80_FR_34909 80 FR 34793 - Per Diem Paid to States for Care of Eligible Veterans in State Homes

80 FR 34793 - Per Diem Paid to States for Care of Eligible Veterans in State Homes

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 80, Issue 116 (June 17, 2015)

Page Range34793-34820
FR Document2015-13838

The Department of Veterans Affairs (VA) proposes to reorganize, update (based on revisions to statutory authority), and clarify its regulations that govern paying per diem to State homes providing nursing home and adult day health care to eligible veterans. The reorganization will improve consistency and clarity throughout these State home programs. We propose to revise the regulations applicable to adult day health care programs of care so that States may establish diverse programs that better meet participants' needs for socialization and maximize their independence. Currently, we require States to operate these programs exclusively using a medical supervision model. We expect that these liberalizing changes would result in an increase in the number of States that have adult day health care programs. We also propose to establish new regulations governing the payment of per diem to State homes providing domiciliary care to eligible veterans, because the current regulations are inadequate. Moreover, we propose to eliminate the regulations governing per diem for State home hospitals because there are no longer any State home hospitals. In general, this rulemaking is consistent with current regulations and policies, and we do not expect that these proposed rules would have a negative impact on State homes; rather, we believe that these proposed regulations would clarify current law and policy, which should improve and simplify the payment of per diem to State homes, and encourage participation in these programs.

Federal Register, Volume 80 Issue 116 (Wednesday, June 17, 2015)
[Federal Register Volume 80, Number 116 (Wednesday, June 17, 2015)]
[Proposed Rules]
[Pages 34793-34820]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-13838]



[[Page 34793]]

Vol. 80

Wednesday,

No. 116

June 17, 2015

Part II





Department of Veterans Affairs





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38 CFR Parts 17, 51, and 52





Per Diem Paid to States for Care of Eligible Veterans in State Homes; 
Proposed Rules

Federal Register / Vol. 80 , No. 116 / Wednesday, June 17, 2015 / 
Proposed Rules

[[Page 34794]]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17, 51 and 52

RIN 2900-AO88


Per Diem Paid to States for Care of Eligible Veterans in State 
Homes

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to 
reorganize, update (based on revisions to statutory authority), and 
clarify its regulations that govern paying per diem to State homes 
providing nursing home and adult day health care to eligible veterans. 
The reorganization will improve consistency and clarity throughout 
these State home programs. We propose to revise the regulations 
applicable to adult day health care programs of care so that States may 
establish diverse programs that better meet participants' needs for 
socialization and maximize their independence. Currently, we require 
States to operate these programs exclusively using a medical 
supervision model. We expect that these liberalizing changes would 
result in an increase in the number of States that have adult day 
health care programs. We also propose to establish new regulations 
governing the payment of per diem to State homes providing domiciliary 
care to eligible veterans, because the current regulations are 
inadequate. Moreover, we propose to eliminate the regulations governing 
per diem for State home hospitals because there are no longer any State 
home hospitals. In general, this rulemaking is consistent with current 
regulations and policies, and we do not expect that these proposed 
rules would have a negative impact on State homes; rather, we believe 
that these proposed regulations would clarify current law and policy, 
which should improve and simplify the payment of per diem to State 
homes, and encourage participation in these programs.

DATES: Comments must be received on or before August 17, 2015.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to the 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-AO88-Per Diem Paid to States for Care of 
Eligible Veterans in State Homes.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1068, Department of Veterans Affairs, 810 Vermont 
Avenue NW., Washington, DC 20420, 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: Dr. Richard Allman, Chief Consultant, 
Geriatrics and Extended Care Services (10P4G), Veterans Health 
Administration, 810 Vermont Avenue NW., Washington, DC 20420, (202) 
461-6750. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Currently, VA pays per diem to State homes 
for three types of care provided to eligible veterans: nursing home 
care, domiciliary care, and adult day health care. The statutory 
authority for these payment programs is set forth at 38 U.S.C. 1741-43 
and 1745. Currently, VA has regulations at 38 CFR part 51 that apply to 
the payment of per diem for nursing home care and 38 CFR part 52 that 
apply to the payment of per diem for adult day health care. Many of the 
sections in parts 51 and 52 are similar or identical. In particular, 
subparts A, B and C of both parts (which collectively concern 
procedural rules, recognition, and certification requirements for the 
payment of per diem) contain a great deal of redundancy. In some cases, 
we have regulations in parts 51 and 52 that have identical substantive 
effect, but we have unintentionally worded them differently. Subparts D 
of parts 51 and 52 set forth unique standards applicable to the 
recognition and certification of nursing homes or adult day health care 
programs (although both subparts D do contain some overlap).
    In order to eliminate redundancy and clarify the procedures for 
recognition and certification of State homes, we propose this extensive 
rewrite and reorganization of parts 51 and 52. This rulemaking would 
remove part 52. Part 51 would be re-titled ``Per Diem for Nursing Home, 
Domiciliary, or Adult Day Health Care of Veterans in State Homes,'' 
adding domiciliary and adult day health care to the title of part 51, 
which had formerly applied only to nursing home care. The regulations 
in subparts A and B of part 52 would be consolidated with similar 
regulations in part 51, and would be organized in subparts A and B of 
part 51. Proposed part 51, subpart C, would include regulations 
governing payments and eligibility for all three types of care. These 
proposed regulations would supersede the regulations currently 
contained in 38 CFR 17.190 through 17.200, which pertain to the payment 
of per diem for hospital and domiciliary care in State homes. 
Therefore, we propose to remove Sec. Sec.  17.190 through 17.200.
    Subpart D of part 51 would continue to set forth the standards 
applicable to the payment of per diem for nursing home care.
    The regulations in subpart D of part 52, concerning adult day 
health care programs, would be moved to a new subpart F of part 51, and 
would be revised to broaden the ability of State home adult day health 
care programs to operate in a manner that emphasizes participant 
independence over a strict medical model of care. There are currently 
only two State homes receiving per diem from VA for adult day health 
care, and we wish to increase the number of such homes throughout the 
country because we believe that such care is a viable and healthier 
alternative for veterans who otherwise would require nursing home care.
    This rulemaking would also establish new regulations that set forth 
standards that State homes must meet to receive per diem for 
domiciliary care. The proposed standards would supersede all non-CFR 
policies that contain standards for VA payment of per diem for 
domiciliary care in State homes.
    Moreover, the proposed rule is generally consistent with the 
current regulations on the payment of per diem for domiciliary care 
except as discussed below. In fact, much of the current guidance for 
domiciliary per diem is substantively similar to the rules already 
established for nursing home care and adult day health care in current 
parts 51 and 52, and therefore the general rules in proposed subparts A 
and B would apply equally to domiciliary care. The standards applicable 
to domiciliary care are proposed at subpart E. In other words, for 
purposes of regulatory organization, we propose to treat domiciliary 
care in the same manner that we would treat our other two State home 
programs.
    We would also update the authority citation for part 51 to include 
38 U.S.C. 1745, which pertains to State home nursing home care for 
certain veterans with service-connected disabilities and was enacted 
after we published part 51. We have not yet updated the authority 
citation for all of part 51 to include 38 U.S.C. 1745, though certain 
sections

[[Page 34795]]

were updated to include a citation to it. This amendment would have no 
substantive effect but would clarify that it is one of VA's authorities 
for all of part 51.
    A detailed discussion of the proposed revised part 51 follows, 
organized by subpart and section.

Subpart A--General

51.1 Purpose and Scope of Part 51

    Section 51.1would describe the purpose, scope, and organization of 
part 51.

51.2 Definitions

    Section 51.2 would set forth definitions applicable to terms used 
throughout part 51. Definitions of terms that are currently defined in 
Sec.  51.2 are unchanged, except where the same term was technically 
(but not substantively) defined differently in current Sec.  52.2 such 
that minor technical revision was required. Definitions in current 
Sec.  52.2 would be added to Sec.  51.2 without substantive change, 
except as noted below. Also, we would adopt the regulatory definition 
of domiciliary care in 38 CFR 17.30(b) that currently applies to State 
homes in proposed Sec.  51.2 except that the proposed definition would 
not include ``travel and incidental expenses pursuant to Sec.  17.143'' 
because State homes are not required to pay these expenses pursuant to 
Sec.  17.143. Finally, a few new definitions would be added, as 
explained below.
    Current Sec.  52.2 does not define ``adult day health care;'' 
however, part 52 does establish standards applicable to State home 
adult day health care. Many States would like to use a model of adult 
day health care that emphasizes socialization and maximizes participant 
independence, but does not provide as much medical supervision or 
involvement as is generally required by current part 52. Therefore, we 
propose to amend the regulations governing State home adult day health 
care to allow for flexibility and to establish standards of medical 
care only when the State home provides such care. These revisions are 
discussed in greater detail in the portion of this notice describing 
proposed subpart F of part 51. In Sec.  51.2, we would set forth a 
definition of adult day health care that will allow for flexibility in 
terms of the services provided. As revised, this type of adult day 
health care program would serve as an alternative to full-time nursing 
home care; it emphasizes group activities and is designed to reduce or 
postpone the need for institutional placement (such as placement in a 
nursing home), rather than emphasizing medical treatment. We believe 
that these proposed revisions will expand the availability of adult day 
health care within State homes and for veterans who wish to live at 
home but who require daily care, and may lead to decreased demand for 
costly nursing home care. As such, we believe that this would produce a 
positive result for veterans.
    We note that current 38 CFR 17.111(c)(1) defines ``adult day health 
care'' for the purposes of a copayment determination for adult day 
health care provided by VA. This regulation does not apply to the State 
home program. However, VA is currently considering whether the expanded 
definition of adult day health care that would apply to State homes 
under this rulemaking should also apply to VA adult day health care. 
Any revisions to part 17 would appear in a separate rulemaking.
    We will not provide different rates of payment to State home adult 
day health care programs that provide intensive medical supervision and 
those that do not. Adult day health care provided under the current 
definition is typically more expensive than what States could offer 
using the broader definition of adult day health care programs proposed 
in this rulemaking; however, current State participation in adult day 
health care for veterans is virtually nonexistent due to this higher 
cost. In part because current VA requirements are too expensive to 
implement, we are proposing these revisions in an effort to expand 
State home adult day health care as an option for our veterans.
    We propose a definition of clinical nurse specialist that accords 
with the intended meaning of the term for all these State home 
programs. Currently, both parts 51 and 52 require that a clinical nurse 
specialist be ``a licensed professional nurse with a master's degree in 
nursing and a major in a clinical nursing specialty from an academic 
program accredited by the National League for Nursing.'' However, 
current Sec.  51.2 also requires that the nurse be ``certified by a 
nationally recognized credentialing body (such as the National League 
for Nursing, the American Nurses Credentialing Center, or the 
Commission on Collegiate Nursing Education).'' We no longer believe 
that such certification is necessary in order for a nurse to be 
qualified, which is why we had dropped that additional language when we 
promulgated part 52. Therefore, in these new regulations, we would also 
drop the additional language from the rules that apply to nursing home 
care.
    We would establish that references to ``Director'' in this part 
would be to the Director of the VA medical center of jurisdiction, 
unless the section specifically refers to another type of director. 
This is a nonsubstantive change that is intended to clarify references 
in the regulations.
    Current Sec.  17.30(b) defines ``domiciliary care'' for the 
purposes of VA's ``medical regulations,'' i.e., current part 17. VA's 
current regulations for payment of per diem to state homes for 
domiciliary care are part of those regulations. Therefore, this 
definition applies to the State home program. We propose adopting a 
similar definition of domiciliary care in Sec.  51.2, except that we 
would update the language and delete the requirement that State home 
domiciliaries provide ``travel and incidental expenses pursuant to 
Sec.  17.143,'' which previously was the regulation implementing VA's 
authority to pay beneficiary travel of certain veterans. VA's current 
beneficiary travel regulations are set forth in 38 CFR part 70, and 
they generally require VA to pay for eligible Veterans' travel to and 
from VA facilities. In any case, those regulations only require VA to 
pay for travel; they do not apply to State homes. We thus propose to 
not require State homes to pay for travel in the same manner as VA does 
under VA's beneficiary travel program. We also propose to remove the 
requirement that State home domiciliaries provide residents with 
clothing. Although VA is required by 38 U.S.C. 1723 to provide clothing 
under certain circumstances in its own facilities, this statute does 
not apply to State homes. VA erroneously included provision of clothing 
in the current regulation.
    We would add a definition of ``[e]ligible veteran.'' The term would 
refer to a veteran whose care may serve as a basis for per diem 
payments. The definition would reference the substantive sections under 
which such eligibility would be established for each of the three per 
diem programs.
    We would eliminate the current definition of ``facility'' in 
Sec. Sec.  51.2 and 52.2 because it is not necessary. We would add a 
definition of ``licensed medical practitioner.'' The term would 
encompass and would refer to the following terms we further define in 
this section: Nurse practitioner; physician; physician assistant; and 
primary physician or primary care physician.
    We would revise the definition of ``nursing home care'' to be 
consistent with the statutory definition of that term in 38 U.S.C. 
101(28).
    We would define ``participant'' as an individual receiving adult 
day health care and ``resident'' as an individual receiving nursing 
home or domiciliary

[[Page 34796]]

care. The proposed definitions would be consistent with the uses of 
those terms in both the current regulations and the proposed 
regulations.
    The last sentence of the definition of ``physician assistant'' in 
current Sec.  51.2 states that a physician assistant must be able to 
perform certain tasks ``under appropriate physician supervision which 
is approved by the primary care physician.'' The last sentence of the 
same definition in Sec.  52.2 states that a physician assistant must be 
able to perform the same tasks ``under the appropriate supervision by 
the primary care physician.'' Thus, part 52 requires actual supervision 
by the primary care physician, but part 51 does not. We did not intend 
these provisions to be different, and would require in revised Sec.  
51.1 that the physician assistant be able to perform such tasks ``under 
appropriate physician supervision.'' This would allow clinicians to 
determine on a case-by-case basis what level of supervision is 
required.
    We would define a ``program of care'' as any of the three levels of 
care for which VA may pay per diem under part 51. Current regulations 
use this term, and it is convenient to retain it.
    We would revise the definition of ``State,'' which currently 
includes ``possessions of the United States.'' Although this definition 
is consistent with the definition in 38 U.S.C. 101(20), the definition 
of State home, in 38 U.S.C. 101(19), does not include a home 
established in a possession of the United States. Because the 
definition of State in part 51 applies only to part 51, and we are not 
authorized to provide per diem to State homes in possessions of the 
United States, we would delete the reference to possessions in the 
definition of ``State.'' This is a substantive change; however, it has 
no actual impact because there are not any State homes established in a 
possession. Also, we are not aware that any possessions have permanent 
populations that would justify the establishment of a State home.
    The statutory definition of ``State'' includes ``Territories'' of 
the United States. 38 U.S.C. 101(20). The Department of the Interior, 
which has administrative responsibility for coordinating federal policy 
in Island groups in the Insular Area, has identified the United States 
Virgin Islands, Guam and American Samoa as territories of the United 
States, and the Northern Mariana Islands as a Commonwealth in Political 
Union with the United States, which is treated as a U.S. territory for 
purposes of the State home per diem payment program. See VAOPGCCONCL 
10-98 and VAOPGCPREC 55-91. We thus propose to amend the definition of 
``State'' to include the Virgin Islands, Guam, the Commonwealth of the 
Northern Mariana Islands, and American Samoa. The Commonwealth of 
Puerto Rico would remain part of the definition. The proposed revisions 
would make this definition of ``State'' consistent with the definition 
of ``State'' for purposes of the program that provides grants to States 
for construction and acquisition of State homes. See 38 CFR 59.2. 
Because this proposed definition of ``State'' would name each of the 
included territories of the United States, we propose to delete the 
reference to ``territories'' in the definition.
    We would revise the current regulatory definition of ``State home'' 
to eliminate the reference to hospital care because we no longer pay 
per diem for hospital care through the State home per diem program. 
This is also an important reason to eliminate current 38 CFR 17.190-
17.200 which concern in part payment of per diem for hospital care in 
State homes.
    We would define a ``veteran'' as a veteran under 38 U.S.C. 101.
    We would not include from current Sec.  52.2 the definition of 
``instrumental activities of daily living'' because the term would not 
appear in part 51. It is no longer necessary to the adult day health 
care program, and is not used in the administration of nursing home 
care or domiciliary care. Changes to the adult day health care program 
are further explained below.

Subpart B--Obtaining Recognition and Certification for Per Diem 
Payments

    Subpart B would establish the procedures for obtaining State home 
recognition and certification, in order to receive per diem payments. 
These procedures would be common to all three programs, except as 
specifically noted in the proposed regulations. We propose to remove 
current Sec.  51.10, because it is unnecessary and merely restates 
information that is set forth in more detail in other sections of 
subpart B. Despite the removal of Sec.  51.10, we would keep the 
section numbering in subpart B the same, or reasonably similar, to the 
current numbering.

51.20 Recognition of a State Home

    Section 51.20 is based on current regulations governing the 
recognition and certification process, but the proposed rule would 
establish clearer and simpler procedures, without making significant 
substantive changes to the current process. We discuss the proposed 
process in detail below.
    A key difference in the new process is that the current process 
requires both recognition and ``initial certification'' by the Under 
Secretary for Health for State home nursing homes and adult day health 
care programs, but does not clearly distinguish between the 
requirements for recognition versus the requirements for initial 
certification. Moreover, ``initial certification'' is no different from 
the ongoing annual certification, except that ``initial certification'' 
is provided by the Under Secretary for Health while annual 
certifications are authorized by the Director of the VA medical center 
of jurisdiction. It is confusing to have the same decision, 
certification, be authorized by two different individuals, particularly 
because the annual certification is then appealable to the Under 
Secretary for Health. Therefore, the proposed process would refer to 
the initial determination by the Under Secretary solely as a 
``recognition'' determination, and all subsequent determinations (other 
than those following revocation) as ``certifications.'' We emphasize 
that this change would not affect the State homes themselves, because 
current regulations require State homes to follow all applicable 
regulations in order to obtain recognition and initial certification as 
well as annual certification. We believe that it is clearer to 
distinguish recognition, which requires the Under Secretary for 
Health's approval, from certification, which requires only approval at 
the level of the Director of the VA medical center of jurisdiction. 
Another significant change is the delegation to the Under Secretary for 
Health for all recognition and appeal decisions related to 
domiciliaries. We believe it is more appropriate for the Under 
Secretary, who has direct responsibility for the provision of health 
care by VA, to make such decisions. This difference, and any other 
differences between the current regulations in part 17 regarding State 
homes and proposed part 51, would be resolved by this rulemaking for 
the policy reasons set forth in this rulemaking.
    In current Sec.  51.20(a), we require that requests for recognition 
be sent to the Chief Consultant, Office of Geriatrics and Extended Care 
(114). The Veterans Health Administration (VHA) recently changed its 
management structure, so that the Director of the Office of Geriatrics 
and Extended Care Operations now performs the management and operations 
duties for State homes that were formerly performed by the Chief 
Consultant of

[[Page 34797]]

the Office of Geriatrics and Extended Care. The proposed rule would 
change references to the ``Chief Consultant'' to the ``Office of 
Geriatrics and Extended Care'' in Sec.  51.20(a). We make the same 
change in proposed Sec. Sec.  51.120(a)(3) and 51.210(b). VHA will 
publish policy documents to inform State homes of the addresses to 
which any documents must be mailed.
    Current Sec. Sec.  51.20 and 52.20 require that the request for 
recognition be signed by ``the State official authorized to establish 
the State home.'' State homes are often established through acts of the 
State legislature. Therefore, we would revise the language to require 
signature by ``the State official authorized to make the request.'' 
This is in fact how the current process works, so this revision would 
merely be a clarification. Current Sec.  17.191 requires that 
applications for recognition of State home domiciliaries be filed with 
the Under Secretary for Health and provides that the Secretary of VA 
will make the final decision after considering a recommendation from 
the Under Secretary for Health. As noted above, the proposed rules 
would delegate recognition authority to the Under Secretary for Health. 
In addition, proposed Sec.  51.20 would make the process of requesting 
and obtaining recognition of a State home domiciliary otherwise 
consistent with the process applicable to State nursing homes and adult 
day health care programs. There is simply no longer any reason to 
support using different procedures.
    Proposed Sec.  51.20(b)(1) would state that after receiving a 
request for recognition under Sec.  51.20(a), VA will survey the home 
in accordance with Sec.  51.31. This is consistent with current 
practice governing domiciliaries and with current Sec. Sec.  51.30 and 
52.30. Paragraph (b)(1) would also provide that in surveying the home 
VA must determine if the home meets the standards set forth in this 
Part and that those standards which impose requirements on State homes 
would apply to homes that are being considered for recognition. This is 
necessary because proposed Sec.  51.2 defines ``State home'' as a home 
that has already been recognized by VA.
    Paragraphs (b)(2) and (3) would require the Director to submit to 
the Under Secretary for Health a written recommendation for or against 
recognition. Proposed paragraph (b)(3), concerning recommendations 
against recognition, is based on parallel provisions in the current 
regulations; however, we would revise the description, currently in 
Sec. Sec.  51.30(a)(2) and 52.30(a)(2), of the State's rights in a case 
where the Director does not recommend recognition. The current 
regulations provide that the State may appeal such recommendation to 
the Under Secretary for Health; however, the Director is not authorized 
to award recognition and therefore the Director's recommendation has no 
direct adverse effect on the State. The Director's recommendation 
carries no legal effect, and merely serves as evidence considered by 
the Under Secretary for Health. Therefore, it would be incorrect to 
characterize the State's response to this recommendation as an appeal. 
At the same time, the Director's recommendation may influence the Under 
Secretary for Health's determination on the recognition request, and 
therefore the State should have an opportunity to present evidence to 
the Under Secretary for Health to support a decision that is contrary 
to the Director's recommendation. Thus, we would explain that the State 
must be afforded 30 days to submit a response and any additional 
evidence to the Under Secretary for Health.
    In proposed paragraph (c), we would clearly state that the Under 
Secretary for Health's decision may be appealed to the Board of 
Veterans' Appeals. This is consistent with current law and practice and 
current Sec.  51.30(f), but is not clearly stated in our regulations 
governing per diem for State home domiciliaries and adult day health 
care programs.
    In addition, current Sec.  52.30(a)(1) requires the Director to 
make a ``tentative determination'' regarding recognition and 
certification, while current Sec.  51.30(a)(2) requires the director to 
make a ``recommendation.'' The latter is more accurate, and Sec.  51.30 
would accordingly refer throughout to a ``recommendation.''
    Proposed Sec.  51.20(d) is based on the last sentences of current 
Sec. Sec.  51.30(b) and 52.30(b). Paragraph (d)(1) would clarify that 
recognition of a home means that the State home met all applicable 
requirements of part 51 at the time of recognition. Paragraph (d)(1) 
would also indicate, for purposes of clarity, that certification must 
thereafter be obtained no later than 450 days after the home is 
recognized and every 450 days thereafter, in accordance with Sec.  
51.30(b).
    Proposed paragraph (d)(2) would state that ``any new annex, new 
branch, or other expansion in the size of a home or any relocation of 
the home to a new facility must be separately recognized.'' This is 
consistent with current practice and Sec. Sec.  51.30(b) and 52.30(b). 
We also propose in paragraph (d)(2) a substantive change to the current 
requirements, which would be that ``changes in the use of particular 
beds between recognized programs of care and increases in the number of 
beds that are not described in the previous sentence require 
certification of the beds, but not recognition.'' This means that a 
State with a recognized domiciliary and nursing home may change the use 
of one or more beds in the domiciliary to nursing home care without 
requesting recognition from the Under Secretary for Health. A survey 
would still be required, but only certification by the Director would 
be needed. This would allow State homes to change the uses of beds 
without going through the cumbersome recognition process and at the 
same time would enable VA to ensure that the State home meets the 
applicable standards of care and can adequately meet the needs of the 
new residents assigned to those beds.
    We note that current Sec. Sec.  17.190 through 17.193 impose 
several requirements regarding recognition and certification of State 
home domiciliaries. Some of these requirements are similar to the 
requirements in this Notice of Proposed Rulemaking, but others 
conflict. For example, current Sec.  17.192 provides that separate 
applications for domiciliary recognition must be filed for any annex, 
branch, enlargement, expansion, or relocation of a recognized home that 
is not on the same or contiguous grounds on which the parent facility 
is located. But proposed Sec.  51.20(d) would require a separate 
application for recognition of any such change, regardless of whether 
the change would be made on the same or contiguous grounds. This is 
necessary to ensure that the facility continues to meet the standards 
applicable to domiciliaries. It is also consistent with the manner in 
which VA handles similar applications in the nursing home or adult day 
health care contexts.

