[Federal Register Volume 83, Number 79 (Tuesday, April 24, 2018)]
[Proposed Rules]
[Pages 17777-17782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08386]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP63


Approval Criteria for Rates Charged for Community Residential 
Care

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans 
Affairs (VA) regulation governing standards applicable to a community 
residential care facility (CRC) approved by VA. This regulation also 
addresses the amount that a veteran may be charged for residence in a 
CRC and how VA determines whether that rate is appropriate. Payment for 
the charges of CRC care is not the responsibility of the federal 
government or VA. The cost of community residential care is financed by 
the veteran's own resources, and the resident or an authorized personal 
representative and a representative of the community residential care 
facility must agree upon the charge and payment procedures for 
community residential care. VA reviews and has approval authority over 
this agreement. We propose to amend and update the criteria VA uses to 
determine whether the rate for care charged to a veteran residing in an 
approved CRC is appropriate, to clarify how VA determines whether a CRC 
rate should be approved, and to make the regulation consistent with 
current VA practice. In addition, we propose to define in regulation 
the level of care that must be provided to a veteran residing in a CRC.

DATES: Comment Date: Comments must be received by VA on or before June 
25, 2018.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulation Policy and Management (00REG), Department of Veterans 
Affairs, 810 Vermont Ave. NW, Room 1063B, Washington, DC 20420; or by 
fax to (202) 273-9026. Comments should indicate that they are submitted 
in response to ``RIN 2900-AP63--Approval criteria for rates charged for 
Community Residential Care.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, 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 http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Richard Allman, Chief Consultant, 
Geriatrics and Extended Care Services (10NC4), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Ave. NW, 
Washington, DC 20420, (202) 461-6750. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: VA is authorized under 38 U.S.C. 1730 to 
assist veterans by referring them for placement, and aiding veterans in 
obtaining placement, in CRCs. A CRC is a form of enriched housing that 
provides health care supervision to eligible veterans not in need of 
hospital or nursing home care, but who, because of medical, psychiatric 
and/or psychosocial limitations as determined through a statement of 
needed care, are not able to live independently and have no suitable 
family or significant others to provide the needed supervision and 
supportive care. Examples of CRC's enriched housing may include, but 
are not limited to: Medical Foster Homes, Assisted Living Homes, Group 
Living Homes, Family Care Homes, and psychiatric CRC Homes. CRC care 
consists of room, board, assistance with activities of daily living and 
supervision as required on an individual basis. The size of a CRC can 
vary from one bed to several hundred. VA maintains a list of approved 
CRCs. Employees of the CRC are not VA employees, and no employment 
relationship exists between employees of the CRC and VA.
    A veteran may elect to reside in any CRC he or she wants; however, 
VA will only recommend CRCs that apply for approval and meet our 
standards. Once approved by the approving official, the CRC is placed 
on VA's referral list and VA refers veterans for whom CRC care is an 
option to listed CRCs when those veterans are determining where they 
would like to live. The term ``approving official'' is defined at 38 
CFR 17.62(e) as the Director or, if designated by the Director, the 
Associate Director or Chief of Staff of a Department of Veterans 
Affairs Medical Center or Outpatient Clinic which has jurisdiction to 
approve

[[Page 17778]]

