Comment on AM97-Proposed Rule-Anne E. Payne

Response to Per Diem for Nursing Home Care of Veterans in State Homes From Missouri Veterans Commission Preamble: • Retroactive Reimbursement & Unfunded Mandates- 73 FR 72399, at 72401 and 72403 Retroactive payments for drugs and per diem are to be made by VA for the period beginning on March 21, 2007, when PL 109-461 took effect, requiring provision of drugs and full cost of care reimbursement for certain service- connected veterans. The proposed regulations do not address the process by which such retroactive payments will be made, although the preamble states that (i) VA will not make such payments until and unless the amount paid by or on behalf of the veteran is returned to the payor and (ii) the aggregate impact of the proposed rules on the private sector, the States, local and tribal governments will not exceed $100 million (adjusted annually for inflation). As the financial aspect of the process is not addressed beyond the unfunded mandate assertion, we ask for confirmation that the States will not be required to refund resident charges until such payment is provided to the States for reimbursement to eligible veterans. If the States must first refund the resident charges and drug payments to the veteran as a condition for receipt of the retroactive payments from VA, many States may be unable to provide the refund, as there may be insufficient State funds to advance to the payor. Proposed Changes Part 51, Subpart C – Per Diem Payments • 51.30 We are concerned about the inconsistent language and confusing changes in Section 51.30, and whether a meaningful opportunity is afforded the States to challenge the initial certification “recommendation” of the director of the VA medical center of jurisdiction. In the preamble to the proposed regulations, it is recited: “…we propose to amend §51.30(a)(1) to prescribe that the Under Secretary will make a final decision regarding recognition of a State home after considering the recommendation of the medical center director.” “To clarify that these appeal provisions apply to the Under Secretary for Health’s initial decision recognition and certification…we propose to amend §51.30(d) (e) and (f) accordingly. Proposed § 51.30(a)(1) provides “[t]he Under Secretary for Health will make the determination regarding recognition and the initial determination regarding certification after receipt of a recommendation from the director of the VA medical center of jurisdiction…” If the director determines that the standards are not met, proposed subsection (d) requires the director to provide written notification of the adverse recommendation and that the State has the right to appeal the recommendation. Proposed subsection (e) lays out the process and timing for the State’s appeal to the Under Secretary and (f) states that the Under Secretary must review the matter and “..issue a written determination that affirms or reverses the previous recommendation…” Either the appeals rights are illusory, or the ultimate decision, despite the proposed amendments, rests with the director of the VA medical center of jurisdiction, not the Under Secretary. On the one hand, the operative language in §51.30(a)(1) and description in the preamble make it clear that the Under Secretary’s determination is to be made after considering the director’s recommendation, without regard to the State’s appeal. On the other hand, since the recommendation of the director is not supposed to be a final decision, it is unclear why after “reviewing the matter” the director’s recommendation would need to be reversed or affirmed. In summary, there is no procedure to appeal the Under Secretary’s decision or requirement in making the determination, for the Under Secretary to take into account the arguments and evidence presented in the State’s appeal regarding initial recognition. • 51.41(b) (1) There is no indication in the proposed regulations or preamble as to the frequency of the prevailing rate adjustments or how any adjustments in the amount of the monthly payments will be handled. The regulations should address when the VA will adjust the prevailing rate and the process for adjustment of payment, if required. • 51.43 (c) We disagree with the 30-day requirement to establish residency for purposes of the “bed hold” provisions. Based upon the eligibility requirements for admission to a SVH, residency should be established from the first day of admission. Each admission to a SVH has an identified skilled care need and residency is established on the day of admission. A transfer to an acute care facility during that first 30 day period may be necessary, and should not impact whether the veteran is deemed a resident of the SVH. Subpart D – Standards • 51.70 – 8.(c)(5) It is not always feasible for a SVH to convey personal funds on deposit with the facility within 30 or even 90 days of a veteran’s death. For example, the SVH cannot control disbursement of funds when funds are inadequate, there are multiple creditors and relatives and the matter is tied up in probate or no relative or creditor is located or willing to open an estate. The proposed regulations should provide for a waiver of the 90-day requirement, in those cases where the SVH can provide appropriate justification and documentation. • 51.110 (b)(1)(i) The CMS MDS Version 2.0 nursing home assessment record will be replaced with Version 3.0, effective October 1, 2009. It is recommended that a generic reference to the MDS be substituted, omitting the reference to Version 2.0, and that with each MDS version change, VA provide advance notice of implementation and appropriate training to interpret and implement the new version. • 51.110(b)(1)(d) We suggest that the method for forwarding information be evaluated carefully and that electronic transmission of MDS documents be made using a feasible methodology, as we do not believe email transmission is feasible, HIPAA compliant, or cost-effective. In addition, with a 30-day lapse following the completion of an MDS, the data reviewed by the VA could be outdated. We have been participating in a successful pilot, as requested by VACO, for transmission of MDS data to the Austin Automation Center in Austin. This latter transmittal methodology whereby we are transmitting MDS documents on a daily basis is more feasible and appropriate. • 51.220 The proposal to change the regulations to refer to the current editions of NFPA code and standard should only apply to new construction and renovation. It is not reasonable for existing SVHs to be surveyed under current NFPA standards. Rather, existing homes should be grandfathered and assessed under the standards that were in place when the Homes were constructed and initially surveyed.