Assistance to States in Hiring and Retaining Nurses at State Veterans Homes, 73558-73562 [E8-28542]

Download as PDF 73558 Federal Register / Vol. 73, No. 233 / Wednesday, December 3, 2008 / Rules and Regulations TABLE TWO * * Vessel Number * USS DWIGHT D. EISENHOWER. * * * * * Masthead lights, distance to stbd of keel in meters; Rule 21(a) * CVN–69 ..... * BILLING CODE 3810–FF–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 53 RIN 2900–AM26 Assistance to States in Hiring and Retaining Nurses at State Veterans Homes Department of Veterans Affairs. Final rule. AGENCY: The Department of Veterans Affairs (VA) hereby establishes a final rule setting forth a mechanism for States to obtain payments from VA to assist a State veterans home in the hiring and retention of nurses for the purpose of reducing nursing shortages at the home. This rule implements provisions of the Veterans Health Programs Improvement Act of 2004. DATES: Effective Date: This final rule is effective January 2, 2009. FOR FURTHER INFORMATION CONTACT: Jacquelyn Bean, Chief, State Veterans Home Per Diem Program, at (202) 461– 6771, or Christa M. Hojlo, PhD, Director, State Veterans Home Clinical and Survey Oversight, at (202) 461–6779; Veterans Health Administration (114), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. (These are not toll-free numbers.) SUPPLEMENTARY INFORMATION: In a document published in the Federal Register (73 FR 19785) on April 11, yshivers on PROD1PC62 with RULES SUMMARY: VerDate Aug<31>2005 15:34 Dec 02, 2008 Jkt 217001 Forward anchor light, distance below flight dk in meters; § 2(K), Annex I * 31.0 Approved: November 4, 2008. M. Robb Hyde, Commander, JAGC, U.S. Navy, Deputy Assistant Judge Advocate General (Admiralty and Maritime Law). Dated: November 25, 2008. T.M. Cruz, Lieutenant Commander, Office of the Judge Advocate General, U.S. Navy, Federal Register Liaison Officer. [FR Doc. E8–28646 Filed 12–2–08; 8:45 am] ACTION: * .................... * Forward anchor light, number of; Rule 30(a)(i) AFT anchor light, distance below flight dk in meters; Rule 21(e), Rule 30(a)(ii) * .................... * .................... 2008, we proposed to establish a new 38 CFR part 53 consisting of regulations captioned ‘‘PAYMENTS TO STATES FOR PROGRAMS TO PROMOTE THE HIRING AND RETENTION OF NURSES AT STATE VETERANS HOMES’’ (referred to below as the proposed regulations). This document adopts as a final rule, with changes discussed below, those proposed regulations. This final rule sets forth a mechanism and criteria for a State to obtain payments from VA to assist a State Veterans Home (SVH) in the hiring and retention of nurses for the purpose of reducing nursing shortages at that home. The final rule establishes regulations concerning provisions in section 201 of the Veterans Health Programs Improvement Act of 2004 (Pub. L. 108– 422), which are codified at 38 U.S.C. 1744. We provided a 60-day comment period that ended June 10, 2008. We received four submissions containing a number of comments that are all discussed below. Definition of Nurse The proposed regulations at § 53.02 defined the term ‘‘nurse’’ to include only those who are bedside care givers at least a majority of the time. Consequently, the proposed regulations would allow payments only to promote the hiring and retention of those nurses licensed or certified, as described in the proposed definition, and who are bedside care givers at least a majority of the time. In support of this definition, the proposed rule noted that the applicable legislative history (H. Rep. No. 108–538 at 5 (2004)) indicates that the statutory provisions were intended to assist State homes ‘‘in hiring nurses to care for veterans.’’ Two commenters asserted that VA has misinterpreted 38 U.S.C. 1744 and its legislative history. With respect to the statute, the comments specifically discussed paragraphs (a) and (b), and the final sentence of paragraph (c), which states that when prescribing criteria for programs to be funded, the Secretary PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 * AFT anchor light, number of; Rule 30(a)(ii) Side lights, distance below flight dk in meters; § 2(g), Annex I * .................... 0.2 * Side lights, distance forward of forward masthead light in meters; § 3(b), Annex I Side lights, distance inboard of ship’s sides in meters; § 3(b), Annex I * .................... .................... shall ‘‘take into consideration the need for flexibility and innovation.’’ They asserted that the proposed definition of nurse should be changed to remove its restriction to those who are bedside care givers at least a majority of the time, and should not generally exclude such individuals as those acting in the capacity of an advance practice nurse, an administrative nurse, or a director of nursing. We made no changes based on these comments. Even if the statute and its legislative history are viewed as permitting VA to establish a more expansive definition of the term ‘‘nurse’’ than we proposed, we do not agree with the commenters’ argument that the proposed definition is not a permissible one under the statute. The provisions of 38 U.S.C. 1744(c) and (j) authorize VA to establish criteria for the award of payments and we believe that VA therefore has authority for the provisions in the proposed rule that, through the definition of ‘‘nurse,’’ limit the nurses for whom VA assistance may be provided. The greatest need for nurses is for those who are bedside care givers at least a majority of the time and we have determined that we can best use the available funding for recruiting and retaining such nurses. In establishing criteria for programs to be awarded payments, the need for flexibility and innovation is not the only permissible consideration. Our consideration of the need for flexibility and innovation has been reflected in the preambles and text of the proposed rule and of this final rule. Credible Evidence The provisions of proposed § 53.11(a)(3) would require, as a condition of receiving assistance, that the State applicant document by credible evidence that an individual SVH has a nursing shortage. One commenter raised a number of issues regarding the submission of such evidence. The commenter questioned whether a State applicant would necessarily have to provide an application for each E:\FR\FM\03DER1.SGM 03DER1 Federal Register / Vol. 73, No. 233 / Wednesday, December 3, 2008 / Rules and Regulations yshivers on PROD1PC62 with RULES individual SVH within the State or whether general documentation could be used for groups of SVHs within the State. We made no changes based on this comment. The provisions of 38 U.S.C. 1744(e) require that documentation be provided for each SVH (‘‘Any such application shall describe the nursing shortage at the State home. * * *’’) The commenter asserted that general criteria that set thresholds for defining a nursing shortage would be preferable to the proposed rule’s provisions in § 53.11 for documentation of a nursing shortage, and that any SVH meeting the criteria should be able to submit an application. We made no changes based on this comment as each SVH could have a distinct factual scenario that would be subjected to specific criteria in § 53.11. The commenter asked, what is the acceptable standard for ‘‘credible evidence;’’ and further questioned whether the States would need to hire an independent consultant to prepare their submission. We made no changes based on these comments. The proposed regulations at § 53.11(a)(3) provided a list of types of evidence that could be submitted to establish a nursing shortage, i.e., ‘‘including but not limited to SVH records showing nursing vacancies, SVH records showing nurse overtime use, and reports documenting that nurses are difficult to hire in the local area and difficult to retain as employees at the SVH.’’ A State could certainly choose to utilize consultants to gain information, but this is not a requirement. Programs With No Experience The provisions of proposed § 53.11(a)(5) would require, as a condition of receiving assistance, that the SVH submit documentation establishing that it has an employee incentive program that (i) is likely to be effective in promoting the hiring and retention of nurses for the purpose of reducing nursing shortages at that home, and (ii) is in operation or ready for immediate implementation upon receipt of payments. One commenter asked what evidence would be necessary to show likely effectiveness of a new program for which there is no experience upon which to document success. We made no changes based on this comment. To determine whether this condition has been satisfied, we would review all relevant information provided, including information about the program’s design and the applicant’s description of how the program would eliminate the nursing shortage, as well as how long it would take to do so. We VerDate Aug<31>2005 15:34 Dec 02, 2008 Jkt 217001 would also use similar experiences with other programs and apply our expertise to analyze such programs in determining whether they are likely to be effective. Existing Projects One commenter interpreted the term ‘‘improvements to working conditions’’ in proposed § 53.11(b) to permit an employee incentive project to improve ‘‘working areas.’’ The commenter asked whether a project to improve working areas could qualify under a State home construction grant and also qualify for payment under the hiring and retention program. The commenter also asked whether such projects would be reviewed in a manner similar to that used for SVH construction grants. The statutory authority for the nurse hiring and retention program does not contemplate providing funds for construction projects. In addition, VA already has separate statutory authority that permits funding projects to remodel or alter working areas, under 38 U.S.C. 8131–8137. We interpret these statutory authorities to require that State applications for VA funding of all such construction projects be submitted under the State home construction grant program. Based on this comment, the final rule makes changes from the proposed regulation in § 53.11(a) by adding a new paragraph, § 53.11(a)(10), to provide that payments will not be made for projects that involve constructing, acquiring, expanding, remodeling, or altering State homes. Funding Projects One commenter asserted that ‘‘the proposed program is looking at a threeyear window for an incentive program to be successful with funding coming on an annual basis’’ and suggested that VA provide assurance that, if appropriations are made by Congress, VA would not for other reasons refrain from continuing to fund a program that would take 3 years to complete. We made no changes based on this comment. VA needs to be able consider other factors in addition to appropriations in determining whether to again fund a particular program. Eliminating Nurse Shortages Within 3 Years Under the provisions of proposed § 53.11(a)(7), as a condition of receiving assistance the SVH program must ‘‘insofar as possible’’ be designed to eliminate any nursing shortage at the SVH within a 3-year period from the initiation of VA payments. One commenter asserted that ‘‘the requirement to put a plan in place that will eliminate all nursing shortages in 3 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 73559 years is not feasible.’’ We made no changes based on this comment. We note that this was not an absolute since the text included the language ‘‘insofar as possible.’’ It certainly may not always be possible to eliminate a nursing shortage within this 3-year period, but we believe that such plans should, insofar as possible, be designed in accordance with this 3-year target. Student Forgiveness Programs The proposed regulations at § 53.11(b) stated that VA intends to allow flexibility and innovation in determining the types of employee incentive programs at SVHs eligible for payments. This paragraph further stated that programs could include such things as the provision of short-term scholarships for continuing nursing education, sign-on bonuses for nurses, and improvements to working conditions. One commenter asserted that the regulations should specifically state that the regulations allow student forgiveness programs. We agree that the student forgiveness programs could effectively help eliminate nursing shortages and in the final rule we are adding it to the list of examples. Application Submissions Under the provisions of proposed § 53.20(a), applications must be submitted during the first quarter of the fiscal year in which VA payments are sought. One commenter asserted that the application window should be changed to the last quarter of the preceding Federal Fiscal Year (FFY) so that approved expenditures can begin with the start of the FFY in which funds are to be expended. We agree with the suggested change and the rationale for the change. In the final rule, we changed the provisions of § 53.20(a), and a related reference to that quarter in § 53.20(c), accordingly. We have also added ‘‘Federal’’ in this section and elsewhere to clarify references to ‘‘fiscal year’’. Insufficient Information Under the provisions of proposed § 53.20(c), if an application does not contain sufficient information, VA would notify the State representative in writing that the State has 30 calendar days from the date of the notice to submit such additional information or no further action would be taken. These provisions also contain a mechanism for extending the 30-day period based on good cause. One commenter asserted that the time might be sufficient if the notice was provided electronically but it may not be sufficient if provided by mail. We are making a change in the E:\FR\FM\03DER1.SGM 03DER1 73560 Federal Register / Vol. 73, No. 233 / Wednesday, December 3, 2008 / Rules and Regulations final rule in § 53.20(c) to specify that such notice be given ‘‘in writing (electronically and by mail).’’ We agree with the commenter that it would be appropriate to provide electronic notice and that this would enable the SVH to have more time to reply. We agree for the reason stated by the commenter and have made appropriate changes to § 53.20(c). The commenter also asserted that there should be provision to allow an extension beyond the 30 days if the information required by VA will take longer than 30 days to obtain and submit. We made no changes based on this comment. The proposed regulations at § 53.20(c) already would provide for extensions based on good cause. yshivers on PROD1PC62 with RULES Nurse Training Costs; Nurses From Other Countries One commenter asked why we are ‘‘allowing the situation with the very high tuition for nursing school to go unchanged’’ and asserted that if nurses were trained on the job at hospitals the market could be flooded with nurses. The commenter also indicated her opposition to ‘‘importing nurses from other countries.’’ We made no changes based on this comment. The substance of the comment is outside the scope of our authority for this rulemaking proceeding. However, we note that the final rule does make a change to list student forgiveness programs as one of the types of incentives permitted. The final rule also differs from the proposed rule by adding parentheticals displaying the information collection control number assigned by the Office of Management and Budget (OMB) following the sections that contain information collection provisions. In addition, the final rule differs from the proposed rule due by making nonsubstantive clarifying or technical changes. Based on the rationale in the proposed rule and in this document, the provisions of the proposed rule are adopted as a final rule with changes discussed in this preamble. Executive Order 12866 Executive Order 12866 directs agencies to assess all 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, and other advantages; distributive impacts; and equity). The Executive Order classifies a regulatory action as a ‘‘significant regulatory action,’’ requiring review by OMB unless OMB waives such review, if it is a regulatory action that is likely to result VerDate Aug<31>2005 15:34 Dec 02, 2008 Jkt 217001 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 the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this rule have been examined and it has been determined to be a significant regulatory action under Executive Order 12866. Unfunded Mandates The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, or tribal governments, or on the private sector. Paperwork Reduction Act of 1995 OMB assigns a control number for each collection of information it approves. Except for emergency approvals under 44 U.S.C. 3507(j), 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. In the proposed rule, we stated that proposed §§ 53.11, 53.20, 53.31, and 53.40 contain collection of information provisions under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 3521), and that we had requested public comment on those provisions in notices published in the Federal Register. Those notices were published on April 2, 2007 (72 FR 15763), and June 27, 2007 (72 FR 35303). We did not receive any comments on the proposed collections of information, which OMB has approved through February 28, 2011, under control number 2900–0709. Following each of those sections in this final rule, we set out an information collection approval parenthetical PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 displaying OMB control number 2900– 0709. Regulatory Flexibility Act The Secretary hereby certifies that this 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. The funding for this program would be made by the Federal government. The amount contributed by a SVH to fund an incentive program would be an insignificant amount of the costs for operating the SVH. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation— Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.026, Veterans State Adult Day Health Care. List of Subjects in 38 CFR Part 53 Administrative practice and procedure, Adult day health care, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs— veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and Dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans. Approved: September 9, 2008. Gordon H. Mansfield, Deputy Secretary of Veterans. For the reasons set forth in the preamble, the Department of Veterans Affairs amends 38 CFR chapter I by adding part 53 to read as follows: ■ E:\FR\FM\03DER1.SGM 03DER1 Federal Register / Vol. 73, No. 233 / Wednesday, December 3, 2008 / Rules and Regulations PART 53—PAYMENTS TO STATES FOR PROGRAMS TO PROMOTE THE HIRING AND RETENTION OF NURSES AT STATE VETERANS HOMES Sec. 53.1 Purpose and scope. 53.2 Definitions. 53.10 Decision makers, notifications, and additional information. 53.11 General requirements for payments. 53.20 Application requirements. 53.30 Payments. 53.31 Annual report. 53.32 Recapture provisions. 53.40 Submissions of information and documents. 53.41 Notification of funding decision. Authority: 38 U.S.C. 101, 501, 1744. § 53.1 Purpose and scope. In accordance with the provisions of 38 U.S.C. 1744, this part sets forth the mechanism for a State to obtain payments to assist a State Veterans Home (SVH) in the hiring and retention of nurses for the purpose of reducing nursing shortages at that SVH. (Authority: 38 U.S.C. 101, 501, 1744) yshivers on PROD1PC62 with RULES § 53.2 Definitions. For the purpose of this part: Nurse means an individual who is a registered nurse, a licensed practical nurse, a licensed vocational nurse, or a nursing assistant certified in the State in which payment is made and who is a bedside caregiver at least a majority of the time (e.g., this would generally not include an individual acting in the capacity of an advance practice nurse, an administrative nurse, or a director of nursing) (the terms nurses and nursing shall be construed consistent with this definition). State means each of the several States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. State representative means the official designated in accordance with State authority with responsibility for matters relating to payments under this part. State Veterans Home (SVH) means a home approved by the Department of Veterans Affairs (VA) which a State established primarily for veterans disabled by age, disease, or otherwise, who by reason of such disability are incapable of earning a living. A SVH may provide domiciliary care, nursing home care, adult day health care, and hospital care. Hospital care may be provided only when the SVH also provides domiciliary and/or nursing home care. (Authority: 38 U.S.C. 101, 501, 1744) VerDate Aug<31>2005 15:34 Dec 02, 2008 Jkt 217001 § 53.10 Decision makers, notifications, and additional information. The Chief Consultant, Geriatrics and Extended Care, will make all determinations regarding payments under this part, and will provide written notice to affected State representatives of approvals, denials, or requests for additional information under this part. (Authority: 38 U.S.C. 101, 501, 1744) § 53.11 General requirements for payments. (a) VA will make payment under this part to a State for an employee incentive program to reduce the shortage of nurses at the SVH, when the following conditions are met: (1) The State representative applies for payment in accordance with the provisions of § 53.20; (2) The SVH receives per diem payments from VA under the provisions of 38 U.S.C. 1741 for one or more of the following: Adult day health care, domiciliary care, hospital care, or nursing home care; (3) The SVH has a nursing shortage that is documented by credible evidence, including but not limited to SVH records showing nursing vacancies, SVH records showing nurse overtime use, and reports documenting that nurses are difficult to hire in the local area and difficult to retain as employees at the SVH; (4) The SVH does not use payments under this part to pay for all or part of a nurse’s standard employee benefits, such as salary, health insurance, or retirement plan; (5) The SVH provides to the Chief Consultant, Geriatrics and Extended Care, documentation establishing that it has an employee incentive program that: (i) Is likely to be effective in promoting the hiring and retention of nurses for the purpose of reducing nursing shortages at that home, and (ii) Is in operation or ready for immediate implementation if VA payments are made under this part; (6) The payment amount applied for by the State is no more than 50 percent of the funding for the employee incentive program during the Federal fiscal year; (7) The SVH employee incentive program includes a mechanism to ensure that an individual receiving benefits under the program works at the SVH as a nurse for a period commensurate with the benefits provided, and, insofar as possible, the program is designed to eliminate any nursing shortage at the SVH within a 3year period from the initiation of VA payments; PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 73561 (8) The SVH, if it received payments under this part during a previous Federal fiscal year, has met the reporting requirements of § 53.31(a) regarding such payments; (9) The SVH credits to its employee incentive program any funds refunded to the SVH by an employee because the employee was in breach of an agreement for employee assistance funded with payments made under this part and the SVH credits the amount returned as a non-Federal funding source; and (10) The project does not involve the construction, acquisition, expansion, remodeling or alteration of the SVH. (b) VA intends to allow flexibility and innovation in determining the types of employee incentive programs at SVHs eligible for payments. Programs could include such things as the provision of short-term scholarships for continuing nursing education, sign-on bonuses for nurses, student loan forgiveness programs, and improvements to working conditions. In determining whether an employee incentive program is likely to be effective, VA will consider any information available, including past performance of the SVH’s program