a community residential care facility. Jurisdiction is based on whether 
the CRC is located within the geographical area covered by the Veterans 
Affairs Medical Center or Outpatient Clinic.
    VA may directly provide care to a veteran at the CRC when it is 
medically appropriate to provide such home-based care. The provision of 
such home-based care is not contingent upon VA approval of a CRC; a 
veteran's right to such care exists independent of the veteran's 
residence in a CRC.
    To become approved, a CRC must meet the specified criteria in 38 
CFR 17.63, which sets forth standards relating to the physical 
integrity of the facility, the health care provided at the CRC, the 
standard of living therein, costs charged directly to veteran residents 
of the CRC, and other criteria for approval. Paragraph (k) of this 
section addresses the amount that a veteran may be charged for 
residence in a CRC and how VA determines whether that rate is 
appropriate. VA proposes to amend and update Sec.  17.63(k) to make it 
consistent with changes in the practices of approved CRCs since this 
provision became effective on June 14, 1989, and to clarify the 
criteria VA uses to determine whether the rate charged by the CRC is 
reasonable. Currently Sec.  17.63 does not establish the level of care, 
and components of that care, that the CRC must provide to the veteran 
in exchange for the monies paid to the CRC. We address this as an 
initial matter.
    It has been longstanding VA practice to require that in order to be 
an approved CRC the operators must provide, at a minimum, a base level 
of care in consideration of funds received from the veteran resident. 
The rate charged by an individual CRC for this base level of care is 
reflected in an executed agreement between the CRC and resident, and 
that agreement is reviewed and approved by the VA approving official. 
If the CRC agrees, at the resident's request, to provide additional 
care or services, the CRC may charge the resident additional fees, 
which are reflected in the signed agreement.
    We would amend paragraph (b), which is currently reserved, to 
address the required base level of care as well as additional services 
and care provided to veteran residents. Consistent with current VA 
practice, paragraph (b) would state that the CRC must provide the 
resident, at a minimum, a base level of care to include room and board; 
nutrition consisting of three meals per day and two snacks, or as 
required to meet special dietary needs; laundry services; 
transportation (either provided or arranged) to VA and healthcare 
appointments; and accompanying the resident to appointments if needed; 
24-hour supervision, if indicated; and care, supervision, and 
assistance with activities of daily living (ADL) and instrumental 
activities of daily living (IADL).
    ADL is a term commonly understood in the healthcare industry to 
refer to basic daily self-care activities. Health professionals 
routinely refer to the ability or inability to perform an ADL as a 
measurement of the functional status of a person, particularly in 
regards to people with disabilities and the elderly. Likewise, IADL is 
commonly understood in the healthcare industry to refer to activities 
that are not necessary for fundamental functioning, but allow an 
individual to live independently in a community.
    The terms ``activities of daily living'' and ``instrumental 
activities of daily living'' are not currently defined for the purpose 
of Sec. Sec.  17.61 through 17.72. Instead, the non-standard term 
``daily living activities'' is defined at Sec.  17.62(b) to include 
various activities that are classified by VA as being either an ADL or 
IADL. The various tasks listed in the current definition of daily 
living activities is not a comprehensive list of all activities that 
could be considered either an ADL or IADL, but is intended by VA to 
represent the range of activities that can be encompassed under those 
terms. We would remove the definition of ``daily living activities'' 
and substitute the terms ``activities of daily living'' and 
``instrumental activities of daily living'' where it is used in current 
Sec. Sec.  17.61(b) and 17.62. We would define ``activities of daily 
living'' as basic daily tasks an individual performs as part of self-
care which may be used as a measurement of the functional status of a 
person including: Walking; bathing, shaving, brushing teeth, combing 
hair; dressing; eating; getting in or getting out of bed; and 
toileting. ``Instrumental activities of daily living'' would be defined 
as tasks that are not necessary for fundamental functioning, but allow 
an individual to live independently in a community. Instrumental 
activities of daily living include: Housekeeping and cleaning room; 
meal preparation; taking medications; laundry; assistance with 
transportation; shopping- for groceries, clothing or other items; 
ability to use the telephone; ability to manage finances; writing 
letters; and obtaining appointments. The list of tasks in the 
definitions of ADL and IADL are not substantively different than that 
found in current Sec.  17.62(b).
    In addition, we would revise Sec.  17.62 by removing the paragraph 
designations for the definitions in that section, arrange the defined 
terms in alphabetical order, and make non substantive changes to the 
definitions to make the introductory wording for each definition 
consistent with that of other defined terms in part 17.
    Current 17.63(k) states that payment for the charges of CRC care is 
not the responsibility of the federal government or VA; the resident or 
an authorized personal representative and a representative of the CRC 
must agree upon the charge and payment procedures for CRC care; and the 
charges for community residential care must be reasonable. Current 
Sec.  17.63(k)(3)(i) and (ii) establish different reference rates for 
residents who were in a CRC as of June 14, 1989 and CRCs that were 
approved after July 31, 1987. For residents in a CRC as of June 14, 
1989, the CRC rates are pegged to the facility's basic rate for care as 
of July 31, 1987. For a CRC approved after July 31, 1987, CRC rates are 
calculated based on the average rate for approved facilities in that 
State as of March 31, 1987.
    VA's CRC program was established in 1951, but VA did not begin the 
process of publishing regulations governing the CRC program until 
August 1987. The final rule published May 15, 1989, with an effective 
date of June 14, 1989. (54 FR 20842, May 15, 1989.) The intent of Sec.  
17.63(k)(3)(i) was to grandfather-in the rate charged for all residents 
in a CRC prior to the date the regulation became effective. There are 
no residents currently in a CRC who were in the CRC as of June 14, 
1989. Both Sec.  17.63(k)(3)(i) and Sec.  17.63(k)(ii) use dates that 
are long in the past, and have little or no reasonable connection to 
the calculation of reasonable rates at the present time. We would 
address these issues by amending and reorganizing Sec.  17.63(k) to 
update and clarify how VA determines whether a CRC rate should be 
approved, and to make the regulation consistent with current VA 
practice.
    Proposed paragraph 17.63(k)(1) would remain the same as current 
(k)(1). The cost of community residential care is not the 
responsibility of the U.S. government. Proposed paragraph (k)(2) would 
state that the cost of community residential care should reflect the 
cost of providing the base level of care as defined in paragraph (b).
    Proposed paragraph 17.63(k)(3) would retain the requirement, 
currently found in paragraph 17.63(k)(2), that the resident or an 
authorized personal representative and a representative of the 
community residential care facility must agree upon the charge and 
payment procedures for community

