Determining Eligibility for Domiciliary Care, 86245-86250 [2024-24912]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 89, Number 210 (Wednesday, October 30, 2024)]
[Rules and Regulations]
[Pages 86245-86250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24912]



[[Page 86245]]

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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with 
minor changes, a proposed rule amending its medical and State Veterans 
Home (State home) regulations to update the criteria used by VA in 
determining eligibility for domiciliary care and to implement VA's 
authority to waive certain eligibility requirements for receipt of 
State home domiciliary care per diem.

DATES: This rule is effective November 29, 2024.

FOR FURTHER INFORMATION CONTACT: Lauren Crotts, Chief, State Veterans 
Homes, Geriatrics and Extended Care (12GEC), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420; (202) 461-6750 (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register (FR) on September 1, 2023, VA proposed to amend its medical 
and State home regulations in parts 17 and 51 of title 38, Code of 
Federal Regulations (CFR). VA proposed to amend part 17 to update the 
criteria VA uses to determine eligibility for domiciliary care. In 
particular, VA proposed to amend the criteria that establishes whether 
a veteran has no adequate means of support by shifting 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. 88 FR 60417. VA also proposed 
to amend 38 CFR part 51 to implement VA's authority to waive certain 
requirements for State homes to receive per diem payments for a veteran 
receiving domiciliary care. Id.
    VA provided a 60-day comment period, which ended on October 31, 
2023. Four comments were received. These comments are summarized and 
addressed by topic in the discussion below. VA makes two changes to the 
rule based on the comments received, which are discussed in more detail 
below. To the extent commenters raised concerns with their individual 
situation or circumstances and provided their personal information, VA 
reached out to them directly to address their concerns.

Public Comments

I. Length of Time for State Homes To Submit Requests for Retroactive 
Payments

    As mentioned above, in the proposed rule, VA proposed establishing 
a waiver for certain eligibility requirements that otherwise would have 
to be met for VA to pay a per diem payment to a State home for a 
veteran receiving domiciliary care at that State home pursuant to the 
new authority granted to VA in Public Law (Pub. L.) 116-315, Section 
3007(a). VA proposed a framework in 38 CFR 51.42(c) for State homes to 
request retroactive per diem payments under this authority, which 
included a 30-day deadline after the effective date of the rule for 
State homes to submit a written list of veterans' names for whom the 
State homes request VA to consider for waiver under the new waiver 
authority detailed in Sec.  51.51(b)(2).
    Two commenters recommended VA extend the time allowed under 
proposed Sec.  51.42(c)(1) for State homes to submit required 
documentation to request retroactive per diem payments for domiciliary 
care from 30 days to either 60 or 90 days. These commenters suggested 
that the proposed time period of 30 calendar days is insufficient, and 
more time is necessary. One commenter also noted that the time allowed 
to submit completed VA Form 10-5588 under Sec.  51.42(c)(4) was unclear 
in the proposed regulatory text and requested that State homes have 90 
days to submit the requisite forms in addition to the list of names.
    VA agrees with these commenters' recommendations to extend the time 
period under proposed Sec.  51.42(c)(1) and (c)(4) and to provide 
clarity as to how long the State homes have to submit the necessary 
form. To ensure State homes have sufficient time to compile and submit 
required documentation to request retroactive per diem payments for 
domiciliary care, VA is revising the time period in proposed Sec.  
51.42(c)(1) to 90 calendar days. Thus, as revised, Sec.  51.42(c)(1) 
will state that within 90 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 on or after January 5, 2021, 
and the State home requests that VA consider them for a waiver under 
Sec.  51.51(b)(2). VA is also revising Sec.  51.42(c)(4) to include 
language clarifying that within 90 calendar days of [effective date of 
final rule] 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. VA makes no other changes based on these comments.

