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VA OGC RULING on Spina Bifida Program

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JUNE 2013 VA Office of General Counsel Ruling on VA Spina Bifida Program Benefits posted in honor of Agent Orange Birth Defect Children Honey Sue Newby and Amie Frost

 

Department of Memorandum Veterans Affairs
Date: June 13, 2013 VAOPGCADV 5-2013
From: General Counsel (023)
Subj: Health Care for Spina Bifida Beneficiaries
To: Chief Business Officer (10NB)

 

QUESTIONS PRESENTED:

Does VA have authority to ………………………………

 

QUESTIONS PRESENTED:

Does VA have authority to provide health care for children of certain Vietnam Veterans who have certain forms of spina bifida and who live in assisted living facilities or in residential group homes administered by a person or entity without medical, nursing, or other health-related training?
Does VA have authority to provide the following services for children of certain Vietnam Veterans who have certain forms of spina bifida: assisted-living and residential-group-home arrangements, custodial care, long-term care, the services of personal attendants and caregivers, day care (child/adult), and companion services?

HELD:
1. VA must provide needed “home care,” as defined in 38 USC 1803(c)(3) and in 38 USC 17.900, to children of certain Vietnam Veterans whose home or place of residence is in a residential group home or in an assisted-living facility. 2. VA may not provide assisted-living and residential-group-home arrangements to spina bifida beneficiaries. 3. VA must provide needed long-term care for spina bifida beneficiaries to the extent the particular type of long-term care is included in the definition of “health-care” in 38 USC 1803(c)(1) and 38 CFR 17.900. 4. VA must provide spina bifida beneficiaries with needed homemaker and home health aide services (including custodial care) in their “home or other place of residence.” 5. VA must provide needed personal attendant and companion services for spina bifida beneficiaries only to the extent that these services are limited to health-related services furnished in the child’s horne or other place of residence.
2,
Under Secretary for Health (10B2A)
6, VA must provide needed caregiver services to spina bifida beneficiaries if the services are health-related services that are furnished in the child’s home or other place of residence, 7, VA must provide needed day care to spina bifida beneficiaries if VA determines that the day care provides “care and treatment” or, as part of respite care, if it will help the beneficiaries continue residing in their private residence,
DISCUSSION:
1, You have requested our opinion as to whether VA is authorized under 38 USC 1803 to provide health care in assisted living facilities and in residential group homes administered by a person or entity without medical, nursing, or other health-related training, You have also asked whether VA is authorized under 38 USC 1803 to provide the following services to children of certain Vietnam Veterans who have certain forms of spina bifida: assisted-living and residential-group-home arrangements, custodial services, long term care, the services of personal attendants and caregivers, day care (child/adult), and companion services,
2, VA is required to provide “health care” to children of certain Veterans who served in Vietnam and who suffer from all forms of spina bifida except spina bifida occulta (hereafter referred to as spina bifida beneficiaries), 38 USC 1803(a), 38 CFR 17,901(a), Section 1803 defines the term “health care” as follows:
The term “health care”-(A) means home care, hospital care, nursing home care, outpatient care, preventive care, habilitative and rehabilitative care, case management, and respite care; and (8) includes-(i) the training of appropriate members of a child’s family or
household in the care of the child; and
(ii) the provision of such pharmaceuticals, supplies, equipment, devices, appliances, assistive technology, direct transportation costs to and from approved sources of health care, and other materials as the Secretary determines necessary,
38 USC 1803(c)(1), VA regulations define “health care” for purposes of this program as follows:
Health care means home care, hospital care, nursing home care, outpatient care, preventive care, habilitative and rehabilitative care, case management, and respite care; and includes the training of
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Under Secretary for Health (10B2A)
appropriate members of a child’s family or household in the care of the child; and the provision of such pharmaceuticals, supplies (including continence-related supplies such as catheters, pads, and diapers), equipment (including durable medical equipment), devices, appliances, assistive technology, direct transportation costs to and from approved health care providers (including any necessary costs for meals and lodging en route, and accompaniment by an attendant or attendants), and other materials as the Secretary determines necessary.
38 C.F.R. 17.900. Because VA is an Executive branch agency, it is “a creature of statute, having only those powers expressly granted to it by Congress or included by necessary implication from the Congressional grant.” Soriano v. U.S., 494 F.2d 681, 683 (9th Cir. 1974). Congress has authorized VA to provide only “health care” as defined in section 1803 to spina bifida beneficiaries Congress has not authorized VA to provide these beneficiaries with care or services that are not included in the definition of “health care.”
3. Provision of “health care” is subject to certain limitations set forth in VA regulations. One limitation is the regulatory requirement that VA must determine that the child needs the health care:
VA will provide a Vietnam veteran or veteran with covered service in Korea’s child who has been determined under § 3.814 or § 3.815 of this title to suffer from spina bifida with health care as the Secretary determines is needed.
38 CFR 17.901 (a) 1
I Other regulatory limitations include the requirement that health care not provided directly by VA must be provided by contract with an approved health care provider or by other arrangement with an approved health care provider. 38 CFR 17.901(c). “Approved health care provider” is defined as follows:
Approved health care provider means a health care provider currently approved by the Center for Medicare and Medicaid Services (CMS), Department of Defense TRICARE Program, Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA), Joint Commission on Accreditation of Health Care Organizations (JCAHO), or currently approved for providing health care under a license or certificate issued by a governmental entity with jurisdiction. An entity or individual will be deemed to be an approved health care provider only when acting within the scope of the approval, license, or certificate.
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Under Secretary for Health (10B2A)

