2010-31780. Health Care for Homeless Veterans Program

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule would establish regulations for contracting with community-based treatment facilities in the Health Care for Homeless Veterans (HCHV) program of the Department of Veterans Affairs (VA). It would formalize VA's policies and procedures in connection with this program, which is designed to assist certain homeless veterans in obtaining treatment from non-VA community-based providers. It would also clarify that veterans with substance use disorders may qualify for the program.

DATES:

Comments on the proposed rule, including comments on the information collection provisions, must be received on or before February 18, 2011.

ADDRESSES:

Written comments may be submitted through http://www.Regulations.gov;​; by mail or hand delivery to the Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to 202-273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AN73, Health Care for Homeless Veterans Program.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call [phone] (this is not a toll-free number) for an appointment. 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:

Robert Hallett, Healthcare for Homeless Veterans Manager, c/o Bedford VA Medical Center, 200 Springs Road, Bldg. 12, Bedford, MA 01730; [phone] (this is not a toll free number).

SUPPLEMENTARY INFORMATION:

The HCHV program is authorized by 38 U.S.C. 2031, under which VA may provide outreach as well as “care, treatment, and rehabilitative services (directly or by contract in community-based treatment facilities, including halfway houses)” to “veterans suffering from serious mental illness, including veterans who are homeless.” One of VA's national priorities is a renewed effort to end homelessness for veterans. For this reason, we are proposing to establish regulations that are consistent with the current administration of this program.

The primary mission of the HCHV program is to use outreach efforts to contact and engage veterans who are homeless and suffering from serious mental illness or a substance use disorder. Many of the veterans for whom the HCHV program is designed have not previously used VA medical services or been enrolled in the VA health care system.

Through the HCHV program, VA identifies homeless veterans with serious mental illness and/or substance use disorder, usually through medical intervention, and offers community-based care to those whose conditions are determined, clinically, to be managed sufficiently that the individuals can participate in such care. We have assisted homeless veterans with substance use disorders through this program because, based on our practical understanding and experience, the vast majority of homeless veterans have substance use disorders. Treating substance use as a mental disorder is consistent with the generally accepted “disease model” of alcoholism and drug addiction treatment, as well as the modern use of medical intervention to treat the condition. We believe that if a substance use disorder is a contributing cause of homelessness, then that disorder is serious; therefore, it is consistent to include such veterans in a program designed for “veterans suffering from serious mental illness, including veterans who are homeless.” 38 U.S.C. 2031(a).

Veterans who are identified and who choose to participate in this form of care as part of their treatment plan are then referred by VA to an appropriate non-VA community-based provider. In some cases, VA will continue to actively medically manage the veteran's condition, while in other cases a VA clinician may determine that a veteran can be sufficiently managed through utilization of non-medical resources, such as 12-step programs.

To provide the community-based care, VA contracts, via the HCHV program, with non-VA community-based providers, such as halfway houses, to provide to these veterans housing and mental health and/or substance use disorder treatment. VA provides per diem payments to these non-VA community-based providers for the services provided to veterans. Service provision within these contracts is typically short-term, because during their stay veteran-participants are connected with other resources designed to provide longer-term housing. These contracts, and the per diem payment, are governed by the Federal Acquisition Regulations, and the VA supplements thereto contained in the Veterans Affairs Acquisition Regulations at chapter 8 of title 48, CFR. These are the rules that specifically govern requirements exclusive to VA contracting actions.

We propose to establish a new 38 CFR part 63 for the HCHV program because the program is unique and the proposed rule would not apply to therapeutic housing or other VA programs designed to end homelessness. The primary purposes of this rulemaking are to establish eligibility criteria for veterans and set forth the parameters for selection of non-VA community-based providers. In addition, the proposed rule would clarify that HCHV contract residential treatment may be provided to homeless veterans with substance use disorders, which, as discussed above, are serious mental disorders when they cause or contribute to homelessness. Finally, we note that the proposed rule would be consistent with VA's overall, renewed efforts to end homelessness for our Nation's veterans.

After a general description of the purpose and scope of the HCHV program in proposed § 63.1, we would set forth in § 63.2 a few definitions applicable to these regulations.