51.30 Certification

    Proposed Sec.  51.30 is based on the annual and provisional 
certification requirements in current Sec. Sec.  51.30 and 52.30. 
Although the recognition process proposed in Sec.  51.20 is similar to 
the current process, we propose significant simplifications and changes 
to the certification process that will improve VA's ability to 
authorize programmatic changes and allow State homes greater 
flexibility in meeting the needs of their resident populations.
    Proposed paragraph (a) would state that State homes must allow a VA 
survey of the home in order to be certified by VA. It would also state 
that a State home must be certified within 450 days after the State 
home is

[[Page 34798]]

recognized and that certifications expire 600 days after they are 
issued. This would ensure that VA has sufficient time to survey and 
recertify State homes if certification is warranted. This provision is 
based on current Sec. Sec.  51.30(c) and 52.30(c), with clarifications 
due to the proposed simplified certification procedures.
    Proposed Sec.  51.30(b)(1) would state that the Director of the VA 
medical center of jurisdiction would certify a State home based on a 
survey conducted at least once every 270-450 days, at VA's discretion, 
and would require the Director to notify the State home of a 
certification decision within 20 days of the decision. Twenty days is 
sufficient time for VA to ensure notification, and is comparable to the 
time periods required for other actions under this rulemaking. See 
proposed Sec.  51.30(c)(1)(iii). Requiring a periodic survey is 
entirely consistent with current regulations and practice as to all 
three programs of care.
    Proposed paragraph (c) would revise VA's current certification 
procedures to make it easier for a State to change the size of a 
recognized program of care. Under current regulations, changes to the 
size of a program of care require a new recognition decision.
    In proposed paragraph (c)(1), we would require only a new survey 
and certification decision when an existing State home increases the 
number of available nursing home or domiciliary beds in a recognized 
program of care, except increases described in the first sentence of 
Sec.  51.20(d)(2), or when a State home recognized to provide both 
domiciliary and nursing home care switches beds between recognized 
programs of care. The proposed regulations would allow the Director to 
precertify, at the request of a State home, the increased number of 
beds or beds switched between recognized programs of care in an 
existing State home so that payments can be made for care of eligible 
veterans in these beds during the certification survey process for up 
to 360 days or until VA issues a certification decision, whichever 
occurs first. We would provide that precertification would be 
authorized if the Director reasonably expects, based on prior surveys 
and any other relevant information, that the State home would continue 
to comply with part 51 until the State home is surveyed and certified. 
We would also provide that VA would pay per diem for the care of 
eligible veterans in the beds provided on and after the date the 
Director precertifies the beds. Permitting precertification would allow 
VA to provide guidance to the State home in advance of VA's 
certification survey.
    In proposed paragraph (c)(2), we would require the State to report 
to the Director any decreases in the number of beds available and an 
explanation of such decrease within 30 days. Currently, 38 CFR 51.30(b) 
requires certification when a State home reduces the number of beds, 
and we do not believe that it is a good use of resources to require VA, 
or the State home, to go through the certification process in such 
cases. Thus, under paragraph (c)(2), decreases in size would be 
explicitly exempted from requiring certification.
    Proposed paragraph (d) would govern the provisional certification 
process. Paragraph (d)(1) would require the Director to issue a 
provisional certification under specified circumstances. This is mostly 
consistent with current practice. We would require that the State's 
corrective action plan be submitted to the Director no later than 20 
days after receipt by the State home of the survey report. If the State 
does not submit a corrective action plan within 20 days, the Director 
would not issue a provisional certification. Twenty days is a 
reasonable amount of time, particularly because proposed Sec.  51.30(b) 
would require VA to provide a copy of the survey report within 20 days 
after the survey is completed. We would provide that the Director must 
determine that the corrective action plan is reasonable. We would also 
require the Director to send written notice to the appropriate 
person(s) at the State home informing them that the Director agrees 
with the plan.
    The current regulations recommend that certifications, including 
provisional certifications, should be made every 12 months. But they do 
not address how a provisional certification of more than 12 months 
would affect the annual certification requirement. This can be 
confusing. Therefore, proposed paragraph (d)(2) would clarify that VA 
will continue to survey the State home while it is under a provisional 
certification in accordance with proposed Sec. Sec.  51.30 and 51.31, 
and will continue the provisional certification so long as the criteria 
for issuing the initial provisional certification, listed in proposed 
paragraph 51.30(d)(1), remain true. This means that if new deficiencies 
are identified during an annual survey, then a new provisional 
certification (or denial of certification) would be required as to 
those new deficiencies.
    Proposed paragraph (d)(3) would clarify what happens if a State 
home fails to adhere to the corrective action plan. In such instances, 
we would no longer make issuance of a provisional certification 
mandatory, but would allow the Director the discretion to issue another 
one if the State submits a new written plan to remedy each remaining 
deficiency within a reasonable time. The new written plan must be 
submitted no later than 20 days after the expiration of the time 
specified to remedy all deficiencies in the original plan, which VA has 
determined is a reasonable time to develop a plan to remedy any 
remaining deficiencies. This would enable a case-specific approach, so 
that State homes that have made efforts to correct problems and that 
otherwise provide important services to veterans can continue to 
receive per diem, but VA would not be required to fund State homes 
that, in the Director's view, have not shown either the ability or 
willingness to correct problems. Under paragraph (e), the State home 
would have the right to appeal the Director's decision not to issue an 
additional provisional certification, which is described in more detail 
in the discussion of proposed Sec.  51.30(e) that follows.
    Proposed Sec.  51.30(e) is based on current Sec.  51.30(a)(2), (d), 
(e), and (f), and parallel provisions in current Sec.  52.30. Although 
the information on notice and the right to appeal is reorganized, it is 
not substantively different, except as noted below.
    First, in Sec.  51.30(e), we would eliminate any implied right to 
appeal provisional certifications. These certifications have no adverse 
effect on the State, and, indeed, the State must agree to correct any 
deficiency before VA would issue a provisional certification. 
Therefore, there is no need to appeal provisional certifications.
    In proposed Sec.  51.30(e)(1) through (3), we would clearly set 
forth the review and appeal procedures for a decision by VA not to 
issue a certification of a State home. Currently, VA delegates the 
annual certification process to its local VA medical center Directors--
unlike the recognition decision, which is made by the Under Secretary 
for Health. Therefore, an appeal from the Director's decision includes 
review by the Under Secretary for Health. The proposed rule is 
consistent with current practice. Also consistent with current 
practice, we would explain in paragraphs (e)(1) and (e)(2) that per 
diem payments will continue during the appeals process. Finally, we 
would state in Sec.  51.30(e)(3) that a denial of certification may be 
appealed to the Board of Veterans' Appeals only if it results in a loss 
of payments to the State, and that VA would discontinue payment of per 
diem if the Under Secretary for Health affirms the Director's decision. 
The current

[[Page 34799]]

regulation at Sec.  51.30(f) allows States to appeal any denial of 
certification to the Board of Veterans' Appeals. VA proposes this 
change because deficiencies at a State home that do not result in a 
loss of per diem payments are best remedied through a written plan and 
corrective actions, as required by proposed paragraph (d). Under the 
proposed rule, VA would terminate payments on the date of a decision 
affirming the denial of certification, or on a later date specified in 
the decision by the Under Secretary for Health, which allows the Under 
Secretary to accommodate State homes that lose certification while 
providing care to veterans.
    Proposed Sec.  51.30(f) would state that appeals of all other 
matters will be governed by VHA's appeals regulations in 38 CFR part 
20.
    Current Sec.  51.31, ``Automatic recognition,'' was essentially a 
grandfather clause allowing those State homes recognized by VA at the 
time that part 51 was promulgated in 2000 to maintain their 
recognition, but requiring them to be certified annually. There is no 
need to maintain this provision because all such State homes have been 
``grandfathered in.'' We therefore propose to remove this section.

51.31 Surveys for Recognition and/or Certification

    Proposed Sec.  51.31 concerns surveys, and applies to both the 
first VA survey for recognition and surveys for certification. 
Paragraph (a) is based on current Sec. Sec.  51.30(c) and 52.30(c), 
except as noted below.
    VA routinely conducts annual surveys without advance notice, but VA 
always provides advance notice before the recognition survey is 
conducted. In fact, for recognition surveys VA wants the home to be 
fully prepared so that VA can determine whether it has the capability 
to meet the applicable requirements. Accordingly, proposed Sec.  
51.31(a) would indicate that VA will provide advance notice before a 
recognition survey, and may notify the State before other surveys. This 
is a substantive change to both parts 51 and 52 that should improve the 
ability of State homes to prepare for VA recognition surveys.
    Current VA regulations (Sec. Sec.  51.30(c) and 52.30(c)) provide 
that a survey will cover all parts of a nursing home or adult day 
health care facility. There are times, however, when VA needs to survey 
only part of a home. For example, if a recognition survey finds that a 
home does not meet several standards, the State may request another VA 
survey after fixing those deficiencies. VA believes that only a survey 
of that part of the home that would permit a determination as to 
whether the standards have been met would be necessary. Accordingly, 
Sec.  51.31(a) would permit surveys to cover all parts of a home or 
only certain parts.
    In the last sentence of proposed paragraph (a), we would permit the 
Director to designate VA officials and/or contractors to survey a home. 
The designation of contractors is not specifically authorized by the 
current regulations, but it reflects the modern way in which VA 
conducts these surveys. The use of contractors, rather than local VA 
employees, is one way in which VA attempts to ensure that surveys 
across the country are conducted in a timely and similar manner. 
Moreover, we would eliminate the current language stating that the 
surveying team ``may include'' certain listed professionals (i.e., 
physicians, nurses, fiscal officers, etc.), because the language is 
hortatory and because we have found that the use of specifically 
trained contractors has, in most cases, eliminated the need to include 
some of these professionals.
    Proposed Sec.  51.31(b)(1) would establish the minimum occupancy 
threshold required before VA will conduct a recognition survey of a 
domiciliary. We would require that a domiciliary have at least 21 
residents or a number of residents consisting of at least 50 percent of 
the resident capacity of the domiciliary before VA will undertake a 
survey. This is the same requirement for nursing homes which is in 
current Sec.  51.30(a)(1) and which we propose including in this 
paragraph. Proposed Sec.  51.31(b)(2) would establish the minimum 
participation threshold required before VA will conduct a recognition 
survey of an adult day health care program. For an adult day health 
care program of care, we would require that it have at least 10 
participants or a number of participants consisting of at least 50 
percent of participant capacity. We believe that this is the minimum 
participant capacity necessary for VA to determine whether the program 
is able to meet the applicable standards. We also note that the current 
rule applies the occupancy requirement to ``new'' nursing homes. By 
``new,'' we intended to refer to homes that have not previously been 
recognized, but did not intend the requirement to apply only to new 
construction. We would remove the word ``new'' because it is 
unnecessary and potentially ambiguous. No substantive change is 
intended.
    Proposed Sec.  51.31(c) is based on current Sec. Sec.  51.30(g) and 
52.30(g), without substantive change.

51.32 Terminating Recognition

    As noted above, proposed Sec.  51.32 is based on the first sentence 
of current Sec. Sec.  51.30(b) and 52.30(b). VA would terminate 
recognition of a State home if the State requests that VA terminate it 
or if VA makes a final decision not to certify the State home.

Subpart C--Eligibility, Rates, and Payments

51.40 Basic Per Diem Rates

    Proposed Sec.  51.40 would set forth the basic method for 
calculating the basic per diem payment rate, and establish that this 
method is the same for all three programs. The per diem rates would be 
calculated in the same manner as they are in the current regulations, 
but technical aspects of the rules on per diem rates are outdated or in 
need of revision and would be updated.
    First, current Sec.  17.197, applicable to domiciliary care, 
indicates that VA will publish the actual per diem rates, whenever they 
change, in a Federal Register Notice. Proposed Sec.  51.40 does not 
include this requirement because any State home providing domiciliary 
care would be given actual and timely notice of any changes in the per 
diem rates. Second, current Sec.  52.40(a)(1), which applies to adult 
day health care, includes an outdated reference to the rate for fiscal 
year 2002. The current rule on basic per diem rates for nursing home 
care, at Sec.  51.40(a)(2), is also outdated because it refers to the 
rate for fiscal year 2008. The rates are currently, and would continue 
to be, established in accordance with 38 U.S.C. 1741(a) and (c). We 
propose to make a more general statement, without reference to any 
particular fiscal year, describing how the basic per diem rate is 
calculated. This would ensure that our regulations do not become 
outdated within a year of publication.
    Proposed Sec.  51.40(b) would set forth VA's formula for 
calculating the daily cost of care of a veteran, which is consistent 
with current practice and regulation at Sec.  51.43(e). We do not 
propose any substantive revisions to this formula for calculating basic 
per diem rates.
    Paragraph (c) of proposed Sec.  51.40 would incorporate current 
Sec.  51.43(c), with minor clarifying changes to the paragraph, which 
was amended by the direct final rule published on September 27, 2012. 
77 FR 59318, 59320, Sept. 27, 2012.
    Proposed paragraph (d) would describe how to determine whether a

[[Page 34800]]

veteran has spent a day in an adult day health care program. Current 
Sec.  52.40(a)(2) defines ``a day'' as ``[s]ix hours or more in one 
calendar day; or . . . [a]ny two periods of at least 3 hours each (but 
each less than six hours) in any two calendar days in a calendar 
month.'' A question has arisen regarding whether time spent in State-
provided transportation between the veteran's home and the State home, 
in transportation to a health care visit, or accompanied by State home 
staff during a health care visit, should be included as time a veteran 
received adult day health care. If adult day health care were not 
available to these veterans, they would need to leave their own 
residences for nursing home care, and therefore special State-provided 
transportation is an important part of their care. State homes offer 
most adult day health care program participants transportation to and 
from health care visits with drivers who are certified in basic life 
safety and can provide basic assessments, ambulation escorts, 
wheelchair lift services, and proper handoffs at the site of the health 
care visit. Transportation between the veteran's residence and the 
State home includes door-to-door care. Therefore, to ensure continuity 
of care, we believe that time spent in transportation and accompanied 
by State home staff should be included as times that veterans receive 
adult day health care, and we propose to clarify paragraph (d)(3) 
accordingly.

51.42 Payment Procedures

    Proposed Sec.  51.42(a)(1) is based on current Sec. Sec.  51.43(a) 
and 52.40(a)(5); proposed Sec.  51.42(a)(2) is based on current 
Sec. Sec.  51.43(b) and 52.40(a)(3); proposed Sec.  51.42(b)(1) is 
based on current Sec. Sec.  51.43(d) and 52.40(a)(4); proposed Sec.  
51.42(b)(2) is based on current Sec. Sec.  51.43(d) and 52.40(a)(4). 
Proposed 51.42(b)(3) is based on current Sec. Sec.  51.43(a) and 
52.40(a)(5). Slight differences between regulations in parts 51 and 52 
have been corrected to accurately reflect the forms required under this 
section.
    In proposed paragraph (a)(1), we would clarify that the forms 
required under the regulation must be submitted when a veteran is 
admitted to a State home (for State homes that have already been 
recognized and certified), or at the time of the recognition survey 
(for a home that a State has submitted an application for recognition 
as a State home).
    In addition, we would clarify in paragraph (a)(2) that the VA Form 
10-5588 must be submitted every month in order for VA to pay per diem 
for the prior month. The proposed rule is also consistent with payment 
rules related to domiciliaries, at Sec.  17.198, but provides greater 
clarity. Finally, we would add a statement to Sec.  51.42(a)(1)(i) to 
clarify that nursing home applicants and residents and enrolled adult 
day health care participants do not need to complete the financial 
disclosure section of VA Forms 10-10EZ and 10-10EZR under certain 
specified circumstances, but domiciliary applicants and residents must 
do so, and adult day health care applicants may be required to provide 
financial information to enroll with VA.
    In paragraph (b)(1), we would state that payments will not be made 
until the home is recognized, which is consistent with the current 
regulations, and that each veteran resident is verified as eligible for 
the program, which is not stated in the current regulations, but has 
been VA's consistent practice, as VA may only pay for care provided to 
veterans who are eligible for the program.
    In paragraph (b)(2), we would clarify that VA will make payments 
for care in beds certified or precertified under Sec.  51.30(c) 
retroactive to the date of precertification of the beds and to the date 
of the completion of the survey if the Director certifies the beds as a 
result of that survey. The current regulations in Sec. Sec.  51.43(d) 
and 52.40(a)(4) specify that VA will pay retroactive to the date of the 
completion of the recognition survey, but do not address 
precertification and certification of State home beds provided for in 
proposed Sec.  51.30(c).
    Proposed paragraph (b)(3) explains when VA would begin making 
payments or make retroactive payments based on the State home's 
submissions of forms in accordance with the proposed rule. VA proposes 
to expand the current deadline to receive paperwork and begin per diem 
payments from 10 days to 12 days.

51.43 Drugs and Medicines for Certain Veterans

    Proposed Sec.  51.43(a) is substantively identical to current Sec.  
51.42(a); the only changes made were technical changes to conform to 
the proposed reorganization.
    Proposed Sec.  51.43(b) would reference the other authority for VA 
to provide drugs and medicines to veterans in a State home: 38 U.S.C. 
1712(d), as implemented by Sec.  17.96. Consistent with current Sec.  
51.41(c), this authority would be subject to the limitation in proposed 
Sec.  51.41.
    Proposed Sec.  51.43(c) is based on current Sec.  51.42(b). We 
propose to extend its application, however, to drugs and medicines 
furnished under 38 U.S.C. 1712(d), as implemented by Sec.  17.96. 
Requiring that VA furnish a drug or medicine only if the drug or 
medicine is included on VA's National Formulary unless VA determines a 
non-Formulary drug or medicine is medically necessary should result in 
significant savings because, insofar as possible, the VA National 
Formulary consists of generic medications that often cost much less 
than brand medications. These are the same medications used for VA 
nursing home residents.
    Proposed Sec.  51.43(d) is substantively identical to current Sec.  
51.43(f). Most of current Sec.  51.43 would be deleted and 
reincorporated into proposed Sec.  51.40, but paragraph (f) deals 
specifically with payments for drugs and medicines, and therefore would 
be moved to proposed Sec.  51.43. For consistency and to avoid 
confusion, we propose to require that States also submit a completed VA 
Form 10-0460 when requesting drugs for veterans eligible under Sec.  
17.96.

51.50-51.52 Eligibility

    Proposed Sec. Sec.  51.50, 51.51, and 51.52 would set forth the 
eligibility criteria that a veteran must meet in order for that 
veteran's care to serve as a basis for a per diem payment under each of 
the three programs. The minimum periods of active duty service required 
in 38 U.S.C. 5303 and 5303A apply to all three programs of care; 
therefore proposed Sec. Sec.  51.50, 51.51, and 51.52 would each state 
the requirement. The minimum service requirement is in the current 
adult day health care regulations at Sec.  51.52, but was inadvertently 
omitted from the nursing home eligibility regulations in current Sec.  
51.50. Nevertheless, VA has enforced this provision, as required by 
law, and therefore this proposed rule does not impose a new limitation 
on eligibility. In addition, in these sections we adopt the 
interpretation of 38 U.S.C. 101(2) regarding the character of discharge 
required for the provision of VA benefits to veterans that is set forth 
in 38 CFR 3.12. The interpretation of 38 U.S.C. 101(2) regarding the 
character of discharge is adopted in order to be consistent with the 
interpretation adopted for purposes of other VA benefit programs.
    Section 51.50 (nursing home care) is virtually identical to current 
Sec.  51.50, except for the addition of the requirement regarding the 
character of the veteran's discharge and certain other minor technical 
changes. We propose to add veterans who were awarded the Purple Heart 
or the medal of honor to the eligibility category in Sec.  51.50(b) 
because these veterans are now eligible

[[Page 34801]]

by statute. See 38 U.S.C. 1705(a)(3), 1710(a)(2)(D). We propose to 
remove the provision regarding eligibility for veterans of the Mexican 
border period and World War I, because there are no living veterans of 
these eras. We also propose to add a note to Sec.  51.50 to clarify 
that enrollment and eligibility to enroll in the VA health care system 
are not required for a veteran to be an ``eligible veteran'' for 
purposes of per diem payments. Finally, we propose to add veterans 
seeking care ``for any illness associated with service in combat in a 
war after the Gulf War or during a period of hostility after November 
11, 1998, as provided and limited in 38 U.S.C. 1710(e)'' because these 
veterans are now eligible by statute. See 38 U.S.C. 1710(e)(1)(D), 
(e)(2)-(3).
    Current Sec.  17.194 provides that VA pays per diem for domiciliary 
care for veterans who are eligible for domiciliary care in a VA 
domiciliary. This is consistent with the statutory requirement in 38 
U.S.C. 1741(a). However, we believe that it would be useful to the 
States and VA personnel for the regulation to set forth which veterans 
are eligible for domiciliary care in VA facilities. Eligibility for VA 
domiciliary care is set forth in Sec. Sec.  17.46(b) and 17.47(b)(2). 
Proposed Sec.  51.51 would thus describe the veterans who meet the 
requirements set forth in Sec. Sec.  17.46(b) and 17.47(b)(2) and state 
that they are ``eligible veterans'' for the purpose of payment of per 
diem for domiciliary care in a State home.
    Section 51.52 would set forth the criteria for determining whether 
a veteran's care is eligible for per diem for adult day health care. 
Based on a statutory change to 38 U.S.C. 1720(f)(1)(A), a veteran is 
now eligible for adult day health care if the veteran is enrolled in 
the VA health care system and otherwise would require nursing home 
care. Accordingly, Sec.  51.52 would reflect the new requirement.
    In addition, we propose to include in paragraph (d) criteria that 
reflect the level of care required by a veteran who would benefit from 
adult day health care. These criteria are derived from current Sec.  
52.80, but have been modified (made less stringent) to encompass an 
alternative model in addition to the medical model required by current 
Sec.  52.80. For example, the requirements in proposed paragraph (c) 
are identical to the requirements in current Sec.  52.80, except that 
we would add criteria to address individuals who live alone in the 
community or who are determined by a VA licensed medical practitioner 
to need adult day health care services. These additional criteria 
should broaden the potential adult day health care population to 
include others who could benefit from such care. In the regulation 
text, the medical model would be referred to as an adult day health 
care program that offers medical supervision. We are attempting to 
encourage States to provide adult day health care for our Nation's 
veterans. For example, we would eliminate the requirement that the 
veteran be dependent in three or more instrumental activities of daily 
living (such as using a telephone, cooking, shopping, etc.), and 
instead require that the veteran be dependent in three activities of 
daily living (such as ambulation, eating, bathing etc.). This decreased 
dependency requirement reflects our desire to permit State homes to 
provide an alternative to the medical model of adult day health care 
and to increase the number of veterans who could qualify for this less-
institutionalized form of care. This rationale explains the other 
changes from the current requirements, such as the elimination of the 
requirements of recent discharge from a nursing home or hospital and of 
significant cognitive impairment characterized by multiple behavior 
problems.
    Proposed Sec.  51.52(d) would allow VA to pay for adult day health 
care based on less severe disabilities than those for which veterans 
currently may be eligible. This change would expand the cohort of 
eligible veterans and assist in cultivating a broader spectrum of adult 
day health care programs, which would be consistent with the rest of 
this rulemaking.

51.58 Standards Applicable for Payment of Per Diem

    Proposed Sec.  51.58 is based on current Sec. Sec.  51.60 and 
52.60, without substantive change.

51.59 Authority To Continue Payment of Per Diem When Veterans Are 
Relocated Due to Emergency

    Proposed Sec.  51.59 is substantively identical to current Sec.  
51.59, which was promulgated on September 8, 2011, after having been 
published for public comment. See 76 FR 55570. A few minor, technical 
changes are included that would conform to this rewritten regulatory 
framework.

Subpart D--Standards Applicable to the Payment of Per Diem for Nursing 
Home Care

    Subpart D would set forth the standards applicable to the payment 
of per diem for nursing home care. VA proposes to change the title of 
this subpart from the current title of ``Standards'' to ensure clarity 
and aid readers in distinguishing between the new standards being set 
forth for domiciliary and adult day health care. These standards are 
currently set forth at Sec. Sec.  51.70-51.210, and would not be 
changed by this notice of proposed rulemaking, except as noted below.

51.140 Dietary Services

    Current Sec.  51.140(d)(4) requires a State home to offer 
substitutes of similar nutritive value to residents ``who refuse food 
served.'' We propose to delete ``who refuse food served.'' We do not 
believe that residents should have to refuse food in order to be 
offered alternative choices. Residents should always have more than one 
option at meal time.

51.210 Administration

    We would amend the current rule concerning administration of 
nursing homes, which we also propose to make applicable in whole to 
domiciliaries and in part to adult day health care programs. The 
amendment would require a State home to disclose to VA whenever there 
is a change in the State home's director of nursing services, or any 
other individual who is in charge of nursing services. Such changes may 
have significant ramifications for a State home, and may also affect 
VA's coordination of VA care with the care provided by the State home. 
Therefore, VA needs to be aware of the change. We note that most adult 
day health care programs do not offer nursing services; however, this 
paragraph would apply to those that do. Thus, the proposed change would 
require those adult day health care programs that have a person in 
charge of nursing services to notify VA when such person changes.
    VA proposes to add a new paragraph (h)(3) to clarify procedures for 
State homes to assist veterans who need health care that State homes 
are not required to provide under part 51. This provision would state 
that State homes may assist the veteran with seeking care from other 
sources, including VA. It would also state that if VA is contacted, VA 
would make a determination about the best way to provide the needed 
services and would notify the Veteran, or the authorized 
representative, of that decision. This is consistent with the manner in 
which VA currently handles these situations, and ensures that veterans 
receive all needed health care.

[[Page 34802]]

Subpart E--Standards Applicable to the Payment of Per Diem for 
Domiciliary Care and Subpart F--Standards Applicable to Adult Day 
Health Care Programs of Care

    Subpart E would provide the standards for domiciliary care. As we 
have noted throughout this notice, these standards would supersede all 
existing regulations, directives, handbooks, or other statements of 
policy to the extent that some might be read to conflict with these 
proposed regulations. Subpart F would be based on current part 52, 
subpart D (current Sec. Sec.  52.60 et seq.). Several sections in 
current part 52, subpart D, were intended to be (or are) identical to 
sections in current part 51, subpart D. Rather than restate identical 
requirements, we would simply refer the reader to the current part 51 
section. We believe that this would simplify the process and help all 
parties concerned--residents, their families, State staff, and VA 
surveyors--understand where identical requirements are intended. 
However, there may be a few examples where we have restated the 
requirements rather than cross-reference them--this was done for ease 
of use.
    We would do the same when identical standards apply to domiciliary 
care in subpart E, for which we do not currently have detailed 
regulatory standards.
    Finally, we would remove several sections from subpart D of part 
52, without proposing parallel sections in part 51. First, we propose 
to remove Sec.  52.61without establishing a similar provision in 
subpart F. Current Sec.  52.61, ``General requirements for adult day 
health care program,'' describes a program requiring medical 
supervision, which is cost prohibitive for many States. Thus, there are 
currently only two adult day health care programs in the nation. We are 
restructuring program guidelines to provide States an opportunity to 
establish a range of adult day health care programs that reflect the 
needs of the local veteran population. Many States have expressed an 
interest in establishing adult day health care programs under these 
proposed new guidelines. More adult day health care programs would help 
VA support the provision of non-institutional care to veterans who 
might otherwise be forced into a nursing home in order to receive 
adequate care. Our goal is to increase participation in these non-
institutional programs.

51.300 Resident Rights and Behavior; State Home Practices; Quality of 
Life

    Proposed Sec.  51.300 would state that States must protect and 
promote the rights and quality of life of participants in domiciliary 
programs of care, as they do for residents in State nursing homes. We 
would thus require domiciliary programs of care to comply with Sec.  
51.70, 51.80, 51.90, and 51.100.

51.310 Resident Assessment

    The proposed rule is based on current Sec.  51.110. However, 
different specific requirements would apply in paragraphs (b) through 
(d) because under Sec.  51.110(b)(1)(i), which would not be revised by 
this rulemaking, the assessment tool for nursing homes is a nationally 
published tool, the Resident Assessment Instrument/Minimum Data Set. No 
such tool exists for domiciliaries or adult day health care programs. 
The requirements that would apply under the proposed rule are currently 
used by VA in assessments of State home domiciliary and adult day 
health care programs of care. We welcome comments on these provisions, 
but expect that they will be familiar to the affected State homes.

51.320 Quality of Care

    Proposed Sec.  51.320 is based on current Sec.  51.120, which 
describes quality of care standards for State home nursing home 
residents; however, we would tailor the proposed regulation to the 
needs of the domiciliary care population, which is generally capable of 
a greater level of self-care than those in nursing homes. For this 
reason, the examples of ``sentinel events'' in paragraph (a)(2) are 
slightly different; however, the term is intended, and defined, to have 
the same meaning throughout part 51.
    Paragraphs (d) through (f), (h) and (k) of current Sec.  51.120 
would not be included in the proposed rule because they pertain to 
medical issues that would not be presented by domiciliary residents. In 
proposed Sec.  51.320(f), we would not include the references to 
``[p]arenteral and enteral fluids,'' which is contained in current 
Sec.  51.120(l)(2), ``[t]racheostomy care,'' which is contained in 
current Sec.  51.120(l)(4), or ``[t]racheal suctioning,'' which is 
contained in 51.120(l)(5), because these services are not provided by 
domiciliaries.

51.330 Nursing Care

    Proposed Sec.  51.330 would describe the nursing care required in 
domiciliaries. What would be required would be similar to what is 
required in nursing homes, except that we would not require the same 
level of skilled nursing supervision, based on the lower level of care 
required by residents of domiciliaries. To be admitted, domiciliary 
residents must retain higher functional capabilities than a nursing 
home resident, and therefore domiciliary residents require less skilled 
nursing care. Due to these key differences, we cannot simply adopt the 
standards applicable to nursing homes; therefore, we would modify them 
to meet the generally accepted needs of domiciliary residents. These 
standards are similar to the expectations currently placed on State 
home domiciliaries. We welcome comments on these provisions, but expect 
that they will not present a new burden to the affected State homes.

