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Iministrator (00).

General Counsel (02).

t: Legal authority to provide nursing home type care.

MAY 7, 1963.

ou may desire to have for the record a comprehensive opinion setting forth sons for the position stated at a recent hearing before the House Comon Veterans' Affairs, that under the general authorization contained in 3, United States Code, you have the legal authority to furnish so-called home type attention and care to eligible veterans requiring such care. he terms "nursing home care" and "attendant care" appear to have come mewhat general usage during the 20th century, particularly in the writings tements of medical and nursing professionals. These terms are unknown veterans' laws and there are no known judicial expressions as the on of these terms. In fact, there are no consistent medical or nursing stated as to the precise meaning of these words. Last year, however, the Medical Director advised that a veteran who requires only nursing home are is not in need of hospitalization.

he basic statute (38 U.S.C. 610) authorizes the Administrator to furnish hospital care or domiciliary care to veterans who meet the stated eligirequirements. While "hospital care" is defined (38 U.S.C. 601(5)) to è medical services, the term is not further defined and no definition of ciliary care" is set forth in the statutes. Section 4 of Public Law 85-857 enacted the present title 38, United States Code, preserved in the Adminthe duties, powers, and functions of the National Home for Disabled eer Soldiers which had been vested in him by the Consolidation Act of 1930. tional homes were taken over by the Veterans' Administration pursuant 1930 act. We have reviewed much of the historical documentation reflecting the ions of the old National Homes for Disabled Volunteer Soldiers, the predeagency, from which was developed the concept of our modern VA domiS. The annual reports of these homes to the Congress contain both cal and narrative information which, logically construed, clearly reflects clusion of members whose needs manifestly were for so-called nursing or ant care. Based upon the reports of the types and kinds of disease or ns at time of entrance and considering the normal effects of advancing articularly of the Civil War veteran members, it seems quite clear that ns were both admitted and retained whose only requirements were for we now refer to as nursing home care.1 We note the separate classification eted members in so-called convalescent barracks as distinguished from receiving care in the hospital facility of the home.2 And, we observe, for le, comments such as those in the 1891-92 reports which show that prowere being advanced to obtain professional nurses to provide personal care ttention theretofore performed by other and presumably more active ers. In any event, the early concept and operation of these homes does pear to have differentiated between degrees, or classification of veterans ng home care or domiciliation. The basic eligibility was merely service d with inability to earn a livelihood with emphasis upon the economic

We understand that prior to 1955 some veterans whose primary needs were endant type care were admitted to our VA domiciliaries, possibly as an wth of similar admissions of an earlier time to the national homes. In 1955 rmination was made administratively to limit the admission criteria for liary care so that, to be admitted, a veteran must be ambulatory as well as feed and clothe himself and perform other self-helps. These requirements mbodied in regulations then promulgated and still in effect. The memorto the Administrator of October 5, 1955, explained the proposed change regulations and expressed the view that the new limitations on domiciliary ould "*** for the first time give to an examining physician a practical to establish whether the facilities of domiciliary or the hospital will best to meet the requirements of the veteran." However, it has not been the ce to admit patients to our hospitals whose sole needs are for attendant type called nursing home care. And, of course, the regulations have precluded admission to the domiciliaries of attendant type cases since 1955. The

rt of the National Soldiers' Home 1891, pp. 69, 170; Report of the Board of Managers of the Home for Disabled Volunteer Soldiers, 1924 (manuscript).

rt of the National Soldiers' Home, 1891-92, pp. 140, 164.

pp. 85, 185; report for 1892, p. 164.

to a domiciliary is the limitation in the current regulation concerning "self-help" which could be changed.

6. In an opinion to the Chief Medical Director of April 9, 1962, dealing with a somewhat related problem involving recognition of State homes, we stated the view that nursing home type patients receiving only incidental medical treatment could be regarded administratively as receiving a form of domiciliary care. And, in a memorandum opinion to the Assistant Deputy Administrator of April 20, 1962, we held that legal authority exists to provide restorative care under the new restoration center plan now being tried out at VA Center, Hines, Ill. This program also involves patients who are classed as having received maximum hospital benefits and are therefore ready for discharge from purely hospital treatment but who may benefit from intensive rehabilitative forms of treatment, along with some therapeutic measures, as a prelude to attempting their restoration and adjustment to normal community living. We stated that the restorative center plan was supported by law and that it was proper, as planned, to view the patients involved as receiving a form of domiciliary care under the statute. It was suggested that while this care might be classified as hospital care in view of the rather definitive types of treatment involved, the statutory term "domiciliary care" was broad enough to comprehend the services furnished by VA in this experimental program.

