[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Proposed Rules]
[Pages 71999-72001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28122]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AM82


Community Residential Care Program

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
Community Residential Care regulations to update the standards for VA 
approval of facilities, including standards that would be adopted for 
fire safety and heating and cooling systems. This rule would also 
establish a single 12-month duration for VA approvals and would 
authorize provisional approval of certain facilities. Finally, this 
rule would eliminate the VA statement of needed care requirement in 
current regulations and clarify that it is the care providers at the 
facility that determine the services needed by a particular veteran. VA 
intends that the proposed amendments would help ensure that veterans 
are provided appropriate care at facilities that receive VA referrals.

DATES: Comment Date: Comments on the proposed rule must be received on 
or before January 26, 2009.

ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to 
(202) 273-9026. Comments should indicate that they are submitted in 
response to ``RIN 2900-AM82--Community Residential Care Program.'' 
Copies of comments received will be available for public inspection in 
the Office of Regulations Management, Room 1063B, between the hours of 
8 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please 
call (202) 461-4902 for an appointment. (This is not a toll-free 
number.) In addition, during the comment period, comments may be viewed 
online through the Federal Docket Management System (FDMS) at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Daniel Schoeps, Office of Geriatrics 
and Extended Care (114), Veterans Health Administration, Department of 
Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; (202) 
461-6763. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: This document proposes to amend the 
Community Residential Care regulations (referred to below as the 
regulations), which are set forth at 38 CFR 17.61 through 17.72. The 
regulations implement 38 U.S.C. 1730.
    Under the provisions of 38 U.S.C. 1730, VA health care personnel 
may assist a veteran by referring such veteran for placement in a 
privately or publicly-owned community residential care facility if:
     At the time of initiating the assistance, the veteran is 
receiving VA medical services on an outpatient basis or receiving care 
at a VA medical center, domiciliary, or nursing home; or such services 
or care were furnished to the veteran within the preceding 12 months;
     Placement of the veteran in a community residential care 
facility is appropriate; and
     The facility has been approved in accordance with the 
regulations.
    This program has evolved through the years to encompass: Medical 
Foster Homes, Assisted Living facilities, Personal Care Homes, Family 
Care Homes, and Psychiatric Community Residential Care Homes. Care must 
consist of room, board, assistance with activities of daily living, and 
supervision as determined on an individual basis. The cost of 
residential care is financed by the veteran's own resources. Placement 
is made in residential settings inspected and approved by the 
appropriate VA facility, but chosen by the veteran.

Approval of Community Residential Care Facilities

    As a condition of approval in the community residential care 
program, current 38 CFR 17.63 requires that a facility meet the 
requirements of chapters 1-7, 22-23, 31, and Appendix A of the National 
Fire Protection Association (NFPA) 101, NFPA's Life Safety Code (1994 
edition), and NFPA 101A, Guide on Alternative Approaches to Life Safety 
(1995 edition). The Office of the Federal Register approved our 
incorporation by reference of the NFPA Code and Guide in current Sec.  
17.63 under 5 U.S.C. 552(a) and 1 CFR part 51. We propose to amend 
Sec.  17.63 to require community residential care facilities seeking VA 
approval to meet the requirements of chapters 1-11, 32-33, and 43 and 
Appendix A of the NFPA 101, the NFPA's Life Safety Code (2006 edition), 
and NFPA 101A, Guide on Alternative Approaches to Life Safety (2007 
edition). These changes reflect updates regarding the same subject 
matter that is currently incorporated by reference. This action is 
necessary to ensure that facilities meet current industry-wide 
standards regarding fire safety. We will request that the Office of the 
Federal Register approve our incorporation by reference of the updated 
NFPA Code and Guide in proposed Sec.  17.63.
    These materials for which we are seeking incorporation by reference 
are available for inspection at the Department of Veterans Affairs, 
Office

