Grants to States for Construction or Acquisition of State Home Facilities-Update of Authorized Beds

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 59

RIN 2900-AM70

Grants to States for Construction or Acquisition of State Home Facilities—Update of Authorized Beds

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) proposes to amend its regulations regarding grants to States for construction or acquisition of State homes to update the maximum number of nursing home and domiciliary beds designated for each State and to amend the definition of “State” for purposes of these grants to include Guam, the

Northern Mariana Islands, and American Samoa.

DATES:

Comments must be received on or before September 8, 2009.

ADDRESSES:

Written comments may be submitted by: Mail or hand-delivery to Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; or e-mail at

http://www.regulations.gov

. Comments should indicate that they are submitted in response to “RIN 2900-AM70—Grants to States for Construction or Acquisition of State Home Facilities—Update of Authorized Beds.” All comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

James F. Burris, MD, Chief Consultant, Geriatrics and Extended Care State Home Construction Grant Program (114), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-6774.

SUPPLEMENTARY INFORMATION:

Congress has authorized VA to provide grants to States for the construction or acquisition of State home facilities for the provision of care to veterans.

See

38 U.S.C. 8131-8138. The term “State home” means “a home established by a State (other than a possession) for veterans disabled by age, disease, or otherwise who by reason of such disability are incapable of earning a living” and “includes such a home which furnishes nursing home care for veterans.” 38 U.S.C. 101(19). For purposes of State home grants, the term “State” means each of the several States and Territories of the United States, the District of Columbia, and the Commonwealth of Puerto Rico,

see

38 U.S.C. 101(20), but not possessions of the United States,

see

38 U.S.C. 101(19), 8131(2). The Department of the Interior, which has administrative responsibility for coordinating Federal policy in Island groups in the Insular Area, has identified Guam and American Samoa as territories of the United States, and the Northern Mariana Islands as a Commonwealth in Political Union with the United States, which is treated as a U.S. territory for purposes of the State home grant program, see VAOPGCCONCL 10-98. The regulatory definition of the term “State” in current 38 CFR 59.2 already includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands. We propose to amend this definition to include Guam, the Northern Mariana Islands, and American Samoa.

Section 8134(a)(2) of title 38, U.S.C., mandates that VA prescribe for each State the number of nursing home and domiciliary beds for which grants may be furnished, which the proposed note to 38 CFR 59.40(a) would refer to as a State's “unmet need” number. To compute this number, VA estimates for each State the maximum number of nursing home and domiciliary beds needed by veterans in that State (which is the maximum number of such beds designated for each State, as shown on the chart in proposed § 59.40(a)), and then subtracts the number of existing State home beds plus the number of those beds under construction or that would be constructed in accordance with the State's grant applications. In addition, section 8134(a)(3) mandates that VA prioritize State home grant applications. The priorities set forth in the law require VA to compute whether a State applying for a grant has a great, significant, or limited need for State home beds. VA currently uses a State's “unmet need” number to determine whether the State has a great, significant, or limited need for new State home beds.

See

38 CFR 59.50(e).

The Veterans Millennium Health Care and Benefits Act (the “Act”) (Public Law 106-117, enacted on November 30, 1999) requires that, not less often than every four years, VA must review and, as necessary, revise the regulations concerning the maximum number of State home beds designated for each State. 38 U.S.C. 8134(a)(4). Section 8134(a)(2) requires that these numbers be based on the projected demand for nursing home and domiciliary care on November 30, 2009 (10 years after the date of enactment of the Act) by veterans who at such time are 65 years of age or older and who reside in that State. In 2001, VA originally established the maximum number of State home beds for each State based on the projected demand for such beds in 2009.

See

66 FR 33845-46 (June 26, 2001). VA now believes that Congress intended VA to recalculate the maximum number of beds for each State based on the projected demand for care ten years in the future and that this method would be consistent with the Act's requirement for establishing maximum State home bed numbers. VA thus proposes to revise in proposed § 59.40(a) the maximum bed numbers based on the projected demand from veterans who, in 2020, are 65 years of age or older and who reside in that State.

