38 USC 1720 - Transfers for nursing home care; adult day health care

U.S Code last checked for updates: Nov 22, 2024

§ 1720.

Transfers for nursing home care; adult day health care

(a)

(1)

Subject to subsection (b) of this section, the Secretary may transfer to a non-Department nursing home, for care at the expense of the United States—

(A)

a veteran—

(i)

who has been furnished care by the Secretary in a facility under the direct jurisdiction of the Secretary; and

(ii)

who the Secretary determines—

(I)

requires a protracted period of nursing home care which can be furnished in the non-Department nursing home; and

(II)

in the case of a veteran who has been furnished hospital care in a facility under the direct jurisdiction of the Secretary, has received maximum benefits from such care; and

(B)

a member of the Armed Forces—

(i)

who has been furnished care in a hospital of the Armed Forces;

(ii)

who the Secretary concerned determines has received maximum benefits from such care but requires a protracted period of nursing home care; and

(iii)

who upon discharge from the Armed Forces will become a veteran.

(2)

The Secretary may transfer a person to a nursing home under this subsection only if the Secretary determines that the cost to the United States of the care of such person in the nursing home will not exceed—

(A)

the amount equal to 45 percent of the cost of care furnished by the Department in a general hospital under the direct jurisdiction of the Secretary (as such cost may be determined annually by the Secretary); or

(B)

the amount equal to 50 percent of such cost, if such higher amount is determined to be necessary by the Secretary (upon the recommendation of the Under Secretary for Health) to provide adequate care.

(3)

Nursing home care may not be furnished under this subsection at the expense of the United States for more than six months in the aggregate in connection with any one transfer except—

(A)

in the case of a veteran—

(i)

who is transferred to a non-Department nursing home from a hospital under the direct jurisdiction of the Secretary; and

(ii)

whose hospitalization was primarily for a service-connected disability;

(B)

in a case in which the nursing home care is required for a service-connected disability; or

(C)

in a case in which, in the judgment of the Secretary, a longer period of nursing home care is warranted.

(4)

A veteran who is furnished care by the Secretary in a hospital or domiciliary facility in Alaska or Hawaii may be furnished nursing home care at the expense of the United States under this subsection even if such hospital or domiciliary facility is not under the direct jurisdiction of the Secretary.

(b)

No veteran may be transferred or admitted to any institution for nursing home care under this section, unless such institution is determined by the Secretary to meet such standards as the Secretary may prescribe. The standards prescribed and any report of inspection of institutions furnishing care to veterans under this section made by or for the Secretary shall, to the extent possible, be made available to all Federal, State, and local agencies charged with the responsibility of licensing or otherwise regulating or inspecting such institutions.

(c)

(1)

(A)

In furnishing nursing home care, adult day health care, or other extended care services under this section, the Secretary may enter into agreements for furnishing such care or services with—

(i)

in the case of the medicare program, a provider of services that has entered into a provider agreement under section 1866(a) of the Social Security Act (42 U.S.C. 1395cc(a));

(ii)

in the case of the medicaid program, a provider participating under a State plan under title XIX of such Act (42 U.S.C. 1396 et seq.); and

(iii)

a provider of services eligible to enter into a contract pursuant to section 1745(a) of this title that is not otherwise described in clause (i) or (ii).

(B)

In entering into an agreement under subparagraph (A) with a provider of services described in clause (i) of that subparagraph or a provider described in clause (ii) of that subparagraph, the Secretary may use the procedures available for entering into provider agreements under section 1866(a) of the Social Security Act.

(2)

In applying the provisions of section 6704(a) of title 41 with respect to any contract entered into under this section to provide nursing home care of veterans, the payment of wages not less than those specified in section 6(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(b)) shall be deemed to constitute compliance with such provisions.

(d)

(1)

Subject to subsection (b) of this section, the Secretary may authorize for any veteran requiring nursing home care for a service-connected disability direct admission for such care at the expense of the United States to any non-Department nursing home. The Secretary may also authorize a direct admission to such a nursing home for nursing home care for any veteran who has been discharged from a hospital under the direct jurisdiction of the Secretary and who is currently receiving medical services as part of home health services from the Department.

(2)

Direct admission authorized by paragraph (1) of this subsection may be authorized upon determination of need therefor—

(A)

by a physician employed by the Department; or

(B)

in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement,

based on an examination by such physician.

(3)

The amount which may be paid for such care and the length of care available under this subsection shall be the same as authorized under subsection (a) of this section.

(e)

(1)

The cost of intermediate care for purposes of payment by the United States pursuant to subsection (a)(2)(B) of this section shall be determined by the Secretary except that the rate of reimbursement shall be commensurately less than that provided for nursing home care.

(2)

For the purposes of this section, the term “non-Department nursing home” means a public or private institution not under the direct jurisdiction of the Secretary which furnishes nursing home care.

(f)

(1)

(A)

The Secretary may furnish adult day health care services to a veteran enrolled under section 1705(a) of this title who would otherwise require nursing home care.

