.S.C. 1396 et 
seq.
* * * * *


Sec.  17.43  [Amended]

0
2. Amend Sec.  17.43 by removing the words ``or domiciliary'' in the 
section heading and introductory text.


Sec.  17.46  [Amended]

0
3. Amend Sec.  17.46 by removing paragraph (b)(2)(vii), and 
redesignating paragraph (b)(2)(viii) as paragraph (b)(2)(vii).
0
4. Amend Sec.  17.47 by:
0
a. Removing the authority citations immediately following paragraphs 
(b)(1), (b)(2), (c), (d)(1)(i), (d)(1)(iii), (d)(2), (d)(3), (d)(4), 
(d)(5), (e)(1), (e)(2), (f), (g)(1)(ii), (g)(2)(iv), (i)(2)(vii), (j), 
and (k).
0
b. Revise paragraph (b)(2).
0
c. Remove and reserve paragraph (c).
    Revisions read as follows:


Sec.  17.47  Considerations applicable in determining eligibility for 
hospital care, medical services, nursing home care, or domiciliary 
care.

* * * * *
    (b) * * *
    (2) For purposes of determining eligibility for domiciliary care 
under Sec.  17.46(b)(2) of this part, the phrase no adequate means of 
support refers to an applicant for or recipient of domiciliary care 
whose annual income exceeds the maximum annual rate of pension for a 
veteran in receipt of regular aid and attendance, as defined in 38 
U.S.C. 1503, whose deficits in health and/or functional status may 
render the veteran incapable of achieving or sustaining independence in 
the community as determined by the Chief of Staff of the VA medical 
center, or designee. In assessing a veteran's ability to achieve or 
sustain independence in the community, the Chief of Staff or designee 
will make a determination of eligibility for domiciliary care based on 
objective evidence, considering factors including, but not limited to:
    (i) the impact of the severity of the veteran's medical condition, 
disabilities, and symptoms on the veteran's safety in the community;
    (ii) the impact of the severity of the veteran's medical condition, 
disabilities, and symptoms on the veteran's ability to provide self-
care;
    (iii) the availability of community or family support systems;
    (iv) the impact of the severity of the veteran's medical condition, 
disabilities, and symptoms on the veteran's ability to access and 
utilize community support systems;
    (v) the risk of loss of housing in the community;
    (vi) the risk of loss of the veteran's income;
    (vii) access to outpatient mental health and substance use disorder 
care; and
    (viii) the current effectiveness of any outpatient mental health 
and substance use disorder care provided to the veteran.
    (c) [Reserved]
* * * * *

PART 51--PER DIEM FOR NURSING HOME, DOMICILIARY, OR ADULT DAY 
HEALTH CARE OF VETERANS IN STATE HOMES

0
5. The authority citation for part 51 is amended by revising Sec.  
51.42, and adding an entry in numerical order for Sec.  51.51 to read 
as follows:
* * * * *
    Section 51.42 also issued under 38 U.S.C. 510, 1744, and Public 
Law 116-315 section 3007.
* * * * *
    Section 51.51 also issued under Public Law 116-315 section 3007.
* * * * *
0
6. Amend Sec.  51.42 by adding paragraph (c) to read as follows:


Sec.  51.42  Payment procedures.

* * * * *
    (c) Retroactive payments. VA will make per diem payments under this 
part retroactive to the date specified by paragraph (b)(3) of this 
section, or January 5, 2021, whichever date is later, if all the 
following are met:
    (1) Within 30 calendar days of [EFFECTIVE DATE OF FINAL RULE]] the 
State home provides VA a written list of veterans' names for whom 
completed forms were received by VA