To compute the maximum number of beds for each State in compliance with the Act, we first estimated the total number of veterans 65 years of age or older residing in each State, projected to the year 2020. We then totaled the projected population of these veterans at 8,672,045, which would be an increase from the 2000 projected population of such veterans in 2009. In computing these estimates, we considered many factors, such as movement of these veterans to new States, the mortality rate of these veterans, and the fact that the life expectancy of these veterans is projected to be longer than before. We then considered the projected total demand for nursing home and domiciliary beds in State homes. In 2000, we estimated the demand in 2009 would be for 55,299 State home beds nationwide. We believe that this estimated demand may also be used for 2020, despite the estimated increase in the projected veteran population, due to the many emerging alternatives to institutional long-term care and advancing technologies, such as Telehealth, Home-Based Primary Care, and Respite Care, and due to the fact that veterans are choosing to stay longer in their own homes. VA's philosophy is to provide extended care services in the least restrictive environment that is safe for the veteran, and whenever possible in non-institutional home and community-based settings. VA now provides a spectrum of non-institutional extended care services including home telehealth, homemaker/home health aide, skilled home care, home-based primary care, adult day healthcare, in-home respite care, and hospice and palliative care that were unavailable or not widely available in 2000. VA has been increasing the capacity to provide these services in recent years and will continue to do so in order to meet the demand. Many similar services are now available in the private sector through Medicare/Medicaid and long-term care insurance, and some veterans will choose to avail themselves of those services rather than seeking care from VA. The non-institutional services make it possible for many veterans who would otherwise require nursing home care to remain in their own homes, and reduce the need for additional nursing home beds. New technologic advances that may become available over the next decade, such as robotic assistive devices, will also reduce the need for additional nursing home beds. It is

likely that these trends will offset the growth in population and mean that no additional nursing home beds will be needed beyond those previously projected. Should these assumptions prove incorrect, VA will adjust the total number of beds in a future revision of this regulation. “We are specifically interested in comments concerning this analysis and our estimate that the demand in 2020 for State home beds will be for 55,299 nationwide.

We allocated the 55,299 beds based on the percentage of veterans who in 2020 are projected to reside in each State. Although the projected total demand for State home beds nationwide will remain the same in 2020, some States will experience an increase and other States a decrease in the maximum number of beds that are eligible to receive a grant from the State Veterans Home Construction Grant program depending on the projected population of veterans 65 years of age or over for each State. The table below shows the changes in the maximum numbers of beds for each State. We would welcome comments regarding our projections for individual States.

State

Old max # of beds

New max #

of beds

(based on 2020

projections)

Difference

(+/−)

Alabama

883

1007

124

Alaska

79

179

100

American Samoa

not applicable

0

0

Arizona

1068

1520

452

Arkansas

557

653

96

California

5754

4363

−1391

Colorado

717

1114

397

Connecticut

738

559

−179

Delaware

165

207

42

DC

104

83

−21

Florida

4471

4049

−422

Georgia

1202

1975

773

Guam

not applicable

12

12

Hawaii

216

268

52

Idaho

233

394

161

Illinois

2271

1754

−517

Indiana

1209

1216

7

Iowa

632

578

−54

Kansas

542

518

−24

Kentucky

759

818

59

Louisiana

785

638

−147

Maine

301

362

61

Maryland

1020

1102

82

Massachusetts

1348

944

−404

Michigan

1896

1786

−110

Minnesota

932

1058

126

Mississippi

500

480

−20

Missouri

1230

1257

27

Montana

198

281

83

Nebraska

355

371

16

Nevada

428

649

221

New Hampshire

264

361

97

New Jersey

1683

992

−691

New Mexico

344

417

73

New York

3220

2209

−1011

North Carolina

1454

1900

446

North Dakota

121

137

16

Northern Mariana Islands

not applicable

1

1

Ohio

2530

2143

−387

Oklahoma

747

766

19

Oregon

804

907

103

Pennsylvania

3173

2336

−837

Puerto Rico

350

288

−62

Rhode Island

254

157

−97

South Carolina

750

1089

339

South Dakota

155

179

24

Tennessee

1050

1311

261

Texas

3226

4119

893

Utah

304

426

122

Vermont

124

1312

1188

Virginia

1312

1903

591

Virgin Islands

8

12

4

Washington

1215

1687

472

West Virginia

455

406

−49

Wisconsin

1070

1062

−8

Wyoming

93

154

61

In prioritizing applications to receive grants, VA identifies States as having a “great”, “significant”, or “limited” need for additional beds. “Great” need is defined as a need for 2,000 or more new beds; “significant” need as a need for 1,000-1,999 new beds, and “limited” as a need for 999 or fewer new beds. A State that moves into a higher priority category as a result of the reallocation of beds in this rule will be more likely to receive a future grant than under the current allocation of beds. A State that moves into a lower priority category will be less likely to receive a future grant than under the current allocation of beds. A State that remains within the same priority category (even if the allocation of beds to the State increases or decreases) will have an equal likelihood of receiving a future grant under the new allocation as under the current allocation.

