[Federal Register Volume 65, Number 4 (Thursday, January 6, 2000)]
[Rules and Regulations]
[Pages 962-997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-60]



[[Page 961]]



Part III





Department of Veterans Affairs





_______________________________________________________________________



38 CFR Parts 17 et al.



Per Diem for Nursing Home Care of Veterans in State Homes; Final Rule

  Federal Register / Vol. 65, No. 4 / Thursday, January 6, 2000 / Rules 
and Regulations  

[[Page 962]]



DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17, 51, and 58

RIN 2900-AE87


Per Diem for Nursing Home Care of Veterans in State Homes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends regulations regarding the payment of per 
diem to State homes that provide nursing home care to eligible 
veterans. The intended effect of the final rule is to ensure that 
veterans receive high quality care in State homes.

DATES: Effective date: February 7, 2000.
    The incorporation by reference of certain publications listed in 
the regulations is approved by the Director of the Federal Register as 
of February 7, 2000.

FOR FURTHER INFORMATION CONTACT: L. Nan Stout, Chief, State Home Per 
Diem Program (114), Veterans Health Administration, 202-273-8538.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on November 9, 1998 (63 FR 60227), we proposed to establish a 
new part 51 setting forth a mechanism for paying per diem to State 
homes providing nursing home care to eligible veterans. We provided a 
60-day comment period which ended January 8, 1999. We received 
responses from 20 commenters. The issues raised in the comments are 
discussed below.
    Based on the rationale set forth in the proposed rule and in this 
document, we are adopting the provisions of the proposed rule as a 
final rule with changes explained below. Under the final rule, VA will 
pay per diem to a State for providing nursing home care to eligible 
veterans in a facility if the Under Secretary for Health recognizes the 
facility as a State home based on a current VA certification that the 
facility meets the standards set forth in subpart D.

Section 51.2  Definitions

    We proposed to define ``physician assistant'' to mean a person who 
meets the applicable State requirements for physician assistants, is 
currently certified by the National Commission on Certification of 
Physician Assistants (NCCPA) as a physician assistant, and has an 
individualized written scope of practice that determines the 
authorization to write medical orders, prescribe medications and other 
clinical tasks under appropriate physician supervision which is 
approved by the primary care physician.
    One commenter asserted that the definition should not include a 
requirement that a physician assistant be currently certified by the 
National Commission on Certification of Physician Assistants. In this 
regard, the commenter argued that the imposition of a national 
certification requirement would be cumbersome to administer and create 
confusion regarding which physician assistants regulated by the State 
could provide services to veterans in State homes. No changes are made 
based on this comment. We believe this certification is necessary to 
ensure that physician assistants meet uniform standards necessary to 
ensure that they are qualified to provide adequate care at a State 
nursing home facility. In our view, this will not cause significant 
administrative work. The State home merely will have to determine 
whether the individual has the appropriate certification.
    Under the proposed definition of ``State home,'' a State home may 
provide domiciliary care, nursing home care, adult day health care, and 
hospital care. Also, under the definition, hospital care may be 
provided only when the State home also provides domiciliary and/or 
nursing home care.
    One commenter asserted the definition should replace ``domiciliary 
care'' with ``assisted living.'' No changes are made based on this 
comment. The statutory authority for levels of care at State homes 
includes domiciliary care, but not assisted living. (See 38 U.S.C. 
1741-1743).

Section 51.10  Per Diem based on Recognition and Certification

    The provisions of Sec. 51.10 state that after recognition has been 
granted, VA will continue to pay per diem to a State for providing 
nursing home care to eligible veterans in such a facility for a 
temporary period based on a certification that the facility and 
facility management provisionally meet the standards of subpart D. One 
commenter asked how long the temporary period would be if a facility 
receives a ``provisionally meets'' certification.
    The temporary period related to provisionally meeting the standards 
could vary. Under the provision of Sec. 51.30(a)(2) the temporary 
period is based on time frames provided by the State home in a written 
plan of correction and approved by the director of VA medical center of 
jurisdiction.

Section 51.30  Recognition and Certification

    The provisions of Sec. 51.30 state that the Under Secretary for 
Health will make the determination regarding recognition and the 
initial determination regarding certification, after receipt of a 
tentative determination from the director of the VA medical center of 
jurisdiction regarding whether, based on a VA survey, the facility and 
facility management meet or do not meet the standards of subpart D.
    Commenters asserted that we should establish a time limit for the 
determination for recognition, initial certification, notification 
regarding failure to meet standards, and re-certification by VA. No 
changes are made based on these comments. We are committed to making 
decisions as quickly as possible. However, VA must take whatever time 
is necessary to make accurate decisions. Section 51.30 provides for 
recognition and certification based on surveys establishing that the 
standards in subpart D are met.
    One commenter asserted that Sec. 51.30 is reactive and punitive by 
anticipating deficiencies and precluding a deficiency-free review. The 
commenter further stated that a paper compliance review should be 
established for the year following a review that did not cite 
deficiencies. No changes are made based on these comments. We believe 
that the yearly review must be adequate to ensure compliance with the 
provision in subpart D. This will require more than a paper review 
regardless of previous compliance.
    With respect to the provisions of Sec. 51.30(a)(2), one commenter 
inquired about when a facility would be determined to ``provisionally'' 
meet the standards and continue to receive per diem. In this regard, 
the provisions of Sec. 51.30(a)(2) allow for provisional certification 
only if all of the following are met: the facility or facility 
management does not meet one or more of the standards in subpart D, 
that the deficiencies do not jeopardize the health or safety of the 
residents, and that the facility management and the director have 
agreed to a plan of correction to remedy the deficiencies in a 
specified amount of time (not more time than the VA medical center of 
jurisdiction director determines is reasonable for correcting the 
specific deficiencies). If the facility does not meet one or more of 
the standards in subpart D and also does not meet the criteria for 
provisional certification, VA must take action to withhold per diem 
payments and withdraw recognition.

[[Page 963]]

    One commenter asserted that the final rule should provide for an 
informal dispute resolution process regarding the existence and scope 
of potential deficiencies. No changes are made based on this comment. 
The authority and responsibility for the per diem program have been 
delegated solely to VA by statute. (See 38 U.S.C. 1741-1743). There is 
no basis for delegating this authority outside VA.
    One commenter questioned whether Veterans Integrated Service 
Network (VISN) entities would conduct annual certification surveys. No 
changes are made based on this comment. The director of the VA Medical 
Center of jurisdiction is responsible for the annual certification 
survey and may delegate any qualified VA official to conduct the 
survey.
    One commenter asserted that VA should accept Joint Commisson on 
Accreditation Healthcare Organizations (JCAHO) and Medicaid/Medicare 
inspections in lieu of annual VA inspections. The commenter also 
asserted that State homes that are licensed as nursing homes by the 
State should be exempt from annual VA inspections. The commenter 
further asserted that annual VA inspections should occur only if there 
is reason to believe that a facility is not substantially in compliance 
with VA regulations. No changes are made based on this comment. It is 
solely VA's responsibility to ensure that VA's regulations are met. 
Further, non-VA inspections do not cover all of the standards in the 
final rule and compliance with State standards would not be sufficient 
to ensure compliance with all of the standards in the final rule. 
Furthermore, we believe that in order to ensure compliance with our 
standards, VA must conduct reviews at least on a yearly basis. Even so, 
under Sec. 51.30(a) the judgement of VA officials concerning compliance 
with the requirements of the final rule may be made in part based on 
reviews of reports of inspection by other entities.

Section 51.31  Automatic Recognition

    Under the final rule VA would pay per diem to a State for providing 
nursing home care to eligible veterans in a facility if the Under 
Secretary for Health recognizes the facility as a State home based on a 
current VA certification that the facility meets the standards set 
forth in subpart D. One commenter questioned whether previously 
recognized facilities would be required to submit a new request for 
recognition and certification under the final rule.
    We have added a new Sec. 51.31 to explain that a facility that 
already is recognized by a VA as a State home for nursing home care at 
the time this part becomes effective, automatically will continue to be 
recognized as a State home for nursing home care. This new section 
further explains that even though the facility would continue to be 
recognized, it is subject to all of the provisions of this part that 
apply to facilities that have achieved recognition, including the 
provisions for withholding payment and withdrawal of recognition.

Section 51.40  Monthly Payment

    The provisions of Sec. 51.40(a)(1) specify that during fiscal year 
2000 VA will pay monthly one-half of the cost of each eligible 
veteran's nursing home care for each day the veteran is in a facility 
recognized as a State home for nursing home care, not to exceed $50.55 
per diem. Five commenters asserted that the currently applicable rate 
should not be included in the regulations. In this regard, they were 
concerned that a delay in publishing changed amounts could delay the 
receipt of increases in per diem. No changes are made based on these 
comments. The amount of per diem to be paid is based on provisions of 
38 U.S.C. 1741. We intend to change the per diem amount in the 
regulations as quickly as possible after there is a basis for doing so.
    The provisions of Sec. 51.40(a)(5) state that as a condition for 
receiving payment of per diem the State must submit to the VA medical 
center of jurisdiction for each veteran completed VA Forms 10-10EZ, 
Application for Medical Benefits, and 10-10SH, State Home Program 
Application for Care-- Medical Certification, at the time of admission 
and with any request for a change in the level of care (domiciliary, 
hospital, or adult day health care). The 10-10SH form provides that it 
is to be completed by the ``primary physician assigned'' at the State 
facility. One commenter suggested that any physician (State, VA, or 
personal) should be allowed to complete the form. They further asserted 
that this could be a hardship for veterans ``who live around the 
State''. No changes are made based on this comment. The purpose of the 
forms, among other things, is to obtain information regarding whether 
the veteran has been admitted to the nursing home as a resident and 
whether the veteran meets eligibility criteria for per diem payments. 
It was not intended to be used by the State facility for an earlier 
State determination concerning whether a veteran should become a 
resident at the facility.
    The commenter further questioned whether VA would conduct any 
screening of applicants for admission to State homes. The commenter 
further questioned whether the facility needs to obtain prior approval 
before admitting a veteran as a resident or whether they can assume 
approval based on the submission of the appropriate forms. No changes 
are made based on these comments. In our view, the provisions for 
determining eligibility for placement for nursing home care are 
sufficiently clear so that State homes can make appropriate 
determinations without prior approval of residents by VA.
    The provisions of Sec. 51.40(a)(5) also provide that if the 
facility is eligible to receive per diem payments for a veteran, VA 
will pay per diem from the date of receipt of the completed forms 
required by this paragraph, except that VA will pay per diem from the 
day on which the veteran was admitted to the facility if the completed 
forms are received within 10 days after admission. One commenter 
asserted that the 10-day requirement is too short because information 
required by form 10-10EZ ``may be difficult to get.'' No changes are 
made based on this comment. The information requested is the basic 
information required for eligibility determinations. We do not see any 
reason why the information requested cannot be obtained at the time the 
veteran is admitted to a State home.
    As noted above, Sec. 51.40(a)(5) provides that if the forms are 
submitted to the VA medical center of jurisdiction within 10 days after 
admission, VA will pay per diem from the day on which the veteran was 
admitted. One commenter suggested that VA clarify who in VA must 
receive the completed forms. No changes are made based on this comment. 
All that is necessary is that the forms be received by the VA medical 
center of jurisdiction and if received within the 10 day period, the 
requirement will be met. Officials at the medical center will ensure 
that the forms are sent to the appropriate VA officials for processing.
    A veteran may be VA approved for nursing home care, then be 
approved for a different level of care (domiciliary, hospital, or adult 
day health care) for a period of time, and then be readmitted to 
nursing home care. One commenter asserted that the initial approval 
should be sufficient for any subsequent readmission. No changes are 
made based on this comment. The provisions of Sec. 51.40(a)(5) state 
that information must be submitted for each admission. This is 
necessary to ensure that the veteran still meets VA requirements for

[[Page 964]]

payment of per diem for that level of care.

Section 51.50  Eligible Veterans

    Per diem payments may be paid only for eligible veterans. Section 
51.50 specifies which individuals are eligible veterans. This includes 
paragraph (j) which consists of veterans who agree to pay to the United 
States the applicable co-payment determined under 38 U.S.C. 1710(f) and 
1710(g). Four commenters asserted that paragraph (j) should be deleted. 
No changes are made based on these comments. The eligibility 
requirements are established by statute (see 38 U.S.C. 1710(a)). 
Accordingly, the requirement for this category of eligible veterans 
cannot be changed by regulation.

