[Federal Register Volume 67, Number 4 (Monday, January 7, 2002)]
[Rules and Regulations]
[Pages 660-675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-150]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 52

RIN 2900-AJ74


Per Diem for Adult Day Health Care of Veterans in State Homes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document establishes regulations setting forth a 
mechanism for paying per diem to State homes providing adult day health 
care to eligible veterans. The intended effect of the rule is to ensure 
that veterans receive high quality care in State homes.

DATES: Effective Date: February 6, 2002.
    The incorporation by reference of certain publications in this rule 
is approved by the Director of the Office of the Federal Register as of 
February 6, 2002.

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 June 28, 2000 (65 FR 39835), we proposed to establish a new 
part 52 setting forth a mechanism for the Department of Veterans 
Affairs (VA) to pay per diem to State homes providing adult day health 
care to eligible veterans. We provided a 60-day comment period which 
ended August 28, 2000. We received comments from six states and one 
association. 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 with 
changes explained below.
    One commenter commended VA for including provisions in the rule to 
ensure that State homes meet the fire and safety provisions of the 
National Fire Protection Association's Life Safety Code entitled ``NFPA 
101, Life Safety Code.'' The final rule incorporates, by reference, the 
2000 edition instead of the 1997 edition since the Life Safety Code has 
been updated.
    A commenter questioned VA's authority to establish the provisions 
in Sec. 52.40 that provide for State home payments to be made on a per 
diem basis. The commenter asserted that instead of per diem payments 
the payments should be made based on individual contracts between VA 
and the State. The commenter further asserted that the proposed per 
diem amount is inadequate to cover State costs, including construction 
and other capital expenditures. No changes are made based on these 
comments. In 38 USC 1741(a)(2) VA is authorized to make payments to 
State homes for adult day health care only on a per diem basis at a 
rate determined by VA. We believe Congress intended VA to determine one 
national per diem as is required for per diem payments for domiciliary, 
nursing home, or hospital care. We also do not believe this statute can 
be interpreted to permit contracting for care in State homes because it 
requires VA to ``determine'' a per diem rate. This per diem rate is not 
intended to cover costs of construction and capital expenditures. To 
obtain VA assistance in paying for those costs, States may apply for a 
State home construction or acquisition grant established under 38 USC 
8131-8136.
    One commenter stated that staffing would be cost-prohibitive with 
the low per diem amount paid by VA. No changes are made based on this 
comment. The per diem amount is a grant to a State under 38 U.S.C. 1741 
for adult day health care, but was not intended to cover the total cost 
of care.
    The proposed regulations at Sec. 52.40(a)(2) state that per diem 
will be paid only for a day that the veteran is under care of the 
facility at least six hours. Three commenters asserted that the six-
hour requirement should be lessened. They argue that their costs are 
fixed and based on the projected numbers for each day. We believe that 
we should provide per diem only for periods for which a veteran would 
be provided the full range of therapeutic activities that the veteran 
needs. Upon further reflection we believe this still can be 
accomplished if the veteran is present for at least three hours. 
Consistent with this conclusion and administrative concerns, we have 
changed the rule to allow for one per diem payment for a period of six 
hours or more in one calendar day or any two periods of at least three 
hours each (but each less than six hours) in any two calendar days in a 
calendar month.
    The proposed regulations at Sec. 52.50 set forth eligibility 
requirements for veterans receiving adult day health care on whose 
behalf VA pays per diem. One commenter asserted that the criteria are 
too restrictive. No changes are made based on this comment. The 
eligibility criteria reflect statutory requirements that may not be 
changed by regulation.
    The proposed rule at Sec. 52.80 provides that participants in the 
adult day health care program must meet certain conditions, including 
two of seven indicators. One of the indicators is met simply by being 
``75 years old or over.''

[[Page 661]]

One commenter asserted that the indicator should include individuals 65 
years of age or older. No changes are made based on this comment. Age 
is only one of the seven criteria. We believe that 75 is the 
appropriate threshold for concluding that meeting at least one of the 
other criteria would customarily create the types of needs requiring 
admission to an adult day health care facility. Those younger than 75 
could still meet the admission criteria if they meet at least two of 
the other criteria.
    The proposed regulations at Sec. 52.110(c)(1) provided a 
comprehensive assessment as follows: ``The program management must make 
a comprehensive assessment of a participant's needs using (on and after 
January 1, 2002) Health Care Administration Long-term Care Resident 
Assessment Instrument Version 2.0.'' These provisions reflect standards 
for inpatient care. We are changing the assessment tool to the 
``Minimum Data Set for Home Care (MDS-HC) Instrument Version 2.0'' to 
provide a tool appropriate for outpatient type settings such as adult 
day health care.
    The proposed regulations at Sec. 52.110(c)(1)(ii) stated that one 
initial home visit must be conducted as part of the needs assessment 
for the veteran. Three commenters asserted that this should not be 
included as a requirement. Upon further consideration, we agree that 
these provisions should not be mandatory. Although we recommend home 
visits, information regarding the home environment can be obtained by 
other means, e.g., from family members. We have revised the regulations 
accordingly.
    The proposed regulations at Sec. 52.130 state that VA recommends 
that the nurse on duty at the adult day health care facility be a 
geriatric nurse practitioner or clinical nurse specialist. One 
commenter indicated that this would cause an undue hardship. We make no 
changes based on this comment. This is only a recommendation, not a 
requirement.
    The proposed regulations at Sec. 52.140(e)(1) provide that adult 
day health care patients must be provided at least two meals daily. 
Three commenters asserted that one meal a day should be sufficient. 
Most veterans stay at least six hours a day and come in time for 
breakfast. Accordingly, we believe that adult day health care 
facilities must provide at least two meals for these veterans. However, 
for a veteran stay of no more than four hours there would be no need to 
provide two meals. Accordingly, the final rule is modified to require 
two meals a day for a veteran stay of more than four hours and only one 
meal a day for a veteran stay of less than four hours.
    One commenter noted a typographical error in proposed 52.150(b)(3) 
which refers to a paragraph ``(f)''. The reference, which is corrected 
by this document, should have been to paragraph ``(e)''.
    The proposed regulations at Sec. 52.200 set forth standards for the 
physical environment of State home adult day health care facilities. 
One commenter asserted that these provisions would be too demanding if 
applied to existing facilities. No changes are made based on this 
comment. Currently, there are no State homes receiving per diem under 
VA's State adult day health care program. We believe the proposed 
standards for physical environment represent the minimum standards 
needed to provide high quality care.
    The proposed regulations at Sec. 52.200(b)(3) state that the indoor 
space for an adult day health care facility must be at least 60 square 
feet per participant excluding office space for staff. One commenter 
asserted that the regulations should impose a 30-square feet 
requirement. No changes are made based on this comment. We believe that 
60 square feet of program space per participant is necessary for 
participants to have access to the full range of program activities, 
services, and equipment that is needed to provide high quality care.
    The proposed rule at Sec. 52.210(e) states that if a program 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. One commenter questioned whether the State employee 
would qualify as full-time, onsite if such individual on a full-time 
basis oversaw the adult day health care facility while also overseeing 
a colocated State home for nursing home and domiciliary services. We 
believe that the oversight function could be met under the factual 
situation presented by the comments. We have amended the rule 
accordingly.
    The proposed regulations at Sec. 52.210(g)(3) provide that ``[t]he 
staff-participant ratio must be sufficient in number and skills (at 
least one staff to four participants) to ensure compliance with the 
standards of this part.'' Three commenters asserted that this should be 
no more stringent than the ratio of one staff to 4-6 participants, 
which VA adult day health care facilities use. We agree that under the 
criteria in Sec. 52.210(g)(3) the ratio of one staff to 4-6 
participants would be adequate to meet the needs of the participants. 
Accordingly, we have changed the provisions in Sec. 52.210(g)(3) to 
allow the ratio of one staff to 4-6 participants.
    The proposed rule at Sec. 52.210(s) states that a facility 
recognized as a State home for providing adult day health care may only 
provide adult day health care in the areas of the facility recognized 
as a State home for providing adult day health care. One commenter 
asserted that this requirement would be too demanding. No changes are 
made based on this comment. We believe that designated spaces are 
needed for each level of care. Otherwise, the special needs for each 
program might not be adequately addressed.
    The proposed regulations at Sec. 52.220(a) state that ``the adult 
day health care program management must provide, arrange, or contract 
for transportation'' for participants. Three commenters asserted that 
State homes should not be required to provide transportation from a 
veteran's home to the adult day health care facility. We believe that 
transportation should be included in the cost of operating the adult 
day health care facility. Transportation is the single most important 
service the State can provide for a successful adult day health care 
program. The only way to ensure availability of transportation is to 
include it as a responsibility of a State. However, we also believe 
that the veteran or the veteran's family should be able to decline 
transportation offered by the adult day health care program management 
and make their own arrangements for the transportation. These concepts 
are consistent with the original purpose in the proposed rule. Changes 
are made to the final rule to more clearly reflect these concepts.
    The proposed regulations at Sec. 52.220(c) provide that all 
vehicles transporting participants to and from adult day health care 
facilities must be equipped with a device for two-way communication and 
one additional staff person besides the driver. One commenter asserted 
that these provisions should be deleted, and another commenter asserted 
that it was not necessary to have an additional staff person besides 
the driver. We have retained the provisions requiring the vehicle to be 
equipped with a device for two-way communication. This is necessary to 
ensure that the adult day health care officials would be able to 
provide any necessary information or assistance in an emergency 
situation. However, we are deleting the proposed requirement of one 
additional staff person besides the driver. We believe the driver would 
be able to provide or