We would define a “clinician” as a physician, physician assistant, nurse practitioner, psychiatrist, psychologist, or other independent licensed practitioner. This is consistent with the common understanding of the term and with the definition set forth in 38 CFR 70.2.

We would define “homeless” consistent with 38 U.S.C. 2002(1), which defines a “homeless veteran” as “a veteran who is homeless (as that term is defined in section 103(a) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11302(a)).” Under 42 U.S.C. 11302(a), “homeless” means “(1) an individual who lacks a fixed, regular, and adequate nighttime residence; and (2) an individual who has a primary nighttime residence that is (A) A supervised publicly or privately operated shelter designed to provide temporary living accommodations (including welfare hotels, congregate shelters, and transitional housing for the mentally ill); (B) an institution that provides a temporary residence for individuals intended to be institutionalized; or (C) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.” We interpret section 2002(1) to mean Congress intended that, for purposes of VA benefits for homeless veterans, we would define “homeless” consistent with the homeless assistance statutes administered by the Department of Health and Human Services, to include any future amendment of the definition of “homeless” in section 11302(a). We therefore propose to define “homeless” by cross-referencing section 11302(a).

In order to be eligible for the HCHV program, a veteran must have a serious mental illness and/or a substance use disorder. This is a clinical determination made in the veteran's medical record. The condition must also be a cause, or potential cause, of the veteran's homelessness. We propose to define “serious mental illness” and “substance use disorder” as diagnosed illnesses that actually or potentially contribute to a veteran's homelessness. By requiring a connection between a clinical diagnosis and homelessness, we intend to address only those disorders that cause or contribute to a veteran's homelessness. This is consistent with the overall purpose of 38 U.S.C. 2031, and the focus of the HCHV program on eradicating the causes of homelessness.

We would define “non-VA community-based provider” as “a facility in a community that provides temporary, short-term housing (generally up to 6 months) for the homeless, as well as services such as rehabilitation services, community outreach, and basic mental-health services.” This definition will cover the types of facilities that cater to the population served by the HCHV program. Persons who need long-term housing, or who are homeless but do not require services, are not targeted by this program. This definition is consistent with the use of this term in existing HCHV contracts.

We would define “participant” as “an eligible veteran under § 63.3 for whom VA is paying per diem to a non-VA community-based provider.” This definition is logical because the term refers to veterans who are participating in the program. It is also consistent with the use of this term in existing HCHV contracts.

Under § 63.3(a), we would premise eligibility for per diem payments on the non-VA community-based provider's servicing of a veteran who is homeless, eligible for VA medical care, and has a serious mental illness or substance use disorder that is being clinically managed. A finding by a VA clinician that a veteran's condition is clinically managed generally represents the determination that the condition is in a sufficiently stable and managed state to allow participation in the program. We would generally require that the veteran be enrolled in the VA health care system, but would not so require if the veteran is eligible for VA health care under 38 CFR 17.36 regarding care provided to veterans enrolled in the VA health care system or § 17.37 regarding care provided to veterans who are not enrolled in the system. Requiring that the veteran's mental illness or substance use disorder be clinically managed is also consistent with the goals of the HCHV Program, as well as 38 U.S.C. 2031, because non-VA community-based providers are generally not equipped to deal with veterans who have acute, unstable, or untreated mental health issues. Generally, such veterans who are identified through HCHV outreach services should be treated or stabilized at facilities that emphasize medical treatment.

In § 63.3(b), we would establish certain preferences. Because per diem funds are not unlimited, we need to ensure that these funds are used first to assist those veterans who we believe can benefit the most from the HCHV program. We would give first preference to veterans who are new to the VA health care system as a result of VA outreach, or who were referred by community outreach programs, because the HCHV program was established to help get these hard-to-reach populations actively involved in the VA health care system.

Proposed § 63.3(c) clarifies that determinations of eligibility and priority are made by VA and not by non-VA community-based providers.

In § 63.10, we would describe our method of selecting non-VA community-based providers. Under proposed paragraph (a), we would accept applications from facilities that “provide temporary residential assistance for homeless persons with serious mental illness, and/or substance use disorders, and who can provide the specific services and meet the standards identified in § 63.15 and elsewhere in this part.” This statement conforms to the basic definition of a non-VA community-based provider that we propose in § 63.2.

