38 USC PART VI, CHAPTER 81, SUBCHAPTER III: STATE HOME FACILITIES FOR FURNISHING DOMICILIARY, NURSING HOME, AND HOSPITAL CARE

From Title 38—VETERANS' BENEFITSPART VI—ACQUISITION AND DISPOSITION OF PROPERTYCHAPTER 81—ACQUISITION AND OPERATION OF HOSPITAL AND DOMICILIARY FACILITIES; PROCUREMENT AND SUPPLY; ENHANCED-USE LEASES OF REAL PROPERTY

SUBCHAPTER III—STATE HOME FACILITIES FOR FURNISHING DOMICILIARY, NURSING HOME, AND HOSPITAL CARE

Editorial Notes

Amendments

1977—Pub. L. 95–62, §4(a), July 5, 1977, 91 Stat. 263, substituted "DOMICILIARY, NURSING HOME, AND HOSPITAL CARE" for "NURSING HOME CARE" in subchapter heading.

§8131. Definitions

For the purpose of this subchapter—

(1) The veteran population of each State shall be determined on the basis of the latest figures certified by the Department of Commerce.

(2) The term "State" includes each Indian tribe (as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304)) but does not include any possession of the United States.

(3) The term "construction" means the construction of new domiciliary or nursing home buildings, the expansion, remodeling, or alteration of existing buildings for the provision of domiciliary, nursing home, adult day health, or hospital care in State homes, and the provision of initial equipment for any such buildings.

(4) The term "cost of construction" means the amount found by the Secretary to be necessary for a construction project, including architect fees, but excluding land acquisition costs.

(Added Pub. L. 88–450, §4(a), Aug. 19, 1964, 78 Stat. 501, §5031; amended Pub. L. 94–581, title II, §206(b), Oct. 21, 1976, 90 Stat. 2859; Pub. L. 95–62, §3(1), (2), July 5, 1977, 91 Stat. 262; Pub. L. 99–576, title II, §224(d), Oct. 28, 1986, 100 Stat. 3263; renumbered §8131, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 104–262, title III, §342(b)(1), Oct. 9, 1996, 110 Stat. 3206; Pub. L. 116–315, title III, §3004(c)(1), Jan. 5, 2021, 134 Stat. 4992.)

Editorial Notes

Amendments

2021—Par. (2). Pub. L. 116–315 inserted "includes each Indian tribe (as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304)) but" before "does not".

1996—Par. (3). Pub. L. 104–262 inserted "adult day health," before "or hospital care".

1991—Pub. L. 102–40 renumbered section 5031 of this title as this section.

Par. (4). Pub. L. 102–83 substituted "Secretary" for "Administrator".

1986—Pub. L. 99–576 redesignated pars. (a) to (d) as pars. (1) to (4), respectively.

1977—Par. (c). Pub. L. 95–62, §3(1), inserted construction of new domiciliary buildings, expansion, remodeling, or alteration of existing domiciliary and hospital buildings, and provision of initial equipment for any such buildings to definition of "construction".

Par. (d). Pub. L. 95–62, §3(2), struck out provisions which had limited definition of "cost of construction" to the cost of construction of nursing home facilities.

1976—Par. (a). Pub. L. 94–581 substituted "veteran" for "war veteran".

Statutory Notes and Related Subsidiaries

Effective Date of 1986 Amendment

Pub. L. 99–576, title II, §224(e), Oct. 28, 1986, 100 Stat. 3263, provided that: "The amendments made by this section [amending this section and sections 5033 and 5035 [now 8133 and 8135] of this title] shall take effect on July 1, 1987."

Effective Date of 1977 Amendment

Pub. L. 95–62, §5, July 5, 1977, 91 Stat. 263, provided that:

"(a) Except as provided in subsection (b) of this section, the amendments made by this Act [amending this section and sections 5032 to 5036 [now 8132 to 8136] of this title and repealing section 644 of this title] shall be effective October 1, 1977.

"(b)(1) The terms and conditions of any grant made prior to October 1, 1977, under section 644 of title 38, United States Code [former section 644 of this title], and regulations prescribed thereunder, shall remain in full force and effect unless modified, by the mutual agreement of the parties, in accordance with the provisions of subchapter III of chapter 81 of such title, and regulations prescribed thereunder, in effect after September 30, 1977.

"(2) With respect to any grant made prior to October 1, 1977, under subchapter III of chapter 81 of such title, the Administrator of Veterans' Affairs shall, upon application of a grantee, modify the terms and conditions of such grant to comply with the provisions of such subchapter as amended by this Act, and regulations prescribed thereunder, and shall promptly notify each such grantee of the grantee's right to request such modification."

Effective Date of 1976 Amendment

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

Short Title of 1977 Amendment

For short title of Pub. L. 95–62 as the "State Veterans' Home Assistance Improvement Act of 1977", see section 1 of Pub. L. 95–62, set out as a Short Title of 1977 Amendment note under section 101 of this title.

§8132. Declaration of purpose

The purpose of this subchapter is to assist the States to construct State home facilities (or to acquire facilities to be used as State home facilities) for furnishing domiciliary or nursing home care to veterans, and to expand, remodel, or alter existing buildings for furnishing domiciliary, nursing home, adult day health, or hospital care to veterans in State homes.

(Added Pub. L. 88–450, §4(a), Aug. 19, 1964, 78 Stat. 501, §5032; amended Pub. L. 94–581, title II, §206(b), Oct. 21, 1976, 90 Stat. 2859; Pub. L. 95–62, §3(3), July 5, 1977, 91 Stat. 262; Pub. L. 98–528, title I, §105(1), Oct. 19, 1984, 98 Stat. 2689; renumbered §8132, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 104–262, title III, §342(b)(2), Oct. 9, 1996, 110 Stat. 3206; Pub. L. 116–315, title III, §3004(c)(2), Jan. 5, 2021, 134 Stat. 4992.)