funded by payments made under this part. (Authority: 38 U.S.C. 101, 501, 1744) (The Office of Management and Budget has approved the information collection provisions in this section under control number 2900–0709.) § 53.20 Application requirements. (a) To apply for payments during a Federal fiscal year, a State representative must submit to VA, in accordance with § 53.40, a completed VA Form 10–0430 and documentation specified by the form (VA Form 10– 0430 is available at VA medical centers and on the Internet at https:// www1.va.gov/geriatricsshg/ or may be obtained by contacting the Geriatrics and Extended Care Office (114) at 202– 461–6750, VHA Headquarters, 810 Vermont Avenue, NW., Washington, DC 20420). The submission for payments for a fiscal year must be received by VA during the last quarter (July 1– September 30) of the preceding fiscal year. The State must submit a new application for each fiscal year that the State seeks payments for an incentive program. (b) As part of the application, the State representative must submit to VA evidence that the State has sufficient funding, when combined with the VA payments, to fully operate its employee incentive program through the end of the fiscal year. To meet this requirement, the State representative must provide to VA a letter from an E:\FR\FM\03DER1.SGM 03DER1 73562 Federal Register / Vol. 73, No. 233 / Wednesday, December 3, 2008 / Rules and Regulations authorized State official certifying that, if VA were to approve payments under this part, the non-VA share of the funds for the program would be by a date or dates specified in the certification, available for the employee incentive program without further State action to make such funds available. If the certification is based on a State law authorizing funds for the employee incentive program, a copy of the State law must be submitted with the certification. (c) If an application does not contain sufficient information for a determination under this part, the State representative will be notified in writing (electronically and by mail) of any additional submission required and that the State has 30 calendar days from the date of the notice to submit such additional information or no further action will be taken. If the State representative does not submit all of the required information or demonstrate that he or she has good cause for failing to provide the information within 30 calendar days of the notice (which may extend beyond the last quarter of the preceding Federal fiscal year), then the State applicant will be notified in writing that the application for VA assistance will be deemed withdrawn and no further action will be taken. (Authority: 38 U.S.C. 101, 501, 1744) § 53.31 Annual report. (a) A State receiving payment under this part shall provide to VA a report setting forth in detail the use of the funds, including a descriptive analysis of how effective the employee incentive program has been in improving nurse staffing in the SVH. The report shall be provided to VA within 60 days of the close of the Federal fiscal year (September 30) in which payment was made and shall be subject to audit by VA. (b) A State receiving payment under this part shall also prepare audit reports as required by the Single Audit Act of 1984 (see 38 CFR part 41) and submit them to VA. (Authority: 38 U.S.C. 101, 501, 1744) (The Office of Management and Budget has approved the information collection provisions in this section under control number 2900–0709.) § 53.32 Recapture provisions. If a State fails to use the funds provided under this part for the purpose for which payment was made or receives more than is allowed under this part, the United States shall be entitled to recover from the State the amount not used for such purpose or the excess amount received. (Authority: 38 U.S.C. 101, 501, 1744) § 53.30 yshivers on PROD1PC62 with RULES (The Office of Management and Budget has approved the information collection provisions in this section under control number 2900–0709.) All submissions of information and documents required to be presented to VA must be made to the Chief Consultant, Geriatrics and Extended Care (114), VHA Headquarters, 810 Vermont Avenue, NW., Washington, DC 20420. Payments. (a) The amount of payments awarded under this part during a Federal fiscal year will be the amount requested by the State and approved by VA in accordance with this part. Payments may not exceed 50 percent of the cost of the employee incentive program for that fiscal year and may not exceed 2 percent of the amount of the total per diem payments estimated by VA to be made under 38 U.S.C. 1741 to the State for that SVH during that fiscal year for adult day health care, domiciliary care, hospital care, and nursing home care. (b) Payments will be made by lump sum or installment as deemed appropriate by the Chief Consultant, Geriatrics and Extended Care. (c) Payments will be made to the State or, if designated by the State representative, the SVH conducting the employee incentive program. (d) Payments made under this part for a specific employee incentive program shall be used solely for that purpose. § 53.40 Submissions of information and documents. (Authority: 38 U.S.C. 101, 501, 1744) (The Office of Management and Budget has approved the information collection provisions in this section under control number 2900–0709.) § 53.41 Notification of funding decision. If the Chief Consultant, Geriatrics and Extended Care, determines that a submission from a State fails to meet the requirements of this part for funding, the Chief Consultant shall provide written notice of the decision and the reasons for the decision. (Authority: 38 U.S.C. 101, 501, 1744) [FR Doc. E8–28542 Filed 12–2–08; 8:45 am] BILLING CODE 8320–01–P (Authority: 38 U.S.C. 101, 501, 1744) VerDate Aug<31>2005 15:34 Dec 02, 2008 Jkt 217001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R06–OAR–2007–0523; FRL–8747–6] Approval and Promulgation of Implementation Plans; Texas; Control of Emissions of Nitrogen Oxides (NOX) From Stationary Sources Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: SUMMARY: The EPA is finalizing approval of rules for the control of NOX emissions into the Texas State Implementation Plan (SIP). Texas submitted this SIP revision to us on May 30, 2007 (May 30, 2007 SIP revision), and we proposed approval of the May 30, 2007 SIP revision on July 11, 2008. The May 30, 2007 SIP revision to the Texas SIP is a substantive and nonsubstantive recodification and reformatting of the NOX rules currently approved in the Texas SIP, and also includes a part of the Nitrogen Oxides (NOX ) reductions needed for the Dallas/ Forth Worth (D/FW) area to attain the Federal 8-hour ozone National Ambient Air Quality Standard (NAAQS). Today’s final rulemaking covers four separate actions. First, we are approving the repeal, from the Texas SIP, of the current Chapter 117 rules that correspond to the re-codified new rules and the revised and reformatted rules because the reformatted revision will better accommodate future additions/ revisions to the rules. Second, we are approving revisions to the Texas SIP that add new controls for the D/FW major NOX point sources. We are not, however, taking action on the Texas rules for cement plants in this document. We proposed approval of the rules for cement plants in a separate Federal Register document. Third, we are approving revisions to the Texas SIP that add new controls for D/FW minor NOX sources. Fourth, we are approving revisions to the Texas SIP that add new controls for combustion sources in East Texas. These NOX reductions will assist the D/FW area to attain the 8-hour ozone NAAQS. We are approving all of these actions as meeting the requirements of section 110 and part D of the Federal Clean Air Act (the Act). DATES: This rule will be effective on January 2, 2009. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–R06–OAR–2007–0523. All documents in the docket are listed on the www.regulations.gov Web site. E:\FR\FM\03DER1.SGM 03DER1