In § 63.10(b), we would establish that the general principles governing the award of VA contracts apply to the award of HCHV program contracts. Contracts awarded through the HCHV program are between VA and non-VA community-based providers for short periods of time, and usually do not involve large amounts of money. In this regard, these contracts are similar to contracts for outpatient services made under 38 CFR 17.81 and 17.82. Hence, paragraph (b) is similar to the contract requirements established in those sections. We also note that, under § 63.15(a), the safety requirements applicable to non-VA community-based providers would be identical to those required under § 17.81.

Paragraph (c) would establish the national standards for certain contract terms, but would allow for local, contract-specific rates and contract-lengths. The per diem rate, under paragraph (c)(1), would be established in individual contracts, but would have to be “based on local community needs, standards, and practices.” This would allow local VA staff to seek competitive contracts, and to provide per diem at a rate comparable to what the facility would expect to receive from a private entity.

Paragraph (c)(2) would prescribe similar provisions regarding the length of time for which VA may pay per diem based on a specific veteran. We would provide that contracts should generally not authorize the payment of per diem for a single veteran for a period of longer than 6 months; however, this term will ultimately be subject to the needs of veterans in a specific community. Paragraph (c)(2) would simply attempt to provide guidance in this regard.

In § 63.15, we propose to establish the duties of, and standards applicable to, non-VA community-based providers. These standards would also be set forth in specific contracts. Under the Federal Acquisition Regulations we have authority to require non-VA community-based providers to meet specified standards. These duties and standards are consistent with current practice in the HCHV program, and are generally standard industry practice for the types of non-VA community-based providers that would be affected by this rulemaking. Thus, most providers seeking per diem contracts would already meet these standards. Adherence to these standards is necessary to protect the health, safety, and rehabilitation of this vulnerable population of veterans.

Because group activities and social and community interaction have been shown to be invaluable in the rehabilitation of those suffering from serious mental illnesses or substance use disorders, we would require that the programs of non-VA community-based providers include structured group activities in § 63.15(b)(1), an environment conducive to social interaction in § 63.15(c)(2), and a program which includes community involvement in § 63.15(c)(6).

Because most veterans who qualify for this program will lack their own means of transportation, proposed § 63.15(c)(5) states that a facility in an area offering either public transportation or nearby employment that requires no transit will receive preference over facilities in more remote locations.

In order to ensure that the standards outlined in § 63.15 are adhered to, paragraph (e) would provide for inspections, without prior notice, of facilities to receive the per-diem payment both prior to the contract period and during performance. Any failure to meet the standards in § 63.15 must be remedied to the satisfaction of the inspector before a contract may be awarded or renewed.

Paperwork Reduction Act

This proposed rule includes a provision, § 63.15(e)(3), which constitutes a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521) that requires approval by the Office of Management and Budget (OMB). Accordingly, under section 3507(d) of the Act, VA has submitted a copy of this rulemaking to OMB for review. 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. If OMB does not approve the collection of information as requested, VA will immediately remove the provision containing a collection of information or take such other action as is directed by OMB.

Comments on the collection of information contained in this proposed rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies sent by mail or hand delivery to: Director, Office of Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to [phone]; or through http://www.Regulations.gov. Comments should indicate that they are submitted in response to “RIN 2900-AN73, Health Care for Homeless Veterans Program.”

OMB is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the proposed rule.

VA considers comments by the public on proposed collections of information in—

• Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of VA, including whether the information will have practical utility;
• Evaluating the accuracy of VA's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

The proposed amendments to title 38, CFR chapter I contain a collection of information under the Paperwork Reduction Act for which we are requesting approval by OMB. This collection of information is described immediately following this paragraph.

Title: HCHV program.

Summary of collection of information: The proposed rule at § 63.15(e)(3) requires the facility to keep, and provide to VA facility inspectors, documentary evidence sufficient to verify that the facility meets the applicable standards of part 63.

Description of the need for information and proposed use of information: This information is needed for VA to evaluate the facilities and programs of non-VA community-based providers and determine whether the requirements of this part are met.

Description of likely respondents: Non-VA community-based providers.

Estimated number of respondents per year: Approximately 300 non-VA community-based providers, as, historically, each VA Medical Center awards two contracts per year.

