B-125206, FEBRUARY 24, 1956, 35 COMP. GEN. 476

B-125206, FEBRUARY 24, 1956, 35 COMP. GEN. 476

VETERANS ADMINISTRATION - FEDERAL AID TO STATES - HOMES FOR DISABLED VETERANS THE TERM "HOME" IN 24 U.S.C. 134 WHICH PROVIDES FEDERAL AID PAYMENTS FOR STATE VETERANS' HOMES MEANS AN INSTITUTION WHERE DISABLED VETERANS ARE FURNISHED SHELTER, FOOD, CLOTHING AND INCIDENTAL MEDICAL CARE AND, THEREFORE, INSTITUTIONS WHICH ARE ESTABLISHED PRIMARILY TO FURNISH HOSPITAL TREATMENT BUT DO NOT FURNISH DOMICILIARY CARE ALTHOUGH DESIGNATED AS "HOMES" DO NOT QUALIFY FOR FEDERAL AID PAYMENT.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, FEBRUARY 24, 1956:

WE HAVE BEEN REQUESTED BY REPRESENTATIVES OF THE STATES ADVERSELY AFFECTED TO RECONSIDER OUR DECISION OF OCTOBER 13, 1955, TO YOU, CONCERNING FEDERAL AID PAYMENTS TO STATE VETERANS' HOMES UNDER THE ACT OF AUGUST 27, 1888, AS AMENDED, 24 U.S.C. 134. OUR DECISION HELD THAT THE FEDERAL AID PAYMENTS ARE NOT AUTHORIZED UNDER THE 1888 ACT, AS AMENDED, FOR CARE FURNISHED BY THE STATES TO DISABLED VETERANS IN STATE HOSPITALS OR PORTIONS OF HOSPITALS (DESIGNATED BY THE STATE AS "HOMES") BECAUSE THE "HOMES" WERE NOT ESTABLISHED PRIMARILY TO FURNISH DOMICILIARY CARE AND DO NOT FURNISH SUCH CARE. SPECIFICALLY, ON THE BASIS OF REPORTS OF YOUR ADMINISTRATION THAT ALL OF THE PATIENTS IN SO CALLED "HOMES" IN WEST VIRGINIA ARE OR WILL BE VETERANS GENERALLY RECEIVING HOSPITAL CARE RATHER THAN DOMICILIARY CARE, AND THE INFORMATION CONTAINED IN YOUR REPORT OF JULY 25, 1955, ON H.R. 5378 AND H.R. 5930, 84TH CONGRESS, TO THE CHAIRMAN, HOUSE COMMITTEE ON VETERANS' AFFAIRS ( COMMITTEE PRINT NO. 158) SHOWING THE WEST VIRGINIA "HOME" HAD NO DOMICILIARY BED CAPACITY, WE HELD THAT NO PAYMENTS OF FEDERAL AID FOR PERIODS SUBSEQUENT TO THE DATE OF THE DECISION WERE AUTHORIZED TO THE WEST VIRGINIA "HOMES.' WE ALSO COMMENTED THEREIN THAT THE STATE FACILITY AT SULPHUR, OKLAHOMA, APPEARED TO FALL INTO THE SAME CATEGORY AS THE WEST VIRGINIA "HOMES.' THE BASIS FOR SUCH COMMENT WAS THE STATEMENT IN COMMITTEE PRINT 158 TO THE EFFECT THAT THE OKLAHOMA STATE WAR VETERANS HOME FACILITY AT SULPHUR HAD A HOSPITAL AND INFIRMARY CAPACITY OF 233 AND NO DOMICILIARY BED CAPACITY.

AS YOU KNOW, THE DECISION OF OCTOBER 13, WAS RENDERED AT YOUR REQUEST PURSUANT TO 31 U.S.C. 74, UNDER WHICH THE HEAD OF ANY EXECUTIVE AGENCY MAY APPLY FOR AND WE ARE REQUIRED TO RENDER OUR DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY OR UNDER THEM. OUR DECISION WAS ADDRESSED SOLELY TO THE QUESTION OF WHETHER, UNDER THE CIRCUMSTANCES PRESENTED IN YOUR REQUEST, FEDERAL AID PAYMENTS WERE AUTHORIZED FOR THE CARE OF DISABLED VETERANS BY THE 1888 ACT, AS AMENDED. WE, OF COURSE, DID NOT CONSIDER WHETHER SUCH PAYMENTS AS A MATTER OF POLICY SHOULD BE MADE OR OUGHT TO BE AUTHORIZED, SINCE THAT IS A MATTER FOR CONSIDERATION SOLELY BY THE CONGRESS. MANY OF THE CONTENTIONS OF THE REPRESENTATIVES OF THE STATES APPEAR TO BE ADDRESSED TO THAT POLICY QUESTION RATHER THAN THE QUESTION WE ARE AUTHORIZED TO CONSIDER AND, HENCE, THOSE CONTENTIONS WILL NOT BE DISCUSSED HEREIN.