II. Process for Waiver Under Proposed Sec.  51.51

    One commenter expressed concerned that the Chief of Staff of the VA 
medical center of jurisdiction (VAMC), or designee, would approve 
waiver requests under Sec.  51.51(b)(1) even though VA would not be 
providing any care to the veteran in the State home, and another 
commenter asked for clarification on the waiver process. While VA does 
not make any changes based on these comments, clarification of the 
waiver process is provided below.
    Although when veterans are admitted into a State home, the State 
home is responsible for all primary care medical needs under Sec.  
51.340, which means VA primary care teams no longer provide primary 
care to veterans in State homes, VA will have sufficient information to 
determine whether a waiver should be granted. The physician responsible 
for providing primary care to veterans in State homes will evaluate the 
veteran's physical condition on pages one and two of VA Form 10-10SH 
and will then submit it to the VAMC. The VAMC will review the form and 
determine whether the veteran is able to perform the seven activities 
of daily living (ADL) based on the information provided. If the veteran 
can perform not fewer than four ADL, the VA Chief of Staff or designee 
(e.g., a VA clinician) may waive the requirements on VA Form 10-10SH 
and approve domiciliary level of care if it is in the best interest of 
the veteran, pursuant to the proposed amendments to Sec.  51.51.
    One of the same commenters expressed a similar concern regarding 
how the Chief of Staff of the VA medical center of jurisdiction, or 
designee, would have sufficient information to make a finding that a 
State home has the capability to provide the domiciliary care that the 
veteran needs under proposed Sec.  51.51(b)(2) without the ability to 
observe the facility. VA does not make any changes based on this 
comment.
    In subpart B of part 51, VA regulates the recognition and 
certification process for State homes to obtain per diem payments from 
VA. In order to be recognized for purposes of receiving per diem from 
VA States must follow the

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steps outlined in Sec.  51.20. State homes may receive per diem 
payments for veterans only after requesting recognition and 
certification by VA. Through the recognition and certification process 
and the submission of the VA Form 10-10SH and 10-10EZ, in accordance 
with Sec.  51.41(e) and Sec.  51.42, the Chief of Staff of the VA 
medical center of jurisdiction, or designee, would have sufficient 
information with which to make a finding that the State home has the 
capability to provide domiciliary care for purposes of Sec.  
51.51(b)(2) without ever having observed the State home facility.

III. Definition, Purpose and Scope, and Duration of Domiciliary Care

    Another commenter requested VA amend the rule to provide a more 
detailed description of domiciliary care and how it differs from other 
types of residential care. In particular, the commenter requested 
specificity on what factors are considered to determine eligibility for 
domiciliary care, how long a veteran can stay in domiciliary care, what 
factors are considered to determine discharge, and what follow-up 
services are available after discharge. VA does not make any changes to 
the rule based on this comment.
    As to the definition of domiciliary care, the commenter expressed 
confusion as to whether domiciliary care is a residential 
rehabilitation and treatment program that provides a temporary home-
like environment or whether domiciliary care is the furnishing of a 
home to a veteran, including shelter, food, clothing, and necessary 
medical services. The commenter further suggested that VA either use 
the term ``home'' or ``residential program'' throughout.
    The term domiciliary care in Sec.  17.30(b) provides that it is the 
furnishing of: (i) a temporary home to a veteran, embracing the 
furnishing of shelter, food, clothing and other comforts of home, 
including necessary medical services; or 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 psycho 
social needs such as homelessness and unemployment. This definition 
encompasses the two models of domiciliary care VA is authorized to 
provide to eligible veterans. The first model of care focuses on the 
needs of eligible veterans who cannot live independently but do not 
require admission to a nursing home, and the second model focuses on 
the needs of eligible veterans who are receiving care through VA's 
Mental Health Residential Rehabilitation Treatment Program (MH RRTP), 
as referenced in Sec.  17.46 and Sec.  17.47. Therefore, the definition 
provides for the two distinct models of domiciliary care that can be 
provided to veterans. Thus, VA cannot exclusively use either the term 
``home'' or the term ``residential program'' throughout the regulations 
because VA must be able to describe both models of domiciliary care. VA 
believes that this definition is clear, consistently applied throughout 
the regulations, and demonstrates how this type of care would differ 
from other types of residential care.
    The commenter further suggested VA explain what the terms 
``assistance'' and ``independently'' mean in the context of domiciliary 
care. As to the term ``independence,'' VA proposed revising Sec.  
17.47(b)(2) to explain how VA would determine eligibility for 
domiciliary care based on a veteran having no adequate means of 
support. This involves assessing a veteran's ability to achieve or 
sustain ``independence'' in the community. As stated in the rule, being 
able to achieve or sustain ``independence'' includes consideration of 
the following non-exhaustive factors: (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. VA believes the list should be sufficiently clear for 
veterans and other stakeholders to understand what independence means 
and therefore does not believe any additional explanation or 
clarification is required in the regulation.
    As to the term ``assistance,'' VA proposed revising Sec.  51.51(b) 
to explain what a veteran must be able to perform to be eligible for 
domiciliary care in a State home, which includes several functions that 
require little to no ``assistance,'' such as (i) daily ablutions, such 
as brushing teeth, bathing, combing hair, and body eliminations, 
without assistance; (ii) dressing themselves with a minimum of 
assistance; (iii) proceeding to and return from the dining hall without 
aid; and (iv) feeding themselves. VA intends the word assistance to 
have the ordinary meaning of the word, such as the act of helping or 
assisting someone. www.merriam-webster.com. Therefore, VA does not 
believe any further clarification is necessary in the regulation.
    The commenter further suggested that the regulation be amended to 
provide additional information about eligibility and duration in 
domiciliary care, to include factors that are used to determine 
eligibility and discharge such as medical condition, functional status, 
or housing situation. Eligibility criteria for domiciliary care is 
provided in Sec. Sec.  17.46(b), 17.47(b)(2), 17.47(c), and 51.51. 
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 Sec.  51.51 and are applicable to State home domiciliary 
veterans for purposes of per diem payment eligibility. As explained in 
the proposed rule, VA proposed revising the eligibility criteria in 
current Sec.  17.46(b)(2) to be more consistent with the purpose of 
domiciliary care, which is to provide treatment and rehabilitation to 
veterans who VA determines have no adequate means of support. VA refers 
the commenter to its discussion and the proposed regulatory text 
beginning at 88 FR 60417. These regulations provide sufficient guidance 
as to when domiciliary care would be appropriate and provided to a 
veteran.
    VA does not regulate more specific factors to qualify for 
domiciliary care or how long veterans may stay in domiciliary care 
because duration and level of care are clinical determinations to be 
made by medical professionals on a case-by-case basis. Therefore, there 
is not uniform criteria that could be included into a regulation; VA 
needs to ensure that clinical providers have the flexibility to make a 
decision based on clinical indications. Similarly, the decision to 
discharge a veteran is also part of clinical decision-making process 
and VA clinicians require the flexibility to assess the veteran and 
make a clinical decision as to when discharge is appropriate. VA notes 
that discharge typically occurs when a veteran has either completed 
aspects of residential care, or when a veteran is no longer able to 
engage in treatment. It is vital that VA providers have flexibility in 
practice to move veterans between different levels