[[Page 17779]]

residential care. We would add in proposed (k)(4), discussed below, 
standards for use by a VA approving official in reviewing and approving 
this agreement.
    It has been VA's longstanding practice to use a multi-step approach 
in evaluating whether a proposed CRC rate will be approved, and we 
would amend Sec.  17.63(k) to reflect VA's current practice. Under the 
proposed rule, VA would first review the resident's medical record to 
determine the level of care needed by the veteran residing in the CRC. 
VA would then refer to the current average rate for residential care in 
the State or Region for the same level of care provided to the 
resident. Each state has an agency responsible for residential care 
services provided under Medicare and Medicaid. These agencies publish 
approved rates in the state or region within the state for different 
levels of care within the continuum of residential care. These rates 
are updated annually. There is some variation in how the states refer 
to the various levels of care. Examples include Family Care Homes, 
Adult Care Homes, Medical Foster Homes, Residential Traumatic Brain 
Injury (TBI) Homes, Residential Care Homes, Personal Care Homes, 
Psychiatric Group Homes, Board and Care Homes, Boarding Homes, Group 
Homes, Rest Homes, Senior Homes, Assisted Living Homes, Retirement 
Centers, and Hospice Care Homes. VA would identify the relevant rate 
for residential care published by the state and compare this to the 
charge for care agreed on by the veteran or authorized personal 
representative and the CRC. The purpose of this inquiry is to ensure 
that the veteran residing in a VA-approved CRC is treated fairly and 
equitably by the CRC in terms of the dollar amount charged for CRC care 
relative to what a CRC would receive for care rendered to a non-veteran 
in the same state or region receiving the same level of care. We 
recognize that care plans are individualized, and there may be some 
variation in the type or scope of care provided to different 
individuals receiving the same overall level of CRC care. Therefore, 
VA's inquiry would focus on whether the two rates are comparable, not 
equal. VA believes this language will provide flexibility to allow the 
approving official to consider each agreement on a case by case basis, 
taking into account both the base level of care the resident requires 
as well as the resident's individual needs.
    VA recognizes that veterans residing in a CRC are, more often than 
not, living on a fixed or limited income. Healthcare sector costs, 
including that for community residential care, may rise at a greater 
annual rate than the overall inflation rate. Simply approving a new 
rate for CRC care because that rate is comparable to the published 
statewide rate could result in a strain on the veteran's financial 
status. To address this, VA would also compare the proposed CRC rate to 
the rate currently being charged to the veteran. We would retain the 
requirement that any year to year increase in the charge for care in a 
CRC for the same level of care may not exceed the annual percentage 
increase in the National Consumer Price Index (CPI) for that year. This 
is consistent with current Sec.  17.63(k)(3).
    If VA determines, after considering all the above criteria, that 
the proposed CRC rate is reasonable, the approving official would 
approve the agreement between the veteran or authorized personal 
representative and the CRC.
    VA also recognizes that there may be instances in which the CRC and 
the veteran or authorized personal representative agree to a rate that 
is lower than the current average rate for residential care in the 
State or Region for the same level of care. This type of arrangement 
could be beneficial to a veteran that is on a fixed or low income. The 
proposed rule would allow the approving official to approve a lower 
rate of charges for care, provided such lower rate does not result in a 
lower level of care than the resident requires. While VA generally 
supports any agreement that may financially benefit the veteran, we 
also have an obligation to ensure that that the veteran receives a 
level of care commensurate with his or her condition.
    Care plans are individualized in a CRC, and VA acknowledges that a 
veteran's care plan may not precisely match specific levels of care 
reflected in average rates for residential care published by the State. 
For instance, a state may publish average rates for care for 
