2010-7791. Grants to States for Construction or Acquisition of State Home Facilities-Update of Authorized Beds

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document adopts as a final rule the proposed rule to amend Department of Veterans Affairs (VA) regulations regarding grants to States for construction or acquisition of State homes. This final rule updates the maximum number of nursing home and domiciliary beds designated for each State and amends the definition of “State” for purposes of these grants to include Guam, the Northern Mariana Islands, and American Samoa.

DATES:

Effective Date: This final rule is effective May 10, 2010.

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, [phone].

SUPPLEMENTARY INFORMATION:

In a document published in the Federal Register on July 10, 2009 (74 FR 33192), VA proposed to amend its regulations at 38 CFR part 59 concerning grants to States for the construction or acquisition of State home facilities.

Section 8134(a)(2) of title 38, U.S.C., mandates that VA prescribe for each State the maximum number of nursing home and domiciliary beds for which grants may be furnished. Section 8134(a)(4) 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. In 2001, VA established the maximum number of State home beds for each State based on the projected demand for such beds in 2009, as required under section 8134(a)(2). 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 statutory requirement for establishing maximum State home bed numbers. Accordingly, VA proposed to revise the maximum number of nursing home and domiciliary beds for each State, for which grants may be furnished, based on the projected demand from veterans who, in 2020, are 65 years of age or older and reside in that State.

To compute the maximum number of beds for each State, we first estimated that there would be a total population of 8,672,045 veterans 65 years of age or older residing in all the States, projected to the year 2020. We then estimated that there would be a total demand of 55,299 State home beds nationwide in 2009. We then allocated the 55,299 beds based on the percentage of veterans who in 2020 are projected to reside in each State.

VA provided a 60-day comment period that ended September 8, 2009. VA received no comments. Based on the rationale set forth in the proposed rule and in this document, we are adopting the proposed rule as a final rule without change.

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

Paperwork Reduction Act of 1995

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

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.

The economic, interagency, budgetary, legal, and policy implications of this rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Regulatory Flexibility Act

The Secretary of Veterans Affairs 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 rule will affect grants to States and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program number and title for this 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: March 9, 2010.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.

For the reasons stated in the preamble, VA amends 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 follow:

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.

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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.

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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	1007
Alaska	179
Arizona	1520
Arkansas	653
California	4363
Colorado	1114
Connecticut	559
Delaware	207
District of Columbia	83
Florida	4049
Georgia	1975
Hawaii	268
Idaho	394
Illinois	1754
Indiana	1216
Iowa	578
Kansas	518
Kentucky	818
Louisiana	638
Maine	362
Maryland	1102
Massachusetts	944
Michigan	1786
Minnesota	1058
Mississippi	480
Missouri	1257
Montana	281
Nebraska	371
Nevada	649
New Hampshire	361
New Jersey	992
New Mexico	417
New York	2209
North Carolina	1900
North Dakota	137
Ohio	2143
Oklahoma	766
Oregon	907
Pennsylvania	2336
Puerto Rico	288
Rhode Island	157
South Carolina	1089
South Dakota	179
Tennessee	1311
Texas	4119
Utah	426
Vermont	142
Virginia	1903
Virgin Islands	12
Washington	1687
West Virginia	406
Wisconsin	1062
Wyoming	154
American Samoa	0
Guam	12
N. Mariana Islands	1

Note to paragraph (a):

The provisions of 38 U.S.C. 8134 require that the “un-met 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.

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