[Federal Register Volume 77, Number 86 (Thursday, May 3, 2012)]
[Rules and Regulations]
[Pages 26183-26184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10590]



38 CFR Part 51

RIN 2900-AO02

Technical Revisions To Update Reference to the Required 
Assessment Tool for State Nursing Homes Receiving Per Diem Payments 
From VA

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: This rule updates the reference to the required resident 
assessment tool for State homes that receive per diem from VA for 
providing nursing home care to veterans. It requires State nursing 
homes receiving per diem from VA to use the most recent version of the 
Centers for Medicare and Medicaid Services (CMS) Resident Assessment 
Instrument/Minimum Data Set (MDS), which is version 3.0. This will 
ensure that the standard used to assess veterans is the same as the 
standard applicable to Medicare and Medicaid beneficiaries.

DATES: This final rule is effective June 4, 2012.

FOR FURTHER INFORMATION CONTACT: Nancy Quest, Director, Home and 
Community Based Services, Geriatrics and Extended Care Services 
(10P4G), Veterans Health Administration, Department of Veterans 
Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6064. 
(This is not a toll free number.)

SUPPLEMENTARY INFORMATION: This document adopts as a final rule without 
change a proposed rule amending the Department of Veterans Affairs (VA) 
regulations. On November 10, 2011, VA published in the Federal Register 
(76 FR 70076) a proposal to amend VA regulations to update the 
reference to the required resident assessment tool for State homes 
providing nursing home care, CMS Resident Assessment

[[Page 26184]]

Instrument/MDS. The MDS is a core set of screening, clinical, and 
functional status elements that form the foundation of the 
comprehensive assessment for all residents of long term care facilities 
certified to participate in Medicare and Medicaid. The MDS is the 
standardized assessment instrument in long term care that is used to 
identify the health care needs of residents and generate a plan of 
care, regardless of source of payment for the individual resident. VA 
therefore requires State homes receiving per diem for the provision of 
long term care to veterans to use the MDS, and implements this 
requirement in 38 CFR 51.110(b)(1)(i).
    On October 1, 2010, all CMS certified long term care facilities 
were required to update their assessment from MDS 2.0 to MDS 3.0. VA in 
turn proposed in a rulemaking that State homes receiving per diem to 
provide long term care to veterans use the most up to date version of 
MDS. Interested persons were invited to submit comments to the proposed 
rule on or before January 9, 2012, and we received no comments. 
Therefore, based on the rationale set forth in the proposed rule, VA is 
adopting the proposed rule as a final rule without change.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
rulemaking, represents VA's implementation of its legal authority on 
this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    This final rule contains no collections of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment 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 amendment will not directly affect any small 
entities, as the State homes that are subject to this rulemaking are 
State government entities under the control of State governments. All 
State homes are owned, operated, and managed by State governments 
except for a small number that are operated by entities under contract 
with State governments. These contractors are not small entities. 
Therefore, under 5 U.S.C. 605(b), this amendment 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 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 regulatory action have been examined and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866.

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

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.005, Grants to States for 
Construction of State Home Facilities; 64.009, Veterans Medical Care 
Benefits; 64.010, Veterans Nursing Home Care; 64.015, Veterans State 
Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 
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 April 24, 2012, for publication.

List of Subjects in 38 CFR Part 51

    Administrative practice and procedure, Claims, Day care, Dental 
health Government contracts, Grant programs--health, Grant programs--
veterans, Health care, Health facilities, Health professions, Health 
records, Mental health programs, Nursing homes, Reporting and 
recordkeeping requirements, Travel and transportation expenses, 

    Dated: April 27, 2012
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs is amending 38 CFR part 51 as follows:


1. The authority citation for part 51 continues to read as follows:

    Authority:  38 U.S.C. 101, 501, 1710, 1720, 1741-1743; and as 
stated in specific sections.

Sec.  51.110  [Amended]

2. Amend Sec.  51.110(b)(1)(i) by removing the phrase ``Version 2.0'' 
and adding, in its place, ``Version 3.0''.

[FR Doc. 2012-10590 Filed 5-2-12; 8:45 am]