Section 51.70  Resident Rights

    The advance directive provisions of Sec. 51.70(b)(7) of this rule 
and the provisions of a separate VA proposed rulemaking regarding 
advanced directives (63 FR 58678) would not prohibit an advance 
directive from being honored at a VA facility if it has not been signed 
by a notary public or Justice of the Peace. One commenter noted that 
such an advance directive might not be effective if the veteran were 
moved to a State home in which a State law requires the use of a notary 
public or Justice of the Peace. No changes are made based on this 
comment. Since VA cannot reasonably administer all State laws regarding 
advanced directives, we believe the responsibility for ensuring that 
advanced directives are effective in State homes rests within State 
home officials and not VA.
    One commenter asserted that Sec. 51.70(b)(7) presents a dilemma. 
The commenter asserted that if a person is incapacitated and unable to 
receive/understand information on advanced directives and does not have 
a power of attorney, he/she would be unable to give informed consent to 
moving to the home in the first place and their right to ``self-
determination'' Sec. 51.70(7) would be violated. No changes are made 
based on this comment. The provisions of Sec. 51.70(7) cover the issue 
of incapacitation. Section 51.70(7) states: ``If an individual is 
incapacitated at the time of admission and is unable to receive 
information (due to the incapacitating conditions) or articulate 
whether or not he or she has executed an advance directive, the 
facility may give advance directive information to the individual's 
family or surrogate in the same manner that it issues other materials 
about policies and procedures to the family of the incapacitated 
individual or to a surrogate or other concerned persons in accordance 
with State laws.''
    The provisions of Sec. 51.70(c)(1) state that the residents have a 
right to manage their financial affairs, and the facility and facility 
management may not require residents to deposit their personal funds 
with the facility. Commenters asserted that nursing home facilities 
should be allowed to require residents to deposit funds with the 
facility for payment of personal items. No changes are made based on 
these comments. Although many residents may choose to deposit an amount 
with the facility for personal items, we believe that residents should 
be allowed to pay for their personal items by check or other means they 
deem appropriate.
    One commenter suggested that a resident who insists on carrying 
large sums of cash should be required to sign a waiver for lost or 
misplaced funds. No changes are made in Sec. 51.70(c)(3) based on this 
comment. The final rule does not prohibit nursing homes from 
establishing such a policy.
    The provisions of proposed Sec. 51.70(c)(3) stated that the 
facility management must deposit any residents' personal funds in 
excess of $50 in an interest bearing account (or accounts) that is 
separate from any of the facility's operating accounts, and that 
credits all interest earned on the resident's funds to that account. 
(In pooled accounts, there must be a separate accounting for each 
resident's share.) One commenter asserted that any resident's personal 
funds held by facility management should be allowed to accrue interest 
for projects for the benefit of all residents if allowed by State law. 
No changes are made based on this comment. In our view, the interest 
generated from personal funds belongs to the owner of the funds and, 
therefore, should be held for the owner.
    One commenter suggested that the $50 threshold amount should be 
raised to $100. We agree and have changed the final rule accordingly. 
The larger amount will allow more flexibility for veterans and State 
homes and will still provide a reasonable threshold for requiring 
amounts to be placed in interest bearing accounts.
    The provisions of Sec. 51.70(c)(4)(ii) state that individual 
financial records must be available through quarterly statements and on 
request from the resident or legal representative. One commenter 
asserted that there is no need for any reports until requested. No 
changes are made based on this comment. We believe that residents who 
would not otherwise review their accounts would be more likely to do so 
if statements were received on a periodic basis. Further, this will 
help to ensure that any differences would be resolved in a timely 
manner.
    The provisions of proposed Sec. 51.70(c)(5) stated that upon the 
death of a resident with personal funds deposited with the facility, 
the facility management must convey within 30 days the resident's 
funds, and a final accounting of those funds, to the individual or 
probate jurisdiction administering the resident's estate. One commenter 
asserted that sometimes the cost to the family or interested parties to 
probate an estate may be prohibitive compared to what is left in the 
estate. This commenter indicated that at least one State allows for the 
transfer of balances to an appropriate family member. We have changed 
our final rule to allow for this possibility.
    The provisions of Sec. 51.70(i) state that a State home resident 
must have the right to privacy in written communications, including the 
right to send and promptly receive mail that is unopened. One commenter 
stated that facility officials need to be allowed to open VA and Social 
Security mail with permission of the veteran. The commenter further 
asserted that otherwise the veteran might miss appointments. No changes 
are made based on this comment. The final rule merely states that a 
veteran has the right to send and receive mail that is unopened. This 
does not prohibit an agreement between the facility and the resident to 
allow the facility to open the veteran's mail.
    The provisions of Sec. 51.70(j)(1) state that a resident must have 
the right to, and the facility management must provide, immediate 
access to a physician of the resident's choice. One commenter asserted 
that a physician, acting as a physician on behalf of a resident should 
not be allowed to provide care to a resident in the nursing home if the 
physician is not approved by the Medical Director to practice in the 
nursing home. The final rule at Sec. 51.210(j) already requires 
physicians practicing at the nursing home to be credentialed and 
privileged by the nursing home. The provisions of Sec. 51.70(j)(1) are 
amended to clarify this issue.
    The provisions of Sec. 51.70(l) states that the resident has the 
right to retain and use personal possessions, including some 
furnishings, and appropriate clothing, as space permits, unless to do 
so would infringe upon the rights or health and safety of other 
residents. One commenter asserted that the retention of personal 
furnishings should be at the sole discretion of the facility. No

[[Page 965]]

changes are made based on this comment. The final rule allows the 
resident to retain and use personal possessions ``as space permits.'' 
This gives the facility the needed discretion to ensure order within 
the facility.

Section 51.80  Admission, Transfer and Discharge Rights

    The provisions of Sec. 51.80(a)(1) state that transfer and 
discharge includes movement of a resident to a bed outside of the 
facility whether that bed is in the same physical plant or not. 
Transfer and discharge does not refer to movement of a resident to a 
bed within the same facility. One commenter asserted that the 
regulations were unclear as whether there would be transfer or 
discharge if a resident were moved from one level of care to another 
level of care in the same building or in the same complex of buildings. 
No changes are made based on this comment. The provisions of 
Sec. 51.80(a)(1) read in conjunction with the definition of facility in 
Sec. 51.2 clearly provide that a movement outside of the facility is 
any movement outside of the nursing home portion of the complex.

Section 51.100  Quality of Life

    The provisions of Sec. 51.100(g)(1)(2)(i) and (ii) state that the 
facility management must provide an ongoing program of activities 
designed to meet, in accordance with the comprehensive assessment, the 
interests and the physical, mental, and psychosocial well-being of each 
resident. The provisions require that the activities program be 
directed by a qualified professional who is a qualified therapeutic 
recreation specialist or an activities professional who is licensed or 
registered, if applicable, by the State in which practicing; and is 
certified as a therapeutic recreation specialist or as an activities 
professional by a recognized accrediting body. Two commenters asserted 
that these provisions are too stringent and that qualified personnel 
would be prohibited from working at the facility. No changes are made 
based on these comments. We believe these are the minimal criteria 
necessary to ensure that the ongoing program of activities is 
sufficient to meet, in accordance with the comprehensive assessment, 
the interests and the physical, mental, and psychological well-being of 
each veteran.
    The proposed provisions of Sec. 51.100(h)(3) stated that a social 
worker at a facility must have the following: a bachelor's degree in 
social work from a school accredited by the Council of Social Work 
Education and a social work license from the State in which the State 
home is located, if offered by the State, and a minimum of one year of 
supervised social work experience, under the supervision of a social 
worker with a master's degree, in a health care setting working 
directly with individuals. Six commenters opposed the provision that 
would require the experience to be under the supervision of a social 
worker with a master's degree. We agree and eliminated this provision. 
We believe that a social worker can provide adequate service without 
meeting such requirement.
    The provisions of Sec. 51.100(i)(6) state that facility management 
must provide comfortable and safe temperature levels. In this regard, 
it states that facilities must maintain a temperature range of 71-81 
degrees Fahrenheit. One commenter asserted that this requirement should 
be waived in older facilities where central air conditioning is not 
available. No changes are made based on this comment. The specified 
temperatures are necessary to ensure that residents are comfortable and 
safe.

Section 51.110  Resident Assessment

    The provisions of Sec. 51.110(b)(1)(iii) state that the facility 
management must make a comprehensive assessment of a resident's needs 
using the Health Care Financing Administration Long Term Care Resident 
Assessment Instrument Version 2.0; and describing the resident's 
capability to perform daily life functions, strengths, performances, 
needs as well as significant impairments in functional capacity. All 
nursing homes must be in compliance with this standard by no later than 
January 1, 2000. Two commenters asserted that the compliance date of 
January 1, 2000, must be extended. The commenters essentially asserted 
that more time is needed to computerize the process and train staff. No 
changes are made based on these comments. Most facilities report that 
they already are in compliance. Compliance is needed to ensure that 
facilities have standardized comprehensive assessments of resident 
needs.

Section 51.120  Quality of Care

    The proposed provisions of Sec. 51.120(a)(3) state that the 
facility management must report sentinel events to the director of the 
VA medical center of jurisdiction, VA Network Director (10N 1-22), 
Chief Network Officer (10N), and Chief Consultant, Geriatrics and 
Extended Care Strategic Healthcare Group (114) within 24 hours of 
identification. Nine commenters objected to reporting the same 
information to so many VA entities. They asserted that they should have 
to report only to one VA entity and that VA could report internally as 
it sees fit. We agree and have changed the final rule to provide for 
reporting to the VA medical center of jurisdiction. We also have added 
language requiring the VA medical center to immediately report to the 
other listed VA entities.
    One commenter also asserted that the report should be required to 
be submitted within 7 days rather than with 24 hours of identification 
of the event. No changes are made based on this comment. The sentinel 
events often reflect need for immediate review.

Section 51.130  Nursing Services

    The provisions of Sec. 51.130(d) state that the facility management 
must provide nursing services to ensure that there is direct care nurse 
staffing of no less than 2.5 hours per patient per 24 hours, 7 days per 
week. One commenter questioned whether managers would be included for 
calculating the 2.5 hours. No changes are made based on this comment. 
The provisions of paragraph (d) made clear that the 2.5 hours consist 
only of ``direct care nurse staffing''. Supervisory nurses normally 
would not meet these criteria.
    One commenter questioned whether the 2.5 hours requirement would be 
based on a facility-wide average or based on each individual nursing 
station. This was intended to apply to all or portion of a facility 
where the direct care nurses would have immediate access to nursing 
home care. In our view, this would be accomplished if the 2.5 hours 
requirement were met for all of any building providing nursing home 
care. We have clarified the final rule accordingly.
    In the past, we administratively imposed a 2.0 hours per patient 
per day requirement. One commenter asserted that we should retain the 
2.0 hour requirement. No changes are based on this comment. Although 
the 2.0 hour requirement was appropriate in the past, there has been a 
significant increase in patient acuity that requires the increase to 
2.5 hours.
    One commenter asserted that the 2.5 hours requirement should not 
become effective until January 2000. No changes are based on this 
comment. Almost all State homes providing nursing home care currently 
meet the 2.5 hours requirement. Further, we believe this is a minimal 
requirement for ensuring adequate care for nursing home care patients.
    One commenter asserted that the 2.5 hours requirement should be 
allowed to include paid staff break times. No changes based on this 
comment. Breaks,

[[Page 966]]

including lunch, are not included. The 2.5 hours constitute minimum 
criteria for ensuring the availability of adequate care.
    One commenter asserted that an increase from the 2.0 hours 
requirement to a 2.5 hours requirement constitutes an unfunded mandate 
and, consequently, is subject to Federal unfunded mandate requirements. 
No changes are made based on this comment. The provisions of 2 U.S.C. 
658 exclude from any Federal unfunded mandate requirements any 
regulation that imposes a duty on a State as a condition of Federal 
Assistance and (with exceptions not relevant to this care) any 
regulation that imposes a duty arising from participation in a 
voluntary Federal Program.
    One commenter questioned whether certain circumstances might 
require 3.0 hours per patient. No changes are made based on this 
comment. The 2.5 hours requirement is a minimum requirement. The 
provision of paragraph (e) also require that nursing care must be 
adequate for meeting the standards of part D. A high patient acuity 
could require more nursing care than those set forth as minimum 
standards.
    The provisions of Sec. 51.130(e) state that nurse staffing must be 
based on a staffing methodology that applies case-mix and is adequate 
for meeting the standards of this part. One commenter argued that the 
final rule should establish a specific standard for staffing 
methodology. No changes are made based on this comment. Although the 
staffing methodology must apply case mix and be adequate for meeting 
the standards of subpart D, we believe that several methodologies would 
be adequate for meeting the requirement.

Section 51.140  Dietary Services

    The provisions of Sec. 51.140(f)(2) state that there must be no 
more than 14 hours between a substantial evening meal and breakfast the 
following day, except that the 14 hour period may be extended to 16 
hours if a resident group agrees to the extension and a nourishing 
snack is provided at bedtime. Two commenters noted that some residents 
wish to sleep late and have a late breakfast that may exceed the 14 
hours. They indicated that the breakfast meal should merely be 
available within the 14 hour time period. We agree and have made 
appropriate changes to the final rule.

Section 51.150  Physician Services

    The provisions of Sec. 51.150(d) state that the facility management 
must provide or arrange for the provision of physician services 24 
hours a day, 7 days per week, in case of an emergency. One commenter 
asserted that physician assistants should be able to act for physicians 
within their scope of practice. No changes are made based on this 
comment. This must be limited to physicians since a need could arise 
that would be beyond the scope of practice of physician assistants.
    Under the provisions of proposed Sec. 51.150(e) the primary 
physician may not delegate a task when the regulations specify that the 
primary physician must perform it personally or when the delegation is 
prohibited under State law or by the facility's own policies. 
Otherwise, under these provisions a primary physician may delegate 
tasks to a certified physician assistant or a certified nurse 
practitioner, or a clinical nurse specialist who is acting within the 
scope of practice as defined by State law and who is under the 
supervision of the physician. These provisions also include a note 
stating that a certified clinical nurse specialist with experience in 
long term care is preferred. Two commenters asserted that the note 
should be clarified to reflect that experience in long term care is 
preferred for physician assistants and certified nurse practitioners as 
well as clinical nurse specialist. We have amended the note 
accordingly.

Section 51.180  Pharmacy Services

    The provisions of Sec. 51.180 state that the facility management 
must employ or obtain the services of a pharmacist licensed in a State 
in which the facility is located. One commenter asserted that the final 
rule should allow facilities to obtain the services of a VA pharmacist 
under a VA contract arrangement even if the VA pharmacist is not 
licensed in the State. We agree and have made appropriate changes. The 
purpose of this limitation is to ensure that the facility is able to 
obtain information for drug reviews and otherwise ensure appropriate 
on-site drug services. This purpose can be accomplished with VA 
pharmacist under VA contract.

Section 51.200  Physical Environment

    The provisions of Sec. 51.200(d) state that resident rooms must be 
designed and equipped for adequate nursing care, comfort, and privacy 
of residents. Bedrooms must accommodate no more than four residents; 
must measure at least 115 net square feet per resident in multiple 
resident bedrooms; must measure at least 150 net square feet in single 
resident bedrooms; must measure at least 245 net square feet in small 
double resident bedrooms; and measure at least 305 net square feet in 
large double resident bedrooms used for spinal cord injury residents. 
It is recommended that the facility have one large double resident 
bedroom for every 30 resident bedrooms. Six commenters asserted that 
these square footage requirements should be reduced or apply only to 
new construction. No changes are made based on these comments. We 
believe that the square footage requirements are necessary to ensure 
sufficient space for normal daily living activities, including adequate 
room for movements of wheel chairs.
    The provisions of Sec. 51.200(d)(x) state that resident rooms must 
have a floor at or above grade level. One commenter asserted they have 
one subgrade unit that should be exempted from the requirement in 
Sec. 51.200(d)(x). No changes are made based on this comment. We 
believe that nursing home care units must be at floor level or above to 
help ensure the availability of natural ventilation and opportunity for 
seeing outside.