Editorial Notes

Amendments

2021—Pub. L. 116–315 struck out "several" before "States".

1996—Pub. L. 104–262 inserted "adult day health," before "or hospital care".

1991—Pub. L. 102–40 renumbered section 5032 of this title as this section.

1984—Pub. L. 98–528 inserted "(or to acquire facilities to be used as State home facilities) after "State home facilities".

1977—Pub. L. 95–62 inserted references to the construction of State home facilities for furnishing of domiciliary care and to the expansion, remodeling, and alteration of existing buildings for furnishing domiciliary, nursing home, or hospital care to veterans in State homes.

1976—Pub. L. 94–581 substituted "veterans" for "war veterans".

Statutory Notes and Related Subsidiaries

Effective Date of 1977 Amendment

Amendment by Pub. L. 95–62 effective Oct. 1, 1977, with provision for the continuing force and effect of the terms and conditions of grants made prior to Oct. 1, 1977, under former section 644 of this title and with additional provision for the modification of the terms and conditions of both grants made under former section 644 of this title prior to Oct. 1, 1977, and of grants made under this subchapter prior to Oct. 1, 1977, see section 5 of Pub. L. 95–62, set out as a note under section 8131 of this title.

Effective Date of 1976 Amendment

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

§8133. Authorization of appropriations

(a) There are hereby authorized to be appropriated such sums as are necessary to carry out this subchapter. Sums appropriated pursuant to this section shall be used for making grants to States which have submitted, and have had approved by the Secretary, applications for carrying out the purposes and meeting the requirements of this subchapter.

(b) Sums appropriated pursuant to subsection (a) of this section shall remain available until expended.

(Added Pub. L. 88–450, §4(a), Aug. 19, 1964, 78 Stat. 501, §5033; amended Pub. L. 89–311, §7(a), Oct. 31, 1965, 79 Stat. 1157; Pub. L. 90–432, §2, July 26, 1968, 82 Stat. 448; Pub. L. 93–82, title IV, §403(c), Aug. 2, 1973, 87 Stat. 196; Pub. L. 95–62, §3(4), July 5, 1977, 91 Stat. 262; Pub. L. 96–151, title I, §101(a), Dec. 20, 1979, 93 Stat. 1092; Pub. L. 97–251, §8, Sept. 8, 1982, 96 Stat. 716; Pub. L. 99–576, title II, §224(a), Oct. 28, 1986, 100 Stat. 3262; Pub. L. 101–110, §1(c), Oct. 6, 1989, 103 Stat. 682; Pub. L. 101–237, title II, §201(b), Dec. 18, 1989, 103 Stat. 2066; renumbered §8133, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 102–585, title IV, §402, Nov. 4, 1992, 106 Stat. 4954.)

Editorial Notes

Amendments

1992—Subsec. (a). Pub. L. 102–585 struck out before period at end of first sentence "through September 30, 1992".

1991—Pub. L. 102–40 renumbered section 5033 of this title as this section.

Subsec. (a). Pub. L. 102–83 substituted "Secretary" for "Administrator".

1989—Subsec. (a). Pub. L. 101–237 substituted "September 30, 1992" for "September 30, 1990".

Pub. L. 101–110 substituted "1990" for "1989".

1986—Subsec. (a). Pub. L. 99–576 amended first sentence generally. Prior to amendment, first sentence read as follows: "There is hereby authorized to be appropriated $15,000,000 for fiscal year 1980 and such sums as may be necessary for fiscal year 1981 and for each of the five succeeding fiscal years."

1982—Subsec. (a). Pub. L. 97–251 substituted "for fiscal year 1980 and such sums as may be necessary for fiscal year 1981 and for each of the five succeeding fiscal years" for "for the fiscal year ending September 30, 1978, a like sum for each of the two succeeding fiscal years, and such sums as may be necessary for the fiscal years ending September 30, 1981, and September 30, 1982".

1979—Subsec. (a). Pub. L. 96–151 inserted provisions extending authorization of a like sum from one to two years, and provisions authorizing to be appropriated such sums as necessary for the fiscal years ending Sept. 30, 1981, and Sept. 30, 1982.

1977—Subsec. (a). Pub. L. 95–62 substituted "$15,000,000 for the fiscal year ending September 30, 1978, and a like sum for the succeeding fiscal year" for "$5,000,000 for the fiscal year ending June 30, 1965, and a like sum for each of the fourteen succeeding fiscal years" and "applications for carrying out the purposes and meeting the requirements of this subchapter" for "applications for carrying out the purposes of section 5032 of this title".

Subsec. (b). Pub. L. 95–62 substituted "shall remain available until expended" for "shall remain available until the end of the second fiscal year following the fiscal year for which they are appropriated".

1973—Subsec. (a). Pub. L. 93–82 substituted "fourteen succeeding fiscal years" for "nine succeeding fiscal years".

1968—Subsec. (a). Pub. L. 90–432 substituted "nine succeeding fiscal years" for "four succeeding fiscal years".

1965—Subsec. (c). Pub. L. 89–311 repealed subsec. (c) which limited to not more than 10 per centum of the funds appropriated pursuant to subsec. (a) of this section the moneys which could be used to assist in the construction of nursing home care facilities in any one State.

Statutory Notes and Related Subsidiaries

Effective Date of 1989 Amendment

Pub. L. 101–110, §3(a), Oct. 6, 1989, 103 Stat. 682, provided that: "The provisions of and amendments made by this Act [amending this section and enacting provisions set out as notes under sections 1712, 1720B, and 3729 of this title and under section 6302 of Title 5, Government Organization and Employees] shall take effect as of October 1, 1989."

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–576 effective July 1, 1987, see section 224(e) of Pub. L. 99–576, set out as a note under section 8131 of this title.

Effective Date of 1977 Amendment

Effective Date of 1973 Amendment

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

§8134. General regulations

(a)(1) The Secretary shall prescribe regulations for the purposes of this subchapter.