residential care that differentiate between a low level of care and the 
next highest level. The veteran may require the lower level of care as 
well as only certain elements of the next highest level of care. In 
that case, the appropriate rate of charges for care should reflect that 
reality. Under paragraph 17.63(k)(4)(ii) of the proposed rule, the 
approving official would have the authority to approve a rate higher 
than the current average rate for residential care in the State or 
Region for the same level of care if the CRC and the resident or 
authorized personal representative agreed to such rate, and the higher 
rate is related to the individual needs of the resident which exceed 
the base level of care as defined in proposed paragraph (b). Examples 
of services which exceed the base level of care include, but are not 
limited to, handling disbursement of funds solely at the request of the 
resident; fulfilling special dietary requests by the resident or family 
member; accompanying the resident to an activity center; assisting in 
or providing scheduled socialization activities; supervision of an 
unsafe smoker; bowel and bladder care; intervention related to 
behavioral issues; and transportation other than for VA and healthcare 
appointments. A higher rate could be paid in those cases in which 
additional services are necessary, or the veteran has special needs 
that must be addressed. This would ensure that the veteran receives the 
individualized level of care required, and that the CRC is compensated 
for the level of care provided.
    Since the veteran's needs may change over time and the cost of care 
fluctuates, VA proposes in paragraph 17.63(k)(3) that the charge for 
care in a CRC must be reviewed annually by the facility and VA, or as 
required due to changes in care needs. We believe that this 
requirement, combined with the obligation to consider the required 
level of care and comparative cost of that care, adequately addresses 
concerns reflected in current Sec.  17.63(k)(3)(iii). That subparagraph 
states, in part, that the approving official may approve a deviation 
from the requirements of current Sec.  17.63(k)(3)(i) and (ii) upon 
request from a CRC representative, a resident in the facility, or an 
applicant for residency, if the approving official determines that the 
cost of care for the resident will be greater than the average cost of 
care for other residents. Under the proposed rule, the deciding factor 
is not whether the cost of care for the individual veteran is greater 
than the average cost of care for other residents in the facility. 
Rather, the primary focus is on the level of care the veteran requires, 
and how the proposed cost for that care compares to that of non-veteran 
community residential care residents in the same State or Region 
receiving the same level of care. Any change in the level of care may 
be brought to the attention of the approving official by VA, the CRC, 
the veteran, or authorized personal representative. Regardless of which 
party raises the issue, there must be a pre-existing agreement between 
the veteran or personal representative and the CRC regarding cost of 
care, and the approving official has review and approval authority over 
that agreement.
    We also address the remaining exception in current Sec.  
17.63(k)(3)(iii). There may be instances where a veteran

[[Page 17780]]

residing in a CRC elects to, notwithstanding the veteran's need, 
request a level of care from the CRC that exceeds VA standards. This is 
addressed in current Sec.  17.63(k)(3)(iii), which provides, in part, 
that the approving official may approve a deviation from the 
requirements of current Sec.  17.63(k)(3)(i) and (ii) if the resident 
chooses to pay more for the care provided at a facility which exceeds 
VA standards. We would renumber this portion of current 
17.63(k)(3)(iii) as paragraph (5) and amend the internal citation and 
clarify that this exception addresses situations where the veteran is 
electing to receive and pay for a level of care greater than what that 
veteran requires.
    Finally, we would make a technical edit to Sec. Sec.  17.61 through 
17.74. We would remove the statutory authority citation at the end of 
each of these sections, and amend the introductory ``Authority'' 
section of part 17 to state that Sec. Sec.  17.61 through 17.74 are 
authorized under 38 U.S.C. 501 as well as 38 U.S.C. 1730. We would make 
this change consistent with guidance from the Office of Federal 
Register.

