[Federal Register Volume 78, Number 103 (Wednesday, May 29, 2013)]
[Rules and Regulations]
[Pages 32124-32126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12641]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AO62


Community Residential Care

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its regulations 
concerning approval of non-VA community residential care facilities to 
allow VA to waive such facilities' compliance with standards that do 
not jeopardize the health or safety of residents. Waiver would be 
authorized in those limited circumstances where the deficiency cannot 
be corrected to meet a standard provided for in VA regulation. 
Authorizing this waiver will prevent veterans from needlessly choosing 
to move out of established and appropriate living situations due to 
minor deficiencies in standards that cannot be corrected, and into more 
restrictive and/or costly care. In addition, we make a technical edit 
to correct a reference to the section addressing requests for a 
hearing.

DATES: Effective Date: This interim final rule is effective on May 29, 
2013. Comment Date: Comments must be received on or before July 29, 
2013.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and 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-AO62, Community Residential Care.'' Copies of comments 
received will be available for public inspection in the Office of 
Regulation Policy and Management, Room 1068, between the hours of 8:00 
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 
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Nancy Quest, Director, Home and 
Community Based Services (10P4G), Veterans Health Administration, 810 
Vermont Avenue NW., Washington, DC 20420, (202) 461-6064. (This is not 
a toll-free number.)

SUPPLEMENTARY INFORMATION: The Community Residential Care (CRC) program 
is an important component in VA's continuum of care. It operates under 
the authority of 38 U.S.C. 1730, which, at subsection (a), provides 
that VA may refer a veteran for placement in a CRC facility if VA is 
furnishing outpatient medical services or hospital, domiciliary, or 
nursing home care to the veteran or has furnished the veteran with such 
care in the preceding 12 months, and placement in a CRC facility is 
appropriate. Under 38 U.S.C. 1730(b), VA cannot refer a veteran to a 
CRC facility unless VA approves the facility.
    CRC facilities provide room, board, limited personal care, and 
supervision to veterans who do not require hospital or nursing home 
care but are unable to live independently because of medical or mental 
health conditions, and who have insufficient family resources to 
provide care. The veteran pays for the cost of this living arrangement. 
VA's contribution is limited to approving CRCs for inclusion on VA's 
list of approved CRC facilities. As part of the approval process, VA 
inspects the facility utilizing the criteria listed in 38 CFR 17.63 and 
conducts post-inspection monitoring. VA provides clinical services, 
including medical care provided by VA health care professionals, to 
veterans residing in CRC facilities. A CRC facility may be referred to 
by different names in various states and settings, such as: Medical 
Foster Homes, Assisted Living, Personal Care Homes, Family Care Homes, 
and psychiatric CRC Homes. The CRC program currently approves 826 CRC 
facilities serving more than 6,100 veterans, accounting for more than 
398,000 bed days of care per calendar quarter.
    VA's regulations governing the CRC program appear at 38 CFR 17.61 
through 17.72. Decisions regarding approval of CRC facilities are made 
by an approving official at a local VA medical center level. The term 
``approving official'' is defined at Sec.  17.62(e) as a Director of a 
VA Medical Center or Outpatient Clinic which has jurisdiction to 
approve the CRC facility, or other medical center officials listed in 
that section who may be designated by the Director. As provided in 
Sec.  17.65(a), the approving official may approve a CRC facility, 
based on the report of a VA inspection and any findings of necessary 
interim monitoring of the facility, if the facility meets the standards 
listed in Sec.  17.63. The standards found in Sec.  17.63 cover a wide 
variety of issues related to health and safety as well as quality of 
life, environment, and administrative requirements. For example, Sec.  
17.63 provides standards for fire safety, heating and air conditioning, 
interior building plans, laundry service, size and furnishing 
requirements for the residents' bedrooms, nutrition, activities, 
residents' rights, and staffing and administrative requirements. The 
current regulation requires CRCs to meet all of these standards before 
an approving official may grant approval of a CRC facility.
    Under Sec.  17.65(b), if there is an identified deficiency that 
does not jeopardize the health or safety of the residents, the CRC 
facility may obtain provisional approval if the deficiency can be 
corrected and VA and the facility agree on a plan to correct the 
deficiency. If the deficiency is not corrected per the agreement, the 
provisional approval is terminated, as provided in Sec. Sec.  17.66 
through 17.71. Upon revocation of VA approval for a CRC facility, VA is 
required to cease referring veterans to the CRC facility, notify any 
veteran residing in the facility that VA has disapproved the facility, 
and request permission to assist in the veteran's removal if the 
veteran chooses to leave.
    There currently is no provision whereby VA may waive a standard 
delineated in Sec.  17.63. However, VA has determined that there may be 
instances in which a CRC facility may have a minor deficiency that 
cannot be corrected but which does not jeopardize the health or safety 
of resident veterans. We find that it is appropriate to provide a 
mechanism to waive the standard applicable to that minor deficiency and 
authorize approval of the CRC facility under Sec.  17.65(a) or (b). An 
example of an instance in which a waiver would be appropriate would 
involve a CRC facility that would qualify for full approval but for the 
fact that a single-resident room measures slightly less than 100 square 
feet (as required under Sec.  17.63(e)(2)), and the deficiency cannot 
be corrected without compromising the structural integrity of the 
facility. Waiver would be appropriate in this instance in order to 
ensure that a veteran is not discouraged from using an appropriate CRC 
facility located near his or her home, or to otherwise avoid more 
restrictive and/or costly care.
    This interim final rule amends Sec.  17.65 by adding a new 
paragraph (d) providing that VA may waive a standard found in Sec.  
17.63 for the approval of a