Estimated frequency of responses per year: 1.

Estimated total annual reporting and recordkeeping burden: For non-VA community-based providers, 150 hours.

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 OMB unless OMB waives such a 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 planned or taken 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, economic, legal, and policy implications of this proposed rule have been examined and it has been determined to not be a significant regulatory action under Executive Order 12866.

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed regulatory amendment would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed amendment would not cause a significant economic impact on health care providers, suppliers, or similar entities since only a small portion of the business of affected entities concerns VA beneficiaries. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

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 proposed rule that may result in an expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would have no such effect on State, local, and Tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Program

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are: 64.007, Blind Rehabilitation Centers; 64.009, Veterans Medical Care Benefits; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on December 10, 2010, for publication.

List of Subjects in 38 CFR Part 63

• Administrative practice and procedure
• Day care
• Disability benefits
• Government contracts
• Health care
• Homeless
• Housing
• Individuals with disabilities
• Low and moderate income housing
• Public assistance programs
• Public housing
• Relocation assistance
• Reporting and recordkeeping requirements
• Veterans

Dated: December 14, 2010.

Robert C. McFetridge,

Director, Regulation Policy and Management, Office of the General Counsel, Department of Veterans Affairs.

For the reasons stated in the preamble, VA proposes to amend 38 CFR chapter I to add a new part 63 to read as follows:

PART 63—HEALTH CARE FOR HOMELESS VETERANS (HCHV) PROGRAM

63.1

Purpose and scope.

63.2

Definitions.

63.3

Eligible veterans.

63.10

Selection of non-VA community-based providers.

63.15

Duties of, and standards applicable to, non-VA community-based providers.

Authority: 38 U.S.C. 501, 2031, and as noted in specific sections.

§ 63.1

Purpose and scope.

This part implements the Health Care for Homeless Veterans (HCHV) Program. This program provides per diem payments to non-VA community-based facilities that provide housing, as well as care, treatment and/or rehabilitative services, to homeless veterans who are seriously mentally ill or have a substance use disorder.

(Authority: 38 U.S.C. 501, 2031(a)(2))

§ 63.2

Definitions.

For the purposes of this part:

Clinician means a physician, physician assistant, nurse practitioner, psychiatrist, psychologist, or other independent licensed practitioner.

Homeless has the meaning given that term in section 103 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11302(a)).

Non-VA community-based provider means a facility in a community that provides temporary, short-term housing (generally up to 6 months) for the homeless, as well as services such as rehabilitation services, community outreach, and basic mental-health services.

Participant means an eligible veteran under § 63.3 for whom VA is paying per diem to a non-VA community-based provider.

Serious mental illness means diagnosed mental illness that actually or potentially contributes to a veteran's homelessness.

Substance use disorder means alcoholism or addiction to a drug that actually or potentially contributes to a veteran's homelessness.

(Authority: 501, 2002, 2031)

§ 63.3

Eligible veterans.

(a) Eligibility. In order to serve as the basis for a per diem payment through the HCHV program, a veteran served by the non-VA community-based provider must be:

(1) Homeless;

(2) Enrolled in the VA health care system, or eligible for VA health care under 38 CFR 17.36 or 17.37; and

(3) Have a serious mental illness and/or substance use disorder,

(i) That has been diagnosed by a VA clinician,

(ii) Is “clinically managed” as determined by a VA clinician (clinical management of a condition may be achieved through non-medical intervention such as participation in a 12-step program), and

(iii) Impacts the veteran's ability for self-care and/or management of financial affairs as determined by a VA caseworker (i.e., a clinician, social worker, or addiction specialist).

(b) Priority veterans. In allocating HCHV program resources, VA will give priority to veterans, in the following order, who:

(1) Are new to the VA health care system as a result of VA outreach efforts, and to those referred to VA by community agencies that primarily serve the homeless population, such as shelters, homeless day centers, and soup kitchens.

(2) Have service-connected disabilities.

(3) All other veterans.

(c) VA will refer a veteran to a non-VA community-based provider after VA determines the veteran's eligibility and priority.

(Authority: 501, 2031)

§ 63.10

Selection of non-VA community-based providers.