IN OUR REVIEW OF THE MATTER, WE HAVE CONSIDERED BRIEFS SUBMITTED BY REPRESENTATIVES OF GEORGIA, OKLAHOMA AND WEST VIRGINIA. ALSO, AN ORAL HEARING WAS ACCORDED TO REPRESENTATIVES OF THESE STATES ON JANUARY 24, 1956, THE SUBSTANCE OF WHICH WAS REDUCED TO WRITING AND MADE A PART OF THE RECORD HERE.

THE STATES CONTEND, IN SUBSTANCE, THAT THE 1888 ACT AS ORIGINALLY ENACTED AUTHORIZED FEDERAL AID PAYMENTS TO BE MADE TO THE STATES FOR THE CARE OF DISABLED VETERANS IN STATE HOSPITALS DESIGNATED BY THE STATES AS "HOMES.' IN THE ALTERNATIVE, THEY URGE THAT, IF THE ORIGINAL ACT DOES NOT AUTHORIZE FEDERAL AID PAYMENTS FOR CARE OF DISABLED VETERANS IN SUCH HOSPITALS, THE AMENDMENTS THERETO BY THE ACT OF AUGUST 1, 1939, 53 STAT. 1145, 24 U.S.C. 134, AND SIMILAR LATER ACTS REPEATING SUCH LANGUAGE, PROVIDING "THAT SAID PAYMENTS SHALL BE MADE REGARDLESS OF WHETHER SAID VETERAN MAY BE RECEIVING DOMICILIARY CARE OR HOSPITALIZATION IN SAID HOME" AUTHORIZE THE PAYMENTS FOR CARE IN ANY INSTITUTION SET ASIDE AND DESIGNATED BY THE STATES AS A "HOME" IRRESPECTIVE OF WHETHER THE "HOME" FURNISHES DOMICILIARY CARE. SUPPORT OF ARGUMENTS IT IS URGED THAT THE COMMON LAW DEFINITION SHOULD BE APPLIED TO THE TERM "HOME.' WHILE THESE VIEWS OF THE MATTER WERE CONSIDERED AT THE TIME OUR DECISION OF OCTOBER 13, 1955, WAS RENDERED, THEY HAVE BEEN REEXAMINED AND EVALUATED IN THE LIGHT OF A DETAILED REEXAMINATION OF THE LEGISLATIVE HISTORY OF THE ACTS INVOLVED.

BY THE ACT OF MARCH 3, 1865, 13 STAT. 509, THE CONGRESS AUTHORIZED THE ESTABLISHMENT OF A NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS WHO WERE TOTALLY DISABLED BY WOUNDS RECEIVED OR SICKNESS CONTRACTED IN LINE OF DUTY DURING THE CIVIL WAR. THEREAFTER, BRANCH FEDERAL HOMES WERE ESTABLISHED AND, BY SECTION 5 OF THE ACT OF JULY 5, 1884, 23 STAT. 120, 121, IT WAS PROVIDED " THAT ALL HONORABLY DISCHARGED SOLDIERS AND SAILORS WHO SERVED IN THE WAR OF THE REBELLION, AND THE VOLUNTEER SOLDIERS AND SAILORS OF THE WAR EIGHTEEN HUNDRED AND TWELVE AND OF THE MEXICAN WAR, WHO ARE DISABLED BY AGE, DISEASE OR OTHERWISE, AND BY REASON OF SUCH DISABILITY ARE INCAPABLE OF EARNING A LIVING, SHALL BE ADMITTED INTO THE HOME FOR DISABLED VOLUNTEER SOLDIERS. PROVIDED SUCH DISABILITY WAS NOT INCURRED IN SERVICE AGAINST THE UNITED STATES. " HOUSE REPORT NO. 754, 50TH CONGRESS, ST SESSION, ON THE BILL WHICH BECAME THE 1888 ACT SHOWS THAT THE BOARD OF MANAGERS OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS IN ITS REPORTS FOR THE FISCAL YEARS ENDING JUNE 30, 1885 AND JUNE 30, 1887, REPORTED OVERCROWDING OF THE BRANCH HOMES AND THAT, DESPITE THE ERECTION OF BARRACKS APPROPRIATED FOR BY THE CONGRESS ON JUNE 30, 1886, THE BEDS IN THE BRANCHES WERE FULLY OCCUPIED AND THAT IN EVERY BRANCH, WITH ONE EXCEPTION, MEN WERE USING THE FLOOR FOR BEDS. IN ITS REPORT FOR THE FISCAL YEAR 1886 THE BOARD REPORTED:

THE SURVIVORS OF THE WAR ARE GROWING OLD, THEIR DISABILITIES ARE SEVERE, AND THE NUMBER WHO ARE UNABLE TO SUPPORT THEMSELVES IS FOR THESE REASONS RAPIDLY INCREASING. NOTWITHSTANDING THE FACT THAT ANEW HOME, CAPABLE OF PROVIDING FOR 1,500 ADDITIONAL MEMBERS, HAS RECENTLY BEEN COMPLETED AT LEAVENWORTH, KANS., THERE ARE YET MANY DISABLED AND DESTITUTE SOLDIERS CARED FOR IN THE ALMSHOUSES OF THE COUNTRY. SEVERAL OF THE STATES HAVE ENDEAVORED TO PROVIDE FOR THIS EMERGENCY BY THE ERECTION OF STATE HOMES. * * * IF CONGRESS SHOULD PROVIDE BY LAW FOR ASSISTING IN MAINTAINING THE SOLDIERS ADMITTED TO THESE STATE HOMES BY AUTHORIZING THE BOARD OF MANAGERS TO PAY ONE-HALF OF THE COST OF SUPPORTING EACH SOLDIER THUS PROVIDED FOR, THE NECESSITY OF BUILDING ADDITIONAL HOMES MIGHT BE AVOIDED.

THE REPORT FURTHER STATES THAT APPROXIMATELY 8,800 VETERANS WERE THEN BEING CARED FOR IN ALMSHOUSES MAINTAINED BY THE STATES AND THAT MANY MORE ARE BEING SUPPORTED BY PRIVATE CHARITY AND BY THE GRAND ARMY OF THE REPUBLIC AND THAT THE ELIGIBILITY REQUIREMENTS FOR FEDERAL AID IN THE STATES HOMES WOULD BE IN ACCORD WITH THOSE IN EFFECT IN THE NATIONAL HOME.

THE ADJUTANT GENERAL OF THE STATE OF CONNECTICUT SOLDIERS' HOSPITAL BOARD, ACTING FOR THE GOVERNOR OF THAT STATE, IN HIS COMMENTS ON THE BILL, PRINTED IN THE HOUSE REPORT, STATED THAT CONNECTICUT THEN MAINTAINED APPROXIMATELY 125 VETERANS IN THE STATE HOME AND IN ADDITION MAINTAINED AN AVERAGE OF 50 VETERANS IN HOSPITALS AND 20 IN THE STATE HOSPITAL FOR INSANE AND SUGGESTED THAT THE BILL SHOULD BE WIDENED TO PERMIT FEDERAL AID FOR THOSE SUPPORTED IN HOSPITALS AS WELL AS IN THE HOMES. IN REPORT OF THE MINNESOTA SOLDIER'S HOME ON THE BILL, IT IS STATED THAT SINCE THE NATIONAL HOMES COULD NOT TAKE CARE OF THESE VETERANS AND MANY ARE DRIFTING INTO POORHOUSES, THE STATE HOME WAS ESTABLISHED AFTER THE GRAND ARMY OF THE REPUBLIC TOOK THE MATTER UP. IT IS FURTHER STATED " WE ARE KEEPING THESE MEN COMFORTABLY, NOT AS PAUPERS TO BE STARVED BUT AS INVALIDS TO BE NOURISHED. THE AVERAGE AGE OF OUR INMATES IS ABOUT SIXTY YEARS, AND 40 PERCENT OF THEM ARE FIT SUBJECTS FOR MEDICAL TREATMENT.' IN THE REPORT OF THE STATE OF WISCONSIN, IT IS STATED " WE EXPECT TO MAKE IT A HOME AS NEARLY AS IT IS POSSIBLE TO MAKE ANY INSTITUTION A HOME. OUR SPECIALTY WILL BE TO RECEIVE THE SOLDIERS WITH THEIR WIVES.' THE REPORT ALSO QUOTES A LETTER DATED FEBRUARY 2, 1888, FROM GENERAL W. B. FRANKLIN, PRESIDENT OF THE BOARD OF MANAGERS OF THE NATIONAL HOME FOR VOLUNTEER SOLDIERS IN WHICH HE SAID," WE HAVE 12,500 OLD SOLDIERS IN THE NATIONAL HOME TODAY. EVERY FOOT OF SPACE IS OCCUPIED, AND YET HUNDREDS ARE KEPT OUT FROM WANT OF ROOM.'