[[Page 662]]

obtain assistance as necessary for patient safety.
    The provision at Sec. 52.40 sets forth the per diem amount for 
eligible veterans participating in a State home adult day health care. 
This is the amount authorized under 38 U.S.C. 1741 and Congressionally-
approved in the budget. For fiscal year 2002 the amount is 34.64. 
Accordingly, the final rule includes the rate for fiscal year 2002. In 
addition to academic requirements, the proposed rule at Sec. 52.2 
provided that a clinical nurse specialist must have at least two years 
of successful clinical practice in the specialized area of nursing 
practice following academic preparation. Upon further review, we have 
determined that the academic requirements are sufficient to qualify an 
individual to conduct the duties of a clinical nurse specialist. 
Accordingly, we have deleted the practice requirement.
    In Sec. 52.10, we included transition provisions for recognized 
adult day health care facilities. However, we are deleting these 
provisions because there are no adult day health care facilities that 
would be eligible to utilize the transition provisions.
    In Sec. 52.100 we included requirements that a therapeutic 
recreation specialist must be licensed or registered, if applicable, by 
the State in which the individual practices. We are deleting the 
reference to ``registered'' since no State registers therapeutic 
recreation specialists.
    In Sec. 52.130, we proposed that the nurse staffing must be based 
on a staffing methodology that uses case mix. We have deleted this 
provision because the needs of patients are similar in adult day health 
care facilities and there is no need for case mix.
    In Sec. 52.200, we proposed that an adult day health care facility 
provide a quiet room that, among other things, would allow for rest. To 
accomplish this the room must have a bed. We have amended these 
provisions to specify that the room must have a bed. Also, editorial 
changes are made for purposes of clarity.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), 
collections of information are set forth in the provisions of 
Secs. 52.20, 52.30, 52.40, 52.70, 52.71, 52.80, 52.90, 52.100, 52.110, 
52.120, 52.130, 52.150, 52.160, 52.180, 52.190 and 52.210 of this rule. 
Many of these collections of information require the submission to VA 
of information on forms published at 38 CFR part 58.
    The information collections in this document concern various 
activities related to the operation of a State home providing adult day 
health care to eligible veterans.
    The collection of information contained in the notice of 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. 
3504(h)).
    Interested parties were invited to submit comments on the 
collection of information. However, no comments were received. OMB has 
approved this information under control number 2900-0160.
    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.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will 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 102 
State homes, all are operated by State governments except for 20 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 sections 603 and 604.

Executive Order 12866

    This document has been reviewed by OMB pursuant to Executive Order 
12866.

Executive Order 13132

    This document does not have federalism implications under Executive 
Order 13132.

List of Subjects in 38 CFR Part 52

    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 home care, Philippines, Reporting and recordkeeping 
requirements, Scholarships and fellowships, Travel and transportation 
expenses, Veterans.

    Approved: October 17, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reason set forth in the preamble, 38 CFR Chapter I is 
amended by adding a new part 52 to read as follows.

PART 52--PER DIEM FOR ADULT DAY HEALTH CARE OF VETERANS IN STATE 
HOMES

Subpart A--General
Sec.
52.1   Purpose.
52.2   Definitions.
Subpart B--Obtaining Per Diem for Adult Day Health Care in State Homes
52.10   Per diem based on recognition and certification.
52.20   Application for recognition based on certification.
52.30   Recognition and certification.
Subpart C--Per Diem Payments
52.40   Monthly payment.
52.50   Eligible veterans.
Subpart D--Standards
52.60   Standards applicable for payment of per diem.
52.61   General requirements for adult day health care program.
52.70   Participant rights.
52.71   Participant and family caregiver responsibilities.
52.80   Enrollment, transfer and discharge rights.
52.90   Participant behavior and program practices.
52.100   Quality of life.
52.110   Participant assessment.
52.120   Quality of care.
52.130   Nursing services.
52.140   Dietary services.
52.150  Physician services.
52.160  Specialized rehabilitative services.
52.170  Dental services.
52.180  Administration of drugs.
52.190   Infection control.
52.200  Physical environment.
52.210  Administration.
52.220   Transportation.

    Authority: 38 U.S.C. 101, 501, 1741-1743, unless otherwise 
noted.

Subpart A--General


Sec. 52.1  Purpose.

    This part sets forth the mechanism for paying per diem to State 
homes providing adult day health care to eligible veterans and includes 
quality assurance requirements that are intended to ensure that 
veterans receive high quality care in State homes.


Sec. 52.2  Definitions.

    For purposes of this part--

[[Page 663]]

    Activities of daily living (ADLs) means the functions or tasks for 
self-care usually performed in the normal course of a day, i.e., 
mobility, bathing, dressing, grooming, toileting, transferring, and 
eating.
    Clinical nurse specialist means a licensed professional nurse with 
a master's degree in nursing and a major in a clinical nursing 
specialty from an academic program accredited by the National League 
for Nursing.
    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 adult day health care or a building, or any part of a 
building, which VA has recognized as a State home for the provision of 
adult day health care.
    Instrumental activities of daily living (IADLs) means functions or 
tasks of independent living, i.e., shopping, housework, meal 
preparation and cleanup, laundry, taking medication, money management, 
transportation, correspondence, and telephone use.
    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.
    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 to accomplish other clinical tasks under the 
appropriate supervision by the primary care physician.
    Primary physician or Primary care physician means a designated 
generalist physician responsible for providing, directing and 
coordinating 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.

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

Subpart B--Obtaining Per Diem for Adult Day Health Care in State 
Homes


Sec. 52.10  Per diem based on recognition and certification.

    VA will pay per diem to a State for providing adult day health 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 management meet the standards of 
subpart D of this part.

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

Sec. 52.20  Application for recognition based on certification.

