[Federal Register Volume 77, Number 22 (Thursday, February 2, 2012)]
[Rules and Regulations]
[Pages 5186-5191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2063]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AN80


Medical Foster Homes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
``Medical'' regulations to add rules relating to medical foster homes. 
Prior to this final rule, VA's medical foster home program had, 
whenever possible and appropriate, relied upon regulations governing 
community residential care facilities; however, those regulations did 
not cover all aspects of medical foster homes, which provide community 
based care in a smaller, residential facility and to a more medically 
complex and disabled population. This final rule reflects current VA 
policy and practice, and generally conforms to industry standards and 
expectations.

DATES: Effective date: March 5, 2012.
    The Director of the Federal Register approved the incorporation by 
reference of certain publications listed in this rule as of March 5, 
2012.

FOR FURTHER INFORMATION CONTACT: Rick Greene, Office of Patient Care 
Services (114), Veterans Health Administration, Department of Veterans 
Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6786. 
(This is not a toll free number.)

SUPPLEMENTARY INFORMATION: Many veterans who are disabled due to 
complex chronic disease or traumatic injury may be unable to live 
safely and independently, or may have health care needs that exceed the 
capabilities of their families. Many of these veterans are placed in 
nursing homes. Others, with the proper support, can continue to live in 
a residential setting and delay, or totally avoid, the need for nursing 
home care. VA's community residential care program, specifically 
authorized by 38 U.S.C. 1730 and implemented at 38 CFR 17.61 through 
17.72, has provided health care supervision to these veterans.
    A medical foster home is a specific type of community residential 
care facility that provides home-based care to a small number of 
residents with serious chronic disease and disability. A medical foster 
home provides a greater level of care than a community residential care 
facility (and in this respect a medical foster home is more analogous 
to a nursing home), while allowing veterans to live in a home-like

[[Page 5187]]