Section 51.210  Administration

    The provisions of proposed Sec. 51.210(b)(3) provide that the State 
must give written notice to the Chief Consultant, Geriatrics and 
Extended Care Strategic Healthcare Group (114) at the time of the 
change of the State home director of nursing. One commenter argued that 
there is no need to give notice of a change regarding the State home 
director of nursing. We agree and have changed Sec. 51.210(b)(3) 
accordingly. The notification requirement was intended to ensure that 
VA had a point of contact at the facility. The final rule requires 
written notice of a change in a State home administrator and the State 
employee responsible for oversight of the State home facility if a 
contractor operates the State home. This is sufficient for ensuring 
that VA has a current point of contact.
    The provisions of Sec. 51.210(c), among other things, state that 
the facility management must submit the following to the director of 
the VA medical center of jurisdiction as often as necessary to be 
current: The number of the staff by category indicating full-time, 
part-time and minority designation and the number of nursing home 
patients who are veterans and non-veterans, the number of veterans who 
are minorities and the number of non-veterans who are minorities.
    One commenter suggested that changes should be required to be 
reported only on a semi-annual or annual basis. We have changed 
Sec. 51.210(c) to state that the facility must submit the information 
in question annually. The reporting requirements raised by the 
commenter are necessary

[[Page 967]]

for determining whether facilities continue to meet the standards in 
subpart D, for determining whether facilities meet the criteria for 
obtaining per diem, and to help ensure compliance with civil rights 
laws. We believe that annual reporting is sufficient to meet the 
intended purpose.
    The provisions of Sec. 51.210(d) state that the percent of the 
facility residents eligible for VA nursing home care must be at least 
75 percent veterans except that the veteran percentage need only be 
more than 50 percent if the facility was constructed or renovated 
solely with State funds. This paragraph further states that all non-
veteran residents must be spouses of veterans or parents all of whose 
children died while serving in the armed forces of the United States.
    One commenter asserted that the definition of State home should 
include language stating that care may be provided for a spouse of a 
veteran as allowed by individual State law. Three commenters argued 
that honorably discharged members of the National Guard and certain 
non-listed individuals related to veterans should be allowed to be 
included as nonveterans at State nursing homes. No changes are made 
based on these comments. The requirements concerning non-veterans are 
necessary to ensure that the State homes are used for veterans as 
required by 38 U.S.C. 101(19). We believe the narrow exceptions are 
necessary for the well being of veterans and we do not believe that it 
is in the best interests of veterans to expand this further.
    The provisions of proposed Sec. 51.210(j) stated that the facility 
management must uniformly apply credentialing criteria to licensed 
independent practitioners applying to provide resident care or 
treatment under the facility's care. The provisions of proposed 
Sec. 51.210(j) further state that the facility management must verify 
and uniformly apply the following core criteria: Current license; 
current certification, if applicable; relevant education, training, and 
experience; current competence; and a statement that the individual is 
able to perform the services he or she is applying to provide. One 
commenter asserted that the word ``independent'' be deleted so that 
credentialing criteria would apply to physician assistants. We agree 
and have deleted the word ``independent'' since physician assistants 
may be credentialed. Another commenter asserted that the requirements 
of Sec. 51.210(j) are too stringent. No changes are made based on this 
comment. The required information is basic information needed to ensure 
that the practitioners caring for the veterans are qualified to do so.
    The provisions of proposed Sec. 51.210(j)(5) stated that when 
reappointing a licensed independent practitioner, the facility 
management must review the individual's track record. Two commenters 
asserted that the term ``track record'' was too colloquial and should 
be replaced with ``record of experience.'' We agree and have changed 
the final rule accordingly.
    The provisions of proposed Sec. 51.210(n)(2)(i) stated that the 
facility must provide or obtain radiology and other diagnostic services 
only when ordered by the primary physician. One commenter asserted that 
the final rule should reflect that radiology and other diagnostic 
services may be ordered by a physician assistant. We agree and have 
deleted the word ``only.'' The authority and limitations for a 
physician assistant to order radiology and other diagnostic services 
are set forth at Sec. 51.150(e) of the final rule.

VA Form 10-10SH

    VA Form 10-10SH, State Home Program Application for Veteran Care--
Medical Certification, provides a medical certification for individuals 
admitted to a State nursing home facility and for the State applying 
for per diem payments. The form is required to be signed by the primary 
physician as well as other staff members. One commenter asserted that 
the form should be amended to allow physician assistants to conduct 
medical evaluations and to sign the medical evaluation form. No changes 
are made based on this comment. Physician assistants would not have the 
privileges necessary for admitting patients.

Incorporation by Reference

    In Sec. 51.200, paragraphs (a), (b)(2), and (b)(4) incorporate by 
reference the National Fire Protection Association's NFPA 101, Life 
Safety Code, 1997 edition and the NFPA 99, Standard for Health Care 
Facilities, 1996 edition. This action would require State homes 
providing nursing home care to eligible veterans to comply with a 
national code based on actual fire experience across the country. This 
is necessary to help ensure that veterans are placed in facilities that 
are adequately protected against fires and the final rule is designed 
to ensure that State homes meet the fire and safety provisions of the 
Life Safety Code.

Forms

    We have placed all forms that apply to this rule in a new Part 58 
for the purpose of making it easier to find the forms.

Executive Order 12866

    This document was reviewed by the Office of Management and Budget 
under Executive Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires (in section 202) that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any given year. This final rule will have no 
consequential effect on State, local or tribal governments.

Regulatory Flexibility Act

    The Secretary hereby certifies that the adoption of this final rule 
would not have a significant economic impact on a substantial number of 
small entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. All of the entities that are subject to this final rule 
are State government entities under the control of State governments. 
Of the 93 State homes, all are operated by State governments except for 
16 that are operated by entities under contract with State governments. 
These contractors are not small entities. Therefore, pursuant to 5 
U.S.C. 605(b), this final rule is exempt from the initial and final 
regulatory flexibility analysis requirement of Secs. 603 and 604.

Paperwork Reduction Act of 1995

    The collection of information contained in the notice of the 
proposed rulemaking was submitted to the Office of Management and 
Budget (OMB) for review in accordance with the Paperwork Reduction Act 
(44 U.S.C. 3540(h)). The information collections subject to this 
rulemaking are set forth in the provisions of Secs. 51.20, 51.30, 
51.40, 51.70, 51.80, 51.90, 51.100, 51.110, 51.120, 51.150, 51.160, 
51.180, 51.190 and 51.210 of this final rule.
    In this regard, the final rule requires facilities to supply 
various kinds of information regarding facilities providing nursing 
home care to ensure that high quality care is furnished to veterans who 
are residents in such facilities. The information includes an 
application for recognition based on certification; appeal information; 
application and justification for payment; records and reports which 
facility management must maintain regarding activities of residents; to 
include information relating to whether the facility meets standards 
concerning

[[Page 968]]

residents rights and responsibilities prior to admission, during 
admission, and upon discharge; the records and reports which facility 
management and health care professionals must maintain regarding 
residents and employees; various types of documentation pertaining to 
the management of the facility; food menu planning; pharmaceutical 
records; and life safety documentation.
    Interested parties were invited to submit comments on the 
collection of information. We received two comments from two 
commenters. One comment is discussed above under the heading VA Form 
10-10SH. One commenter suggested that VA provide for electronic 
transmission of forms. No changes are made based on this comment. We 
are working on a system to allow the electronic transmission of forms. 
This is not available yet from VA.
    One commenter asserted that the proposed rule did not identify how 
often information is required to be collected. No changes are made 
based on this comment. Each of the sections containing collections of 
information specify how often the information must be collected.
    The proposed rule states that the average burden per collection is 
14 minutes and that the annual reporting and recordkeeping burden for 
each State home is slightly less than 1 hour (12,467 total hours and 
13,136 respondents). One commenter asserted that these numbers may not 
be accurate. No changes are made based on these comments. These figures 
are based on sampling in the field.
    OMB has approved this information collection under control number 
2900-0160 except for VA Form 10-10EZ which is approved under 2900-0091. 
This approval is through January 31, 2002, except for VA Form 10-10EZ, 
which is approved through October 31, 2001. VA is not authorized to 
impose a penalty on persons for failure to comply with information 
collection requirements which do not display a current OMB control 
number, if required.

List of Subjects in 38 CFR Parts 17, 51, and 58

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs-health, Government programs-
veterans, Health care, Health facilities, Health professions, Health 
records, Homeless, Incorporation by reference, Medical and dental 
schools, Medical devices, Medical research, Mental health programs, 
Nursing homes, Philippines, Reporting and recordkeeping requirements, 
Scholarships and fellowships, Travel and transportation expenses, 
Veterans.

    Approved: August 13, 1999.
Togo D. West, Jr.,
Secretary of Veterans Affairs.

    For the reason set out in the preamble, 38 CFR Chapter I is amended 
as follows:

PART 17--MEDICAL

    1. The authority citation for part 17 continues to read as follows:

    Authority: 38 U.S.C. 501, 1721, unless otherwise noted.


Sec. 17.190  [Amended]

    2. In Sec. 17.190, the introductory text is amended by removing 
``hospital, domiciliary or nursing home'' and adding, in its place, 
``hospital or domiciliary;'' paragraph (a) is amended by removing ``or 
nursing home care;'' paragraph (b) is amended by removing ``nursing 
home care patients or;'' and paragraph (d) is removed.


Sec. 17.191  [Amended]

    3. Section 17.191 is amended by removing ``domiciliary, nursing 
home'' and adding, in its place, ``domiciliary.''


Sec. 17.192  [Amended]

    4. Section 17.192 is amended by removing ``nursing home or''.


Sec. 17.193  [Amended]

    5. Section 17.193 is amended by removing the second sentence 
thereof.


Sec. 17.195  [Removed]

    6. Section 17.195 is removed.


Sec. 17.197  [Amended]

    7. Section 17.197 is amended by removing ``section 1741(a)(2) for 
nursing home care;.''


Sec. 17.198  [Amended]

    8. Section 17.198 is amended by removing ``hospital, domiciliary or 
nursing home'' and adding, in its place, ``hospital or domiciliary.''


Secs. 17.190 through 17.199  [Amended]

    9. A ``Note'' is added immediately following the undesignated 
center heading above Sec. 17.190 to read as follows:

    Note: Sections 17.190 through 17.200 do not apply to nursing 
home care in State homes. The provisions for nursing home care in 
State homes are set forth in 38 CFR part 51.

    10. Part 51 is added to read as follows:

PART 51--PER DIEM FOR NURSING HOME CARE OF VETERANS IN STATE HOMES

Subpart A--General

Sec.
51.1  Purpose.
51.2  Definitions.

Subpart B--Obtaining Per Diem for Nursing Home Care in State Homes

51.10  Per diem based on recognition and certification.
51.20  Application for recognition based on certification.
51.30  Recognition and certification.
51.31  Automatic recognition.

Subpart C--Per Diem Payments

51.40  Monthly payment.
51.50  Eligible veterans.

Subpart D--Standards

51.60  Standards applicable for payment of per diem.
51.70  Resident rights.
51.80  Admission, transfer and discharge rights.
51.90  Resident behavior and facility practices.
51.100  Quality of life.
51.110  Resident assessment.
51.120  Quality of care.
51.130  Nursing services.
51.140  Dietary services.
51.150  Physician services.
51.160  Specialized rehabilitative services.
51.170  Dental services.
51.180  Pharmacy services.
51.190  Infection control.
51.200  Physical environment.
51.210  Administration.

    Authority: 38 U.S.C. 101, 501, 1710, 1741-1743.

Subpart A--General


Sec. 51.1  Purpose.

    This part sets forth the mechanism for paying per diem to State 
homes providing nursing home care to eligible veterans and is intended 
to ensure that veterans receive high quality care in State homes.


Sec. 51.2  Definitions.

    For purposes of this part:
    Clinical nurse specialist means a licensed professional nurse with 
a master's degree in nursing with a major in a clinical nursing 
specialty from an academic program accredited by the National League 
for Nursing and at least 2 years of successful clinical practice in the 
specialized area of nursing practice following this academic 
preparation.
    Facility means a building or any part of a building for which a 
State has submitted an application for recognition as a State home for 
the provision of nursing home care or a building or any part of a 
building which VA has recognized as a State home for the provision of 
nursing home care.

[[Page 969]]

    Nurse practitioner means a licensed professional nurse who is 
currently licensed to practice in the State; who meets the State's 
requirements governing the qualifications of nurse practitioners; and 
who is currently certified as an adult, family, or gerontological nurse 
practitioner by the American Nurses' Association.
    Nursing home care means the accommodation of convalescents or other 
persons who are not acutely ill and not in need of hospital care, but 
who require skilled nursing care and related medical services.
    Physician means a doctor of medicine or osteopathy legally 
authorized to practice medicine or surgery in the State.
    Physician assistant means a person who meets the applicable State 
requirements for physician assistant, is currently certified by the 
National Commission on Certification of Physician Assistants (NCCPA) as 
a physician assistant, and has an individualized written scope of 
practice that determines the authorization to write medical orders, 
prescribe medications and other clinical tasks under appropriate 
physician supervision which is approved by the primary care physician.
    Primary physician or primary care physician means a designated 
generalist physician responsible for providing, directing and 
coordinating all health care that is indicated for the residents.
    State means each of the several States, territories, and 
possessions of the United States, the District of Columbia, and the 
Commonwealth of Puerto Rico.
    State home means a home approved by VA which a State established 
primarily for veterans disabled by age, disease, or otherwise, who by 
reason of such disability are incapable of earning a living. A State 
home may provide domiciliary care, nursing home care, adult day health 
care, and hospital care. Hospital care may be provided only when the 
State home also provides domiciliary and/or nursing home care.
    VA means the U.S. Department of Veterans Affairs.

Subpart B--Obtaining Per Diem for Nursing Home Care in State Homes


Sec. 51.10  Per diem based on recognition and certification.

    VA will pay per diem to a State for providing nursing home care to 
eligible veterans in a facility if the Under Secretary for Health 
recognizes the facility as a State home based on a current 
certification that the facility and facility management meet the 
standards of subpart D of this part. Also, after recognition has been 
granted, VA will continue to pay per diem to a State for providing 
nursing home care to eligible veterans in such a facility for a 
temporary period based on a certification that the facility and 
facility management provisionally meet the standards of subpart D.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.20  Application for recognition based on certification.

    To apply for recognition and certification of a State home for 
nursing home care, a State must:
    (a) Send a request for recognition and certification to the Under 
Secretary for Health (10), VA Headquarters, 810 Vermont Avenue, NW., 
Washington, DC 20420. The request must be in the form of a letter and 
must be signed by the State official authorized to establish the State 
home;
    (b) Allow VA to survey the facility as set forth in Sec. 51.30(c); 
and
    (c) Upon request from the director of the VA medical center of 
jurisdiction, submit to the director all documentation required under 
subpart D of this part.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.30  Recognition and certification.