    To apply for recognition and certification of a State home for 
adult day health care, a State must:
    (a) Send a request for recognition and certification to the Under 
Secretary for Health (10), VA Central Office, 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. 52.30(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, 1741-1743)


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.30  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 
the facility and program 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 program, the State official authorized to 
oversee operations of the State home, the VA Network Director (10N1-
22), Assistant Deputy Under Secretary for Health (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 program 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 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 program management does not meet one or more of the standards in 
subpart D of this part, that the deficiencies do not jeopardize the 
health or safety of the residents, and that the program 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 
program, the State official authorized to oversee the operations of the 
State home, the VA Network Director (10N1-22), Assistant Deputy Under 
Secretary for Health (10N) and the Chief Consultant, Geriatrics and 
Extended Care Strategic Healthcare Group (114), of the certification, 
provisional certification, or noncertification.
    (b) Once a program 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 program management does not meet the standards of 
subpart D of this part. Recognition of a program 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 program 
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 program that have a bearing on compliance with any of 
the requirements of this part (including any

[[Page 664]]

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 adult day care health program management must submit to the 
director a completed VA Form 10-3567, ``Staffing Profile'', set forth 
at 38 CFR 58.10. 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; and representatives from health 
administration, engineering, environmental management systems, and 
fiscal officers.
    (d) If the director of the VA medical center of jurisdiction 
determines that the State home facility or program management does not 
meet the standards of this part, the director will notify the State 
home program manager 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 (10N1-22), 
the Assistant Deputy Under Secretary for Health (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 an 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 State home facility or 
program management 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 the 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 at the State home facility that poses an 
immediate threat to public or patient safety or other information 
indicating the existence of such a threat, the director of the VA 
medical center of jurisdiction will immediately report this to the VA 
Network Director (10N1-22), Assistant Deputy Under Secretary for Health 
(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, 1741-1743)


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)

Subpart C--Per Diem Payments


Sec. 52.40  Monthly payment.

    (a)(1) During Fiscal Year 2002, VA will pay monthly one-half of the 
total cost of each eligible veteran's adult day health care for each 
day the veteran is in a facility recognized as a State home for adult 
day health care, not to exceed $34.64 per diem.
    (2) Per diem will be paid only for a day that the veteran is under 
the care of the facility at least six hours. For purposes of this 
paragraph a day means
    (i) Six hours or more in one calendar day; or
    (ii) Any two periods of at least 3 hours each (but each less than 
six hours) in any two calendar days in a calendar month.
    (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 38 CFR 58.11.
    (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 
enrollment and with any request for a change in the level of care 
(nursing home, domiciliary or hospital care). These forms are set forth 
in full at 38 CFR 58.12 and 58.13, respectively. If the program is 
eligible to receive per diem payments for adult day health care for a 
veteran, VA will pay per diem under this part from the date of receipt 
of the completed forms required by this paragraph (a)(5), except that 
VA will pay per diem from the day on which the veteran was enrolled in 
the program if VA receives the completed forms within 10 days after 
enrollment.
    (b) For determining ``the one-half of the total cost'' under 
paragraph (a)(1) of this section, total per diem costs for an eligible 
veteran's adult day health care consist of those direct and indirect 
costs attributable to adult day health care at the facility divided by 
the total number of participants enrolled in the adult day health care 
program. 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'' 
(OMB Circulars are available at the addresses in 5 CFR 1310.3).

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


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.50  Eligible veterans.

    A veteran is an eligible veteran under this part if VA determines 
that the veteran meets the definition of a veteran in 38 U.S.C. 101, is 
not barred from receiving this VA care under 38 U.S.C. 5303-5303A, 
needs adult day health care, and 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 adult day health 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);

[[Page 665]]

    (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 
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 determined under 38 U.S.C. 1710(f) and 1710(g), if they seek 
VA (U.S. Department of Veterans Affairs) hospital, nursing home, or 
outpatient care.

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

Subpart D--Standards


Sec. 52.60  Standards applicable for payment of per diem.

    The provisions of this subpart are the standards that a State home 
and program management must meet for the State to receive per diem for 
adult day health care provided at that facility.


Sec. 52.61  General requirements for adult day health care program.

    Adult day health care must be a therapeutically-oriented outpatient 
day program, which provides health maintenance and rehabilitative 
services to participants. The program must provide individualized care 
delivered by an interdisciplinary health care team and support staff, 
with an emphasis on helping participants and their caregivers to 
develop the knowledge and skills necessary to manage care requirements 
in the home. Adult day health care is principally targeted for complex 
medical and/or functional needs of geriatric patients.

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

Sec. 52.70  Participant rights.

    The participant has a right to a dignified existence, self-
determination, and communication with and access to persons and 
services inside and outside the facility. The program management must 
protect and promote the rights of each participant, including each of 
the following rights:
    (a) Exercise of rights. (1) The participant has the right to 
exercise his or her rights as a participant of the program and as a 
citizen or resident of the United States.
    (2) The participant has the right to be free of interference, 
coercion, discrimination, and reprisal from the program management in 
exercising his or her rights.
    (3) The participant has the right to freedom from chemical or 
physical restraint.
    (4) In the case of a participant determined incompetent under the 
laws of a State by a court of jurisdiction, the rights of the 
participant are exercised by the person appointed under State law to 
act on the participant's behalf.
    (b) Notice of rights and services. (1) The program management must 
inform the participant both orally and in writing in a language that 
the participant understands of his or her rights and all rules and 
regulations governing participant conduct and responsibilities during 
enrollment in the program. Such notification must be made prior to or 
upon enrollment and periodically during the participant's enrollment.
    (2) Participants or their legal representatives have the right--
    (i) Upon an oral or written request, to access all records 
pertaining to them including current participant records within 24 
hours (excluding weekends and holidays); and
    (ii) After receipt of their 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 two working days advance 
notice to the facility management.
    (3) Participants have the right to be fully informed in language 
that they can understand of their total health status.
    (4) Participants have the right to refuse treatment, to refuse to 
participate in patient activities, to refuse to participate in 
experimental research, and to formulate an advance directive as 
specified in paragraph (a)(7) of this section.
    (5) The program management must inform each participant before, or 
at the time of enrollment, and periodically during the participant's 
stay, of services available in the facility and of charges for those 
services to be billed to the participant.
    (6) The program management must furnish a written description of 
legal rights which includes a statement that the participant may file a 
complaint with the State (agency) concerning participant abuse and 
neglect.
    (7) The program management must have written policies and 
procedures regarding advance directives (e.g., living wills). These 
requirements include provisions to inform and provide written 
information to all participants 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.
    (8) Notification of changes. (i) Program management must 
immediately inform the participant; consult with the primary physician; 
and notify the participant's legal representative or an interested 
family member when there is--
    (A) An accident involving the participant which results in injury 
and has the potential for requiring physician intervention;
    (B) A significant change in the participant's physical, mental, or 
psychosocial status (e.g., 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 participant from the 
program.
    (ii) The program management must also promptly notify the 
participant and the participant's legal representative or interested 
family member when there is a change in resident rights under Federal 
or State law or regulations as specified in paragraph (b)(1) of this 
section.
    (iii) The program management must record and periodically update 
the address and phone number of the participant's legal representative, 
or interested family member, and the primary physician.
    (c) Free choice. (1) The participant has the right to--
    (i) Be fully informed in advance about care and treatment and of 
any changes in that care or treatment that may affect the participant's 
well-being; and
    (ii) 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.
    (2) If the participant is determined incompetent or otherwise 
determined to be incapacitated under the laws of the State, the 
participant's legal representative or interested family member(s) has 
the right to participate in planning care and treatment or changes in 
care and treatment.
    (d) Privacy and confidentiality. Participants have the right to 
privacy and confidentiality of their personal and clinical records.
    (1) Participants have a right to privacy in their medical treatment 
and personal care.
    (2) Except as provided in paragraph (d)(3) of this section, 
participants may approve or refuse the release of personal

[[Page 666]]

and clinical records to any individual outside the facility.
    (3) The participant's right to refuse release of personal and 
clinical records does not apply when--
    (i) The participant is transferred to another health care 
institution; or
    (ii) The release is required by law.
    (e) Grievances. A participant has the right to--
    (1) Voice grievances without discrimination or reprisal. 
Participants may voice grievances with respect to treatment received 
and not received; and
    (2) Prompt efforts by facility management to resolve grievances the 
participant may have, including those with respect to the behavior of 
other participants.
    (f) Examination of survey results. A participant has the right to--
    (1) Examine the results of the most recent VA survey with respect 
to the program. The program management must make the results available 
for examination in a place readily accessible to participants, 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.
    (g) Work. The participant 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 therapy 
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 (work therapy) paid services is at or above 
prevailing rates; and
    (iv) The participant agrees to the work therapy arrangement 
described in the plan of care.
    (h) Access and visitation rights. (1) The program management must 
provide immediate access to any participant by the following:
    (i) Any representative of the Under Secretary for Health;
    (ii) Any representative of the State;
    (iii) The State long-term care ombudsman;
    (iv) Immediate family or other relatives of the participant subject 
to the participant's right to deny or withdraw consent at any time; and
    (v) Others who are visiting subject to reasonable restrictions and 
the participant's right to deny or withdraw consent at any time.
    (2) The program management must provide reasonable access to any 
participant by any entity or individual that provides health, social, 
legal, or other services to the participant, subject to the 
participant's right to deny or withdraw consent at any time.
    (3) The program management must allow representatives of the State 
Ombudsman Program to examine a participant's clinical records with the 
permission of the participant or the participant's legal 
representative, subject to State law.
    (i) Telephone. The participant has the right to reasonable access 
to use a telephone where calls can be made without being overheard.
    (j) Personal property. The participant has the right to have at 
least one change of personal clothing.
    (k) Self-administration of drugs. An individual participant may 
self-administer drugs if the interdisciplinary team has determined that 
this practice is safe for the individual and is a part of the care 
plan.

