[Federal Register Volume 77, Number 188 (Thursday, September 27, 2012)]
[Proposed Rules]
[Pages 59354-59356]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23777]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 51
RIN 2900-AO37
Removal of 30-Day Residency Requirement for Per Diem Payments
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
its regulations concerning per diem payments to State homes for the
provision of nursing home care to veterans. Specifically, this rule
would remove the requirement that a veteran must have resided in a
State home for 30 consecutive days before VA will pay per diem for that
veteran when there is no overnight stay. The intended effect of this
proposed rule is to permit per diem payments to State homes for
veterans who do not stay overnight, regardless of how long the veterans
have resided at the State homes, so that the State homes will hold the
veterans' beds until the veterans return.
DATES: Written comments must be received on or before October 29, 2012.
ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand delivery to the 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-AO37, Removal of 30-Day Residency Requirement
for Per Diem Payments.'' Copies of comments received will be available
for public inspection in the Office of Regulation Policy and
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m.,
Monday through Friday (except holidays). Please call (202) 461-4902 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 at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Harold Bailey, Program Management
Officer (Director of Administration), VA Health Administration Center,
Purchased Care (10NB3), Veterans Health Administration, Department of
Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, (303)
331-7551. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: This proposed rule would amend part 51 of
title 38, Code of Federal Regulations (CFR), to remove the requirement
that a veteran receiving nursing home care in a State home must have
resided in the State home for at least 30 consecutive days before VA
would pay per diem when that veteran does not stay in the State home
overnight. VA pays per diem to State homes for veterans who stay
elsewhere overnight to create a ``bed hold,'' so that the State home
reserves the veteran's bed until the veteran returns from a temporary
absence. Typically, these temporary absences arise from a veteran's
acute need for a higher level of care, such as a period of
hospitalization. Temporary absences also arise for reasons other than
hospital care, such as when a veteran travels to visit family members.
This proposed rule would also clarify in 38 CFR 51.43 that VA
calculates occupancy rate ``by dividing the total number of patients in
the nursing home or domiciliary by the total recognized nursing home or
domiciliary beds in that facility.'' This would be consistent with
current practice, and would help ensure that State homes understand our
methodology.
The 30-day residency requirement for bed hold per diem payments was
established in 2009 in 38 CFR 51.43(c), which stated: ``Per diem will
be paid under Sec. Sec. 51.40 and 51.41 for each day that the veteran
is receiving care and has an overnight stay. Per diem also will be paid
when there is no overnight stay if the veteran has resided in the
facility for 30 consecutive days (including overnight stays) and the
facility has an occupancy rate of 90 percent or greater. However, these
payments will be made only for the first 10 consecutive days during
which the veteran is admitted as a patient for any stay in a VA or
other hospital (a hospital stay could occur more than once in a
calendar year) and only for the first 12 days in a calendar year during
which the veteran is absent for purposes other than receiving hospital
care.'' See 74 FR 19433.
In the proposed rule that preceded the addition of Sec. 51.43, we
stated that the basis for the 30-day residency requirement was that
``State homes should receive per diem payments to hold beds only for
permanent residents and only if the State home would likely fill the
bed without such payments. Allowing payments for bed holds only after a
veteran has been in a nursing home for at least 30 consecutive days
(including overnight stays) appears to be sufficient to establish
permanent residency.'' 73 FR 72402. In addition, the 2009 final rule
confirmed VA's intent to make the 30-day rule a factor that directly
affected eligibility for bed hold payments, stating: ``We believe that
30 days is a minimal amount of time for demonstrating that a veteran
intends to be a resident at the State home and that the veteran was not
temporarily placed in the State home.'' 74 FR 19429.