    (a)(1) The Under Secretary for Health will make the determination 
regarding recognition and the initial determination regarding 
certification, after receipt of a tentative determination from the 
director of the VA medical center of jurisdiction regarding whether, 
based on a VA survey, the facility and facility management meet or do 
not meet the standards of subpart D of this part. The Under Secretary 
for Health will notify the official in charge of the facility, the 
State official authorized to oversee operations of the State home, the 
VA Network Director (10N 1-22), Chief Network Officer (10N), and the 
Chief Consultant, Geriatrics and Extended Care Strategic Healthcare 
Group (114) of the action taken.
    (2) For each facility recognized as a State home, the director of 
the VA medical center of jurisdiction will certify annually whether the 
facility and facility management meet, provisionally meet, or do not 
meet the standards of subpart D of this part (this certification should 
be made every 12 months during the recognition anniversary month or 
during a month agreed upon by the VA medical care center director and 
officials of the State home facility). A provisional certification will 
be issued by the director only upon a determination that the facility 
or facility management does not meet one or more of the standards in 
subpart D, that the deficiencies do not jeopardize the health or safety 
of the residents, and that the facility management and the director 
have agreed to a plan of correction to remedy the deficiencies in a 
specified amount of time (not more time than the VA medical center of 
jurisdiction director determines is reasonable for correcting the 
specific deficiencies). The director of the VA medical center of 
jurisdiction will notify the official in charge of the facility, the 
State official authorized to oversee the operations of the State home, 
the VA Network Director (10N 1-22), Chief Network Officer (10N) and the 
Chief Consultant, Geriatrics and Extended Care Strategic Healthcare 
Group (114) of the certification, provisional certification, or 
noncertification.
    (b) Once a facility has achieved recognition, the recognition will 
remain in effect unless the State requests that the recognition be 
withdrawn or the Under Secretary for Health makes a final decision that 
the facility or facility management does not meet the standards of 
subpart D. Recognition of a facility will apply only to the facility as 
it exists at the time of recognition; any annex, branch, enlargement, 
expansion, or relocation must be separately recognized.
    (c) Both during the application process for recognition and after 
the Under Secretary for Health has recognized a facility, VA may survey 
the facility as necessary to determine if the facility and facility 
management comply with the provisions of this part. Generally, VA will 
provide advance notice to the State before a survey occurs; however, 
surveys may be conducted without notice. A survey, as necessary, will 
cover all parts of the facility, and include a review and audit of all 
records of the facility that have a bearing on compliance with any of 
the requirements of this part (including any reports from State or 
local entities). For purposes of a survey, at the request of the 
director of the VA medical center of jurisdiction, the State home 
facility management must submit to the director a completed VA Form 10-
3567, Staffing Profile, set forth at Sec. 58.10 of this chapter. The 
director of the VA medical center of jurisdiction will designate the VA 
officials to survey the facility. These officials may include 
physicians; nurses; pharmacists; dietitians; rehabilitation therapists; 
social workers; representatives from health administration, 
engineering, environmental management systems, and fiscal officers.
    (d) If the director of the VA medical center of jurisdiction 
determines that

[[Page 970]]

the State home facility or facility management does not meet the 
standards of this part, the director will notify the State home 
facility in writing of the standards not met. The director will send a 
copy of this notice to the State official authorized to oversee 
operations of the facility, the VA Network Director (10N 1-22), the 
Chief Network Officer (10N), and the Chief Consultant, Geriatrics and 
Extended Care Strategic Healthcare Group (114). The letter will include 
the reasons for the decision and indicate that the State has the right 
to appeal the decision.
    (e) The State must submit the appeal to the Under Secretary for 
Health in writing, within 30 days of receipt of the notice of failure 
to meet the standards. In its appeal, the State must explain why the 
determination is inaccurate or incomplete and provide any new and 
relevant information not previously considered. Any appeal that does 
not identify a reason for disagreement will be returned to the sender 
without further consideration.
    (f) After reviewing the matter, including any relevant supporting 
documentation, the Under Secretary for Health will issue a written 
determination that affirms or reverses the previous determination. If 
the Under Secretary for Health decides that the facility does not meet 
the standards of subpart D of this part, the Under Secretary for Health 
will withdraw recognition and stop paying per diem for care provided on 
and after the date of the decision. The decision of Under Secretary for 
Health will constitute a final VA decision. The Under Secretary for 
Health will send a copy of this decision to the State home facility and 
to the State official authorized to oversee the operations of the State 
home.
    (g) In the event that a VA survey team or other VA medical center 
staff identifies any condition that poses an immediate threat to public 
or patient safety or other information indicating the existence of such 
a threat, the director of VA medical center of jurisdiction will 
immediately report this to the VA Network Director (10N 1-22), Chief 
Network Officer (10N), Chief Consultant, Geriatrics and Extended Care 
Strategic Healthcare Group (114) and State official authorized to 
oversee operations of the State home.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.31  Automatic recognition.

    Notwithstanding other provisions of this part, a facility that 
already is recognized by VA as a State home for nursing home care at 
the time this part becomes effective, automatically will continue to be 
recognized as a State home for nursing home care but will be subject to 
all of the provisions of this part that apply to facilities that have 
achieved recognition, including the provisions requiring that the 
facility meet the standards set forth in subpart D and the provisions 
for withholding per diem payments and withdrawal of recognition.

Subpart C--Per Diem Payments


Sec. 51.40  Monthly payment.

    (a)(1) VA will pay per diem monthly for nursing home care provided 
to an eligible veteran in a facility recognized as a State home for 
nursing home care. During Fiscal Year 2000, VA will pay the lesser of 
the following:
    (i) One-half of the cost of the care for each day the veteran is in 
the facility; or
    (ii) $50.55 for each day the veteran is in the facility.
    (2) Per diem will be paid only for the days that the veteran is a 
resident at the facility. For purposes of paying per diem, VA will 
consider a veteran to be a resident at the facility during each full 
day that the veteran is receiving care at the facility. VA will not 
deem the veteran to be a resident at the facility if the veteran is 
receiving care outside the State home facility at VA expense. 
Otherwise, VA will deem the veteran to be a resident at the facility 
during any absence from the facility that lasts for no more than 96 
consecutive hours. This absence will be considered to have ended when 
the veteran returns as a resident if the veteran's stay is for at least 
a continuous 24-hour period.
    (3) As a condition for receiving payment of per diem under this 
part, the State must submit a completed VA Form 10-5588, State Home 
Report and Statement of Federal Aid Claimed. This form is set forth in 
full at Sec. 58.11 of this chapter.
    (4) Initial payments will not be made until the Under Secretary for 
Health recognizes the State home. However, payments will be made 
retroactively for care that was provided on and after the date of the 
completion of the VA survey of the facility that provided the basis for 
determining that the facility met the standards of this part.
    (5) As a condition for receiving payment of per diem under this 
part, the State must submit to the VA medical center of jurisdiction 
for each veteran the following completed VA Forms 10-10EZ, Application 
for Medical Benefits, and 10-10SH, State Home Program Application for 
Care--Medical Certification, at the time of admission and with any 
request for a change in the level of care (domiciliary, hospital care 
or adult day health care). These forms are set forth in full at 
Secs. 58.12 and 58.13 of this chapter, respectively, of this part. If 
the facility is eligible to receive per diem payments for a veteran, VA 
will pay per diem under this part from the date of receipt of the 
completed forms required by this paragraph, except that VA will pay per 
diem from the day on which the veteran was admitted to the facility if 
the completed forms are received within 10 days after admission.
    (b) Total per diem costs for an eligible veteran's nursing home 
care consist of those direct and indirect costs attributable to nursing 
home care at the facility divided by the total number of patients at 
the nursing home. Relevant cost principles are set forth in the Office 
of Management and Budget (OMB) Circular number A-87, dated May 4, 1995, 
``Cost Principles for State, Local, and Indian Tribal Governments.''

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.50  Eligible veterans.

    A veteran is an eligible veteran under this part if VA determines 
that the veteran needs nursing home care and the veteran is within one 
of the following categories:
    (a) Veterans with service-connected disabilities;
    (b) Veterans who are former prisoners of war;
    (c) Veterans who were discharged or released from active military 
service for a disability incurred or aggravated in the line of duty;
    (d) Veterans who receive disability compensation under 38 U.S.C. 
1151;
    (e) Veterans whose entitlement to disability compensation is 
suspended because of the receipt of retired pay;
    (f) Veterans whose entitlement to disability compensation is 
suspended pursuant to 38 U.S.C. 1151, but only to the extent that such 
veterans' continuing eligibility for nursing home care is provided for 
in the judgment or settlement described in 38 U.S.C. 1151;
    (g) Veterans who VA determines are unable to defray the expenses of 
necessary care as specified under 38 U.S.C. 1722(a);
    (h) Veterans of the Mexican border period or of World War I;
    (i) Veterans solely seeking care for a disorder associated with 
exposure to a toxic substance or radiation or for a disorder associated 
with service in the Southwest Asia theater of operations during the 
Persian Gulf War, as provided in 38 U.S.C. 1710(e);
    (j) Veterans who agree to pay to the United States the applicable 
co-payment

[[Page 971]]

determined under 38 U.S.C. 1710(f) and 1710(g).

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)

Subpart D--Standards


Sec. 51.60  Standards applicable for payment of per diem.

    The provisions of this subpart are the standards that a State home 
and facility management must meet for the State to receive per diem for 
nursing home care.


Sec. 51.70  Resident rights.

    The resident has a right to a dignified existence, self-
determination, and communication with and access to persons and 
services inside and outside the facility. The facility management must 
protect and promote the rights of each resident, including each of the 
following rights:
    (a) Exercise of rights. (1) The resident has the right to exercise 
his or her rights as a resident of the facility and as a citizen or 
resident of the United States.
    (2) The resident has the right to be free of interference, 
coercion, discrimination, and reprisal from the facility management in 
exercising his or her rights.
    (3) The resident has the right to freedom from chemical or physical 
restraint.
    (4) In the case of a resident determined incompetent under the laws 
of a State by a court of jurisdiction, the rights of the resident are 
exercised by the person appointed under State law to act on the 
resident's behalf.
    (5) In the case of a resident who has not been determined 
incompetent by the State court, any legal-surrogate designated in 
accordance with State law may exercise the resident's rights to the 
extent provided by State law.
    (b) Notice of rights and services. (1) The facility management must 
inform the resident both orally and in writing in a language that the 
resident understands of his or her rights and all rules and regulations 
governing resident conduct and responsibilities during the stay in the 
facility. Such notification must be made prior to or upon admission and 
periodically during the resident's stay.
    (2) The resident or his or her legal representative has the right:
    (i) Upon an oral or written request, to access all records 
pertaining to himself or herself including current clinical records 
within 24 hours (excluding weekends and holidays); and
    (ii) After receipt of his or her records for review, to purchase at 
a cost not to exceed the community standard photocopies of the records 
or any portions of them upon request and with 2 working days advance 
notice to the facility management.
    (3) The resident has the right to be fully informed in language 
that he or she can understand of his or her total health status;
    (4) The resident has the right to refuse treatment, to refuse to 
participate in experimental research, and to formulate an advance 
directive as specified in paragraph (b)(7) of this section; and
    (5) The facility management must inform each resident before, or at 
the time of admission, and periodically during the resident's stay, of 
services available in the facility and of charges for those services to 
be billed to the resident.
    (6) The facility management must furnish a written description of 
legal rights which includes:
    (i) A description of the manner of protecting personal funds, under 
paragraph (c) of this section;
    (ii) A statement that the resident may file a complaint with the 
State (agency) concerning resident abuse, neglect, misappropriation of 
resident property in the facility, and non-compliance with the advance 
directives requirements.
    (7) The facility management must have written policies and 
procedures regarding advance directives (e.g., living wills) that 
include provisions to inform and provide written information to all 
residents concerning the right to accept or refuse medical or surgical 
treatment and, at the individual's option, formulate an advance 
directive. This includes a written description of the facility's 
policies to implement advance directives and applicable State law. If 
an individual is incapacitated at the time of admission and is unable 
to receive information (due to the incapacitating conditions) or 
articulate whether or not he or she has executed an advance directive, 
the facility may give advance directive information to the individual's 
family or surrogate in the same manner that it issues other materials 
about policies and procedures to the family of the incapacitated 
individual or to a surrogate or other concerned persons in accordance 
with State law. The facility management is not relieved of its 
obligation to provide this information to the individual once he or she 
is no longer incapacitated or unable to receive such information. 
Follow-up procedures must be in place to provide the information to the 
individual directly at the appropriate time.
    (8) The facility management must inform each resident of the name 
and way of contacting the primary physician responsible for his or her 
care.
    (9) Notification of changes. (i) Facility management must 
immediately inform the resident; consult with the primary physician; 
and if known, notify the resident's legal representative or an 
interested family member when there is--
    (A) An accident involving the resident which results in injury and 
has the potential for requiring physician intervention;
    (B) A significant change in the resident's physical, mental, or 
psychosocial status (i.e., a deterioration in health, mental, or 
psychosocial status in either life-threatening conditions or clinical 
complications);
    (C) A need to alter treatment significantly (i.e., a need to 
discontinue an existing form of treatment due to adverse consequences, 
or to commence a new form of treatment); or
    (D) A decision to transfer or discharge the resident from the 
facility as specified in Sec. 51.80(a) of this part.
    (ii) The facility management must also promptly notify the resident 
and, if known, the resident's legal representative or interested family 
member when there is--
    (A) A change in room or roommate assignment as specified in 
Sec. 51.100(f)(2); or
    (B) A change in resident rights under Federal or State law or 
regulations as specified in paragraph (b)(1) of this section.
    (iii) The facility management must record and periodically update 
the address and phone number of the resident's legal representative or 
interested family member.
    (c) Protection of resident funds. (1) The resident has the right to 
manage his or her financial affairs, and the facility management may 
not require residents to deposit their personal funds with the 
facility.
    (2) Management of personal funds. Upon written authorization of a 
resident, the facility management must hold, safeguard, manage, and 
account for the personal funds of the resident deposited with the 
facility, as specified in paragraphs (c)(3) through (c)(6) of this 
section.
    (3) Deposit of funds. (i) Funds in excess of $100. The facility 
management must deposit any residents' personal funds in excess of $100 
in an interest bearing account (or accounts) that is separate from any 
of the facility's operating accounts, and that credits all interest 
earned on resident's funds to that account. (In pooled accounts, there 
must be a separate accounting for each resident's share.)
    (ii) Funds less than $100. The facility management must maintain a 
resident's