[[Page 72000]]

of Regulations Management (02REG), Room 1068, 810 Vermont Avenue, NW., 
Washington, DC 20420, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal-register/code-of-federal-regulations/ibr-locations.html. 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.)
    As a condition of approval, current 38 CFR 17.63(a)(3), among other 
things, requires facilities to have safe and functioning systems for 
heating. We propose to amend Sec.  17.63 to require facilities seeking 
VA approval to have safe and functioning systems for ``heating and/or 
cooling, as needed.'' We also propose to add language indicating that, 
in the county, parish, or similar jurisdiction where the facility is 
located, a heating or cooling system is deemed to be needed if VA 
determines that a majority of community residential care facilities and 
other extended care facilities have one. We have determined that safe 
and functioning heating and cooling would be needed in some facilities 
to avoid extremes in temperature that might impair the care provided to 
veterans referred by VA. Some facilities may not need heating and other 
facilities may not need cooling to properly care for referred veterans. 
In any event, we believe that if a majority of the community 
residential care facilities and other extended care facilities in the 
county, parish, or other similar jurisdiction where the facility is 
located have a heating or cooling system, this would be a good 
indication that it is needed to avoid extremes in temperature and 
should be available to provide comfortable living conditions for 
approved facilities.
    Current 38 CFR 17.63(b) and (i)(2)(i) prescribe preparation of a 
statement of needed care for each veteran referred by VA to a facility 
for community residential care and that the facility must maintain a 
copy of the statement and assist residents in obtaining the statement 
from VA. Current 38 CFR 17.62(b) defines statement of needed care as a 
``written description of needed assistance in daily living activities 
devised by VA.'' We propose to amend Sec. Sec.  17.62 and 17.63 to 
remove all of the provisions concerning statements of needed care. 
These amendments are necessary to clarify that VA does not determine or 
control the care that is provided to a veteran in an approved facility 
under this program. Rather, it is the health care professionals 
employed by the facility and other facility officials that determine 
the care that is needed for a particular veteran.

Exceptions to Standards in Community Residential Care Facilities

    Current 38 CFR 17.64 prescribes exceptions to standards in 
community residential care facilities. This section provides criteria 
for utilizing or obtaining a ``grandfather'' clause for continued 
approval of facilities that participated in VA's community residential 
care program prior to the effective date of the regulations in 1989. 
There are no facilities that currently qualify for these exceptions and 
there are no facilities that could qualify for an exception in the 
future. Accordingly, we propose to remove Sec.  17.64 because it is no 
longer relevant for the community residential care program.

Duration of Approval

    Under current 38 CFR 17.65, facility approvals may be valid for up 
to 24 months if all the standards in Sec.  17.63 are met. It also 
provides that facility approvals may be valid for shorter periods (15 
months, 12 months, and 9 months) when VA finds specific deficiencies. 
We propose to amend the approval provisions to prescribe only that 
facility approvals would be valid for 12 months if inspections and 
monitoring establish that all the standards in 38 CFR 17.63 are met. 
This will help to ensure that approvals are based on more current 
information and should not impose an additional burden on VA or on 
facilities since our practice has been to inspect each facility at 
least once in each 12-month period. We also propose to change the 
approval provisions to state that, based on the report of a VA 
inspection and on any findings of necessary interim monitoring of the 
facility, the approving official may provide a community residential 
care facility with a provisional approval if the facility does not meet 
one or more of the standards in 38 CFR 17.63, provided that the 
deficiencies do not jeopardize the health or safety of the residents 
and that the facility management and VA have agreed to a plan for 
correcting any deficiencies in a specified amount of time. Under the 
proposal, a provisional approval would not be for more than 12 months, 
and would not be for more time than VA determines is reasonable for 
correcting the specific deficiencies. The provisional approval would 
allow VA to continue recommending facilities with some temporary 
deficiencies when it is in the best interest of residents to do so.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any given year. This rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This document contains no collections of information under the 
Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by OMB unless OMB waives such review, as any regulatory action that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more, or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action planned or taken by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The economic, interagency, economic, legal, and policy implications 
of this proposed rule have been examined and it has been determined to 
be a not significant regulatory action under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. In addition to having an effect on individuals 
(veterans), the proposed