setting and maintain a greater degree of independence. VA interprets 38 
U.S.C. 1730 as authorizing a medical foster home program, as a subset 
of the community residential care program. In particular, we believe 
medical foster homes fit within the type of facility authorized by 
section 1730(f), since they provide ``room and board and * * * limited 
personal care.''
    In a document published in the Federal Register on May 19, 2011 (76 
FR 28917), VA proposed regulations to govern medical foster homes. We 
provided a 60 day comment period, which ended on July 18, 2011. We 
received one comment.
    The commenter sought clarification regarding whether a veteran 
would ``have the option of receiving approved care in their own home 
rather than being forced into a local nursing home'' if there were no 
approved medical foster home in their area. The proposed rule stated in 
Sec.  17.73(a) that the purpose of the medical foster home program is 
to ``approve[] certain medical foster homes for the placement of 
veterans'' and that placement in a medical foster home is voluntary on 
the part of the veteran. If the veteran is interested in this care 
option, VA will try to refer the veteran to a medical foster home as 
close to his or her residence as possible.
    However, VA is aware that a medical foster home may not be located 
in the immediate vicinity of the veteran's residence. If a veteran is 
unable or unwilling to accept placement in a medical foster home that 
is located outside the immediate vicinity of the veteran's residence, 
VA offers several alternate health care programs that may better suit 
the veteran's needs. These alternate programs include home based 
primary care, where the veteran receives primary care in his home; 
community residential care, which provides care similar to that of the 
medical foster home; and nursing home care. Home Based Primary Care 
provides long-term primary care to chronically ill veterans in their 
own homes. Home Based Primary Care is appropriate for veterans with 
complex, chronic, and long-term conditions that would make it difficult 
to come to a VA facility for treatment. A VA treatment team coordinates 
the plan of care for each veteran and comes to the veteran's home to 
provide services. Home Based Primary Care provides primary care, 
palliative care, therapy, disease management, and coordination of care 
services.
    The commenter noted that Sec.  17.74(d)(3) requires the veteran to 
be placed in a single-occupancy bedroom, unless the veteran agrees to a 
multi-occupant bedroom. The commenter asked whether the spouse of a 
married veteran ``[c]an * * * move into the home with the veteran[,] or 
will the couple be forced to live apart?'' Nothing in the regulation 
would preclude the spouse of a veteran from living in the same medical 
foster home as the veteran. Such an arrangement would be a matter of 
agreement between the spouse of the veteran and the medical foster home 
caregiver. If the spouse of the veteran also requires medical care in 
addition to lodging, then the spouse of the veteran must be included in 
the total number of residents receiving care in the medical foster 
home, which Sec.  17.73(b) limits to no more than three. The medical 
foster home would not be able to provide adequate care to all of its 
residents if the total number of residents receiving care exceeds 
three. If VA recommends a medical foster home that was unable to 
accommodate the veteran and his or her spouse, VA could provide the 
veteran an alternate location that would accommodate the veteran and 
the spouse's needs. However, any agreement between the medical foster 
home caregiver for the lodging and/or care of veteran's spouse in such 
home is beyond the scope of this rulemaking. Also, as noted above, if 
the option of a medical foster home does not adequately address the 
veteran's and the veteran's family's needs, the veteran may consider an 
alternate health care option. Therefore, no veteran will be ``forced to 
live apart'' from his or her spouse. Because the agreement for lodging 
and/or medical care for the spouse of the veteran is outside the scope 
of this rulemaking, except where it may impact compliance with Sec.  
17.73(b), we are not making any changes based on this comment.
    The commenter also stated that, in the commenter's view, the 
proposed rule contained language that seemed to indicate that only 
elderly veterans were eligible to be placed in a medical foster home. 
The commenter further stated that ``there are a growing number of young 
military veterans who are severely injured and in need of daily medical 
assistance'' and questioned whether placement in a medical foster home 
would be an option for these veterans. We agree with the commenter that 
placement in a medical foster home should not be restricted based on 
the age of the veteran, and this final rulemaking does not place any 
such restriction. Age is referenced only in the proposed rulemaking in 
the supplementary information discussing Sec.  17.73(c)(2), where we 
discussed the eligibility criteria for referral to a medical foster 
home. We had stated that one criterion is the veteran's enrollment in 
either the VA Home Based Primary Care or VA Spinal Cord Injury Homecare 
program. The proposed rule notice explained that ``VA Home Based 
Primary Care (HBPC) is a home care program designed to meet the 
longitudinal, primary care needs of an aging veteran population with 
complex, chronic, disabling disease.'' However, the HBPC program is not 
limited to elderly veterans. The program is designed to serve the 
chronically ill through the months and years before death, providing 
primary care, palliative care, rehabilitation, disease management and 
coordination of care services. The proposed rulemaking did not place 
any age restrictions on eligibility for placement in a medical foster 
home within the regulation text. We are, therefore, not making any 
changes based on this comment.
    The proposed rule cited 38 U.S.C. 501, 1721, and as noted in 
specific sections as the authority for 38 CFR part 17. However, the 
correct authority for part 17 is 38 U.S.C. 501, and as noted in 
specific sections. We are amending the final rule to reflect the 
correct authority for part 17.
    Based on the rationale set forth in the proposed rule and in this 
document, VA adopts the proposed rule as a final rule, with the above 
noted change.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rule, represents VA's implementation of its legal authority on 
this subject. Other than future amendments to this regulation or 
governing statutes, no contrary rules or procedures are authorized. All 
existing or subsequent VA guidance must be read to conform with this 
final rule if possible or, if not possible, such guidance is superseded 
by this rulemaking.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant

[[Page 5188]]

regulatory action,'' which requires 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 safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned 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 
this Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866.

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 expenditure by 
State, local, or 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.

Paperwork Reduction Act

    OMB assigns a control number for each collection of information it 
approves. Except for emergency approvals under 44 U.S.C. 3507(j), VA 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.
    In the proposed rule, we stated that proposed Sec.  17.74(q) 
contains collection of information provisions under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3521), and that we had requested 
public comment on those provisions in the notice published in the 
Federal Register on May 19, 2011 (76 FR 28917). We did not receive any 
comments on the proposed collection of information, which OMB has 
approved without an expiration date, under control number 2900-0777. 
Following Sec.  17.74(q) in this final rule, we set out an information 
collection approval parenthetical displaying OMB control number 2900-
0777.