51.340 Physician and Other Licensed Medical Practitioner Services

    We propose to establish that State homes must provide the necessary 
primary care for their residents. This is consistent with VA General 
Counsel Precedent opinion 1-2014 which is on the web at: http://www.va.gov/OGC/docs/2014/VAOPGCPREC1-2014.pdf. We also propose that 
when a resident needs care that is other than what the State home is 
required to provide under this subpart, the State home is responsible 
for assisting the resident in obtaining that care. This would allow 
State homes to refer veterans to VA and other outside providers for 
care that the State home is not required to provide. Under the proposed 
rule, we would require that a physician must ``personally approve[ ] in 
writing a recommendation that an individual be admitted to a 
domiciliary.'' We would also require that each resident ``must remain 
at all times under the care of a licensed medical practitioner assigned 
by the State home.'' This accommodates those homes that may utilize, in 
addition to primary care physicians, other practitioners who are 
licensed to practice medicine. We clearly define by title those 
professions to be considered licensed medical practitioners in proposed 
Sec.  51.2. By requiring State homes to provide physician services as 
set forth in the proposed regulation, it would continue VA policy of 
not providing physician services for Veterans in State home 
domiciliaries because the State home has a duty to provide these 
services. See 38 CFR 17.30(b), 17.38(c)(5).
    Proposed paragraphs (a) and (b) address the appropriate use and 
supervision of non-physician licensed medical practitioners. Under 
paragraph (a), we would require that ``[a]ny licensed medical 
practitioner who is not a physician may provide medical care to a 
resident within the practitioner's scope of practice without physician 
supervision when permitted by state law.'' This would clarify that 
homes must ensure that residents receive appropriate medical 
supervision at all

[[Page 34803]]

times. Under proposed paragraph (b), when the licensed medical 
practitioner assigned to a particular resident is unavailable, we would 
require that the home ensure that another licensed medical practitioner 
be available to provide care to that resident. This would assist VA in 
providing a resident-centered approach to domiciliary care. It would 
also provide consistency between the level of care provided to veterans 
in State homes and in VA settings, in which we utilize supervised 
licensed medical practitioners.
    Proposed paragraph (c) would define the scope of care expected to 
be provided by primary care physicians or other licensed medical 
practitioners to residents during visits. We would specify that the 
resident's total program of care be reviewed, to include medications 
and treatment, and that progress notes documenting each visit must be 
in writing, signed, and dated. We would also require that all orders be 
signed and dated.
    Proposed paragraph (d) would mandate the frequency of primary care 
physician or other licensed medical practitioner visits. We would 
specify that the resident must be seen by the primary care physician or 
other licensed medical practitioner at least once every 30 days for the 
first 90 days after admission, and at least once a calendar year 
thereafter, or more frequently based on the condition of the resident. 
We believe this requirement would be sufficient to meet the needs of 
the resident population in these homes. It strikes an appropriate 
balance between providing needed medical care and the lower need for 
ongoing medical supervision of residents in domiciliaries.
    Proposed paragraph (e) would mandate that the domiciliary provide 
or arrange for the provision of physician or other licensed medical 
practitioner services 24 hours a day, 7 days a week, in case of an 
emergency.

51.350, 51.390 Incorporation of Standards to State Home Domiciliaries

    Proposed Sec.  51.350 would apply VA's State nursing home standards 
for dietary, dental, pharmacy services, infection control, and the 
physical environment to State home domiciliaries. Proposed Sec.  51.390 
would apply VA's State nursing home standards for administration to 
State home domiciliaries.

51.400 Participant Rights

    Proposed Sec.  51.400 would state that States must protect and 
promote the rights of participants in adult day health care programs of 
care, as they do for residents in State nursing homes. We would thus 
require adult day health care programs of care to comply with Sec.  
51.70 except for Sec.  51.70(m) regarding the right of married 
residents to share a room when both live in the State home.

51.405 Participant and Family Caregiver Responsibilities

    Section 51.405 would be based on current Sec.  52.71, with minor 
technical and stylistic revision. Additionally, we would revise the 
introductory paragraph to permit the adult day health care program to 
provide a copy of the statement of participant and family caregiver 
responsibilities ``at or before the time of the intake screening.'' The 
current regulation requires that the copy be provided at the intake 
screening, which is too restrictive.

51.410 Transfer and Discharge

    Section 51.410 is based on current Sec. Sec.  52.80(b) and 
52.210(p), with the substantive changes noted below.
    We would not include the requirement in current Sec.  52.80(b)(2) 
that ``[a]ll participants' preparedness for discharge from adult day 
health care must be a part of a comprehensive care plan.'' We do not 
maintain comprehensive care plans for VA-operated adult day health care 
programs. The State home must record information about a participants' 
discharge from an adult day health care program in the clinical record 
as described in Sec.  51.410(c) and the participant must receive 
information about the discharge as described in proposed Sec.  
51.410(e).
    Proposed Sec.  51.410(a) also would not include a provision 
parallel to current Sec.  52.80(b)(3), concerning the documentation by 
a primary physician that is required for a transfer and discharge. We 
would not include this requirement because the veteran's primary 
physician would generally not be on staff with the adult day health 
care program, and therefore would generally not have privileges to 
document notes in the program's clinical records.
    Finally, we would incorporate current Sec.  52.210(p) into this 
rule at proposed Sec.  51.410(g) because it also concerns transfers.

51.411 Program Practices

    Proposed Sec.  51.411 would include those parts of current Sec.  
52.80 that are not included elsewhere. We would not include a provision 
parallel to current Sec.  52.80(f) because we do not require VA-
operated adult day health care programs to have caregiver support 
programs. The purpose of adult day health care is to provide most or 
all of the services generally performed by caregivers.

51.415 Restraints, Abuse, and Staff Treatment of Participants

    Proposed Sec.  51.415 would apply to State home adult day health 
care programs the same requirements regarding the use of restraints and 
staff treatment of participants as apply to State home nursing homes.

51.420 Quality of Life

    Section 51.420 would be based on current Sec.  52.100, with minor 
revisions in paragraph (g). Current Sec.  52.100(g)(3) states that the 
State home must provide private storage space for each participant 
sufficient for a change of clothes. We propose to require that each 
private storage space be capable of being secured with a lock for 
protection of the contents. Requiring a lock would ensure that whatever 
the participant stores in their private space (such as clothes, a 
wallet, or a purse) can be safely stored. Current Sec.  52.100(g)(5) 
requires State homes to provide a clean bed for acute illness. We 
propose in Sec.  52.420(g)(5) to require that the State home provide 
either a clean bed or a reclining chair.

51.425 Physician Orders and Participant Medical Assessment

    Section 51.425 would restate current Sec.  52.110, with a number of 
changes concerning physician orders and participant assessments. This 
section, among other things, is designed to ensure that appropriate 
plans of care are prepared and updated based on assessments.
    Proposed paragraph (a) would restate the admission requirements in 
current Sec.  52.110(b), with some changes. We would continue to 
require a medical history and physical examination of the participant, 
but would additionally require documentation of tuberculosis (TB) 
screening. Presently, VA requires the examination within a reasonable 
time of the resident's admission, not to exceed 72 hours following 
admission. We propose to require that the examination occur no earlier 
than 30 days before admission. The proposed changes to this section 
would ensure that State homes receive current information about 
veterans' conditions for the purposes of making determinations 
regarding admission, and would ensure that participants will not 
endanger themselves or others because of TB, which could easily spread 
in an adult day health care setting.
    Proposed paragraph (b) would revise current Sec.  52.110(c), with a 
proposed change to the method for conducting

[[Page 34804]]

assessments of participants. The current regulation requires that a 
comprehensive plan of care be developed from comprehensive assessments 
based on the Minimum Data Set for Home Care (MDS-HC) Instrument Version 
2.0, August 2, 2000. The MDS-HC is not used in adult day health care 
programs because it requires more of an assessment than is necessary 
for participants in such programs. We propose to base assessments 
conducted under proposed paragraph (b) on the criteria stated in 
proposed paragraph (d), described below.
    In proposed paragraph (c)(2), we would continue to require that 
each person who completes a portion of the assessment sign and certify 
the accuracy of that portion of the assessment in order to ensure 
accuracy and accountability for the assessment.
    In proposed paragraph (d), we would require the State home to 
ensure that each participant has a care plan based on criteria VA 
developed to describe the issues that need to be addressed for 
participation in an adult day health care program. The criteria would 
be set forth under paragraph (d), and would ensure that participants 
receive appropriate care. Current Sec.  52.110(e)(1) requires the State 
home to ``develop'' such a plan. We are changing the language to 
require that the participant have a plan rather than that the State 
home develop the plan because, in some cases, the plan may have been 
created before the participant entered into the State home's program of 
adult day health care. The word ``develop'' in the current rule can be 
misread to require the State home to create a new plan, even when VA 
has already created one. Under the proposed paragraph (d)(1), the plan 
of care must include measurable objectives and timetables for meeting 
the needs identified in the assessment. With the simplified assessments 
this can and should be readily accomplished without the need for 
interdisciplinary teams that are required by the current regulations.
    Proposed paragraph (e) is based on current 52.110(f), with no 
substantial changes.

51.430 Quality of Care

    Section 51.430 would restate current Sec.  52.120, with some 
significant changes. First, we would clarify in proposed Sec.  
51.430(a)(2) that a home must report only sentinel events that happen 
``while the participant is under the care of the State home, including 
while in State home-provided transportation.'' It is not necessary for 
a program to report a sentinel event that did not occur while the 
veteran was under the care of the State home. Thus, to the extent that 
a sentinel event--such as an attempted suicide or misuse of prescribed 
medication--may occur in the evening, the adult day health care program 
would not be required to report that event to VA. In proposed Sec.  
51.430(c), State homes would continue to be required to make counseling 
and related psychosocial services available to improve the mental and 
psychological functioning of adult day health care participants with 
psychosocial needs, as individuals in such programs often have, or are 
at risk for developing, psychosocial problems. We would update the 
phrasing of this requirement to make clear the types of services that 
State homes must provide. Other paragraphs in Sec.  51.430 of the 
proposed rule are identical to current Sec.  51.210, and would 
reference that section.
    Current Sec.  52.120(c) through (f) and Sec.  52.120(k) set forth 
requirements concerning vision and hearing, pressure ulcers, urinary 
and fecal incontinence, range of motion, accidents, nutrition, 
hydration, unnecessary drugs, and antipsychotic drugs in adult day 
health care programs of care. We propose to remove these provisions 
because they are not pertinent to care at a State home providing adult 
day health care.

51.435 Nursing Services

    Current Sec.  52.130 would become Sec.  51.435, and the last 
sentence of paragraph (a) of the current rule would be removed. That 
sentence recommends that duty nurses be geriatric nurse practitioners 
or clinical nurse specialists. We propose to remove this recommendation 
because this level of specialty is not necessary for an adult day 
health care program. Because there is no collection of information 
associated with this regulation, we propose to remove the OMB control 
number that appears in current Sec.  52.130 from proposed Sec.  51.435.

51.440 Dietary Services

    Proposed Sec.  51.440 would apply to State home adult day health 
care programs the State nursing home standards for dietary services.

51.445 Physician Services

    Proposed Sec.  51.445 would be based on current Sec.  52.150, which 
sets standards for physician services in adult day health care. The 
first two sentences of the current rule require that adult day health 
care participants ``obtain a written physician order for enrollment'' 
and ``remain under the care of a physician.'' This would be required in 
the proposed rule, irrespective of the level of medical supervision 
provided in the State home adult day health care program. The 
requirement that participants remain under the care of a physician 
would not impose a staffing burden on State homes because the veterans 
would be enrolled in the VA health care system, and therefore many 
would be under the care of a VA physician. A physician must approve a 
veteran's participation in an adult day health care program in the 
written order for enrollment and, moreover, must indicate whether there 
are medical needs that would require placement in an adult day health 
care program that offers medical supervision.
    However, the level of involvement of the State home adult day 
health care program in the participant's medical care depends on 
whether the program of care offers medical supervision. Therefore, we 
propose changes to paragraphs (a), (b) and (c) of the current rule text 
to indicate that they only apply if the program of care offers 
``medical supervision.'' If medical supervision is offered, physician 
supervision and review must be appropriate to the level of care 
required by the participant.
    We propose to revise the language of current Sec.  52.150(d) to 
clarify that the program management need only ensure that participants 
are able to obtain emergency care when necessary. This requirement 
could be met if the program management called 911 on behalf of the 
participant. States may provide emergency care if they desire, but they 
would not be required to do so.

51.450 Specialized Rehabilitative Services

    Current Sec.  52.160, which sets standards for specialized 
rehabilitative services in adult day health care, would become proposed 
Sec.  51.450. We note that unlike current Sec.  52.150 and proposed 
Sec.  51.445, no adjustments to the current language are required. This 
rule would apply only where the participant's individualized care plan 
requires the provision of specialized rehabilitative services. If a 
State home does not have the capability to provide specialized 
rehabilitative services, it would not accept a veteran with such needs 
for placement in its adult day health care program. Because there is no 
collection of information associated with this regulation, we propose 
to remove the OMB control number that appears in current Sec.  52.160 
from proposed Sec.  51.450.

51.455 Dental Services

    Current Sec.  52.170, which sets standards for dental services in 
adult day health care, would become proposed Sec.  51.455. We propose 
minor changes to the current language so that

[[Page 34805]]

this regulation would apply only to State homes that offer an adult day 
health care program with medical supervision.

51.460 Administration of Drugs

    Current Sec.  52.180, which sets standards for administration of 
drugs in adult day health care, would become proposed Sec.  51.460. We 
propose minor changes to the current language so that this regulation 
would apply only to State homes that offer medical supervision in their 
adult day health care programs.

51.465 Infection Control

    Proposed Sec.  51.465 would apply the State nursing home standards 
for infection control to State home adult day health care programs.

51.470 Physical Environment

    Proposed Sec.  51.470 is based on current Sec.  52.200, with the 
following revisions.
    First, current Sec.  52.200 requires State homes to meet certain 
standards established in outdated editions of the National Fire 
Protection Association (NFPA) code. However, current Sec.  51.200 cites 
more recent editions of the standards. We propose to merely cross-
reference the Sec.  51.200(a) requirement in Sec.  51.470, to clarify 
that the same fire-safety standards apply to adult day health care 
programs, except that those provisions that only apply to nursing homes 
would not apply. In this manner, we would ensure that adult day health 
care programs and nursing homes are required to comply with the same 
edition of the appropriate NFPA publication. We note that most State 
homes must abide by the current versions of these standards in order to 
obtain appropriate permits and licenses from authorities other than VA.
    In addition, current 38 CFR 52.200(b)(4)(v) requires a State home 
to have a quiet room with at least one bed, which functions to isolate 
participants who become ill or disruptive, or who require rest, 
privacy, or observation. We propose to change this requirement to 
permit the home to have either a bed or a reclining chair. We believe 
that this would satisfy the specified needs. Also, we would indicate 
that the purpose of the quiet room is for separation from other 
participants rather than isolation from other participants. This 
accomplishes the intended purpose without the connotation of restraint 
which often would not apply.

51.475 Administration

    We would adopt all of the requirements of current Sec.  51.210 
except for those that do not apply to adult day health care programs 
that do not provide medical supervision. We would update the authority 
citation to reflect VA's current adult day health care authorities.

51.480 Transportation

    Current 38 CFR Sec.  52.220 concerns the transportation of 
participants. Paragraph (b) specifies that the program management must 
have a transportation policy that includes routine and emergency 
procedures. The current regulation further states that a copy of the 
procedures must be located in all program vehicles. We propose to 
delete the provisions regarding the placement of the procedures in 
program vehicles. Instead, we propose to add language requiring that 
all such transportation (including that provided under contract) must 
be in compliance with the procedures. The goal is to achieve 
compliance, and we do not believe that it is necessary to impose 
requirements regarding the methods of obtaining compliance.
    Current 38 CFR 52.220(c) requires that all vehicles transporting 
participants be equipped with a device for two-way communication. We 
propose revising this to clarify that the vehicle itself does not need 
to be equipped with the device. However, we propose to require that the 
driver have access to such a device. We also propose to revise this 
requirement to clarify that it only applies to State home-provided 
transportation, not transportation arranged by the veteran.
    Current Sec.  52.220(e) specifies that the time to transport a 
participant to or from the home must not be more than 60 minutes except 
under unusual conditions, e.g., bad weather. We propose to delete this 
provision. Instead, we propose to require that State homes ensure that 
the care needs of each participant are addressed during travel. This 
requirement more directly addresses the particular needs of each 
participant.

Other Technical Changes

    We would make other technical, non-substantive changes to 
provisions amended by or established by this rulemaking. Notably, we 
describe veterans as being ``admitted'' (or a derivative) when 
discussing the adult day health care program, where the current part 52 
often uses the term ``enrolled'' (or a derivative). This is intended to 
make sure that a reader does not mistake the use of the term 
``enrolled'' to mean enrollment in the VA health care system when it is 
intended to refer to participation in a State home program of care.

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 includes provisions constituting collections of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521) that require approval by the Office of Management and Budget 
(OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of 
this rulemaking to OMB for review.
    OMB assigns control numbers to collections of information it 
approves. 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. Proposed Sec.  17.74(q) contains a 
collection of information under the Paperwork Reduction Act (44 U.S.C. 
3501-3521). Proposed Sec. Sec.  51.20, 51.30, 51.31, 51.42, 51.210, 
51.300, 51.310, 51.320, 51.350, and 51.390 contain new collections of 
information under the Paperwork Reduction Act of 1995. State home 
domiciliaries are already submitting this information voluntarily as 
part of their participation in VA's State home program, because this is 
necessary in order for VA to provide payment to them for the care that 
they provide. There is, therefore, little or no additional burden to 
State home domiciliary programs due to this rulemaking. Because these 
requirements are virtually identical to those imposed upon the other 
two programs of care and approved under control number 2900-0160, VA 
seeks to amend that approved collection of information to include State 
home domiciliaries, as described in further detail below. Additionally, 
VA proposes minor modifications to collections of information from 
State home nursing homes and adult day health care programs that are 
already approved under control number 2900-0160 and set forth at 
Sec. Sec.  51.210, 51.415, 51.425, 51.430, and 51.460 of the proposed 
regulations.
    If OMB does not approve the collections of information as 
requested, VA will immediately remove the provisions containing a 
collection of information or take such other action as is directed by 
OMB.

[[Page 34806]]

    Comments on the collections of information contained in this 
proposed rule should be submitted to the Office of Management and 
Budget, Attention: Desk Officer for the Department of Veterans Affairs, 
Office of Information and Regulatory Affairs, Washington, DC 20503, 
with copies sent by mail or hand delivery to the Director, Regulation 
Policy and Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue NW., Room 1068, Washington, DC 20420; fax to (202) 273-
9026; or through www.Regulations.gov. Comments should indicate that 
they are submitted in response to ``RIN 2900-AO88 Per Diem Paid to 
States for Care of Eligible Veterans in State Homes.''
    OMB is required to make a decision concerning the collections of 
information contained in this proposed rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the proposed rule.
    VA considers comments by the public on proposed collections of 
information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of VA, 
including whether the information will have practical utility;
     Evaluating the accuracy of VA's estimate of the burden of 
the proposed collections of information, including the validity of the 
methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The proposed amendments to title 38 CFR part 51 contain collections 
of information under the Paperwork Reduction Act of 1995 for which we 
are requesting approval by OMB. These collections of information are 
described immediately following this paragraph, under their respective 
titles.
    Title: Per Diem Paid to States for Care of Eligible Veterans in 
State Homes.
     Summary of collection of information: Section 51.210 would 
require State homes to submit information about the individuals 
responsible for administration of the homes. Most of the collections in 
Sec.  51.210 are currently approved for State home nursing homes and 
adult day health care programs of care, with the exception of a new 
collection in proposed Sec.  51.210(b)(3), which would require State 
homes to submit the name of the director of nursing services. All of 
the collections in proposed Sec.  51.210 would constitute new 
collections for State home domiciliaries.
    Sections 51.20, 51.30, 51.31, 51.42, 51.300, 51.310, 51.320, 
51.350, and 51.390 would require State homes domiciliary programs to 
submit information about veterans receiving domiciliary care. State 
home domiciliaries would be required to furnish an application for 
recognition based on certification; appeal information, application and 
justification for payment; records and reports which program management 
must maintain regarding activities of residents or participants; 
information relating to whether the domiciliary meets standards 
concerning residents' rights and responsibilities prior to admission or 
enrollment, during admission or enrollment, and upon discharge; the 
records and reports which management and health care professionals must 
maintain regarding residents or participants and employees; documents 
pertain to the management of the home; food menu planning; 
pharmaceutical records; and life safety documentation. Without access 
to such information, VA would not be able to determine whether high 
quality care is being provided to veterans.
    The information that VA would collect from State home domiciliaries 
under this proposed rulemaking is already collected from State home 
nursing homes and adult day health care programs under OMB control 
number 2900-0160, pursuant to 38 CFR parts 51 and 52, State Home 
Programs, and on VA forms as follows: State Home Inspection--Staffing 
Profile, VA Form 10-3567, Instructions for State Home Report and 
Statement of Federal Aid Claimed, VA Form 10-5588, State Home Program 
Application for Veteran Care--Medical Certification, VA Form 10-10SH, 
Department of Veterans Affairs Certification Regarding Drug-Free 
Workplace Requirements for Grantees Other Than Individuals, VA Form 10-
0143, Statement of Assurance of Compliance with Section 504 of the 
Rehabilitation Act of 1973, VA Form 10-0143a, Certification Regarding 
Lobbying, VA Form 10-0144; Statement of Assurance of Compliance with 
Equal Opportunity Laws, VA Form 10-0144a, and Request for Prescription 
Drugs from an Eligible Veteran in a State Home, VA Form 10-0460. VA is 
amending these forms in a separate request; that request includes a 
request to include State home domiciliaries as respondents to the 
forms, in addition to other amendments that would apply as to all State 
Home programs of care. VA therefore seeks approval in this proposed 
rule only for the information that would be required of State home 
domiciliaries by proposed part 51 that would not be included on the 
forms listed above.
    VA proposes to modify the collections of information from State 
home adult day health care programs of care as set forth at proposed 
Sec. Sec.  51.415, 51.425, and 51.430. OMB has approved most of the 
collections in these sections under OMB control number 2900-0160. VA 
proposes to modify these collections as follows. In proposed Sec.  
51.425(a), VA would require programs to collect documentation of 
participants' tuberculosis screening, in addition to the current 
requirement that State homes record the participant's medical history 
and document a physical examination. In proposed Sec.  51.425(b), VA 
would change the criteria that programs would use to record each 
participants' assessment from the Minimum Data Set for Home Care to new 
criteria developed by VA. In proposed Sec.  51.430(a), VA would clarify 
that State homes must report sentinel events only when they occur while 
the veteran is under the care of the home; the current regulations 
indicate such reports are necessary regardless of when or where a 
sentinel event occurs.
     Description of the need for information and proposed use 
of information: VA uses this information in order to effectively manage 
the operations and payment of per diem through the State home 
domiciliary program of care. Specifically, the information collected is 
used to determine eligibility of veterans for participation in the 
program; whether State home domiciliary programs meet appropriate 
clinical, safety, and quality standards; and to calculate the amount of 
payments that are due for care provided to veterans on a monthly basis.
     Description of likely respondents: State home domiciliary 
programs that seek payment from VA.
     Estimated number of respondents: 53 per year.
     Estimated frequency of responses: Once per year.
     Estimated average burden per response: 7 minutes.
     Estimated total annual reporting and recordkeeping burden: 
6.2 hours.

[[Page 34807]]

State Home Nursing Homes and Adult Day Health Care Programs

    Although this action contains provisions constituting collections 
of information at 38 CFR 51.20, 51.30, 51.31, 51.42, 51.210, 51.300, 
51.310, 51.320, 51.350, 51.390, 51.400, 51.405, 51.410, 51.415, 51.420, 
51.425, 51.430, 51.445, 51.460, and 51.475, under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or 
proposed revised collections of information are associated with these 
sections. The proposed regulations impose certain paperwork 
requirements on States with State homes receiving per diem for nursing 
home care (at Sec. Sec.  51.20, 51.30, 51.31, 51.42, and 51.210) and 
impose similar paperwork requirements on State homes receiving per diem 
for adult day health care (at Sec. Sec.  51.20, 51.30, 51.31, 51.210, 
51.400, 51.405, 51.410, 51.415, 51.420, 51.425, 51.430, 51.460, and 
51.475). The information collection requirements for Sec. Sec.  51.20, 
51.30, 51.31, 51.42, 51.210, 51.400, 51.405, 51.410, 51.415, 51.420, 
51.425, 51.430, 51.460, and 51.475 are currently approved by OMB 
(except for the proposed minor modifications to Sec. Sec.  51.415, 
51.425, and 51.430 described above) and have been assigned OMB control 
number 2900-0160. This rulemaking simply reorganizes the material to 
which this control number has already been applied in the current U.S. 
Code of Federal Regulations. As stated above, VA is revising the forms 
used for these approved collections from State Home nursing home and 
adult day health care programs under OMB control number 2900-0160, and 
will seek approval for the proposed revisions in a separate request for 
OMB review. Additionally, Sec.  51.42 in effect imposes paperwork 
requirements on certain Veterans seeking admission to a State home 
program of care. The information collection requirement pertaining to 
Veterans under these sections is currently approved by OMB and has been 
assigned OMB control number 2900-0091.

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 affect veterans, State homes, 
and pharmacies. The State homes that are subject to this rulemaking are 
State government entities under the control of State governments. All 
State homes are owned, operated and managed by State governments except 
for a small number that are operated by entities under contract with 
State governments. These contractors are not small entities. Also, this 
rulemaking would not have a consequential effect on any pharmacies that 
could be considered small entities. 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 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 Web site at 
http://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
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 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; and 64.026, Veterans State Adult Day Health 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, Chief of Staff, approved this document on January 15, 2015, for 
publication.

List of Subjects in 38 CFR Parts 17, 51 and 52

    Administrative practice and procedure, Claims, Day care, Dental 
health, Government contracts, Grant programs--health, Grant programs--
veterans, Health care, Health facilities, Health professions, Health 
records, Mental health programs, Nursing homes, Reporting and 
recordkeeping requirements, Travel and transportation expenses, 
Veterans.


[[Page 34808]]


    Approved: June 2, 2015.
William F. Russo,
Acting Director, Office of Regulation Policy & Management.

    For the reasons stated in the preamble and under the authority of 
of 38 U.S.C. 1741-1743 and 38 U.S.C. 1745, the Department of Veterans 
Affairs proposes to amend 38 CFR parts 17, 51, and 52 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.


Sec. Sec.  17.190-17.200  [Removed].

0
2. Amend part 17 by removing Sec. Sec.  17.190-17.200.

PART 51--PER DIEM FOR NURSING HOME, DOMICILIARY, OR ADULT DAY 
HEALTH CARE OF VETERANS IN STATE HOMES

0
3. The authority citation for part 51 is amended to read as follows:

    Authority: 38 U.S.C. 101, 501, 1710, 1720, 1741-1743, 1745, and 
as stated in specific sections.

0
4. Subparts A, B, and C of part 51 are revised to read as follows:
Subpart A--General
Sec.
51.1 Purpose and Scope of part 51
51.2 Definitions
Subpart B--Obtaining Recognition and Certification for Per Diem 
Payments
51.20 Recognition of a State home
51.30 Certification
51.31 Surveys for recognition and/or certification
51.32 Terminating recognition
Subpart C--Eligibility, Rates, and Payments
51.40 Basic per diem rates
51.42 Payment procedures
51.43 Drugs and medicines for certain veterans
51.50 Eligible veterans-nursing home care
51.51 Eligible veterans-domiciliary care
51.58 Standards applicable for payment of per diem
51.59 Authority to continue payment of per diem when veterans are 
relocated due to emergency

Subpart A--General


Sec.  51.1  Purpose and scope of part 51.