(2) In those regulations, the Secretary shall prescribe for each State the number of nursing home and domiciliary beds for which assistance under this subchapter may be furnished. Such regulations shall be based on projected demand for such care 10 years after the date of the enactment of the Veterans Millennium Health Care and Benefits Act by veterans who at such time are 65 years of age or older and who reside in that State. In determining such projected demand, the Secretary shall take into account travel distances for veterans and their families.

(3)(A) In those regulations, the Secretary shall establish criteria under which the Secretary shall determine, with respect to an application for assistance under this subchapter for a project described in subparagraph (B) which is from a State that has a need for additional beds as determined under subsections (a)(2) and (d)(1), whether the need for such beds is most aptly characterized as great, significant, or limited. Such criteria shall take into account the availability of beds already operated by the Secretary and other providers which appropriately serve the needs which the State proposes to meet with its application.

(B) This paragraph applies to a project for the construction or acquisition of a new State home facility, a project to increase the number of beds available at a State home facility, and a project to replace beds at a State home facility.

(4) The Secretary shall review and, as necessary, revise regulations prescribed under paragraphs (2) and (3) not less often than every four years.

(b) The Secretary shall prescribe the following by regulation:

(1) General standards of construction, repair, and equipment for facilities constructed or acquired with assistance received under this subchapter.

(2) General standards for the furnishing of care in facilities which are constructed or acquired with assistance received under this subchapter, which standards shall be no less stringent than those standards prescribed by the Secretary pursuant to section 1720(b) of this title.

(c) The Secretary may inspect any State facility constructed or acquired with assistance received under this subchapter at such times as the Secretary deems necessary to insure that such facility meets the standards prescribed under subsection (b)(2).

(d)(1) In prescribing regulations to carry out this subchapter, the Secretary shall provide that in the case of a State that seeks assistance under this subchapter for a project described in subsection (a)(3)(B), the determination of the unmet need for beds for State homes in that State shall be reduced by the number of beds in all previous applications submitted by that State under this subchapter, including beds which have not been recognized by the Secretary under section 1741 of this title.

(2)(A) Financial assistance under this subchapter for a renovation project may only be provided for a project for which the total cost of construction is in excess of $400,000 (as adjusted from time-to-time in such regulations to reflect changes in costs of construction).

(B) For purposes of this paragraph, a renovation project is a project to remodel or alter existing buildings for which financial assistance under this subchapter may be provided and does not include maintenance and repair work which is the responsibility of the State.

(Added Pub. L. 88–450, §4(a), Aug. 19, 1964, 78 Stat. 502, §5034; amended Pub. L. 89–311, §7(b), Oct. 31, 1965, 79 Stat. 1157; Pub. L. 93–82, title IV, §403(d), Aug. 2, 1973, 87 Stat. 196; Pub. L. 94–581, title I, §107(b), title II, §206(b), Oct. 21, 1976, 90 Stat. 2847, 2859; Pub. L. 95–62, §3(5), (6), July 5, 1977, 91 Stat. 262; Pub. L. 96–330, title IV, §404, Aug. 26, 1980, 94 Stat. 1052; Pub. L. 98–528, title I, §105(2), Oct. 19, 1984, 98 Stat. 2689; renumbered §8134, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–54, §14(f)(6), June 13, 1991, 105 Stat. 288; Pub. L. 102–83, §§4(b)(1), (2)(E), 5(c)(1), Aug. 6, 1991, 105 Stat. 404–406; Pub. L. 106–117, title II, §207(a), Nov. 30, 1999, 113 Stat. 1564.)

Editorial Notes

References in Text

The date of the enactment of the Veterans Millennium Health Care and Benefits Act, referred to in subsec. (a)(2), is the date of enactment of Pub. L. 106–117, which was approved Nov. 30, 1999.

Amendments

1999—Subsecs. (a), (b). Pub. L. 106–117, §207(a)(1)–(3), added subsec. (a), redesignated former subsec. (a) as (b) and struck out introductory provisions and par. (1) which authorized Secretary to prescribe number of beds needed for adequate nursing home care of veterans, and redesignated former pars. (2) and (3) of subsec. (a) as pars. (1) and (2), respectively, of subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (c). Pub. L. 106–117, §207(a)(1), (4), redesignated subsec. (b) as (c) and substituted "subsection (b)(2)" for "subsection (a)(3)".

Subsec. (d). Pub. L. 106–117, §207(a)(5), added subsec. (d).

1991—Pub. L. 102–40 renumbered section 5034 of this title as this section.

Pub. L. 102–83, §5(c)(1), substituted "1720(b)" for "620(b)" in subsec. (a)(3).

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

Pub. L. 102–54 amended section as in effect immediately before the enactment of Pub. L. 102–40 by inserting "(a)" before "Within six months", substituting "any amendment to this section" for "this section or any amendment to it", designating sentence at end of par. (3) as subsec. (b), realigning such sentence, and substituting "the standards prescribed under subsection (a)(3)" for "such standards" at end of such sentence.

1984—Pars. (2), (3). Pub. L. 98–528 inserted "or acquired" after "constructed" wherever appearing.

1980—Par. (1). Pub. L. 96–330 struck out ", which number shall not exceed two and one-half beds per thousand veteran population in the case of any State" after "residing in each State".

1977—Par. (2). Pub. L. 95–62, §3(5), substituted "repair, and equipment for facilities constructed" for "repairs, modernization, alteration, and equipment for facilities for furnishing nursing home care which are constructed".

Par. (3). Pub. L. 95–62, §3(6), substituted "furnishing of care" for "furnishing of nursing home care".

1976—Pub. L. 94–581 substituted "date of enactment of this section or any amendment to it with respect to such amendment" for "date of enactment of this subchapter" in provisions preceding par. (1), substituted "veterans" and "veteran" for "war veterans" and "war veteran", respectively, in par. (1), and added par. (3).

1973—Par. (1). Pub. L. 93–82 substituted "two and one-half beds" for "one and one-half beds".

