[Federal Register Volume 79, Number 94 (Thursday, May 15, 2014)]
[Proposed Rules]
[Pages 27826-27830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11046]



38 CFR Part 63

RIN 2900-AO71

Health Care for Homeless Veterans Program

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.


SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
medical regulations concerning eligibility for the Health Care for 
Homeless Veterans (HCHV) program. The HCHV program provides per diem 
payments to non-VA community-based facilities that provide housing, 
outreach services, case management services, and rehabilitative 
services, and may provide care and/or treatment to homeless veterans 
who are enrolled in or eligible for VA health care. The proposed rule 
would modify VA's HCHV regulations to conform to changes enacted in the 
Honoring America's Veterans and Caring for Camp Lejeune Families Act of 
2012. Specifically, the proposed rule would remove the requirement that 
homeless veterans be diagnosed with a serious mental illness or 
substance use disorder to qualify for the HCHV program. This change 
would make the program available to all homeless veterans who are 
enrolled in or eligible for VA health care. The proposed rule would 
also update the definition of homeless to match in part the one used by 
the Department of Housing and Urban Development (HUD). The proposed 
rule would further clarify that the services provided by the HCHV 
program through non-VA community-based providers must include case 
management services, including non-clinical case management, as 

DATES: Comment Date: Comments must be received by VA on or before July 
14, 2014.

ADDRESSES: Written comments may be submitted by email through http://www.regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue 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-AO71, 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 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 http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert Hallett, Health Care for 

[[Page 27827]]

Veterans Manager, c/o Bedford VA Medical Center, 200 Springs Road, 
Bldg. 17, Bedford, MA 01730; (781) 687-3187. (This is not a toll-free 

SUPPLEMENTARY INFORMATION: The HCHV program is authorized by section 
2031 of title 38, United States Code (U.S.C.), under which VA may 
provide to eligible veterans outreach; care, treatment, and 
rehabilitative services (directly or by contract in community-based 
treatment facilities, including halfway houses); and therapeutic 
transitional housing assistance, under 38 U.S.C. 2032, in conjunction 
with work therapy under 38 U.S.C. 1718(a)-(b). Under current 
regulations, only veterans who are homeless, enrolled in the VA health 
care system or eligible for VA health care under title 38, Code of 
Federal Regulations (CFR), Sec.  17.36 or 17.37, and have a serious 
mental illness and/or substance use disorder are eligible for the 
program. 38 CFR 63.3(a). This rule proposes to eliminate the 
requirement that homeless veterans have a serious mental illness or 
substance use disorder to participate in the program. The rule would 
also clarify that the care and services authorized by section 2031 
include case management services for participating veterans.

