STATEMENT OF ROBERT C. FABLE, JR., GENERAL COUNSEL, ACCOMPANIED BY DR. L. A. ZINK, ACTING DEPUTY CHIEF MEDICAL DIRECTOR; DR. C. P. HENKE, CHAIRMAN, ADMINISTRATOR'S ADVISORY COUNCIL; H. F. MOORE, BENEFITS SPECIALIST, ADMINISTRATOR'S ADVISORY COUNCIL; R. P. BLAND, ASSISTANT GENERAL COUNSEL; DR. A. H. KLIPPEN, ACTING ASSISTANT CHIEF MEDICAL DIRECTOR FOR PLANS AND COORDINATION; DR. O. K. TIMM, ASSISTANT CHIEF MEDICAL DIRECTOR FOR PROFESSIONAL SERVICES; DR. E. C. GLUCKMAN, DIRECTOR, MEDICAL FACILITIES REQUIREMENTS SERVICE; D. I. ROSEN, DIRECTOR, REPORTS AND STATISTICS SERVICE, DEPARTMENT OF MEDICINE · AND SURGERY; M. W. BOWERS, DEPUTY DIRECTOR FOR EVALUTION, DEPARTMENT OF MEDICINE AND SURGERY; D. M. ANDERSON, ASSISTANT DIRECTOR, SOCIAL WORK SERVICE, DEPARTMENT OF MEDICINE AND SURGERY

Mr. FABLE. Mr. Chairman, I want to thank you very much for those kind remarks.

It is a privilege, sir, to be here.

I have with me Dr. L. A. Zink, the Acting Deputy Chief Medical Director, and other representatives of the Department of Medicine and Surgery, together with representatives of the Administrator's Advisory Council.

Mr. EVERETT. Glad to have you with us, Doctor.

Go right ahead, Mr. Fable.

Mr. FABLE. Mr. Chairman and members of the subcommittee, I take particular pleasure in presenting this statement on behalf of the Administrator before a group whose members are so deeply devoted to the welfare of our sick and disabled veterans. The chairman had requested that we deal primarily with certain important bills which are now before you.

These proposals will be carefully analyzed so that the subcommittee will be fully informed concerning the Administrator's position in relation to each of them.

I am happy, sir, that the Administrator's statement on April 3 is already a part of the record because this material has such an important bearing on the conclusions which have been reached concerning the several bills under consideration.

As a brief reference to the Administrator's previous statement, I would invite your attention particularly to his emphasis on the planned administrative studies which he strongly feels should be conducted as a basis for a more informed final recommendation by him as to what should be done in this area.

While some serious reservations were expressed by him, as you know, with respect to embarking on a VA program of providing nursing home care, as such, the Administrator repeatedly stressed the importance of further study before a definite conclusion is reached. Later in this statement, I shall indicate generally some steps that have already been taken and others planned for conducting these studies.

Mr. EVERETT. Mr. Fable, let me say we have plenty of time this morning. If anyone has any questions to ask as we go along, the subcommittee members should feel free to ask them. We are very informal.

Mr. FABLE. Mr. Chairman, I know that you and probably other members of the subcommittee have visited some of our hospitals. However, I want to take this occasion, on behalf of the Administrator, to invite the subcommittee as a whole to visit and inspect any of these installations in which it may have an interest.

You might particularly desire, as an aid to your studies concerning the needs of chronically ill veterans, to visit the Restoration Center at Hines, Ill. Since that program began, 350 different veterans had been admitted to the Center by March 31 of this year and 106 restorees had been discharged with maximum restorative benefits, most of them to their own homes.

I am sure that while there, you would find most interesting a side visit to the large-scale data processing center, which is likewise located at the Hines installation. The computer system is gradually being adapted to use in connection with various aspects of the medical program.

Mr. EVERETT. Do you have the average age of those 106 veterans who have been restored?

Mr. FABLE. About 51 years of age.

Mr. EVERETT. What is the oldest age you have been able to restore? Mr. FABLE. We will be happy to supply it for the record. (The information to be supplied follows:)

Age distribution of veterans outplaced from Hines Restoration Center after attaining maximum restoration benefit, through March 1963

Mr. EVERETT. Any further questions on this part?

Go right ahead, sir.

Mr. FABLE. The new Restoration Center at East Orange, N.J., is scheduled for completion in the fall, and will probably open the first of the year.