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. In addition to having an effect on individuals (veterans), the 
final rule will have an insignificant economic impact on a few small 
entities. Most of the minimum standards that will be established by 
this rulemaking are already required by state and local regulations, 
and medical foster homes should already be in compliance with those 
regulations or with the current NFPA codes. Any additional costs for 
compliance with this final rule would constitute an inconsequential 
amount of the operational cost for most facilities. Accordingly, 
pursuant to 5 U.S.C. 605(b), this final 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.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on January 9, 2012, for publication.

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.

    Dated: January 26, 2012.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs 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, and as noted in specific sections.


0
2. Revise Sec.  17.1(b) to read as follows:


Sec.  17.1  Incorporation by reference.

* * * * *
    (b) The following materials are incorporated by reference into this 
part.
    (1) NFPA 10, Standard for Portable Fire Extinguishers (2010 
edition), Incorporation by Reference (IBR) approved for Sec. Sec.  
17.63, 17.74, and 17.81.
    (2) NFPA 101, Life Safety Code (2009 edition), IBR approved for 
Sec. Sec.  17.63, 17.74 (chapters 1 through 11, 24, and section 33.7), 
17.81, and 17.82.
    (3) NFPA 101A, Guide on Alternative Approaches to Life Safety (2010 
edition), IBR approved for Sec.  17.63.
    (4) NFPA 13, Standard for the Installation of Sprinkler Systems 
(2010 edition), IBR approved for Sec.  17.74.
    (5) NFPA 13D, Standard for the Installation of Sprinkler Systems in 
One- and Two-Family Dwellings and Manufactured Homes (2010 edition), 
IBR approved for Sec.  17.74.
    (6) NFPA 13R, Standard for the Installation of Sprinkler Systems in 
Residential Occupancies Up To and Including Four Stories in Height 
(2010 edition), IBR approved for Sec.  17.74.
    (7) NFPA 25, Standard for the Inspection, Testing, and Maintenance 
of Water-Based Fire Protection Systems (2008 edition), IBR approved for 
Sec.  17.74.
    (8) NFPA 30, Flammable and Combustible Liquids Code (2008 edition), 
IBR approved for Sec.  17.74.
    (9) NFPA 72, National Fire Alarm and Signaling Code (2010 edition), 
IBR approved for Sec.  17.74.
    (10) NFPA 720, Standard for the Installation of Carbon Monoxide 
(CO)

[[Page 5189]]

Detection and Warning Equipment (2009 edition), IBR approved for Sec.  
17.74.
* * * * *

0
3. Sections 17.73 and 17.74 are added to read as follows:


Sec.  17.73  Medical foster homes--general.

    (a) Purpose. Through the medical foster home program, VA recognizes 
and approves certain medical foster homes for the placement of 
veterans. The choice to become a resident of a medical foster home is a 
voluntary one on the part of each veteran. VA's role is limited to 
referring veterans to approved medical foster homes. When a veteran is 
placed in an approved home, VA will provide inspections to ensure that 
the home continues to meet the requirements of this part, as well as 
oversight and medical foster home caregiver training. If a medical 
foster home does not meet VA's criteria for approval, VA will not refer 
any veteran to the home or provide any of these services. VA may also 
provide certain medical benefits to veterans placed in medical foster 
homes, consistent with the VA program in which the veteran is enrolled.
    (b) Definitions. For the purposes of this section and Sec.  17.74:
    Labeled means that the equipment or materials have attached to them 
a label, symbol, or other identifying mark of an organization 
recognized as having jurisdiction over the evaluation and periodic 
inspection of such equipment or materials, and by whose labeling the 
manufacturer indicates compliance with appropriate standards or 
performance.
    Medical foster home means a private home in which a medical foster 
home caregiver provides care to a veteran resident and:
    (i) The medical foster home caregiver lives in the medical foster 
home;
    (ii) The medical foster home caregiver owns or rents the medical 
foster home; and
    (iii) There are not more than three residents receiving care 
(including veteran and non-veteran residents).
    Medical foster home caregiver means the primary person who provides 
care to a veteran resident in a medical foster home.
    Placement refers to the voluntary decision by a veteran to become a 
resident in an approved medical foster home.
    Veteran resident means a veteran residing in an approved medical 
foster home who meets the eligibility criteria in paragraph (c) of this 
section.
    (c) Eligibility. VA health care personnel may assist a veteran by 
referring such veteran for placement in a medical foster home if:
    (1) The veteran is unable to live independently safely or is in 
need of nursing home level care;
    (2) The veteran must be enrolled in, or agree to be enrolled in, 
either a VA Home Based Primary Care or VA Spinal Cord Injury Homecare 
program, or a similar VA interdisciplinary program designed to assist 
medically complex veterans living in the home; and
    (3) The medical foster home has been approved in accordance with 
paragraph (d) of this section.
    (d) Approval of medical foster homes. Medical foster homes will be 
approved by a VA Medical Foster Homes Coordinator based on the report 
of a VA inspection and on any findings of necessary interim monitoring 
of the medical foster home, if that home meets the standards 
established in Sec.  17.74. The approval process is governed by the 
process for approving community residential care facilities under 
Sec. Sec.  17.65 through 17.72 except as follows:
    (1) Where Sec. Sec.  17.65 through 17.72 reference Sec.  17.63.
    (2) Because VA does not physically place veterans in medical foster 
homes, VA also does not assist veterans in moving out of medical foster 
homes as we do for veterans in other community residential care 
facilities under Sec.  17.72(d)(2); however, VA will assist such 
veterans in locating an approved medical foster home when relocation is 
necessary.
    (e) Duties of Medical foster home caregivers. The medical foster 
home caregiver, with assistance from relief caregivers, provides a safe 
environment, room and board, supervision, and personal assistance, as 
appropriate for each veteran.