I. Eligibility for HCHV Program

    Public Law (Pub. L.) 112-154, Sec.  302, 126 Stat. 1165, 1184 (Aug. 
6, 2012), modified VA's authority under 38 U.S.C. 2031 to clarify that 
VA may provide the services identified in 38 U.S.C. 2031(a) (including 
outreach services; care, treatment, and rehabilitative services; and 
therapeutic transitional housing assistance) to veterans with serious 
mental illness and to veterans who are homeless. The statute previously 
stated that VA may provide outreach, care, treatment, rehabilitative 
services, and therapeutic transitional housing assistance to veterans 
with serious mental illness, including veterans who are homeless. VA 
interpreted this language to mean that homeless veterans had to have a 
serious mental illness to be eligible for these services. As amended, 
the law authorizes VA to make services under the HCHV program available 
to all homeless veterans VA provides care and services to, regardless 
of whether they have a serious mental illness.
    Under existing regulations, VA must conduct a clinical assessment 
to verify a veteran has a serious mental illness before it can provide 
care and services through the HCHV program to homeless veterans. This 
requirement was put in place to ensure that VA only provided services 
to veterans who both had a serious mental illness and who were 
homeless, as required by law. However, as a practical matter, this 
requirement sometimes resulted in veterans refusing treatment or 
assessment, and consequently not receiving care or services to address 
their homelessness. Following the change in law, VA will no longer 
require this assessment take place, as a serious mental illness will 
cease to be a qualifying criterion for admission into the program.
    VA notes that the law, as modified, also permits it to provide care 
and services under this program to veterans who have a serious mental 
illness but who are not homeless. However, the HCHV program is designed 
specifically to address the needs of homeless veterans, and Congress in 
38 U.S.C. 2001 stated clearly that the purpose of the provisions in 
chapter 20 of title 38 is to provide for the special needs of homeless 
veterans. Data show that over the past several years, more than 85 
percent of homeless veterans identified by HCHV staff have a serious 
mental illness. The changes proposed in this rulemaking are intended to 
ensure VA can provide services to the remaining 15 percent of veterans 
identified by HCHV staff who are homeless without a serious mental 
    VA recognizes, though, that it is possible, albeit unlikely, that a 
veteran with a serious mental illness who is not homeless could contact 
the HCHV program to request services. Veterans who have a serious 
mental illness but who are not homeless would be more appropriately 
served through other programs, and as a result, HCHV staff members 
currently refer such persons to a number of other active programs and 
initiatives focused on improving care and outreach to these veterans. 
For example, for more than 20 years, VA has operated the Serious Mental 
Illness Treatment Resource and Evaluation Center (SMITREC) to conduct 
critical evaluations that enhance the mental and physical health care 
of veterans with serious mental illnesses by providing clinicians 
state-of-the-art information on effective treatment options. The 
SMITREC also provides VA leadership with relevant and timely guidance 
on key issues important to optimizing the system-wide delivery of 
health care to veterans with serious mental illness. Additionally, VA's 
implementation of the Patient Aligned Care Team (PACT) model has 
supported improvement in the primary and preventive health care of 
veterans with serious mental illness and improved the coordination of 
care between mental health and primary care. Research has shown that 
embedding specially trained mental health providers in primary care 
clinics improves early identification and treatment of mental health 
disorders in the primary care population. Veterans whose mental health 
needs exceed what can be provided by these experts working in the PACT 
are referred to specialty mental health care programs, including 
general mental health, Mental Health Intensive Case Management (MHICM), 
Psychosocial Rehabilitation and Recovery Centers, Posttraumatic Stress 
Disorder services, Substance Use Disorder services, and others that 
focus on recovery and rehabilitation.
    VA proposes to amend its regulations to reflect these changes. The 
specific revisions are discussed below.

63.1: Purpose and Scope

    We would remove the references to serious mental illness and 
substance use disorder under the purpose and scope section (Sec.  63.1) 
to reflect that the HCHV program may now serve all veterans who are 
enrolled in or eligible for VA health care and who are homeless, 
including those with a serious mental illness. Under current 
regulations, VA defined a substance use disorder as alcoholism or 
addiction to a drug that actually or potentially contributes to a 
veteran's homelessness. This qualification is no longer needed because 
a homeless veteran, regardless of the actual or potential contributing 
factors to his or her homelessness, would be eligible for benefits 
under this program. We would also include outreach services, as 
provided for in 38 U.S.C. 2031(a)(1).

63.2: Definitions

    We would eliminate the definitions of ``serious mental illness'' 
and ``substance use disorder'' in Sec.  63.2 because they would no 
longer be necessary, as discussed above.
    The proposed rule would also amend the definition of ``homeless'' 
in Sec.  63.2. By law, the definition of homeless VA must use for its 
homeless programs, unless otherwise provided by statute, is the 
definition contained in section 11302(a) of the McKinney-Vento Homeless 
Assistance Act (42 U.S.C. 11302(a)). 38 U.S.C. 2002(1). HUD has defined 
this term further through its regulations at 24 CFR 576.2. VA proposes 
to adopt in part HUD's definition to establish a common usage of the 
term between the two Departments and to support ease of understanding 
by government and community providers.
    VA notes that this change would not result in perfect alignment 
with HUD's definition, or with other VA programs. In a separate 
rulemaking published May

[[Page 27828]]

9, 2014, Supportive Services for Veteran Families (SSVF) Program, VA 
proposed modifying the definition of homeless in 38 CFR Part 62 to 
match the definition used by HUD in 24 CFR 576.2. 79 FR 26669. For the 
SSVF program, in 38 U.S.C. 2044(f)(3), the definition of homeless is 
the same as the entire homeless definition contained in 42 U.S.C. 
11302, as opposed to the definition contained only in paragraph (a) of 
38 U.S.C. 11302 that VA is required to use when defining ``homeless'' 
for its homeless programs under 38 U.S.C. 2002(1). As explained above, 
for purposes of the HCHV program, 38 U.S.C. 2002 applies and limits the 
definition of homeless to that found in 42 U.S.C. 11302(a). Paragraphs 
(1) through (3) of HUD's definition of homeless at 24 CFR 576.2 
correspond to paragraph (a) of 42 U.S.C. 11302 and paragraph 4 
corresponds to paragraph (b) of 42 U.S.C. 11302. VA cannot exceed its 
statutory authority and modify the definition of homeless for purposes 
of the HCHV program to mirror the SSVF definition or HUD regulations in 
full but is proposing to bring them as close as possible by adopting 
paragraphs (1) through (3) of the definition of homeless in 24 CFR 