1965—Par. (1). Pub. L. 89–311 substituted "one and one-half beds" for "one-half bed".

Statutory Notes and Related Subsidiaries

Effective Date of 1977 Amendment

Effective Date of 1976 Amendment

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

Effective Date of 1973 Amendment

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

Regulations

Pub. L. 106–117, title II, §207(d), Nov. 30, 1999, 113 Stat. 1567, provided that: "The Secretary [of Veterans Affairs] shall prescribe the initial regulations under subsection (a) of section 8134 of title 38, United States Code, as added by subsection (a), not later than April 30, 2000."

Transition Provisions

Provisions of this section in effect on Nov. 10, 1999, to continue in effect after that date with respect to certain applications described in section 8135(b)(2)(A) of this title that are identified in section 207(c)(2) of Pub. L. 106–117, see section 207(c) of Pub. L. 106–117, set out as a note under section 8135 of this title.

§8135. Applications with respect to projects; payments

(a) Any State desiring to receive assistance for a project for construction of State home facilities (or acquisition of a facility to be used as a State home facility) must submit to the Secretary an application. Such application shall set forth the following:

(1) The amount of the grant requested with respect to such project which may not exceed 65 percent of the estimated cost of construction (or of the estimated cost of facility acquisition and construction) of such project.

(2) A description of the site for such project.

(3) Plans and specifications for such project in accordance with regulations prescribed by the Secretary pursuant to section 8134(a)(2) of this title.

(4) Reasonable assurance that upon completion of such project the facilities will be used principally to furnish to veterans the level of care for which such application is made and that not more than 25 percent of the bed occupancy at any one time will consist of patients who are not receiving such level of care as veterans.

(5) Reasonable assurance that title to such site is or will be vested solely in the applicant, a State home, or another agency or instrumentality of the State.

(6) Reasonable assurance that adequate financial support will be available for the construction of the project (or for facility acquisition and construction of the project) by July 1 of the fiscal year for which the application is approved and for its maintenance and operation when complete.

(7) Reasonable assurance that the State will make such reports in such form and containing such information as the Secretary may from time to time reasonably require, and give the Secretary, upon demand, access to the records upon which such information is based.

(8) Reasonable assurance that the rates of pay for laborers and mechanics engaged in construction of the project will be not less than the prevailing local wage rates for similar work as determined in accordance with sections 3141–3144, 3146, and 3147 of title 40.

(9) In the case of a project for acquisition of a facility, reasonable assurance that the estimated total cost of acquisition of the facility and of any expansion, remodeling, and alteration of the acquired facility will not be greater than the estimated cost of construction of an equivalent new facility.

(b)(1) Any State seeking to receive assistance under this subchapter for a project that would involve construction or acquisition of either nursing home or domiciliary facilities shall include with its application under subsection (a) the following:

(A) Documentation (i) that the site for the project is in reasonable proximity to a sufficient concentration and population of veterans who are 65 years of age and older, and (ii) that there is a reasonable basis to conclude that the facilities when complete will be fully occupied.

(B) A financial plan for the first three years of operation of such facilities.

(2) Failure to provide adequate documentation under paragraph (1)(A) or to provide an adequate financial plan under paragraph (1)(B) shall be a basis for disapproving the application.

(c)(1) Upon receipt of an application under subsection (a) for financial assistance under this subchapter, the Secretary—

(A) shall determine whether the application meets the requirements of this section and of the regulations prescribed under section 8134 of this title;

(B) shall notify the State submitting the application whether the application conforms with those requirements and, if it does not, of the actions necessary to bring the application into conformance with those requirements; and

(C) shall determine the priority of the project described in the application in accordance with the provisions of this subsection.

(2) Subject to paragraphs (3) and (5)(C) of this subsection, the Secretary shall accord priority to applications in the following order:

(A) An application from a State that has made sufficient funds available for the project for which the grant is requested so that such project may proceed upon approval of the grant without further action required by the State to make such funds available for such purpose.

(B) An application from a State for a project at an existing facility to remedy a condition or conditions that have been cited by an accrediting institution, by the Secretary, or by a local licensing or approving body of the State as being threatening to the lives or safety of the patients in the facility.

(C) An application from a State that has not previously applied for award of a grant under this subchapter for construction or acquisition of a State nursing home.

(D) An application for construction or acquisition of a nursing home or domiciliary from a State that the Secretary determines, in accordance with regulations under this subchapter, has a great need for the beds to be established at such home or facility.

(E) An application from a State for renovations to a State home facility other than renovations described in subparagraph (B).

(F) An application for construction or acquisition of a nursing home or domiciliary from a State that the Secretary determines, in accordance with regulations under this subchapter, has a significant need for the beds to be established at such home or facility.

(G) An application that meets other criteria as the Secretary determines appropriate and has established in regulations.

(H) An application for construction or acquisition of a nursing home or domiciliary from a State that the Secretary determines, in accordance with regulations under this subchapter, has a limited need for the beds to be established at such home or facility.

(3) In according priorities to projects under paragraph (2) of this subsection, the Secretary—

(A) may not accord any priority to a project for the construction or acquisition of a hospital; and

(B) may not accord any priority to a project which would expand a State's capacity to furnish hospital care in a State home.

(4) The Secretary shall establish a list of approved projects (including projects that have been conditionally approved under paragraph (6) of this subsection), in the order of their priority, as of August 15 of each year. The Secretary shall award grants in the order of their priority on the list during the fiscal year beginning on October 1 of the calendar year in which the list was made.

(5)(A) The Secretary shall defer approval of an application that otherwise meets the requirements of this section if the State submitting the application does not, by the July 1 deadline (as defined in subparagraph (D) of this paragraph), demonstrate to the satisfaction of the Secretary that the State has provided adequate financial support for construction of the project.

(B) In a case in which approval of an application is deferred under subparagraph (A) of this paragraph, the Secretary shall select for award of a grant or grants under this subsection an application or applications which would not have been approved during the fiscal year but for the deferral and to which the Secretary accords the highest priority under paragraph (2) of this subsection.