IT SEEMS CLEAR FROM THE FOREGOING THAT, UNDER THE 1888 ACT, THE FEDERAL AID PAYMENTS WERE AUTHORIZED FOR CARE OF VETERANS IN THE STATE HOMES TO RELIEVE THE CROWDED CONDITIONS IN THE FEDERAL HOMES IN AN ECONOMICAL MANNER AND THAT FEDERAL AID PAYMENTS WERE AUTHORIZED AND INTENDED FOR THE SAME CLASS OF CARE AS THE NATIONAL HOMES FOR VOLUNTEER SOLDIERS. THUS, THE HONORABLE LEVI MAISH IN THE DEBATES IN THE HOUSE ON THE MEASURE, 19 CONG. RECORD 6552, IS REPORTED TO HAVE STATED " WE PROPOSE SIMPLY TO ADMIT INTO THE STATE HOMES FOR DISABLED SOLDIERS UPON THE SAME TERMS ON WHICH THEY ARE NOW ADMITTED TO NATIONAL HOMES AND AT THE SAME TIME SAVE THE GOVERNMENT $100 A YEAR IN EACH CASE.' ALSO, SEE PAGE 250 OF HOUSE COMMITTEE PRINT NO. 171, 84TH CONGRESS, ST SESSION, ENTITLED " AN HISTORICAL ANALYSIS OF MAJOR VETERANS' LEGISLATION 1862 1954" ON WHICH IS REPORTED A DEBATE, IN 1910, ON THE NATIONAL SOLDIERS HOME WHICH, AS WE HAVE POINTED OUT ABOVE, FURNISHED THE SAME TYPE OF CARE FOR WHICH FEDERAL AID IS AUTHORIZED TO THE STATES. THERE ARE SET OUT MR. JAMES M. COX'S COMMENTS TO THE HOUSE (45 CONG. RECORD 6183) IN WHICH HE REFERS TO THE VETERAN IN THE HOMES IN THE FOLLOWING TERMS " THE TIDES OF TIME HAVE CARRIED THEM DOWN TO THE VERY SHADOWS OF THE GREAT UNKNOWN. REPRESENTING THE YOUTH AND CHIVALRY OF THE OLD ANTEBELLUM DAYS, THEY NOW AWAIT THE SETTING SUN.' IT IS STATED ON THAT PAGE OF THE HOUSE COMMITTEE PRINT THAT AS A RESULT OF THE DEBATES " A TOTAL OF $5,351,800 WAS MADE AVAILABLE FOR THE SOLDIERS' HOMES, INCLUDING $1,150,000 FOR THE STATES AND TERRITORIES WHICH COOPERATED IN FURNISHING DOMICILIARY CARE FOR VETERANS.'

DESPITE THE SUGGESTION OF THE STATE OF CONNECTICUT THAT AID SHOULD BE PROVIDED FOR VETERANS CARED FOR BY THE STATES IN GENERAL AND INSANE HOSPITALS, NO CHANGE WAS MADE IN THIS REGARD IN THE LANGUAGE OF THE BILL WHICH BECAME THE ACT OF 1888. THUS, IT APPEARS FEDERAL AID UNDER THE ORIGINAL 1888 ACT WAS CONTEMPLATED AND AUTHORIZED ONLY WHERE THE CARE WAS PROVIDED IN A STATE HOME RATHER THAN A HOSPITAL, INSANE ASYLUM, OR OTHER INSTITUTION. ALSO, IT SEEMS CLEAR THAT WHILE DISABLED VETERANS UNABLE TO SUPPORT THEMSELVES WERE ADMITTED TO THE HOMES FOR DISABILITIES FROM WOUNDS AND DISEASE AS WELL AS THE INFIRMITIES OF AGE, THE HOMES PRIMARILY WERE INTENDED TO PROVIDE A PLACE IN WHICH VETERANS WOULD BE FURNISHED SHELTER, FOOD, AND CLOTHING, AND INCIDENTAL MEDICAL CARE, IN OTHER WORDS, DOMICILIARY CARE. THAT THIS SITUATION OBTAINED UP TO THE ESTABLISHMENT OF THE VETERANS ADMINISTRATION IN 1930 SEEMS TO BE BROUGHT OUT SUCCINCTLY IN SENATE REPORT 1090, 71ST CONGRESS, ON A BILL WHICH BECAME THE ACT OF JULY 3, 1930, 46 STAT. 852. ON PAGE 3 OF THE SENATE REPORT, THERE IS QUOTED WITH APPROVAL, THE HOUSE REPORT ON THE BILL, READING IN PART, AS FOLLOWS: , A SOLDIER'S HOME IS NOT A HOSPITAL. IT IS FOR THE DOMICILIARY CARE OF VETERANS.' ALSO, SOME IDEA OF THE RELATIONSHIP OF THE DOMICILIARY CHARACTER OF THE "HOMES" AND THE INCIDENTAL HOSPITAL CARE THEN PROVIDED THEREIN IS SET OUT IN THE LETTER OF GENERAL GEORGE H. WOOD, THE THEN PRESIDENT OF THE BOARD OF MANAGERS, NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, INCLUDED IN SUCH REPORT. IN SUCH LETTER HE RECOMMENDED THE ESTABLISHMENT IN THE PACIFIC NORTHWEST OF A HOME FOR AT LEAST 1,500 MEN. HE STATES " THIS WOULD INCLUDE A HOSPITAL, WITH CAPACITY OF, SAY, 250 TO 300 BEDS, FOR WE FIND THAT IN THE NEIGHBORHOOD OF 25 PER CENT OF OUR POPULATION WILL BE IN AND OUT OF THE HOSPITAL, AND BARRACKS, WITH CAPACITY OF 1,200 MEN * * *.'