You may also wish to visit and carefully inspect that project so that you will have a more complete understanding of the physical layout and its intended use in these experimental efforts to rehabilitate those long-term patients who offer some real prospect for adjustment back to community life.

Speaking of trips, you may be interested in a report prepared by three members of the VA staff covering a short trip to Ottawa and Montreal, Canada, 1 year ago. This deals primarily with their observations of low-cost housing projects sponsored by the Royal Canadian Legion which are 90 percent financed through a Government agency. It also includes material on the Montreal complex which contains

three types of facilities-a 700-bed active-treatment hospital, a 1,000bed chronic-care hospital and a 220-member domiciliary. The selfhelp type wards in the chronic-care section serve a purpose similar to the VA Restoration Center at Hines, Ill.

Copies of the report have been furnished informally to your committee staff as well as the national headquarters of major service organizations.

With your permission, I shall include a copy in the record.

Mr. EVERETT. Without objection, it is so ordered.

(The material referred to appears on pp. 437-446.)

Mr. FABLE. Just before getting into an analysis of the bills, I am wondering if the subcommittee might find it helpful to consider briefly the legal aspects of any move by the Veterans' Administration to provide nursing home care for veterans whose specific needs are for that form of care.

You will recall that at the recent hearing before the full committee, the chairman inquired as to our present legal authority to retain patients in our hospitals who have reached the nursing home stage, which in turn raised the question of whether we have statutory authority to admit veteran patients initially for the sole purpose of providing care of this nature.

My answer at that time was that we do have this legal authority under the broad provisions of title 38 authorizing the Administrator to give hospitalization or domicilary care to veterans who need any type of institutional care.

This had been previously considered and conclusions developed along the same line. More recently I have furnished the Administrator a careful aanalysis of the matter with a statement of the reasons supporting this conclusion.

The opinion contains some history which may be of special interest to the subcommittee along with the legal rationale. Since the opinion is not too lengthy and could be read in a few minutes, I would be pleased to put it in the record and also, if you choose, to present portions of it orally at this time.

Mr. EVERETT. I would like to have you read it.

Will you proceed.

Mr. FABLE. Yes, sir.

If I may, I will omit certain paragraphs which relate to background and which are not pertinent to the admission question. I will deal solely with the question I think the subcommittee is concerned with. [Reading:]

The terms "nursing home care" and "attendant care" appear to have come into somewhat general usage during the 20th century, particularly in the writings and statements of medical and nursing professionals. These terms are unknown in our veterans laws and there are no known judicial expressions as to the definitions of these terms. In fact, there are no consistent medical or nursing views stated as to the precise meaning of these words. Last year, however, the Chief Medical Director advised that a veteran who requires only nursing home type care is not in need of hospitalization.

The basic statute (38 U.S.C. 610) authorizes the Administrator to furnish needed hospital care or domiciliary care to veterans who meet the stated eligibility requirements. While "hospital care" is defined (38 U.S.C. 601(5)) to include medical services, the term is not further defined and no definition of "domiciliary care" is set forth in the statutes. Section 4 of Public Law 85–857 which enacted the present title 38, United States Code, preserved in the Administrator the duties, powers, and functions of the National Home for Disabled 98-638-63--46

Volunteer Soldiers which had been vested in him by the Consolidation Act of 1930. The national homes were taken over by the Veterans' Administration pursuant to the 1930 act.

We have reviewed much of the historical documentation reflecting the operations of the old National Homes for Disabled Volunteer Soldiers, the predecessor agency from which was developed the concept of our modern VA domiciliaries. The annual reports of these homes to the Congress contains both statistical and narrative information which, logically construed clearly reflects the inclusion of members whose needs manifestly were for so-called nursing or attendant care. Based upon the reports of the types and kinds of disease or afflictions at time of entrance and considering the normal effects of advancing age, particularly of the Civil War veteran members, it seems quite clear that veterans were both admitted and retained whose only requirements were for what we now refer to as nursing home care. We note the separate classification of afflicted members in so-called convalescent barracks as distinguished from those receiv ing care in the hospital facility of the home. And, we observe, for example, comments such as those in the 1891-92 reports which show that proposals were being advanced to obtain professional nurses to provide personal care and attention theretofore performed by other and presumably more active members. In any event, the early concept and operation of these homes does not appear to have differentiated between degrees or classification of veterans requiring home care or domiciliation. The basic eligibility was merely service coupled with inability to earn a livelihood with emphasis on the economic factor.