(B)

The Secretary may provide in-kind assistance (through the services of Department employees and the sharing of other Department resources) to a facility furnishing care to veterans under subparagraph (A) of this paragraph. Any such in-kind assistance shall be provided under a contract or agreement between the Secretary and the facility concerned. The Secretary may provide such assistance only for use solely in the furnishing of adult day health care and only if, under such contract or agreement, the Department receives reimbursement for the full cost of such assistance, including the cost of services and supplies and normal depreciation and amortization of equipment. Such reimbursement may be made by reduction in the charges to the United States or by payment to the United States. Any funds received through such reimbursement shall be credited to funds allotted to the Department facility that provided the assistance.

(2)

The Secretary may conduct, at facilities over which the Secretary has direct jurisdiction, programs for the furnishing of adult day health care to veterans who are eligible for such care under paragraph (1) of this subsection, except that necessary travel and incidental expenses (or transportation in lieu thereof) may be furnished under such a program only under the terms and conditions set forth in section 111 of this title. The furnishing of care under any such program shall be subject to the limitations that are applicable to the duration of adult day health care furnished under paragraph (1) of this subsection.

(g)

The Secretary may contract with appropriate entities to provide specialized residential care and rehabilitation services to a veteran of Operation Enduring Freedom or Operation Iraqi Freedom who the Secretary determines suffers from a traumatic brain injury, has an accumulation of deficits in activities of daily living and instrumental activities of daily living, and because of these deficits, would otherwise require admission to a nursing home even though such care would generally exceed the veteran’s nursing needs.

(h)

(1)

During the five-year period beginning on the date of the enactment of the Joseph Maxwell Cleland and Robert Joseph Dole Memorial Veterans Benefits and Health Care Improvement Act of 2022, and subject to paragraph (3)—

(A)

at the request of a veteran for whom the Secretary is required to provide nursing home care under section 1710A of this title, the Secretary may place the veteran in a medical foster home that meets Department standards, at the expense of the United States, pursuant to a contract, agreement, or other arrangement entered into between the Secretary and the medical foster home for such purpose; and

(B)

the Secretary may pay for care of a veteran placed in a medical foster home before such date of enactment, if the home meets Department standards, pursuant to a contract, agreement, or other arrangement entered into between the Secretary and the medical foster home for such purpose.

(2)

A veteran on whose behalf the Secretary pays for care in a medical foster home under paragraph (1) shall agree, as a condition of such payment, to accept home health services furnished by the Secretary under section 1717 of this title.

(3)

In any year, not more than a daily average of 900 veterans receiving care in a medical foster home, whether placed before, on, or after the date of the enactment of the Joseph Maxwell Cleland and Robert Joseph Dole Memorial Veterans Benefits and Health Care Improvement Act of 2022, may have their care covered at the expense of the United States under paragraph (1).

(4)

The prohibition under section 1730(b)(3) of this title shall not apply to a veteran whose care is covered at the expense of the United States under paragraph (1).

(5)

In this subsection, the term “medical foster home” means a home designed to provide non-institutional, long-term, supportive care for veterans who are unable to live independently and prefer a family setting.

(Added Pub. L. 88–450, § 2(a), Aug. 19, 1964, 78 Stat. 500, § 620; amended Pub. L. 90–429, July 26, 1968, 82 Stat. 446; Pub. L. 90–612, §§ 1, 3, Oct. 21, 1968, 82 Stat. 1202; Pub. L. 91–101, Oct. 30, 1969, 83 Stat. 167; Pub. L. 93–82, title I, § 104, Aug. 2, 1973, 87 Stat. 182; Pub. L. 94–581, title I, § 106, title II, §§ 202(h), 210(a)(7), Oct. 21, 1976, 90 Stat. 2847, 2856, 2863; Pub. L. 97–295, § 4(19), Oct. 12, 1982, 96 Stat. 1306; Pub. L. 98–160, title I, § 103(a)(1), (2), Nov. 21, 1983, 97 Stat. 995; Pub. L. 99–166, title I, § 108(a)–(c), Dec. 3, 1985, 99 Stat. 946, 947; Pub. L. 99–272, title XIX, § 19011(d)(5), Apr. 7, 1986, 100 Stat. 379; Pub. L. 100–322, title I, §§ 103(b), 111(a), May 20, 1988, 102 Stat. 493, 499; renumbered § 1720 and amended Pub. L. 102–83, §§ 4(a)(2)(A)(ii), (3)–(5), (b)(1), (2)(E), 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 403–406; Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 104–262, title I, § 101(d)(8), Oct. 9, 1996, 110 Stat. 3180; Pub. L. 105–114, title IV, § 402(c), Nov. 21, 1997, 111 Stat. 2294; Pub. L. 106–117, title I, § 101(d), Nov. 30, 1999, 113 Stat. 1549; Pub. L. 108–170, title I, § 105, Dec. 6, 2003, 117 Stat. 2045; Pub. L. 111–163, title V, § 507, May 5, 2010, 124 Stat. 1161; Pub. L. 111–350, § 5(j)(1), Jan. 4, 2011, 124 Stat. 3850; Pub. L. 112–154, title I, § 105(b), Aug. 6, 2012, 126 Stat. 1170; Pub. L. 117–328, div. U, title I, § 165(a)(1), Dec. 29, 2022, 136 Stat. 5431.)

cite as: 38 USC 1720