[[Page 32125]]

particular CRC facility if the deficiency does not jeopardize the 
health or safety of the residents, and the deficiency cannot be 
corrected as provided for in Sec.  17.65(b). VA may grant a waiver of a 
standard applicable to the facility if the VA safety expert certifies 
that the deficiency does not endanger the life or safety of the 
residents; the deficiency cannot be corrected; and it is in the best 
interests of the veteran and VA's CRC program. The first two criteria 
in a waiver determination are objective; however, it is important for 
VA to retain some discretion in rare cases where waiving a particular 
standard would not be in the best interests of a particular veteran in 
the facility or the overall interests of VA's CRC program. We believe 
that this last criterion would be used to deny a waiver only in rare 
circumstances. For example, if a newly purchased CRC facility has a 
window defect that cannot be corrected due to the effect of the 
correction on the rest of the structure, but the facility should have 
been aware of the deficiency when it purchased the structure, it might 
be against the interests of the CRC program to authorize a waiver. Or, 
if a facility cannot meet a standard related to the quality of life for 
its residents but waiving that standard will have a negative impact on 
a veteran, VA might not authorize the waiver. Again, we believe that 
waivers will be appropriate in the majority of cases when the 
deficiency does not endanger the life or safety of residents and do not 
envision using this last criterion to deny waivers in many cases. 
Additionally, we note that, if needed to make a waiver eligibility 
determination, the VA safety expert may request supporting 
documentation from the CRC facility.
    Under paragraph (d)(2), the subject standard is deemed to have been 
met once the waiver is granted. During the period the waiver is valid 
and in place, VA will document the existence of the waiver as well as 
the date it was issued on the facility's annual survey. Under paragraph 
(d)(3), the waiver remains valid so long as the CRC facility remains in 
the program continuously without a break. However, VA may, on the 
recommendation of an approving official, rescind a waiver issued under 
this section if a VA inspector determines that there has been a change 
in circumstances and that the deficiency can now be corrected, or a VA 
safety expert finds that the deficiency jeopardizes the health and 
safety of residents.
    Finally, we make a technical edit to Sec.  17.66. This section 
details notice requirements if the hearing official determines that a 
CRC facility is not compliant with VA standards. Current paragraph (c) 
of Sec.  17.66 cross-references Sec.  17.51n for community residential 
care facilities to request oral or paper hearings before VA approval is 
revoked. On May 13, 1996, 61 FR 21965, VA redesignated Sec.  17.51n as 
Sec.  17.67. We are removing the reference to Sec.  17.51n and adding, 
in its place, Sec.  17.67.