[[Page 972]]

personal funds that do not exceed $100 in a non-interest bearing 
account, interest-bearing account, or petty cash fund.
    (4) Accounting and records. The facility management must establish 
and maintain a system that assures a full and complete and separate 
accounting, according to generally accepted accounting principles, of 
each resident's personal funds entrusted to the facility on the 
resident's behalf.
    (i) The system must preclude any commingling of resident funds with 
facility funds or with the funds of any person other than another 
resident.
    (ii) The individual financial record must be available through 
quarterly statements and on request from the resident or his or her 
legal representative.
    (5) Conveyance upon death. Upon the death of a resident with a 
personal fund deposited with the facility, the facility management must 
convey within 30 days the resident's funds, and a final accounting of 
those funds, to the individual or probate jurisdiction administering 
the resident's estate; or other appropriate individual or entity, if 
State law allows.
    (6) Assurance of financial security. The facility management must 
purchase a surety bond, or otherwise provide assurance satisfactory to 
the Under Secretary for Health, to assure the security of all personal 
funds of residents deposited with the facility.
    (d) Free choice. The resident has the right to--
    (1) Be fully informed in advance about care and treatment and of 
any changes in that care or treatment that may affect the resident's 
well-being; and
    (2) Unless determined incompetent or otherwise determined to be 
incapacitated under the laws of the State, participate in planning care 
and treatment or changes in care and treatment.
    (e) Privacy and confidentiality. The resident has the right to 
personal privacy and confidentiality of his or her personal and 
clinical records.
    (1) Residents have a right to personal privacy in their 
accommodations, medical treatment, written and telephone 
communications, personal care, visits, and meetings of family and 
resident groups. This does not require the facility management to give 
a private room to each resident.
    (2) Except as provided in paragraph (e)(3) of this section, the 
resident may approve or refuse the release of personal and clinical 
records to any individual outside the facility;
    (3) The resident's right to refuse release of personal and clinical 
records does not apply when--
    (i) The resident is transferred to another health care institution; 
or
    (ii) Record release is required by law.
    (f) Grievances. A resident has the right to--
    (1) Voice grievances without discrimination or reprisal. Residents 
may voice grievances with respect to treatment received and not 
received; and
    (2) Prompt efforts by the facility to resolve grievances the 
resident may have, including those with respect to the behavior of 
other residents.
    (g) Examination of survey results. A resident has the right to--
    (1) Examine the results of the most recent VA survey with respect 
to the facility. The facility management must make the results 
available for examination in a place readily accessible to residents, 
and must post a notice of their availability; and
    (2) Receive information from agencies acting as client advocates, 
and be afforded the opportunity to contact these agencies.
    (h) Work. The resident has the right to--
    (1) Refuse to perform services for the facility;
    (2) Perform services for the facility, if he or she chooses, when--
    (i) The facility has documented the need or desire for work in the 
plan of care;
    (ii) The plan specifies the nature of the services performed and 
whether the services are voluntary or paid;
    (iii) Compensation for paid services is at or above prevailing 
rates; and
    (iv) The resident agrees to the work arrangement described in the 
plan of care.
    (i) Mail. The resident must have the right to privacy in written 
communications, including the right to--
    Send and promptly receive mail that is unopened; and
    (2) Have access to stationery, postage, and writing implements at 
the resident's own expense.
    (j) Access and visitation rights. (1) The resident has the right 
and the facility management must provide immediate access to any 
resident by the following:
    (i) Any representative of the Under Secretary for Health;
    (ii) Any representative of the State;
    (iii) Physicians of the resident's choice (to provide care in the 
nursing home, physicians must meet the provisions of Sec. 51.210(j));
    (iv) The State long term care ombudsman;
    (v) Immediate family or other relatives of the resident subject to 
the resident's right to deny or withdraw consent at any time; and
    (vi) Others who are visiting subject to reasonable restrictions and 
the resident's right to deny or withdraw consent at any time.
    (2) The facility management must provide reasonable access to any 
resident by any entity or individual that provides health, social, 
legal, or other services to the resident, subject to the resident's 
right to deny or withdraw consent at any time.
    (3) The facility management must allow representatives of the State 
Ombudsman Program, described in paragraph (j)(1)(iv) of this section, 
to examine a resident's clinical records with the permission of the 
resident or the resident's legal representative, subject to State law.
    (k) Telephone. The resident has the right to reasonable access to 
use a telephone where calls can be made without being overheard.
    (l) Personal property. The resident has the right to retain and use 
personal possessions, including some furnishings, and appropriate 
clothing, as space permits, unless to do so would infringe upon the 
rights or health and safety of other residents.
    (m) Married couples. The resident has the right to share a room 
with his or her spouse when married residents live in the same facility 
and both spouses consent to the arrangement.
    (n) Self-Administration of Drugs. An individual resident may self-
administer drugs if the interdisciplinary team, as defined by 
Sec. 51.110(d)(2)(ii) of this part, has determined that this practice 
is safe.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.80  Admission, transfer and discharge rights.

    (a) Transfer and discharge. (1) Definition: Transfer and discharge 
includes movement of a resident to a bed outside of the facility 
whether that bed is in the same physical plant or not. Transfer and 
discharge does not refer to movement of a resident to a bed within the 
same facility.
    (2) Transfer and discharge requirements. The facility management 
must permit each resident to remain in the facility, and not transfer 
or discharge the resident from the facility unless--
    (i) The transfer or discharge is necessary for the resident's 
welfare and the resident's needs cannot be met in the nursing home;
    (ii) The transfer or discharge is appropriate because the 
resident's health has improved sufficiently so the

[[Page 973]]

resident no longer needs the services provided by the nursing home;
    (iii) The safety of individuals in the facility is endangered;
    (iv) The health of individuals in the facility would otherwise be 
endangered;
    (v) The resident has failed, after reasonable and appropriate 
notice to pay for a stay at the facility; or
    (vi) The nursing home ceases to operate.
    (3) Documentation. When the facility transfers or discharges a 
resident under any of the circumstances specified in paragraphs 
(a)(2)(i) through (a)(2)(vi) of this section, the primary physician 
must document this in the resident's clinical record.
    (4) Notice before transfer. Before a facility transfers or 
discharges a resident, the facility must--
    (i) Notify the resident and, if known, a family member or legal 
representative of the resident of the transfer or discharge and the 
reasons for the move in writing and in a language and manner they 
understand.
    (ii) Record the reasons in the resident's clinical record; and
    (iii) Include in the notice the items described in paragraph (a)(6) 
of this section.
    (5) Timing of the notice. (i) The notice of transfer or discharge 
required under paragraph (a)(4) of this section must be made by the 
facility at least 30 days before the resident is transferred or 
discharged, except when specified in paragraph (a)(5)(ii) of this 
section,
    (ii) Notice may be made as soon as practicable before transfer or 
discharge when--
    (A) The safety of individuals in the facility would be endangered;
    (B) The health of individuals in the facility would be otherwise 
endangered;
    (C) The resident's health improves sufficiently so the resident no 
longer needs the services provided by the nursing home;
    (D) The resident's needs cannot be met in the nursing home;
    (6) Contents of the notice. The written notice specified in 
paragraph (a)(4) of this section must include the following:
    (i) The reason for transfer or discharge;
    (ii) The effective date of transfer or discharge;
    (iii) The location to which the resident is transferred or 
discharged;
    (iv) A statement that the resident has the right to appeal the 
action to the State official designated by the State; and
    (v) The name, address and telephone number of the State long term 
care ombudsman.
    (7) Orientation for transfer or discharge. A facility management 
must provide sufficient preparation and orientation to residents to 
ensure safe and orderly transfer or discharge from the facility.
    (b) Notice of bed-hold policy and readmission. (1) Notice before 
transfer. Before a facility transfers a resident to a hospital or 
allows a resident to go on therapeutic leave, the facility management 
must provide written information to the resident and a family member or 
legal representative that specifies--
    (i) The duration of the facility's bed-hold policy, if any, during 
which the resident is permitted to return and resume residence in the 
facility; and
    (ii) The facility's policies regarding bed-hold periods, which must 
be consistent with paragraph (b)(3) of this section, permitting a 
resident to return.
    (2) Bed-hold notice upon transfer. At the time of transfer of a 
resident for hospitalization or therapeutic leave, facility management 
must provide to the resident and a family member or legal 
representative written notice which specifies the duration of the bed-
hold policy described in paragraph (b)(1) of this section.
    (3) Permitting resident to return to facility. A nursing facility 
must establish and follow a written policy under which a resident, 
whose hospitalization or therapeutic leave exceeds the bed-hold period 
is readmitted to the facility immediately upon the first availability 
of a bed in a semi-private room, if the resident requires the services 
provided by the facility.
    (c) Equal access to quality care. The facility management must 
establish and maintain identical policies and practices regarding 
transfer, discharge, and the provision of services for all individuals 
regardless of source of payment.
    (d) Admissions policy. The facility management must not require a 
third party guarantee of payment to the facility as a condition of 
admission or expedited admission, or continued stay in the facility. 
However, the facility may require an individual who has legal access to 
a resident's income or resources available to pay for facility care to 
sign a contract to pay the facility from the resident's income or 
resources.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.90  Resident behavior and facility practices.

    (a) Restraints. (1) The resident has a right to be free from any 
chemical or physical restraints imposed for purposes of discipline or 
convenience. When a restraint is applied or used, the purpose of the 
restraint is reviewed and is justified as a therapeutic intervention.
    (i) Chemical restraint is the inappropriate use of a sedating 
psychotropic drug to manage or control behavior.
    (ii) Physical restraint is any method of physically restricting a 
person's freedom of movement, physical activity or normal access to his 
or her body. Bed rails and vest restraints are examples of physical 
restraints.
    (2) The facility management uses a system to achieve a restraint-
free environment.
    (3) The facility management collects data about the use of 
restraints.
    (4) When alternatives to the use of restraint are ineffective, a 
restraint must be safely and appropriately used.
    (b) Abuse. The resident has the right to be free from mental, 
physical, sexual, and verbal abuse or neglect, corporal punishment, and 
involuntary seclusion.
    (1) Mental abuse includes humiliation, harassment, and threats of 
punishment or deprivation.
    (2) Physical abuse includes hitting, slapping, pinching, or 
kicking. Also includes controlling behavior through corporal 
punishment.
    (3) Sexual abuse includes sexual harassment, sexual coercion, and 
sexual assault.
    (4) Neglect is any impaired quality of life for an individual 
because of the absence of minimal services or resources to meet basic 
needs. Includes withholding or inadequately providing food and 
hydration (without physician, resident, or surrogate approval), 
clothing, medical care, and good hygiene. May also include placing the 
individual in unsafe or unsupervised conditions.
    (5) Involuntary seclusion is a resident's separation from other 
residents or from the resident's room against his or her will or the 
will of his or her legal representative.
    (c) Staff treatment of residents. The facility management must 
develop and implement written policies and procedures that prohibit 
mistreatment, neglect, and abuse of residents and misappropriation of 
resident property.
    (1) The facility management must:
    (i) Not employ individuals who--
    (A) Have been found guilty of abusing, neglecting, or mistreating 
individuals by a court of law; or
    (B) Have had a finding entered into an applicable State registry or 
with the applicable licensing authority concerning abuse, neglect, 
mistreatment of individuals or misappropriation of their property; and
    (ii) Report any knowledge it has of actions by a court of law 
against an

[[Page 974]]

employee, which would indicate unfitness for service as a nurse aide or 
other facility staff to the State nurse aide registry or licensing 
authorities.
    (2) The facility management must ensure that all alleged violations 
involving mistreatment, neglect, or abuse, including injuries of 
unknown source, and misappropriation of resident property are reported 
immediately to the administrator of the facility and to other officials 
in accordance with State law through established procedures.
    (3) The facility management must have evidence that all alleged 
violations are thoroughly investigated, and must prevent further 
potential abuse while the investigation is in progress.
    (4) The results of all investigations must be reported to the 
administrator or the designated representative and to other officials 
in accordance with State law within 5 working days of the incident, and 
appropriate corrective action must be taken if the alleged violation is 
verified.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.100  Quality of life.

    A facility management must care for its residents in a manner and 
in an environment that promotes maintenance or enhancement of each 
resident's quality of life.
    (a) Dignity. The facility management must promote care for 
residents in a manner and in an environment that maintains or enhances 
each resident's dignity and respect in full recognition of his or her 
individuality.
    (b) Self-determination and participation. The resident has the 
right to--
    (1) Choose activities, schedules, and health care consistent with 
his or her interests, assessments, and plans of care;
    (2) Interact with members of the community both inside and outside 
the facility; and
    (3) Make choices about aspects of his or her life in the facility 
that are significant to the resident.
    (c) Resident Council. The facility management must establish a 
council of residents that meet at least quarterly. The facility 
management must document any concerns submitted to the management of 
the facility by the council.
    (d) Participation in resident and family groups. (1) A resident has 
the right to organize and participate in resident groups in the 
facility;
    (2) A resident's family has the right to meet in the facility with 
the families of other residents in the facility;
    (3) The facility management must provide the council and any 
resident or family group that exists with private space;
    (4) Staff or visitors may attend meetings at the group's 
invitation;
    (5) The facility management must provide a designated staff person 
responsible for providing assistance and responding to written requests 
that result from group meetings;
    (6) The facility management must listen to the views of any 
resident or family group, including the council established under 
paragraph (c) of this section, and act upon the concerns of residents, 
families, and the council regarding policy and operational decisions 
affecting resident care and life in the facility.
    (e) Participation in other activities. A resident has the right to 
participate in social, religious, and community activities that do not 
interfere with the rights of other residents in the facility. The 
facility management must arrange for religious counseling by clergy of 
various faith groups.
    (f) Accommodation of needs. A resident has the right to--
    (1) Reside and receive services in the facility with reasonable 
accommodation of individual needs and preferences, except when the 
health or safety of the individual or other residents would be 
endangered; and
    (2) Receive notice before the resident's room or roommate in the 
facility is changed.
    (g) Patient Activities. (1) The facility management must provide 
for an ongoing program of activities designed to meet, in accordance 
with the comprehensive assessment, the interests and the physical, 
mental, and psychosocial well-being of each resident.
    (2) The activities program must be directed by a qualified 
professional who is a qualified therapeutic recreation specialist or an 
activities professional who--
    (i) Is licensed or registered, if applicable, by the State in which 
practicing; and
    (ii) Is certified as a therapeutic recreation specialist or as an 
activities professional by a recognized accrediting body.
    (h) Social Services. (1) The facility management must provide 
medically related social services to attain or maintain the highest 
practicable mental and psychosocial well-being of each resident.
    (2) A nursing home with 100 or more beds must employ a qualified 
social worker on a full-time basis.
    (3) Qualifications of social worker. A qualified social worker is 
an individual with--
    (i) A bachelor's degree in social work from a school accredited by 
the Council of Social Work Education (Note: A master's degree social 
worker with experience in long-term care is preferred), and
    (ii) A social work license from the State in which the State home 
is located, if offered by the State, and
    (iii) A minimum of one year of supervised social work experience in 
a health care setting working directly with individuals.
    (4) The facility management must have sufficient support staff to 
meet patients' social services needs.
    (5) Facilities for social services must ensure privacy for 
interviews.
    (i) Environment. The facility management must provide--
    (1) A safe, clean, comfortable, and homelike environment, allowing 
the resident to use his or her personal belongings to the extent 
possible;
    (2) Housekeeping and maintenance services necessary to maintain a 
sanitary, orderly, and comfortable interior;
    (3) Clean bed and bath linens that are in good condition;
    (4) Private closet space in each resident room, as specified in 
Sec. 51.200(d)(2)(iv) of this part;
    (5) Adequate and comfortable lighting levels in all areas;
    (6) Comfortable and safe temperature levels. Facilities must 
maintain a temperature range of 71-81 degrees Fahrenheit; and
    (7) For the maintenance of comfortable sound levels.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.110  Resident assessment.