(Authority: 38 U.S.C. 501, 1730)

Sec.  17.74  Standards applicable to medical foster homes.

    (a) General. A medical foster home must:
    (1) Meet all applicable state and local regulations, including 
construction, maintenance, and sanitation regulations.
    (2) Have safe and functioning systems for heating, hot and cold 
water, electricity, plumbing, sewage, cooking, laundry, artificial and 
natural light, and ventilation. Ventilation for cook stoves is not 
required.
    (3) Except as otherwise provided in this section, meet the 
applicable provisions of chapters 1 through 11 and 24, and section 33.7 
of NFPA 101 (incorporated by reference, see Sec.  17.1), and the other 
codes and chapters identified in this section, as applicable.
    (b) Community residential care facility standards applicable to 
medical foster homes. Medical foster homes must comply with Sec.  
17.63(c), (d), (f), (h), (j) and (k).
    (c) Activities. The facility must plan and facilitate appropriate 
recreational and leisure activities.
    (d) Residents' bedrooms. Each veteran resident must have a bedroom:
    (1) With a door that closes and latches;
    (2) That contains a suitable bed and appropriate furniture; and
    (3) That is single occupancy, unless the veteran agrees to a multi-
occupant bedroom.
    (e) Windows. VA may grant provisional approval for windows used as 
a secondary means of escape that do not meet the minimum size and 
dimensions required by chapter 24 of NFPA 101 (incorporated by 
reference, see Sec.  17.1) if the windows are a minimum of 5.0 square 
feet (and at least 20 inches wide and at least 22 inches high). The 
secondary means of escape must be brought into compliance with chapter 
24 no later than 60 days after a veteran resident is placed in the 
home.
    (f) Special locking devices. Special locking devices that do not 
comply with section 7.2.1.5 of NFPA 101 (incorporated by reference, see 
Sec.  17.1) are permitted where the clinical needs of the veteran 
resident require specialized security measures and with the written 
approval of:
    (1) The responsible VA clinician; and
    (2) The VA fire/safety specialist or the Director of the VA Medical 
Center of jurisdiction.
    (g) Smoke and carbon monoxide (CO) detectors and smoke and CO 
alarms. Medical foster homes must comply with this paragraph (g) no 
later than 60 days after the first veteran is placed in the home. Prior 
to compliance, VA inspectors will provisionally approve a medical 
foster home for the duration of this 60-day period if the medical 
foster home mitigates risk through the use of battery-operated single 
station alarms, provided that the alarms are installed before any 
veteran is placed in the home.
    (1) Smoke detectors or smoke alarms must be provided in accordance 
with sections 24.3.4.1 or 24.3.4.2 of NFPA 101 (incorporated by 
reference, see Sec.  17.1); section 24.3.4.3 of NFPA 101 will not be 
used. In addition, smoke alarms must be interconnected so that the 
operation of any smoke alarm causes an alarm in all smoke alarms within 
the medical foster home. Smoke detectors or smoke alarms must not be 
installed in the kitchen or any other location subject to causing false 
alarms.
    (2) CO detectors or CO alarms must be installed in any medical 
foster home with a fuel-burning appliance, fireplace,