(a) Who can apply. VA may award per diem contracts to non-VA community-based providers who provide temporary residential assistance for homeless persons with serious mental illness, and/or substance use disorders, and who can provide the specific services and meet the standards identified in § 63.15 and elsewhere in this part.

(b) Awarding contracts. Contracts for services authorized under this section will be awarded in accordance with applicable VA and Federal procurement procedures in 48 CFR chapter 8. Such contracts will be awarded only after the quality, effectiveness and safety of the applicant's program and facilities have been ascertained to VA's satisfaction, and then only to applicants determined by VA to meet the requirements of this part.

(c) Per diem rates and duration of contract periods.

(1) Per diem rates are to be negotiated as a contract term between VA and the non-VA community-based provider; however, the negotiated rate must be based on local community needs, standards, and practices.

(2) Contracts with non-VA community-based providers will establish the length of time for which VA may pay per diem based on an individual veteran; however, VA will not authorize the payment of per diem for an individual veteran for a period of more than 6 months absent extraordinary circumstances.

(Authority: 38 U.S.C. 501, 2031)

§ 63.15

Duties of, and standards applicable to, non-VA community-based providers.

A non-VA community-based provider must meet all of the standards and provide the appropriate services identified in this section, as well as any additional requirements set forth in a specific contract.

(a) Facility safety requirements. The facility must meet all applicable safety requirements set forth in 38 CFR 17.81(a).

(b) Treatment plans and therapeutic/rehabilitative services. Individualized treatment plans are to be developed through a joint effort of the veteran, non-VA community-based provider staff and VA clinical staff. Therapeutic and rehabilitative services must be provided by the non-VA community-based provider as described in the treatment plan. In some cases, VA may complement the non-VA community-based provider's program with added treatment services such as participation in VA outpatient programs. Services provided by the non-VA community-based provider generally should include, as appropriate:

(1) Structured group activities such as group therapy, social skills training self-help group meetings or peer counseling.

(2) Professional counseling, including counseling on self care skills, adaptive coping skills and, as appropriate, vocational rehabilitation counseling, in collaboration with VA programs and community resources.

(c) Quality of life, room and board.

(1) The non-VA community-based provider must provide residential room and board in an environment that promotes a lifestyle free of substance abuse.

(2) The environment must be conducive to social interaction, supportive of recovery models and the fullest development of the resident's rehabilitative potential.

(3) Residents must be assisted in maintaining an acceptable level of personal hygiene and grooming.

(4) Residential programs must provide laundry facilities.

(5) VA will give preference to facilities located close to public transportation and/or areas that provide employment.

(6) The program must promote community interaction, as demonstrated by the nature of scheduled activities or by information about resident involvement with community activities, volunteers, and local consumer services.

(7) Adequate meals must be provided in a setting that encourages social interaction; nutritious snacks between meals and before bedtime must be available.

(d) Staffing. The non-VA community-based provider must employ sufficient professional staff and other personnel to carry out the policies and procedures of the program. There will be at a minimum, an employee on duty on the premises, or residing at the program and available for emergencies, 24 hours a day, 7 days a week. Staff interaction with residents should convey an attitude of genuine concern and caring.

(e) Inspections. (1) VA must be permitted to conduct an initial inspection prior to the award of the contract and follow-up inspections of the non-VA community-based provider's facility and records. At inspections, the non-VA community-based provider must make available the documentation described in paragraph (e)(3) of this section.

(2) If problems are identified as a result of an inspection, VA will establish a plan of correction and schedule a follow-up inspection to ensure that the problems are corrected. Contracts will not be awarded or renewed until noted deficiencies have been eliminated to the satisfaction of the inspector.

(3) Non-VA community-based providers must keep sufficient documentation to support a finding that they comply with this section, including accurate records of participants' lengths of stay, and these records must be made available at all VA inspections.

(4) Inspections under this section may be conducted without prior notice.

(f) Rights of veteran participants. The non-VA community-based provider must comply with all applicable patients' rights provisions set forth in 38 CFR 17.33.

(g) Services and supplies. VA per diem payments under this part will include the services specified in the contract and any other services or supplies normally provided without extra charge to other participants in the non-VA community-based provider's program.

(Authority: 38 U.S.C. 501, 2031)

(The Office of Management and Budget has approved the information collection requirement in this section under control number 2900-0091.)