Effect of Rulemaking

    The Code of Federal Regulations, as proposed to be revised by this 
proposed rulemaking, would represent the exclusive legal authority on 
this subject. No contrary rules or procedures would be authorized. All 
VA guidance would be read to conform with this proposed rulemaking if 
possible or, if not possible, such guidance would be superseded by this 
rulemaking.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521). Under 38 CFR 17.63(i), a CRC must maintain records on each 
resident, to include a copy of all signed agreements with the resident. 
This would include any agreement between the CRC and the resident 
regarding the rate charged for residence in the facility, which is the 
subject of this proposed rule. This information collection is already 
approved under OMB control number 2900-0491.

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. This proposed rule would directly affect only 
individuals and those small entities that seek inclusion on VA's 
approved list of CRCs. Therefore, pursuant to 5 U.S.C. 605(b), this 
rulemaking would be exempt from the initial and final regulatory 
flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866, 13563, and 13771

    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 proposed rule have been examined, and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866. VA's impact analysis can be found as a supporting document 
at http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm, by following the link for ``VA Regulations 
Published.'' This proposed rule is not expected to be an E.O. 13771 
regulatory action because this proposed rule is not significant under 
E.O. 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 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 proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles affected by this document are 64.011--Veterans Dental Care; 
64.012--Veterans Prescription Service; 64.013--Veterans Prosthetic 
Appliances; 64.029--Purchase Care Program; 64.035--Veterans 
Transportation Program; 64.041--VHA Outpatient Specialty Care; 64.044--
VHA Home Care; 64.045--VHA Outpatient Ancillary Services; 64.047--VHA 
Primary Care; 64.048--VHA Mental Health clinics; 64.050--VHA Diagnostic 
Care.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Government contracts, 
Grant programs--health, Grant 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, 
Travel and transportation expenses, Veterans.

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. Jacquelyn 
Hayes-Byrd, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on April 16, 2018, for publication.

    Dated: April 18, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble, Department of Veterans 
Affairs proposes to amend 38 CFR part 17 as follows:

[[Page 17781]]

PART 17--MEDICAL

0
1. The authority citation for part 17 is revised to read as follows:

    Authority:  8 U.S.C. 501, and as noted in specific sections.
    Section 17.38 is also issued under 38 U.S.C. 101, 1701, 1705, 
1710, 1710A, 1721, 1722, 1782, and 1786.
    Sections 17.61 through 17.74 are also issued under 38 U.S.C. 
1730.
    Section 17.169 is also issued under 38 U.S.C. 1712C.
    Sections 17.380, 17.390 and 17.412 are also issued under sec. 
260, Pub. L. 114-223, 130 Stat. 857.
    Section 17.410 is also issued under 38 U.S.C. 1787.
    Section 17.415 is also issued under 38 U.S.C. 7301, 7304, 7402, 
and 7403.
    Sections 17.640 and 17.647 are also issued under sec. 4, Pub. L. 
114-2, 129 Stat. 30.
    Sections 17.641 through 17.646 are also issued under 38 U.S.C. 
501(a) and sec. 4, Pub. L. 114-2, 129 Stat. 30.
    Section 17.655 is also issued under 38 U.S.C. 501(a) 7304 and 
7405.

0
2. Amend Sec.  17.61 by:
0
a. Removing in paragraph (b) the words ``daily living activities'' and 
adding in its place the words ``activities of daily living and 
instrumental activities of daily living'' and
0
b. Removing the statutory authority citation at the end of the section.
0
3. Revise Sec.  17.62 to read as follows:


Sec.  17.62   Definitions.