[[Page 5190]]

or an attached garage, in accordance with NFPA 720 (incorporated by 
reference, see Sec.  17.1).
    (3) Combination CO/smoke detectors and combination CO/smoke alarms 
are permitted.
    (4) Smoke detectors and smoke alarms must initiate a signal to a 
remote supervising station to notify emergency forces in the event of 
an alarm.
    (5) Smoke and/or CO alarms and smoke and/or CO detectors, and all 
other elements of a fire alarm system, must be inspected, tested, and 
maintained in accordance with NFPA 72 (incorporated by reference, see 
Sec.  17.1) and NFPA 720 (incorporated by reference, see Sec.  17.1).
    (h) Sprinkler systems. (1) If a sprinkler system is installed, it 
must be inspected, tested, and maintained in accordance with NFPA 25 
(incorporated by reference, see Sec.  17.1), unless the sprinkler 
system is installed in accordance with NFPA 13D (incorporated by 
reference, see Sec.  17.1). If a sprinkler system is installed in 
accordance with NFPA 13D, it must be inspected annually by a competent 
person.
    (2) If sprinkler flow or pressure switches are installed, they must 
activate notification appliances in the medical foster home, and must 
initiate a signal to the remote supervising station.
    (i) Fire extinguishers. At least one 2-A:10-B:C rated fire 
extinguisher must be visible and readily accessible on each floor, 
including basements, and must be maintained in accordance with the 
manufacturer's instructions. Portable fire extinguishers must be 
inspected, tested, and maintained in accordance with NFPA 10 
(incorporated by reference, see Sec.  17.1).
    (j) Emergency lighting. Each occupied floor must have at least one 
plug-in rechargeable flashlight, operable and readily accessible, or 
other approved emergency lighting. Such emergency lighting must be 
tested monthly and replaced if not functioning.
    (k) Fireplaces. A non-combustible hearth, in addition to protective 
glass doors or metal mesh screens, is required for fireplaces. Hearths 
and protective devices must meet all applicable state and local fire 
codes.
    (l) Portable heaters. Portable heaters may be used if they are 
maintained in good working condition and:
    (1) The heating elements of such heaters do not exceed 212 degrees 
Fahrenheit (100 degrees Celsius);
    (2) The heaters are labeled; and
    (3) The heaters have tip-over protection.
    (m) Oxygen safety. Any area where oxygen is used or stored must not 
be near an open flame and must have a posted ``No Smoking'' sign. 
Oxygen cylinders must be adequately secured or protected to prevent 
damage to cylinders. Whenever possible, transfilling of liquid oxygen 
must take place outside of the living areas of the home.
    (n) Smoking. Smoking must be prohibited in all sleeping rooms, 
including sleeping rooms of non-veteran residents. Ashtrays must be 
made of noncombustible materials.
    (o) Special/other hazards. (1) Extension cords must be three-
pronged, grounded, sized properly, and not present a hazard due to 
inappropriate routing, pinching, damage to the cord, or risk of 
overloading an electrical panel circuit.
    (2) Flammable or combustible liquids and other hazardous material 
must be safely and properly stored in either the original, labeled 
container or a safety can as defined by section 3.3.44 of NFPA 30 
(incorporated by reference, see Sec.  17.1).
    (p) Emergency egress and relocation drills. Operating features of 
the medical foster home must comply with section 33.7 of NFPA 101 
(incorporated by reference, see Sec.  17.1), except that section 
33.7.3.6 of NFPA 101 does not apply. Instead, VA will enforce the 
following requirements:
    (1) Before placement in a medical foster home, the veteran will be 
clinically evaluated by VA to determine whether the veteran is able to 
participate in emergency egress and relocation drills. Within 24 hours 
after arrival, each veteran resident must be shown how to respond to a 
fire alarm and evacuate the medical foster home, unless the veteran 
resident is unable to participate.
    (2) The medical foster home caregiver must demonstrate the ability 
to evacuate all occupants within three minutes to a point of safety 
outside of the medical foster home that has access to a public way, as 
defined in NFPA 101 (incorporated by reference, see Sec.  17.1).
    (3) If all occupants are not evacuated within three minutes or if a 
veteran resident is either permanently or temporarily unable to 
participate in drills, then the medical foster home will be given a 60-
day provisional approval, after which time the home must have 
established one of the following remedial options or VA will terminate 
the approval in accordance with Sec.  17.65.
    (i) The home is protected throughout with an automatic sprinkler 
system in accordance with section 9.7 of NFPA 101 (incorporated by 
reference, see Sec.  17.1) and whichever of the following apply: NFPA 
13 (incorporated by reference, see Sec.  17.1); NFPA 13R (incorporated 
by reference, see Sec.  17.1); or NFPA 13D (incorporated by reference, 
see Sec.  17.1).
    (ii) Each veteran resident who is permanently or temporarily unable 
to participate in a drill or who fails to evacuate within three minutes 
must have a bedroom located at the ground level with direct access to 
the exterior of the home that does not require travel through any other 
portion of the residence, and access to the ground level must meet the 
requirements of the Americans with Disabilities Act. The medical foster 
home caregiver's bedroom must also be on ground level.
    (4) The 60-day provisional approval under paragraph (p)(3) of this 
section may be contingent upon increased fire prevention measures, 
including but not limited to prohibiting smoking or use of a fireplace. 
However, each veteran resident who is temporarily unable to participate 
in a drill will be permitted to be excused from up to two drills within 
one 12-month period, provided that the two excused drills are not 
consecutive, and this will not be a cause for VA to not approve the 
home.
    (5) For purposes of paragraph (p), the term all occupants means 
every person in the home at the time of the emergency egress and 
relocation drill, including non-residents.
    (q) Records of compliance with this section. The medical foster 
home must comply with Sec.  17.63(i) regarding facility records, and 
must document all inspection, testing, drills and maintenance 
activities required by this section. Such documentation must be 
maintained for 3 years or for the period specified by the applicable 
NFPA standard, whichever is longer. Documentation of emergency egress 
and relocation drills must include the date, time of day, length of 
time to evacuate the home, the name of each medical foster home 
caregiver who participated, the name of each resident, whether the 
resident participated, and whether the resident required assistance.
    (r) Local permits and emergency response. Where applicable, a 
permit or license must be obtained for occupancy or business by the 
medical foster home caregiver from the local building or business 
authority. When there is a home occupant who is incapable of self-
preservation, the local fire department or response agency must be 
notified by the medical foster home within 7 days of the beginning of 
the occupant's residency.
    (s) Equivalencies. Any equivalencies to VA requirements must be in