Our decision to use the same estimated demand for State home beds nationwide in 2020, as that which was projected for 2009, would not keep States from receiving grants for construction of new State home beds. At this time, there are 28,823 recognized State home beds. In addition, States are building facilities that when recognized will add 2,256 beds for a total of 31,079 beds. Therefore, States will soon have in use 56 percent of the total estimated number of State home beds needed in 2020. Of course, States will also need to replace existing State home facilities that become obsolete or otherwise need replacing. We thus believe that most States would continue to be able to apply for State home grants if that is what the State chooses to do.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 (2 U.S.C 1532) requires that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by the 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 proposed rule would have no such effect on State, local, or Tribal governments, or on the private sector.

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 “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. VA has examined the economic, interagency, budgetary, legal, and policy implications of this proposed rule and has concluded that it does constitute a significant regulatory action under the Executive Order.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed 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 proposed rule would affect grants to States and would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule would be exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program number and title for this proposed rule is as follows: 64.005, Grants to States for Construction of State Home Facilities.

List of Subjects in 38 CFR Part 59

Administrative practice and procedure, 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, Reporting and recordkeeping requirements, Travel and transportation expenses, and Veterans.

Approved: April 3, 2009.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.

For the reasons stated above, the Department of Veterans Affairs proposes to amend 38 CFR part 59 as follows:

PART 59—GRANTS TO STATES FOR CONSTRUCTION OR ACQUISITION OF STATE HOMES

1. The authority citation for part 59 is revised to read as follows:

Authority:

38 U.S.C. 101, 501, 1710, 1742, 8105, 8131-8138.

2. Amend § 59.2 by revising the definition of “State” to read as follows:

§ 59.2

Definitions.

State

means each of the several States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa.

3. Amend § 59.40 by revising paragraph (a) to read as follows:

§ 59.40

Maximum number of nursing home care and domiciliary care beds for veterans by State.

(a) Except as provided in paragraph (b) of this section, a State may not request a grant for a project to construct or acquire a new State home facility, to increase the number of beds available at a State home facility, or to replace beds at a State home facility if the project would increase the total number of State home nursing home and domiciliary beds in that State beyond the maximum number designated for that State, as shown in the following chart. The provisions of 38 U.S.C. 8134 require VA to prescribe for each State the number of nursing home and domiciliary beds for which grants may be furnished (i.e., the unmet need). A State's unmet need for State home nursing home and domiciliary beds is the number in the following chart for that State minus the sum of the number of nursing home and domiciliary beds in operation at State home facilities and the number of State home nursing home and domiciliary beds not yet in operation but for which a grant has either been requested or awarded under this part.

State

Maximum number of state home nursing home & domiciliary beds based on 2020 projections

Alabama

1,007

Alaska

179

American Samoa

0

Arizona

1,520

Arkansas

653

California

4,363

Colorado

1,114

Connecticut

559

Delaware

207

District of Columbia

83

Florida

4,049

Georgia

1,975

Guam

12

Hawaii

268

Idaho

394

Illinois

1,754

Indiana

1,216

Iowa

578

Kansas

518

Kentucky

818

Louisiana

638

Maine

362

Maryland

1,102

Massachusetts

944

Michigan

1,786

Minnesota

1,058

Mississippi

480

Missouri

1,257

Montana

281

Nebraska

371

Nevada

649

New Hampshire

361

New Jersey

992

New Mexico

417

New York

2,209

North Carolina

1,900

North Dakota

137

Northern Mariana Islands

1

Ohio

2,143

Oklahoma

766

Oregon

907

Pennsylvania

2,336

Puerto Rico

288

Rhode Island

157

South Carolina

1,089

South Dakota

179

Tennessee

1,311

Texas

4,119

Utah

426

Vermont

142

Virginia

1,903

Virgin Islands

12

Washington

1,687

West Virginia

406

Wisconsin

1,062

Wyoming

154

Note to § 59.40(a):

The provisions of 38 U.S.C. 8134 require that the “unmet need” numbers be based on a 10-year projection of demand for nursing home and domiciliary care by veterans who at such time are 65 years of age or older and who reside in that State. In determining the projected demand, VA must take into account travel distances for veterans and their families.

[FR Doc. E9-16341 Filed 7-9-09; 8:45 am]

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