(Authority: 38 U.S.C. 101, 501, 1741-1743)
(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.71  Participant and family caregiver responsibilities.

    The program management has a written statement of participant and 
family caregiver responsibilities that are posted in the facility and 
provided to the participant and caregiver at the time of the intake 
screening. The Statement of responsibilities must include the 
following:
    (a) Treat personnel with respect and courtesy;
    (b) Communicate with staff to develop a relationship of trust;
    (c) Make appropriate choices and seek appropriate care;
    (d) Ask questions and confirm understanding of instructions;
    (e) Share opinions, concerns, and complaints with the program 
director;
    (f) Communicate any changes in the participant's condition;
    (g) Communicate to the program director about medications and 
remedies used by the participant;
    (h) Let the program director know if the participant decides not to 
follow any instructions or treatment; and
    (i) Communicate with the adult day health care staff if the 
participant is unable to attend the adult day health care program.

(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.80  Enrollment, transfer and discharge rights.

    (a) Participants in the adult day health care program must meet the 
provisions of this part that apply to participants and--
    (1) Must meet at least two of the following indicators:
    (i) Dependence in two or more activities of daily living (ADLs).
    (ii) Dependence in three or more instrumental activities of daily 
living (IADLs).
    (iii) Advanced age, i.e., 75 years old or over.
    (iv) High use of medical services, i.e., three or more 
hospitalizations in past 12 months; or 12 or more hospitalizations, 
outpatient clinic visits; or emergency evaluation unit visits, in the 
past 12 months.
    (v) Diagnosis of clinical depression.
    (vi) Recent discharge from nursing home or hospital.
    (vii) Significant cognitive impairment, particularly when 
characterized by multiple behavior problems;
    (2) Must have a supportive living arrangement sufficient to meet 
their health care needs when not participating in the adult day health 
care program; and
    (3) Must be able to benefit from the adult day health care program.
    (b) Transfer and discharge. (1) Definition. Transfer and discharge 
includes movement of a participant to a program outside of the adult 
day health care program whether or not that program or facility is in 
the same physical plant.
    (2) Transfer and discharge requirements. All participants' 
preparedness for discharge from adult day health care must be a part of 
a comprehensive care plan. The possible reasons for discharge must be 
discussed with the participant and family members at the time of intake 
screening. Program management must permit each participant to remain in 
the program, and not transfer or discharge the participant from the 
program unless--
    (i) The transfer or discharge is necessary for the participant's 
welfare and the participant's needs cannot be met in the adult day 
health care setting;
    (ii) The transfer or discharge is appropriate because the 
participant's health has improved sufficiently so the participant no 
longer needs the services provided in the adult day health care 
setting;
    (iii) The safety of individuals in the program is endangered;
    (iv) The health of individuals in the program would otherwise be 
endangered;
    (v) The participant has failed, after reasonable and appropriate 
notice, to

[[Page 667]]

pay for participation in the adult day health care program; or
    (vi) The adult day health care program ceases to operate.
    (3) Documentation. When the facility transfers or discharges a 
participant under any of the circumstances specified in paragraphs 
(b)(2)(i) through (vi) of this section, the primary physician must 
document the reason for such action in the participant's clinical 
record.
    (4) Notice before transfer. Before a facility transfers or 
discharges a participant, the program management must--
    (i) Notify the participant and a family member or legal 
representative of the participant of the transfer or discharge and the 
reasons for the move in writing and in a language and manner they can 
understand;
    (ii) Record the reasons in the participant'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 (b)(4) of this section must be made by program 
management at least 30 days before the participant is transferred or 
discharged, except when specified in paragraph (b)(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 program would be endangered;
    (B) The health of individuals in the program would be otherwise 
endangered;
    (C) The participant's health improves sufficiently so the 
participant no longer needs the services provided by the adult day 
health care program;
    (D) The resident's needs cannot be met in the adult day health care 
program.
    (6) Contents of the notice. The written notice specified in 
paragraph (b)(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 participant is transferred or 
discharged, if any;
    (iv) A statement that the participant has the right to appeal the 
action to the State official responsible for the oversight of State 
Veterans Home programs; and
    (v) The name, address and telephone number of the State long-term 
care ombudsman.
    (7) Orientation for transfer or discharge. The program management 
must provide sufficient preparation and orientation to participants to 
ensure safe and orderly transfer or discharge from the program.
    (c) Equal access to quality care. The program 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) Enrollment policy. The program management must not require a 
third party guarantee of payment to the program as a condition of 
enrollment or expedited enrollment, or continued enrollment in the 
program. However, program management may require a participant or an 
individual who has legal access to a participant's income or resources 
to pay for program care from the participant's income or resources, 
when available.
    (e) Hours of operation. Each adult day health care program must 
provide at least 8 hours of operation five days a week. The hours of 
operation must be flexible and responsive to caregiver needs.
    (f) Caregiver support. The adult day health care program must 
develop a Caregiver Program which offers mutual support, information 
and education.

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

(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.90  Participant behavior and program practices.

    (a) Restraints. (1) The participant 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 
and documented in the participant's clinical record.
    (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.
    (2) The program management uses a system to achieve a restraint-
free environment.
    (3) The program management collects data about the use of 
restraints.
    (4) When alternatives to the use of restraint are ineffective, 
restraint is safely and appropriately used.
    (b) Abuse. (1) The participant has the right to be free from 
mental, physical, sexual, and verbal abuse or neglect, corporal 
punishment, and involuntary seclusion.
    (i) Mental abuse includes humiliation, harassment, and threats of 
punishment or deprivation.
    (ii) Physical abuse includes hitting, slapping, pinching, kicking 
or controlling behavior through corporal punishment.
    (iii) Sexual abuse includes sexual harassment, sexual coercion, and 
sexual assault.
    (iv) Neglect is any impaired quality of life for an individual 
because of the absence of minimal services or resources to meet basic 
needs. Neglect may include withholding or inadequately providing food 
and hydration, clothing, medical care, and good hygiene. It also 
includes placing the individual in unsafe or unsupervised conditions.
    (v) Involuntary seclusion is a participant's separation from other 
participants against his or her will or the will of his or her legal 
representative.
    (2) [Reserved]
    (c) Staff treatment of participants. The program management must 
develop and implement written policies and procedures that prohibit 
mistreatment, neglect, and abuse of participants and misappropriation 
of participant property.
    (1) The program 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 employee, which would indicate unfitness for service as a 
program assistant or other program staff to the State oversight agency 
director and licensing authorities.
    (2) The program management must ensure that all alleged violations 
involving mistreatment, neglect, or abuse, including injuries of 
unknown source, and misappropriation of participant property are 
reported immediately to the State oversight agency director and to 
other officials in accordance with State law through established 
procedures.
    (3) The program management must have evidence that all alleged 
violations are thoroughly investigated, and must prevent potential 
abuse while the investigation is in progress.

[[Page 668]]

    (4) The results of all investigations must be reported to the State 
oversight agency director or the designated representative and to other 
officials in accordance with State law within five 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, 1741-1743)


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.100  Quality of life.