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of care depending on the individual needs of each veteran, including 
decisions to discharge a veteran.
    The commenter further suggested that VA describe the follow-up 
services available after discharge. Once a veteran is discharged from 
domiciliary care, the veteran will have follow-up services available to 
them, as appropriate, which may include those identified by the 
commenter. However, the follow-up services available to a veteran 
discharged from domiciliary care will vary based on the veteran's 
clinical needs and their eligibility for such services. Therefore, VA 
does not believe it is appropriate to include the types of services 
that may or may not be available based on the individual veteran's 
needs in the regulation.

IV. Supporting Data or Evidence

    The same commenter opined that VA did not provide any data or 
evidence, including studies or reports, to support the changes in the 
proposed rule. VA does not make any changes based on this comment.
    VA has provided sufficient rationale to support the changes it made 
in the rule. Pursuant to section 1710(b)(2) of title 38, United States 
Code (U.S.C.), VA proposed to expand eligibility for domiciliary care 
by updating the criteria used to determine whether a veteran has no 
adequate means of support, shifting 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. 88 FR 60418. Like all other areas of 
medical and psychosocial care that have evolved over the past several 
decades, VA's approach to domiciliary care has also evolved to meet the 
changing needs of veterans, including expanding eligibility to 
domiciliary care. VA determined that basing eligibility for domiciliary 
care on metrics like annual income or incapacity to earn a living did 
not lead to patient-centered care. VA proposed these changes to 
modernize the regulatory approach to eligibility for domiciliary care 
to reflect the more patient-centered model veterans have grown to 
expect from VA. In patient-centered care, an individual's specific 
health needs and desired health outcomes are the driving force behind 
all health care decisions. In the proposed rule, VA also proposed 
allowing for the waiver of certain eligibility requirements for 
eligibility for State home domiciliary care per diem and permitting 
waivers of such requirements retroactive to January 5, 2021. Id. 
Section 3007 of Public Law 116-315 required VA to modify 38 CFR 
51.51(b) to provide VA the authority to waive certain requirements for 
domiciliary care. 88 FR 60418-21. VA's full rationale for the changes 
can be found in the proposed rule. See 88 FR 60417-60421.
    This commenter also asserted that VA did not provide any estimates 
or projections of how many veterans would be eligible for domiciliary 
care under the proposed rule or how much it would cost VA to implement 
the proposed rule. For detailed information regarding the projected 
number of veterans in domiciliary care programs and costs associated 
with such projections, please refer to the regulatory impact analysis 
that accompanies both the proposed and final rules. VA makes no changes 
to the rule based on this comment.