(C) An application deferred in accordance with the requirements of this paragraph shall be accorded priority in any subsequent fiscal year ahead of applications that had not been approved before the first day of the fiscal year in which the deferred application was first approved.

(D) For the purposes of this paragraph, the term "July 1 deadline" means July 1 of the fiscal year in which the State is notified by the Secretary of the availability of funding for a grant for such project.

(6)(A) The Secretary may conditionally approve a project under this section, conditionally award a grant for the project, and obligate funds for the grant if the Secretary determines that the application for the grant is sufficiently complete to warrant awarding the grant and that, based on assurances provided by the State submitting the application, the State will complete the application and meet all the requirements referred to in paragraph (1)(A) of this subsection by the date, not later than 180 days after the date of the conditional approval, specified by the Secretary.

(B) If a State does not complete the application and meet all the requirements referred to in such paragraph by the date specified by the Secretary under subparagraph (A) of this paragraph, the Secretary shall rescind the conditional approval and award under such subparagraph and deobligate the funds previously obligated in connection with the application. In the event the Secretary rescinds conditional approval of a project under this subparagraph, the Secretary may not further obligate funds for the project during the fiscal year in which the Secretary rescinds such approval.

(7)(A) Subject to subparagraph (B) of this paragraph, the Secretary may increase the amount of any grant awarded to any State for a project under this section by an amount by which the Secretary determines that the estimated cost of the construction or acquisition has increased from the estimated cost on which the Secretary based the determination to award the grant, without regard to the position of such project on the list established under paragraph (4) of this subsection, if the Secretary determines that the grant was awarded before the State entered into a contract for the construction or acquisition provided for in such project.

(B) A grant may not be increased under subparagraph (A) of this paragraph by more than 10 percent of the amount of the grant initially awarded for such project, and the amount of such grant, as increased, may not exceed 65 percent of the cost of the project.

(d) No application submitted to the Secretary under this section shall be disapproved until the Secretary has afforded the applicant notice and an opportunity for a hearing.

(e) The amount of a grant under this subchapter shall be paid to the applicant or, if designated by the applicant, the State home for which such project is being carried out or any other agency or instrumentality of the applicant. Such amount shall be paid, in advance or by way of reimbursement, and in such installments consistent with the progress of the project as the Secretary may determine and certify for payment to the Secretary of the Treasury. Funds paid under this section for an approved project shall be used solely for carrying out such project as so approved.

(f) Any amendment of any application, whether or not approved, shall be subject to approval in the same manner as an original application.

(Added Pub. L. 88–450, §4(a), Aug. 19, 1964, 78 Stat. 502, §5035; amended Pub. L. 89–311, §7(a), Oct. 31, 1965, 79 Stat. 1157; Pub. L. 93–82, title IV, §403(e), Aug. 2, 1973, 87 Stat. 196; Pub. L. 94–581, title II, §§206(b), 210(e)(10), Oct. 21, 1976, 90 Stat. 2859, 2865; Pub. L. 95–62, §3(7)–(12), July 5, 1977, 91 Stat. 262, 263; Pub. L. 97–295, §4(92), Oct. 12, 1982, 96 Stat. 1313; Pub. L. 98–528, title I, §105(3), Oct. 19, 1984, 98 Stat. 2689; Pub. L. 99–166, title II, §205, Dec. 3, 1985, 99 Stat. 953; Pub. L. 99–576, title II, §224(b), (c), Oct. 28, 1986, 100 Stat. 3262, 3263; Pub. L. 100–322, title II, §206, May 20, 1988, 102 Stat. 513; renumbered §8135 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–54, §14(f)(7), June 13, 1991, 105 Stat. 288; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 102–585, title IV, §§403(a), 404(a), Nov. 4, 1992, 106 Stat. 4954; Pub. L. 103–446, title XII, §1201(d)(18), Nov. 2, 1994, 108 Stat. 4684; Pub. L. 104–262, title III, §342(b)(3), Oct. 9, 1996, 110 Stat. 3206; Pub. L. 106–117, title II, §207(b), Nov. 30, 1999, 113 Stat. 1565; Pub. L. 107–217, §3(j)(4), Aug. 21, 2002, 116 Stat. 1300.)

Editorial Notes

Amendments

2002—Subsec. (a)(8). Pub. L. 107–217 substituted "sections 3141–3144, 3146, and 3147 of title 40" for "the Act of March 3, 1931 (40 U.S.C. 276a—276a–5) (known as the Davis-Bacon Act)".

1999—Subsec. (a). Pub. L. 106–117, §207(b)(1), in introductory provisions, substituted "set forth the following:" for "set forth—", in pars. (1) to (7), capitalized the first letter of the first word and substituted a period for the comma at the end, in par. (8), capitalized the first letter of the first word and substituted a period for ", and" at the end, and in par. (9), capitalized the first letter of the first word.

Subsec. (b). Pub. L. 106–117, §207(b)(3), added subsec. (b). Former subsec. (b) redesignated (c).

Subsec. (c). Pub. L. 106–117, §207(b)(2), redesignated subsec. (b) as (c). Former subsec. (c) redesignated (d).

Subsec. (c)(1). Pub. L. 106–117, §207(b)(4)(A), in introductory provisions, substituted "under subsection (a) for financial assistance under this subchapter" for "for a grant under subsection (a) of this section".

Subsec. (c)(2)(A). Pub. L. 106–117, §207(b)(4)(B)(i), struck out "the construction or acquisition of" after "sufficient funds available for".

Subsec. (c)(2)(B) to (H). Pub. L. 106–117, §207(b)(4)(B)(ii), added subpars. (B) to (H) and struck out former subpars. (B) to (D) which read as follows:

"(B) An application from a State that does not have a State home facility constructed or acquired with assistance under this subchapter (or for which such a grant has been made).