    Program management must provide an environment and provide or 
coordinate care that supports the quality of life of each participant 
by maximizing the individual's potential strengths and skills.
    (a) Dignity. The program management must promote care for 
participants in a manner and in an environment that maintains or 
enhances each participant's dignity and respect in full recognition of 
his or her individuality.
    (b) Self-determination and participation. The participant 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 program; and
    (3) Make choices about aspects of his or her life in the program 
that are significant to the participant.
    (c) Participant and family concerns. The program management must 
document any concerns submitted to the management of the program by 
participants or family members.
    (1) A participant's family has the right to meet with families of 
other participants in the program.
    (2) Staff or visitors may attend participant or family meetings at 
the group's invitation.
    (3) The program management must respond to written requests that 
result from group meetings.
    (4) The program management must listen to the views of any 
participant or family group and act upon the concerns of participants 
and families regarding policy and operational decisions affecting 
participant care in the program.
    (d) Participation in other activities. A participant has the right 
to participate in social, religious, and community activities that do 
not interfere with the rights of other participants in the program.
    (e) Therapeutic participant activities. (1) The program 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 participant.
    (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, if applicable, by the State in which practicing; 
and
    (ii) Is certified as a therapeutic recreation specialist or an 
activities professional by a recognized certifying body.
    (3) A critical role of the adult day health care program is to 
build relationships and create a culture that supports, involves, and 
validates the participant. Therapeutic activity refers to that 
supportive culture and is a significant aspect of the individualized 
plan of care. A participant's activity includes everything the 
individual experiences during the day, not just arranged events. As 
part of effective therapeutic activity the adult day health care 
program must:
    (i) Provide direction and support for participants, including 
breaking down activities into small, discrete steps or behaviors, if 
needed by a participant;
    (ii) Have alternative programming available for any participant 
unable or unwilling to take part in group activity;
    (iii) Design activities that promote personal growth and enhance 
the self-image and/or improve or maintain the functioning level of 
participants to the extent possible;
    (iv) Provide opportunities for a variety of involvement (social, 
intellectual, cultural, economic, emotional, physical, and spiritual) 
at different levels, including community activities and events;
    (v) Emphasize participants' strengths and abilities rather than 
impairments and contribute to participant feelings of competence and 
accomplishment; and
    (vi) Provide opportunities to voluntarily perform services for 
community groups and organizations.
    (f) Social services. (1) The facility management must provide 
medically-related social services to participants and their families.
    (2) An adult day health care program must employ or contract for a 
qualified social worker to provide social services.
    (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);
    (ii) A social work license from the State in which the State home 
is located, if license is 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 social worker and 
support staff to meet participant and family social services needs. The 
adult day health care social services must:
    (i) Provide counseling to participants and families/caregivers;
    (ii) Facilitate the participant's adaptation to the adult day 
health care program and active involvement in the plan of care, if 
appropriate;
    (iii) Arrange for services not provided by the adult day health 
care program and work with these resources to coordinate services;
    (iv) Serve as participant advocate by asserting and safeguarding 
the human and civil rights of the participants;
    (v) Assess signs of mental illness and/or dementia and make 
appropriate referrals;
    (vi) Provide information and referral for persons not appropriate 
for adult day health care program;
    (vii) Provide family conferences and serve as liaison between 
participant, family/caregiver and program staff;
    (viii) Provide individual or group counseling and support to 
caregivers and participants;
    (ix) Conduct support groups or facilitate participant or family/
caregiver participation in support groups;
    (x) Assist program staff in adapting to changes in participants' 
behavior; and
    (xi) Provide or arrange for individual, group, or family 
psychotherapy for participants' with significant psychosocial needs.
    (5) Space for social services must be adequate to ensure privacy 
for interviews.
    (g) Environment. The program management must provide--
    (1) A safe, clean, comfortable, and homelike environment, and 
support the participants' ability to function as independently as 
possible and to engage in program activities;
    (2) Housekeeping and maintenance services necessary to maintain a 
sanitary, orderly, and comfortable interior;
    (3) Private storage space for each participant sufficient for a 
change of clothes;
    (4) Interior signs to facilitate participants' ability to move 
about the facility independently and safely;

[[Page 669]]

    (5) A clean bed available for acute illness, when indicated;
    (6) A shower for resident's need, when indicated;
    (7) Adequate and comfortable lighting levels in all areas;
    (8) Comfortable and safe temperature levels; and
    (9) Comfortable sound levels.

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


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.110  Participant assessment.

    The program management must conduct initially, semi-annually and as 
required by a change in the participant's condition a comprehensive, 
accurate, standardized, reproducible assessment of each participant's 
functional capacity.
    (a) Intake screening. An intake screening must be completed to 
determine the appropriateness of the adult day health care program for 
each participant.
    (b) Enrollment orders. The program management must have physician 
orders for the participant's immediate care and a medical assessment, 
including a medical history and physical examination, within a time 
frame appropriate to the participant's condition, not to exceed 72 
hours after enrollment, except when an examination was performed within 
five days before enrollment and the findings were provided and placed 
in the clinical record on enrollment.
    (c) Comprehensive assessments. (1) The program management must make 
a comprehensive assessment of a participant's needs using (on and after 
January 1, 2002) the Minimum Data Set for Home Care (MSD-HC) Instrument 
Version 2.0, August 2, 2000.
    (2) Frequency. Participant assessments must be completed--
    (i) No later than 14 calendar days after the date of enrollment; 
and
    (ii) Promptly after a significant change in the participant's 
physical, mental, or social condition.
    (3) Review of assessments. Program management must review each 
participant no less than once every six months and as appropriate and 
revise the participant'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 participant's individualized comprehensive plan of care, 
under paragraph (e) of this section.
    (d) 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 who 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.
    (e) Comprehensive care plans. (1) The program management must 
develop an individualized comprehensive care plan for each participant 
that includes measurable objectives and timetables to meet a 
participant'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 provided by the program and by 
other sources to attain or maintain the participant's highest physical, 
mental, and psychosocial well-being as required under Sec. 52.120;
    (ii) Any services that would otherwise be required under 
Sec. 52.120 but are not provided due to the participant's exercise of 
rights under Sec. 52.70, including the right to refuse treatment under 
Sec. 52.70(b)(4);
    (iii) Type and scope of interventions to be provided in order to 
reach desired, realistic outcomes;
    (iv) Roles of participant and family/caregiver; and
    (v) Discharge or transition plan, including specific criteria for 
discharge or transfer.
    (2) A comprehensive care plan must be--
    (i) Developed within 21 calendar days from the date of the adult 
day care enrollment and after completion of the comprehensive 
assessment;
    (ii) Assigned to one team member for the accountability of 
coordinating the completion of the interdisciplinary plan;
    (iii) Prepared by an interdisciplinary team that includes the 
primary physician, a registered nurse with responsibility for the 
participant, social worker, recreational therapist and other 
appropriate staff in disciplines as determined by the participant's 
needs, the participation of the participant, and the participant's 
family or the participant's legal representative; and
    (iv) 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 
participant's written plan of care.
    (f) Discharge summary. Prior to discharging a participant, the 
program management must prepare a discharge summary that includes--
    (1) A recapitulation of the participant's care;
    (2) A summary of the participant's status at the time of the 
discharge to include items in paragraph (c)(2) of this section; and
    (3) A discharge/transition plan related to changes in service needs 
and changes in functional status that prompted another level of care.

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


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.120  Quality of care.