63.3: Eligible Veterans

    The proposed rule would amend the eligibility criteria for veterans 
in Sec.  63.3 by modifying paragraph (a) to rearrange the order and 
classification of eligibility criteria. Under the proposed paragraph 
(a)(1), a veteran must be enrolled in the VA health care system or 
eligible for VA health care under 38 CFR 17.36 or 17.37. This is 
identical to the existing paragraph (a)(2). VA proposes to consolidate 
the current paragraphs (a)(1) and (a)(3) into a new paragraph (a)(2) by 
saying that a veteran, in addition to being enrolled or eligible for 
care under paragraph (a)(1), must also be homeless. VA would remove the 
three stipulations regarding a serious mental illness currently in 
regulations, as they would not be necessary to establish eligibility 
for the program.

63.10: Selection of Non-VA Community-Based Providers

    Finally, the proposed rule would eliminate as a prerequisite to 
selection the requirement in Sec.  63.10(a) that non-VA community-based 
providers give temporary residential assistance to homeless persons 
with substance use disorders. As discussed previously, VA included 
substance use disorders in its earlier regulations as a basis to 
identify homeless veterans, but under the revised law, this is no 
longer necessary.

II. Case Management Services Offered by Non-VA Community-Based 
Providers in the HCHV Program

    Additionally, the proposed rule would clarify that VA can provide 
case management services to veterans through the HCHV program under its 
authority, in 38 U.S.C. 2031(a), to provide care through this program. 
All providers participating in the HCHV program already provide case 
management services, so this change merely reflects current practice. 
Case management involves working toward the rapid placement of the 
veteran in a safe, appropriate setting; arranging, coordinating, or 
providing direct clinical services and support; referring and providing 
linkage to VA medical facilities, VA regional offices, and other 
Federal, state, local, or community-based partners; providing crisis 
management services and monitoring psychiatric status and stability; 
and assisting and counseling veterans with transportation, credit, 
legal, or other needs.
    The provision of case management services is consistent with the 
purpose of the HCHV program, to provide care to homeless veterans. Poor 
health and homelessness are closely associated. Travis P. Baggett, et 
al., ``The unmet health care needs of homeless adults: a national 
study,'' Am. J. Pub. Health, 100(7): 1326-33 (2010); Jennifer Adams, et 
al., ``Hospitalized younger: a comparison of a national sample of 
homeless and housed inpatient veterans,'' J. Health Care Poor & 
Underserved, 18(1): 173-84 (2007); Thomas P. O'Toole, et al., 
``Applying the chronic care model to homeless veterans: effect of a 
population approach to primary care on utilization and clinical 
outcomes,'' Am. J. Pub. Health, 100 (12): 2493-9 (2010). The HCHV 
programs typically serve as the entry point for veterans to participate 
in various VA programs that address these interrelated problems.
    Case management provides a necessary link between an initial 
outreach encounter and the placement of a veteran in transitional or 
permanent housing and other VA homeless programs. Case management is a 
critical service that assists veterans by coordinating the full range 
of benefits and services that can help veterans escape homelessness and 
improve their health.
    VA proposes to modify Sec.  63.1 to clarify that non-VA community-
based facilities must provide case management services as a component 
of care, treatment, and rehabilitative services. VA proposes adding a 
definition to Sec.  63.2 to define case management and to revise the 
definition of non-VA community-based provider to include case 
management services. VA also proposes to clarify that the basic mental 
health services included in the definition of non-VA community-based 
provider should only be provided as needed. While many homeless 
veterans receiving services through HCHV require basic mental health 
services, some do not, and we do not intend to require providers to 
deliver services unless they are needed. However, all homeless veterans 
need case management services, rehabilitative services, and community 
    VA proposes to modify the duties of non-VA community-based 
providers identified in Sec.  63.15(b) by including case management 
services among those services providers must include. VA also proposes 
to make minor changes in Sec.  63.15(b) to clarify the types of 
services that should be included in treatment plans and therapeutic/
rehabilitative services. Specifically, we propose to clarify that VA 
may complement the non-VA community-based provider's program with added 
treatment or other services. This is intended to clarify that a range 
of other services may be available to veterans to the extent otherwise 
authorized under Title 38. VA further proposes to clarify that 
counseling may be provided to complement the non-VA community-based 
provider's program. For example, services through the Readjustment 
Counseling Service, operated under authority in 38 U.S.C. 1712A, or 
services and counseling for sexual trauma, operated under authority in 
38 U.S.C. 1720D, may be helpful in the recovery and care of the 