[[Page 72001]]

rule would have an insignificant economic impact on a few small 
entities. The proposed rule would likely affect fewer than 100 of the 
2,800 community residential care facilities approved for referral of 
veterans under the regulations. Also, the additional costs for 
compliance with the proposed rule would constitute an inconsequential 
amount of the operational costs of such facilities. Accordingly, 
pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and 
final regulatory flexibility analysis requirements of sections 603 and 
604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.005, Grants to States for 
Construction of State Home Facilities; 64.007, Blind Rehabilitation 
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical 
Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans 
Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans 
Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, 
Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 
64.018, Sharing Specialized Medical Resources; 64.019, Veterans 
Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based 
Primary Care.

List of Subjects in 38 CFR Part 17

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

    Approved: September 19, 2008.
James B. Peake,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 17 as set forth below:

PART 17--MEDICAL

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

    Authority: 38 U.S.C. 501, 1721, and as stated in specific 
sections.


Sec.  17.62  [Amended]

    2. Amend Sec.  17.62 by removing paragraph (b) and redesignating 
paragraphs (c) through (g) as paragraphs (b) through (f), respectively.
    3. Amend Sec.  17.63 by:
    a. In paragraph (a)(2), removing ``Office of Regulations Management 
(02D). Room 1154,'' and adding, in its place, ``Office of Regulation 
Policy and Management (02REG), Room 1068,'' and by revising the first 
sentence.
    b. Revising paragraph (a)(3).
    c. Removing and reserving paragraph (b).
    d. In paragraph (g), removing ``specified in the statement of 
needed care''.
    e. In paragraph (i), removing paragraph (i)(2)(i) and redesignating 
paragraphs (i)(2)(ii) and (i)(2)(iii) as paragraphs (i)(2)(i) and 
(i)(2)(ii), respectively.
    The revisions read as follows:


Sec.  17.63  Approval of community residential care facilities.

* * * * *
    (a) * * *
    (2) Meet the requirements of chapters 1-11, 32-33, and 43 and 
Appendix A of the NFPA 101, the National Fire Protection Association's 
Life Safety Code (2006 edition), and NFPA 101A, Guide on Alternative 
Approaches to Life Safety (2007 edition). * * *
    (3) Have safe and functioning systems for heating and/or cooling, 
as needed (a heating or cooling system is deemed to be needed if VA 
determines that, in the county, parish, or similar jurisdiction where 
the facility is located, a majority of community residential care 
facilities or other extended care facilities have one), hot and cold 
water, electricity, plumbing, sewage, cooking, laundry, artificial and 
natural light, and ventilation.
* * * * *


Sec.  17.64  [Removed]

    4. Remove and reserve Sec.  17.64.
    5. Revise Sec.  17.65 to read as follows:


Sec.  17.65  Approvals and provisional approvals of community 
residential care facilities.

    (a) An approval of a facility meeting all of the standards in 38 
CFR 17.63 based on the report of a VA inspection and any findings of 
necessary interim monitoring of the facility shall be for a 12-month 
period.
    (b) The approving official, based on the report of a VA inspection 
and on any findings of necessary interim monitoring of the facility, 
may provide a community residential care facility with a provisional 
approval if that facility does not meet one or more of the standards in 
38 CFR 17.63, provided that the deficiencies do not jeopardize the 
health or safety of the residents, and that the facility management and 
VA agree to a plan of correcting the deficiencies in a specified amount 
of time. A provisional approval shall not be for more than 12 months 
and shall not be for more time than VA determines is reasonable for 
correcting the specific deficiencies.
    (c) An approval may be changed to a provisional approval or 
terminated under the provisions of Sec. Sec.  17.66 through 17.71 
because of a subsequent failure to meet the standards of Sec.  17.63 
and a provisional approval may be terminated under the provisions of 
Sec. Sec.  17.66 through 17.71 based on failure to meet the plan of 
correction or failure otherwise to meet the standards of Sec.  17.63.

    (Authority: 38 U.S.C. 1730.)

[FR Doc. E8-28122 Filed 11-25-08; 8:45 am]
BILLING CODE 8320-01-P