ABOUT THE SAME TIME, GENERAL WOOD TESTIFIED BEFORE THE 71ST CONGRESS ON H.R. 6141, WHICH WAS ONE OF THE BILLS WHICH RESULTED IN THE ACT OF JULY 3, 1930, 46 STAT. 1016, 10 U.S.C. 1235, ESTABLISHING THE VETERANS ADMINISTRATION. HE REPORTED (PAGES 114 AND 115 OF THE HOUSE HEARINGS) THAT PURSUANT TO LEGISLATION PASSED ABOUT 1920, AUTHORIZING THE THEN VETERANS BUREAU TO USE HOSPITALS OF THE MILITARY SERVICES, THE PUBLIC HEALTH SERVICE AND THE FACILITIES OF THE NATIONAL HOMES, THEY HAD ESTABLISHED A NEUROPSYCHIATRIC SANITARIUM AT MARION, INDIANA, AND TUBERCULOSIS SANITARIUMS AT MOUNTAIN BRANCH, JOHNSON CITY, TENNESSEE, AND SAWTELLE, CALIFORNIA. IN HIS TESTIMONY, HE STATED:

IT IS NOT POSSIBLE TO SEPARATE THE HOSPITALIZATION COMPLETELY FROM DOMICILIARY CARE, FOR THE REASON THAT WITH A POPULATION, SAY AT THE CENTRAL BRANCH OR AT THE PACIFIC BRANCH, OF OVER 3,500 MEN, ALL OF WHOM ARE DISABLED, THERE IS A GREAT AMOUNT OF HOSPITAL CARE INCIDENT TO DOMICILIARY CARE, WHICH CAN NOT BE AVOIDED.

THE STATISTICS OF THE HOMES SHOW THAT 25 OR 30 PERCENT OF THE MEMBERS OF ANY DOMICILIARY HOME ARE HOSPITAL PATIENTS FOR SOME TIME DURING THE YEAR. (PAGE 121 OF THE HOUSE HEARINGS ON H.R. 6141).

HE ALSO IS REPORTED ON THE SAME PAGE AS TESTIFYING:

WE ARE NOT TAKING CARE OF MENTAL CASES, EXCEPT AT MARION, WHICH WAS MADE A MENTAL SANITARIUM 10 YEARS AGO AT THE REQUEST OF THE VETERANS BUREAU. THAT IS THE ONLY PLACE WHERE WE ARE CARING FOR MENTAL CASES IN ANY NUMBERS AT ALL. OF COURSE, IN EVERY HOME, A FEW MEN WILL TURN UP WHO ARE MENTAL CASES AND WHO HAVE GOT TO BE CARED FOR TEMPORARILY AT THAT HOME UNTIL WE CAN SEND THEM TO MARION. BUT THE HOSPITALIZATION THAT WE ARE DOING AT PRACTICALLY ALL OUR HOMES IS THE HOSPITALIZATION INCIDENT TO DOMICILIARY CARE * * *.