    The facility management must conduct initially, annually and as 
required by a change in the resident's condition a comprehensive, 
accurate, standardized, reproducible assessment of each resident's 
functional capacity.
    (a) Admission orders. At the time each resident is admitted, the 
facility management must have physician orders for the resident's 
immediate care and a medical assessment, including a medical history 
and physical examination, within a time frame appropriate to the 
resident's condition, not to exceed 72 hours after admission, except 
when an examination was performed within five days before admission and 
the findings were recorded in the medical record on admission.
    (b) Comprehensive assessments. (1) The facility management must 
make a

[[Page 975]]

comprehensive assessment of a resident's needs:
    (i) Using the Health Care Financing Administration Long Term Care 
Resident Assessment Instrument Version 2.0; and
    (ii) Describing the resident's capability to perform daily life 
functions, strengths, performances, needs as well as significant 
impairments in functional capacity.
    (iii) All nursing homes must be in compliance with the use of the 
Health Care Financing Administration Long Term Care Resident Assessment 
Instrument Version 2.0 by no later than January 1, 2000.
    (2) Frequency. Assessments must be conducted--
    (i) No later than 14 days after the date of admission;
    (ii) Promptly after a significant change in the resident's 
physical, mental, or social condition; and
    (iii) In no case less often than once every 12 months.
    (3) Review of assessments. The nursing facility management must 
examine each resident no less than once every 3 months, and as 
appropriate, revise the resident's assessment to assure the continued 
accuracy of the assessment.
    (4) Use. The results of the assessment are used to develop, review, 
and revise the resident's individualized comprehensive plan of care, 
under paragraph (d) of this section.
    (c) Accuracy of assessments. (1) Coordination--
    (i) Each assessment must be conducted or coordinated with the 
appropriate participation of health professionals.
    (ii) Each assessment must be conducted or coordinated by a 
registered nurse that signs and certifies the completion of the 
assessment.
    (2) Certification. Each person who completes a portion of the 
assessment must sign and certify the accuracy of that portion of the 
assessment.
    (d) Comprehensive care plans. (1) The facility management must 
develop an individualized comprehensive care plan for each resident 
that includes measurable objectives and timetables to meet a resident's 
physical, mental, and psychosocial needs that are identified in the 
comprehensive assessment. The care plan must describe the following--
    (i) The services that are to be furnished to attain or maintain the 
resident's highest practicable physical, mental, and psychosocial well-
being as required under Sec. 51.120; and
    (ii) Any services that would otherwise be required under 
Sec. 51.120 of this part but are not provided due to the resident's 
exercise of rights under Sec. 51.70, including the right to refuse 
treatment under Sec. 51.70(b)(4) of this part.
    (2) A comprehensive care plan must be--
    (i) Developed within 7 calendar days after completion of the 
comprehensive assessment;
    (ii) Prepared by an interdisciplinary team, that includes the 
primary physician, a registered nurse with responsibility for the 
resident, and other appropriate staff in disciplines as determined by 
the resident's needs, and, to the extent practicable, the participation 
of the resident, the resident's family or the resident's legal 
representative; and
    (iii) Periodically reviewed and revised by a team of qualified 
persons after each assessment.
    (3) The services provided or arranged by the facility must--
    (i) Meet professional standards of quality; and
    (ii) Be provided by qualified persons in accordance with each 
resident's written plan of care.
    (e) Discharge summary. Prior to discharging a resident, the 
facility management must prepare a discharge summary that includes--
    (1) A recapitulation of the resident's stay;
    (2) A summary of the resident's status at the time of the discharge 
to include items in paragraph (b)(2) of this section; and
    (3) A post-discharge plan of care that is developed with the 
participation of the resident and his or her family, which will assist 
the resident to adjust to his or her new living environment.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.120  Quality of care.

    Each resident must receive and the facility management must provide 
the necessary care and services to attain or maintain the highest 
practicable physical, mental, and psychosocial well-being, in 
accordance with the comprehensive assessment and plan of care.
    (a) Reporting of Sentinel Events. (1) Definition. A sentinel event 
is an adverse event that results in the loss of life or limb or 
permanent loss of function.
    (2) Examples of sentinel events are as follows:
    (i) Any resident death, paralysis, coma or other major permanent 
loss of function associated with a medication error; or
    (ii) Any suicide of a resident, including suicides following 
elopement (unauthorized departure) from the facility; or
    (iii) Any elopement of a resident from the facility resulting in a 
death or a major permanent loss of function; or
    (iv) Any procedure or clinical intervention, including restraints, 
that result in death or a major permanent loss of function; or
    (v) Assault, homicide or other crime resulting in patient death or 
major permanent loss of function; or
    (vi) A patient fall that results in death or major permanent loss 
of function as a direct result of the injuries sustained in the fall.
    (3) The facility management must report sentinel events to the 
director of VA medical center of jurisdiction within 24 hours of 
identification. The VA medical center of jurisdiction must report 
sentinel events by calling VA Network Director (10N 1-22) and Chief 
Consultant, Geriatrics and Extended Care Strategic Healthcare Group 
(114) within 24 hours of notification.
    (4) The facility management must establish a mechanism to review 
and analyze a sentinel event resulting in a written report no later 
than 10 working days following the event. The purpose of the review and 
analysis of a sentinel event is to prevent injuries to residents, 
visitors, and personnel, and to manage those injuries that do occur and 
to minimize the negative consequences to the injured individuals and 
facility.
    (b) Activities of daily living. Based on the comprehensive 
assessment of a resident, the facility management must ensure that--
    (1) A resident's abilities in activities of daily living do not 
diminish unless circumstances of the individual's clinical condition 
demonstrate that diminution was unavoidable. This includes the 
resident's ability to--
    (i) Bathe, dress, and groom;
    (ii) Transfer and ambulate;
    (iii) Toilet;
    (iv) Eat; and
    (v) Talk or otherwise communicate.
    (2) A resident is given the appropriate treatment and services to 
maintain or improve his or her abilities specified in paragraph (b)(1) 
of this section; and
    (3) A resident who is unable to carry out activities of daily 
living receives the necessary services to maintain good nutrition, 
hydration, grooming, personal and oral hygiene, mobility, and bladder 
and bowel elimination.
    (c) Vision and hearing. To ensure that residents receive proper 
treatment and assistive devices to maintain vision and hearing 
abilities, the facility must, if necessary, assist the resident--
    (1) In making appointments, and
    (2) By arranging for transportation to and from the office of a 
practitioner

[[Page 976]]

specializing in the treatment of vision or hearing impairment or the 
office of a professional specializing in the provision of vision or 
hearing assistive devices.
    (d) Pressure sores. Based on the comprehensive assessment of a 
resident, the facility management must ensure that--
    (1) A resident who enters the facility without pressure sores does 
not develop pressure sores unless the individual's clinical condition 
demonstrates that they were unavoidable; and
    (2) A resident having pressure sores receives necessary treatment 
and services to promote healing, prevent infection and prevent new 
sores from developing.
    (e) Urinary and Fecal Incontinence. Based on the resident's 
comprehensive assessment, the facility management must ensure that--
    (1) A resident who enters the facility without an indwelling 
catheter is not catheterized unless the resident's clinical condition 
demonstrates that catheterization was necessary;
    (2) A resident who is incontinent of urine receives appropriate 
treatment and services to prevent urinary tract infections and to 
restore as much normal bladder function as possible; and
    (3) A resident who has persistent fecal incontinence receives 
appropriate treatment and services to treat reversible causes and to 
restore as much normal bowel function as possible.
    (f) Range of motion. Based on the comprehensive assessment of a 
resident, the facility management must ensure that--
    (1) A resident who enters the facility without a limited range of 
motion does not experience reduction in range of motion unless the 
resident's clinical condition demonstrates that a reduction in range of 
motion is unavoidable; and
    (2) A resident with a limited range of motion receives appropriate 
treatment and services to increase range of motion and/or to prevent 
further decrease in range of motion.
    (g) Mental and Psychosocial functioning. Based on the comprehensive 
assessment of a resident, the facility management must ensure that a 
resident who displays mental or psychosocial adjustment difficulty, 
receives appropriate treatment and services to correct the assessed 
problem.
    (h) Enteral Feedings. Based on the comprehensive assessment of a 
resident, the facility management must ensure that--
    (1) A resident who has been able to adequately eat or take fluids 
alone or with assistance is not fed by enteral feedings unless the 
resident's clinical condition demonstrates that use of enteral feedings 
was unavoidable; and
    (2) A resident who is fed by enteral feedings receives the 
appropriate treatment and services to prevent aspiration pneumonia, 
diarrhea, vomiting, dehydration, metabolic abnormalities, nasal-
pharyngeal ulcers and other skin breakdowns, and to restore, if 
possible, normal eating skills.
    (i) Accidents. The facility management must ensure that--
    (1) The resident environment remains as free of accident hazards as 
is possible; and
    (2) Each resident receives adequate supervision and assistance 
devices to prevent accidents.
    (j) Nutrition. Based on a resident's comprehensive assessment, the 
facility management must ensure that a resident--
    (1) Maintains acceptable parameters of nutritional status, such as 
body weight and protein levels, unless the resident's clinical 
condition demonstrates that this is not possible; and
    (2) Receives a therapeutic diet when a nutritional deficiency is 
identified.
    (k) Hydration. The facility management must provide each resident 
with sufficient fluid intake to maintain proper hydration and health.
    (l) Special needs. The facility management must ensure that 
residents receive proper treatment and care for the following special 
services:
    (1) Injections;
    (2) Parenteral and enteral fluids;
    (3) Colostomy, ureterostomy, or ileostomy care;
    (4) Tracheostomy care;
    (5) Tracheal suctioning;
    (6) Respiratory care;
    (7) Foot care; and
    (8) Prostheses.
    (m) Unnecessary drugs. (1) General. Each resident's drug regimen 
must be free from unnecessary drugs. An unnecessary drug is any drug 
when used:
    (i) In excessive dose (including duplicate drug therapy); or
    (ii) For excessive duration; or
    (iii) Without adequate monitoring; or
    (iv) Without adequate indications for its use; or
    (v) In the presence of adverse consequences which indicate the dose 
should be reduced or discontinued; or
    (vi) Any combinations of the reasons above.
    (2) Antipsychotic Drugs. Based on a comprehensive assessment of a 
resident, the facility management must ensure that--
    (i) Residents who have not used antipsychotic drugs are not given 
these drugs unless antipsychotic drug therapy is necessary to treat a 
specific condition as diagnosed and documented in the clinical record; 
and
    (ii) Residents who use antipsychotic drugs receive gradual dose 
reductions, and behavioral interventions, unless clinically 
contraindicated, in an effort to discontinue these drugs.
    (n) Medication Errors. The facility management must ensure that--
    (1) Medication errors are identified and reviewed on a timely 
basis; and
    (2) strategies for preventing medication errors and adverse 
reactions are implemented.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.130  Nursing services.

    The facility management must provide an organized nursing service 
with a sufficient number of qualified nursing personnel to meet the 
total nursing care needs, as determined by resident assessment and 
individualized comprehensive plans of care, of all patients within the 
facility 24 hours a day, 7 days a week.
    (a) The nursing service must be under the direction of a full-time 
registered nurse who is currently licensed by the State and has, in 
writing, administrative authority, responsibility, and accountability 
for the functions, activities, and training of the nursing services 
staff.
    (b) The facility management must provide registered nurses 24 hours 
per day, 7 days per week.
    (c) The director of nursing service must designate a registered 
nurse as a supervising nurse for each tour of duty.
    (1) Based on the application and results of the case mix and 
staffing methodology, the director of nursing may serve in a dual role 
as director and as an onsite-supervising nurse only when the facility 
has an average daily occupancy of 60 or fewer residents in nursing 
home.
    (2) Based on the application and results of the case mix and 
staffing methodology, the evening or night supervising nurse may serve 
in a dual role as supervising nurse as well as provides direct patient 
care only when the facility has an average daily occupancy of 60 or 
fewer residents in nursing home.
    (d) The facility management must provide nursing services to ensure 
that there is direct care nurse staffing of no less than 2.5 hours per 
patient per 24 hours, 7 days per week in the portion of any building 
providing nursing home care.
    (e) Nurse staffing must be based on a staffing methodology that 
applies case

[[Page 977]]

mix and is adequate for meeting the standards of this part.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.140  Dietary services.

