38 U.S.C. § 8136 — Recapture provisions

Page 1360 TITLE 38—VETERANS’ BENEFITS § 8136 ‘‘(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 fol- lowing: ‘‘(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 pro- gram, and (ii) does not have any fiscal year 1999 pri- ority 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 es- tablished 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 es- tablished 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, expan- sion, remodeling, or alteration of existing facili- ties), 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 fa- cilities, 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 de- scribed in subsection (a) shall not constitute grounds entitling the United States to any re- covery 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 engineer- ing 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 ‘‘Adminis- trator’’ in two places. 1984—Pub. L. 98–528 struck out ‘‘for construction’’ after ‘‘completion of any project’’; inserted ‘‘acquisi- tion,’’ 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 pe- riod 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 vet- erans, 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 con- struction (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 fa- cilities 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 prin- cipally 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 Amendment by Pub. L. 95–62 effective Oct. 1, 1977, with provision for the continuing force and effect of the Page 1361 TITLE 38—VETERANS’ BENEFITS § 8151 terms and conditions of grants made prior to Oct. 1, 1977, under former section 644 of this title and with ad- ditional 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. 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, mainte- nance, or operation of any State home for which facilities are constructed or acquired with as- sistance 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 ‘‘con- structed’’. § 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 facil- ity) 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 re- quire. (2) The facility (or certain beds in such facil- ity) is licensed or certified by the appropriate State and local agencies charged with the re- sponsibility of licensing or otherwise regu- lating 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 substan- tial number of veterans residing in the geo- graphic 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 treat- ment of the facility (or certain beds in such fa- cility) as a State home best meets the needs of veterans for nursing home care in the geo- graphic area in which the facility is located. (5) The Secretary approves the application submitted by the State with respect to the fa- cility (or certain beds in such facility). (b) The Secretary may not treat a health facil- ity (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 ex- cess 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 ex- ceed— (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 regula- tions 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 sub- section (a) after September 30, 2009. (Added Pub. L. 109–461, title II, § 211(c)(1), Dec. 22, 2006, 120 Stat. 3420.) SUBCHAPTER IV—SHARING OF MEDICAL FACILITIES, EQUIPMENT, AND INFORMA- TION § 8151. Statement of congressional purpose It is the purpose of this subchapter to strengthen the medical programs at Department facilities and improve the quality of health care provided veterans under this title by author- izing the Secretary to enter into agreements with health-care providers in order to share health-care resources with, and receive health- care resources from, such providers while ensur- ing no diminution of services to veterans. (Added Pub. L. 89–785, title II, § 203, Nov. 7, 1966, 80 Stat. 1373, § 5051; amended Pub. L. 101–366, title II, § 202(a), Aug. 15, 1990, 104 Stat. 438; re- numbered § 8151, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 103–210, § 3(a), Dec. 20, 1993, 107 Stat. 2497; Pub. L. 104–262, title III, § 301(a), Oct. 9, 1996, 110 Stat. 3191.)