VA adopted the 30-day residency requirement as the measure for
determining whether a veteran would likely return to a State home after
not having stayed there overnight, and in turn whether the State home
should receive continued per diem payments in the veteran's absence to
hold the veteran's bed. Through application of this requirement,
however, VA has come to recognize that duration of residency in a State
home is not an accurate predictor of whether a veteran is likely to
return to a State home after a temporary absence. For instance, with
absences resulting from the veteran's need for hospital care, the
veteran's health status while hospitalized is actually what determines
whether and when he or she will return to a nursing home level of care
at the State home. With absences resulting from non-hospital care
reasons, the veteran in almost all instances communicates an intent to
return to the State home within a specific period of time, or
communicates that he or she will not be returning. With both types of
absences, we no longer find that a veteran's period of residency at a
State home is determinative as to whether the veteran will likely
return to the State home. Therefore, we believe the 30-day residency
requirement is unnecessary in ensuring standards of bed hold per diem
payments, and propose to remove this requirement from 38 CFR 51.43(c).
Based on our experience in applying Sec. 51.43(c) since 2009, we
believe our determination of whether to pay bed hold per diem for
veterans who are absent overnight from State homes should be based on
whether the veteran's bed would otherwise be taken by another resident.
The best predictor of whether a veteran's bed is likely to be taken by
another resident during the veteran's absence is the State home's
occupancy rate, not the length of time the veteran has resided in the
State home. If a State home has sufficient beds to offer new residents
so that it need not fill the veteran's bed during the veteran's
absence, then per diem payments to hold the veteran's bed are not
needed. If the State home does not have a sufficient number of
available beds, then per diem payments should be
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paid for a veteran during any absence, subject to the limitation set
forth in the rest of Sec. 51.43(c) to ensure the bed is reserved for
the veteran until he or she returns to the State home.
Thus, the current 90 percent occupancy requirement for State homes
in Sec. 51.43(c) would serve as the sole criterion to determine
whether bed hold per diem is paid to State homes, and those payments
would remain subject to the limitations currently in Sec. 51.43(c)
(``Per diem also will be paid when there is no overnight stay if * * *
the facility has an occupancy rate of 90 percent or greater. However,
these payments will be made only for the first 10 consecutive days
during which the veteran is admitted as a patient for any stay in a VA
or other hospital (a hospital stay could occur more than once in a
calendar year) and only for the first 12 days in a calendar year during
which the veteran is absent for purposes other than receiving hospital
care.''). Maintaining the occupancy measure and payment limitations for
bed hold per diem payments, while removing the residency requirement,
would help ensure that VA is able to provide stable nursing home care
via State homes as we intend.
Additionally, removing the 30-day residency requirement would bring
VA more in line with generally accepted standards of practice for
nursing home care. VA's other community nursing home care programs
(such as the contract nursing home care program) do not have a similar
residency requirement, and VA seeks to have a consistent bed hold
policy for nursing home care provided to veterans in non-VA facilities.
Moreover, it is administratively burdensome to track periods of
residency in State homes across the country, as the total estimated
average daily census for State homes is over 18,000 veterans in the
nursing home level of care. This continuous tracking diverts
significant VA resources, as this information must be monitored for 139
state nursing homes 5 days a week at 97 VA Medical Centers (VAMC) of
jurisdiction, for 52 weeks a year for approximately an hour a day.
Assuming a GS-06, step 5 grade level employee at each VAMC tracks
residency for those State nursing homes in its jurisdiction, the
estimated cost to VA in continuing this practice is $418,000 annually.
In comparison, VA estimates that 1,095 more per diem payments would be
made per year if there were no residency requirement, for an estimated
increased annual cost of $265,000. Based on these calculations,
tracking residency, due to the current 30-day residency requirement,
costs VA nearly 60 percent more than the amount of the projected
increase in per diem payments that VA would make if the 30-day
residency requirement were removed. In addition, tracking residency
does not ensure veteran beds are held as we intend and does not
contribute to our efforts in providing dependable nursing home care to
veterans through State homes. Under the current rule, State homes also
shoulder the administrative burden of tracking and reporting the
residency dates of veterans, and would likely benefit from the removal
of the 30-day requirement.
Though in the past we believed a 30-day residency requirement
helped ensure per diem was paid judiciously, VA now understands that
the costs of this requirement outweigh possible savings. There have
been numerous ongoing requests from the State home community and the
National Association of State Veterans Homes (NASVH) for VA to remove
the 30-day residency requirement for bed hold per diem payments.
Because this rule would benefit veterans and liberalize a prerequisite
for per diem payments, we do not believe that any members of the public
would be adversely affected by this rule.