THE TESTIMONY AS TO THE TYPE OF CARE GIVEN IN THE HOMES IS FURTHER OUTLINED BY THE TESTIMONY OF COLONEL R. L. MARSTON, VICE-PRESIDENT OF ONE OF THE NATIONAL SOLDIERS HOMES, REPORTED ON PAGE 130 OF THE HEARINGS ON H.R. 6141, WHEREIN HE STATES: AS YOU HAVE LISTENED TO THE TESTIMONY, YOU HAVE FOUND THAT IT COSTS ABOUT A DOLLAR A DAY TO GIVE A MAN A HOME, CLOTHE HIM, FEED HIM, GIVE HIM MEDICAL CARE, SEE THAT HIS CLOTHES ARE KEPT CLEAN, ETC.

THE TESTIMONY IS REPLETE WITH REFERENCES TO THE TYPE OF CARE GIVEN AS CUSTODIAL, THE FURNISHING OF LIVING ACCOMMODATIONS IN BARRACKS WITH INCIDENTAL MEDICAL CARE, AND AS DOMICILIARY CARE. THUS, IN THE LIGHT OF THE LEGISLATIVE HISTORY OF THE 1888 STATUTE, THE FIRST BASIC CONTENTION OF THOSE REQUESTING RECONSIDERATION OF OUR DECISION DOES NOT APPEAR TO HAVE ANY SUBSTANTIAL FOUNDATION.

THERE REMAINS FOR CONSIDERATION THE EFFECT OF THE 1939 AMENDMENT. IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, 48 STAT. 509, 519, APPROPRIATING FUNDS TO THE VETERANS ADMINISTRATION, IT WAS PROVIDED " THAT THIS APPROPRIATION SHALL BE AVAILABLE FOR CONTINUING AID TO STATE OR TERRITORIAL HOMES FOR THE SUPPORT OF DISABLED VOLUNTEER SOLDIERS IN CONFORMITY WITH THE ACT APPROVED AUGUST 27, 1888 ( U.S.C., TITLE 24, SEC. 134), AS AMENDED, FOR THOSE VETERANS ELIGIBLE FOR ADMISSION TO VETERANS ADMINISTRATION FACILITIES FOR DOMICILIARY CARE.' THIS LANGUAGE IS EXPLAINED AT PAGE 249 OF THE HOUSE HEARINGS ON THE BILL WHICH BECAME THAT ACT AS FOLLOWS:

THE SECOND CHANGE IS THE DELETION OF THE WORDS "INCLUDING ALL CLASSES OF VETERANS ADMISSIBLE TO THE VETERANS' ADMINISTRATION HOMES" AND SUBSTITUTING THE LANGUAGE,"FOR THOSE VETERANS ELIGIBLE FOR ADMISSION TO VETERANS' ADMINISTRATION FACILITIES FOR DOMICILIARY CARE: "SO AS TO DISTINGUISH DEFINITELY THAT ONLY DOMICILIARY CASES WILL BE CARED FOR IN STATE HOMES AT THE EXPENSE OF THE GOVERNMENT.

APPARENTLY, PURSUANT TO THIS PROVISION AND AN ADMINISTRATIVE INSTRUCTION, THE VETERANS ADMINISTRATION REFUSED TO PAY FOR VETERANS RECEIVING HOSPITALIZATION IN STATE HOMES. AS A RESULT, THE 1939 AMENDMENT SET OUT ABOVE WAS ENACTED. IT APPEARS THAT THE THEN ADMINISTRATOR WAS IN DOUBT WHETHER THE AMENDED ACT AUTHORIZED FEDERAL AID PAYMENTS FOR VETERANS ADMITTED TO STATE HOMES FOR HOSPITALIZATION OR ONLY WHERE ADMITTED FOR DOMICILIARY CARE AND THEN FURNISHED INCIDENTAL HOSPITALIZATION. REQUESTED A DECISION OF SUCH QUESTION. IN OUR DECISION OF NOVEMBER 29, 1939, 19 COMP. GEN. 531, WE HELD THAT THE FURNISHING OF A VETERAN WITH EITHER TYPE OF HOSPITALIZATION IN A STATE HOME, WOULD ENTITLE A STATE HOME TO PAYMENT. NO QUESTION WAS RAISED THEREIN AS TO WHETHER A PAYMENT WOULD BE AUTHORIZED IF THE HOSPITALIZATION WAS FURNISHED IN AN INSTITUTION OTHER THAN A STATE VETERANS HOME BUT, IN VIEW OF THE SPECIFIC LANGUAGE OF THE 1939 AMENDMENT AUTHORIZING PAYMENTS ONLY FOR DOMICILIARY CARE OR HOSPITALIZATION "IN SAID HOME," WE WOULD HAVE NO ALTERNATIVE BUT TO HOLD THAT SUCH PAYMENTS WOULD NOT BE AUTHORIZED WHERE THE CARE WAS FURNISHED IN OTHER THAN A " STATE HOME" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE 1888 ACT.

