[Federal Register Volume 84, Number 135 (Monday, July 15, 2019)]
[Rules and Regulations]
[Pages 33694-33697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14918]
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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: Final rule.
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SUMMARY: The Department of Affairs (VA) adopts as final, with changes,
a proposed rule amending its regulation governing standards applicable
to a community residential care facility (CRC) approved by VA. This
rule also addresses the amount that a veteran may be charged for
residence in a CRC and how VA determines whether that rate is
appropriate. 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 CRC must agree upon the
charge and payment procedures for community residential care. VA
reviews and has approval authority over this agreement. The rule amends
and updates the criteria VA uses to determine whether the rate for care
charged to a veteran residing in an approved CRC is appropriate,
clarifying how VA determines whether a CRC rate should be approved,
consistent with current VA practice. In addition, this rulemaking
defines in regulation the level of care that must be provided to a
veteran residing in a CRC.
DATES: This final rule is effective on August 14, 2019.
FOR FURTHER INFORMATION CONTACT: Dayna Cooper, Chief, Home and
Community Based Programs, Geriatrics and Extended Care (10NC4),
Veterans Health Administration, Department of Veterans Affairs, 810
Vermont Ave. NW, Washington, DC 20420, [email protected] (202) 632-
8321. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on April 24, 2018, VA proposed to amend its regulation
governing standards applicable to a CRC approved by VA. 83 FR 17777. VA
provided a 60-day comment period, which ended on June 25, 2018. We
received three comments on the proposed rule and make no changes based
on these comments. We adopt the proposed rule as is, with the exception
of minor technical amendments and corrections as explained further in
this rulemaking.
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. 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 VA, 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. 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.
We proposed removing the definition of ``daily living activities''
and substituting the terms ``activities of daily living'' and
``instrumental activities of daily living'' where it is used in
Sec. Sec. 17.61(b) and 17.62. In the latter section, we proposed
defining ``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. We proposed defining
``Instrumental activities of daily living'' 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. In addition, we proposed revising Sec. 17.62 by removing
the paragraph designations for the definitions in that section,
arranging the defined terms in alphabetical order, and making non-
substantive changes to the definitions to make the introductory wording
for each definition consistent with that of other defined terms in part
17.
The proposed rule also focused on CRC standards set forth in Sec.
17.63. We
[[Page 33695]]
proposed revising paragraph (b) to 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 and instrumental activities
of daily living.
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 proposed amending and updating this
paragraph 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. We proposed amending paragraph (k)(2)
to 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 CRC facility must
agree upon the charge and payment procedures for community residential
care.
We proposed to add paragraph (k)(4) to establish standards for use
by a VA approving official in reviewing and approving this agreement
consistent with current practice. We proposed that 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. 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. We stated that the approving official would have the authority to
approve a rate lower than the current average rate for residential care
in the State or Region for the same level of care if the CRC and
resident agreed to such rate, and the lower rate does not result in a
lower level of care than the resident requires. Conversely, 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 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).
We received three comments. One commenter generally supported the
rulemaking while two raised issues which we respond to here.
One commenter stated that although the United States government
assumes no responsibility for paying the cost for care in these
facilities, it provides the eligibility requirements under which the
residents referred by VA are to receive assistance. The commenter
stated that this limits patient choice options and financially neglects
patients needing assistance outside of hospital stays. The commenter
asserted that the federal government should provide financial
assistance to this population much like it does for the veteran
homeless community with the Grant and Per Diem program in which it pays
entities providing transitional housing to homeless veterans.
Additionally, the commenter expressed concern that the proposed rule
does not ensure criteria for standardizing levels of care which may
subject veterans to inequalities in care. The commenter further
asserted that this proposed rule may result in a high occurrence of low
level care being suggested to save on payment for services.
Furthermore, the commenter stated that there are no insurances or
safeguards to ensure that care evaluation costs for lower levels of
care rendered are not overinflated to justify a larger budget request.
The commenter asserted that in this case a veteran would not be given a
choice above VA standards which may be lower than what the veteran
actually needs.
