38 USC § 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)); and

(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.).

(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.

Source

(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.)

References in Text

The Social Security Act, referred to in subsec. (c)(1)(A)(ii), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Title XIX of the Act is classified generally to subchapter XIX (§ 1396 et seq.) of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

Prior Provisions

Prior section 1720 was renumbered section 3520 of this title.

Amendments

2011—Subsec. (c)(2). Pub. L. 111–350substituted “section 6704 (a) of title 41” for “section 2(b)(1) of the Service Contract Act of 1965 (41 U.S.C. 351(b)(1))”.

2010—Subsec. (g). Pub. L. 111–163added subsec. (g).

2003—Subsec. (c). Pub. L. 108–170, § 105(a), designated existing provisions as par. (2) and added par. (1).

Subsec. (f)(1)(B). Pub. L. 108–170, § 105(b), inserted “or agreement” after “contract” in two places.

1999—Subsec. (f)(1)(A). Pub. L. 106–117amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “The Secretary is authorized to furnish adult day health care as provided for in this subsection. For the purpose only of authorizing the furnishing of such care and specifying the terms and conditions under which it may be furnished to veterans needing such care—

“(i) references to ‘nursing home care’ in subsections (a) through (d) of this section shall be deemed to be references to ‘adult day health care’; and

“(ii) a veteran who is eligible for medical services under paragraph (1), (2), or (3) of section 1710 (a) of this title shall be deemed to be a veteran described in subsection (a)(1) of this section.”

1997—Subsec. (a)(1)(A)(i). Pub. L. 105–114substituted “care” for “hospital care, nursing home care, or domiciliary care”.

1996—Subsec. (f)(1)(A)(ii). Pub. L. 104–262, § 101(d)(8)(A), substituted “paragraph (1), (2), or (3) of section 1710 (a)” for “section 1712 (a)(1)(B)”.

Subsec. (f)(3). Pub. L. 104–262, § 101(d)(8)(B), struck out par. (3) which read as follows: “Adult day health care may not be furnished under this section after September 30, 1991.”

1992—Subsec. (a)(2)(B). Pub. L. 102–405substituted “Under Secretary for Health” for “Chief Medical Director”.

1991—Pub. L. 102–83, § 5(a), renumbered section 620 of this title as this section.

Subsec. (a). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” wherever appearing in par. (1) introductory provisions and subpar. (A) and pars. (2) to (4).

Pub. L. 102–83, § 4(a)(5), substituted “non-Department” for “non-Veterans’ Administration” wherever appearing in pars. (1) and (3)(A)(i).

Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” in par. (2)(A).

Subsec. (b). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” wherever appearing.

Subsec. (d)(1). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” wherever appearing.

Pub. L. 102–83, § 4(a)(5), substituted “non-Department” for “non-Veterans’ Administration”.

Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration”.

Subsec. (d)(2)(A). Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration”.

Subsec. (e). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in pars. (1) and (2).

Pub. L. 102–83, § 4(a)(5), substituted “non-Department” for “non-Veterans’ Administration” in par. (2).

Subsec. (f)(1)(A). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in introductory provisions.

Subsec. (f)(1)(A)(ii). Pub. L. 102–83, § 5(c)(1), substituted “1712(a)(1)(B)” for “612(a)(1)(B)”.

Subsec. (f)(1)(B). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” before “may” in two places.

Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” wherever appearing.

Pub. L. 102–83, § 4(a)(2)(A)(ii), substituted “Secretary” for “Veterans’ Administration” in second sentence.

Subsec. (f)(2). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in two places.

1988—Subsec. (e)(1). Pub. L. 100–322, § 103(b), struck out “For the purposes of this section, the term ‘nursing home care’ includes intermediate care, as determined by the Administrator in accordance with regulations which the Administrator shall prescribe.” at beginning and struck out “(as defined in section 101 (28) of this title)” after “provided for nursing home care”.

Subsec. (f)(3). Pub. L. 100–322, § 111(a), substituted “September 30, 1991” for “September 30, 1988”.

1986—Subsec. (f)(1)(A)(ii). Pub. L. 99–272substituted “612(a)(1)(B)” for “612(f)(2)”.

1985—Subsec. (a). Pub. L. 99–166, § 108(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Subject to subsection (b) and except as provided in subsection (e) of this section, the Administrator may transfer—

“(1) Any veteran who has been furnished care by the Administrator in a hospital under the direct jurisdiction of the Administrator, and

“(2) Any person (A) who has been furnished care in any hospital of any of the Armed Forces, (B) who the appropriate Secretary concerned has determined has received maximum hospital benefits but requires a protracted period of nursing home care, and (C) who upon discharge therefrom will become a veteran

to any public or private institution not under the jurisdiction of the Administrator which furnishes nursing home care, for care at the expense of the United States, only if the Administrator determines that—

“(i) such veteran has received maximum benefits from such care in such hospital, but will require a protracted period of nursing home care which can be furnished in such institution, and

“(ii) the cost of such nursing home care in such institution will not exceed 45 percent of the cost of care furnished by the Veterans’ Administration in a general hospital under the direct and exclusive jurisdiction of the Administrator, as such cost may be determined annually by the Administrator, or not to exceed 50 percent of such cost where determined necessary by the Administrator, upon recommendation of the Chief Medical Director, to provide adequate care.

Nursing home care may not be furnished pursuant to this section at the expense of the United States for more than six months in the aggregate in connection with any one transfer, except (I) in the case of the veteran whose hospitalization was primarily for a service-connected disability, or (II) where in the judgment of the Administrator a longer period is warranted in the case of any other veteran. Any veteran who is furnished care by the Administrator in a hospital in Alaska or Hawaii may be furnished nursing home care under the provisions of this section even if such hospital is not under the direct jurisdiction of the Administrator.”

