[Federal Register Volume 78, Number 232 (Tuesday, December 3, 2013)]
[Rules and Regulations]
[Pages 72573-72576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28831]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AO84
Specially Adapted Housing Eligibility for Amyotrophic Lateral
Sclerosis Beneficiaries
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
adjudication regulation regarding specially adapted housing (SAH). The
amendment authorizes automatic issuance of a certificate of eligibility
for SAH to all veterans and active servicemembers with service-
connected amyotrophic lateral sclerosis (ALS) rated totally disabling
under the VA Schedule for Rating Disabilities. The intent and effect of
this amendment are to establish eligibility for SAH for all persons who
have service-connected ALS. VA previously amended its Schedule for
Rating Disabilities to assign a 100-percent disability evaluation for
any veteran who has service-connected ALS based on the recognition that
ALS is a rapidly progressive, totally debilitating, and irreversible
motor neuron disease that results in muscle weakness leading to a wide
range of serious disabilities, including problems with mobility.
Because individuals with ALS quickly reach a level of total disability,
the change was designed to eliminate the need to repeatedly reevaluate
veterans suffering from ALS over a short period of time as symptoms
worsen.
Based on that same rationale, this amendment addresses the
corresponding eligibility for SAH benefits for veterans and
servicemembers with service-connected ALS. The overall SAH grant
approval and oversight process is complex and lengthy, with many parts
beyond VA's control. This rulemaking streamlines one aspect of the
process within VA's control, by establishing SAH eligibility for all
veterans or servicemembers with service-connected, totally disabling
ALS. By shortening the first stage of the SAH process, this regulatory
change will assist veterans and servicemembers suffering from ALS in
adapting their
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homes before their condition becomes too debilitating. It will also
lengthen the period during which ALS-afflicted veterans and
servicemembers will be able to utilize the core SAH benefits. VA also
makes non-substantive technical amendments for clarity.
DATES: Effective Date: This interim final rule is effective December 3,
2013.
Comment Date: Comments must be received by VA on or before February
3, 2014.
Applicability Date: The provisions of this regulatory amendment
apply to all applications for SAH pending before VA on or received
after December 3, 2013.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Regulation
Policy and 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-AO84--Specially Adapted Housing Eligibility for
Amyotrophic Lateral Sclerosis Beneficiaries.'' Copies of comments
received will be available for public inspection in the Office of
Regulation Policy and Management, Room 1068, between the hours of 8:00
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
www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Stephanie Caucutt Li, Section Chief,
Regulations Staff (211D), Compensation Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW.,
Washington, DC 20420, (202) 461-9700. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on December 20, 2011 (76 FR 78823), VA amended its regulations
pertaining to the percent disability evaluation assignable for service-
connected ALS. As of January 19, 2012, the effective date of that
amendment, 38 CFR 4.124a, diagnostic code 8017, provides a 100-percent
disability evaluation for any veteran who has service-connected ALS. VA
determined that assigning a 100-percent evaluation in all cases
eliminates the need to unnecessarily reevaluate veterans with ALS
repeatedly over a short period of time as the condition worsens and
inevitably progresses to total disability. The change was necessary to
adequately compensate veterans who suffer from this progressive,
untreatable, and fatal disease. However, the change did not
specifically address corresponding eligibility for SAH benefits.
Section 2101(a)(1), title 38, United States Code (U.S.C.),
authorizes the award of SAH to veterans who are entitled to disability
compensation for a ``permanent and total service-connected disability''
meeting any of the criteria specified in section 2101(a)(2)(B). Section
2101A(a) of title 38, U.S.C., authorizes VA to provide the same
assistance to a member of the Armed Forces serving on active duty who
is suffering from a disability meeting the same requirements if the
disability was incurred or aggravated in line of duty in active
service, which is to say that the disability is service connected.