Agencies

[Federal Register Volume 73, Number 233 (Wednesday, December 3, 2008)]
[Rules and Regulations]
[Pages 73558-73562]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28542]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 53

RIN 2900-AM26


Assistance to States in Hiring and Retaining Nurses at State 
Veterans Homes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) hereby establishes a 
final rule setting forth a mechanism for States to obtain payments from 
VA to assist a State veterans home in the hiring and retention of 
nurses for the purpose of reducing nursing shortages at the home. This 
rule implements provisions of the Veterans Health Programs Improvement 
Act of 2004.

DATES: Effective Date: This final rule is effective January 2, 2009.

FOR FURTHER INFORMATION CONTACT: Jacquelyn Bean, Chief, State Veterans 
Home Per Diem Program, at (202) 461-6771, or Christa M. Hojlo, PhD, 
Director, State Veterans Home Clinical and Survey Oversight, at (202) 
461-6779; Veterans Health Administration (114), Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. (These are not 
toll-free numbers.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register (73 FR 19785) on April 11, 2008, we proposed to establish a 
new 38 CFR part 53 consisting of regulations captioned ``PAYMENTS TO 
STATES FOR PROGRAMS TO PROMOTE THE HIRING AND RETENTION OF NURSES AT 
STATE VETERANS HOMES'' (referred to below as the proposed regulations). 
This document adopts as a final rule, with changes discussed below, 
those proposed regulations. This final rule sets forth a mechanism and 
criteria for a State to obtain payments from VA to assist a State 
Veterans Home (SVH) in the hiring and retention of nurses for the 
purpose of reducing nursing shortages at that home. The final rule 
establishes regulations concerning provisions in section 201 of the 
Veterans Health Programs Improvement Act of 2004 (Pub. L. 108-422), 
which are codified at 38 U.S.C. 1744.
    We provided a 60-day comment period that ended June 10, 2008. We 
received four submissions containing a number of comments that are all 
discussed below.

Definition of Nurse

    The proposed regulations at Sec.  53.02 defined the term ``nurse'' 
to include only those who are bedside care givers at least a majority 
of the time. Consequently, the proposed regulations would allow 
payments only to promote the hiring and retention of those nurses 
licensed or certified, as described in the proposed definition, and who 
are bedside care givers at least a majority of the time. In support of 
this definition, the proposed rule noted that the applicable 
legislative history (H. Rep. No. 108-538 at 5 (2004)) indicates that 
the statutory provisions were intended to assist State homes ``in 
hiring nurses to care for veterans.'' Two commenters asserted that VA 
has misinterpreted 38 U.S.C. 1744 and its legislative history. With 
respect to the statute, the comments specifically discussed paragraphs 
(a) and (b), and the final sentence of paragraph (c), which states that 
when prescribing criteria for programs to be funded, the Secretary 
shall ``take into consideration the need for flexibility and 
innovation.'' They asserted that the proposed definition of nurse 
should be changed to remove its restriction to those who are bedside 
care givers at least a majority of the time, and should not generally 
exclude such individuals as those acting in the capacity of an advance 
practice nurse, an administrative nurse, or a director of nursing. We 
made no changes based on these comments.
    Even if the statute and its legislative history are viewed as 
permitting VA to establish a more expansive definition of the term 
``nurse'' than we proposed, we do not agree with the commenters' 
argument that the proposed definition is not a permissible one under 
the statute. The provisions of 38 U.S.C. 1744(c) and (j) authorize VA 
to establish criteria for the award of payments and we believe that VA 
therefore has authority for the provisions in the proposed rule that, 
through the definition of ``nurse,'' limit the nurses for whom VA 
assistance may be provided. The greatest need for nurses is for those 
who are bedside care givers at least a majority of the time and we have 
determined that we can best use the available funding for recruiting 
and retaining such nurses. In establishing criteria for programs to be 
awarded payments, the need for flexibility and innovation is not the 
only permissible consideration. Our consideration of the need for 
flexibility and innovation has been reflected in the preambles and text 
of the proposed rule and of this final rule.

Credible Evidence

    The provisions of proposed Sec.  53.11(a)(3) would require, as a 
condition of receiving assistance, that the State applicant document by 
credible evidence that an individual SVH has a nursing shortage. One 
commenter raised a number of issues regarding the submission of such 
evidence.
    The commenter questioned whether a State applicant would 
necessarily have to provide an application for each

[[Page 73559]]

individual SVH within the State or whether general documentation could 
be used for groups of SVHs within the State. We made no changes based 
on this comment. The provisions of 38 U.S.C. 1744(e) require that 
documentation be provided for each SVH (``Any such application shall 
describe the nursing shortage at the State home. * * *'')
    The commenter asserted that general criteria that set thresholds 
for defining a nursing shortage would be preferable to the proposed 
rule's provisions in Sec.  53.11 for documentation of a nursing 
shortage, and that any SVH meeting the criteria should be able to 
submit an application. We made no changes based on this comment as each 
SVH could have a distinct factual scenario that would be subjected to 
specific criteria in Sec.  53.11.
    The commenter asked, what is the acceptable standard for ``credible 
evidence;'' and further questioned whether the States would need to 
hire an independent consultant to prepare their submission. We made no 
changes based on these comments. The proposed regulations at Sec.  
53.11(a)(3) provided a list of types of evidence that could be 
submitted to establish a nursing shortage, i.e., ``including but not 
limited to SVH records showing nursing vacancies, SVH records showing 
nurse overtime use, and reports documenting that nurses are difficult 
to hire in the local area and difficult to retain as employees at the 
SVH.'' A State could certainly choose to utilize consultants to gain 
information, but this is not a requirement.