    The facility management must provide each resident with a 
nourishing, palatable, well-balanced diet that meets the daily 
nutritional and special dietary needs of each resident.
    (a) Staffing. The facility management must employ a qualified 
dietitian either full-time, part-time, or on a consultant basis.
    (1) If a dietitian is not employed, the facility management must 
designate a person to serve as the director of food service who 
receives at least a monthly scheduled consultation from a qualified 
dietitian.
    (2) A qualified dietitian is one who is qualified based upon 
registration by the Commission on Dietetic Registration of the American 
Dietetic Association.
    (b) Sufficient staff. The facility management must employ 
sufficient support personnel competent to carry out the functions of 
the dietary service.
    (c) Menus and nutritional adequacy. Menus must--
    (1) Meet the nutritional needs of residents in accordance with the 
recommended dietary allowances of the Food and Nutrition Board of the 
National Research Council, National Academy of Sciences;
    (2) Be prepared in advance; and
    (3) Be followed.
    (d) Food. Each resident receives and the facility provides--
    (1) Food prepared by methods that conserve nutritive value, flavor, 
and appearance;
    (2) Food that is palatable, attractive, and at the proper 
temperature;
    (3) Food prepared in a form designed to meet individual needs; and
    (4) Substitutes offered of similar nutritive value to residents who 
refuse food served.
    (e) Therapeutic diets. Therapeutic diets must be prescribed by the 
primary care physician.
    (f) Frequency of meals. (1) Each resident receives and the facility 
provides at least three meals daily, at regular times comparable to 
normal mealtimes in the community.
    (2) There must be no more than 14 hours between a substantial 
evening meal and the availability of breakfast the following day, 
except as provided in (f)(4) of this section.
    (3) The facility staff must offer snacks at bedtime daily.
    (4) When a nourishing snack is provided at bedtime, up to 16 hours 
may elapse between a substantial evening meal and breakfast the 
following day.
    (g) Assistive devices. The facility management must provide special 
eating equipment and utensils for residents who need them.
    (h) Sanitary conditions. The facility must--
    (1) Procure food from sources approved or considered satisfactory 
by Federal, State, or local authorities;
    (2) Store, prepare, distribute, and serve food under sanitary 
conditions; and (3) Dispose of garbage and refuse properly.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.150  Physician services.

    A physician must personally approve in writing a recommendation 
that an individual be admitted to a facility. Each resident must remain 
under the care of a physician.
    (a) Physician supervision. The facility management must ensure 
that--
    (1) The medical care of each resident is supervised by a primary 
care physician;
    (2) Each resident's medical record lists the name of the resident's 
primary physician, and
    (3) Another physician supervises the medical care of residents when 
their primary physician is unavailable.
    (b) Physician visits. The physician must--
    (1) Review the resident's total program of care, including 
medications and treatments, at each visit required by paragraph (c) of 
this section;
    (2) Write, sign, and date progress notes at each visit; and
    (3) Sign and date all orders.
    (c) Frequency of physician visits.
    (1) The resident must be seen by the primary physician at least 
once every 30 days for the first 90 days after admission, and at least 
once every 60 days thereafter, or more frequently based on the 
condition of the resident.
    (2) A physician visit is considered timely if it occurs not later 
than 10 days after the date the visit was required.
    (3) Except as provided in paragraphs (c)(4) of this section, all 
required physician visits must be made by the physician personally.
    (4) At the option of the physician, required visits in the facility 
after the initial visit may alternate between personal visits by the 
physician and visits by a physician assistant, nurse practitioner, or 
clinical nurse specialist in accordance with paragraph (e) of this 
section.
    (d) Availability of physicians for emergency care. The facility 
management must provide or arrange for the provision of physician 
services 24 hours a day, 7 days per week, in case of an emergency.
    (e) Physician delegation of tasks. (1) Except as specified in 
paragraph (e)(2) of this section, a primary physician may delegate 
tasks to:
    (i) a certified physician assistant or a certified nurse 
practitioner, or
    (ii) a clinical nurse specialist who--
    (A) Is acting within the scope of practice as defined by State law; 
and
    (B) Is under the supervision of the physician.

    Note to paragraph (e): An individual with experience in long 
term care is preferred.

    (2) The primary physician may not delegate a task when the 
regulations specify that the primary physician must perform it 
personally, or when the delegation is prohibited under State law or by 
the facility's own policies.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.160  Specialized rehabilitative services.

    (a) Provision of services. If specialized rehabilitative services 
such as but not limited to physical therapy, speech therapy, 
occupational therapy, and mental health services for mental illness are 
required in the resident's comprehensive plan of care, facility 
management must--
    (1) Provide the required services; or
    (2) Obtain the required services from an outside resource, in 
accordance with Sec. 51.210(h) of this part, from a provider of 
specialized rehabilitative services.
    (b) Specialized rehabilitative services must be provided under the 
written order of a physician by qualified personnel.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.170  Dental services.

    (a) A facility must provide or obtain from an outside resource, in 
accordance with Sec. 51.210(h) of this part, routine and emergency 
dental services to meet the needs of each resident;
    (b) A facility may charge a resident an additional amount for 
routine and emergency dental services; and
    (c) A facility must, if necessary, assist the resident--
    (1) In making appointments;
    (2) By arranging for transportation to and from the dental 
services; and
    (3) Promptly refer residents with lost or damaged dentures to a 
dentist.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.180  Pharmacy services.

    The facility management must provide routine and emergency drugs

[[Page 978]]

and biologicals to its residents, or obtain them under an agreement 
described in Sec. 51.210(h) of this part. The facility management must 
have a system for disseminating drug information to medical and nursing 
staff.
    (a) Procedures. The facility management must provide pharmaceutical 
services (including procedures that assure the accurate acquiring, 
receiving, dispensing, and administering of all drugs and biologicals) 
to meet the needs of each resident.
    (b) Service consultation. The facility management must employ or 
obtain the services of a pharmacist licensed in a State in which the 
facility is located or a VA pharmacist under VA contract who--
    (1) Provides consultation on all aspects of the provision of 
pharmacy services in the facility;
    (2) Establishes a system of records of receipt and disposition of 
all controlled drugs in sufficient detail to enable an accurate 
reconciliation; and
    (3) Determines that drug records are in order and that an account 
of all controlled drugs is maintained and periodically reconciled.
    (c) Drug regimen review. (1) The drug regimen of each resident must 
be reviewed at least once a month by a licensed pharmacist.
    (2) The pharmacist must report any irregularities to the primary 
physician and the director of nursing, and these reports must be acted 
upon.
    (d) Labeling of drugs and biologicals. Drugs and biologicals used 
in the facility management must be labeled in accordance with currently 
accepted professional principles, and include the appropriate accessory 
and cautionary instructions, and the expiration date when applicable.
    (e) Storage of drugs and biologicals. (1) In accordance with State 
and Federal laws, the facility management must store all drugs and 
biologicals in locked compartments under proper temperature controls, 
and permit only authorized personnel to have access to the keys.
    (2) The facility management must provide separately locked, 
permanently affixed compartments for storage of controlled drugs listed 
in Schedule II of the Comprehensive Drug Abuse Prevention and Control 
Act of 1976 and other drugs subject to abuse.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.190  Infection control.

    The facility management must establish and maintain an infection 
control program designed to provide a safe, sanitary, and comfortable 
environment and to help prevent the development and transmission of 
disease and infection.
    (a) Infection control program. The facility management must 
establish an infection control program under which it--
    (1) Investigates, controls, and prevents infections in the 
facility;
    (2) Decides what procedures, such as isolation, should be applied 
to an individual resident; and
    (3) Maintains a record of incidents and corrective actions related 
to infections.
    (b) Preventing spread of infection. (1) When the infection control 
program determines that a resident needs isolation to prevent the 
spread of infection, the facility management must isolate the resident.
    (2) The facility management must prohibit employees with a 
communicable disease or infected skin lesions from engaging in any 
contact with residents or their environment that would transmit the 
disease.
    (3) The facility management must require staff to wash their hands 
after each direct resident contact for which hand washing is indicated 
by accepted professional practice.
    (c) Linens. Personnel must handle, store, process, and transport 
linens so as to prevent the spread of infection.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.200  Physical environment.

    The facility management must be designed, constructed, equipped, 
and maintained to protect the health and safety of residents, personnel 
and the public.
    (a) Life safety from fire. The facility must meet the applicable 
provisions of the National Fire Protection Association's NFPA 101, Life 
Safety Code (1997 edition) and the NFPA 99, Standard for Health Care 
Facilities (1996 edition). Incorporation by reference of these 
materials was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials 
incorporated by reference are available for inspection at the Office of 
the Federal Register, Suite 700, 800 North Capitol Street, NW., 
Washington, DC, and the Department of Veterans Affairs, Office of 
Regulations Management (02D), Room 1154, 810 Vermont Avenue, NW., 
Washington, DC 20420. Copies may be obtained from the National Fire 
Protection Association, 1 Batterymarch Park, P.O. Box 9101, Quincy, MA 
02269-9101. (For ordering information, call toll-free 1-800-344-3555.)
    (b) Emergency power. (1) An emergency electrical power system must 
be provided to supply power adequate for illumination of all exit signs 
and lighting for the means of egress, fire alarm and medical gas 
alarms, emergency communication systems, and generator task 
illumination.
    (2) The system must be the appropriate type essential electrical 
system in accordance with the applicable provisions of the National 
Fire Protection Association's NFPA 101, Life Safety Code (1997 edition) 
and the NFPA 99, Standard for Health Care Facilities (1996 edition). 
Incorporation by reference of these materials was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. The availability of these materials is described in 
paragraph (a) of this section.
    (3) When electrical life support devices are used, an emergency 
electrical power system must also be provided for devices in accordance 
with NFPA 99, Standard for Health Care Facilities (1996 edition).
    (4) The source of power must be an on-site emergency standby 
generator of sufficient size to serve the connected load or other 
approved sources in accordance with the National Fire Protection 
Association's NFPA 101, Life Safety Code (1997 edition) and the NFPA 
99, Standard for Health Care Facilities (1996 edition). Incorporation 
by reference of these materials was approved by the Director of the 
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 
The availability of these materials is described in paragraph (a) of 
this section.
    (c) Space and equipment. Facility management must--
    (1) Provide sufficient space and equipment in dining, health 
services, recreation, and program areas to enable staff to provide 
residents with needed services as required by these standards and as 
identified in each resident's plan of care; and
    (2) Maintain all essential mechanical, electrical, and patient care 
equipment in safe operating condition.
    (d) Resident rooms. Resident rooms must be designed and equipped 
for adequate nursing care, comfort, and privacy of residents: (1) 
Bedrooms must--
    (i) Accommodate no more than four residents;
    (ii) Measure at least 115 net square feet per resident in multiple 
resident bedrooms;

[[Page 979]]

    (iii) Measure at least 150 net square feet in single resident 
bedrooms;
    (iv) Measure at least 245 net square feet in small double resident 
bedrooms; and
    (v) Measure at least 305 net square feet in large double resident 
bedrooms used for spinal cord injury residents. It is recommended that 
the facility have one large double resident bedroom for every 30 
resident bedrooms.
    (vi) Have direct access to an exit corridor;
    (vii) Be designed or equipped to assure full visual privacy for 
each resident;
    (viii) Except in private rooms, each bed must have ceiling 
suspended curtains, which extend around the bed to provide total visual 
privacy in combination with adjacent walls and curtains;
    (ix) Have at least one window to the outside; and
    (x) Have a floor at or above grade level.
    (2) The facility management must provide each resident with--
    (i) A separate bed of proper size and height for the safety of the 
resident;
    (ii) A clean, comfortable mattress;
    (iii) Bedding appropriate to the weather and climate; and
    (iv) Functional furniture appropriate to the resident's needs, and 
individual closet space in the resident's bedroom with clothes racks 
and shelves accessible to the resident.
    (e) Toilet facilities. Each resident room must be equipped with or 
located near toilet and bathing facilities. It is recommended that 
public toilet facilities be also located near the resident's dining and 
recreational areas.
    (f) Resident call system. The nurse's station must be equipped to 
receive resident calls through a communication system from--
    (1) Resident rooms; and
    (2) Toilet and bathing facilities.
    (g) Dining and resident activities. The facility management must 
provide one or more rooms designated for resident dining and 
activities. These rooms must--
    (1) Be well lighted;
    (2) Be well ventilated;
    (3) Be adequately furnished; and
    (4) Have sufficient space to accommodate all activities.
    (h) Other environmental conditions. The facility management must 
provide a safe, functional, sanitary, and comfortable environment for 
the residents, staff and the public. The facility must--
    (1) Establish procedures to ensure that water is available to 
essential areas when there is a loss of normal water supply;
    (2) Have adequate outside ventilation by means of windows, or 
mechanical ventilation, or a combination of the two;
    (3) Equip corridors with firmly secured handrails on each side; and
    (4) Maintain an effective pest control program so that the facility 
is free of pests and rodents.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)


Sec. 51.210  Administration.

    A facility must be administered in a manner that enables it to use 
its resources effectively and efficiently to attain or maintain the 
highest practicable physical, mental, and psychosocial well being of 
each resident.
    (a) Governing body. (1) The State must have a governing body, or 
designated person functioning as a governing body, that is legally 
responsible for establishing and implementing policies regarding the 
management and operation of the facility; and
    (2) The governing body or State official with oversight for the 
facility appoints the administrator who is--
    (i) Licensed by the State where licensing is required; and
    (ii) Responsible for operation and management of the facility.
    (b) Disclosure of State agency and individual responsible for 
oversight of facility. The State must give written notice to the Chief 
Consultant, Geriatrics and Extended Care Strategic Healthcare Group 
(114), VA Headquarters, 810 Vermont Avenue, NW, Washington, DC 20420, 
at the time of the change, if any of the following change:
    (1) The State agency and individual responsible for oversight of a 
State home facility;
    (2) The State home administrator; and
    (3) The State employee responsible for oversight of the State home 
facility if a contractor operates the State home.
    (c) Required Information. The facility management must submit the 
following to the director of the VA medical center of jurisdiction as 
part of the application for recognition and thereafter as often as 
necessary to be current or as specified:
    (1) The copy of legal and administrative action establishing the 
State-operated facility (e.g., State laws);
    (2) Site plan of facility and surroundings;
    (3) Legal title, lease, or other document establishing right to 
occupy facility;
    (4) Organizational charts and the operational plan of the facility;
    (5) The number of the staff by category indicating full-time, part-
time and minority designation (annual at time of survey);
    (6) The number of nursing home patients who are veterans and non-
veterans, the number of veterans who are minorities and the number of 
non-veterans who are minorities (annual at time of survey);
    (7) Annual State Fire Marshall's report;
    (8) Annual certification from the responsible State Agency showing 
compliance with Section 504 of the Rehabilitation Act of 1973 (Public 
Law 93-112) (VA Form 10-0143A set forth at Sec. 58.14 of this chapter);
    (9) Annual certification for Drug-Free Workplace Act of 1988 (VA 
Form 10-0143 set forth at Sec. 58.15 of this chapter);
    (10) Annual certification regarding lobbying in compliance with 
Public Law 101-121 (VA Form 10-0144 set forth at Sec. 58.16 of this 
chapter); and
    (11) Annual certification of compliance with Title VI of the Civil 
Rights Act of 1964 as incorporated in Title 38 CFR 18.1-18.3 (VA Form 
10-0144A located at Sec. 58.17 of this chapter).
    (d) Percentage of Veterans. The percent of the facility residents 
eligible for VA nursing home care must be at least 75 percent veterans 
except that the veteran percentage need only be more than 50 percent if 
the facility was constructed or renovated solely with State funds. All 
non-veteran residents must be spouses of veterans or parents all of 
whose children died while serving in the armed forces of the United 
States.
    (e) Management Contract Facility. If a facility is operated by an 
entity contracting with the State, the State must assign a State 
employee to monitor the operations of the facility on a full-time 
onsite basis.
    (f) Licensure. The facility and facility management must comply 
with applicable State and local licensure laws.
    (g) Staff qualifications. (1) The facility management must employ 
on a full-time, part-time or consultant basis those professionals 
necessary to carry out the provisions of these requirements.
    (2) Professional staff must be licensed, certified, or registered 
in accordance with applicable State laws.
    (h) Use of outside resources. (1) If the facility does not employ a 
qualified professional person to furnish a specific service to be 
provided by the facility, the facility management must have that 
service furnished to residents by a person or agency outside the 
facility under a written agreement described in paragraph (h)(2) of 
this section.
    (2) Agreements pertaining to services furnished by outside 
resources must specify in writing that the facility