7. Inherent in the opinion on restorative care is the premise that the language of the law should be liberally construed to cover various forms of institutional care for our sick and disabled veterans. This takes account of the fact that the dividing line between hospital and domiciliary care is blurred and indistinct as applied to some situations which may partake of both. With due regard for the limitations of facilities and staff, this Office has long recognized that reasonable definitions of "domiciliary care" may be adopted administratively. These definitions may in turn yield to reasonable expansions in accordance with changing circumstances and policies, and need not be confined within static limits.

8. We have considered the memorandum opinions of a former General Counsel to the then Deputy Administrator dated June 24 and July 15, 1959. In those opinions it was concluded that the basic statute did not clearly authorize the furnishing of nursing home care, as such. This was on the theory that such care is distinguishable from "hospital care," and it was also indicated that nursing home cases might not properly be considered for domiciliary care. However, the latter indications were more specifically based on the limiting provisions of the regulations governing domiciliary care. To the extent that there are expressions in those memorandums which appear inconsistent with the views and conclusions stated herein, such expressions are modified to accord with this opinion.

9. We therefore conclude that attendant type of nursing home care may legally be furnished by the Veterans' Administration within the scope of the basic statute authorizing domiciliary care provided the regulations are changed to authorize admission of otherwise eligible veterans requiring such attendant type care. Such a change could, consistent with medical concepts, define and provide for the eligibility in VA facilities of several categories of "domiciliary care," including those who can exercise full self-help, as well as those who, in varying degrees, require partial or full attendant type services.

10. There remains the question of legal authority for retention in our hospitals of patients now requiring only attendant care who were originally admitted for definitive hospital treatment, as well as the retention in our domiciliaries of members admitted under the regulatory criteria who can no longer meet the self-help requirements, where such patients or members have reached the point when a discharge would otherwise be in order, except that a proper place cannot be found at the community level to care for them.

As stated, there is ample statutory authority for attendant type care requiring domiciliation within the overall VĂ system. The regulations which presently bar initial admission to some parts of our institutional system do not require a construction that the patient or member properly admitted thereunder must continuously thereafter satisfy all the admission criteria. This is consistent with past practice and is required to avoid the harsh or even cruel results of summary discharges when no provision can be made for the future care and need of such veterans. The program for a complete medical, hospital, and domiciliary program which the Congress intended must necessarily embrace the authority for retention of such persons until suitable community facilities become available. The fact that a particular veteran may happen to be a patient in a VA hospital or a member of a VA domiciliary beyond the point in question does not change the

ion, nor is it necessary to change his nominal classification as a hospital at or a domiciliary member simply because he continues to receive during the ded period some form of attendant type domiciliary care. The statute sarily contemplates that where the Veterans' Administration has properly ed responsibility for the patient or member in the first instance, its legal and responsibility is not fully discharged if the patient is summarily removed as as he is medically considered to have received maximum hospital benefits, ut completion of some suitable arrangements for any indicated further care. To summarize, it is my firm opinion that the existing law supports the ces of the Veterans' Administration in retaining hospital patients or domi- members who have reached the nursing home stage for such time as may quired to make arrangements for their placement in appropriate community ies. It is my further opinion that there is ample statutory authority for ling attendant type or so-called nursing type care to those admitted initially at purpose, providing the regulations are changed to authorize admission he domiciliaries of veterans requiring such care. Whether this should be is a matter of administrative policy.

. TEAGUE of Texas. Mr. Saylor.

ROBERT C. FABLE, Jr.

. SAYLOR. Mr. Chairman, for the purpose of the record, in view e fact that the Administrator has stated that his statement has prepared in response to a letter from the chairman of this come, I would ask unanimous consent that the letter from the chairof the Committee on Veterans' Affairs to the Administrator of ans' Affairs be placed in the record before the Administrator n to make his statement.

he letter referred to appears on pages 141-143.)

. TEAGUE of Texas. Without objection, that will be done.

-. Adair.

·. ADAIR. Mr. Administrator, in these remarks which you have made, you are contemplating service to both service-connected non-service-connected veterans?

. GLEASON. As of now, yes, sir; in our study.

. ADAIR. You would make no distinction between them?

. GLEASON. No, sir. Well, we might have two categories for er recommendations at the time we completed the study, Con

man.

. ADAIR. Could you give us an idea of the proportion of serviceected to non-service-connected veterans presently hospitalized e V.A. system?

. GLEASON. About 30 percent would be service-connected, Con

man.

. ADAIR. Do you have any notion then as to whether or not that figure might apply to nursing homes?

. GLEASON. I would presume that it would apply.

. ADAIR. So we are then thinking in terms of a program which t be directed 30 percent to service-connected and 70 percent to ervice-connected?

. GLEASON. That is correct, sir.

-. ADAIR. Do you have any philosophy or does the administrahave any philosophy as to the obligation of the Federal Governwith respect to nursing home care for non-service-connected ans?

. GLEASON. Congressman, as I mention in my statement here, I believe, is an overall policy that we ourselves must look to. primary obligation, of course, is to the service-connected disabled, whether we get into the nursing home care for the non-service

care for the aged is something that I think would have to be determined following our study.