    The purpose of this part is to establish VA's policies, procedures, 
and standards applicable to the payment of per diem to State homes that 
provide nursing home care, domiciliary care, or adult day health care 
to eligible veterans. Subpart B of this part sets forth the procedures 
for recognition and certification of a State home. Subpart C sets forth 
rules governing the rates of, and procedures applicable to, the payment 
of per diem; the provision of drugs and medicines; and which veterans 
on whose behalf VA will pay per diem. Subparts D, E, and F set forth 
standards that must be met by any State home seeking per diem payments 
for nursing home care (subpart D), domiciliary care (subpart E), or 
adult day health care (subpart F).

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

Sec.  51.2  Definitions.

    For the purposes of this part:
    Activities of daily living (ADLs) means the functions or tasks for 
self-care usually performed in the normal course of a day, i.e., 
mobility, bathing, dressing, grooming, toileting, transferring, and 
eating.
    Adult day health care means a therapeutic outpatient care program 
that includes one or more of the following services, based on patient 
care needs: medical services, rehabilitation, therapeutic activities, 
socialization, and nutrition. Services are provided in a congregate 
setting.
    Clinical nurse specialist means a licensed professional nurse with 
a master's degree in nursing and a major in a clinical nursing 
specialty from an academic program accredited by the National League 
for Nursing.
    Director means the Director of the VA medical center of 
jurisdiction, unless the reference is specifically to another type of 
director.
    Domiciliary care means the furnishing of a home to a veteran, 
including the furnishing of shelter, food, and other comforts of home, 
and necessary medical services as defined in this regulation.
    Eligible veteran means a veteran whose care in a State home may 
serve as a basis for per diem payments to the State. The requirements 
that an eligible veteran must meet are set forth in Sec. Sec.  51.50 
(nursing home care), 51.51 (domiciliary care), and 51.52 (adult day 
health care).
    Licensed medical practitioner means a nurse practitioner, 
physician, physician assistant, and primary physician or primary care 
physician.
    Nurse practitioner means a licensed professional nurse who is 
currently licensed to practice in a State; who meets that State's 
requirements governing the qualifications of nurse practitioners; and 
who is currently certified as an adult, family, or gerontological nurse 
practitioner by a nationally recognized body that provides such 
certification for nurse practitioners, such as the American Nurses 
Credentialing Center or the American Academy of Nurse Practitioners.
    Nursing home care means the accommodation of convalescents or other 
persons who are not acutely ill and not in need of hospital care, but 
who require nursing care and related medical services, if such nursing 
care and medical services are prescribed by, or are performed under the 
general direction of, persons duly licensed to provide such care. Such 
term includes services furnished in skilled nursing care facilities, in 
intermediate care facilities, and in combined facilities. It does not 
include domiciliary care.
    Participant means an individual receiving adult day health care.
    Physician means a doctor of medicine or osteopathy legally 
authorized to practice medicine or surgery in the State.
    Physician assistant means a person who meets the applicable State 
requirements for physician assistant, is currently certified by the 
National Commission on Certification of Physician Assistants as a 
physician assistant, and has an individualized written scope of 
practice that determines the authorization to write medical orders, 
prescribe medications and to accomplish other clinical tasks under 
appropriate physician supervision.
    Primary physician or Primary care physician means a designated 
generalist physician responsible for providing, directing and 
coordinating health care that is indicated for the residents or 
participants.
    Program of care means any or all of the three levels of care for 
which VA may pay per diem under this part.
    Resident means an individual receiving nursing home or domiciliary 
care.
    State means each of the several states, the District of Columbia, 
the Virgin Islands, the Commonwealth of Puerto Rico, Guam, the 
Commonwealth of the Northern Mariana Islands, and American Samoa.
    State home means a home recognized and, to the extent required by 
this part, certified pursuant to this part that a State established 
primarily for veterans disabled by age, disease, or otherwise, who by 
reason of such disability are incapable of earning a living. A State 
home must provide at least one program of care (i.e., domiciliary care, 
nursing home care, or adult day health care).
    VA means the U.S. Department of Veterans Affairs.
    Veteran means a veteran under 38 U.S.C. 101.

(Authority: 38 U.S.C. 101, 501, 1741-1743)


[[Page 34809]]



Subpart B--Obtaining Recognition and Certification for Per Diem 
Payments


Sec.  51.20  Recognition of a State home.

    (a) How to apply for recognition. To apply for initial recognition 
of a home for purposes of receiving per diem from VA, a State must 
submit a letter requesting recognition to the Office of Geriatrics and 
Extended Care in VA Central Office, 810 Vermont Avenue NW., Washington, 
DC 20420. The letter must be signed by the State official authorized to 
make the request. The letter will be reviewed by VA, in accordance with 
this section.
    (b) Survey and recommendation by Director. (1) After receipt of a 
letter requesting recognition, VA will survey the home in accordance 
with Sec.  51.31 to determine whether the facility and program of care 
meet the standards in subpart D, E, or F, as applicable. For purposes 
of the recognition process including the survey, references to State 
homes in the standards apply to homes that are being considered by VA 
for recognition as State homes.
    (2) If the Director of the VA Medical Center of jurisdiction 
determines that the applicable standards are met, the Director will 
submit a written recommendation for recognition to the Under Secretary 
for Health.
    (3) If the Director does not recommend recognition, the Director 
will submit a written recommendation against recognition to the Under 
Secretary for Health and will notify in writing the State official who 
signed the letter submitted under paragraph (a) of this section and the 
State official authorized to oversee operations of the home. The 
notification will state the following:
    (i) The specific standard(s) not met; and
    (ii) The State's right to submit a response, including any 
additional evidence, within 30 days after the date of the notification 
to the State.
    (c) Decision by the Under Secretary for Health. After receipt of a 
recommendation from the Director, the Under Secretary for Health will 
award or deny recognition based on all available evidence. The 
applicant will be notified of the decision. Adverse decisions may be 
appealed to the Board of Veterans' Appeals (see 38 CFR part 20).
    (d) Effect of recognition.
    (1) Recognition of a State home means that, at the time of 
recognition, the facility and its program of care meet the applicable 
requirements of this part. The State home must obtain certification 
after recognition in accordance with Sec.  51.30.
    (2) After a State home is recognized, any new annex, new branch, or 
other expansion in the size of a home or any relocation of the home to 
a new facility must be separately recognized. However, changes in the 
use of particular beds between recognized programs of care and 
increases in the number of beds that are not described in the previous 
sentence require certification of the beds, but not recognition, in 
accordance with paragraph (c)(1) of this section.

(Authority: 38 U.S.C. 501, 511, 1742, 1743, 7104, 7105)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.30  Certification.

    (a) General certification requirement. In order to be certified, 
the State home must allow VA to survey the home in accordance with 
Sec.  51.31. A State home must be certified within 450 days after the 
State home is recognized. Certifications expire 600 days after the date 
of their issuance.
    (b) Periodic certifications required. The Director of the VA 
medical center of jurisdiction will certify a State home based on a 
survey conducted at least once every 270-450 days, at VA's discretion, 
and will notify the State official authorized to oversee operations of 
the State home of the decision regarding certification within 20 days 
after the Director's decision.
    (c) Certification of beds based on changes in the program of care--
(1) Switching beds between programs of care or increasing beds in a 
program of care. When a State home that is recognized to provide both 
domiciliary and nursing home care changes the care provided in one or 
more beds, or when a State home increases the number of nursing home or 
domiciliary beds (except increases described in the first sentence of 
Sec.  51.20(d)(2) of this part), VA must survey the home taking the 
proposed changes into account and the Director must certify the beds 
before VA may pay per diem under this part for care provided in those 
beds. However, the Director may precertify, at the request of a State 
home, the increased number of beds or beds that are switched between 
programs of care. Precertification is authorized if the Director 
reasonably expects, based on prior surveys and any other relevant 
information, that the State home will continue to comply with this part 
until such time as the State home is surveyed and certified. 
Precertifications will continue for 360 days or until the Director next 
issues a certification of the State home under Sec.  51.30(b), 
whichever occurs first. VA will pay per diem for the care of eligible 
veterans in the beds provided on and after the date the Director 
precertifies the beds.
    (2) Decreasing beds for a program of care. The State must report 
any decreases in the number of beds that may be used for a particular 
program of care to the Director within 30 days after such decrease, and 
must provide an explanation for the decrease.
    (d) Provisional certification--(1) When issuance is required. After 
a VA survey, the Director must issue a provisional certification for 
the surveyed State home if the Director determines that all of the 
following are true:
    (i) The State home does not meet one or more of the applicable 
standards in this part;
    (ii) None of these deficiencies jeopardize the health or safety of 
any resident or participant;
    (iii) No later than 20 days after receipt by the State home of the 
survey report, the State submitted to the Director a written plan to 
remedy each deficiency in a specified amount of time; and
    (iv) The plan is reasonable and the Director has sent a written 
notice to the appropriate person(s) at the State home informing them 
that the Director agrees to the plan.
    (2) Surveys to continue while under provisional certification. VA 
will continue to survey the State home while it is under a provisional 
certification in accordance with this section and Sec.  51.31. After 
such a survey, the Director will continue the provisional certification 
if the Director determines that the four criteria listed in paragraphs 
(c)(1)(i)-(iv) of this section are true.
    (3) Issuance of additional provisional certification. If the State 
fails to remedy the identified deficiencies within the amount of time 
specified in the written plan described in paragraph (d)(1)(iii) of 
this section, the State must submit, no later than 20 days after the 
expiration of the time specified in the written plan, a new written 
plan to remedy each remaining deficiency in a reasonable time. Upon 
receiving the plan within the 20 day period, the Director may issue 
another provisional certification if all the criteria listed in 
paragraphs (c)(1)(i)-(iv) of this section are true. If not, the 
Director will deny certification.
    (e) Notice and the right to appeal a denial of certification. A 
State home has the right to appeal when the Director determines that a 
State home does not meet the requirements of this part (i.e., denies 
certification). An appeal is not provided to a State for a State home 
that

[[Page 34810]]

receives a provisional certification because, by providing the 
corrective action plan necessary to receive a provisional 
certification, a State demonstrates its acceptance of VA's 
determination that it does not meet the VA standards for which the 
corrective action plan was submitted.
    (1) Notice of decision denying certification. The Director will 
issue in writing a decision denying certification that sets forth the 
specific standard(s) not met. The Director will send a copy of this 
decision to the State official authorized to oversee operations of the 
State home, and notify that official of the State's right to submit a 
written appeal to the Under Secretary for Health as stated in paragraph 
(d)(2). If the State home does not submit a timely written appeal, the 
Director's decision becomes final and VA will not pay per diem for any 
care provided on or after the 31st day after the State's receipt of the 
Director's decision.
    (2) Appeal of denial of certification. The State must submit a 
written appeal no later than 30 days after the date of the notice of 
the denial of certification. The appeal must explain why the denial of 
certification is inaccurate or incomplete and provide any relevant 
information not considered by the Director. Any appeal that does not 
identify a reason for disagreement will be returned to the sender 
without further consideration. If the State home submits a timely 
written appeal, the Director's decision will not take effect and VA 
will continue to pay per diem to the State home pending a decision by 
the Under Secretary for Health.
    (3) Decision on appeal of a denial of certification. The Under 
Secretary for Health will review the matter, including any relevant 
supporting documentation, and issue a written decision that affirms or 
reverses the Director's decision. The State will be notified of the 
decision, which may be appealed to the Board of Veterans' Appeals (see 
38 CFR part 20) if it results in a loss of per diem payments to the 
State. VA will terminate recognition and certification and discontinue 
per diem payments for care provided on and after the date of the Under 
Secretary for Health's decision affirming a denial of certification or 
on a later date that must be specified by the Under Secretary for 
Health.
    (f) Other appeals. Appeals of matters not addressed in this section 
will be governed by 38 CFR part 20.

(Authority: 38 U.S.C. 501, 511, 1741-1743, 7104, 7105).



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-XXXX)


Sec.  51.31  Surveys for recognition and/or certification.

    (a) General. Both before and after a home is recognized and 
certified, VA may survey the home as necessary to determine whether it 
complies with applicable regulations. VA will provide advance notice 
before a recognition survey, but advance notice is not required before 
other surveys. A survey, as necessary, may cover all parts of the home 
or only certain parts, and may include review, audit, and production of 
any records that have a bearing on compliance with the requirements of 
this part (including any reports from state or local entities), as well 
as the completion and submission to VA of all required forms. The 
Director will designate the VA officials and/or contractors to survey 
the home.
    (b) Recognition surveys. VA will not conduct a recognition survey 
unless the following minimum requirements are met:
    (1) For nursing homes and domiciliaries, the home has at least 21 
residents or has a number of residents consisting of at least 50 
percent of the resident capacity of the home;
    (2) For adult day health care programs of care, the program has at 
least 10 participants or has a number of participants consisting of at 
least 50 percent of participant capacity of the program.
    (c) Threats to public, resident, or participant safety. If VA 
identifies a condition at the home that poses an immediate threat to 
public, resident or participant safety, or other information indicating 
the existence of such a threat, the Director of the VA medical center 
of jurisdiction will immediately report this to the VA Network Director 
(10N1-22); the Assistant Deputy Under Secretary for Health (10N); the 
Office of Geriatrics and Extended Care in VA Central Office; and the 
State official authorized to oversee operations of the home.

(Authority: 38 U.S.C. 501, 1741, 1742)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-XXXX)


Sec.  51.32  Terminating recognition.

    Once a home has achieved recognition, the recognition will be 
terminated only if the State requests that the recognition be 
terminated or VA makes a final decision that affirms the Director's 
decision not to certify the State home.

(Authority: 38 U.S.C. 501, 1742)

Subpart C--Eligibility, Rates, and Payments


Sec.  51.40  Basic per diem rates.

    (a) Basic rate. Except as provided in Sec.  51.41, VA will pay per 
diem for care provided to an eligible veteran at a State home at the 
lesser of the following rates:
    (1) One-half of the daily cost of the care for each day the veteran 
is in the State home, as calculated under paragraph (b) of this 
section.
    (2) The basic per diem rate for each day the veteran is in the 
State home. The basic per diem rate is established by VA for each 
fiscal year in accordance with 38 U.S.C. 1741(a) and (c).

    Note: To determine the number of days that a veteran was in a 
State home, see paragraph (c) of this section.

    (b) How to calculate the daily cost of a veteran's care. The daily 
cost of care consists of those direct and indirect costs attributable 
to care at the State home, divided by the total number of residents 
serviced by the program of care. Relevant cost principles are set forth 
in the Office of Management and Budget (OMB) Circular number A-87, 
dated May 10, 2004, ``Cost Principles for State, Local, and Indian 
Tribal Governments.'' (OMB Circulars are available at the addresses in 
5 CFR 1310.3.)
    (c) Determining whether a veteran spent a day receiving nursing 
home and domiciliary care. Per diem will be paid for each day that the 
veteran is receiving nursing home or domiciliary care and has an 
overnight stay. Per diem also will be paid for a day when there is no 
overnight stay if the State home has an occupancy rate of 90 percent or 
greater on that day. However, these payments will be made only for the 
first 10 consecutive days during which the veteran is admitted as a 
patient for any stay in a VA or other hospital (a hospital stay could 
occur more than once in a calendar year) and only for the first 12 days 
in a calendar year during which the veteran is absent for purposes 
other than receiving hospital care. Occupancy rate is calculated by 
dividing the total number of residents (including nonveterans) in the 
nursing home or domiciliary on that day by the total recognized nursing 
home or domiciliary beds in that State home.
    (d) Determining whether a Veteran spent a day receiving adult day 
health care. Per diem will be paid only for a day of adult day health 
care. For purposes of this section a day of adult day health care 
means:
    (1) Six hours or more in one calendar day in which a veteran 
receives adult day health care; or

[[Page 34811]]

    (2) Any two periods of at least 3 hours each but less than 6 hours 
each in any 2 calendar days in the same calendar month in which the 
veteran receives adult day health care.
    (3) Time during which the State home provides transportation 
between the veteran's residence and the State home or to a health care 
visit, or provides staff to accompany a veteran during transportation 
or a health care visit, will be included as time the veteran receives 
adult day health care.

(Authority: 38 U.S.C. 501, 1710, 1741-1744)

Sec.  51.42  Payment procedures.

    (a) Forms required--(1) Forms required at time of admission or 
enrollment. As a condition for receiving payment of per diem under this 
part, the State home must submit the forms identified in paragraphs (i) 
through (ii) of this paragraph to the VA medical center of jurisdiction 
for each veteran at the time of the veteran's admission or enrollment 
(or, if the home is not a recognized State home, the home must, after 
recognition, submit forms for Veterans who received care on and after 
the date of the completion of the VA survey that provided the basis for 
determining that the home met the standards of this part), and with any 
request for a change in the type of per diem paid on behalf of a 
veteran as a result of a change in the veteran's program of care or a 
change in the veteran's service-connected disability rating that makes 
the veteran's care eligible for payment under Sec.  51.41. Copies of VA 
Forms can be obtained from any VA Medical Center and are available on 
our Web site at www.va.gov/vaforms. The required forms are:
    (i) A completed VA Form 10-10EZ, Application for Medical Benefits 
(or VA Form 10-10EZR, Health Benefits Renewal Form, if a completed Form 
10-10EZ is already on file at VA). Note: Domiciliary applicants and 
residents must complete the financial disclosure sections of VA Forms 
1010-EZ and 10-10EZR, and adult day health care applicants may be 
required to complete the financial disclosure sections of these forms 
in order to enroll with VA; however, State homes should not require 
nursing home applicants or residents or adult day health care 
participants to complete the financial disclosure sections of VA Forms 
10-10EZ and 10-10EZR as long as these veterans sign the form, thereby 
indicating knowledge of, and willingness to pay, any applicable co-pays 
for the treatment of nonservice-connected conditions by VA.
    (ii) A completed VA Form 10-10SH, State Home Program Application 
for Care--Medical Certification.
    (2) Form required for monthly payments. Except as provided in 
(b)(1) and (b)(2), VA pays per diem on a monthly basis for care 
provided during the prior month. To receive payment, the State must 
submit each month to the VA a completed, VA Form 10-5588, State Home 
Report and Statement of Federal Aid Claimed.
    (b) Commencement of payments--(1) Per diem payments for a newly-
recognized State home. No per diem payments will be made until VA 
recognizes the home and each veteran resident for whom VA pays per diem 
is verified as being eligible; however, per diem payments will be made 
retroactively for care that was provided on and after the date of the 
completion of the VA survey that provided the basis for determining 
that the home met the standards of this part.
    (2) Per diem payments for beds certified or precertified under 
Sec.  51.30(c). Per diem will be paid for the care of veterans in beds 
precertified in accordance with Sec.  51.30(c) retroactive to the date 
of precertification. Per diem will be paid for the care of veterans in 
beds certified in accordance with Sec.  51.30(c) retroactive to the 
date of the completion of the survey if the Director certifies the beds 
as a result of that survey.
    (3) Payments for eligible veterans. When a State home admits or 
enrolls an eligible veteran, VA will pay per diem under this part from 
the date of receipt of the completed forms required by this section, 
except that VA will pay per diem from the day on which the veteran was 
admitted or enrolled if the Director receives the completed forms 
within 12 days of the date of admission or enrollment. VA will make 
retroactive payments of per diem under paragraphs (b)(1) and (b)(2) 
only if the Director receives the completed forms that must be 
submitted under this section.

(Authority: 38 U.S.C. 510, 1741, 1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.43  Drugs and medicines for certain veterans.

    (a) In addition to the per diem payments under Sec.  51.40 of this 
part, the Secretary will furnish drugs and medicines to a State home as 
may be ordered by prescription of a duly licensed physician as specific 
therapy in the treatment of illness or injury for a veteran receiving 
nursing home care in a State home, if:
    (1) The veteran:
    (i) Has a singular or combined rating of less than 50 percent based 
on one or more service-connected disabilities and is in need of such 
drugs and medicines for a service-connected disability; and
    (ii) Is in need of nursing home care for reasons that do not 
include care for a VA adjudicated service-connected disability, or
    (2) The veteran:
    (i) Has a singular or combined rating of 50 or 60 percent based on 
one or more service-connected disabilities and is in need of such drugs 
and medicines; and
    (ii) Is in need of nursing home care for reasons that do not 
include care for a VA adjudicated service-connected disability.
    (b) VA will also furnish drugs and medicines to a State home for a 
veteran receiving nursing home, domiciliary and adult day health care 
in a State home pursuant to 38 U.S.C. 1712(d), as implemented by Sec.  
17.96 of this chapter, subject to the limitation in Sec.  51.41(c)(2).
    (c) VA may furnish a drug or medicine under paragraph (a) of this 
section and under Sec.  17.96 of this chapter only if the drug or 
medicine is included on VA's National Formulary, unless VA determines a 
non-Formulary drug or medicine is medically necessary.
    (d) VA may furnish a drug or medicine under this section and Sec.  
17.96 of this chapter by having the drug or medicine delivered to the 
State home in which the veteran resides by mail or other means and 
packaged in a form that is mutually acceptable to the State home and VA 
set forth in a written agreement.
    (e) As a condition for receiving drugs or medicine under this 
section or under Sec.  17.96 of this chapter, the State must submit to 
the VA medical center of jurisdiction a completed VA Form 10-0460 for 
each eligible veteran. The corresponding prescriptions also should be 
submitted to the VA medical center of jurisdiction.

(Authority: 38 U.S.C. 501, 1712, 1745)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.50  Eligible veterans-nursing home care.

    A veteran is an eligible veteran for the purposes of payment of per 
diem for nursing home care under this part if VA determines that the 
veteran needs nursing home care; is not barred from receiving care 
based on his or her service (see 38 U.S.C. 5303-5303A), is

[[Page 34812]]

not barred from receiving VA pension, compensation or dependency and 
indemnity compensation based on the character of a discharge from 
military service (see 38 CFR 3.12) and is within one of the following 
categories:
    (a) Veterans with service-connected disabilities;
    (b) Veterans who are former prisoners of war, who were awarded the 
Purple Heart, or who were awarded the medal of honor under 10 U.S.C. 
3741, 6241, or 8741 or 14 U.S.C. 491;
    (c) Veterans who were discharged or released from active military 
service for a disability incurred or aggravated in the line of duty;
    (d) Veterans who receive disability compensation under 38 U.S.C. 
1151;
    (e) Veterans whose entitlement to disability compensation is 
suspended because of the receipt of retired pay;
    (f) Veterans whose entitlement to disability compensation is 
suspended pursuant to 38 U.S.C. 1151, but only to the extent that such 
veterans' continuing eligibility for nursing home care is provided for 
in the judgment or settlement described in 38 U.S.C. 1151;
    (g) Veterans who VA determines are unable to defray the expenses of 
necessary care as specified under 38 U.S.C. 1722(a);
    (h) Veterans solely seeking care for a disorder associated with 
exposure to a toxic substance or radiation, for a disorder associated 
with service in the Southwest Asia theater of operations during the 
Persian Gulf War, as provided in 38 U.S.C. 1710(e), or for any illness 
associated with service in combat in a war after the Gulf War or during 
a period of hostility after November 11, 1998, as provided and limited 
in 38 U.S.C. 1710(e);
    (i) Veterans who agree to pay to the United States the applicable 
co-payment determined under 38 U.S.C. 1710(f) and 1710(g).

    Note: Neither enrollment in the VA healthcare system nor 
eligibility to enroll is required to be an eligible veteran for the 
purposes of payment of per diem for nursing home care.


(Authority: 38 U.S.C. 501, 1710, 1741-1743)

Sec.  51.51  Eligible veterans-domiciliary care.

    (a) A veteran is an eligible veteran for the purposes of payment of 
per diem for domiciliary care in a State home under this part if VA 
determines that the veteran is not barred from receiving care based on 
his or her service (see 38 U.S.C. 5303-5303A), is not barred from 
receiving VA pension, compensation or dependency and indemnity 
compensation based on the character of a discharge from military 
service (see 38 CFR 3.12), and the veteran is:
    (1) A veteran whose annual income does not exceed the maximum 
annual rate of pension payable to a veteran in need of regular aid and 
attendance; or
    (2) A veteran who VA determines has no adequate means of support. 
The phrase no adequate means of support refers to an applicant for 
domiciliary care whose annual income exceeds the rate of pension 
described in paragraph (1), but who is able to demonstrate to competent 
VA medical authority, on the basis of objective evidence, that deficits 
in health and/or functional status render the applicant incapable of 
pursuing substantially gainful employment, as determined by the Chief 
of Staff of the VA medical center of jurisdiction, and who is otherwise 
without the means to provide adequately for self, or be provided for in 
the community.
    (b) For purposes of this section, the eligible veteran must be able 
to perform the following:
    (1) Daily ablutions, such as brushing teeth; bathing; combing hair; 
body eliminations, without assistance.
    (2) Dress self, with a minimum of assistance.
    (3) Proceed to and return from the dining hall without aid.
    (4) Feed self.
    (5) Secure medical attention on an ambulatory basis or by use of 
personally propelled wheelchair.
    (6) Have voluntary control over body eliminations or control by use 
of an appropriate prosthesis.
    (7) Share in some measure, however slight, in the maintenance and 
operation of the State home.
    (8) Make rational and competent decisions as to his or her desire 
to remain or leave the State home.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)

Sec.  51.52  Eligible veterans-adult day health care.

    A veteran is an eligible veteran for payment of per diem to a State 
for adult day health care if VA determines that the veteran
    (a) Is not barred from receiving VA pension, compensation or 
dependency and indemnity compensation based on the character of a 
discharge from military service (see 38 CFR 3.12)
    (b) Is enrolled in the VA health care system,
    (c) Would otherwise require nursing home care;
    and
    (d) Needs adult day health care because the veteran meets any one 
of the following conditions:
    (1) The veteran has three or more Activities of Daily Living (ADL) 
dependencies.
    (2) The veteran has significant cognitive impairment.
    (3) The veteran has two ADL dependencies and two or more of the 
following conditions:
    (i) Seventy-five years old or older;
    (ii) High use of medical services, i.e., three or more 
hospitalizations per calendar year, or twelve or more visits to 
outpatient clinics and emergency evaluation units per calendar year;
    (iii) Diagnosis of clinical depression; or
    (iv) Living alone in the community.
    (4) The veteran does not meet the criteria in paragraphs (d)(1), 
(d)(2), or (d)(3) of this section, but nevertheless is determined by a 
VA licensed medical practitioner to need adult day health care 
services.

(Authority: 38 U.S.C. 501, 1720(f), 1741-1743)

Sec.  51.58  Standards applicable for payment of per diem.

    A State home must meet the standards in the applicable subpart to 
be recognized, certified, and receive per diem for that program of 
care:
    (a) For nursing home care, subpart D.
    (b) For domiciliary care, subpart E.
    (c) For adult day health care, subpart F.

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

Sec.  51.59  Authority to continue payment of per diem when veterans 
are relocated due to emergency.