Among the specified criteria the disability must meet are the
following: (1) being due to loss of use of both lower extremities such
as to preclude locomotion without the aid of braces, crutches, canes,
or a wheelchair; (2) being due to loss of use of one lower extremity
together with residuals of organic disease or injury which so affect
the functions of balance or propulsion as to preclude locomotion
without the aid of braces, crutches, canes, or a wheelchair; (3) being
due to loss of use of one lower extremity together with the loss of use
of one upper extremity which so affect the functions of balance or
propulsion as to preclude locomotion without the aid of braces,
crutches, canes, or a wheelchair; and (4) being due to the loss of use
of both upper extremities such as to preclude use of the arms at or
above the elbows. VA's SAH adjudication regulations, 38 CFR 3.809(b),
which were promulgated to implement sections 2101(a) and 2101A(a),
include these four SAH eligibility criteria regarding loss of use of
extremities.
Because ALS is a rapidly progressive, totally debilitating, and
irreversible disease, VA has determined that progression of ALS will
routinely, and quickly, satisfy these existing SAH eligibility
criteria. This interim final rule permits VA to determine SAH
eligibility as soon as a veteran or servicemember establishes service
connection for ALS, eliminating the need for additional development and
reducing wait times. By streamlining the eligibility process, this
regulatory amendment will allow veterans and servicemembers with
service-connected ALS to receive and utilize to maximum advantage the
SAH benefit, without unnecessary delay.
From the standpoint of SAH qualification procedures, the effect of
this regulatory amendment is to allocate resources most efficiently and
ensure a better lifestyle for veterans and servicemembers with service-
connected ALS who want to adapt their homes so they can remain in them
for as long as possible. In this regard, one major patient or caretaker
decision concerning ALS--the implementation of tracheotomy and assisted
ventilation--can in many instances leave the patient homebound.
Veterans and servicemembers who experience slower progression of ALS
can be managed at home with extensive home care. Thus, there exists an
immediate need for VA to focus this regulatory change upon the SAH
certificate of eligibility process and timeframe. Because the prognosis
of the progression of ALS is typically established after a brief period
of observation, in most cases less than 3 months, VA has determined
that it is fair and reasonable to provide a certificate of eligibility
for SAH upon determination of service connection for ALS.
VA's Loan Guaranty Service continues to identify and implement
process improvements to the SAH program, while also recognizing the
impact an expedited rating will have on reducing the grant processing
timeline. Pursuant to the authority granted in 38 U.S.C. 2101(a)-(c),
the Secretary has established in 38 CFR 36.4405 a two-phase approval
process for the SAH program, a conditional approval and a final
approval. Due to the complex and variable nature of the SAH grant, the
process for overall approval can take as little as 6 months, but in
rare instances, as long as 1 year, and the time to actually complete
the construction of the adaptation can consume an additional 6 months.
For conditional approval, the Secretary must determine that the
veteran and the home meet the disability, suitability, and feasibility
requirements of the SAH program, and that the veteran has not exceeded
the program's applicable dollar and usage limitations. 38 CFR
36.4405(a)(1). If these conditional requirements are met, the Secretary
can then authorize pre-construction costs, to include architectural
services, land surveys, and legal fees. 38 CFR 36.4405(a)(2). Final
grant approval is contingent on the approval of property plans and
specifications, the verification of ownership of the property, the
submission of certifications regarding any future sale or rental of the
property, the showing that flood insurance has been obtained, and the
compliance with certain geographical limits. 38 CFR 36.4405(b)(2). This
approval process
[[Page 72575]]
varies from case to case, as each eligible person may choose the
project type, location, contractor, and architect, and each home may
require specific unique adaptations to meet the person's needs.
Following grant approval, VA continues its oversight of the grant
disbursement until each project is completed, by establishing escrow
accounts, reviewing local and state building permits, and ensuring that
compliance inspections meet local, state, and Federal building
requirements along with VA minimum property requirements. The overall
process from eligibility determination to occupancy of the home adapted
to meet the person's specific requirements can take from 12 to 18
months, absent this rulemaking.
As stated above, therefore, in order to ensure that an eligible
person can take advantage of this benefit to live independently as
quickly as possible, an expeditious SAH eligibility determination is
both critical and essential. Since the SAH event cycle is largely
variable and reliant on factors beyond the control of VA, but ALS
implications are known and unique, VA is regulating an arena that VA
does control, that is, reducing the certification timeframes with
regard to SAH claimants with service-connected ALS.