[[Page 980]]

management assumes responsibility for--
    (i) Obtaining services that meet professional standards and 
principles that apply to professionals providing services in such a 
facility; and
    (ii) The timeliness of the services.
    (i) Medical director. (1) The facility management must designate a 
primary care physician to serve as medical director.
    (2) The medical director is responsible for--
    (i) Participating in establishing policies, procedures, and 
guidelines to ensure adequate, comprehensive services;
    (ii) Directing and coordinating medical care in the facility;
    (iii) Helping to arrange for continuous physician coverage to 
handle medical emergencies;
    (iv) Reviewing the credentialing and privileging process;
    (v) Participating in managing the environment by reviewing and 
evaluating incident reports or summaries of incident reports, 
identifying hazards to health and safety, and making recommendations to 
the administrator; and
    (vi) Monitoring employees' health status and advising the 
administrator on employee-health policies.
    (j) Credentialing and Privileging. Credentialing is the process of 
obtaining, verifying, and assessing the qualifications of a health care 
practitioner, which may include physicians, podiatrists, dentists, 
psychologists, physician assistants, nurse practitioners, licensed 
nurses to provide patient care services in or for a health care 
organization. Privileging is the process whereby a specific scope and 
content of patient care services are authorized for a health care 
practitioner by the facility management, based on evaluation of the 
individual's credentials and performance.
    (1) The facility management must uniformly apply credentialing 
criteria to licensed practitioners applying to provide resident care or 
treatment under the facility's care.
    (2) The facility management must verify and uniformly apply the 
following core criteria: current licensure; current certification, if 
applicable, relevant education, training, and experience; current 
competence; and a statement that the individual is able to perform the 
services he or she is applying to provide.
    (3) The facility management must decide whether to authorize the 
independent practitioner to provide resident care or treatment, and 
each credentials file must indicate that these criteria are uniformly 
and individually applied.
    (4) The facility management must maintain documentation of current 
credentials for each licensed independent practitioner practicing 
within the facility.
    (5) When reappointing a licensed independent practitioner, the 
facility management must review the individual's record of experience.
    (6) The facility management systematically must assess whether 
individuals with clinical privileges act within the scope of privileges 
granted.
    (k) Required training of nursing aides. (1) Nurse aide means any 
individual providing nursing or nursing-related services to residents 
in a facility who is not a licensed health professional, a registered 
dietitian, or a volunteer who provide such services without pay.
    (2) The facility management must not use any individual working in 
the facility as a nurse aide whether permanent or not unless:
    (i) That individual is competent to provide nursing and nursing 
related services; and
    (ii) That individual has completed a training and competency 
evaluation program, or a competency evaluation program approved by the 
State.
    (3) Registry verification. Before allowing an individual to serve 
as a nurse aide, facility management must receive registry verification 
that the individual has met competency evaluation requirements unless 
the individual can prove that he or she has recently successfully 
completed a training and competency evaluation program or competency 
evaluation program approved by the State and has not yet been included 
in the registry. Facilities must follow up to ensure that such an 
individual actually becomes registered.
    (4) Multi-State registry verification. Before allowing an 
individual to serve as a nurse aide, facility management must seek 
information from every State registry established under HHS regulations 
at 42 CFR 483.156 which the facility believes will include information 
on the individual.
    (5) Required retraining. If, since an individual's most recent 
completion of a training and competency evaluation program, there has 
been a continuous period of 24 consecutive months during none of which 
the individual provided nursing or nursing-related services for 
monetary compensation, the individual must complete a new training and 
competency evaluation program or a new competency evaluation program.
    (6) Regular in-service education. The facility management must 
complete a performance review of every nurse aide at least once every 
12 months, and must provide regular in-service education based on the 
outcome of these reviews. The in-service training must--
    (i) Be sufficient to ensure the continuing competence of nurse 
aides, but must be no less than 12 hours per year;
    (ii) Address areas of weakness as determined in nurse aides' 
performance reviews and may address the special needs of residents as 
determined by the facility staff; and
    (iii) For nurse aides providing services to individuals with 
cognitive impairments, also address the care of the cognitively 
impaired.
    (l) Proficiency of Nurse aides. The facility management must ensure 
that nurse aides are able to demonstrate competency in skills and 
techniques necessary to care for residents' needs, as identified 
through resident assessments, and described in the plan of care.
    (m) Level B Requirement Laboratory services. (1) The facility 
management must provide or obtain laboratory services to meet the needs 
of its residents. The facility is responsible for the quality and 
timeliness of the services.
    (i) If the facility provides its own laboratory services, the 
services must meet all applicable certification standards, statutes, 
and regulations for laboratory services.
    (ii) If the facility provides blood bank and transfusion services, 
it must meet all applicable certification standards, statutes, and 
regulations.
    (iii) If the laboratory chooses to refer specimens for testing to 
another laboratory, the referral laboratory must be certified in the 
appropriate specialities and subspecialties of services and meet 
certification standards, statutes, and regulations.
    (iv) The laboratory performing the testing must have a current, 
valid CLIA number (Clinical Laboratory Improvement Amendments of 1988). 
The facility management must provide VA surveyors with the CLIA number 
and a copy of the results of the last CLIA inspection.
    (v) Such services must be available to the resident seven days a 
week, 24 hours a day.
    (2) The facility management must--
    (i) Provide or obtain laboratory services only when ordered by the 
primary physician;
    (ii) Promptly notify the primary physician of the findings;
    (iii) Assist the resident in making transportation arrangements to 
and from the source of service, if the resident needs assistance; and

[[Page 981]]

    (iv) File in the resident's clinical record laboratory reports that 
are dated and contain the name and address of the testing laboratory.
    (n) Radiology and other diagnostic services. (1) The facility 
management must provide or obtain radiology and other diagnostic 
services to meet the needs of its residents. The facility is 
responsible for the quality and timeliness of the services.
    (i) If the facility provides its own diagnostic services, the 
services must meet all applicable certification standards, statutes, 
and regulations.
    (ii) If the facility does not provide its own diagnostic services, 
it must have an agreement to obtain these services. The services must 
meet all applicable certification standards, statutes, and regulations.
    (iii) Radiologic and other diagnostic services must be available 24 
hours a day, seven days a week.
    (2) The facility must--
    (i) Provide or obtain radiology and other diagnostic services when 
ordered by the primary physician;
    (ii) Promptly notify the primary physician of the findings;
    (iii) Assist the resident in making transportation arrangements to 
and from the source of service, if the resident needs assistance; and
    (iv) File in the resident's clinical record signed and dated 
reports of x-ray and other diagnostic services.
    (o) Clinical records. (1) The facility management must maintain 
clinical records on each resident in accordance with accepted 
professional standards and practices that are--
    (i) Complete;
    (ii) Accurately documented;
    (iii) Readily accessible; and
    (iv) Systematically organized.
    (2) Clinical records must be retained for--
    (i) The period of time required by State law; or
    (ii) Five years from the date of discharge when there is no 
requirement in State law.
    (3) The facility management must safeguard clinical record 
information against loss, destruction, or unauthorized use;
    (4) The facility management must keep confidential all information 
contained in the resident's records, regardless of the form or storage 
method of the records, except when release is required by--
    (i) Transfer to another health care institution;
    (ii) Law;
    (iii) Third party payment contract;
    (iv) The resident or;
    (v) The resident's authorized agent or representative.
    (5) The clinical record must contain--
    (i) Sufficient information to identify the resident;
    (ii) A record of the resident's assessments;
    (iii) The plan of care and services provided;
    (iv) The results of any pre-admission screening conducted by the 
State; and
    (v) Progress notes.
    (p) Quality assessment and assurance. (1) Facility management must 
maintain a quality assessment and assurance committee consisting of--
    (i) The director of nursing services;
    (ii) A primary physician designated by the facility; and
    (iii) At least 3 other members of the facility's staff.
    (2) The quality assessment and assurance committee--
    (i) Meets at least quarterly to identify issues with respect to 
which quality assessment and assurance activities are necessary; and
    (ii) Develops and implements appropriate plans of action to correct 
identified quality deficiencies; and
    (3) Identified quality deficiencies are corrected within an 
established time period.
    (4) The VA Under Secretary for Health may not require disclosure of 
the records of such committee unless such disclosure is related to the 
compliance with requirements of this section.
    (q) Disaster and emergency preparedness. (1) The facility 
management must have detailed written plans and procedures to meet all 
potential emergencies and disasters, such as fire, severe weather, and 
missing residents.
    (2) The facility management must train all employees in emergency 
procedures when they begin to work in the facility, periodically review 
the procedures with existing staff, and carry out unannounced staff 
drills using those procedures.
    (r) Transfer agreement. (1) The facility management must have in 
effect a written transfer agreement with one or more hospitals that 
reasonably assures that--
    (i) Residents will be transferred from the nursing home to the 
hospital, and ensured of timely admission to the hospital when transfer 
is medically appropriate as determined by the primary physician; and
    (ii) Medical and other information needed for care and treatment of 
residents, and, when the transferring facility deems it appropriate, 
for determining whether such residents can be adequately cared for in a 
less expensive setting than either the nursing home or the hospital, 
will be exchanged between the institutions.
    (2) The facility is considered to have a transfer agreement in 
effect if the facility has an agreement with a hospital sufficiently 
close to the facility to make transfer feasible.
    (s) Compliance with Federal, State, and local laws and professional 
standards. The facility management must operate and provide services in 
compliance with all applicable Federal, State, and local laws, 
regulations, and codes, and with accepted professional standards and 
principles that apply to professionals providing services in such a 
facility. This includes the Single Audit Act of 1984 (Title 31, Section 
7501 et seq.) and the Cash Management Improvement Acts of 1990 and 1992 
(Public Laws 101-453 and 102-589, see 31 USC 3335, 3718, 3720A, 6501, 
6503)
    (t) Relationship to other Federal regulations. In addition to 
compliance with the regulations set forth in this subpart, facilities 
are obliged to meet the applicable provisions of other Federal laws and 
regulations, including but not limited to those pertaining to 
nondiscrimination on the basis of race, color, national origin, 
handicap, or age (38 CFR part 18); protection of human subjects of 
research (45 CFR part 46), section 504 of the Rehabilitation Act of 
1993, Public Law 93-112; Drug-Free Workplace Act of 1988, 38 CFR part 
44, section 44.100 through 44.420; section 319 of Public Law 101-121; 
Title VI of the Civil Rights Act of 1964, 38 CFR 18.1-18.3. Although 
these regulations are not in themselves considered requirements under 
this part, their violation may result in the termination or suspension 
of, or the refusal to grant or continue payment with Federal funds.
    (u) Intermingling. A building housing a facility recognized as a 
State home for providing nursing home care may only provide nursing 
home care in the areas of the building recognized as a State home for 
providing nursing home care.
    (v) VA Management of State Veterans Homes. Except as specifically 
provided by statute or regulations, VA employees have no authority 
regarding the management or control of State homes providing nursing 
home care.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743, 8135)

    11. Part 58 is added to read as follows:

PART 58--FORMS

Sec.
58.10  VA Form 10-3567--State Home Inspection: Staffing Profile.
58.11  VA Form 10-5588--State Home Report and Statement of Federal 
Aid Claimed.

[[Page 982]]

58.12  VA Form 10-10EZ--Application for Health Benefits.
58.13  VA Form 10-10SH--State Home Program Application for Veteran 
Care--Medical Certification.
58.14  VA Form 10-0143A--Statement of Assurance of Compliance with 
Section 504 of The Rehabilitation Act of 1973.
58.15  VA Form 10-0143--Department of Veterans Affairs Certification 
Regarding Drug-Free Workplace Requirements for Grantees Other Than 
Individuals.
58.16  VA Form 10-0144--Certification Regarding Lobbying.
58.17  VA Form 10-0144A--Statement of Assurance of Compliance with 
Equal Opportunity Laws.

    Authority: 38 U.S.C. 101, 501, 1710, 1741-1743.
BILLING CODE 8320-01-C

[[Page 983]]

Sec. 58.10  VA Form 10-3567--State Home Inspection Staffing Profile.
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[[Page 985]]

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[[Page 986]]

Sec. 58.11  VA Form 10-5588--State Home Report and Statement of Federal 
Aid Claimed.
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[[Page 988]]

Sec. 58.12  VA Form 10-10EZ--Application for Health Benefits
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[[Page 990]]

Sec. 58.13  VA Form 10-10SH--State Home Program Application for Veteran 
Care Medical Certification.
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[[Page 991]]

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[[Page 992]]

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[[Page 993]]

Sec. 58.14  VA Form 10-0143A--Statement of Assurance of Compliance with 
Section 504 of The Rehabilitation Act of 1973.
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[[Page 994]]




Sec. 58.15  VA Form 10-0143--Department of Veterans Affairs 
Certification Regarding Drug-Free Workplace Requirements for Grantees 
Other Than Individuals.
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[[Page 995]]

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[[Page 996]]

Sec. 58.16  VA Form 10-0144--Certification Regarding Lobbying.
[GRAPHIC] [TIFF OMITTED] TR06JA00.013


[[Page 997]]




Sec. 58.17  VA Form 10-0144A--Statement of Assurance of Compliance with 
Equal Opportunity Laws.

[GRAPHIC] [TIFF OMITTED] TR06JA00.014

[FR Doc. 00-60 Filed 1-5-00; 8:45 am]
BILLING CODE 8320-01-C