V. Comment Beyond the Scope of Rulemaking

    A commenter was concerned that the proposed rule did not address 
the potential challenges or limitations of providing domiciliary care 
to homeless veterans or those at risk for homelessness and that the 
rule did not consider the potential impact of the rule on other VA 
programs that serve homeless veterans. Additionally, the commenter 
requested clarification as to the goals domiciliary care programs may 
have for veterans who are homeless or at risk of homelessness. This 
commenter provided suggestions on potential modifications to program 
operations, such as ensuring domiciliary care is integrated with other 
VA programs and services, establishing guidelines and standards for 
quality and safety, and enhancing socialization and community 
integration. Specifically, the commenter suggested that the rule should 
consider the impact of the proposed rule on other VA programs and 
include the coordination and collaboration of these programs in the 
rule. VA does not make any changes based on this comment. While VA 
appreciates the commenter's concern, these suggestions are beyond the 
scope of the rulemaking which was limited to amending discrete 
eligibility requirements and implementing an authority to waive certain 
eligibility criteria.
    The commenter also expressed concern that an implementation plan or 
timeline were not included in the proposed rule, including when the 
rule would take effect and how long it would be in effect. VA does not 
make any changes to the rule based on this comment. This concern is 
better addressed in sub-regulatory and administrative guidance. VA 
notes that the changes made to parts 17 and 51 of 38 CFR by this final 
rule will become effective 30 days after the final rule's publication 
in the Federal Register. It will remain in effect indefinitely.
    This commenter also asserted that the proposed rule did not 
describe how VA would monitor or evaluate the outcomes or impacts of 
the rule on veterans. VA does not make any changes based on this 
comment. This concern similarly is better addressed in sub-regulatory 
and administrative guidance. However, VA conducts monitoring and 
evaluation of its domiciliary care programs and will continue to do so 
after this rule is final and effective.

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 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.

Regulatory Flexibility Act (RFA)

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). The factual basis for this certification is that this 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.

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605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

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

Paperwork Reduction Act (PRA)

    This final rule includes a provision constituting a revision to a 
current/valid collection of information under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501-3521). The revision also 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. VA received no comments on the revised 
collection of information.
    OMB has received the revised collection of information. OMB's 
receipt of the revised collection of information is not an approval to 
conduct or sponsor an information collection under the Paperwork 
Reduction Act of 1995. In accordance with 5 CFR 1320, the revised 
collection of information associated with this rulemaking is not 
approved by OMB at this time. OMB's approval of the revised collection 
of information will occur within 30 days after the Final rulemaking 
publishes. If OMB does not approve the new collection of information as 
requested, VA will immediately remove the provision containing a new 
collection of information or take such other action as is directed by 
OMB.
    The revised collection of information contained in 38 CFR 51.42(c) 
is described immediately following this paragraph, under its respective 
title.
    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 collection of 
information in 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 Sec.  51.51(b)(2). 
This is a time limited opportunity--the list of names must be received 
within 90 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 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: 
VA estimates the total annual reporting and recordkeeping burden to be 
3 burden hours. Using the annual number of respondents 2, VA estimates 
a total annual reporting and recordkeeping burden of 3 hours for 
respondents.
     Estimated cost to respondents per year: VA estimates the 
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 respondents 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 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.

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not satisfying the criteria under 5 U.S.C. 
804(2).

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 and signed 
this document on October 21, 2024, 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 stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR parts 17 and 51 as set forth below:

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, Pub. L. 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), (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. Revising paragraph (b)(2); and
0
c. Removing and reserving paragraph (c). The revisions read as follows:


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

* * * * *
    (b) * * *

[[Page 86249]]

    (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:

    Authority:  38 U.S.C. 101, 501, 1710, 1720, 1741-1743, 1745, and 
as follows.
* * * * *
    Section 51.42 also issued under 38 U.S.C. 510, 1744, and Pub. L. 
116-315 section 3007.
* * * * *
    Section 51.51 also issued under Pub. L. 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 90 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 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) of this section, 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) Within 90 calendar days of [EFFECTIVE DATE OF FINAL RULE] 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) * * *
* * * * *
    (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

[[Page 86250]]

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. 2024-24912 Filed 10-29-24; 8:45 am]
BILLING CODE 8320-01-P