4. In 2008, Congress amended section 1803 to delete the requirement that VA provide health care only if “needed by the child for the spina bifida or any disability that is associated with such condition.” See Public Law 110-387, section 408(a) which is codified in 38 USC 1803(a) Section 408(a) thus required VA to provide all needed “health care” to these beneficiaries. In the Public Law, the heading of section 408 was titled “PROVISION OF COMPREHENSIVE HEALTH CARE BY SECRETARY OF VETERANS AFFAIRS TO CHILDREN OF VIETNAM VETERANS BORN WITH SPINA BIFIDA.” “The title of a statute may be used as an aid to construe the statute even though it is not dispositive on the issue of legislative intent.” 1A N. Singer, Sutherland Statutory Construction 18.7 (7th ed. 2009). Because this title was to the amendment of section 1803 that removed the restriction on providing health care to treat only spina bifida and disabilities associated with spina bifida, the reference to “comprehensive health care” may be used to construe that amendment. The obvious interpretation is that Congress intended to require VA to provide “health care” to these beneficiaries for all their disabilities and diseases, not simply those related to their spina bifida. The title to section 408, however, cannot be used to construe other provisions in section 1803 that were not amended by section 408, including the definition of “health care.” That definition does not use the word “comprehensive” and, as discussed in this opinion, that definition, while expansive, is not “comprehensive.” The title to section 408 thus cannot be construed to override or expand section 1803’s definition of “health care.”
Assisted- Living Facilities and Residential Group Homes Administered by a Person or Entity without Medical, Nursing, or other Health-Related Training
5. You ask whether VA is authorized to provide health care in assisted-living facilities and in residential group homes administered by a person or entity without medical, nursing, or other health related training. The dictionary defines “assisted living” as:
A living arrangement in which people with special needs, especially seniors with disabilities, reside in a facility that provides help with everyday tasks such as bathing, dressing, and taking medication.
American Heritage Dictionary of the English Language 109 (4th ed. 2000). The dictionary defines “group home” as:
38 CFR 17.900. See also the exclusions listed in 38 CFR 17.903(b)(1)-(6).
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Under Secretary for Health (10B2A)