Administrative Procedure Act
Concurrent with this proposed rule, we are publishing a separate,
substantively identical direct final rule in the ``Rules and
Regulations'' section of this Federal Register. (See RIN 2900-AO36).
The simultaneous publication of these documents will speed notice and
comment rulemaking under section 553 of the Administrative Procedure
Act should we have to withdraw the direct final rule due to receipt of
any significant adverse comment.
For purposes of the direct final rulemaking, a significant adverse
comment is one that explains why the rule would be inappropriate,
including challenges to the rule's underlying premise or approach, or
why it would be ineffective or unacceptable without a change.
Under direct final rule procedures, if no significant adverse
comment is received within the comment period, the direct final rule
will become effective on the date specified in RIN 2900-AO36. After the
close of the comment period, VA will publish a document in the Federal
Register indicating that no significant adverse comment was received
and confirming the date on which the final rule will become effective.
VA will also publish in the Federal Register a notice withdrawing this
proposed rule.
However, if any significant adverse comment is received, VA will
publish in the Federal Register a notice acknowledging receipt of a
significant adverse comment and withdrawing the direct final rule. In
the event the direct final rule is withdrawn because of any significant
adverse comment, VA can proceed with the rulemaking by addressing the
comments received and publishing a final rule. Any comments received in
response to the direct final rule will be treated as comments regarding
the proposed rule. VA will consider such comments in developing a
subsequent final rule. Likewise, any significant adverse comment
received in response to the proposed rule will be considered as a
comment regarding the direct final rule.
Effect of Rulemaking
Title 38 of the Code of Federal Regulations, as proposed to be
revised by this proposed rulemaking, would represent the exclusive
legal authority on this subject. Other than future amendments to this
regulation or governing statutes, no contrary guidance or procedures
would be authorized. All VA guidance would be read to conform with this
rulemaking if possible or, if not possible, such guidance would be
superseded by this rulemaking.
Paperwork Reduction Act
This proposed 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 proposed amendment would
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612.
The State homes that are subject to this proposed rulemaking are
State government entities under the control of State governments. All
State homes are owned, operated and managed by State governments except
for a small number that are operated by entities under contract with
State governments. These contractors are not small entities. Therefore,
pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the
initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is
[[Page 59356]]
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, and other advantages; distributive impacts; and equity).
Executive Order 13563 (Improving Regulation and Regulatory Review)
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. Executive
Order 12866 (Regulatory Planning and Review) defines a ``significant
regulatory action,'' which requires review by the Office of Management
and Budget (OMB), as ``any regulatory action that is likely to result
in a rule that may: (1) Have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this proposed 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 expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any given year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Catalog of Federal Domestic Assistance Numbers
The Catalog of Federal Domestic Assistance numbers and titles are
64.005, Grants to States for Construction of State Home Facilities;
64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home
Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing
Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol
and Drug Dependence.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on September 10, 2012, for publication.
List of Subjects in 38 CFR Part 51
Administrative practice and procedure, Claims, Grant programs-
health, Grant programs-veterans, Health care, Health facilities, Health
professions, Health records, Mental health programs, Nursing homes,
Reporting and recordkeeping requirements, Travel and transportation
expenses, Veterans.
Dated: September 24, 2012.
Robert C. McFetridge,
Director, Office of Regulation Policy and Management, Office of the
General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 51 as follows:
PART 51--PER DIEM FOR NURSING HOME CARE OF VETERANS IN STATE HOMES
1. The authority citation for part 51 continues to read as follows:
Authority: 38 U.S.C. 101, 501, 1710, 1741-1743, 1745.
2. Amend Sec. 51.43(c) by removing ``the veteran has resided in
the facility for 30 consecutive days (including overnight stays) and'',
and by adding a sentence at the end of the paragraph to read as
follows:
Sec. 51.43 Per diem and drugs and medicines--principles.
* * * * *
(c) * * * Occupancy rate is calculated by dividing the total number
of patients in the nursing home or domiciliary by the total recognized
nursing home or domiciliary beds in that facility.
* * * * *
[FR Doc. 2012-23777 Filed 9-26-12; 8:45 am]
BILLING CODE 8320-01-P