    Each participant must receive, and the program 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 participant death, paralysis, coma or other major permanent 
loss of function associated with a medication error; or
    (ii) Any suicide or attempted suicide of a participant, including 
suicides following elopement (unauthorized departure) from the program; 
or
    (iii) Any elopement of a participant from the program 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 a participant's 
death or major permanent loss of function; or
    (vi) A participant's fall that results in death or major permanent 
loss of function as a direct result of the injuries sustained in the 
fall; or
    (vii) A serious injury requiring hospitalization.
    (3) The program management must report sentinel events to the 
director of the VA medical center of jurisdiction within 24 hours of 
identification. The director of the VA medical center of jurisdiction 
must report sentinel events

[[Page 670]]

to the VA Network Director (10N1-22), Assistant Deputy Under Secretary 
for Health (10N), and Chief Consultant, Geriatrics and Extended Care 
Strategic Healthcare Group (114), within 24 hours of identification 
and/or notification by the State home.
    (4) The program 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 in an adult day health care program is to 
prevent future injuries to residents, visitors, and personnel.
    (b) Activities of daily living. Based on the comprehensive 
assessment of a resident, the program management must ensure that--
    (1) A participant'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 
participant's ability to--
    (i) Bathe, dress, and groom;
    (ii) Transfer and ambulate;
    (iii) Toilet; and
    (iv) Eat.
    (2) A participant is given the appropriate treatment and services 
to maintain or improve his or her abilities specified in paragraph 
(b)(1) of this section.
    (3) A participant 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 participants receive proper 
treatment and assistive devices to maintain vision and hearing 
abilities, the program management must, if necessary, assist the 
participant and family--
    (1) In making appointments; and
    (2) Arranging for transportation to and from the office of a 
practitioner 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 ulcers. Based on the comprehensive assessment of a 
participant, the program management must ensure that--
    (1) A participant who enters the program without pressure ulcers 
does not develop pressure ulcers unless the individual's clinical 
condition demonstrates that they were unavoidable; and
    (2) A participant having pressure ulcers receives necessary 
treatment and services to promote healing, prevent infection and 
prevent new ulcers from developing.
    (e) Urinary and fecal incontinence. Based on the participant's 
comprehensive assessment, the program management must ensure that--
    (1) A participant who enters the program without an indwelling 
catheter is not catheterized unless the participant's clinical 
condition demonstrates that catheterization was necessary;
    (2) A participant 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 participant 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 
participant, the program management must ensure that--
    (1) A participant who enters the program without a limited range of 
motion does not experience reduction in range of motion unless the 
participant's clinical condition demonstrates that a reduction in range 
of motion is unavoidable; and
    (2) A participant 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 participant, the program management must ensure that a 
participant who displays mental or psychosocial adjustment difficulty, 
receives appropriate treatment and services to correct the assessed 
problem.
    (h) Accidents. The program management must ensure that--
    (1) The participant environment remains as free of accident hazards 
as is possible; and
    (2) Each participant receives adequate supervision and assistance 
devices to prevent accidents.
    (i) Nutrition. Based on a participant's comprehensive assessment, 
the program management must ensure, by working with the family, that a 
participant--
    (1) Maintains acceptable parameters of nutritional status, such as 
body weight and protein levels, unless the participant's clinical 
condition demonstrates that this is not possible; and
    (2) Receives a therapeutic diet when a nutritional deficiency is 
identified.
    (j) Hydration. The program management must provide each participant 
with sufficient fluid intake during the day to maintain proper 
hydration and health.
    (k) Unnecessary drugs. (1) General. Each participant'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 in paragraphs (k)(1)(i) 
through (v) of this section.
    (2) Antipsychotic drugs. Based on a comprehensive assessment of a 
participant, the program management must ensure that--
    (i) Participants who have not used antipsychotic drugs are not 
given these drugs unless antipsychotic drug therapy is necessary to 
treat a specific condition as diagnosed by the primary physician and 
documented in the clinical record; and
    (ii) Participants who use antipsychotic drugs receive gradual dose 
reductions, and behavioral interventions, unless clinically 
contraindicated, in an effort to discontinue these drugs.
    (l) Medication errors. The program 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, 1741-1743)


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.130  Nursing services.

    The program 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 participant assessment and 
individualized comprehensive plans of care, of all participants in the 
program.
    (a) There must be at least one registered nurse on duty each day of 
operation of the adult day health care program. This nurse must be 
currently licensed by the State and must have, in writing, 
administrative authority, responsibility, and accountability for the 
functions, activities, and training of

[[Page 671]]

the nursing and program assistants. VA recommends that this nurse be a 
geriatric nurse practitioner or a clinical nurse specialist.
    (b) The number and level of nursing staff is determined by the 
authorized capacity of participants and the nursing care needs of the 
participants.
    (c) Nurse staffing must be adequate for meeting the standards of 
this part.

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


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.140  Dietary services.

    The program management must provide each participant with a 
nourishing, palatable, well-balanced meal that proportionally meets the 
daily nutritional and special dietary needs of each participant.
    (a) Food and nutritional services. The program management provides 
and/or contracts with a food service entity and provides and/or 
contracts sufficient support personnel competent to carry out the 
functions of the food service.
    (1) The program management must employ a qualified dietitian either 
part-time or on a contract consultant basis to provide nutritional 
guidance.
    (2) A qualified dietitian is one who is qualified based upon 
registration by the Commission on Dietetic Registration of the American 
Dietetic Association.
    (3) The dietitian must--
    (i) Conduct participant nutritional assessments and recommend 
nutritional intervention as appropriate.
    (ii) Consult and provide nutrition education to participants, 
family/caregivers, and program staff as needed.
    (iii) Consult and provide education and training to the food 
service staff.
    (iv) Monitor and evaluate participants receiving enteral tube 
feedings and parenteral line solutions, and recommend changes as 
appropriate.
    (b) Menus and nutritional adequacy. (1) The participant's total 
dietary intake is of concern but is not the adult day health care 
program's responsibility.
    (2) The program is responsible for the meals served in the 
facility.
    (c) Food. Each participant receives and the program 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 participants 
who refuse food served.
    (d) Therapeutic diets. (1) Therapeutic diets must be prescribed by 
the primary care physician.
    (2) Special, modified, or therapeutic diets must be provided as 
necessary for participants with medical conditions or functional 
impairments.
    (3) An adult day health care program must not admit nor continue to 
serve a participant whose dietary requirements cannot be accommodated 
by the program.
    (e) Frequency of meals. (1) At regular times comparable to normal 
mealtimes in the community, each participant may receive and program 
management must provide at least two meals daily for those veterans 
staying more than four hours and at least one meal for those staying 
less than four hours.
    (2) The program management must offer snacks and fluids as 
appropriate to meet the participants' nutritional and fluid needs.
    (f) Assistive devices. The program management must provide special 
eating equipment and utensils for participants who need them.
    (g) Sanitary conditions. The program 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, 1741-1743)

Sec. 52.150  Physician services.

    As a condition of enrollment in adult day health care program, a 
participant must obtain a written physician order for enrollment. Each 
participant must remain under the care of a physician.
    (a) Physician supervision. The program management must ensure 
that--
    (1) The medical care of each participant is supervised by a primary 
care physician;
    (2) Each participant's medical record must contain the name of the 
participant's primary physician; and
    (3) Another physician is available to supervise the medical care of 
participants when their primary physician is unavailable.
    (b) Frequency of physician reviews. (1) The participant must be 
seen by the primary physician at least annually and as indicated by a 
change of condition.
    (2) The program management must have a policy to help ensure that 
adequate medical services are provided to the participant.
    (3) At the option of the primary physician, required reviews in the 
program after the initial review may alternate between personal 
physician reviews and reviews by a physician assistant, nurse 
practitioner, or clinical nurse specialist in accordance with paragraph 
(e) of this section.
    (c) Availability of acute care. The program management must provide 
or arrange for the provision of acute care when it is indicated.
    (d) Availability of physicians for emergency care. In case of an 
emergency, the program management must provide or arrange for the 
provision of physician services when the program has participants under 
its care.
    (e) Physician delegation of tasks. (1) 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.
    (2) The primary physician may not delegate a task when the 
provisions of this part 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, 1741-1743)


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.160  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 participant's comprehensive plan of care, program 
management must--
    (1) Provide the required services; or
    (2) Obtain the required services and equipment from an outside 
resource, in accordance with Sec. 52.210(h), 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, 1741-1743)


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.170  Dental services.

    (a) Program management must, if necessary, assist the participant 
and family/caregiver--

[[Page 672]]

    (1) In making appointments; and
    (2) By arranging for transportation to and from the dental 
services.
    (b) Program management must promptly assist and refer participants 
with lost or damaged dentures to a dentist.

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

Sec. 52.180  Administration of drugs.

