Determining Eligibility for Domiciliary Care

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Parts 17 and 51</CFR> <RIN>RIN 2900-AR61</RIN> <SUBJECT>Determining Eligibility for Domiciliary Care</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective November 29, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> In a document published in the <E T="04">Federal Register</E> (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. <HD SOURCE="HD1">Public Comments</HD> <HD SOURCE="HD2">I. Length of Time for State Homes To Submit Requests for Retroactive Payments</HD> 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 § 51.51(b)(2). Two commenters recommended VA extend the time allowed under proposed § 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 § 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 § 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 § 51.42(c)(1) to 90 calendar days. Thus, as revised, § 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 § 51.51(b)(2). VA is also revising § 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. <HD SOURCE="HD2">II. Process for Waiver Under Proposed § 51.51</HD> One commenter expressed concerned that the Chief of Staff of the VA medical center of jurisdiction (VAMC), or designee, would approve waiver requests under § 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 § 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 T="03">e.g.,</E> 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 § 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 § 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 steps outlined in § 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 § 51.41(e) and § 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 § 51.51(b)(2) without ever having observed the State home facility. <HD SOURCE="HD2">III. Definition, Purpose and Scope, and Duration of Domiciliary Care</HD> 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 § 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 38k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━