Effect of Rulemaking

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

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(B), the Secretary of Veterans 
Affairs has concluded that ordinary notice and comment procedures would 
be impracticable and contrary to the public interest, and is 
accordingly issuing this rule as an interim final rule. This interim 
final rule is necessary to address an immediate need to provide a 
mechanism that will allow VA to grant a waiver to a CRC facility that 
cannot obtain full approval because of a minor deviation from 
regulatory standards that cannot be corrected and does not endanger the 
lives or safety of the veteran residents. Although approval would be 
rescinded because of a minor and uncorrectable deviation from standards 
unrelated to health or safety, veterans may be dissuaded from 
maintaining their residence in such facility. Providing a waiver in 
that circumstance will preclude the need to terminate a CRC facility's 
approval based on an uncorrectable minor deviation from non-safety 
related standards. This eliminates the potential that resident veterans 
will needlessly choose to leave an otherwise healthy, safe, and 
suitable living arrangement. Current regulations do not provide for any 
waiver of standards. An example of where a waiver may be appropriate is 
a CRC facility with a resident bedroom that is slightly smaller than 
the required 100 square feet of floor area for a single-resident room. 
Resident bedroom size is a quality of life rather than a health or 
safety standard. It is in the public interest for a veteran not to be 
removed from a stable living situation based solely on a minor 
deviation from standards that does not threaten life or safety.
    To prevent veterans from needlessly choosing to leave affected CRC 
facilities because the facilities are no longer on the approved list, 
and in order to ensure timely implementation of the program established 
by this rule, and for the reasons stated above, the Secretary also 
finds, in accordance with 5 U.S.C. 553(d)(3), good cause for this 
interim final rule to be effective on the date of publication.

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

Paperwork Reduction Act

    This interim final rule contains no provisions constituting a 
collection of information under the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3501-3521). Documentation that a VA safety expert may 
request from a community residential care facility to support a waiver 
determination, as provided under 38 CFR 17.65(d)(1), would not qualify 
as ``information'' under the PRA because collection of this information 
would be conducted on an individual case-by-case basis and would 
require individualized information pertaining to the specific 
deficiency identified by the VA safety expert. We believe that this 
collection is therefore exempt from the PRA requirements, as provided 
under 5 CFR 1320.3(h)(6) (excluding from PRA requirements a ``request 
for facts or opinions addressed to a single person'').

Regulatory Flexibility Act

    The Secretary hereby certifies that this interim 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. This interim final rule will have little, if any, 
economic impact on a few small entities. VA may waive a standard under 
this rulemaking provided a VA safety expert certifies that the 
deficiency does not endanger the life or safety of the residents, the 
deficiency cannot be corrected, and granting the waiver is in the best 
interests of the veteran in the

[[Page 32126]]

facility and VA's CRC program. In order to reach the above 
determinations, the VA safety expert may request supporting 
documentation from the CRC facility. VA believes supplying this 
information will constitute an inconsequential amount of the 
operational cost for those CRC facilities. VA believes that, at most, 
only a few CRC facilities would qualify for a waiver. On this basis, 
the Secretary certifies that the adoption of this interim 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. 
Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from 
the initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

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 regulatory action'' requiring review by the Office of 
Management and Budget (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 
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.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 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; and 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. Jose D. 
Riojas, Interim Chief of Staff, approved this document on May 8, 2013, 
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, Government programs--
veterans, Health care, Health facilities, Health professions, Health 
records, Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Reporting and 
recordkeeping requirements, Scholarships and fellowships, Travel and 
transportation expenses, Veterans.

    Dated: May 22, 2013.
William F. Russo,
Deputy Director, Regulation Policy and Management, Office of the 
General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, VA amends 38 CFR part 17 as 
set forth below:

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. Section 17.65 is amended by adding paragraph (d) to read as follows:


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

* * * * *
    (d)(1) VA may waive one or more of the standards in 38 CFR 17.63 
for the approval of a particular community residential care facility, 
provided that a VA safety expert certifies that the deficiency does not 
endanger the life or safety of the residents; the deficiency cannot be 
corrected as provided in paragraph (b) of this section for provisional 
approval of the community residential care facility; and granting the 
waiver is in the best interests of the veteran in the facility and VA's 
community residential care program. In order to reach the above 
determinations, the VA safety expert may request supporting 
documentation from the community residential care facility.
    (2) In those instances where a waiver is granted, the subject 
standard is deemed to have been met for purposes of approval of the 
community residential care facility under paragraphs (a) or (b) of this 
section. The waiver and date of issuance will be noted on each annual 
survey of the facility as long as the waiver remains valid and in 
place.
    (3) A waiver issued under this section remains valid so long as the 
community residential care facility operates continuously under this 
program without a break. VA may, on the recommendation of an approving 
official, rescind a waiver issued under this section if a VA inspector 
determines that there has been a change in circumstances and that the 
deficiency can now be corrected, or a VA safety expert finds that the 
deficiency jeopardizes the health and safety of residents.
* * * * *

0
3. Section 17.66, paragraph (c) is amended by removing ``Sec.  17.51n'' 
and adding, in its place, ``Sec.  17.67''.

[FR Doc. 2013-12641 Filed 5-28-13; 8:45 am]
BILLING CODE 8320-01-P