    (a) Definition of emergency. For the purposes of this section, 
emergency means an occasion or instance where all of the following are 
true:
    (1) It would be unsafe for veterans receiving care at a State home 
to remain in that home.
    (2) The State is not, or believes that it will not be, able to 
provide care in the State home on a temporary or long-term basis for 
any or all of its veteran residents due to a situation involving the 
State home, and not due to a situation where a particular veteran's 
medical condition requires that the veteran be transferred to another 
facility, such as for a period of hospitalization.
    (3) The State determines that the veterans must be evacuated to 
another facility or facilities.
    (b) General authority to pay per diem during relocation period. 
Notwithstanding any other provision of this part, VA will continue to 
pay per diem for a period not to exceed 30 days for any eligible 
veteran who resided in a State home, and for whom VA was paying per 
diem, if such veteran is evacuated during an emergency into a facility 
other than a VA nursing home,

[[Page 34813]]

hospital, domiciliary, or other VA site of care if the State is 
responsible for providing or paying for the care. VA will not pay per 
diem payments under this section for more than 30 days of care provided 
in the evacuation facility, unless the official who approved the 
emergency response under paragraph (e) of this section determines that 
it is not reasonably possible to return the veteran to a State home 
within the 30-day period, in which case such official will approve 
additional period(s) of no more than 30 days in accordance with this 
section. VA will not provide per diem if VA determines that a veteran 
is or has been placed in a facility that does not meet the standards 
set forth in paragraph (c)(1) of this section, and VA may recover all 
per diem payments made for the care of the veteran in that facility.
    (c) Selection of evacuation facilities. The following standards and 
procedures apply to the selection of an evacuation facility in order 
for VA to continue to pay per diem during an emergency; these standards 
and procedures also apply to evacuation facilities when veterans are 
evacuated from a nursing home in which care is being provided pursuant 
to a contract under 38 U.S.C. 1720.
    (1) Each veteran who is evacuated must be placed in a facility 
that, at a minimum, will meet the needs for food, shelter, toileting, 
and essential medical care of that veteran.
    (2) For veterans evacuated from nursing homes, the following types 
of facilities may meet the standards under paragraph (c)(1) of this 
section:
    (i) VA Community Living Centers;
    (ii) VA contract nursing homes;
    (iii) Centers for Medicare and Medicaid Services certified 
facilities; and
    (iv) Licensed nursing homes.

    Note to paragraph (c)(2): If none of the above options are 
available, veterans may be evacuated temporarily to other facilities 
that meet the standards under paragraph (c)(1) of this section.

    (3) For veterans evacuated from domiciliaries, the following types 
of facilities may meet the standards in paragraph (c)(1) of this 
section:
    (i) Emergency evacuation facilities identified by the city or 
State;
    (ii) Assisted living facilities; and
    (iii) Hotels.
    (d) Applicability to adult day health care programs of care. 
Notwithstanding any other provision of this part, VA will continue to 
pay per diem for a period not to exceed 30 days for any eligible 
veteran who was receiving adult day health care, and for whom VA was 
paying per diem, if the adult day health care facility becomes 
temporarily unavailable due to an emergency. Approval of a temporary 
program of care for such veteran is subject to paragraph (e) of this 
section. If after 30 days the veteran cannot return to the adult day 
health care program in the State home, VA will discontinue per diem 
payments unless the official who approved the emergency response under 
paragraph (e) of this section determines that it is not reasonably 
possible to provide care in the State home or to relocate an eligible 
veteran to a different recognized or certified facility, in which case 
such official will approve additional period(s) of no more than 30 days 
at the temporary program of care in accordance with this section. VA 
will not provide per diem if VA determines that a veteran was provided 
adult day health care in a facility that does not meet the standards 
set forth in paragraph (c)(1) of this section, and VA may recover all 
per diem payments made for the care of the veteran in that facility.
    (e) Approval of response. Per diem payments will not be made under 
this section unless and until the Director of the VA medical center of 
jurisdiction determines, or the director of the VISN in which the State 
home is located (if the VAMC Director is not capable of doing so) 
determines, that an emergency exists and that the evacuation facility 
meets VA standards set forth in paragraph (c)(1) of this section.

(Authority 38 U.S.C. 501, 1720, 1742)


0
4. Amend the heading of Subpart D, part 51, to read as follows:

Subpart D--Standards applicable to the payment of per diem for 
nursing home care.


Sec.  51.120  [Amended]

0
5. Amend Sec.  51.120(a)(3) by replacing ``Chief Consultant, Office of 
Geriatrics and Extended Care (114)'' with ``Office of Geriatrics and 
Extended Care in VA Central Office.''


Sec.  51.140  [Amended]

0
6. Amend Sec.  51.140(d)(4) by removing ``who refuse food served''.
0
7. Amend Sec.  51.210 by:
0
a. In paragraph (b), replacing ``Chief Consultant, Office of Geriatrics 
and Extended Care (114)'' with ``Office of Geriatrics and Extended 
Care''.
0
b. Revising paragraph (b)(2), redesignating (b)(3) as (b)(4), and 
adding new paragraphs (b)(3) and (h)(3), to read as follows:


Sec.  51.210  Administration.

* * * * *
    (b) * * *
    (2) The State home administrator;
    (3) The director of nursing services (or other individual in charge 
of nursing services); and
    (4) The State employee responsible for oversight of the State home 
if a contractor operates the State home.
* * * * *
    (h)(3) If a veteran requires health care that the State home is not 
required to provide under this part, the State home may assist the 
veteran in obtaining that care from sources outside the State home, 
including the Veterans Health Administration. If VA is contacted about 
providing such care, VA will determine the best option for obtaining 
the needed services and will notify the veteran or the authorized 
representative of the veteran.
* * * * *
0
8. Amend part 51 by adding subparts E and F, to read as follows:
Subpart E--Standards Applicable to the Payment of Per Diem for 
Domiciliary Care
Sec
51.300 Resident rights and behavior; State home practices; quality 
of life
51.310 Resident assessment
51.320 Quality of care
51.330 Nursing care
51.340 Physician and other licensed medical practitioner services
51.350 Provision of certain specialized services and environmental 
requirements
51.390 Administration
Subpart F--Standards Applicable to Adult Day Health Care Programs of 
Care
51.400 Participant rights
51.405 Participant and family caregiver responsibilities
51.410 Transfer and discharge
51.411 Program practices
51.415 Restraints, abuse, and staff treatment of participants
51.420 Quality of life
51.425 Physician orders and participant medical assessment
51.430 Quality of care
51.435 Nursing services
51.440 Dietary services
51.445 Physician services
51.450 Specialized rehabilitative services
51.455 Dentist
51.460 Administration of drugs
51.465 Infection control
51.470 Physical environment
51.475 Administration
51.480 Transportation

Subpart E--Standards Applicable to the Payment of Per Diem for 
Domiciliary Care


Sec.  51.300  Resident rights and behavior; state home practices; 
quality of life.

    The State home must protect and promote the rights and quality of 
life of each resident receiving domiciliary care, and otherwise comply 
with the

[[Page 34814]]

requirements set forth in Sec. Sec.  51.70, 51.80, 51.90, and 51.100. 
For purposes of this section, the references in the cited sections to 
nursing home and nursing facility refer to a domiciliary.

(Authority: 38 U.S.C. 501, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.310  Resident assessment.

    The State home must conduct a comprehensive, accurate, and written 
assessment of each resident's medical and functional capacity upon 
admission, annually, and as required by a change in the resident's 
condition.
    (a) Admission orders. At the time each resident is admitted, the 
State home must have physician orders for the resident's immediate care 
and a medical assessment, including a medical history and physical 
examination, within a time frame appropriate to the resident's 
condition, not to exceed 72 hours after admission, except when the 
required physical examination was performed within five days before 
admission and the findings were recorded in the medical record on 
admission, in which case the physician orders may be submitted when 
available.
    (b) Use. The State home must use the results of the assessment to 
develop, review, and revise the resident's treatment plan.
    (c) Coordination of assessments. Each assessment must be conducted 
or coordinated by a registered nurse with the appropriate participation 
of health professionals, including at least one physician, the 
registered nurse, and one social worker. The registered nurse must sign 
and certify the assessment.
    (d) Treatment plans. (1) The State home must develop a treatment 
plan for each resident that includes measurable objectives and 
timetables to address a resident's physical, mental, and psychosocial 
needs that are identified in the written assessment. The treatment plan 
must describe the following:
    (i) The services that are to be furnished to support the resident's 
highest practicable physical, mental, and psychosocial well-being as 
required under Sec.  51.350; and
    (ii) Any services that would otherwise be required under Sec.  
51.350 but are not provided due to the resident's exercise of rights 
under Sec.  51.300, including the right to refuse treatment.
    (2) A treatment plan must be:
    (i) Developed within 7 calendar days after completion of the 
comprehensive assessment;
    (ii) Prepared by health professionals, that include the primary 
physician, a social worker, and a registered nurse who have 
responsibility for the resident, and other appropriate staff in 
disciplines as determined by the resident's needs, and, to the extent 
practicable, the participation of the resident and the resident's 
family (subject to the consent of the resident) or the resident's legal 
representative, if appropriate; and
    (iii) Periodically reviewed and revised by a team of qualified 
persons after each assessment.
    (3) The services provided by the facility must--
    (i) Meet professional standards of quality; and
    (ii) Be provided by qualified persons in accordance with each 
resident's written treatment plan.
    (e) Discharge summary. Prior to discharging a resident, the State 
home must prepare a discharge summary that includes--
    (1) A recapitulation of the resident's stay;
    (2) A summary of the resident's status at the time of the discharge 
to include a summary of the resident's progress on the treatment plan 
in paragraph (d)(2) of this section; and
    (3) A post-discharge plan of care that is developed with the 
participation of the resident and, to the extent practicable and 
appropriate, his or her family, (subject to the consent of the 
resident) and legal representative, which will assist the resident to 
adjust to his or her new living environment.

(Authority: 38 U.S.C. 501, 1720(f), 1741-1743)


(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.320  Quality of care.

    The State home must provide each resident with the care described 
in this subpart in accordance with the assessment and plan of care.
    (a) Reporting of sentinel events. (1) A sentinel event is an 
adverse event that results in the loss of life or limb or permanent 
loss of function.
    (2) Examples of sentinel events are as follows:
    (i) Any resident death, paralysis, coma or other major permanent 
loss of function associated with a medication error; or
    (ii) Any suicide of a resident; or
    (iii) Assault, homicide or other crime resulting in resident death 
or major permanent loss of function; or
    (iv) A resident fall that results in death or major permanent loss 
of function as a direct result of the injuries sustained in the fall.
    (3) The State home must report sentinel events to the Director 
within 24 hours of identification. The VA medical center of 
jurisdiction must report sentinel events by notifying the VA Network 
Director (10N1-10N22) and the Director, Office of Geriatrics and 
Extended Care--Operations (10NC4) within 24 hours of notification.
    (4) The State home must establish a mechanism to review and analyze 
a sentinel event resulting in a written report to be submitted to the 
VA Medical Center of jurisdiction no later than 10 working days 
following the event. The purpose of the review and analysis of a 
sentinel event is to prevent injuries to residents, visitors, and 
personnel, and to manage those injuries that do occur and to minimize 
the negative consequences to the injured individuals and the State 
home.
    (b) Activities of daily living. Based on the comprehensive 
assessment of a resident, the State home must ensure that a resident's 
abilities in activities of daily living do not diminish unless 
circumstances of the individual's clinical condition demonstrate that 
diminution was unavoidable, and the resident is given appropriate 
treatment and services to maintain or improve his activities of daily 
living. This includes the resident's ability to:
    (1) Bathe, dress, and groom;
    (2) Transfer and ambulate;
    (3) Toilet;
    (4) Eat; and
    (5) Talk or otherwise communicate.
    (c) Vision and hearing. To ensure that residents receive proper 
treatment and assistive devices to maintain vision and hearing 
abilities, the State home must, if necessary, assist the resident:
    (1) In making appointments, and
    (2) By arranging for transportation to and from the office of a 
practitioner specializing in the treatment of vision or hearing 
impairment or the office of a professional specializing in the 
provision of vision or hearing assistive devices.
    (d) Mental and Psychosocial functioning. Based on the comprehensive 
assessment of a resident, the State home must assist a resident who 
displays mental or psychosocial adjustment difficulty, obtain 
appropriate treatment and services to correct the assessed problem.
    (e) Accidents. The State home must ensure that:
    (1) The resident environment remains as free of accident hazards as 
possible; and

[[Page 34815]]

    (2) Each resident receives adequate supervision and assistance 
devices to prevent accidents.
    (f) Nutrition. The State home must follow Sec.  51.120(j) regarding 
nutrition in providing domiciliary care.
    (g) Special needs. The State home must provide residents with the 
following services, if needed:
    (1) Injections;
    (2) Colostomy, ureterostomy, or ileostomy care;
    (3) Respiratory care;
    (4) Foot care; and
    (5) Non-customized or non-individualized prosthetic devices.
    (h) Unnecessary drugs. The State home must ensure that the 
standards set forth in Sec.  51.120(m) regarding unnecessary drugs are 
followed in providing domiciliary care.
    (i) Medication Errors. The State home must ensure that the 
standards set forth in Sec.  51.120(n) regarding medication errors are 
followed in providing domiciliary care.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.330  Nursing care.

    The State home must provide an organized nursing service with a 
sufficient number of qualified nursing personnel to meet the total 
nursing care needs, as determined by the resident assessment and 
individualized treatment plans, of all residents within the facility, 
24 hours a day, 7 days a week.
    (a) The nursing service must be under the direction of a full-time 
registered nurse who is currently licensed by the State and has, in 
writing, administrative authority, responsibility, and accountability 
for the functions, activities, and training of the nursing service's 
staff.
    (b) The director of nursing service must designate a licensed nurse 
as the supervising nurse for each tour of duty.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)

Sec.  51.340  Physician and other licensed medical practitioner 
services.

    The State home must provide the necessary primary care for its 
residents to permit them to attain or maintain the highest practicable 
physical, mental, and psychosocial well-being. When a resident needs 
care other than what the State home is required to provide under this 
subpart, the State home is responsible for assisting the resident in 
obtaining that care. The State home must ensure that a physician 
personally approves in writing a recommendation that an individual be 
admitted to a domiciliary. Each resident must remain at all times under 
the care of a licensed medical practitioner assigned by the State home. 
The name of the practitioner will be listed in the resident's medical 
record. The State home must ensure that all of the following conditions 
are met:
    (a) Supervision of medical practitioners. Any licensed medical 
practitioner who is not a physician may provide medical care to a 
resident within the practitioner's scope of practice without physician 
supervision when permitted by state law.
    (b) Availability of medical practitioners. If the resident's 
assigned licensed medical practitioner is unavailable, another licensed 
medical practitioner must be available to provide care for that 
resident.
    (c) Visits. The primary care physician or other licensed medical 
practitioner, for each visit required by paragraph (d) of this section, 
must--
    (1) Review the resident's total program of care, including 
medications and treatments;
    (2) Write, sign, and date progress notes; and
    (3) Sign and date all orders.
    (d) Frequency of visits. The resident must be seen by the primary 
care physician or other licensed medical practitioner at least once 
every 30 days for the first 90 days after admission, and at least once 
a calendar year thereafter, or more frequently based on the condition 
of the resident.
    (e) Availability of emergency care. The State home must assist 
residents in obtaining emergency care.

 (Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)

Sec.  51.350  Provision of certain specialized services and 
environmental requirements.

    The State home must comply with the requirements, set forth in 
Sec. Sec.  51.140, 51.170, 51.180, 51.190, and 51.200 concerning 
dietary, dental, pharmacy services, infection control, and physical 
environment. For purposes of this section, the references in the cited 
sections to nursing home and nursing facility refer to a domiciliary.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.390  Administration.

    The State home must follow Sec.  51.210 regarding administration in 
providing domiciliary care. For purposes of this section, the 
references in the cited section to nursing home and nursing home care 
refer to a domiciliary and domiciliary care.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)

Subpart F--Standards Applicable to Adult Day Health Care Programs 
of Care


Sec.  51.400  Participant rights.

    The State home must protect and promote the rights of a participant 
in an adult day health care program, including the rights set forth in 
Sec.  51.70, except for the right set forth in Sec.  51.70(m). For 
purposes of this section, the references in the cited section to 
resident refer to a participant.

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



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
0160.)


Sec.  51.405  Participant and family caregiver responsibilities.

    The State home must post in a place where participants in the adult 
day health care program and their families will see it a written 
statement of participant and family caregiver responsibilities and must 
provide a copy to the participant and caregiver at or before the time 
of the intake screening. The statement of responsibilities must include 
the following responsibilities:
    (a) Treat personnel with respect and courtesy;
    (b) Communicate with staff to develop a relationship of trust;
    (c) Make appropriate choices and seek appropriate care;
    (d) Ask questions and confirm your understanding of instructions;
    (e) Share opinions, concerns, and complaints with the program 
director;
    (f) Communicate any changes in the participant's condition;
    (g) Communicate to the program director about medications and 
remedies used by the participant;
    (h) Let the program director know if the participant decides not to 
follow any instructions or treatment; and
    (i) Communicate with the adult day health care staff if the 
participant is unable to attend adult day health care.

[[Page 34816]]


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



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0160)


Sec.  51.410  Transfer and discharge.

    (a) Definition. For purposes of this section, the term ``transfer 
and discharge'' includes movement of a participant to a program outside 
of the adult day health care program whether or not that program of 
care is in the same facility.
    (b) Transfer and discharge requirements. The possible reasons for 
transfer and discharge must be discussed with the participant and, to 
the extent practicable and appropriate, with family members (subject to 
the consent of the participant) and legal representatives at the time 
of intake screening. In the case of a transfer and discharge to a 
hospital, the transfer and discharge must be to the hospital closest to 
the adult day health care facility that is capable of providing the 
necessary care. The State home must permit each participant to remain 
in the program of care, and not transfer or discharge the participant 
from the program of care unless:
    (1) The transfer and discharge is necessary for the participant's 
welfare and the participant's needs cannot be met in the adult day 
health care setting;
    (2) The transfer and discharge is appropriate because the 
participant's health has improved sufficiently so the participant no 
longer needs the services provided in the adult day health care 
program;
    (3) The safety of individuals in the facility is endangered;
    (4) The health of individuals in the facility would otherwise be 
endangered;
    (5) The participant has failed, after reasonable and appropriate 
notice, to pay for participation in adult day health care; or
    (6) The adult day health care program of care ceases to operate.
    (c) Notice before transfer. Before an adult day health care program 
undertakes the transfer and discharge of a participant, the State home 
must:
    (1) Notify the participant or the legal representative of the 
participant and, if appropriate, a family member, of the transfer and 
discharge and the reasons for the move in writing and in a language and 
manner they can understand;
    (2) Record the reasons in the participant's clinical record; and
    (3) Include in the notice the items described in paragraph (e) of 
this section.
    (d) Timing of the notice. (1) The notice of transfer and discharge 
required under paragraph (c) of this section must be made by the State 
home at least 30 days before the participant is given a transfer and 
discharge, except when specified in paragraph (d)(2) of this section.
    (2) Notice may be made as soon as practicable before a transfer and 
discharge when--
    (i) The safety of individuals in the facility would be endangered;
    (ii) The health of individuals in the facility would be otherwise 
endangered;
    (iii) The participant's health improves sufficiently so the 
participant no longer needs the services provided by the adult day 
health care program of care; or
    (iv) The resident's needs cannot be met in the adult day health 
care program of care.
    (e) Contents of the notice. The written notice specified in 
paragraph (c) of this section must include the following:
    (1) The reason for the transfer and discharge;
    (2) The effective date of the transfer and discharge;
    (3) The location to which the participant is taken in accordance 
with the transfer and discharge, if any;
    (4) A statement that the participant has the right to appeal the 
action to the State official responsible for the oversight of State 
Veterans Home programs; and
    (5) The name, address and telephone number of the State long-term 
care ombudsman.
    (f) Orientation for transfer and discharge. The State home must 
provide sufficient preparation and orientation to participants to 
ensure safe and orderly transfer and discharge from the State home.
    (g) Written policy. The State home must have in effect a written 
transfer and discharge procedure that reasonably ensures that:
    (1) Participants will be given a transfer and discharge from the 
adult day health care program to the hospital, and ensured of timely 
admission to the hospital when transfer and discharge is medically 
appropriate as determined by a physician; and
    (2) Medical and other information needed for care and treatment of 
participants will be exchanged between the facility and the hospital.

(Authority: 38 U.S.C. 501, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0160)


Sec.  51.411  Program practices.

    (a) Equal access to quality care. The State home must establish and 
maintain identical policies and practices regarding transfer and 
discharge under Sec.  51.410 and the provision of services for all 
participants regardless of the source of payment.
    (b) Admission policy. The State home must not require a third-party 
guarantee of payment as a condition of admission or expedited 
admission, or continued admission in the program of care. However, the 
State home may require a participant or an individual who has legal 
access to a participant's income or resources to pay for the care from 
the participant's income or resources, when available.
    (c) Hours of operation. Each adult day health care program of care 
must provide at least 8 hours of operation 5 days a week. The hours of 
operation must be flexible and responsive to caregiver needs.

(Authority: 38 U.S.C. 501, 1741-1743)

Sec.  51.415  Restraints, abuse, and staff treatment of participants.

    The State home must meet the requirements regarding the use of 
restraints, abuse, and other matters concerning staff treatment of 
participants set forth in Sec.  51.90. For purposes of this section, 
the references in the cited section to resident refer to a participant.

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



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.420  Quality of life.

    The State home must provide an environment that supports the 
quality of life of each participant by maximizing the participant's 
potential strengths and skills.
    (a) Dignity. The State home must promote care for participants in a 
manner and in an environment that maintains or enhances each 
participant's dignity and respect in full recognition of his or her 
individuality.
    (b) Self-determination and participation. The State home must 
ensure that the participant has the right to--
    (1) Choose activities, schedules, and health care consistent with 
his or her interests, assessments, and plans of care;
    (2) Interact with members of the community both inside and outside 
the facility; and
    (3) Make choices about aspects of his or her life in the facility 
that are significant to the participant.

[[Page 34817]]

    (c) Participant and family concerns. The State home must document 
any concerns submitted to the management of the program by participants 
or family members.
    (1) A participant's family has the right to meet with families of 
other participants in the program.
    (2) Staff or visitors may attend meetings of participant or family 
groups at the group's invitation.
    (3) The State home must respond to written requests that result 
from group meetings.
    (4) The State home must listen to the views of any participant or 
family group and act upon the concerns of participants and families 
regarding policy and operational decisions affecting participant care 
in the program.
    (d) Participation in other activities. The State home must ensure 
that a participant has the right to participate in social, religious, 
and community activities that do not interfere with the rights of other 
participants in the program.
    (e) Therapeutic participant activities. (1) The State home must 
provide for an ongoing program of activities designed to meet, in 
accordance with the comprehensive assessment, the interests and the 
physical, mental, and psychosocial well-being of each participant.
    (2) The activities program must be directed by a qualified 
professional who is a qualified therapeutic recreation specialist or an 
activities professional who:
    (i) Is licensed, if applicable, by the State in which practicing; 
and
    (ii) Is certified as a therapeutic recreation specialist or an 
activities professional by a recognized certifying body.
    (3) A critical role of adult day health care is to build 
relationships and create a culture that supports, involves, and 
validates the participant. Therapeutic activity refers to that 
supportive culture and is a significant aspect of the individualized 
plan of care. A participant's activity includes everything the 
individual experiences during the day, not just arranged events. As 
part of effective therapeutic activity, the adult day health care 
program of care must:
    (i) Provide direction and support for participants, including 
breaking down activities into small, discrete steps or behaviors, if 
needed by a participant;
    (ii) Have alternative programming available for any participant 
unable or unwilling to take part in group activity;
    (iii) Design activities that promote personal growth and enhance 
the self-image and/or improve or maintain the functioning level of 
participants to the extent possible;
    (iv) Provide opportunities for a variety of involvement (social, 
intellectual, cultural, economic, emotional, physical, and spiritual) 
at different levels, including community activities and events;
    (v) Emphasize participants' strengths and abilities rather than 
impairments and contribute to participants' feelings of competence and 
accomplishment; and
    (vi) Provide opportunities to voluntarily perform services for 
community groups and organizations.
    (f) Social services. (1) The State home must provide medically-
related social services to participants and their families.
    (2) An adult day health care program of care must provide a 
qualified social worker to furnish social services.
    (3) Qualifications of social worker. A qualified social worker is 
an individual with:
    (i) A bachelor's degree in social work from a school accredited by 
the Council of Social Work Education (Note: A master's degree social 
worker with experience in long-term care is preferred);
    (ii) A social work license from the State in which the State home 
is located, if that license is offered by the State; and
    (iii) A minimum of one year of supervised social work experience in 
a health care setting working directly with individuals.
    (4) The State home must have sufficient social workers and support 
staff to meet participant and family social services needs. The adult 
day health care program of care must:
    (i) Provide counseling to participants and families/caregivers;
    (ii) Facilitate the participant's adaptation to the adult day 
health care program of care and active involvement in the plan of care, 
if appropriate;
    (iii) Arrange for services not provided by adult day health care 
and work with these resources to coordinate services;
    (iv) Serve as an advocate for participants by asserting and 
safeguarding the human and civil rights of the participants;
    (v) Assess signs of mental illness and/or dementia and make 
appropriate referrals;
    (vi) Provide information and referral for persons not appropriate 
for adult day health care;
    (vii) Provide family conferences and serve as liaison between 
participant, family/caregiver and program staff;
    (viii) Provide individual or group counseling and support to 
caregivers and participants;
    (ix) Conduct support groups or facilitate participant or family/
caregiver participation in support groups;
    (x) Assist program staff in adapting to changes in participants' 
behavior; and
    (xi) Provide or arrange for individual, group, or family 
psychotherapy for participants with significant psychosocial needs.
    (5) Space for social services must be adequate to ensure privacy 
for interviews.
    (g) Environment. The State home must provide:
    (1) A safe, clean, comfortable, and homelike environment, and 
support the participants' ability to function as independently as 
possible and to engage in program activities;
    (2) Housekeeping and maintenance services necessary to maintain a 
sanitary, orderly, and comfortable interior;
    (3) Private storage space that can be secured with a lock for each 
participant sufficient for a change of clothes;
    (4) Interior signs to facilitate participants' ability to move 
about the facility independently and safely;
    (5) A clean bed or reclining chair available for acute illness;
    (6) A shower for residents;
    (7) Adequate and comfortable lighting levels in all areas;
    (8) Comfortable and safe temperature levels; and
    (9) Comfortable sound levels.

(Authority: 38 U.S.C. 101, 501, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
0160.)


Sec.  51.425  Physician orders and participant medical assessment.