A small supervised residential facility, as for mentally ill people or wards of the state, in which residents typically participate in daily tasks and are often free to come and go on a voluntary basis.
American Heritage Dictionary of the English Language 776 (4th ed. 2000)
6. As noted above, the definition of “health care” includes “home care.” The law defines “home care” as follows:
The term “home care” means outpatient care, habilitative and rehabilitative care, preventive health services, and health-related services furnished to an individual in the individual’s home or other place of residence.
38 USC 1803(c)(3). The law defines the term “habilitative and rehabilitative care” as follows:
The term “habilitative and rehabilitative care” means such professional, counseling, and guidance services and treatment programs (other than vocational training under section 1804 of this title) as are necessary to develop, maintain, or restore, to the maximum extent practicable, the functioning of a disabled person.
38 USC 1803(c)(8). VA’s regulations define “home care” as follows:
Home care means medical care, habilitative and rehabilitative care, preventive health services, and health-related services furnished to a child in the child’s home or other place of residence.
38 CFR 17.900. VA’s regulations define “habilitative and rehabilitative care” as follows:
Habilitative and rehabilitative care means such professional, counseling, and guidance services and such treatment programs (other than vocational training under 38 U.S.C. 1804 or 1814) as are necessary to develop, maintain, or restore, to the maximum extent practicable, the functioning of a disabled person.
Id. If a spina bifida beneficiary is in an assisted-living facility or residential group home, we believe that this would be the beneficiary’s “home or other place of residence.” VA would thus be required to provide “home care” in that facility: ie., VA would be required to provide needed outpatient care, habilitative and rehabilitative care, preventive health services, and health-related services to the spina bifida beneficiaries in these facilities.
6.
Under Secretary for Health (10B2A)
Assisted-living and Residential-group-home Arrangements
7. In addition to asking whether VA must provide services in assisted-living facilities and in residential group homes, you asked whether VA must provide spina bifida beneficiaries with assisted-living and residential-group-home arrangements. The definition of “health care” includes services such as hospital and nursing home care but does not include assisted-living and residentialgroup-home arrangements. As noted above, VA must provide “home care” to spina bifida beneficiaries in their homes or other places of residence, but the definition of “home care” does not include the provision of the home or other place of residence itself as part of home care. According to the maxim, expressio unius est exclusio alterius, where things to which a statute refers are designated, there is an inference that all omissions should be understood as exclusions. 2A N. Singer, Sutherland Statutory Construction 47.23 (7th ed. 2009). Applying the maxim to the definition of “health care” in section 1803, we interpret this definition to exclude assisted-living and residential-group-home arrangements. Because assisted-living and residential-group-home arrangements are not included in the definition of “health care,” VA may not provide them to spina bifida beneficiaries.
Long-term Care
8. You also asked whether VA may provide long-term care to spina bifida beneficiaries. Long-term care is a spectrum of noninstitutional and institutional services ranging from home telehealth at the least restrictive end to nursing home care at the most restrictive end.2 The definition of “health care” includes two types of care that for some patients may be part of their long-term care: “nursing home care” and “respite care.” 38 USC 1803(c)(1)(A); 38 CFR 17.900. So, VA must provide these types of long-term care to spina bifida beneficiaries. Other types of long-term care may not meet the definition of health care for purposes of the spina bifida program. VA needs to examine the definition of health care to determine if it must provide the various types of long-term care. In sum, some types of long-term care must be provided to spina bifida beneficiaries,
2 Long-term care is a variety of services that includes medical and non-medical care to people who have a chronic illness or disability. Long-term care helps meet health or personal needs. Most long-term care is to assist people with support services such as activities of daily living like dressing, bathing, and using the bathroom. Long-term care can be provided at home, in the community, in assisted living or in nursing homes. It is important to remember that you may need long-term care at any age. Medicare.gov: The Official U.S. Government Site for Medicare, http://www.medicare.gov/longtermcare/static/homeasp (last viewed May 21,2013).
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Under Secretary for Health (10B2A)
and other types may not be provided if they do not meet the definition of “health care.” Custodial Care