Programs With No Experience

    The provisions of proposed Sec.  53.11(a)(5) would require, as a 
condition of receiving assistance, that the SVH submit documentation 
establishing that it has an employee incentive program that (i) is 
likely to be effective in promoting the hiring and retention of nurses 
for the purpose of reducing nursing shortages at that home, and (ii) is 
in operation or ready for immediate implementation upon receipt of 
payments. One commenter asked what evidence would be necessary to show 
likely effectiveness of a new program for which there is no experience 
upon which to document success. We made no changes based on this 
comment. To determine whether this condition has been satisfied, we 
would review all relevant information provided, including information 
about the program's design and the applicant's description of how the 
program would eliminate the nursing shortage, as well as how long it 
would take to do so. We would also use similar experiences with other 
programs and apply our expertise to analyze such programs in 
determining whether they are likely to be effective.

Existing Projects

    One commenter interpreted the term ``improvements to working 
conditions'' in proposed Sec.  53.11(b) to permit an employee incentive 
project to improve ``working areas.'' The commenter asked whether a 
project to improve working areas could qualify under a State home 
construction grant and also qualify for payment under the hiring and 
retention program. The commenter also asked whether such projects would 
be reviewed in a manner similar to that used for SVH construction 
grants. The statutory authority for the nurse hiring and retention 
program does not contemplate providing funds for construction projects. 
In addition, VA already has separate statutory authority that permits 
funding projects to remodel or alter working areas, under 38 U.S.C. 
8131-8137. We interpret these statutory authorities to require that 
State applications for VA funding of all such construction projects be 
submitted under the State home construction grant program. Based on 
this comment, the final rule makes changes from the proposed regulation 
in Sec.  53.11(a) by adding a new paragraph, Sec.  53.11(a)(10), to 
provide that payments will not be made for projects that involve 
constructing, acquiring, expanding, remodeling, or altering State 
homes.

Funding Projects

    One commenter asserted that ``the proposed program is looking at a 
three-year window for an incentive program to be successful with 
funding coming on an annual basis'' and suggested that VA provide 
assurance that, if appropriations are made by Congress, VA would not 
for other reasons refrain from continuing to fund a program that would 
take 3 years to complete. We made no changes based on this comment. VA 
needs to be able consider other factors in addition to appropriations 
in determining whether to again fund a particular program.

Eliminating Nurse Shortages Within 3 Years

    Under the provisions of proposed Sec.  53.11(a)(7), as a condition 
of receiving assistance the SVH program must ``insofar as possible'' be 
designed to eliminate any nursing shortage at the SVH within a 3-year 
period from the initiation of VA payments. One commenter asserted that 
``the requirement to put a plan in place that will eliminate all 
nursing shortages in 3 years is not feasible.'' We made no changes 
based on this comment. We note that this was not an absolute since the 
text included the language ``insofar as possible.'' It certainly may 
not always be possible to eliminate a nursing shortage within this 3-
year period, but we believe that such plans should, insofar as 
possible, be designed in accordance with this 3-year target.

Student Forgiveness Programs

    The proposed regulations at Sec.  53.11(b) stated that VA intends 
to allow flexibility and innovation in determining the types of 
employee incentive programs at SVHs eligible for payments. This 
paragraph further stated that programs could include such things as the 
provision of short-term scholarships for continuing nursing education, 
sign-on bonuses for nurses, and improvements to working conditions. One 
commenter asserted that the regulations should specifically state that 
the regulations allow student forgiveness programs. We agree that the 
student forgiveness programs could effectively help eliminate nursing 
shortages and in the final rule we are adding it to the list of 
examples.

Application Submissions

    Under the provisions of proposed Sec.  53.20(a), applications must 
be submitted during the first quarter of the fiscal year in which VA 
payments are sought. One commenter asserted that the application window 
should be changed to the last quarter of the preceding Federal Fiscal 
Year (FFY) so that approved expenditures can begin with the start of 
the FFY in which funds are to be expended. We agree with the suggested 
change and the rationale for the change. In the final rule, we changed 
the provisions of Sec.  53.20(a), and a related reference to that 
quarter in Sec.  53.20(c), accordingly. We have also added ``Federal'' 
in this section and elsewhere to clarify references to ``fiscal year''.

Insufficient Information

    Under the provisions of proposed Sec.  53.20(c), if an application 
does not contain sufficient information, VA would notify the State 
representative in writing that the State has 30 calendar days from the 
date of the notice to submit such additional information or no further 
action would be taken. These provisions also contain a mechanism for 
extending the 30-day period based on good cause. One commenter asserted 
that the time might be sufficient if the notice was provided 
electronically but it may not be sufficient if provided by mail. We are 
making a change in the

[[Page 73560]]

final rule in Sec.  53.20(c) to specify that such notice be given ``in 
writing (electronically and by mail).'' We agree with the commenter 
that it would be appropriate to provide electronic notice and that this 
would enable the SVH to have more time to reply. We agree for the 
reason stated by the commenter and have made appropriate changes to 
Sec.  53.20(c). The commenter also asserted that there should be 
provision to allow an extension beyond the 30 days if the information 
required by VA will take longer than 30 days to obtain and submit. We 
made no changes based on this comment. The proposed regulations at 
Sec.  53.20(c) already would provide for extensions based on good 
cause.

Nurse Training Costs; Nurses From Other Countries

    One commenter asked why we are ``allowing the situation with the 
very high tuition for nursing school to go unchanged'' and asserted 
that if nurses were trained on the job at hospitals the market could be 
flooded with nurses. The commenter also indicated her opposition to 
``importing nurses from other countries.'' We made no changes based on 
this comment. The substance of the comment is outside the scope of our 
authority for this rulemaking proceeding. However, we note that the 
final rule does make a change to list student forgiveness programs as 
one of the types of incentives permitted.
    The final rule also differs from the proposed rule by adding 
parentheticals displaying the information collection control number 
assigned by the Office of Management and Budget (OMB) following the 
sections that contain information collection provisions. In addition, 
the final rule differs from the proposed rule due by making 
nonsubstantive clarifying or technical changes.
    Based on the rationale in the proposed rule and in this document, 
the provisions of the proposed rule are adopted as a final rule with 
changes discussed in this preamble.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a regulatory action as a ``significant regulatory 
action,'' requiring review by OMB unless OMB waives such review, if it 
is a 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 the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this rule have been examined and it has been determined 
to be a significant regulatory action under Executive Order 12866.