"(C) An application from a State which the Secretary determines, in accordance with criteria and procedures specified in regulations which the Secretary shall prescribe, has a greater need for nursing home or domiciliary beds or adult day health care facilities than other States from which applications are received.

"(D) An application that meets such other criteria as the Secretary determines are appropriate and has established in regulations."

Subsec. (c)(3)(A). Pub. L. 106–117, §207(b)(4)(C), added subpar. (A) and struck out former subpar. (A) which read as follows: "shall accord priority only to projects which would involve construction or acquisition of either nursing home or domiciliary buildings or construction (other than new construction) of adult day health care buildings; and".

Subsecs. (d) to (f). Pub. L. 106–117, §207(b)(2), redesignated subsecs. (c) to (e) as (d) to (f), respectively.

1996—Subsec. (b)(2)(C). Pub. L. 104–262, §342(b)(3)(A), inserted "or adult day health care facilities" after "domiciliary beds".

Subsec. (b)(3)(A). Pub. L. 104–262, §342(b)(3)(B), inserted "or construction (other than new construction) of adult day health care buildings" before semicolon.

1994—Subsec. (a)(3). Pub. L. 103–446 substituted "section 8134(a)(2)" for "section 8134(2)".

1992—Subsec. (b)(6)(A). Pub. L. 102–585, §403(a), substituted "180 days" for "90 days".

Subsec. (b)(6)(B). Pub. L. 102–585, §404(a), inserted at end "In the event the Secretary rescinds conditional approval of a project under this subparagraph, the Secretary may not further obligate funds for the project during the fiscal year in which the Secretary rescinds such approval."

1991—Pub. L. 102–40, §402(b)(1), renumbered section 5035 of this title as this section.

Subsec. (a). Pub. L. 102–83 substituted "Secretary" for "Administrator" wherever appearing.

Pub. L. 102–54 amended subsec. (a) as in effect immediately before the enactment of Pub. L. 102–40 by substituting "Any State" for "After regulations have been prescribed by the Administrator under section 5034 of this title, any State".

Pub. L. 102–40, §402(d)(1), substituted "8134(2)" for "5034(2)" in par. (3).

Subsec. (b). Pub. L. 102–83 substituted "Secretary" for "Administrator" wherever appearing.

Subsec. (b)(1)(A). Pub. L. 102–40, §402(d)(1), substituted "8134" for "5034".

Subsecs. (c), (d). Pub. L. 102–83 substituted "Secretary" for "Administrator" wherever appearing.

1988—Subsec. (b)(4). Pub. L. 100–322, §206(a), (b)(1), inserted "(including projects that have been conditionally approved under paragraph (6) of this subsection)" after "projects" and substituted "August 15" for "July 1".

Subsec. (b)(6), (7). Pub. L. 100–322, §206(b)(2), added pars. (6) and (7).

1986—Subsec. (b). Pub. L. 99–576, §224(b), amended subsec. (b) generally, substituting provisions consisting of pars. (1) to (5) for former provisions consisting of pars. (1) and (2).

Subsec. (d). Pub. L. 99–576, §224(c), struck out par. (1) designation, substituted "The amount of a grant under this subchapter shall be paid" for "Upon approving an application under this section, the Administrator shall certify to the Secretary of the Treasury the amount of the grant so approved, but in no event an amount greater than 65 percent of the estimated cost of construction (or of the estimated cost of facility acquisition and construction) of the project, and shall designate the appropriation from which it shall be paid. Such certification shall provide for payment" and struck out par. (2) which read as follows: "No one State may receive in any fiscal year in the aggregate under this subchapter more than one-third of the amount appropriated for carrying out this subchapter in such fiscal year."

1985—Subsec. (a)(6). Pub. L. 99–166, §205(a), inserted "by July 1 of the fiscal year for which the application is approved".

Subsec. (b). Pub. L. 99–166, §205(b), designated existing provisions as par. (1), redesignated cls. (1) to (4) as (A) to (D), respectively, and added par. (2).

1984—Subsec. (a). Pub. L. 98–528, §105(3)(A), inserted "(or acquisition of a facility to be used as a State home facility)" after "State home facilities" in provisions preceding par. (1).

Subsec. (a)(1). Pub. L. 98–528, §105(3)(B), inserted "(or of the estimated cost of facility acquisition and construction)" after "cost of construction".

Subsec. (a)(6). Pub. L. 98–528, §105(3)(C), inserted "(or for facility acquisition and construction of the project)" after "construction of the project".

Subsec. (a)(8). Pub. L. 98–528, §105(3)(D), substituted "the Act of March 3, 1931 (40 U.S.C. 276a—276a–5)" for "sections 276a through 276a–5 of title 40".

Subsec. (a)(9). Pub. L. 98–528, §105(3)(E), added par. (9).

Subsec. (b)(2). Pub. L. 98–528, §105(3)(F), inserted "(or of the estimated cost of facility acquisition and construction)" after "cost of construction".

Subsec. (b)(4). Pub. L. 98–528, §105(3)(G), substituted "the carrying out of such project" for "the construction of such project".

Subsec. (d)(1). Pub. L. 98–528, §105(3)(H), inserted "(or of the estimated cost of facility acquisition and construction)" after "cost of construction" in first sentence, substituted "carried out" for "constructed" in second sentence, substituted "the project" for "construction" in third sentence, struck out "the construction of" before "an approved project" in fourth sentence.

1982—Subsecs. (a)(1), (4), (b)(2), (d)(1). Pub. L. 97–295 substituted "percent" for "per centum" wherever appearing.

1977—Subsec. (a). Pub. L. 95–62, §3(7), (8), substituted "State home facilities must submit" for "State home facilities for furnishing nursing home care must submit" in provisions preceding par. (1) and, "to furnish to veterans the level of care for which such application is made and that not more than 25 per centum of the bed occupancy at any one time will consist of patients who are not receiving such level of care as war veterans" for "to furnish nursing home care to veterans and that not more than 10 per centum of the bed occupancy at any one time will consist of patients who are not receiving nursing home care as veterans" in par. (4).