    The program management must assist with the management of 
medication and have a system for disseminating drug information to 
participants and program staff.
    (a) Procedures. (1) The program management must provide reminders 
or prompts to participants to initiate and follow though with self-
administration of medications.
    (2) The program management must establish a system of records to 
document the administration of drugs by participants and/or staff.
    (3) The program management must ensure that drugs and biologicals 
used by participants are labeled in accordance with currently accepted 
professional principles, and include the appropriate accessory and 
cautionary instructions, and the expiration dates when applicable.
    (4) The program management must store all drugs, biologicals, and 
controlled schedule II drugs listed in 21 CFR 1308.12 in locked 
compartments under proper temperature controls, permit only authorized 
personnel to have access, and otherwise comply with all applicable 
State and Federal laws.
    (b) Service consultation. The program management must employ or 
contract for the services of a pharmacist licensed in the State in 
which the program is located who provides consultation, as needed, on 
all the provision of drugs.

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


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.190  Infection control.

    The program management must establish and maintain an infection 
control program designed to prevent the development and transmission of 
disease and infection.
    (a) Infection control program. The program management must--
    (1) Investigate, control, and prevent infections in the program 
participants and staff; and
    (2) Maintain a record of incidents and corrective actions related 
to infections.
    (b) Preventing spread of infection. (1) The program management must 
prevent participants or staff with a communicable disease or infected 
skin lesions from attending the adult day health care program if direct 
contact will transmit the disease.
    (2) The program management must require staff to wash their hands 
after each direct participant contact for which hand washing is 
indicated by accepted professional practice.

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


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.200  Physical environment.

    The physical environment must be designed, constructed, equipped, 
and maintained to protect the health and safety of participants, 
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, 2000 edition. Incorporation by reference this document was 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. The document incorporated by reference 
is 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, Battery March 
Park, Quincy, MA 02269. (For ordering information, call toll-free 1-
800-344-3555.)
    (b) Space and equipment. (1) Program management must--
    (i) Provide sufficient space and equipment in dining, health 
services, recreation, and program areas to enable staff to provide 
participants with needed services as required by these standards and as 
identified in each participant's plan of care; and
    (ii) Maintain all essential mechanical, electrical, and patient 
care equipment in safe operating condition.
    (2) Each adult day health care program, when it is co-located in a 
nursing home, domiciliary, or other care facility, must have its own 
separate designated space during operational hours.
    (3) The indoor space for an adult day health care program must be 
at least 100 square feet per participant including office space for 
staff and must be 60 square feet per participant excluding office space 
for staff.
    (4) Each program will need to design and partition its space to 
meet its own needs, but a minimal number of functional areas must be 
available. These include:
    (i) A dividable multipurpose room or area for group activities, 
including dining, with adequate table-setting space.
    (ii) Rehabilitation rooms or an area for individual and group 
treatments for occupational therapy, physical therapy, and other 
treatment modalities.
    (iii) A kitchen area for refrigerated food storage, the preparation 
of meals and/or training participants in activities of daily living.
    (iv) An examination and/or medication room.
    (v) A quiet room (with at least one bed), which functions to 
isolate participants who become ill or disruptive, or who require rest, 
privacy, or observation, must include a bed. It should be separate from 
activity areas, near a restroom, and supervised.
    (vi) Bathing facilities adequate to facilitate bathing of 
participants with functional impairments.
    (vii) Toilet facilities and bathrooms easily accessible to people 
with mobility problems, including participants in wheelchairs. There 
must be at least one toilet for every eight participants. The toilets 
must be equipped for use by persons with limited mobility, easily 
accessible from all programs areas, i.e., preferably within 40 feet 
from that area, designed to allow assistance from one or two staff, and 
barrier-free.
    (viii) Adequate storage space. There should be space to store arts 
and crafts materials, personal clothing and belongings, wheelchairs, 
chairs, individual handiwork, and general supplies. Locked cabinets 
must be provided for files, records, supplies, and medications.
    (ix) An individual room for counseling and interviewing 
participants and family members.
    (x) A reception area.
    (xi) An outside space that is used for outdoor activities that is 
safe, accessible to indoor areas, and accessible to those with a 
disability. This space may include recreational space and garden area. 
It should be easily supervised by staff.
    (c) Furnishings must be available for all participants. This must 
include functional furniture appropriate to the participants' needs. 
Furnishings must be attractive, comfortable, and homelike, while being 
sturdy and safe.
    (d) Participant call system. The coordinator's station must be 
equipped to receive participant calls through a communication system 
from--
    (1) Clinic rooms; and
    (2) Toilet and bathing facilities.
    (e) Other environmental conditions. The program management must 
provide

[[Page 673]]

a safe, functional, sanitary, and comfortable environment for the 
participants, staff and the public. The program management must--
    (1) Establish procedures to ensure that water is available to 
essential areas if 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, when available, 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, 1741-1743)

Sec. 52.210  Administration.

    An adult day health care program 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 participant.
    (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 program; and
    (2) The governing body or State official with oversight for the 
program appoints the adult day health care program administrator who 
is:
    (i) A qualified heath care professional experienced in clinical 
program management and, if required by the State, certified as a 
Certified Administrator in Adult Day Health Care; and
    (ii) Responsible for the operation and management of the program 
including:
    (A) Documentation of current credentials for each licensed 
independent practitioner employed by the program;
    (B) Review of the practitioner's record of experience;
    (C) Assessment of whether practitioners with clinical privileges 
act within the scope of privileges granted; and
    (iii) Awareness of local trends in community adult day health care 
and other services, and participation in area adult day health care 
organizations.
    (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 Central Office, 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 adult day health care program administrator; or
    (3) The State employee responsible for oversight of the State home 
adult day health care program if a contractor operates the State 
program.
    (c) Required information. The program 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:
    (1) The copy of the 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 the right to 
occupy the facility;
    (4) Organizational charts and the operational plan of the adult day 
health care program;
    (5) The number of the staff by category indicating full-time, part-
time and minority designation, annually;
    (6) The number of adult day health care participants who are 
veterans and non-veterans, the number of veterans who are minorities 
and the number of non-veterans who are minorities, annually;
    (7) Annual State Fire Marshall's report;
    (8) Annual certification from the responsible State home showing 
compliance with Section 504 of the Rehabilitation Act of 1973 (29 
U.S.C. 794) (VA Form 10-0143A set forth at 38 CFR 58.14);
    (9) Annual certification for Drug-Free Workplace Act of 1988 (41 
U.S.C. 701-707) (VA Form 10-0143 set forth at 38 CFR 58.15);
    (10) Annual certification regarding lobbying in compliance with 31 
U.S.C. 1352 (VA Form 10-0144 set forth at 38 CFR 58.16);
    (11) Annual certification of compliance with Title VI of the Civil 
Rights Act of 1964 (42 U.S.C. 2000d-1) as effectuated in 38 CFR part 18 
(VA Form 10-0144A located at 38 CFR 58.17);
    (d) Percentage of veterans. At least 75 percent of the program 
participants must be eligible veterans except that the veteran 
percentage need only be more than 50 percent if the facility was 
acquired, constructed, or renovated solely with State funds. All non-
veteran participants must be veteran-related family members or gold 
star parents of veterans.
    (e) Management contract facility. If a program is operated by an 
entity contracting with the State, the State must assign a State 
employee to monitor the operations of the facility. The State employee 
may also monitor other levels of care at a colocated facility, but must 
monitor the adult day health care facility and any colocated facility 
on a full-time onsite basis.
    (f) Licensure. The facility and program management must comply with 
applicable State and local licensure laws.
    (g) Staff qualifications. (1) The program management must employ on 
a full-time, part-time or consultant basis those professionals 
necessary to carry out the provisions of these requirements. 
Professional disciplines involved in participant care must include 
registered nurses, program assistants, physicians, social workers, 
rehabilitation therapists, dietitians, and therapeutic activity 
therapists and pharmacists. Other disciplines may be considered 
depending upon the participant and/or program needs.
    (2) Professional staff must be licensed, certified, or registered 
in accordance with applicable State laws.
    (3) The staff-participant ratio must be sufficient in number and 
skills (at least one staff to 4 to 6 participants) to ensure compliance 
with the standards of this part. There must be at least two responsible 
persons (paid staff members) at the adult day health care center at all 
times when there are two or more participants in attendance.
    (4) Persons counted in the staff to participant ratio must spend at 
least 70 percent of their time in direct service with participants.
    (5) All professional team members will serve in the role of case 
manager for designated participants.
    (6) All personnel, paid and volunteer, will be provided appropriate 
training to maintain the knowledge and skills required for the 
participant needs.
    (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 program management must have that service 
furnished to participants 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 program management assumes 
responsibility for--
    (i) Obtaining services that meet professional standards and 
principles that apply to professionals providing services in such a 
program; and
    (ii) The timeliness of the services.