Unfunded Mandates

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

Paperwork Reduction Act of 1995

    OMB assigns a control number for each collection of information it 
approves. Except for emergency approvals under 44 U.S.C. 3507(j), 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.
    In the proposed rule, we stated that proposed Sec. Sec.  53.11, 
53.20, 53.31, and 53.40 contain collection of information provisions 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), and 
that we had requested public comment on those provisions in notices 
published in the Federal Register. Those notices were published on 
April 2, 2007 (72 FR 15763), and June 27, 2007 (72 FR 35303). We did 
not receive any comments on the proposed collections of information, 
which OMB has approved through February 28, 2011, under control number 
2900-0709. Following each of those sections in this final rule, we set 
out an information collection approval parenthetical displaying OMB 
control number 2900-0709.

Regulatory Flexibility Act

    The Secretary hereby certifies that this 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. The funding for this program would be made by the Federal 
government. The amount contributed by a SVH to fund an incentive 
program would be an insignificant amount of the costs for operating the 
SVH. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from 
the initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.005, Grants to States for 
Construction of State Home Facilities; 64.007, Blind Rehabilitation 
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical 
Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans 
Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans 
Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, 
Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 
64.018, Sharing Specialized Medical Resources; 64.019, Veterans 
Rehabilitation--Alcohol and Drug Dependence; 64.022, Veterans Home 
Based Primary Care; and 64.026, Veterans State Adult Day Health Care.

List of Subjects in 38 CFR Part 53

    Administrative practice and procedure, Adult day health care, 
Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, 
Foreign relations, Government contracts, Grant programs--health, Grant 
programs--veterans, Health care, Health facilities, Health professions, 
Health records, Homeless, Medical and Dental schools, Medical devices, 
Medical research, Mental health programs, Nursing homes, Philippines, 
Reporting and recordkeeping requirements, Scholarships and fellowships, 
Travel and transportation expenses, Veterans.

    Approved: September 9, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans.

0
For the reasons set forth in the preamble, the Department of Veterans 
Affairs amends 38 CFR chapter I by adding part 53 to read as follows:

[[Page 73561]]

PART 53--PAYMENTS TO STATES FOR PROGRAMS TO PROMOTE THE HIRING AND 
RETENTION OF NURSES AT STATE VETERANS HOMES

Sec.
53.1 Purpose and scope.
53.2 Definitions.
53.10 Decision makers, notifications, and additional information.
53.11 General requirements for payments.
53.20 Application requirements.
53.30 Payments.
53.31 Annual report.
53.32 Recapture provisions.
53.40 Submissions of information and documents.
53.41 Notification of funding decision.

    Authority: 38 U.S.C. 101, 501, 1744.


Sec.  53.1  Purpose and scope.

    In accordance with the provisions of 38 U.S.C. 1744, this part sets 
forth the mechanism for a State to obtain payments to assist a State 
Veterans Home (SVH) in the hiring and retention of nurses for the 
purpose of reducing nursing shortages at that SVH.

(Authority: 38 U.S.C. 101, 501, 1744)

Sec.  53.2  Definitions.

    For the purpose of this part:
    Nurse means an individual who is a registered nurse, a licensed 
practical nurse, a licensed vocational nurse, or a nursing assistant 
certified in the State in which payment is made and who is a bedside 
caregiver at least a majority of the time (e.g., this would generally 
not include an individual acting in the capacity of an advance practice 
nurse, an administrative nurse, or a director of nursing) (the terms 
nurses and nursing shall be construed consistent with this definition).
    State means each of the several States, Territories, and 
possessions of the United States, the District of Columbia, and the 
Commonwealth of Puerto Rico.
    State representative means the official designated in accordance 
with State authority with responsibility for matters relating to 
payments under this part.
    State Veterans Home (SVH) means a home approved by the Department 
of Veterans Affairs (VA) which a State established primarily for 
veterans disabled by age, disease, or otherwise, who by reason of such 
disability are incapable of earning a living. A SVH may provide 
domiciliary care, nursing home care, adult day health care, and 
hospital care. Hospital care may be provided only when the SVH also 
provides domiciliary and/or nursing home care.

(Authority: 38 U.S.C. 101, 501, 1744)

Sec.  53.10  Decision makers, notifications, and additional 
information.

    The Chief Consultant, Geriatrics and Extended Care, will make all 
determinations regarding payments under this part, and will provide 
written notice to affected State representatives of approvals, denials, 
or requests for additional information under this part.

(Authority: 38 U.S.C. 101, 501, 1744)

Sec.  53.11  General requirements for payments.