Subsec. (b)(3). Pub. L. 95–62, §3(9), substituted "reasonable assurances under subsection (a) of this section as the Administrator" for "reasonable assurances as to use, title, financial support, reports and access to records, and payment of prevailing rates of wages, as the Administrator".

Subsec. (c). Pub. L. 95–62, §3(10), substituted "afforded the applicant notice and an opportunity for a hearing" for "afforded the applicant an opportunity for a hearing".

Subsec. (d). Pub. L. 95–62, §3(11), designated existing provisions as par. (1), substituted "the Administrator shall certify to the Secretary of the Treasury the amount of the grant so approved" for "the Administrator shall certify to the Secretary of the Treasury the amount of the grant requested with respect to such project in such application", and added par. (2).

Subsec. (e). Pub. L. 95–62, §3(12), substituted "amendment of any application, whether or not approved," for "amendment of any approved application".

1976—Subsec. (a)(4). Pub. L. 94–581, §206(b), substituted "veterans" for "war veterans" in two places.

Subsec. (b). Pub. L. 94–581, §§206(b), 210(e)(10), substituted "the Administrator" for "he" in provisions preceding par. (1) and "veterans" for "war veterans" in par. (4).

1973—Subsecs. (a)(1), (b)(2), (d). Pub. L. 93–82 substituted "65 per centum" for "50 per centum".

1965—Subsec. (b). Pub. L. 89–311 repealed par. (3) which placed a limit of 10 per centum of the funds appropriated for any fiscal year pursuant to section 5033(a) of this title upon the amount which could be used to assist in the construction of facilities in any one state, and redesignated pars. (4) and (5) as pars. (3) and (4), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 1992 Amendment

Pub. L. 102–585, title IV, §403(b), Nov. 4, 1992, 106 Stat. 4954, provided that: "The amendment made by subsection (a) [amending this section] shall apply to projects that are conditionally approved after September 30, 1992."

Pub. L. 102–585, title IV, §404(b), Nov. 4, 1992, 106 Stat. 4954, provided that: "The amendment made by subsection (a) [amending this section] shall apply to rescissions of conditional approval of projects after the date of the enactment of this Act [Nov. 4, 1992]."

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–576 effective July 1, 1987, see section 224(e) of Pub. L. 99–576, set out as a note under section 8131 of this title.

Effective Date of 1977 Amendment

Effective Date of 1976 Amendment

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

Effective Date of 1973 Amendment

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

Regulations

Pub. L. 99–576, title II, §224(f), Oct. 28, 1986, 100 Stat. 3263, provided that: "The Administrator of Veterans' Affairs shall prescribe regulations not later than April 1, 1987, to implement the amendments made by this section [amending this section and sections 5031 and 5033 [now 8131 and 8133] of this title]."

Transition Provisions

Pub. L. 106–117, title II, §207(c), Nov. 30, 1999, 113 Stat. 1566, provided that:

"(1) The provisions of sections 8134 and 8135 of title 38, United States Code, as in effect on November 10, 1999, shall continue in effect after that date with respect to applications described in section 8135(b)(2)(A) of such title, as in effect on that date, that are identified in paragraph (2) (and to projects and grants pursuant to those applications). The Secretary [of Veterans Affairs] shall accord priority among those applications in the order listed in paragraph (2).

"(2) Applications covered by paragraph (1) are the following:

"(A) Any application for a fiscal year 1999 priority one project.

"(B) Any application for a fiscal year 2000 priority one project that was submitted by a State that (i) did not receive grant funds from amounts appropriated for fiscal year 1999 under the State home grant program, and (ii) does not have any fiscal year 1999 priority one projects.

"(3) For purposes of this subsection—

"(A) the term 'fiscal year 1999 priority one project' means a project on the list of approved projects established by the Secretary on October 29, 1998, under section 8135(b)(4) of title 38, United States Code, as in effect on that date that (pursuant to section 8135(b)(2)(A) of that title) is in the grouping of projects on that list designated as Priority Group 1;

"(B) the term 'fiscal year 2000 priority one project' means a project on the list of approved projects established by the Secretary on November 3, 1999, under section 8135(b)(4) of title 38, United States Code, as in effect on that date that (pursuant to section 8135(b)(2)(A) of that title) is in the grouping of projects on that list designated as Priority Group 1; and

"(C) the term 'State home grant program' means the grant program under subchapter III of chapter 81 of title 38, United States Code."

§8136. Recapture provisions

(a) If, within the 20-year period beginning on the date of the approval by the Secretary of the final architectural and engineering inspection of any project with respect to which a grant has been made under this subchapter (except that the Secretary, pursuant to regulations which the Secretary shall prescribe, may at the time of such grant provide for a shorter period than 20, but not less than seven, years, based on the magnitude of the project and the grant amount involved, in the case of the acquisition, expansion, remodeling, or alteration of existing facilities), the facilities covered by the project cease to be operated by a State, a State home, or an agency or instrumentality of a State principally for furnishing domiciliary, nursing home, or hospital care to veterans, the United States shall be entitled to recover from the State which was the recipient of the grant under this subchapter, or from the then owner of such facilities, 65 percent of the then value of such project (but in no event an amount greater than the amount of assistance provided under this subchapter), as determined by agreement of the parties or by action brought in the district court of the United States for the district in which such facilities are situated.

(b) The establishment and operation by the Secretary of an outpatient clinic in facilities described in subsection (a) shall not constitute grounds entitling the United States to any recovery under that subsection.