The CRC program provides a form of enriched housing and health care
supervision to eligible veterans not in need of acute hospital care but
who, because of medical and/or psychosocial health conditions, are not
able to live independently and have no suitable family or significant
others to provide the needed supervision and supportive care. VA does
not have the authority to provide financial assistance to veterans
through the CRC program, and providing such assistance through another
vehicle is outside the scope of this rulemaking. Also, this rulemaking
does address standardization of care by requiring CRCs to provide a
base level of care. CRCs must provide, at a minimum, 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 if needed; 24-hour
supervision, if indicated; care supervision, and assistance with
activities of daily living and independent activities of daily living.
CRCs are also required to provide medically appropriate level of care
for residents who require more than a base level of care. VA does not
provide financial assistance to veterans through the CRC program nor
does it determine the average rate for residential care in each state
or region; thus, the determination of level of care needed by a veteran
residing in a CRC is based solely on clinical need. Additionally, VA
uses a multi-step approach in evaluating whether a proposed CRC rate
will be approved. This approach includes a review of the level of care
a veteran requires; the current average rate of residential care in the
state or region for the same level of care provided to the resident, as
determined by each state; and the current CRC rate being charged to a
veteran. This review ensures that a veteran receives the individualized
level of care required, and that the CRC is compensated for the level
of care provided. We make no changes based on this comment.
Another commenter stated that VA should pay for CRC care. While VA
is authorized to operate the CRC program under 38 U.S.C. 1730, the
statute explicitly exempts VA from any responsibility for payment for
CRC care. The statute also states that VA may assist a veteran by
referring such veteran for placement, and aiding such veteran in
obtaining placement, in a VA-approved CRC. Per 38 U.S.C. 1730(b)(3),
payment of the charges of a CRC for any care or service provided to a
veteran whom VA has referred to that facility is not the responsibility
of the United States or VA. We make no changes based on this comment.
In this final rule, we are also making minor technical amendments
and corrections. These changes are non-substantive but are necessary to
remedy drafting errors in the proposed rule. We are amending the
authority citation in this final rule to only reflect the CFR sections
that are affected by this rule, which are Sec. Sec. 17.61 through
17.74. Also, in Sec. 17.62 we are amending typographical errors in the
definitions for ``activities of daily living'' and ``instrumental
activities of daily living'' by replacing the uppercase letter
following the colon with its matching lowercase letter. Furthermore, in
Sec. 17.63(k)(4)(i) we are also amending a typographical error by
replacing the first uppercase letter in the section with the matching
lowercase letter.
[[Page 33696]]
Based on the rationale set forth in the proposed rule and in this
document, VA is adopting the provisions of the proposed rule as a final
rule with changes as noted above.
Effect of Rulemaking
Title 38 of the Code of Federal Regulations, as revised by this
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 are authorized.
All existing or subsequent VA guidance must be read to conform with
this rulemaking if possible or, if not possible, such guidance is
superseded by this rulemaking.
Paperwork Reduction Act
This final 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 final rule. This information collection is already
approved under Office of Management and Budget (OMB) control number
2900-0491.
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. This final rule would amend Sec. 17.63 which governs the
standards applicable to a community residential care facility (CRC)
approved by VA. This final rule would merely conform this regulation
with our current practices. This final 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 is 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 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 final 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 final rule is not an E.O. 13771 regulatory action
because this 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 final rule will 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. Robert L.
Wilkie, Secretary, Department of Veterans Affairs, approved this
document on July 9, 2019, for publication.
Dated: July 9, 2019.
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 amends 38 CFR part 17 as follows:
PART 17--MEDICAL
0
1. The authority citation for part 17 is amended by adding an authority
for Sec. Sec. 17.61 through 17.74 to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
* * * * *
Sections 17.61 through 17.74 are also issued under 38 U.S.C.
1730.
* * * * *
Sec. 17.61 [Amended]
0
2. Amend Sec. 17.61 by:
0
a. Removing in paragraph (b) the words ``daily living activities'' and
[[Page 33697]]
adding in its place the words ``activities of daily living and
instrumental activities of daily living''; and
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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:
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a. Adding paragraph (b);
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b. Revising paragraph (k); and
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c. Removing the statutory authority citation at the end of the section.
The addition and revision 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.
* * * * *
Sec. Sec. 17.64 through 17.74 [Amended]
0
5. Amend Sec. Sec. 17.64 through 17.74 by removing the statutory
authority citation at the end of each section.
[FR Doc. 2019-14918 Filed 7-12-19; 8:45 am]
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