    (a) VA will make payment under this part to a State for an employee 
incentive program to reduce the shortage of nurses at the SVH, when the 
following conditions are met:
    (1) The State representative applies for payment in accordance with 
the provisions of Sec.  53.20;
    (2) The SVH receives per diem payments from VA under the provisions 
of 38 U.S.C. 1741 for one or more of the following: Adult day health 
care, domiciliary care, hospital care, or nursing home care;
    (3) The SVH has a nursing shortage that is documented by credible 
evidence, including but not limited to SVH records showing nursing 
vacancies, SVH records showing nurse overtime use, and reports 
documenting that nurses are difficult to hire in the local area and 
difficult to retain as employees at the SVH;
    (4) The SVH does not use payments under this part to pay for all or 
part of a nurse's standard employee benefits, such as salary, health 
insurance, or retirement plan;
    (5) The SVH provides to the Chief Consultant, Geriatrics and 
Extended Care, documentation establishing that it has an employee 
incentive program that:
    (i) Is likely to be effective in promoting the hiring and retention 
of nurses for the purpose of reducing nursing shortages at that home, 
and
    (ii) Is in operation or ready for immediate implementation if VA 
payments are made under this part;
    (6) The payment amount applied for by the State is no more than 50 
percent of the funding for the employee incentive program during the 
Federal fiscal year;
    (7) The SVH employee incentive program includes a mechanism to 
ensure that an individual receiving benefits under the program works at 
the SVH as a nurse for a period commensurate with the benefits 
provided, and, insofar as possible, the program is designed to 
eliminate any nursing shortage at the SVH within a 3-year period from 
the initiation of VA payments;
    (8) The SVH, if it received payments under this part during a 
previous Federal fiscal year, has met the reporting requirements of 
Sec.  53.31(a) regarding such payments;
    (9) The SVH credits to its employee incentive program any funds 
refunded to the SVH by an employee because the employee was in breach 
of an agreement for employee assistance funded with payments made under 
this part and the SVH credits the amount returned as a non-Federal 
funding source; and
    (10) The project does not involve the construction, acquisition, 
expansion, remodeling or alteration of the SVH.
    (b) VA intends to allow flexibility and innovation in determining 
the types of employee incentive programs at SVHs eligible for payments. 
Programs could include such things as the provision of short-term 
scholarships for continuing nursing education, sign-on bonuses for 
nurses, student loan forgiveness programs, and improvements to working 
conditions. In determining whether an employee incentive program is 
likely to be effective, VA will consider any information available, 
including past performance of the SVH's program funded by payments made 
under this part.

(Authority: 38 U.S.C. 101, 501, 1744)


    (The Office of Management and Budget has approved the 
information collection provisions in this section under control 
number 2900-0709.)


Sec.  53.20  Application requirements.

    (a) To apply for payments during a Federal fiscal year, a State 
representative must submit to VA, in accordance with Sec.  53.40, a 
completed VA Form 10-0430 and documentation specified by the form (VA 
Form 10-0430 is available at VA medical centers and on the Internet at 
https://www1.va.gov/geriatricsshg/ or may be obtained by contacting the 
Geriatrics and Extended Care Office (114) at 202-461-6750, VHA 
Headquarters, 810 Vermont Avenue, NW., Washington, DC 20420). The 
submission for payments for a fiscal year must be received by VA during 
the last quarter (July 1-September 30) of the preceding fiscal year. 
The State must submit a new application for each fiscal year that the 
State seeks payments for an incentive program.
    (b) As part of the application, the State representative must 
submit to VA evidence that the State has sufficient funding, when 
combined with the VA payments, to fully operate its employee incentive 
program through the end of the fiscal year. To meet this requirement, 
the State representative must provide to VA a letter from an

[[Page 73562]]

authorized State official certifying that, if VA were to approve 
payments under this part, the non-VA share of the funds for the program 
would be by a date or dates specified in the certification, available 
for the employee incentive program without further State action to make 
such funds available. If the certification is based on a State law 
authorizing funds for the employee incentive program, a copy of the 
State law must be submitted with the certification.
    (c) If an application does not contain sufficient information for a 
determination under this part, the State representative will be 
notified in writing (electronically and by mail) of any additional 
submission required and that the State has 30 calendar days from the 
date of the notice to submit such additional information or no further 
action will be taken. If the State representative does not submit all 
of the required information or demonstrate that he or she has good 
cause for failing to provide the information within 30 calendar days of 
the notice (which may extend beyond the last quarter of the preceding 
Federal fiscal year), then the State applicant will be notified in 
writing that the application for VA assistance will be deemed withdrawn 
and no further action will be taken.

(Authority: 38 U.S.C. 101, 501, 1744)


    (The Office of Management and Budget has approved the 
information collection provisions in this section under control 
number 2900-0709.)


Sec.  53.30  Payments.

    (a) The amount of payments awarded under this part during a Federal 
fiscal year will be the amount requested by the State and approved by 
VA in accordance with this part. Payments may not exceed 50 percent of 
the cost of the employee incentive program for that fiscal year and may 
not exceed 2 percent of the amount of the total per diem payments 
estimated by VA to be made under 38 U.S.C. 1741 to the State for that 
SVH during that fiscal year for adult day health care, domiciliary 
care, hospital care, and nursing home care.
    (b) Payments will be made by lump sum or installment as deemed 
appropriate by the Chief Consultant, Geriatrics and Extended Care.
    (c) Payments will be made to the State or, if designated by the 
State representative, the SVH conducting the employee incentive 
program.
    (d) Payments made under this part for a specific employee incentive 
program shall be used solely for that purpose.

(Authority: 38 U.S.C. 101, 501, 1744)

Sec.  53.31  Annual report.

    (a) A State receiving payment under this part shall provide to VA a 
report setting forth in detail the use of the funds, including a 
descriptive analysis of how effective the employee incentive program 
has been in improving nurse staffing in the SVH. The report shall be 
provided to VA within 60 days of the close of the Federal fiscal year 
(September 30) in which payment was made and shall be subject to audit 
by VA.
    (b) A State receiving payment under this part shall also prepare 
audit reports as required by the Single Audit Act of 1984 (see 38 CFR 
part 41) and submit them to VA.

(Authority: 38 U.S.C. 101, 501, 1744)


    (The Office of Management and Budget has approved the 
information collection provisions in this section under control 
number 2900-0709.)


Sec.  53.32  Recapture provisions.

    If a State fails to use the funds provided under this part for the 
purpose for which payment was made or receives more than is allowed 
under this part, the United States shall be entitled to recover from 
the State the amount not used for such purpose or the excess amount 
received.

(Authority: 38 U.S.C. 101, 501, 1744)

Sec.  53.40  Submissions of information and documents.

    All submissions of information and documents required to be 
presented to VA must be made to the Chief Consultant, Geriatrics and 
Extended Care (114), VHA Headquarters, 810 Vermont Avenue, NW., 
Washington, DC 20420.


(Authority: 38 U.S.C. 101, 501, 1744)


    (The Office of Management and Budget has approved the 
information collection provisions in this section under control 
number 2900-0709.)


Sec.  53.41  Notification of funding decision.

    If the Chief Consultant, Geriatrics and Extended Care, determines 
that a submission from a State fails to meet the requirements of this 
part for funding, the Chief Consultant shall provide written notice of 
the decision and the reasons for the decision.

(Authority: 38 U.S.C. 101, 501, 1744)


[FR Doc. E8-28542 Filed 12-2-08; 8:45 am]
BILLING CODE 8320-01-P