(Added Pub. L. 88–450, §4(a), Aug. 19, 1964, 78 Stat. 503, §5036; amended Pub. L. 93–82, title IV, §403(f), Aug. 2, 1973, 87 Stat. 196; Pub. L. 94–581, title II, §206(b), Oct. 21, 1976, 90 Stat. 2859; Pub. L. 95–62, §3(13), July 5, 1977, 91 Stat. 263; Pub. L. 97–295, §4(92), Oct. 12, 1982, 96 Stat. 1313; Pub. L. 98–528, title I, §105(4), Oct. 19, 1984, 98 Stat. 2690; renumbered §8136, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 102–585, title IV, §405, Nov. 4, 1992, 106 Stat. 4954; Pub. L. 106–419, title II, §222, Nov. 1, 2000, 114 Stat. 1845.)

Editorial Notes

Amendments

2000—Pub. L. 106–419 designated existing provisions as subsec. (a) and added subsec. (b).

1992—Pub. L. 102–585 substituted "If, within the 20-year period beginning on the date of the approval by the Secretary of the final architectural and engineering inspection of any project" for "If, within 20 years after completion of any project" and "the facilities covered by the project cease" for "such facilities cease".

1991—Pub. L. 102–40 renumbered section 5036 of this title as this section.

Pub. L. 102–83 substituted "Secretary" for "Administrator" in two places.

1984—Pub. L. 98–528 struck out "for construction" after "completion of any project"; inserted "acquisition," after "in the case of the"; substituted "value of such project" for "value of such construction"; struck out "for such construction" after "assistance provided for", which amendment was executed by striking out "for such construction" after "assistance provided" as the probable intent of Congress, because "for" appeared only once after "assistance provided"; and substituted "20" for "twenty" in two places.

1982—Pub. L. 97–295 substituted "percent" for "per centum".

1977—Pub. L. 95–62 substituted "If, within twenty years after completion of any project for construction with respect to which a grant has been made under this subchapter (except that the Administrator, pursuant to regulations which the Administrator shall prescribe, may at the time of such grant provide for a shorter period than twenty, but not less than seven, years, based on the magnitude of the project and the grant amount involved, in the case of the expansion, remodeling, or alteration of existing facilities), such facilities cease to be operated by a State, a State home, or an agency or instrumentality of a State principally for furnishing domiciliary, nursing home, or hospital care to veterans, the United States shall be entitled to recover from the State which was the recipient of the grant under this subchapter, or from the then owner of such facilities, 65 per centum of the then value of such construction (but in no event an amount greater than the amount of assistance provided for such construction under this subchapter)" for "If, within twenty years after completion of any project for construction of facilities for furnishing nursing home care with respect to which a grant has been made under this subchapter, such facilities cease to be operated by a State, a State home, or an agency or instrumentality of a State principally for furnishing nursing home care to veterans, the United States shall be entitled to recover from the State which was the recipient of the grant under this subchapter, or from the then owner of such facilities, 65 per centum of the then value of such facilities".

1976—Pub. L. 94–581 substituted "veterans" for "war veterans".

1973—Pub. L. 93–82 substituted "65 per centum" for "50 per centum".

Statutory Notes and Related Subsidiaries

Effective Date of 1977 Amendment

Effective Date of 1976 Amendment

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

Effective Date of 1973 Amendment

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

§8137. State control of operations

Except as otherwise specifically provided, nothing in this subchapter shall be construed as conferring on any Federal officer or employee the right to exercise any supervision or control over the administration, personnel, maintenance, or operation of any State home for which facilities are constructed or acquired with assistance received under this subchapter.

(Added Pub. L. 88–450, §4(a), Aug. 19, 1964, 78 Stat. 503, §5037; amended Pub. L. 98–528, title I, §105(5), Oct. 19, 1984, 98 Stat. 2690; renumbered §8137, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238.)

Editorial Notes

Amendments

1991—Pub. L. 102–40 renumbered section 5037 of this title as this section.

1984—Pub. L. 98–528 inserted "or acquired" after "constructed".

§8138. Treatment of certain health facilities as State homes

(a) The Secretary may treat a health facility (or certain beds in a health facility) as a State home for purposes of subchapter V of chapter 17 of this title if the following requirements are met:

(1) The facility (or certain beds in such facility) meets the standards for the provision of nursing home care that are applicable to State homes, as prescribed by the Secretary under section 8134(b) of this title, and such other standards relating to the facility (or certain beds in such facility) as the Secretary may require.

(2) The facility (or certain beds in such facility) is licensed or certified by the appropriate State and local agencies charged with the responsibility of licensing or otherwise regulating or inspecting State home facilities.

(3) The State demonstrates in an application to the Secretary that, but for the treatment of a facility (or certain beds in such facility), as a State home under this subsection, a substantial number of veterans residing in the geographic area in which the facility is located who require nursing home care will not have access to such care.

(4) The Secretary determines that the treatment of the facility (or certain beds in such facility) as a State home best meets the needs of veterans for nursing home care in the geographic area in which the facility is located.

(5) The Secretary approves the application submitted by the State with respect to the facility (or certain beds in such facility).

(b) The Secretary may not treat a health facility (or certain beds in a health facility) as a State home under subsection (a) if the Secretary determines that such treatment would increase the number of beds allocated to the State in excess of the limit on the number of beds provided for by regulations prescribed under section 8134(a) of this title.

(c) The number of beds occupied by veterans in a health facility for which payment may be made under subchapter V of chapter 17 of this title by reason of subsection (a) shall not exceed—

(1) 100 beds in the aggregate for all States; and

(2) in the case of any State, the difference between—

(A) the number of veterans authorized to be in beds in State homes in such State under regulations prescribed under section 8134(a) of this title; and

(B) the number of veterans actually in beds in State homes (other than facilities or certain beds treated as State homes under subsection (a)) in such State under regulations prescribed under such section.

(d) The number of beds in a health facility in a State that has been treated as a State home under subsection (a) shall be taken into account in determining the unmet need for beds for State homes for the State under section 8134(d)(1) of this title.

(e) The Secretary may not treat any new health facilities (or any new certain beds in a health facility) as a State home under subsection (a) after September 30, 2009.

(Added Pub. L. 109–461, title II, §211(c)(1), Dec. 22, 2006, 120 Stat. 3420.)