    For the purpose of Sec. Sec.  17.61 through 17.72:
    Activities of daily living means basic daily tasks an individual 
performs as part of self-care which may be used as a measurement of the 
functional status of a person including: Walking; bathing, shaving, 
brushing teeth, combing hair; dressing; eating; getting in or getting 
out of bed; and toileting.
    Approving official means the Director or, if designated by the 
Director, the Associate Director or Chief of Staff of a Department of 
Veterans Affairs Medical Center or Outpatient Clinic which has 
jurisdiction to approve a community residential care facility.
    Community residential care means the monitoring, supervision, and 
assistance, in accordance with a statement of needed care, of the 
activities of daily living activities and instrumental activities of 
daily living, of referred veterans in an approved home in the community 
by the facility's provider.
    Hearing official means the Director or, if designated by the 
Director, the Associate Director or Chief of Staff of a Department of 
Veterans Affairs Medical Center or Outpatient Clinic which has 
jurisdiction to approve a community residential care facility.
    Instrumental activities of daily living are tasks that are not 
necessary for fundamental functioning, but allow an individual to live 
independently in a community. Instrumental activities of daily living 
include: Housekeeping and cleaning room; meal preparation; taking 
medications; laundry; assistance with transportation; shopping--for 
groceries, clothing or other items; ability to use the telephone; 
ability to manage finances; writing letters; and obtaining 
appointments.
    Oral hearing means the in person testimony of representatives of a 
community residential care facility and of VA before the hearing 
official and the review of the written evidence of record by that 
official.
    Paper hearing means a review of the written evidence of record by 
the hearing official.
0
4. Amend Sec.  17.63 by:
0
a. Revising paragraph (b) and paragraph (k) and
0
b. Removing the statutory authority citation at the end of the section.
    The revisions read as follows:


Sec.  17.63  Approval of community residential care facilities.

* * * * *
    (b) Level of care. The community residential care facility must 
provide the resident, at a minimum, a base level of care to include 
room and board; nutrition consisting of three meals per day and two 
snacks, or as required to meet special dietary needs; laundry services; 
transportation (either provided or arranged) to VA and healthcare 
appointments; and accompanying the resident to appointments if needed; 
24-hour supervision, if indicated; and care, supervision, and 
assistance with activities of daily living and instrumental activities 
of daily living. In those cases where the resident requires more than a 
base level of care, the medically appropriate level of care must be 
provided.
* * * * *
    (k) Cost of community residential care. (1) Payment for the charges 
of community residential care is not the responsibility of the United 
States Government or VA.
    (2) The cost of community residential care should reflect the cost 
of providing the base level of care as defined in paragraph (b) of this 
section.
    (3) The resident or an authorized personal representative and a 
representative of the community residential care facility must agree 
upon the charge and payment procedures for community residential care. 
Any agreement between the resident or an authorized personal 
representative and the community residential care facility must be 
approved by the approving official. The charge for care in a community 
residential care facility must be reviewed annually by the facility and 
VA, or as required due to changes in care needs.
    (4) The charges for community residential care must be reasonable 
and comparable to the current average rate for residential care in the 
State or Region for the same level of care provided to the resident. 
Notwithstanding, any year to year increase in the charge for care in a 
community residential care facility for the same level of care may not 
exceed the annual percentage increase in the National Consumer Price 
Index (CPI) for that year. In establishing an individual residential 
rate, consideration should be given to the level of care required and 
the individual needs of the resident. The approving official may 
approve a rate:
    (i) Lower than the current average rate for residential care in the 
State or Region for the same level of care if the community residential 
care facility and the resident or authorized personal representative 
agreed to such rate, provided such lower rate does not result in a 
lower level of care than the resident requires;
    (ii) higher than the current average rate for residential care in 
the State or Region for the same level of care if the community 
residential care facility and the resident or authorized personal 
representative agreed to such rate, and the higher rate is related to 
the individual needs of the resident which exceed the base level of 
care as defined in paragraph (b) of this section. Examples of services 
which exceed the base level of care include, but are not limited to, 
handling disbursement of funds solely at the request of the resident; 
fulfilling special dietary requests by the resident or family member; 
accompanying the resident to an activity center; assisting in or 
providing scheduled socialization activities; supervision of an unsafe 
smoker; bowel and bladder care; intervention related to behavioral 
issues; and transportation other than for VA and healthcare 
appointments.
    (5) The approving official may approve a deviation from the 
requirements of paragraph (k)(4) of this section if the resident 
chooses to pay more for care at a facility which exceeds the base level 
of care as defined in paragraph (b) of this section notwithstanding the 
resident's needs.
* * * * *

[[Page 17782]]

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5. Amend Sec. Sec.  17.64 through 17.74 by removing the statutory 
authority citation at the end of each section.

[FR Doc. 2018-08386 Filed 4-23-18; 8:45 am]
BILLING CODE 8320-01-P