VA, therefore, intends to establish SAH eligibility for all persons
with service-connected ALS rated as totally disabling. VA is doing so
by adding a new provision to 38 CFR 3.809, which governs eligibility
for SAH under 38 U.S.C. 2101(a) or 2101A(a). The new regulation adds
the following sole criterion for ALS claimants, as an alternative to
the previously listed criteria: the veteran or member of the Armed
Forces serving on active duty has service-connected ALS rated 100-
percent disabling under diagnostic code 8017 of 38 CFR 4.124a. By
satisfying this added sole criterion, an ALS veteran or servicemember
becomes eligible for the SAH grant, without further development and
delay. VA incorporates this new category of criteria in Sec. 3.809 as
new paragraph (d).
VA is also reorganizing Sec. 3.809 for ease of readability and
clarity. First, VA is retitling Sec. 3.809 to reflect that Sec. 3.809
applies to a veteran or a member of the Armed Forces serving on active
duty who is eligible for SAH benefits under 38 U.S.C. 2101(a)(2)(A)(i)
but not those who are eligible under 38 U.S.C. 2101(a)(2)(A)(ii). On
August 6, 2012, Congress provided temporary eligibility for SAH
benefits to a veteran who served in the Armed Forces on or after
September 11, 2001, if the veteran is entitled to compensation under
chapter 11 of title 38 for a permanent service-connected disability
meeting certain criteria. 38 U.S.C. 2101(a)(2)(A)(ii); Andrew Connolly
Veterans Housing Act, Public Law 112-154, Sec. 202, 126 Stat. 1176
(2012). Section 3.809 does not address those veterans. VA has been
relying on the statute to provide SAH benefits to those veterans.
Second, VA is amending the introductory text to Sec. 3.809. Third, VA
is removing current Sec. 3.809(a) because its content is outdated and
unnecessary. Fourth, VA is redesignating current Sec. 3.809(b) as new
Sec. 3.809(a) with the exception of the last phrase and revising the
heading to match its contents. Fifth, VA is rewording the last phrase
of current Sec. 3.809(b) in new Sec. 3.809(b). Sixth, VA also makes
four non-substantive technical amendments for purposes of clarity, by
removing two erroneously placed periods at the conclusion of current
Sec. 3.809(b)(3) and (b)(4), removing two extraneous commas in current
Sec. 3.809(b)(1), removing ``or'' at the end of current Sec.
3.809(b)(1)-(4), and removing the quotation marks from the title of
Sec. 3.809(c). Finally, in promulgating this rule, VA relies on its
general authority granted under 38 U.S.C. 501(a)(1) to prescribe
regulations to carry out the laws administered by VA, including those
concerning the nature and extent of proof and evidence in order to
establish the right to benefits. Therefore, VA is updating the
authority citation to Sec. 3.809 to refer to section 501(a). VA makes
these formatting changes in order to incorporate the new ALS criterion
in the clearest manner.
Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), we find that there is
good cause to dispense with advance public notice and opportunity to
comment on this rule and good cause to publish this rule with an
immediate effective date. This interim final rule is necessary to
implement immediately the Secretary's decision to establish SAH
eligibility for all persons with totally-disabling service-connected
ALS. Delay in the implementation of this rule would be impracticable
and contrary to the public interest, particularly to veterans and
servicemembers.
Because the survival period for persons suffering from ALS is
generally 18-48 months or less from the onset of symptoms, any delay in
establishing SAH eligibility is extremely detrimental to veterans and
servicemembers who are currently afflicted with ALS. Any delay in
implementation until after a public-comment period could delay
modifying the regulated certificate of eligibility process, depriving
ALS veterans and servicemembers of quick and efficient access to SAH
benefits.