Subsec. (d). Pub. L. 99–166, § 108(b), designated existing first sentence as par. (1), substituted “to any non-Veterans’ Administration nursing home” for “to any public or private institution not under the jurisdiction of the Administrator which furnishes nursing home care”, inserted “The Administrator 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 Administrator and who is currently receiving medical services as part of home health services from the Veterans’ Administration.”, substituted par. (2) for “Such admission may be authorized upon determination of need therefor by a physician employed by the Veterans’ Administration or, in areas where no such physician is available, carrying out such function under contract or fee arrangement based on an examination by such physician.”, and designated existing last sentence as par. (3).

Subsec. (e). Pub. L. 99–166, § 108(c), designated existing provisions as par. (1), substituted “subsection (a)(2)(B)” for “subsection (a)(ii)” in second sentence, and added par. (2).

1983—Pub. L. 98–160, § 103(a)(2), inserted “; adult day health care” in section catchline.

Subsec. (f). Pub. L. 98–160, § 103(a)(1), added subsec. (f).

1982—Subsec. (a)(ii)Pub. L. 97–295, § 4(19)(A), substituted “percent” for “per centum” wherever appearing.

Subsec. (c). Pub. L. 97–295, § 4(19)(B), inserted “(41 U.S.C. 351(b)(1))” after “the Service Contract Act of 1965” and substituted “(29 U.S.C. 206 (b))” for “, as amended,”.

1976—Subsec. (a). Pub. L. 94–581, §§ 106(1)–(3), 202(h), inserted “and except as provided in subsection (e)” after “subsection (b)” in provisions preceding par. (1), substituted “direct jurisdiction” for “direct and exclusive jurisdiction” in par. (1), substituted “45 per centum” for “40 per centum” and “annually” for “from time to time” in cl. (ii) and inserted “, or not to exceed 50 per centum of such cost where determined necessary by the Administrator, upon recommendation of the Chief Medical Director, to provide adequate care” at the end thereof, and substituted “direct jurisdiction” for “direct and exclusive jurisdiction” in provisions following cl. (ii).

Subsec. (b). Pub. L. 94–581, § 210(a)(7), substituted “such standards as the Administrator may prescribe” for “such standards as he may prescribe”.

Subsec. (e). Pub. L. 94–581, § 106(4), added subsec. (e).

1973—Subsec. (a). Pub. L. 93–82, § 104(a), (b), designated cls. (1) and (2) as (i) and (ii), respectively, and in provisions preceding cl. (i) as so designated, substituted authority of the Administrator to transfer veterans and other persons under pars. (1) and (2), for authority of the Administrator to transfer veterans who have been furnished care by the Administrator in a hospital under the direct and exclusive jurisdiction of the Administrator, to any public or private institution not under the jurisdiction of the Administrator which furnishes nursing home care for care at the expense of the United States, and in the provisions following cl. (ii) as so designated, substituted designations (I) and (II) for designations (A) and (B).

Subsec. (b). Pub. L. 93–82, § 104(c), inserted provisions relating to the admissions of veterans to institutions for nursing home care and for the furnishing of standards and reports to Federal, State and local agencies charged with the responsibility of licensing or otherwise regulating or inspecting such institutions.

Subsec. (d). Pub. L. 93–82, § 104(d), added subsec. (d).

1969—Subsec. (a). Pub. L. 91–101inserted provision authorizing the furnishing of nursing home care for more than six months in the aggregate in connection with any one transfer in the case of a veteran whose hospitalization was primarily for a service-connected disability.

1968—Subsec. (a). Pub. L. 90–612, § 1, authorized furnishing of nursing home care to veterans who are being furnished care by the Administrator in hospitals in Alaska or Hawaii even if the hospitals involved are not under the direct and exclusive jurisdiction of the Administrator.

Subsec. (a)(2). Pub. L. 90–429substituted “40 per centum” for “one-third”.

Subsec. (c). Pub. L. 90–612, § 3, added subsec. (c).

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–272applicable to hospital care, nursing home care, and medical services furnished on or after July 1, 1986, see section 19011(f) ofPub. L. 99–272, set out as a note under section 1710 of this title.

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–581effective Oct. 21, 1976, see section 211 ofPub. L. 94–581, set out as a note under section 111 of this title.

Effective Date of 1973 Amendment

Amendment by Pub. L. 93–82effective Sept. 1, 1973, see section 501 ofPub. L. 93–82, set out as a note under section 1701 of this title.

Comparison Study Between Adult Day Health Care and Nursing Home Care

Section 111(b), (c) ofPub. L. 100–322directed Administrator to conduct a study of medical efficacy and cost-effectiveness of furnishing adult day health care under subsec. (f) of this section as an alternative to nursing home care and the comparative advantages and disadvantages of providing such care through facilities that are not under direct jurisdiction of Administrator and through facilities that are under direct jurisdiction of Administrator, with Administrator to submit to Committees on Veterans’ Affairs of Senate and House of Representatives an interim report on the study not later than Feb. 1, 1988, a final report on such study not later than Feb. 1, 1991.

Section 103(b), (c) ofPub. L. 98–160, which provided for a study and report, not later than Feb. 1, 1988, of the medical efficacy and cost-effectiveness of furnishing adult day health care as an alternative for nursing home care and of the comparative advantages and disadvantages of providing such care in Veterans’ Administration or in other facilities, was repealed by Pub. L. 100–322, title I, § 111(d),May 20, 1988, 102 Stat. 499.