9. VA statutes and regulations do not use or define the term “custodial care.” You advise, however, that the health-care industry defines “custodial care” as non-medical care that helps an individual with his or her activities of daily living, preparation of special diets, and self-administration of medication not requiring constant attention of medical personnel. You also advise that providers of custodial care are not required to undergo medical training.
10. Although section 1803 does not use the term “custodial care,” we have examined the definition of health care in that section to see if custodial care could be considered “health care.” As noted above, the statutory and regulatory definitions of “health care” include “home care” which in turn is defined in the statute and regulation to include “health-related services furnished to an individual in the individual’s home or other place of residence.” 38 USC 1803(c)(8); see 38 CFR 17.900. VA statutes and regulations do not otherwise define “health-related services” for purposes of section 1803. However, VA has interpreted the term “health-related services in noninstitutional settings” for purposes of a different section of title 38, United States Code, i.e., 38 USC 1720C. Section 1720C(a) provides in pertinent part:
The Secretary may furnish medical, rehabilitative, and healthrelated services in noninstitutional settings for veterans who are eligible under this chapter for, and are in need of, nursing horne care.
In addition, section 1720C(b)(1) provides:
Under the program conducted pursuant to subsection (a), the Secretary shall (A) furnish appropriate health-related services solely through contracts with appropriate public and private agencies that provide such services ….
VA has interpreted the term “health-related services” in section 1720C to authorize providing homemaker and home health aide services.
11. Currently, VHA policy makes clear that the basis for VA’s provision of homemaker and home health aide services to Veterans is the authority in section 1720C. Paragraph 7b of VHA Handbook 1140.6 provides in part:
H/HHA [Homemaker and/or Home Health Aide Services] A veteran is eligible to receive H/HHA if the veteran is enrolled in the VA
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Under Secretary for Health (10B2A)
health care system or not required to be enrolled under 38 CFR 17,37, and is in need of nursing home care, VA must offer H/HHA to a veteran if VA determines that the veteran needs this care, VHA uses the array of home and community-based care services as an alternative to nursing home care, in accordance with the authorizing statute (see Title 38 United States Code (U.S.C.) 1720C),
See also VAOPGCADV 6-2004 (“VA’s authority to provide services under the H/HHA program is section 1720C of title 38, United States Code,”)
12, VHA has defined H/HHA in part as follows:
H/HHA services are personal care and related support services that enable frail or disabled veterans to live at home.. (1) Homemaker services may include assistance with Instrumental Activities of Daily Living (IADLs), such as: light housekeeping, necessary to maintain a safe and sanitary environment in the areas of the home used by the patient; laundering, essential to the comfort and cleanliness of the patient; meal preparation; grocery shopping; escorting the patient to necessary appointments; and ensuring patient safety, (2) H/HHA services may include assistance with Activities of Daily Living (ADLs), such as: bathing; toileting; eating; dressing; aid in ambulating or transfers; active and passive exercises; assistance with medical equipment; routine health monitoring; and, specific household tasks to maintain environmental safety for the patient.
VHA Handbook 1140,3, paragraph 5c, We believe this definition includes all of the services provided as part of custodial care under the definition set forth above,
13, VA’s interpretation of “health-related services” was acknowledged in a 1995 Congressional Report which included the following discussion:
Nursing Home Care Alternatives,-In response to changing trends in the delivery of health care services, the VA under P,L, 101-366 was authorized to conduct “a pilot program to furnish medical rehabilitation and health-related services in non-institutional settings,” Extension of this program through December 31, 1997 would permit the VA to continue providing homemaker and home health aide services to certain eligible veterans.
HR Rep, No, 104-275 at 4-5 (1995),
9.
Under Secretary for Health (10B2A)
14. We note that under section 1803, VA must provide “health-related services” to spina bifida beneficiaries only in their homes or other places of residence while, under section 1720C, VA may furnish “health-related services” to Veterans in “noninstitutional settings.” As a result, VA may provide services under section 1720C that would not be provided in the Veteran’s residence such as buying groceries in a food store. VA could not provide such grocery shopping to spina bifida beneficiaries if it would be provided outside the beneficiary’s home or other place of residence.