IT IS CONTENDED IN SEVERAL OF THE BRIEFS FILED BY THE STATES THAT BECAUSE THE ADMINISTRATOR STATED IN HIS REPORT ON THE PROPOSED 1939 AMENDMENT,"SHOULD THE PRESENT POLICY BE MODIFIED SO AS TO PERMIT PAYMENTS TO STATES ON BEHALF OF HOSPITALIZED CASES, IT WOULD UNDOUBTEDLY RESULT IN ENLARGEMENT OF STATE HOMES OR THE CONSTRUCTION OF NEW HOMES FOR THE FURNISHING OF HOSPITAL CARE AS DISTINGUISHED FROM DOMICILIARY CARE," THE CONGRESS INTENDED THAT FEDERAL AID SHOULD BE GIVEN FOR CARE IN HOSPITALS AS WELL AS IN HOMES. WE DO NOT FEEL THAT SUCH VIEW IS WARRANTED. OBVIOUSLY, THE THEN ADMINISTRATOR OF VETERANS AFFAIRS, IN SPECULATING UPON WHAT THE EFFECT OF ENACTMENT OF THE BILL MIGHT BE, WAS NOT EXPRESSING WHAT THE CONGRESS INTENDED. FURTHERMORE, THE FACT THAT HE THEREAFTER EXPRESSED DOUBT AS TO THE EFFECT OF THE AMENDMENT AND SUBMITTED THE QUESTION TO OUR OFFICE WOULD SEEM TO INDICATE HE WAS UNCERTAIN AS TO ITS EFFECT. THEREFORE, HIS STATEMENTS IN REGARD TO THE POSSIBLE EFFECT OF THE AMENDMENT CANNOT BE TAKEN AS EXPRESSING THE LEGISLATIVE INTENT. THUS THE ONLY CHANGE MADE BY THE 1939 ACT, IN THIS REGARD, WAS TO CLARIFY THE 1888 ACT SO AS TO ASSURE THAT FEDERAL AID WOULD BE PAYABLE FOR HOSPITAL CASES ADMITTED TO THE HOMES AS WELL AS FOR HOSPITALIZATION FURNISHED INCIDENT TO THE PRIMARY FUNCTION OF THE HOME, THAT IS, THE FURNISHING OF DOMICILIARY CARE OF THE VETERAN.

WITH RESPECT TO THE CONTENTION THAT THE COMMON LAW DEFINITION SHOULD BE APPLIED TO THE WORD ,HOME" IN THE 1888 ACT AS AMENDED, THE PRIMARY RULE OF STATUTORY CONSTRUCTION, AND ITS ONLY PURPOSE, IS TO ARRIVE AT WHAT THE LEGISLATURE INTENDED. IT HAS BEEN HELD THAT THE COMMON MEANING OF A WORD MAY BE DISREGARDED WHERE SUCH AN INTERPRETATION WOULD BE CONTRARY TO ITS LEGISLATIVE INTENT. FOLEY V. MILLER, 24 F.2D 722. AS SET OUT ABOVE, THE CONGRESS INTENDED THE WORD "HOME" AS AN INSTITUTION WHERE THE VETERAN WOULD BE FURNISHED SHELTER, FOOD, CLOTHING AND INCIDENTAL MEDICAL CARE. TO APPLY ANY OTHER DEFINITION WOULD NOT BE TO CONSTRUE THE STATUTE AND GIVE EFFECT TO THE CONGRESSIONAL INTENT BUT TO ALTER OR CHANGE IT.

ON THE BASIS OF THE FOREGOING, WE PERCEIVE NO SUBSTANTIAL BASIS FOR MODIFYING THE PRINCIPAL HOLDING OF OUR DECISION OF OCTOBER 13, 1955, NAMELY, THAT PAYMENTS OF FEDERAL AID ARE NOT AUTHORIZED UNDER 24 U.S.C. 134, FOR CARE FURNISHED BY THE STATES TO VETERANS IN STATE HOSPITALS OR PORTIONS OF HOSPITALS (REGARDLESS OF HOW DENOMINATED BY THE STATES) WHICH WERE NOT ESTABLISHED TO FURNISH DOMICILIARY CARE PRIMARILY AND DO NOT FURNISH SUCH CARE. ALSO, WE CONSTRUE DOMICILIARY CARE TO BE THE FURNISHING OF A HOME TO THE VETERAN, EMBRACING THE FURNISHING OF SHELTER, FOOD, CLOTHING AND OTHER COMFORTS OF THE HOME, INCLUDING INCIDENTAL MEDICAL CARE NECESSARY TO MAINTAIN HIM. IT DOES NOT INCLUDE THE CARE IN AN INSTITUTION PRIMARILY ESTABLISHED TO FURNISH HOSPITAL TREATMENT. COURSE, IF A HOME IS ESTABLISHED AND CONTINUES TO BE SUCH BY REASON OF THE PRIMARY FURNISHING OF DOMICILIARY CARE, PAYMENTS OF FEDERAL AID WOULD BE AUTHORIZED UNDER THE 1939 AMENDMENT FOR PATIENTS ADMITTED FOR HOSPITAL CARE OR TREATMENT.