We understand that prior to 1955 some veterans whose primary needs were for attendant type care were admitted to our domiciliaries, possibly as an outgrowth of similar admissions of an earlier time to the national homes. In 1955 a determination was made administratively to limit the admission criteria for domiciliary care so that, to be admitted, a veteran must be ambulatory as well as able to feed and clothe himself and perform other self-helps. These requirements were embodied in regulations then promulgated and still in effect. The memorandum to the Administrator of October 5, 1955, explained the proposed change in regulations and expressed the view that the new limitation on domiciliary care would--and I quote-"for the first time give to an examining physician a practical means to establish whether the facilities of domiciliary or the hospital will best serve to meet the requirements of the veteran." However, it has not been the practice to admit patients to our hospitals whose sole needs are for attendant type or so-called nursing home care. And, of course, the regulations have precluded initial admission to the domiciliaries of attendant type cases since 1955. The only current impediment to admitting a veteran who requires only nursing care to a domiciliary is the limitation in the current regulations concerning "self-help" which could be changed.

We therefore conclude that attendant type or 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 exercise full self-help, as well as those who, in varying degrees, require partial or full attendant type services.

(The complete opinion referred to above follows:)

Administrator (00).

General Counsel (02).

LEGAL AUTHORITY TO PROVIDE HOME TYPE CARE

MAY 7, 1963.

1. You may desire to have for the record a comprehensive opinion setting forth the reasons for the position stated at a recent hearing before the House Committee on Veterans' Affairs, that under the general authorization contained in title 38, United States Code, you have the legal authority to furnish so-called nursing home type attention and care to eligible veterans requiring such care. 2. The terms "nursing home care" and "attendant care" appear to have come into somewhat general usage during the 20th century, particularly in the writings and statements of medical and nursing professionals. These terms are unknown to our veterans' laws and there are no known judicial expressions as to the definition of these terms. In fact, there are no consistent medical or

nursing views stated as to the precise meaning of these words. Last year, however, the Chief Medical Director advised that a veteran who requires only nursing home type care is not in need of hospitalization.

3. The basic statute (38 U.S.C. 610) authorizes the Administrator to furnish needed hospital care or domiciliary care to veterans who meet the stated eligibility requirements. While "hospital care" is defined (38 U.S.C. 601 (5)) to include medical services, the term is not further defined and no definition of "domiciliary care" is set forth in the statutes. Section 4 of Public Law 85-857 which enacted the present title 38, United States Code, preserved in the Administrator the duties, powers, and functions of the National Home for Disabled Volunteer Soldiers which had been vested in him by the Consolidation Act of 1930. The national homes were taken over by the Veterans' Administration pursuant to the 1930 act.

4. We have reviewed much of the historical documentation reflecting the operations of the old National Homes for Disabled Volunteer Soldiers, the predecessor agency, from which was developed the concept of our modern VA domiciliaries. The annual reports of these homes to the Congress contain both statistical and narrative information which, logically construed, clearly reflects the inclusion of members whose needs manifestly were for so-called nursing or attendant care. Based upon the reports of the types and kinds of disease or afflictions at time of entrance and considering the normal effects of advancing age, particularly of the Civil War veteran members, it seems quite clear that veterans were both admitted and retaind whose only requirements were for what we now refer to as nursing home care.' We note the separate classification of afflicted members in so-called convalescent barracks as distinguished from those receiving care in the hospital facility of the home. And, we observe, for example, comments such as those in the 1891-92 reports which show that proposals were being advanced to obtain professional nurses to provide personal care and attention theretofore performed by other and presumably more active members. In any event, the early concept and operation of these homes does not appear to have differentiated between degrees, or classification, of veterans requiring home care or domiciliation. The basic eligibility was merely service coupled with inability to earn a livelihood with emphasis upon the economic factor.

2

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

1 Report of the National Soldiers' Home, 1891, pp. 69. 170; Report of the Board of Managers of the National Home for Disabled Volunteer Soldiers, 1924 (manuscript). 2 Report of the National Soldiers' Home, 1891-92, pp. 140, 164.

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