15. When section 1803 was enacted in 1996 and amended in 2008, Congress would have been aware of how VA had interpreted the term “health-related services” for purposes of section 1720C. Except for the limitation noted above on where these services may be provided, there is nothing in the legislative history of section 1803 that indicates that Congress intended that “health-related services” should be defined differently for purposes of spina bifida beneficiaries. We see no legal basis for VA to have different definitions of “health-related services” for Veterans and spina bifida beneficiaries. VA must interpret the term “health-related services” in section 1803 as having the same meaning as under section 1720C. VA thus must provide “custodial care” to spina bifida beneficiaries. To avoid confusion as to what services are “health-related”, we recommend that VA define the term “health-related services” by regulation.
16. We note that VHA’s Health Administration Center has published a document called the Spina Bifida Health Care Benefits Program Handbook. On page 8, it states that “homemaker services” are not covered. This exclusion of homemaker services is not contained in a VA regulation and, as discussed above, is contrary to our interpretation of the statute and regulations governing the spina bifida program. We recommend that VHA examine the Handbook and ensure that it is consistent with VA authorities.
Personal Attendants and Companion Services
17. Personal attendants provide assistance to disabled individuals in their home and community. Companion services assist disabled individuals with activities like shopping, household chores, and transportation in the community. Some of the assistance provided, such as meal preparation and bathing, would be “health-related services.” However, some services may not be. For example, helping an individual with personal correspondence or paying bills should not be considered “health-related services.” Moreover, under the law, VA may only provide “health-related services … in the child’s home or other place of residence,” and not in the community. Services such as shopping and transporting the individual in the community could not be provided. We thus do not believe that VA could provide services of a personal attendant or companion
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Under Secretary for Health (10B2A)
services unless these services are limited to health-related services furnished in the child’s home or other place of residence. 3
Caregivers
18. Caregivers are usually relatives or friends of a disabled individual who help the individual with activities of daily living. If a caregiver only helps with activities of daily living, the caregiver’s services would be considered “health-related services” to the extent they are provided in the child’s home or other place of residence and meet the definitions of covered homemaker and home-health aide services described above. VA thus must provide these services. VA will need to examine each request for caregiver services to ensure that the services to be provided would be “health-related services, furnished … in the child’s home or other place of residence.” 4
Day Care (child/adult)
19. A dictionary defines “day care” as follows:
Provision of daytime training, supervision, recreation, and often medical services for children of preschool age, for the disabled, or for the elderly.
American Heritage Dictionary of the English Language 464 (4th ed. 2000). Section 1803’s definition of “outpatient care” provides:
The term “outpatient care” means care and treatment of a disability, and preventive health services, furnished to an individual other than hospital care or nursing home care.
38 USC 1803(c)(6). The definition of “outpatient care” in the VA regulation states:
Outpatient care means care and treatment, including preventive health services, furnished to a child other than hospital care or nursing home care.
3 As discussed above, VA contracts or other arrangements for personal attendants and companion services would need to be with “approved health care providers.” 4 As discussed above, VA contracts or other arrangements for the services of caregivers would need to be with “approved health care providers.”
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Under Secretary for Health (10B2A)
38 CFR 17.900. Day care would be included in the definition of “outpatient care” as defined by the VA regulation if VA determines that the day care program in question provides “care and treatment” We recommend that VA establish criteria in regulations for determining whether different day care programs provide “care and treatment.” This may entail providing a definition of “care and treatment” for purposes of the spina bifida program. Day care must also be provided if it meets the definition of “respite care.” The definition of “health care” includes “respite care.” 38 USC 1803(c)(1). VA’s regulation defines “respite care” as:
Respite care means care furnished by an approved health care provider on an intermittent basis for a limited period to an individual who resides primarily in a private residence when such care will help the individual continue residing in such private residence.
38 CFR 17.900. VA could determine that providing a spina bifida beneficiary with day care would help the beneficiary continue residing in a private residence. If so, VA would be required to provide day care for a limited period under the authority to provide respite care.

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