    (a) Admission. At the time of admission, the State home must have 
physician orders for the participant's immediate care and a medical 
assessment including a medical history and physical examination (with 
documentation of TB screening) completed no earlier than 30 days before 
admission.
    (b) Assessments. On the participant's first visit, the State home 
must ensure that the participant has an individualized care plan that 
meets the requirements of paragraph (d) of this section. Additional 
assessments must be conducted annually, as well as promptly after every 
significant change in the participant's physical, mental, or social 
condition. The State home must immediately change the participant's

[[Page 34818]]

care plan when warranted by an assessment. Assessments must meet the 
other applicable criteria of this section, and the written assessment 
must address the following:
    (1) Ability to ambulate,
    (2) Ability to use bathroom facilities,
    (3) Ability to eat and swallow,
    (4) Ability to hear,
    (5) Ability to see,
    (6) Ability to experience feeling and movement,
    (7) Ability to communicate,
    (8) Risk of wandering,
    (9) Risk of elopement,
    (10) Risk of suicide,
    (11) Risk of deficiencies regarding social interactions, and
    (12) Special needs (such as regarding medication, diet, nutrition, 
hydration, prosthetics, etc.).
    (c) Coordination of assessment. (1) Each assessment must be 
conducted or coordinated with the appropriate participation of health 
professionals.
    (2) Each person who completes a portion of the assessment must sign 
and certify the accuracy of that portion of the assessment.
    (d) Care plans. (1) The State home must ensure that each 
participant has a care plan. A participant's care plan must be 
individualized and must include measurable objectives and timetables to 
meet all physical, mental, and psychosocial needs identified in the 
most recent assessment. The care plan must describe the following:
    (i) The services that are to be provided as part of the program of 
care and by other sources to attain or maintain the participant's 
highest physical, mental, and psychosocial well-being as required under 
Sec.  51.430;
    (ii) Any services that would otherwise be required under Sec.  
51.430 but are not provided due to the participant's exercise of rights 
under Sec.  51.70, including the right to refuse treatment under Sec.  
51.70(b)(4);
    (iii) Type and scope of interventions to be provided in order to 
reach desired, realistic outcomes;
    (iv) Roles of participant and family/caregiver; and
    (v) Discharge or transition plan, including specific criteria for 
discharge or transfer.
    (2) The services provided or arranged by the State home must:
    (i) Meet professional standards of quality; and
    (ii) Be provided by qualified persons in accordance with each 
participant's care plan.
    (e) Discharge summary. Prior to discharging a participant, the 
State home must prepare a discharge summary that includes:
    (1) A recapitulation of the participant's care;
    (2) A summary of the participant's status at the time of the 
discharge to include items in paragraph (b) of this section; and
    (3) A discharge/transition plan related to changes in service needs 
and changes in functional status that prompted another level of care.

(Authority: 38 U.S.C. 501, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.430  Quality of care.

    Each participant must receive, and the State home must provide, the 
necessary care and services to attain or maintain the highest 
practicable physical, mental, and psychosocial well-being, in 
accordance with the comprehensive assessment and plan of care.
    (a) Reporting of sentinel events.
    (1) Definition. A ``sentinel event'' is defined in Sec.  
51.120(a)(1).
    (2) Duty to report, review, and prevent sentinel events. The State 
home must comply with the duties to report, review, and prevent 
sentinel events as set forth in Sec.  51.120(a)(3) and (4) except that 
the duty to report applies only to a sentinel event that occurs while 
the participant is under the care of the State home, including while in 
State home-provided transportation.
    (3) Review and prevention of sentinel events. The State home must 
establish a mechanism to review and analyze a sentinel event resulting 
in a written report to be submitted to the VA Medical Center of 
jurisdiction no later than 10 working days after the event. The purpose 
of the review and analysis of a sentinel event is to prevent future 
injuries to participants, visitors, and personnel.
    (b) Activities of daily living. Based on the comprehensive 
assessment of a participant, the State home must ensure that:
    (1) No diminution in activities of daily living. A participant's 
abilities in activities of daily living do not diminish unless the 
circumstances of the individual's clinical condition demonstrate that 
diminution was unavoidable. This includes the participant's ability 
to--
    (i) Bathe, dress, and groom;
    (ii) Transfer and ambulate;
    (iii) Toilet; and
    (iv) Eat.
    (2) Appropriate treatment and services given. A participant is 
given the appropriate treatment and services to maintain or improve his 
or her abilities specified in paragraph (b)(1) of this section.
    (3) Necessary services provided to participant unable to carry out 
activities of daily living. A participant who is unable to carry out 
activities of daily living receives the necessary services to maintain 
good nutrition, hydration, grooming, personal and oral hygiene, 
mobility, and bladder and bowel elimination.
    (c) Mental and Psychosocial functioning. The State home must make 
counseling and related psychosocial services available for improving 
mental and psychosocial functioning of participants with mental or 
psychosocial needs. The services available must include counseling and 
psychosocial services provided by licensed independent mental health 
professionals.
    (d) Medication errors. The State home must comply with Sec.  
51.120(n) with respect to medication errors.

(Authority: 38 U.S.C. 101, 501, 1741-1743)


(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
XXXX.)


Sec.  51.435  Nursing services.

    The State home must provide an organized nursing service with a 
sufficient number of qualified nursing personnel to meet the total 
nursing care needs, as determined by participant assessment and 
individualized comprehensive plans of care, of all participants in the 
program.
    (a) There must be at least one registered nurse on duty each day of 
operation of the adult day health care program of care. This nurse must 
be currently licensed by the State and must have, in writing, 
administrative authority, responsibility, and accountability for the 
functions, activities, and training of the nursing and program 
assistants.
    (b) The number and level of nursing staff is determined by the 
authorized capacity of participants and the nursing care needs of the 
participants.
    (c) Nurse staffing must be adequate for meeting the standards of 
this part.

(Authority: 38 U.S.C. 501, 1741-1743)

Sec.  51.440  Dietary services.

    The State home must comply with the requirements concerning the 
dietary services set forth in Sec.  51.140. For purposes of this 
section, the references in the cited section to resident refer to a 
participant.

(Authority: 38 U.S.C. 101, 501, 1741-1743)


[[Page 34819]]




Sec.  51.445  Physician services.

    As a condition of enrollment in adult day health care program, a 
participant must have a written physician order for enrollment. If a 
participant's medical needs require that the participant be placed in 
an adult day health care program that offers medical supervision, the 
order for enrollment from the physician must state that. Each 
participant must remain under the care of a physician.
    (a) Physician supervision. If the adult day health care program 
offers medical supervision, the program management must ensure that:
    (1) The medical care of each participant is supervised by a primary 
care physician;
    (2) Each participant's medical record must contain the name of the 
participant's primary physician; and
    (3) Another physician is available to supervise the medical care of 
participants when their primary physician is unavailable.
    (b) Frequency of physician reviews. If the adult day health care 
program offers medical supervision:
    (1) The participant must be seen by the primary physician at least 
annually and as indicated by a change of condition.
    (2) The program management must have a policy to help ensure that 
adequate medical services are provided to the participant.
    (3) At the option of the primary physician, required reviews in the 
program after the initial review may alternate between personal 
physician reviews and reviews by a physician assistant, nurse 
practitioner, or clinical nurse specialist in accordance with paragraph 
(e) of this section.
    (c) Availability of acute care. If the adult day health care 
program offers medical supervision, the program management must provide 
or arrange for the provision of acute care when it is indicated.
    (d) Availability of physicians for emergency care. In case of an 
emergency, the program management must ensure that participants are 
able to obtain emergency care when necessary.
    (e) Physician delegation of tasks. (1) A primary physician may 
delegate tasks to:
    (i) A certified physician assistant or a certified nurse 
practitioner, or
    (ii) A clinical nurse specialist who--
    (A) Is acting within the scope of practice as defined by State law; 
and
    (B) Is under the supervision of the physician.
    (2) The primary physician may not delegate a task when the 
provisions of this part specify that the primary physician must perform 
it personally, or when the delegation is prohibited under State law or 
by the State home's own policies.

(Authority: 38 U.S.C. 101, 501, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0160)


Sec.  51.450  Specialized rehabilitative services.

    (a) Provision of services. If specialized rehabilitative services 
such as, but not limited to, physical therapy, speech therapy, 
occupational therapy, and mental health services for mental illness are 
required in the participant's comprehensive plan of care, program 
management must:
    (1) Provide the required services; or
    (2) Obtain the required services and equipment from an outside 
resource, in accordance with Sec.  52.210(h), from a provider of 
specialized rehabilitative services.
    (b) Written order. Specialized rehabilitative services must be 
provided under the written order of a physician by qualified personnel.

(Authority: 38 U.S.C. 101, 501, 1741-1743)

Sec.  51.455  Dental services.

    (a) If the adult day health care program offers medical 
supervision, program management must, if necessary, assist the 
participant and family/caregiver:
    (1) In making appointments; and
    (2) By arranging for transportation to and from the dental 
services.
    (b) If the adult day health care program offers medical 
supervision, program management must promptly assist and refer 
participants with lost or damaged dentures to a dentist.

(Authority: 38 U.S.C. 101, 501, 1741-1743)

Sec.  51.460  Administration of drugs.

    If the adult day health care program offers medical supervision, 
the program management must assist participants with the management of 
medication and have a system for disseminating drug information to 
participants and program staff in accordance with this section.
    (a) Procedures. The State home must:
    (1) Provide reminders or prompts to participants to initiate and 
follow through with self-administration of medications.
    (2) Establish a system of records to document the administration of 
drugs by participants and/or staff.
    (3) Ensure that drugs and biologicals used by participants are 
labeled in accordance with currently accepted professional principles, 
and include the appropriate accessory and cautionary instructions, and 
the expiration dates when applicable.
    (4) Store all drugs, biologicals, and controlled schedule II drugs 
listed in 21 CFR 1308.12 in locked compartments under proper 
temperature controls, permit only authorized personnel to have access, 
and otherwise comply with all applicable State and Federal laws.
    (b) Service consultation. The State home must provide the services 
of a pharmacist licensed in the State in which the program is located 
who provides consultation, as needed, on all the provision of drugs.

(Authority: 38 U.S.C. 101, 501, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0160)


Sec.  51.465  Infection control.

    The State home must meet the requirements concerning infection 
control set forth in Sec.  51.190. For purposes of this section, the 
references in the cited section to resident refer to a participant.

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

Sec.  51.470  Physical environment.

    The State home must ensure that the physical environment is 
designed, constructed, equipped, and maintained to protect the health 
and safety of participants, personnel and the public.
    (a) Life safety from fire. The State home must meet the 
requirements of Sec.  51.200(a), except as to any standard in the 
National Fire Protection Association code that only applies to nursing 
homes.
    (b) Space and equipment. (1) The State home must--
    (i) Provide sufficient space and equipment in dining, health 
services, recreation, and program areas to enable staff to provide 
participants with needed services as required by these standards and as 
identified in each participant's plan of care; and
    (ii) Maintain all essential mechanical, electrical, and patient 
care equipment in safe operating condition.
    (2) Each adult day health care program of care, when it is co-
located in a nursing home, domiciliary, or other care facility, must 
have its own separate designated space during operational hours.
    (3) The indoor space for adult day health care must be at least 100 
square feet per participant including office space for staff and must 
be 60 square feet per participant excluding office space for staff.
    (4) Each program of care will need to design and partition its 
space to meet its

[[Page 34820]]

own needs, but the following functional areas must be available:
    (i) A dividable multipurpose room or area for group activities, 
including dining, with adequate table-setting space.
    (ii) Rehabilitation rooms or an area for individual and group 
treatments for occupational therapy, physical therapy, and other 
treatment modalities.
    (iii) A kitchen area for refrigerated food storage, the preparation 
of meals and/or training participants in activities of daily living.
    (iv) An examination and/or medication room.
    (v) A quiet room (with a bed or a reclining chair), which functions 
to separate participants who become ill or disruptive, or who require 
rest, privacy, or observation. It should be separate from activity 
areas, near a restroom, and supervised.
    (vi) Bathing facilities adequate to facilitate bathing of 
participants with functional impairments.
    (vii) Toilet facilities and bathrooms easily accessible to people 
with mobility problems, including participants in wheelchairs. There 
must be at least one toilet for every eight participants. The toilets 
must be equipped for use by persons with limited mobility, easily 
accessible from all programs areas, i.e., preferably within 40 feet 
from that area, designed to allow assistance from one or two staff, and 
barrier-free.
    (viii) Adequate storage space. There should be space to store arts 
and crafts materials, wheelchairs, chairs, individual handiwork, and 
general supplies. Locked cabinets must be provided for files, records, 
supplies, and medications.
    (ix) An individual room for counseling and interviewing 
participants and family members.
    (x) A reception area.
    (xi) An outside space that is used for outdoor activities that is 
safe, accessible to indoor areas, and accessible to those with a 
disability. This space may include recreational space and garden area. 
It should be easily supervised by staff.
    (c) Furnishings. Furnishings must be available for all 
participants. This must include functional furniture appropriate to the 
participants' needs. Furnishings must be attractive, comfortable, and 
homelike, while being sturdy and safe.
    (d) Participant call system. The coordinator's station must be 
equipped to receive participant calls through a communication system 
from:
    (1) Clinic rooms; and
    (2) Toilet and bathing facilities.
    (e) Other environmental conditions. The State home must provide a 
safe, functional, sanitary, and comfortable environment for the 
participants, staff and the public. The facility management must:
    (1) Establish procedures to ensure that water is available to 
essential areas if there is a loss of normal water supply;
    (2) Have adequate outside ventilation by means of windows, or 
mechanical ventilation, or a combination of the two;
    (3) Equip corridors, when available, with firmly-secured handrails 
on each side; and
    (4) Maintain an effective pest control program so that the facility 
is free of pests and rodents.

(Authority: 38 U.S.C. 101, 501, 1741-1743)

Sec.  51.475  Administration.

    For purposes of this section, the references in the cited section 
to nursing home and nursing home care refer to adult day health care 
programs and adult day health care. The State home must comply with all 
administration requirements set forth in Sec.  51.210 except for the 
following if the adult day health care program does not offer medical 
supervision:
    (a) Medical director. State home adult day health care programs are 
not required to designate a primary care physician to serve as a 
medical director, and therefore are not required to comply with Sec.  
51.210(i).
    (b) Laboratory services, radiology, and other diagnostic services. 
State home adult day health care programs are not required to provide 
the medical services identified in Sec.  51.210(m) and (n).
    (c) Quality assessment and assurance committee. State home adult 
day health care programs are not required to comply with Sec.  
51.210(p), regarding quality assessment and assurance committees 
consisting of specified medical providers and staff.

(Authority: 38 U.S.C. 501, 1741-1743)



(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0160)


Sec.  51.480  Transportation.

    Transportation of participants to and from the adult day health 
care facility must be a component of the overall program of care.
    (a)(1) Except as provided in paragraph (a)(2) of this section, the 
State home must provide for transportation to enable participants, 
including persons with disabilities, to attend the program and to 
participate in State home-sponsored outings.
    (2) The veteran or the family of a veteran may decline 
transportation offered by the adult day health care program of care and 
make their own arrangements for the transportation.
    (b) The State home must have a transportation policy that includes 
procedures for routine and emergency transportation. All transportation 
(including that provided under contract) must be in compliance with 
such procedures.
    (c) The State home must ensure that the transportation it provides 
is done by drivers who have access to a device for two-way 
communication.
    (d) All systems and vehicles used by the State home to comply with 
this section must meet all applicable local, State and federal 
regulations.
    (e) The State home must ensure that the care needs of each 
participant are addressed during transportation furnished by the home.

(Authority: 38 U.S.C. 101, 501, 1741-1743)

PART 52--[REMOVED]

0
8. Remove part 52.

[FR Doc. 2015-13838 Filed 6-16-15; 8:45 am]
 BILLING CODE 8320-01-P



                                                                                                            Vol. 80                           Wednesday,
                                                                                                            No. 116                           June 17, 2015




                                                                                                            Part II


                                                                                                            Department of Veterans Affairs
                                                                                                            38 CFR Parts 17, 51, and 52
                                                                                                            Per Diem Paid to States for Care of Eligible Veterans in State Homes;
                                                                                                            Proposed Rules
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                                                      34794                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      DEPARTMENT OF VETERANS                                  Veterans in State Homes.’’ Copies of                   subparts A and B of part 51. Proposed
                                                      AFFAIRS                                                 comments received will be available for                part 51, subpart C, would include
                                                                                                              public inspection in the Office of                     regulations governing payments and
                                                      38 CFR Parts 17, 51 and 52                              Regulation Policy and Management,                      eligibility for all three types of care.
                                                                                                              Room 1068, Department of Veterans                      These proposed regulations would
                                                      RIN 2900–AO88
                                                                                                              Affairs, 810 Vermont Avenue NW.,                       supersede the regulations currently
                                                      Per Diem Paid to States for Care of                     Washington, DC 20420, between the                      contained in 38 CFR 17.190 through
                                                      Eligible Veterans in State Homes                        hours of 8:00 a.m. and 4:30 p.m.                       17.200, which pertain to the payment of
                                                                                                              Monday through Friday (except                          per diem for hospital and domiciliary
                                                      AGENCY:    Department of Veterans Affairs.              holidays). Please call (202) 461–4902 for              care in State homes. Therefore, we
                                                      ACTION:   Proposed rule.                                an appointment. (This is not a toll-free               propose to remove §§ 17.190 through
                                                                                                              number.) In addition, during the                       17.200.
                                                      SUMMARY:   The Department of Veterans                   comment period, comments may be                           Subpart D of part 51 would continue
                                                      Affairs (VA) proposes to reorganize,                    viewed online through the Federal                      to set forth the standards applicable to
                                                      update (based on revisions to statutory                 Docket Management System (FDMS) at                     the payment of per diem for nursing
                                                      authority), and clarify its regulations                 www.Regulations.gov.                                   home care.
                                                      that govern paying per diem to State                    FOR FURTHER INFORMATION CONTACT: Dr.
                                                                                                                                                                        The regulations in subpart D of part
                                                      homes providing nursing home and                        Richard Allman, Chief Consultant,                      52, concerning adult day health care
                                                      adult day health care to eligible                                                                              programs, would be moved to a new
                                                                                                              Geriatrics and Extended Care Services
                                                      veterans. The reorganization will                                                                              subpart F of part 51, and would be
                                                                                                              (10P4G), Veterans Health
                                                      improve consistency and clarity                                                                                revised to broaden the ability of State
                                                                                                              Administration, 810 Vermont Avenue
                                                      throughout these State home programs.                                                                          home adult day health care programs to
                                                                                                              NW., Washington, DC 20420, (202) 461–
                                                      We propose to revise the regulations                                                                           operate in a manner that emphasizes
                                                                                                              6750. (This is not a toll-free number.)
                                                      applicable to adult day health care                                                                            participant independence over a strict
                                                                                                              SUPPLEMENTARY INFORMATION: Currently,                  medical model of care. There are
                                                      programs of care so that States may
                                                                                                              VA pays per diem to State homes for                    currently only two State homes
                                                      establish diverse programs that better
                                                                                                              three types of care provided to eligible               receiving per diem from VA for adult
                                                      meet participants’ needs for
                                                                                                              veterans: nursing home care,                           day health care, and we wish to increase
                                                      socialization and maximize their
                                                                                                              domiciliary care, and adult day health                 the number of such homes throughout
                                                      independence. Currently, we require
                                                                                                              care. The statutory authority for these                the country because we believe that
                                                      States to operate these programs
                                                                                                              payment programs is set forth at 38                    such care is a viable and healthier
                                                      exclusively using a medical supervision
                                                                                                              U.S.C. 1741–43 and 1745. Currently, VA                 alternative for veterans who otherwise
                                                      model. We expect that these liberalizing
                                                                                                              has regulations at 38 CFR part 51 that                 would require nursing home care.
                                                      changes would result in an increase in
                                                                                                              apply to the payment of per diem for                      This rulemaking would also establish
                                                      the number of States that have adult day
                                                                                                              nursing home care and 38 CFR part 52                   new regulations that set forth standards
                                                      health care programs. We also propose
                                                                                                              that apply to the payment of per diem                  that State homes must meet to receive
                                                      to establish new regulations governing
                                                                                                              for adult day health care. Many of the                 per diem for domiciliary care. The
                                                      the payment of per diem to State homes
                                                                                                              sections in parts 51 and 52 are similar                proposed standards would supersede all
                                                      providing domiciliary care to eligible
                                                                                                              or identical. In particular, subparts A, B             non-CFR policies that contain standards
                                                      veterans, because the current
                                                                                                              and C of both parts (which collectively                for VA payment of per diem for
                                                      regulations are inadequate. Moreover,
                                                                                                              concern procedural rules, recognition,                 domiciliary care in State homes.
                                                      we propose to eliminate the regulations
                                                                                                              and certification requirements for the                    Moreover, the proposed rule is
                                                      governing per diem for State home
                                                                                                              payment of per diem) contain a great                   generally consistent with the current
                                                      hospitals because there are no longer
                                                                                                              deal of redundancy. In some cases, we                  regulations on the payment of per diem
                                                      any State home hospitals. In general,
                                                                                                              have regulations in parts 51 and 52 that               for domiciliary care except as discussed
                                                      this rulemaking is consistent with
                                                                                                              have identical substantive effect, but we              below. In fact, much of the current
                                                      current regulations and policies, and we
                                                                                                              have unintentionally worded them                       guidance for domiciliary per diem is
                                                      do not expect that these proposed rules
                                                                                                              differently. Subparts D of parts 51 and                substantively similar to the rules
                                                      would have a negative impact on State
                                                                                                              52 set forth unique standards applicable               already established for nursing home
                                                      homes; rather, we believe that these
                                                                                                              to the recognition and certification of                care and adult day health care in current
                                                      proposed regulations would clarify
                                                                                                              nursing homes or adult day health care                 parts 51 and 52, and therefore the
                                                      current law and policy, which should
                                                                                                              programs (although both subparts D do                  general rules in proposed subparts A
                                                      improve and simplify the payment of
                                                                                                              contain some overlap).                                 and B would apply equally to
                                                      per diem to State homes, and encourage                    In order to eliminate redundancy and                 domiciliary care. The standards
                                                      participation in these programs.                        clarify the procedures for recognition                 applicable to domiciliary care are
                                                      DATES: Comments must be received on                     and certification of State homes, we                   proposed at subpart E. In other words,
                                                      or before August 17, 2015.                              propose this extensive rewrite and                     for purposes of regulatory organization,
                                                      ADDRESSES: Written comments may be                      reorganization of parts 51 and 52. This                we propose to treat domiciliary care in
                                                      submitted through                                       rulemaking would remove part 52. Part                  the same manner that we would treat
                                                      www.Regulations.gov; by mail or hand-                   51 would be re-titled ‘‘Per Diem for                   our other two State home programs.
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                                                      delivery to the Director, Regulation                    Nursing Home, Domiciliary, or Adult                       We would also update the authority
                                                      Policy and Management (02REG),                          Day Health Care of Veterans in State                   citation for part 51 to include 38 U.S.C.
                                                      Department of Veterans Affairs, 810                     Homes,’’ adding domiciliary and adult                  1745, which pertains to State home
                                                      Vermont Avenue NW., Room 1068,                          day health care to the title of part 51,               nursing home care for certain veterans
                                                      Washington, DC 20420; or by fax to                      which had formerly applied only to                     with service-connected disabilities and
                                                      (202) 273–9026. Comments should                         nursing home care. The regulations in                  was enacted after we published part 51.
                                                      indicate that they are submitted in                     subparts A and B of part 52 would be                   We have not yet updated the authority
                                                      response to ‘‘RIN 2900–AO88-Per Diem                    consolidated with similar regulations in               citation for all of part 51 to include 38
                                                      Paid to States for Care of Eligible                     part 51, and would be organized in                     U.S.C. 1745, though certain sections


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                             34795

                                                      were updated to include a citation to it.               than emphasizing medical treatment.                    Director of the VA medical center of
                                                      This amendment would have no                            We believe that these proposed                         jurisdiction, unless the section
                                                      substantive effect but would clarify that               revisions will expand the availability of              specifically refers to another type of
                                                      it is one of VA’s authorities for all of                adult day health care within State                     director. This is a nonsubstantive
                                                      part 51.                                                homes and for veterans who wish to live                change that is intended to clarify
                                                         A detailed discussion of the proposed                at home but who require daily care, and                references in the regulations.
                                                      revised part 51 follows, organized by                   may lead to decreased demand for                          Current § 17.30(b) defines
                                                      subpart and section.                                    costly nursing home care. As such, we                  ‘‘domiciliary care’’ for the purposes of
                                                                                                              believe that this would produce a                      VA’s ‘‘medical regulations,’’ i.e., current
                                                      Subpart A—General                                       positive result for veterans.                          part 17. VA’s current regulations for
                                                      51.1    Purpose and Scope of Part 51                       We note that current 38 CFR                         payment of per diem to state homes for
                                                                                                              17.111(c)(1) defines ‘‘adult day health                domiciliary care are part of those
                                                        Section 51.1would describe the
                                                                                                              care’’ for the purposes of a copayment                 regulations. Therefore, this definition
                                                      purpose, scope, and organization of part
                                                                                                              determination for adult day health care                applies to the State home program. We
                                                      51.                                                     provided by VA. This regulation does                   propose adopting a similar definition of
                                                      51.2    Definitions                                     not apply to the State home program.                   domiciliary care in § 51.2, except that
                                                                                                              However, VA is currently considering                   we would update the language and
                                                         Section 51.2 would set forth
                                                                                                              whether the expanded definition of                     delete the requirement that State home
                                                      definitions applicable to terms used
                                                                                                              adult day health care that would apply                 domiciliaries provide ‘‘travel and
                                                      throughout part 51. Definitions of terms
                                                                                                              to State homes under this rulemaking                   incidental expenses pursuant to
                                                      that are currently defined in § 51.2 are
                                                                                                              should also apply to VA adult day                      § 17.143,’’ which previously was the
                                                      unchanged, except where the same term
                                                                                                              health care. Any revisions to part 17                  regulation implementing VA’s authority
                                                      was technically (but not substantively)
                                                                                                              would appear in a separate rulemaking.                 to pay beneficiary travel of certain
                                                      defined differently in current § 52.2                      We will not provide different rates of              veterans. VA’s current beneficiary travel
                                                      such that minor technical revision was                  payment to State home adult day health                 regulations are set forth in 38 CFR part
                                                      required. Definitions in current § 52.2                 care programs that provide intensive                   70, and they generally require VA to pay
                                                      would be added to § 51.2 without                        medical supervision and those that do                  for eligible Veterans’ travel to and from
                                                      substantive change, except as noted                     not. Adult day health care provided                    VA facilities. In any case, those
                                                      below. Also, we would adopt the                         under the current definition is typically              regulations only require VA to pay for
                                                      regulatory definition of domiciliary care               more expensive than what States could                  travel; they do not apply to State homes.
                                                      in 38 CFR 17.30(b) that currently                       offer using the broader definition of                  We thus propose to not require State
                                                      applies to State homes in proposed                      adult day health care programs                         homes to pay for travel in the same
                                                      § 51.2 except that the proposed                         proposed in this rulemaking; however,                  manner as VA does under VA’s
                                                      definition would not include ‘‘travel                   current State participation in adult day               beneficiary travel program. We also
                                                      and incidental expenses pursuant to                     health care for veterans is virtually                  propose to remove the requirement that
                                                      § 17.143’’ because State homes are not                  nonexistent due to this higher cost. In                State home domiciliaries provide
                                                      required to pay these expenses pursuant                 part because current VA requirements                   residents with clothing. Although VA is
                                                      to § 17.143. Finally, a few new                         are too expensive to implement, we are                 required by 38 U.S.C. 1723 to provide
                                                      definitions would be added, as                          proposing these revisions in an effort to              clothing under certain circumstances in
                                                      explained below.                                        expand State home adult day health                     its own facilities, this statute does not
                                                         Current § 52.2 does not define ‘‘adult               care as an option for our veterans.                    apply to State homes. VA erroneously
                                                      day health care;’’ however, part 52 does                   We propose a definition of clinical                 included provision of clothing in the
                                                      establish standards applicable to State                 nurse specialist that accords with the                 current regulation.
                                                      home adult day health care. Many States                 intended meaning of the term for all                      We would add a definition of
                                                      would like to use a model of adult day                  these State home programs. Currently,                  ‘‘[e]ligible veteran.’’ The term would
                                                      health care that emphasizes                             both parts 51 and 52 require that a                    refer to a veteran whose care may serve
                                                      socialization and maximizes participant                 clinical nurse specialist be ‘‘a licensed              as a basis for per diem payments. The
                                                      independence, but does not provide as                   professional nurse with a master’s                     definition would reference the
                                                      much medical supervision or                             degree in nursing and a major in a                     substantive sections under which such
                                                      involvement as is generally required by                 clinical nursing specialty from an                     eligibility would be established for each
                                                      current part 52. Therefore, we propose                  academic program accredited by the                     of the three per diem programs.
                                                      to amend the regulations governing                      National League for Nursing.’’ However,                   We would eliminate the current
                                                      State home adult day health care to                     current § 51.2 also requires that the                  definition of ‘‘facility’’ in §§ 51.2 and
                                                      allow for flexibility and to establish                  nurse be ‘‘certified by a nationally                   52.2 because it is not necessary. We
                                                      standards of medical care only when the                 recognized credentialing body (such as                 would add a definition of ‘‘licensed
                                                      State home provides such care. These                    the National League for Nursing, the                   medical practitioner.’’ The term would
                                                      revisions are discussed in greater detail               American Nurses Credentialing Center,                  encompass and would refer to the
                                                      in the portion of this notice describing                or the Commission on Collegiate                        following terms we further define in this
                                                      proposed subpart F of part 51. In § 51.2,               Nursing Education).’’ We no longer                     section: Nurse practitioner; physician;
                                                      we would set forth a definition of adult                believe that such certification is                     physician assistant; and primary
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                                                      day health care that will allow for                     necessary in order for a nurse to be                   physician or primary care physician.
                                                      flexibility in terms of the services                    qualified, which is why we had dropped                    We would revise the definition of
                                                      provided. As revised, this type of adult                that additional language when we                       ‘‘nursing home care’’ to be consistent
                                                      day health care program would serve as                  promulgated part 52. Therefore, in these               with the statutory definition of that term
                                                      an alternative to full-time nursing home                new regulations, we would also drop                    in 38 U.S.C. 101(28).
                                                      care; it emphasizes group activities and                the additional language from the rules                    We would define ‘‘participant’’ as an
                                                      is designed to reduce or postpone the                   that apply to nursing home care.                       individual receiving adult day health
                                                      need for institutional placement (such                     We would establish that references to               care and ‘‘resident’’ as an individual
                                                      as placement in a nursing home), rather                 ‘‘Director’’ in this part would be to the              receiving nursing home or domiciliary