[[Page 674]]

    (i) Medical director. (1) The program management must provide a 
primary care physician to serve as medical director and a consultant to 
the interdisciplinary program team.
    (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 program;
    (iii) Ensuring continuous physician coverage to handle medical 
emergencies;
    (iv) 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 adult day health care program administrator; and
    (v) Monitoring employees' health status and advising the program 
administrator on employee health policies.
    (3) The medical director may also provide hands-on assessment and/
or treatment if authorized by the participant's primary care provider. 
In programs where a medical director is available to act as a member of 
the team and authorizes care, information concerning the care provided 
must be shared with the primary care physician who continues to provide 
the ongoing medical care.
    (4) The program management must have written procedures for 
handling medical emergencies. The procedures must include, at least:
    (i) Procedures for notification of the family;
    (ii) Procedures for transportation arrangements;
    (iii) Provision for an escort, if necessary; and
    (iv) Procedures for maintaining a portable basic emergency 
information file for each participant that includes:
    (A) Hospital preference;
    (B) Physician of record and telephone number;
    (C) Emergency contact (family);
    (D) Insurance information;
    (E) Medications/allergies;
    (F) Current diagnosis and history; and
    (G) Photograph for participant identification.
    (j) Required training of program assistants. (1) Program assistants 
must have a high school diploma, or the equivalent, and must have at 
least one year of experience in working with adults in a health care 
setting. Program assistants also must complete the National Adult Day 
Services Association training course or complete equivalent training.
    (2) The program management must not use any individual working in 
the program as a program assistant whether permanent or not unless:
    (i) That individual is competent to provide appropriate services; 
and
    (ii) That individual has completed training or is certified by the 
National Adult Day Services Association as a certified Program 
Assistant in Adult Day Services.
    (3) Verification. Before allowing an individual to serve as a nurse 
aide or program assistant, program management must verify that the 
individual has successfully completed a training and competency 
evaluation program. Facilities must follow up to ensure that such an 
individual actually becomes certified, if available in the State.
    (4) Multi-State registry verification. Before allowing an 
individual to serve as a nurse aide or program assistant, program 
management must seek information from every State registry established 
under HHS regulations at 42 CFR 483.156 which the facility believes may 
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 program management must 
complete a performance review of every nurse aide or program assistant 
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 or program assistants, but must be no less than 12 hours per 
year;
    (ii) Address areas of weakness as determined in program assistants' 
performance reviews and address the special needs of participants as 
determined by the program staff; and
    (iii) For program assistants or nurse aides providing services to 
individuals with cognitive impairments, address the care of the 
cognitively impaired.
    (k) Proficiency of program assistants. The program management must 
ensure that program assistants or nurse aides are able to demonstrate 
competency in skills and techniques necessary to care for participants' 
needs, as identified through participant assessments, and described in 
the plan of care.
    (l) Laboratory and radiology results. The program management must--
    (1) Obtain laboratory or radiology results from the participant's 
primary physician to support the needs of its participants.
    (2) Assist the participant and/or family/caregiver in making 
transportation arrangements to and from the source of laboratory or 
radiology services, if the participant needs assistance.
    (3) File in the participant's clinical record laboratory or 
radiology reports that are dated and contain the name and address of 
the testing laboratory or radiology service.
    (m) Participant records. (1) The facility management must maintain 
clinical records on each participant 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 if there is no 
requirement in State law.
    (3) The program management must safeguard clinical record 
information against loss, destruction, or unauthorized use.
    (4) The program management must keep confidential all information 
contained in the participant'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) A third-party payment contract;
    (iv) The participant; or
    (v) The participant's legal representative.
    (5) The clinical record must contain--
    (i) Sufficient information to identify the participant;
    (ii) A record of the participant's assessments;
    (iii) The plan of care and services provided;
    (iv) The results of any pre-enrollment screening conducted by the 
State; and
    (v) Progress notes.
    (n) Quality assessment and assurance. (1) Program management must 
maintain a quality improvement program and a quality improvement 
committee consisting of--
    (i) A registered nurse;
    (ii) A medical director designated by the program; and

[[Page 675]]

    (iii) At least three other members of the program's staff.
    (2) The quality improvement committee--
    (i) Must implement a quality improvement plan for the evaluation of 
its operation and services and review and revise annually; and
    (ii) Must meet at least quarterly to identify quality of care 
issues; and
    (iii) Must develop and implement appropriate plans of action to 
correct identified quality deficiencies; and
    (iv) Must ensure that identified quality deficiencies are corrected 
within an established time period.
    (3) 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 the requirements of this section.
    (o) Disaster and emergency preparedness. (1) The program management 
must have detailed written plans and procedures to meet all potential 
emergencies and disasters, such as fire, severe weather, bomb threats, 
and missing participants.
    (2) The program management must train all employees in emergency 
procedures when they begin to work in the program, periodically review 
the procedures with existing staff, and carry out unannounced staff 
drills using those procedures.
    (p) Transfer procedure. (1) The program management must have in 
effect a written transfer procedure that reasonably assures that--
    (i) Participants will be transferred from the adult day health care 
program to the hospital, and ensured of timely admission to the 
hospital when transfer is medically appropriate as determined by a 
physician; and
    (ii) Medical and other information needed for care and treatment of 
participants will be exchanged between the institutions.
    (2) The transfer must be with a hospital sufficiently close to the 
adult day health care program to make transfer feasible.
    (q) Compliance with Federal, State, and local laws and professional 
standards. The program 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 (31 U.S.C. 7501 et 
seq.) and the Cash Management Improvement Acts of 1990 and 1992 (31 
U.S.C. 3335, 3718, 3720A, 6501, 6503).
    (r) Relationship to other Federal regulations. In addition to 
compliance with the regulations set forth in this subpart, the program 
must 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 (29 U.S.C. 794); Drug-Free Workplace Act of 1988 (41 U.S.C. 701-
707); restrictions regarding lobbying (31 U.S.C. 1352); Title VI of the 
Civil Rights Act of 1964 (42 U.S.C. 2000d-1). 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.
    (s) Intermingling. A facility recognized as a State home for 
providing adult day health care may only provide adult day health care 
in the areas of the facility recognized as a State home for providing 
adult day health care.
    (t) 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 adult day 
health care.

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


(The Office of Management and Budget has approved the information 
collection requirements in this paragraph under control number 2900-
0160.)


Sec. 52.220  Transportation.

    Transportation of participants to and from the adult day health 
care facility must be a component of the overall program.
    (a)(1) Except as provided in paragraph (a)(2) of this section, the 
adult day health care program management must provide or contract for 
transportation to enable participants, including persons with 
disabilities, to attend the program and to participate in facility-
sponsored outings.
    (2) The veteran or the family of a veteran may decline 
transportation offered by the adult day health care program management 
and make their own arrangements for the transportation.
    (b) The adult day health care program management must have a 
transportation policy that includes routine and emergency procedures, 
with a copy of the relevant procedures located in all program vehicles.
    (c) All vehicles transporting participants to and from adult day 
health care must be equipped with a device for two-way communication.
    (d) All facility-provided and contracted transportation systems 
must meet local, State and federal regulations.
    (e) The time to transport participant to or from the facility must 
not be more than 60 minutes except under unusual conditions, e.g., bad 
weather.

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


[FR Doc. 02-150 Filed 1-4-02; 8:45 am]
BILLING CODE 8320-01-P