The other revisions and minor punctuation changes made by this rule
are technical corrections that merely remove unnecessary and
potentially unclear language and punctuation. The substantive rights
and duties of all parties affected by these changes have not been
altered. Advance public notice and opportunity to comment on such
changes is unnecessary under 5 U.S.C. 553(b)(B), and because of their
nonsubstantive nature, we find good cause to publish these changes with
an immediate effective date.
For the foregoing reasons, the Secretary is issuing this rule as an
interim final rule with immediate effect.
Paperwork Reduction Act
This interim final rule 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 interim 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. This interim final rule will not affect any small
entities. Only VA beneficiaries will be directly affected. Therefore,
pursuant to 5 U.S.C. 605(b), this interim final rule is exempt from the
initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
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 effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by the Office
of Management and Budget (OMB), 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
[[Page 72576]]
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
this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this interim final rule have been examined, and it has
been determined not to be a significant regulatory action under
Executive Orders 12866 and 13563. VA's impact analysis can be found as
a supporting document at http://www.regulations.gov, usually within 48
hours after the rulemaking document is published. Additionally, a copy
of the rulemaking and its impact analysis are available on VA's Web
site at http://www1.va.gov/orpm/ by following the link for ``VA
Regulations Published.''
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 the 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 one year. This interim final rule will have no such
effect on State, local, and tribal governments, or on the private
sector.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles for this rule are 64.106, Specially Adapted Housing for Disabled
Veterans and 64.109, Veterans Compensation for Service-Connected
Disability.
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. Jose D.
Riojas, Chief of Staff, Department of Veterans Affairs, approved this
document on November 7, 2013, for publication.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Dated: November 26, 2013.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons set out in the preamble, VA is amending 38 CFR part
3 as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Revise Sec. 3.809 to read as follows:
Sec. 3.809 Specially adapted housing under 38 U.S.C.
2101(a)(2)(A)(i).
In order for a certificate of eligibility for assistance in
acquiring specially adapted housing under 38 U.S.C. 2101(a)(2)(A)(i) or
2101A(a) to be extended to a veteran or a member of the Armed Forces
serving on active duty, the following requirements must be met:
(a) General. A member of the Armed Forces serving on active duty
must have a disability rated as permanent and total that was incurred
or aggravated in line of duty in active military, naval, or air
service. A veteran must be entitled to compensation under chapter 11 of
title 38, United States Code, for a disability rated as permanent and
total.
(b) Disability. The disability must be due to:
(1) The loss or loss of use of both lower extremities, such as to
preclude locomotion without the aid of braces, crutches, canes, or a
wheelchair,
(2) Blindness in both eyes, having only light perception, plus the
anatomical loss or loss of use of one lower extremity,
(3) The loss or loss of use of one lower extremity together with
residuals of organic disease or injury which so affect the functions of
balance or propulsion as to preclude locomotion without the aid of
braces, crutches, canes, or a wheelchair,
(4) The loss or loss of use of one lower extremity together with
the loss or loss of use of one upper extremity which so affect the
functions of balance or propulsion as to preclude locomotion without
the aid of braces, crutches, canes, or a wheelchair,
(5) The loss or loss of use of both upper extremities such as to
preclude use of the arms at or above the elbow, or
(6) Full thickness or subdermal burns that have resulted in
contractures with limitation of motion of two or more extremities or of
at least one extremity and the trunk.
(c) Preclude locomotion. This term means the necessity for regular
and constant use of a wheelchair, braces, crutches or canes as a normal
mode of locomotion although occasional locomotion by other methods may
be possible.
(d) Amyotrophic lateral sclerosis. VA considers Sec. 3.809(b)
satisfied if the veteran or member of the Armed Forces serving on
active duty has service-connected amyotrophic lateral sclerosis rated
100 percent disabling under 38 CFR 4.124a, diagnostic code 8017.
(Authority: 38 U.S.C. 501(a), 1151(c)(1), 2101, 2101A)
Cross Reference: Assistance to certain disabled veterans in
acquiring specially adapted housing. See Sec. Sec. 36.4400 through
36.4410 of this chapter.
[FR Doc. 2013-28831 Filed 12-2-13; 8:45 am]
BILLING CODE 8320-01-P