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                                                      34796                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      care. The proposed definitions would be                 VAOPGCPREC 55–91. We thus propose                         A key difference in the new process
                                                      consistent with the uses of those terms                 to amend the definition of ‘‘State’’ to                is that the current process requires both
                                                      in both the current regulations and the                 include the Virgin Islands, Guam, the                  recognition and ‘‘initial certification’’ by
                                                      proposed regulations.                                   Commonwealth of the Northern Mariana                   the Under Secretary for Health for State
                                                         The last sentence of the definition of               Islands, and American Samoa. The                       home nursing homes and adult day
                                                      ‘‘physician assistant’’ in current § 51.2               Commonwealth of Puerto Rico would                      health care programs, but does not
                                                      states that a physician assistant must be               remain part of the definition. The                     clearly distinguish between the
                                                      able to perform certain tasks ‘‘under                   proposed revisions would make this                     requirements for recognition versus the
                                                      appropriate physician supervision                       definition of ‘‘State’’ consistent with the            requirements for initial certification.
                                                      which is approved by the primary care                   definition of ‘‘State’’ for purposes of the            Moreover, ‘‘initial certification’’ is no
                                                      physician.’’ The last sentence of the                   program that provides grants to States                 different from the ongoing annual
                                                      same definition in § 52.2 states that a                 for construction and acquisition of State              certification, except that ‘‘initial
                                                      physician assistant must be able to                     homes. See 38 CFR 59.2. Because this                   certification’’ is provided by the Under
                                                      perform the same tasks ‘‘under the                      proposed definition of ‘‘State’’ would                 Secretary for Health while annual
                                                      appropriate supervision by the primary                  name each of the included territories of               certifications are authorized by the
                                                      care physician.’’ Thus, part 52 requires                the United States, we propose to delete                Director of the VA medical center of
                                                      actual supervision by the primary care                  the reference to ‘‘territories’’ in the                jurisdiction. It is confusing to have the
                                                      physician, but part 51 does not. We did                 definition.                                            same decision, certification, be
                                                      not intend these provisions to be                          We would revise the current                         authorized by two different individuals,
                                                      different, and would require in revised                 regulatory definition of ‘‘State home’’ to             particularly because the annual
                                                      § 51.1 that the physician assistant be                  eliminate the reference to hospital care               certification is then appealable to the
                                                      able to perform such tasks ‘‘under                      because we no longer pay per diem for                  Under Secretary for Health. Therefore,
                                                      appropriate physician supervision.’’                    hospital care through the State home per               the proposed process would refer to the
                                                      This would allow clinicians to                          diem program. This is also an important                initial determination by the Under
                                                      determine on a case-by-case basis what                  reason to eliminate current 38 CFR                     Secretary solely as a ‘‘recognition’’
                                                      level of supervision is required.                       17.190–17.200 which concern in part                    determination, and all subsequent
                                                         We would define a ‘‘program of care’’                                                                       determinations (other than those
                                                                                                              payment of per diem for hospital care in
                                                      as any of the three levels of care for                                                                         following revocation) as
                                                                                                              State homes.
                                                      which VA may pay per diem under part                                                                           ‘‘certifications.’’ We emphasize that this
                                                      51. Current regulations use this term,                     We would define a ‘‘veteran’’ as a
                                                                                                              veteran under 38 U.S.C. 101.                           change would not affect the State homes
                                                      and it is convenient to retain it.                                                                             themselves, because current regulations
                                                         We would revise the definition of                       We would not include from current
                                                                                                              § 52.2 the definition of ‘‘instrumental                require State homes to follow all
                                                      ‘‘State,’’ which currently includes
                                                                                                              activities of daily living’’ because the               applicable regulations in order to obtain
                                                      ‘‘possessions of the United States.’’
                                                                                                              term would not appear in part 51. It is                recognition and initial certification as
                                                      Although this definition is consistent
                                                                                                              no longer necessary to the adult day                   well as annual certification. We believe
                                                      with the definition in 38 U.S.C. 101(20),
                                                      the definition of State home, in 38                     health care program, and is not used in                that it is clearer to distinguish
                                                      U.S.C. 101(19), does not include a home                 the administration of nursing home care                recognition, which requires the Under
                                                      established in a possession of the                      or domiciliary care. Changes to the adult              Secretary for Health’s approval, from
                                                      United States. Because the definition of                day health care program are further                    certification, which requires only
                                                      State in part 51 applies only to part 51,               explained below.                                       approval at the level of the Director of
                                                      and we are not authorized to provide                                                                           the VA medical center of jurisdiction.
                                                                                                              Subpart B—Obtaining Recognition and                    Another significant change is the
                                                      per diem to State homes in possessions                  Certification for Per Diem Payments
                                                      of the United States, we would delete                                                                          delegation to the Under Secretary for
                                                      the reference to possessions in the                       Subpart B would establish the                        Health for all recognition and appeal
                                                      definition of ‘‘State.’’ This is a                      procedures for obtaining State home                    decisions related to domiciliaries. We
                                                      substantive change; however, it has no                  recognition and certification, in order to             believe it is more appropriate for the
                                                      actual impact because there are not any                 receive per diem payments. These                       Under Secretary, who has direct
                                                      State homes established in a possession.                procedures would be common to all                      responsibility for the provision of health
                                                      Also, we are not aware that any                         three programs, except as specifically                 care by VA, to make such decisions.
                                                      possessions have permanent                              noted in the proposed regulations. We                  This difference, and any other
                                                      populations that would justify the                      propose to remove current § 51.10,                     differences between the current
                                                      establishment of a State home.                          because it is unnecessary and merely                   regulations in part 17 regarding State
                                                         The statutory definition of ‘‘State’’                restates information that is set forth in              homes and proposed part 51, would be
                                                      includes ‘‘Territories’’ of the United                  more detail in other sections of subpart               resolved by this rulemaking for the
                                                      States. 38 U.S.C. 101(20). The                          B. Despite the removal of § 51.10, we                  policy reasons set forth in this
                                                      Department of the Interior, which has                   would keep the section numbering in                    rulemaking.
                                                      administrative responsibility for                       subpart B the same, or reasonably                         In current § 51.20(a), we require that
                                                      coordinating federal policy in Island                   similar, to the current numbering.                     requests for recognition be sent to the
                                                      groups in the Insular Area, has                                                                                Chief Consultant, Office of Geriatrics
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                                                                                                              51.20     Recognition of a State Home
                                                      identified the United States Virgin                                                                            and Extended Care (114). The Veterans
                                                      Islands, Guam and American Samoa as                       Section 51.20 is based on current                    Health Administration (VHA) recently
                                                      territories of the United States, and the               regulations governing the recognition                  changed its management structure, so
                                                      Northern Mariana Islands as a                           and certification process, but the                     that the Director of the Office of
                                                      Commonwealth in Political Union with                    proposed rule would establish clearer                  Geriatrics and Extended Care
                                                      the United States, which is treated as a                and simpler procedures, without                        Operations now performs the
                                                      U.S. territory for purposes of the State                making significant substantive changes                 management and operations duties for
                                                      home per diem payment program. See                      to the current process. We discuss the                 State homes that were formerly
                                                      VAOPGCCONCL 10–98 and                                   proposed process in detail below.                      performed by the Chief Consultant of


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34797

                                                      the Office of Geriatrics and Extended                   a case where the Director does not                     ‘‘changes in the use of particular beds
                                                      Care. The proposed rule would change                    recommend recognition. The current                     between recognized programs of care
                                                      references to the ‘‘Chief Consultant’’ to               regulations provide that the State may                 and increases in the number of beds that
                                                      the ‘‘Office of Geriatrics and Extended                 appeal such recommendation to the                      are not described in the previous
                                                      Care’’ in § 51.20(a). We make the same                  Under Secretary for Health; however,                   sentence require certification of the
                                                      change in proposed §§ 51.120(a)(3) and                  the Director is not authorized to award                beds, but not recognition.’’ This means
                                                      51.210(b). VHA will publish policy                      recognition and therefore the Director’s               that a State with a recognized
                                                      documents to inform State homes of the                  recommendation has no direct adverse                   domiciliary and nursing home may
                                                      addresses to which any documents must                   effect on the State. The Director’s                    change the use of one or more beds in
                                                      be mailed.                                              recommendation carries no legal effect,                the domiciliary to nursing home care
                                                         Current §§ 51.20 and 52.20 require                   and merely serves as evidence                          without requesting recognition from the
                                                      that the request for recognition be                     considered by the Under Secretary for                  Under Secretary for Health. A survey
                                                      signed by ‘‘the State official authorized               Health. Therefore, it would be incorrect               would still be required, but only
                                                      to establish the State home.’’ State                    to characterize the State’s response to                certification by the Director would be
                                                      homes are often established through acts                this recommendation as an appeal. At                   needed. This would allow State homes
                                                      of the State legislature. Therefore, we                 the same time, the Director’s                          to change the uses of beds without going
                                                      would revise the language to require                    recommendation may influence the                       through the cumbersome recognition
                                                      signature by ‘‘the State official                       Under Secretary for Health’s                           process and at the same time would
                                                      authorized to make the request.’’ This is               determination on the recognition                       enable VA to ensure that the State home
                                                      in fact how the current process works,                  request, and therefore the State should                meets the applicable standards of care
                                                      so this revision would merely be a                      have an opportunity to present evidence                and can adequately meet the needs of
                                                      clarification. Current § 17.191 requires                to the Under Secretary for Health to                   the new residents assigned to those
                                                      that applications for recognition of State              support a decision that is contrary to the             beds.
                                                      home domiciliaries be filed with the                    Director’s recommendation. Thus, we                       We note that current §§ 17.190
                                                      Under Secretary for Health and provides                 would explain that the State must be                   through 17.193 impose several
                                                      that the Secretary of VA will make the                  afforded 30 days to submit a response                  requirements regarding recognition and
                                                      final decision after considering a                      and any additional evidence to the                     certification of State home
                                                      recommendation from the Under                           Under Secretary for Health.                            domiciliaries. Some of these
                                                      Secretary for Health. As noted above,                      In proposed paragraph (c), we would                 requirements are similar to the
                                                      the proposed rules would delegate                       clearly state that the Under Secretary for             requirements in this Notice of Proposed
                                                      recognition authority to the Under                      Health’s decision may be appealed to                   Rulemaking, but others conflict. For
                                                      Secretary for Health. In addition,                      the Board of Veterans’ Appeals. This is                example, current § 17.192 provides that
                                                      proposed § 51.20 would make the                         consistent with current law and practice               separate applications for domiciliary
                                                      process of requesting and obtaining                     and current § 51.30(f), but is not clearly             recognition must be filed for any annex,
                                                      recognition of a State home domiciliary                 stated in our regulations governing per                branch, enlargement, expansion, or
                                                      otherwise consistent with the process                   diem for State home domiciliaries and                  relocation of a recognized home that is
                                                      applicable to State nursing homes and                   adult day health care programs.                        not on the same or contiguous grounds
                                                      adult day health care programs. There is                   In addition, current § 52.30(a)(1)                  on which the parent facility is located.
                                                      simply no longer any reason to support                  requires the Director to make a                        But proposed § 51.20(d) would require a
                                                      using different procedures.                             ‘‘tentative determination’’ regarding                  separate application for recognition of
                                                         Proposed § 51.20(b)(1) would state                   recognition and certification, while                   any such change, regardless of whether
                                                      that after receiving a request for                      current § 51.30(a)(2) requires the                     the change would be made on the same
                                                      recognition under § 51.20(a), VA will                   director to make a ‘‘recommendation.’’                 or contiguous grounds. This is necessary
                                                      survey the home in accordance with                      The latter is more accurate, and § 51.30               to ensure that the facility continues to
                                                      § 51.31. This is consistent with current                would accordingly refer throughout to a                meet the standards applicable to
                                                      practice governing domiciliaries and                    ‘‘recommendation.’’                                    domiciliaries. It is also consistent with
                                                      with current §§ 51.30 and 52.30.                           Proposed § 51.20(d) is based on the                 the manner in which VA handles
                                                      Paragraph (b)(1) would also provide that                last sentences of current §§ 51.30(b) and              similar applications in the nursing
                                                      in surveying the home VA must                           52.30(b). Paragraph (d)(1) would clarify               home or adult day health care contexts.
                                                      determine if the home meets the                         that recognition of a home means that
                                                      standards set forth in this Part and that               the State home met all applicable                      51.30 Certification
                                                      those standards which impose                            requirements of part 51 at the time of                    Proposed § 51.30 is based on the
                                                      requirements on State homes would                       recognition. Paragraph (d)(1) would also               annual and provisional certification
                                                      apply to homes that are being                           indicate, for purposes of clarity, that                requirements in current §§ 51.30 and
                                                      considered for recognition. This is                     certification must thereafter be obtained              52.30. Although the recognition process
                                                      necessary because proposed § 51.2                       no later than 450 days after the home is               proposed in § 51.20 is similar to the
                                                      defines ‘‘State home’’ as a home that has               recognized and every 450 days                          current process, we propose significant
                                                      already been recognized by VA.                          thereafter, in accordance with                         simplifications and changes to the
                                                         Paragraphs (b)(2) and (3) would                      § 51.30(b).                                            certification process that will improve
                                                      require the Director to submit to the                      Proposed paragraph (d)(2) would state               VA’s ability to authorize programmatic
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                                                      Under Secretary for Health a written                    that ‘‘any new annex, new branch, or                   changes and allow State homes greater
                                                      recommendation for or against                           other expansion in the size of a home                  flexibility in meeting the needs of their
                                                      recognition. Proposed paragraph (b)(3),                 or any relocation of the home to a new                 resident populations.
                                                      concerning recommendations against                      facility must be separately recognized.’’                 Proposed paragraph (a) would state
                                                      recognition, is based on parallel                       This is consistent with current practice               that State homes must allow a VA
                                                      provisions in the current regulations;                  and §§ 51.30(b) and 52.30(b). We also                  survey of the home in order to be
                                                      however, we would revise the                            propose in paragraph (d)(2) a                          certified by VA. It would also state that
                                                      description, currently in §§ 51.30(a)(2)                substantive change to the current                      a State home must be certified within
                                                      and 52.30(a)(2), of the State’s rights in               requirements, which would be that                      450 days after the State home is


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                                                      34798                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      recognized and that certifications expire               provide guidance to the State home in                  certification mandatory, but would
                                                      600 days after they are issued. This                    advance of VA’s certification survey.                  allow the Director the discretion to issue
                                                      would ensure that VA has sufficient                        In proposed paragraph (c)(2), we                    another one if the State submits a new
                                                      time to survey and recertify State homes                would require the State to report to the               written plan to remedy each remaining
                                                      if certification is warranted. This                     Director any decreases in the number of                deficiency within a reasonable time.
                                                      provision is based on current §§ 51.30(c)               beds available and an explanation of                   The new written plan must be
                                                      and 52.30(c), with clarifications due to                such decrease within 30 days.                          submitted no later than 20 days after the
                                                      the proposed simplified certification                   Currently, 38 CFR 51.30(b) requires                    expiration of the time specified to
                                                      procedures.                                             certification when a State home reduces                remedy all deficiencies in the original
                                                         Proposed § 51.30(b)(1) would state                   the number of beds, and we do not                      plan, which VA has determined is a
                                                      that the Director of the VA medical                     believe that it is a good use of resources             reasonable time to develop a plan to
                                                      center of jurisdiction would certify a                  to require VA, or the State home, to go                remedy any remaining deficiencies.
                                                      State home based on a survey conducted                  through the certification process in such              This would enable a case-specific
                                                      at least once every 270–450 days, at                    cases. Thus, under paragraph (c)(2),                   approach, so that State homes that have
                                                      VA’s discretion, and would require the                  decreases in size would be explicitly                  made efforts to correct problems and
                                                      Director to notify the State home of a                  exempted from requiring certification.                 that otherwise provide important
                                                      certification decision within 20 days of                   Proposed paragraph (d) would govern                 services to veterans can continue to
                                                      the decision. Twenty days is sufficient                 the provisional certification process.                 receive per diem, but VA would not be
                                                      time for VA to ensure notification, and                 Paragraph (d)(1) would require the                     required to fund State homes that, in the
                                                      is comparable to the time periods                       Director to issue a provisional                        Director’s view, have not shown either
                                                      required for other actions under this                   certification under specified                          the ability or willingness to correct
                                                      rulemaking. See proposed                                circumstances. This is mostly consistent               problems. Under paragraph (e), the State
                                                      § 51.30(c)(1)(iii). Requiring a periodic                with current practice. We would require                home would have the right to appeal the
                                                      survey is entirely consistent with                      that the State’s corrective action plan be             Director’s decision not to issue an
                                                                                                              submitted to the Director no later than                additional provisional certification,
                                                      current regulations and practice as to all
                                                                                                              20 days after receipt by the State home                which is described in more detail in the
                                                      three programs of care.
                                                                                                              of the survey report. If the State does not            discussion of proposed § 51.30(e) that
                                                         Proposed paragraph (c) would revise                  submit a corrective action plan within
                                                      VA’s current certification procedures to                                                                       follows.
                                                                                                              20 days, the Director would not issue a                   Proposed § 51.30(e) is based on
                                                      make it easier for a State to change the                provisional certification. Twenty days is              current § 51.30(a)(2), (d), (e), and (f), and
                                                      size of a recognized program of care.                   a reasonable amount of time,                           parallel provisions in current § 52.30.
                                                      Under current regulations, changes to                   particularly because proposed § 51.30(b)               Although the information on notice and
                                                      the size of a program of care require a                 would require VA to provide a copy of                  the right to appeal is reorganized, it is
                                                      new recognition decision.                               the survey report within 20 days after                 not substantively different, except as
                                                         In proposed paragraph (c)(1), we                     the survey is completed. We would                      noted below.
                                                      would require only a new survey and                     provide that the Director must                            First, in § 51.30(e), we would
                                                      certification decision when an existing                 determine that the corrective action                   eliminate any implied right to appeal
                                                      State home increases the number of                      plan is reasonable. We would also                      provisional certifications. These
                                                      available nursing home or domiciliary                   require the Director to send written                   certifications have no adverse effect on
                                                      beds in a recognized program of care,                   notice to the appropriate person(s) at the             the State, and, indeed, the State must
                                                      except increases described in the first                 State home informing them that the                     agree to correct any deficiency before
                                                      sentence of § 51.20(d)(2), or when a                    Director agrees with the plan.                         VA would issue a provisional
                                                      State home recognized to provide both                      The current regulations recommend                   certification. Therefore, there is no need
                                                      domiciliary and nursing home care                       that certifications, including provisional             to appeal provisional certifications.
                                                      switches beds between recognized                        certifications, should be made every 12                   In proposed § 51.30(e)(1) through (3),
                                                      programs of care. The proposed                          months. But they do not address how a                  we would clearly set forth the review
                                                      regulations would allow the Director to                 provisional certification of more than 12              and appeal procedures for a decision by
                                                      precertify, at the request of a State                   months would affect the annual                         VA not to issue a certification of a State
                                                      home, the increased number of beds or                   certification requirement. This can be                 home. Currently, VA delegates the
                                                      beds switched between recognized                        confusing. Therefore, proposed                         annual certification process to its local
                                                      programs of care in an existing State                   paragraph (d)(2) would clarify that VA                 VA medical center Directors—unlike the
                                                      home so that payments can be made for                   will continue to survey the State home                 recognition decision, which is made by
                                                      care of eligible veterans in these beds                 while it is under a provisional                        the Under Secretary for Health.
                                                      during the certification survey process                 certification in accordance with                       Therefore, an appeal from the Director’s
                                                      for up to 360 days or until VA issues a                 proposed §§ 51.30 and 51.31, and will                  decision includes review by the Under
                                                      certification decision, whichever occurs                continue the provisional certification so              Secretary for Health. The proposed rule
                                                      first. We would provide that                            long as the criteria for issuing the initial           is consistent with current practice. Also
                                                      precertification would be authorized if                 provisional certification, listed in                   consistent with current practice, we
                                                      the Director reasonably expects, based                  proposed paragraph 51.30(d)(1), remain                 would explain in paragraphs (e)(1) and
                                                      on prior surveys and any other relevant                 true. This means that if new deficiencies              (e)(2) that per diem payments will
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                                                      information, that the State home would                  are identified during an annual survey,                continue during the appeals process.
                                                      continue to comply with part 51 until                   then a new provisional certification (or               Finally, we would state in § 51.30(e)(3)
                                                      the State home is surveyed and                          denial of certification) would be                      that a denial of certification may be
                                                      certified. We would also provide that                   required as to those new deficiencies.                 appealed to the Board of Veterans’
                                                      VA would pay per diem for the care of                      Proposed paragraph (d)(3) would                     Appeals only if it results in a loss of
                                                      eligible veterans in the beds provided                  clarify what happens if a State home                   payments to the State, and that VA
                                                      on and after the date the Director                      fails to adhere to the corrective action               would discontinue payment of per diem
                                                      precertifies the beds. Permitting                       plan. In such instances, we would no                   if the Under Secretary for Health affirms
                                                      precertification would allow VA to                      longer make issuance of a provisional                  the Director’s decision. The current


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34799

                                                      regulation at § 51.30(f) allows States to               deficiencies. VA believes that only a                    Proposed § 51.31(c) is based on
                                                      appeal any denial of certification to the               survey of that part of the home that                   current §§ 51.30(g) and 52.30(g), without
                                                      Board of Veterans’ Appeals. VA                          would permit a determination as to                     substantive change.
                                                      proposes this change because                            whether the standards have been met                    51.32 Terminating Recognition
                                                      deficiencies at a State home that do not                would be necessary. Accordingly,
                                                      result in a loss of per diem payments are               § 51.31(a) would permit surveys to cover                 As noted above, proposed § 51.32 is
                                                      best remedied through a written plan                    all parts of a home or only certain parts.             based on the first sentence of current
                                                      and corrective actions, as required by                                                                         §§ 51.30(b) and 52.30(b). VA would
                                                                                                                 In the last sentence of proposed                    terminate recognition of a State home if
                                                      proposed paragraph (d). Under the
                                                                                                              paragraph (a), we would permit the                     the State requests that VA terminate it
                                                      proposed rule, VA would terminate
                                                                                                              Director to designate VA officials and/                or if VA makes a final decision not to
                                                      payments on the date of a decision
                                                                                                              or contractors to survey a home. The                   certify the State home.
                                                      affirming the denial of certification, or
                                                                                                              designation of contractors is not
                                                      on a later date specified in the decision                                                                      Subpart C—Eligibility, Rates, and
                                                      by the Under Secretary for Health,                      specifically authorized by the current
                                                                                                              regulations, but it reflects the modern                Payments
                                                      which allows the Under Secretary to
                                                      accommodate State homes that lose                       way in which VA conducts these                         51.40 Basic Per Diem Rates
                                                      certification while providing care to                   surveys. The use of contractors, rather
                                                                                                                                                                        Proposed § 51.40 would set forth the
                                                      veterans.                                               than local VA employees, is one way in
                                                                                                                                                                     basic method for calculating the basic
                                                         Proposed § 51.30(f) would state that                 which VA attempts to ensure that
                                                                                                                                                                     per diem payment rate, and establish
                                                      appeals of all other matters will be                    surveys across the country are
                                                                                                                                                                     that this method is the same for all three
                                                      governed by VHA’s appeals regulations                   conducted in a timely and similar                      programs. The per diem rates would be
                                                      in 38 CFR part 20.                                      manner. Moreover, we would eliminate                   calculated in the same manner as they
                                                         Current § 51.31, ‘‘Automatic                         the current language stating that the                  are in the current regulations, but
                                                      recognition,’’ was essentially a                        surveying team ‘‘may include’’ certain                 technical aspects of the rules on per
                                                      grandfather clause allowing those State                 listed professionals (i.e., physicians,                diem rates are outdated or in need of
                                                      homes recognized by VA at the time that                 nurses, fiscal officers, etc.), because the            revision and would be updated.
                                                      part 51 was promulgated in 2000 to                      language is hortatory and because we                      First, current § 17.197, applicable to
                                                      maintain their recognition, but requiring               have found that the use of specifically                domiciliary care, indicates that VA will
                                                      them to be certified annually. There is                 trained contractors has, in most cases,                publish the actual per diem rates,
                                                      no need to maintain this provision                      eliminated the need to include some of                 whenever they change, in a Federal
                                                      because all such State homes have been                  these professionals.                                   Register Notice. Proposed § 51.40 does
                                                      ‘‘grandfathered in.’’ We therefore                         Proposed § 51.31(b)(1) would                        not include this requirement because
                                                      propose to remove this section.                         establish the minimum occupancy                        any State home providing domiciliary
                                                      51.31 Surveys for Recognition and/or                    threshold required before VA will                      care would be given actual and timely
                                                      Certification                                           conduct a recognition survey of a                      notice of any changes in the per diem
                                                                                                              domiciliary. We would require that a                   rates. Second, current § 52.40(a)(1),
                                                        Proposed § 51.31 concerns surveys,                                                                           which applies to adult day health care,
                                                      and applies to both the first VA survey                 domiciliary have at least 21 residents or
                                                                                                              a number of residents consisting of at                 includes an outdated reference to the
                                                      for recognition and surveys for                                                                                rate for fiscal year 2002. The current
                                                      certification. Paragraph (a) is based on                least 50 percent of the resident capacity
                                                                                                              of the domiciliary before VA will                      rule on basic per diem rates for nursing
                                                      current §§ 51.30(c) and 52.30(c), except                                                                       home care, at § 51.40(a)(2), is also
                                                      as noted below.                                         undertake a survey. This is the same
                                                                                                              requirement for nursing homes which is                 outdated because it refers to the rate for
                                                        VA routinely conducts annual surveys                                                                         fiscal year 2008. The rates are currently,
                                                      without advance notice, but VA always                   in current § 51.30(a)(1) and which we
                                                                                                              propose including in this paragraph.                   and would continue to be, established
                                                      provides advance notice before the                                                                             in accordance with 38 U.S.C. 1741(a)
                                                      recognition survey is conducted. In fact,               Proposed § 51.31(b)(2) would establish
                                                                                                              the minimum participation threshold                    and (c). We propose to make a more
                                                      for recognition surveys VA wants the                                                                           general statement, without reference to
                                                      home to be fully prepared so that VA                    required before VA will conduct a
                                                                                                                                                                     any particular fiscal year, describing
                                                      can determine whether it has the                        recognition survey of an adult day
                                                                                                                                                                     how the basic per diem rate is
                                                      capability to meet the applicable                       health care program. For an adult day
                                                                                                                                                                     calculated. This would ensure that our
                                                      requirements. Accordingly, proposed                     health care program of care, we would
                                                                                                                                                                     regulations do not become outdated
                                                      § 51.31(a) would indicate that VA will                  require that it have at least 10
                                                                                                                                                                     within a year of publication.
                                                      provide advance notice before a                         participants or a number of participants                  Proposed § 51.40(b) would set forth
                                                      recognition survey, and may notify the                  consisting of at least 50 percent of                   VA’s formula for calculating the daily
                                                      State before other surveys. This is a                   participant capacity. We believe that                  cost of care of a veteran, which is
                                                      substantive change to both parts 51 and                 this is the minimum participant                        consistent with current practice and
                                                      52 that should improve the ability of                   capacity necessary for VA to determine                 regulation at § 51.43(e). We do not
                                                      State homes to prepare for VA                           whether the program is able to meet the                propose any substantive revisions to
                                                      recognition surveys.                                    applicable standards. We also note that                this formula for calculating basic per
                                                        Current VA regulations (§§ 51.30(c)                   the current rule applies the occupancy                 diem rates.
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                                                      and 52.30(c)) provide that a survey will                requirement to ‘‘new’’ nursing homes.                     Paragraph (c) of proposed § 51.40
                                                      cover all parts of a nursing home or                    By ‘‘new,’’ we intended to refer to                    would incorporate current § 51.43(c),
                                                      adult day health care facility. There are               homes that have not previously been                    with minor clarifying changes to the
                                                      times, however, when VA needs to                        recognized, but did not intend the                     paragraph, which was amended by the
                                                      survey only part of a home. For                         requirement to apply only to new                       direct final rule published on September
                                                      example, if a recognition survey finds                  construction. We would remove the                      27, 2012. 77 FR 59318, 59320, Sept. 27,
                                                      that a home does not meet several                       word ‘‘new’’ because it is unnecessary                 2012.
                                                      standards, the State may request another                and potentially ambiguous. No                             Proposed paragraph (d) would
                                                      VA survey after fixing those                            substantive change is intended.                        describe how to determine whether a