Effect of Rulemaking

    The Code of Federal Regulations, as proposed to be revised by this 
proposed rulemaking, would represent the exclusive legal authority on 
this subject. No contrary rules or procedures would be authorized. All 
VA guidance would be read to conform with this proposed rulemaking if 
possible or, if not possible, such guidance would be superseded by this 

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as

[[Page 27829]]

they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. 
This proposed rule would remove the requirement that veterans have a 
serious mental illness to participate in the HCHV program and clarify 
that the HCHV program includes case management services. This proposed 
rule would only impact those entities that choose to participate in the 
HCHV Program. As of November 2013, approximately 220 non-profit 
entities participate in the HCHV Program. We do not expect this rule to 
result in any additional costs or economic impacts on these entities, 
as the rule modestly expands the population of veterans eligible to 
receive care and requires case management services consistent with 
current practice. Small entity applicants would not be affected to a 
greater extent than large entity applicants. Small entities must elect 
to participate, and this clarification simply reinforces the services 
these entities are already providing. The expanded population of 
eligible veterans would not result in any additional costs because the 
principal driver of cost is bed availability, which would not change as 
a result of this rule. To the extent this rule would have any impact on 
small entities, it would not have an impact on a substantial number of 
small entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed 
rulemaking is exempt from the initial and final regulatory flexibility 
analysis requirements of 5 U.S.C. 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), 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 this Executive Order.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action, and it has been 
determined to be a significant regulatory action under Executive Order 
12866. 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 

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

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program number and title 
for this rule are as follows: 64.005, Grants to States for Construction 
of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, 
Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 
64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 
64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic 
Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans 
State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, 
Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation 
Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; 
and 64.024, VA Homeless Providers Grant and Per Diem Program.

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 January 2, 2014, 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: May 9, 2014.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.
    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 63 as follows:


1. The authority citation for part 63 continues to read as follows:

    Authority:  38 U.S.C. 501, 2031, and as noted in specific 
2. Revise Sec.  63.1 to read as follows:

Sec.  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, outreach services, case 
management services, and rehabilitative services, and may provide care 
and/or treatment to all eligible homeless veterans.

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

3. Amend Sec.  63.2 by:
a. Removing the definitions of ``Serious mental illness'' and 
``Substance use disorder''.
b. Adding the definition ``Case management'' in alphabetical order.
c. Revising the definitions of ``Homeless'' and ``Non-VA community-
based provider''.
d. Revising the Authority citation at the end of the section.
    The addition and revisions read as follows:

Sec.  63.2  Definitions.

* * * * *
    Case management means arranging, coordinating, or providing direct

[[Page 27830]]

clinical services and support; referring and providing linkage to VA 
and non-VA resources, providing crisis management services and 
monitoring; and intervening and advocating on behalf of veterans to 
support transportation, credit, legal, and other needs.
* * * * *
    Homeless has the meaning given that term in paragraphs (1) through 
(3) of the definition of homeless in 24 CFR 576.2.
    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 community outreach, case management, and 
rehabilitative services, and, as needed, basic mental health services.
* * * * *

(Authority: 38 U.S.C. 501, 2002, 2031)

4. Amend Sec.  63.3 paragraph (a) to read as follows:

Sec.  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) Enrolled in the VA health care system, or eligible for VA 
health care under 38 CFR 17.36 or 17.37; and
    (2) Homeless.
* * * * *
5. Revise Sec.  63.10 paragraph (a) to read as follows:
    (a) Who can apply. VA may award per diem contracts to non-VA 
community-based providers who provide temporary residential assistance 
homeless persons, including but not limited to persons with serious 
mental illness, and who can provide the specific services and meet the 
standards identified in Sec.  63.15 and elsewhere in this part.
6. Revise Sec.  63.15 paragraph (b) to read as follows:

Sec.  63.15  Duties of, and standards applicable to, non-VA community-
based providers.

* * * * *
    (b) Treatment plans, therapeutic/rehabilitative services, and case 
management. 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, as well 
as case management and outreach 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 or other services, such as participation in VA 
outpatient programs or counseling. In addition to case management 
services, for example, to coordinate or address relevant issues related 
to a veteran's homelessness and health as identified in the individual 
treatment plan, services provided by the non-VA community-based 
provider should generally 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.
* * * * *
[FR Doc. 2014-11046 Filed 5-14-14; 8:45 am]