THE BRIEF OF THE STATE OF WEST VIRGINIA AND THE STATEMENTS OF THE REPRESENTATIVE OF THEIR DEPARTMENT OF VETERANS AFFAIRS APPEAR TO CONCEDE THAT THE SO-CALLED HOMES AT BECKLEY AND WESTON ARE NOT PRIMARILY DOMICILIARY HOMES BUT RATHER INSTITUTIONS FURNISHING HOSPITAL CARE. ALSO, THE BRIEF OF GEORGIA, WHILE CONTENDING THAT UNDER THE STATE STATUTE A TRULY DOMICILIARY HOME MIGHT BE ESTABLISHED, DOES NOT APPEAR TO CONTEND THAT IT HAS ESTABLISHED A DOMICILIARY HOME. ACCORDINGLY, INSOFAR AS OUR DECISION INDICATES PAYMENTS OF FEDERAL AID TO THE HOMES IN THOSE STATES ARE UNAUTHORIZED THAT DECISION IS AFFIRMED WITHOUT PREJUDICE TO ANY ACTION THE STATES MAY TAKE TO ESTABLISH HOMES WITHIN THE MEANING OF THE 1888 ACT, AS AMENDED.

THE BRIEF OF THE STATE OF OKLAHOMA, IN ADDITION TO REQUESTING RECONSIDERATION OF THE PRINCIPAL HOLDING OF OUR DECISION, APPEARS TO CONTEND THAT ITS SULPHUR AND NORMAN INSTITUTIONS ARE PRIMARILY FURNISHING DOMICILIARY CARE. THIS CONTENTION RAISES A QUESTION AS TO WHAT ARE THE TRUE FACTS AS REGARDS THESE INSTITUTIONS. THE QUESTION OF FINDING THE FACTS IS PRIMARILY AN ADMINISTRATIVE ONE AND THIS OFFICE CONSISTENTLY HAS ACCEPTED SUCH A FINDING IN THE ABSENCE OF A STRONG AND CONVINCING SHOWING OF ERROR THEREIN. MOREOVER, YOUR ADMINISTRATION HAS SUPERIOR FACILITIES FOR MAKING A FACT FINDING SURVEY OF THE OKLAHOMA HOMES INVOLVED PARTICULARLY BECAUSE OF THE PHYSICIANS EMPLOYED BY YOUR ADMINISTRATION WHO ARE GENERALLY FAMILIAR WITH THE VETERANS HOMES PROGRAM. ACCORDINGLY, WE REQUEST THAT YOU MAKE A SURVEY OF THE OKLAHOMA HOMES IN QUESTION AT SULPHUR AND NORMAN, OKLAHOMA, TO DETERMINE WHETHER THOSE FACILITIES ARE "HOMES" WITHIN THE MEANING OF THE 1888 ACT AS AMENDED, AS CONSTRUED IN OUR DECISION OF OCTOBER 13, 1955, AS AMPLIFIED BY THIS LETTER. PENDING SUCH SURVEY AND REPORT THEREON, WE WILL RESERVE DECISION UPON THE ELIGIBILITY OF THESE TWO HOMES FOR THE FEDERAL AID PAYMENTS. NEEDLESS TO SAY THE CONGRESSIONAL DELEGATION FROM THE STATE OF OKLAHOMA IS VITALLY CONCERNED WITH THIS MATTER AND AN EARLY REPORT OF THE FACT FINDING INVESTIGATION AND YOUR DETERMINATION AS TO WHETHER THESE HOMES ARE PRIMARILY FURNISHING DOMICILIARY CARE WILL BE APPRECIATED. WE SHALL BE PLEASED TO COOPERATE WITH YOUR ADMINISTRATION, TO THE EXTENT YOU DEEM IT DESIRABLE, IN MAKING A SURVEY OF THE OKLAHOMA HOMES.