[[Page 5191]]

accordance with section 1.4.3 of NFPA 101 (incorporated by reference, 
see Sec.  17.1), and must be approved in writing by the appropriate 
Veterans Health Administration, Veterans Integrated Service Network 
(VISN) Director. A veteran living in a medical foster home when the 
equivalency is granted or who is placed there after it is granted must 
be notified in writing of the equivalencies and that he or she must be 
willing to accept such equivalencies. The notice must describe the 
exact nature of the equivalency, the requirements of this section with 
which the medical foster home is unable to comply, and explain why the 
VISN Director deemed the equivalency necessary. Only equivalencies that 
the VISN Director determines do not pose a risk to the health or safety 
of the veteran may be granted. Also, equivalencies may only be granted 
when technical requirements of this section cannot be complied with 
absent undue expense, there is no other nearby home which can serve as 
an adequate alternative, and the equivalency is in the best interest of 
the veteran.
    (t) Cost of medical foster homes. (1) Payment for the charges to 
veterans for the cost of medical foster home care is not the 
responsibility of the United States Government.
    (2) The resident or an authorized personal representative and a 
representative of the medical foster home facility must agree upon the 
charge and payment procedures for medical foster home care.
    (3) The charges for medical foster home care must be comparable to 
prices charged by other assisted living and nursing home facilities in 
the area based on the veteran's changing care needs and local 
availability of medical foster homes. (The Office of Management and 
Budget has approved the information collection requirements in this 
section under control number 2900-0777.)

(Authority: 38 U.S.C. 501, 1730)


[FR Doc. 2012-2063 Filed 2-1-12; 8:45 am]
BILLING CODE 8320-01-P