Mr. ADAIR. Then am I correct in saying that this is a question upon which the Veterans' Administration has an open mind and would want to be guided by the results of this study or pilot program?

Mr. GLEASON. That is a correct statement; yes, sir.

Mr. ADAIR. If such a program is undertaken, do you have any notion as to what, if any, impact it would have upon the general hospital program of the Veterans' Administration?

Mr. GLEASON. At this point I don't, Congressman. I mean, without the advantage of the study, it would be foolhardy for me to make any statement about it.

Mr. ADAIR. Then you would not, I assume, have an answer to the question as to whether or not we would need fewer general hospital beds if we undertook a program of this kind.

Mr. GLEASON. I couldn't answer at this time; no, sir.

Mr. ADAIR. And here again you would want to abide by the results of the study?

Mr. GLEASON. I would want to have the opportunity of the study. Mr. ADAIR. I don't mean to press the point, but do you have any opinion at all upon it, because this might be a factor, I think, in the considerations of the committee? Are we going ahead with the present hospitalization program at its current level, or do you think this might tend to bring it down a little, or even perhaps to increase it? Mr. GLEASON. I am not trying to evade the question at all, Congressman, but I just don't think that we are in a position to make a statement of any type on this subject. With the facts that Congressman Everett and his subcommittee will bring out along with our study of it, between the two I am sure that we could certainly arrive at the desired result when the studies are completed, both by the subcommittee and by ourselves.

Mr. TEAGUE of Texas. Will the gentleman yield?

Mr. ADAIR. Yes.

Mr. TEAGUE of Texas. I think the answer to the question is that the administration is opposed to the legislation that we have pending for nursing care.

Mr. GLEASON. At this time, anyway.

Mr. TEAGUE of Texas. At this time.

Mr. GLEASON. At least until such opportunity will be provided that we have the study completed.

Mr. ADAIR. You seem more certain of that, Mr. Chairman, than the administration.

Mr. GLEASON. No; the chairman is correct, Congressman, that we are opposed to it now, because we don't know what the facts will show in the study, and until we have the study completed, we just don't favor it.

Mr. HALEY. Would the gentleman yield at this point?

Mr. ADAIR. Yes.

Mr. HALEY. In other words, Mr. Administrator, what you are attempting to do here is to carry out the law as it is now written in these various matters, and certainly you wouldn't want to express a personal opinion, because you might be gone tomorrow, too, and your Department, the Veterans' Administration, has its superiors and

have not adopted a policy here, and you would be giving merely personal opinion until you completed this study. Is that correct? . AYRES. Will the gentleman yield?

. HALEY. I haven't got the floor.

. ADAIR. Yes.

. AYRES. While Mr. Gleason may be gone, Mr. Driver will be

. ADAIR. Mr. Chairman, if I may. In your remarks, Mr. Adtrator, you made reference to Hill-Burton funds.

. GLEASON. Yes, sir.

. ADAIR. This leads me to a question. If a program of this sort d be undertaken, do you envisage or contemplate a situation in the Veterans' Administration would be dependent upon another y of Government, to wit, the Department of Health, Education, Velfare, for any portion of its program?

. GLEASON. This we wouldn't look upon as necessarily a portion e Veterans' Administration program because this would be, we I hope, returning the veteran to his own community and the unity type of living within a nursing home where people of walks of life would be in association with him. From at least of our preliminary discussions, it is believed that by returning Hividual to his home or within his own community brings greater

S.

. ADAIR. My point, Mr. Gleason, is, what is your attitude with et to the possibility of a program in which the Department of h, Education, and Welfare might at least exercise some controls a program of the Veterans' Administration?

. GLEASON. We wouldn't be in favor of HEW exercising any ols over any part of our program. This we don't look upon, ver, Congressman, as part of our program if the individual is ned to his own community.

ADAIR. Then it would be your philosophy that affairs relating veteran, and I am speaking now particularly of hospitalization rsing homes, should be the exclusive province of the Veterans' nistration so long as the Federal Government is involved, and he gets back to his home community?

GLEASON. On hospitalization, yes, Congressman. On nursing , I can't answer that because we want to wait and see what the provides.

ADAIR. Do you anticipate any danger of such a thing as this which I have just questioned you?

GLEASON. No, sir, we don't.

ADAIR. You think there would be no control of funds?

GLEASON. Not so far as the Veterans' Administration is ned.

ADAIR. Thank you, Mr. Chairman.
TEAGUE of Texas. Mr. Haley.

HALEY. Thank you, Mr. Chairman.

Administrator, of course we can probably obtain this inforn if the committee hears H.R. 246. When you speak of Stateced soldiers' homes, how many of those homes, if you know or ne in your group knows, are operated in the States now? GLEASON. Dr. Engle, the Acting Chief Medical Director.

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