[Federal Register Volume 74, Number 231 (Thursday, December 3, 2009)]
[Rules and Regulations]
[Pages 63307-63308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28757]


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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: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
Community Residential Care regulations to update the standards for VA 
approval of facilities, including standards for fire safety and heating 
and cooling systems. This rule also establishes a 12-month duration for 
VA approvals and would authorize provisional approval of certain 
facilities. Finally, this rule eliminates the statement of needed care 
requirement and clarifies that it is the care providers at the facility 
that determine the services needed by a particular veteran.

DATES: Effective Date: This amendment is effective January 4, 2010. The 
Director of the Federal Register approved the incorporation by 
reference of certain publications listed in this rule as of January 4, 
2010.

FOR FURTHER INFORMATION CONTACT: Daniel Schoeps, Office of Geriatrics 
and Extended Care Services (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: In a document published in the Federal 
Register on November 26, 2008 (73 FR 71999), VA proposed to amend its 
community residential care regulations, which are codified at 38 CFR 
17.61 through 17.72. The regulations implement 38 U.S.C. 1730, which 
provides that VA health care personnel may assist veterans by referring 
them for placement in a privately or publicly-owned community 
residential care facility if certain criteria are met. As a condition 
of approval, the regulations require facilities to meet industry-wide 
fire safety standards and to have safe and functioning systems for 
heating. We proposed to amend the regulations to update the standards 
for VA approval of community residential care facilities and clarify 
program requirements.
    We received two comments on the proposed rule. Both commenters 
fully supported the proposed rule and discussed generally the 
importance of VA's requirement that community residential care 
facilities comply with certain provisions of the National Fire 
Protection Association (NFPA) 101, Life Safety Code (2006 edition), and 
the NFPA 101A, Guide on Alternative Approaches to Life Safety (2007 
edition). We are grateful to the commenters for their submissions, and 
make no changes based on the comments.
    This final rule amends Sec.  17.63 to ensure that veterans who are 
placed in privately or publicly owned community residential care 
facilities are provided safe living conditions by making VA's approval 
contingent upon a facility's implementation of the NFPA fire safety 
guidelines in chapters 1-11, 32-33, 43, and Annex A of the NFPA 101, 
NFPA's Life Safety Code Handbook, Tenth Edition (2006 edition), and 
NFPA 101A, Guide on Alternative Approaches to Life Safety (2007 
edition). These documents are incorporated by reference in this final 
rule in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Further, the 
final rule amends Sec.  17.63(a)(3) to require safe and functioning 
heating and cooling systems. VA intends that facilities will meet the 
standard for heating and cooling systems in the county, parish, or 
other similar jurisdiction where a facility is located. These 
provisions will help to ensure that veterans referred by VA to an 
approved facility for community care are provided with safe and 
comfortable living conditions.
    The final rule removes the ``statement of needed care'' requirement 
in Sec.  17.63(b) and (i)(2)(i) for veterans referred by VA to a 
community residential care facility. We are removing this requirement 
because VA does not determine or control the care that is provided to a 
veteran in an approved facility under this program. This amendment 
clarifies that VA relies on the heath care professionals employed by 
the facility and facility officials to determine the care that a 
particular veteran needs.
    We are also removing Sec.  17.64, which prescribes exceptions to VA 
standards for community residential care facilities that participated 
in VA's program prior to the effective date of regulations promulgated 
in 1989. There are no facilities that currently qualify for the 
exceptions and there are no facilities that could qualify for an 
exception in the future.
    Regarding VA approval of facilities, we clarify that such approvals 
shall be for a 12-month period if all the standards in Sec.  17.63 are 
met. We also clarify that VA may grant a provisional approval if the 
facility does not meet one or more of the standards in Sec.  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. 
The provisional approval provision allows VA to continue recommending 
facilities with temporary deficiencies when it is in the best interest 
of residents to do so. These amendments will help to ensure that 
approvals are based on current information and, given VA's practice of 
inspecting each facility at least once in each 12-month period, should 
not impose an additional burden on VA or on facilities.

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 
the 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 final rule will have no such effect 
on State, local and tribal governments, or on the private sector.

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 Order 
classifies a ``significant regulatory action,'' requiring review by the 
Office of Management and Budget (OMB), 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

[[Page 63308]]

safety, 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, legal and policy implications of this 
final rule have been examined, and it has been determined not to be a 
significant regulatory action under Executive Order 12866.

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule would not have 
a significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. The final rule would have an insignificant economic impact on a 
few small entities. The final 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 final 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 and 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: November 13, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

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For the reasons stated in the preamble, VA amends 38 CFR part 17 as 
follows:

PART 17--MEDICAL

0
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]

0
2. Amend Sec.  17.62 by removing paragraph (b) and redesignating 
paragraphs (c) through (g) as paragraphs (b) through (f), respectively.
0
3. Amend Sec.  17.63 by:
0
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,'', by removing ``20420,'' and 
adding, in its place, ``20420, 202-461-6750,'', and by revising the 
first sentence.
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b. Revising paragraph (a)(3).
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c. Removing and reserving paragraph (b).
0
d. In paragraph (g), removing ``specified in the statement of heeded 
care''.
0
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 Annex 
A of the NFPA 101, the National Fire Protection Association's Life 
Safety Code Handbook, Tenth Edition (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]

0
4. Remove and reserve Sec.  17.64.

0
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. E9-28757 Filed 12-2-09; 8:45 am]
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