[[Page 60424]]

on or after January 5, 2021, and the State home requests that VA 
consider them for a waiver under Sec.  51.51(b)(2);
    (2) With respect to the veterans on the written list under 
paragraph (c)(1), VA denied the State's request for per diem for the 
veterans when their forms were originally submitted and the denial was 
solely because the veteran did not meet the requirements under 38 CFR 
51.51(b) (2021);
    (3) Upon VA review, the veteran would have received a waiver under 
Sec.  51.51(b)(2) if that paragraph had been in effect when the request 
for per diem was originally submitted; and
    (4) The State home submits to VA a completed VA Form 10-5588, State 
Home Report and Statement of Federal Aid Claimed, for each month that 
the State home provided domiciliary care to a veteran for whom the home 
is requesting a waiver. The form would only cover the veterans not 
originally included on the form when submitted previously for that 
month.
0
7. Amend Sec.  51.51 by revising paragraphs (a)(2) and (b) to read as 
follows:


Sec.  51.51  Eligible veterans--domiciliary care.

    (a) * * *
    (1) * * *
    (2) A veteran who VA determines has no adequate means of support. 
When an applicant's annual income exceeds the rate of pension described 
in paragraph (a)(1) of this section, VA will determine if the applicant 
has no adequate means of support. This determination will be made 
through an assessment of the veteran's deficits in health or functional 
status that may render the veteran incapable of achieving or sustaining 
independence in the community as determined by the Chief of Staff of 
the VA medical center of jurisdiction, or designee. Assessment of 
whether the veteran has no adequate means of support will be based on 
objective evidence that considers factors that are inclusive of but not 
limited to:
    (i) the impact of the severity of the veteran's medical condition, 
disabilities, and symptoms on the veteran's safety in the community;
    (ii) the impact of the severity of the veteran's medical condition, 
disabilities, and symptoms on the veteran's ability to provide self-
care;
    (iii) the availability of community or family support systems;
    (iv) the impact of the severity of the veteran's medical condition, 
disabilities, and symptoms on the veteran's ability to access and 
utilize community support systems;
    (v) the risk of loss of housing in the community;
    (vi) the risk of loss of the veteran's income;
    (vii) access to outpatient mental health and substance use disorder 
care; and
    (viii) the current effectiveness of any outpatient mental health 
and substance use disorder care provided to the veteran.
    (b) (1) For purposes of this section, the eligible veteran must be 
able to perform the following:
    (i) Daily ablutions, such as brushing teeth, bathing, combing hair, 
and body eliminations, without assistance.
    (ii) Dress himself or herself with a minimum of assistance.
    (iii) Proceed to and return from the dining hall without aid.
    (iv) Feed himself or herself.
    (v) Secure medical attention on an ambulatory basis or by use of a 
personally propelled wheelchair.
    (vi) Have voluntary control over body eliminations or have control 
by use of an appropriate prosthesis.
    (vii) Make rational and competent decisions as to the veteran's 
desire to remain in or leave the State home; or, if the veteran lacks 
the general capacity to make this residential care placement decision, 
as defined by State law, then the veteran's legal representative 
designated in accordance with State law, is authorized to make this 
decision on behalf of the veteran.
    (2) The Chief of Staff of the VA medical center of jurisdiction, or 
designee, may waive the requirements in paragraph (b)(1) of this 
section for purposes of payment of per diem for domiciliary care in a 
State home on or after January 5, 2021, if the veteran is able to 
perform not fewer than four of the requirements set forth in such 
paragraph; or such waiver would be, based on a clinical determination, 
in the best interest of the veteran because receipt of domiciliary care 
in the particular State home would likely be beneficial to the veteran. 
This clinical determination must consider whether receiving domiciliary 
care in the State home would significantly enhance the veteran's 
ability to live safely, would support the veteran's potential progress 
in rehabilitation, if such potential exists, and would create an 
environment that supports the health and well-being of the veteran. In 
granting a waiver of paragraph (b)(1) of this section, the Chief of 
Staff of the VA medical center of jurisdiction, or designee, must make 
a finding that the State home has the capability to provide the 
domiciliary care that the veteran needs.


Sec.  51.300  [Amended]

0
8. Amend Sec.  51.300 by removing and reserving paragraph (b).

[FR Doc. 2023-18921 Filed 8-31-23; 8:45 am]
BILLING CODE 8320-01-P