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                                                      34800                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      veteran has spent a day in an adult day                 prior month. The proposed rule is also                 medicines furnished under 38 U.S.C.
                                                      health care program. Current                            consistent with payment rules related to               1712(d), as implemented by § 17.96.
                                                      § 52.40(a)(2) defines ‘‘a day’’ as ‘‘[s]ix              domiciliaries, at § 17.198, but provides               Requiring that VA furnish a drug or
                                                      hours or more in one calendar day; or                   greater clarity. Finally, we would add a               medicine only if the drug or medicine
                                                      . . . [a]ny two periods of at least 3 hours             statement to § 51.42(a)(1)(i) to clarify               is included on VA’s National Formulary
                                                      each (but each less than six hours) in                  that nursing home applicants and                       unless VA determines a non-Formulary
                                                      any two calendar days in a calendar                     residents and enrolled adult day health                drug or medicine is medically necessary
                                                      month.’’ A question has arisen regarding                care participants do not need to                       should result in significant savings
                                                      whether time spent in State-provided                    complete the financial disclosure                      because, insofar as possible, the VA
                                                      transportation between the veteran’s                    section of VA Forms 10–10EZ and 10–                    National Formulary consists of generic
                                                      home and the State home, in                             10EZR under certain specified                          medications that often cost much less
                                                      transportation to a health care visit, or               circumstances, but domiciliary                         than brand medications. These are the
                                                      accompanied by State home staff during                  applicants and residents must do so,                   same medications used for VA nursing
                                                      a health care visit, should be included                 and adult day health care applicants                   home residents.
                                                      as time a veteran received adult day                    may be required to provide financial                      Proposed § 51.43(d) is substantively
                                                      health care. If adult day health care                   information to enroll with VA.                         identical to current § 51.43(f). Most of
                                                      were not available to these veterans,                      In paragraph (b)(1), we would state                 current § 51.43 would be deleted and
                                                      they would need to leave their own                      that payments will not be made until                   reincorporated into proposed § 51.40,
                                                      residences for nursing home care, and                   the home is recognized, which is                       but paragraph (f) deals specifically with
                                                      therefore special State-provided                        consistent with the current regulations,               payments for drugs and medicines, and
                                                      transportation is an important part of                  and that each veteran resident is                      therefore would be moved to proposed
                                                      their care. State homes offer most adult                verified as eligible for the program,                  § 51.43. For consistency and to avoid
                                                      day health care program participants                    which is not stated in the current                     confusion, we propose to require that
                                                      transportation to and from health care                  regulations, but has been VA’s                         States also submit a completed VA Form
                                                      visits with drivers who are certified in                consistent practice, as VA may only pay                10–0460 when requesting drugs for
                                                      basic life safety and can provide basic                 for care provided to veterans who are                  veterans eligible under § 17.96.
                                                      assessments, ambulation escorts,                        eligible for the program.                              51.50–51.52 Eligibility
                                                      wheelchair lift services, and proper                       In paragraph (b)(2), we would clarify
                                                      handoffs at the site of the health care                 that VA will make payments for care in                    Proposed §§ 51.50, 51.51, and 51.52
                                                      visit. Transportation between the                       beds certified or precertified under                   would set forth the eligibility criteria
                                                      veteran’s residence and the State home                  § 51.30(c) retroactive to the date of                  that a veteran must meet in order for
                                                      includes door-to-door care. Therefore, to               precertification of the beds and to the                that veteran’s care to serve as a basis for
                                                      ensure continuity of care, we believe                   date of the completion of the survey if                a per diem payment under each of the
                                                      that time spent in transportation and                   the Director certifies the beds as a result            three programs. The minimum periods
                                                      accompanied by State home staff should                  of that survey. The current regulations                of active duty service required in 38
                                                      be included as times that veterans                      in §§ 51.43(d) and 52.40(a)(4) specify                 U.S.C. 5303 and 5303A apply to all
                                                      receive adult day health care, and we                   that VA will pay retroactive to the date               three programs of care; therefore
                                                      propose to clarify paragraph (d)(3)                     of the completion of the recognition                   proposed §§ 51.50, 51.51, and 51.52
                                                      accordingly.                                            survey, but do not address                             would each state the requirement. The
                                                                                                              precertification and certification of State            minimum service requirement is in the
                                                      51.42 Payment Procedures                                                                                       current adult day health care regulations
                                                                                                              home beds provided for in proposed
                                                        Proposed § 51.42(a)(1) is based on                    § 51.30(c).                                            at § 51.52, but was inadvertently
                                                      current §§ 51.43(a) and 52.40(a)(5);                       Proposed paragraph (b)(3) explains                  omitted from the nursing home
                                                      proposed § 51.42(a)(2) is based on                      when VA would begin making                             eligibility regulations in current § 51.50.
                                                      current §§ 51.43(b) and 52.40(a)(3);                    payments or make retroactive payments                  Nevertheless, VA has enforced this
                                                      proposed § 51.42(b)(1) is based on                      based on the State home’s submissions                  provision, as required by law, and
                                                      current §§ 51.43(d) and 52.40(a)(4);                    of forms in accordance with the                        therefore this proposed rule does not
                                                      proposed § 51.42(b)(2) is based on                      proposed rule. VA proposes to expand                   impose a new limitation on eligibility.
                                                      current §§ 51.43(d) and 52.40(a)(4).                    the current deadline to receive                        In addition, in these sections we adopt
                                                      Proposed 51.42(b)(3) is based on current                paperwork and begin per diem                           the interpretation of 38 U.S.C. 101(2)
                                                      §§ 51.43(a) and 52.40(a)(5). Slight                     payments from 10 days to 12 days.                      regarding the character of discharge
                                                      differences between regulations in parts                                                                       required for the provision of VA benefits
                                                      51 and 52 have been corrected to                        51.43 Drugs and Medicines for Certain                  to veterans that is set forth in 38 CFR
                                                      accurately reflect the forms required                   Veterans                                               3.12. The interpretation of 38 U.S.C.
                                                      under this section.                                        Proposed § 51.43(a) is substantively                101(2) regarding the character of
                                                        In proposed paragraph (a)(1), we                      identical to current § 51.42(a); the only              discharge is adopted in order to be
                                                      would clarify that the forms required                   changes made were technical changes to                 consistent with the interpretation
                                                      under the regulation must be submitted                  conform to the proposed reorganization.                adopted for purposes of other VA
                                                      when a veteran is admitted to a State                      Proposed § 51.43(b) would reference                 benefit programs.
                                                      home (for State homes that have already                 the other authority for VA to provide                     Section 51.50 (nursing home care) is
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                                                      been recognized and certified), or at the               drugs and medicines to veterans in a                   virtually identical to current § 51.50,
                                                      time of the recognition survey (for a                   State home: 38 U.S.C. 1712(d), as                      except for the addition of the
                                                      home that a State has submitted an                      implemented by § 17.96. Consistent                     requirement regarding the character of
                                                      application for recognition as a State                  with current § 51.41(c), this authority                the veteran’s discharge and certain other
                                                      home).                                                  would be subject to the limitation in                  minor technical changes. We propose to
                                                        In addition, we would clarify in                      proposed § 51.41.                                      add veterans who were awarded the
                                                      paragraph (a)(2) that the VA Form 10–                      Proposed § 51.43(c) is based on                     Purple Heart or the medal of honor to
                                                      5588 must be submitted every month in                   current § 51.42(b). We propose to extend               the eligibility category in § 51.50(b)
                                                      order for VA to pay per diem for the                    its application, however, to drugs and                 because these veterans are now eligible


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34801

                                                      by statute. See 38 U.S.C. 1705(a)(3),                   broaden the potential adult day health                 ‘‘Standards’’ to ensure clarity and aid
                                                      1710(a)(2)(D). We propose to remove the                 care population to include others who                  readers in distinguishing between the
                                                      provision regarding eligibility for                     could benefit from such care. In the                   new standards being set forth for
                                                      veterans of the Mexican border period                   regulation text, the medical model                     domiciliary and adult day health care.
                                                      and World War I, because there are no                   would be referred to as an adult day                   These standards are currently set forth
                                                      living veterans of these eras. We also                  health care program that offers medical                at §§ 51.70–51.210, and would not be
                                                      propose to add a note to § 51.50 to                     supervision. We are attempting to                      changed by this notice of proposed
                                                      clarify that enrollment and eligibility to              encourage States to provide adult day                  rulemaking, except as noted below.
                                                      enroll in the VA health care system are                 health care for our Nation’s veterans.
                                                      not required for a veteran to be an                     For example, we would eliminate the                    51.140     Dietary Services
                                                      ‘‘eligible veteran’’ for purposes of per                requirement that the veteran be
                                                      diem payments. Finally, we propose to                   dependent in three or more                                Current § 51.140(d)(4) requires a State
                                                      add veterans seeking care ‘‘for any                     instrumental activities of daily living                home to offer substitutes of similar
                                                      illness associated with service in                      (such as using a telephone, cooking,                   nutritive value to residents ‘‘who refuse
                                                      combat in a war after the Gulf War or                   shopping, etc.), and instead require that              food served.’’ We propose to delete
                                                      during a period of hostility after                      the veteran be dependent in three                      ‘‘who refuse food served.’’ We do not
                                                      November 11, 1998, as provided and                      activities of daily living (such as                    believe that residents should have to
                                                      limited in 38 U.S.C. 1710(e)’’ because                  ambulation, eating, bathing etc.). This                refuse food in order to be offered
                                                      these veterans are now eligible by                      decreased dependency requirement                       alternative choices. Residents should
                                                      statute. See 38 U.S.C. 1710(e)(1)(D),                   reflects our desire to permit State homes              always have more than one option at
                                                      (e)(2)–(3).                                             to provide an alternative to the medical               meal time.
                                                         Current § 17.194 provides that VA                    model of adult day health care and to
                                                      pays per diem for domiciliary care for                  increase the number of veterans who                    51.210     Administration
                                                      veterans who are eligible for domiciliary               could qualify for this less-                              We would amend the current rule
                                                      care in a VA domiciliary. This is                       institutionalized form of care. This
                                                      consistent with the statutory                                                                                  concerning administration of nursing
                                                                                                              rationale explains the other changes                   homes, which we also propose to make
                                                      requirement in 38 U.S.C. 1741(a).                       from the current requirements, such as
                                                      However, we believe that it would be                                                                           applicable in whole to domiciliaries and
                                                                                                              the elimination of the requirements of
                                                      useful to the States and VA personnel                                                                          in part to adult day health care
                                                                                                              recent discharge from a nursing home or
                                                      for the regulation to set forth which                   hospital and of significant cognitive                  programs. The amendment would
                                                      veterans are eligible for domiciliary care              impairment characterized by multiple                   require a State home to disclose to VA
                                                      in VA facilities. Eligibility for VA                    behavior problems.                                     whenever there is a change in the State
                                                      domiciliary care is set forth in                           Proposed § 51.52(d) would allow VA                  home’s director of nursing services, or
                                                      §§ 17.46(b) and 17.47(b)(2). Proposed                   to pay for adult day health care based                 any other individual who is in charge of
                                                      § 51.51 would thus describe the veterans                on less severe disabilities than those for             nursing services. Such changes may
                                                      who meet the requirements set forth in                  which veterans currently may be                        have significant ramifications for a State
                                                      §§ 17.46(b) and 17.47(b)(2) and state that              eligible. This change would expand the                 home, and may also affect VA’s
                                                      they are ‘‘eligible veterans’’ for the                  cohort of eligible veterans and assist in              coordination of VA care with the care
                                                      purpose of payment of per diem for                      cultivating a broader spectrum of adult                provided by the State home. Therefore,
                                                      domiciliary care in a State home.                       day health care programs, which would                  VA needs to be aware of the change. We
                                                         Section 51.52 would set forth the                    be consistent with the rest of this                    note that most adult day health care
                                                      criteria for determining whether a                      rulemaking.                                            programs do not offer nursing services;
                                                      veteran’s care is eligible for per diem for
                                                                                                              51.58 Standards Applicable for                         however, this paragraph would apply to
                                                      adult day health care. Based on a
                                                      statutory change to 38 U.S.C.                           Payment of Per Diem                                    those that do. Thus, the proposed
                                                      1720(f)(1)(A), a veteran is now eligible                                                                       change would require those adult day
                                                                                                                Proposed § 51.58 is based on current
                                                      for adult day health care if the veteran                                                                       health care programs that have a person
                                                                                                              §§ 51.60 and 52.60, without substantive
                                                      is enrolled in the VA health care system                                                                       in charge of nursing services to notify
                                                                                                              change.
                                                      and otherwise would require nursing                                                                            VA when such person changes.
                                                      home care. Accordingly, § 51.52 would                   51.59 Authority To Continue Payment                       VA proposes to add a new paragraph
                                                      reflect the new requirement.                            of Per Diem When Veterans Are                          (h)(3) to clarify procedures for State
                                                         In addition, we propose to include in                Relocated Due to Emergency
                                                                                                                                                                     homes to assist veterans who need
                                                      paragraph (d) criteria that reflect the                   Proposed § 51.59 is substantively                    health care that State homes are not
                                                      level of care required by a veteran who                 identical to current § 51.59, which was                required to provide under part 51. This
                                                      would benefit from adult day health                     promulgated on September 8, 2011, after                provision would state that State homes
                                                      care. These criteria are derived from                   having been published for public                       may assist the veteran with seeking care
                                                      current § 52.80, but have been modified                 comment. See 76 FR 55570. A few                        from other sources, including VA. It
                                                      (made less stringent) to encompass an                   minor, technical changes are included
                                                      alternative model in addition to the                                                                           would also state that if VA is contacted,
                                                                                                              that would conform to this rewritten
                                                      medical model required by current                                                                              VA would make a determination about
                                                                                                              regulatory framework.
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                                                      § 52.80. For example, the requirements                                                                         the best way to provide the needed
                                                      in proposed paragraph (c) are identical                 Subpart D—Standards Applicable to                      services and would notify the Veteran,
                                                      to the requirements in current § 52.80,                 the Payment of Per Diem for Nursing                    or the authorized representative, of that
                                                      except that we would add criteria to                    Home Care                                              decision. This is consistent with the
                                                      address individuals who live alone in                     Subpart D would set forth the                        manner in which VA currently handles
                                                      the community or who are determined                     standards applicable to the payment of                 these situations, and ensures that
                                                      by a VA licensed medical practitioner to                per diem for nursing home care. VA                     veterans receive all needed health care.
                                                      need adult day health care services.                    proposes to change the title of this
                                                      These additional criteria should                        subpart from the current title of


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                                                      34802                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      Subpart E—Standards Applicable to the                   in domiciliary programs of care, as they               home resident, and therefore
                                                      Payment of Per Diem for Domiciliary                     do for residents in State nursing homes.               domiciliary residents require less
                                                      Care and Subpart F—Standards                            We would thus require domiciliary                      skilled nursing care. Due to these key
                                                      Applicable to Adult Day Health Care                     programs of care to comply with § 51.70,               differences, we cannot simply adopt the
                                                      Programs of Care                                        51.80, 51.90, and 51.100.                              standards applicable to nursing homes;
                                                         Subpart E would provide the                                                                                 therefore, we would modify them to
                                                                                                              51.310 Resident Assessment
                                                      standards for domiciliary care. As we                                                                          meet the generally accepted needs of
                                                                                                                 The proposed rule is based on current               domiciliary residents. These standards
                                                      have noted throughout this notice, these                § 51.110. However, different specific                  are similar to the expectations currently
                                                      standards would supersede all existing                  requirements would apply in                            placed on State home domiciliaries. We
                                                      regulations, directives, handbooks, or                  paragraphs (b) through (d) because                     welcome comments on these provisions,
                                                      other statements of policy to the extent                under § 51.110(b)(1)(i), which would not               but expect that they will not present a
                                                      that some might be read to conflict with                be revised by this rulemaking, the                     new burden to the affected State homes.
                                                      these proposed regulations. Subpart F                   assessment tool for nursing homes is a
                                                      would be based on current part 52,                      nationally published tool, the Resident                51.340 Physician and Other Licensed
                                                      subpart D (current §§ 52.60 et seq.).                   Assessment Instrument/Minimum Data                     Medical Practitioner Services
                                                      Several sections in current part 52,                    Set. No such tool exists for domiciliaries                We propose to establish that State
                                                      subpart D, were intended to be (or are)                 or adult day health care programs. The                 homes must provide the necessary
                                                      identical to sections in current part 51,               requirements that would apply under                    primary care for their residents. This is
                                                      subpart D. Rather than restate identical                the proposed rule are currently used by                consistent with VA General Counsel
                                                      requirements, we would simply refer                     VA in assessments of State home                        Precedent opinion 1–2014 which is on
                                                      the reader to the current part 51 section.              domiciliary and adult day health care                  the web at: http://www.va.gov/OGC/
                                                      We believe that this would simplify the                 programs of care. We welcome                           docs/2014/VAOPGCPREC1-2014.pdf.
                                                      process and help all parties concerned—                 comments on these provisions, but                      We also propose that when a resident
                                                      residents, their families, State staff, and             expect that they will be familiar to the               needs care that is other than what the
                                                      VA surveyors—understand where                           affected State homes.                                  State home is required to provide under
                                                      identical requirements are intended.                                                                           this subpart, the State home is
                                                      However, there may be a few examples                    51.320 Quality of Care                                 responsible for assisting the resident in
                                                      where we have restated the                                 Proposed § 51.320 is based on current               obtaining that care. This would allow
                                                      requirements rather than cross-reference                § 51.120, which describes quality of care              State homes to refer veterans to VA and
                                                      them—this was done for ease of use.                     standards for State home nursing home                  other outside providers for care that the
                                                         We would do the same when identical                  residents; however, we would tailor the                State home is not required to provide.
                                                      standards apply to domiciliary care in                  proposed regulation to the needs of the                Under the proposed rule, we would
                                                      subpart E, for which we do not currently                domiciliary care population, which is                  require that a physician must
                                                      have detailed regulatory standards.                     generally capable of a greater level of                ‘‘personally approve[ ] in writing a
                                                         Finally, we would remove several                     self-care than those in nursing homes.                 recommendation that an individual be
                                                      sections from subpart D of part 52,                     For this reason, the examples of                       admitted to a domiciliary.’’ We would
                                                      without proposing parallel sections in                  ‘‘sentinel events’’ in paragraph (a)(2) are            also require that each resident ‘‘must
                                                      part 51. First, we propose to remove                    slightly different; however, the term is               remain at all times under the care of a
                                                      § 52.61without establishing a similar                   intended, and defined, to have the same                licensed medical practitioner assigned
                                                      provision in subpart F. Current § 52.61,                meaning throughout part 51.                            by the State home.’’ This accommodates
                                                      ‘‘General requirements for adult day                       Paragraphs (d) through (f), (h) and (k)             those homes that may utilize, in
                                                      health care program,’’ describes a                      of current § 51.120 would not be                       addition to primary care physicians,
                                                      program requiring medical supervision,                  included in the proposed rule because                  other practitioners who are licensed to
                                                      which is cost prohibitive for many                      they pertain to medical issues that                    practice medicine. We clearly define by
                                                      States. Thus, there are currently only                  would not be presented by domiciliary                  title those professions to be considered
                                                      two adult day health care programs in                   residents. In proposed § 51.320(f), we                 licensed medical practitioners in
                                                      the nation. We are restructuring                        would not include the references to                    proposed § 51.2. By requiring State
                                                      program guidelines to provide States an                 ‘‘[p]arenteral and enteral fluids,’’ which             homes to provide physician services as
                                                      opportunity to establish a range of adult               is contained in current § 51.120(l)(2),                set forth in the proposed regulation, it
                                                      day health care programs that reflect the               ‘‘[t]racheostomy care,’’ which is                      would continue VA policy of not
                                                      needs of the local veteran population.                  contained in current § 51.120(l)(4), or                providing physician services for
                                                      Many States have expressed an interest                  ‘‘[t]racheal suctioning,’’ which is                    Veterans in State home domiciliaries
                                                      in establishing adult day health care                   contained in 51.120(l)(5), because these               because the State home has a duty to
                                                      programs under these proposed new                       services are not provided by                           provide these services. See 38 CFR
                                                      guidelines. More adult day health care                  domiciliaries.                                         17.30(b), 17.38(c)(5).
                                                      programs would help VA support the                                                                                Proposed paragraphs (a) and (b)
                                                      provision of non-institutional care to                  51.330 Nursing Care                                    address the appropriate use and
                                                      veterans who might otherwise be forced                    Proposed § 51.330 would describe the                 supervision of non-physician licensed
                                                      into a nursing home in order to receive                 nursing care required in domiciliaries.                medical practitioners. Under paragraph
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                                                      adequate care. Our goal is to increase                  What would be required would be                        (a), we would require that ‘‘[a]ny
                                                      participation in these non-institutional                similar to what is required in nursing                 licensed medical practitioner who is not
                                                      programs.                                               homes, except that we would not                        a physician may provide medical care to
                                                                                                              require the same level of skilled nursing              a resident within the practitioner’s
                                                      51.300 Resident Rights and Behavior;                    supervision, based on the lower level of               scope of practice without physician
                                                      State Home Practices; Quality of Life                   care required by residents of                          supervision when permitted by state
                                                         Proposed § 51.300 would state that                   domiciliaries. To be admitted,                         law.’’ This would clarify that homes
                                                      States must protect and promote the                     domiciliary residents must retain higher               must ensure that residents receive
                                                      rights and quality of life of participants              functional capabilities than a nursing                 appropriate medical supervision at all


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                             34803

                                                      times. Under proposed paragraph (b),                    residents in State nursing homes. We                   provide most or all of the services
                                                      when the licensed medical practitioner                  would thus require adult day health                    generally performed by caregivers.
                                                      assigned to a particular resident is                    care programs of care to comply with
                                                                                                                                                                     51.415 Restraints, Abuse, and Staff
                                                      unavailable, we would require that the                  § 51.70 except for § 51.70(m) regarding
                                                                                                                                                                     Treatment of Participants
                                                      home ensure that another licensed                       the right of married residents to share a
                                                      medical practitioner be available to                    room when both live in the State home.                    Proposed § 51.415 would apply to
                                                      provide care to that resident. This                                                                            State home adult day health care
                                                      would assist VA in providing a resident-                51.405 Participant and Family                          programs the same requirements
                                                      centered approach to domiciliary care. It               Caregiver Responsibilities                             regarding the use of restraints and staff
                                                      would also provide consistency between                    Section 51.405 would be based on                     treatment of participants as apply to
                                                      the level of care provided to veterans in               current § 52.71, with minor technical                  State home nursing homes.
                                                      State homes and in VA settings, in                      and stylistic revision. Additionally, we               51.420 Quality of Life
                                                      which we utilize supervised licensed                    would revise the introductory paragraph
                                                      medical practitioners.                                  to permit the adult day health care                       Section 51.420 would be based on
                                                         Proposed paragraph (c) would define                  program to provide a copy of the                       current § 52.100, with minor revisions
                                                      the scope of care expected to be                        statement of participant and family                    in paragraph (g). Current § 52.100(g)(3)
                                                      provided by primary care physicians or                  caregiver responsibilities ‘‘at or before              states that the State home must provide
                                                      other licensed medical practitioners to                 the time of the intake screening.’’ The                private storage space for each
                                                      residents during visits. We would                       current regulation requires that the copy              participant sufficient for a change of
                                                      specify that the resident’s total program               be provided at the intake screening,                   clothes. We propose to require that each
                                                      of care be reviewed, to include                         which is too restrictive.                              private storage space be capable of being
                                                      medications and treatment, and that                                                                            secured with a lock for protection of the
                                                                                                              51.410 Transfer and Discharge                          contents. Requiring a lock would ensure
                                                      progress notes documenting each visit
                                                      must be in writing, signed, and dated.                     Section 51.410 is based on current                  that whatever the participant stores in
                                                      We would also require that all orders be                §§ 52.80(b) and 52.210(p), with the                    their private space (such as clothes, a
                                                      signed and dated.                                       substantive changes noted below.                       wallet, or a purse) can be safely stored.
                                                         Proposed paragraph (d) would                            We would not include the                            Current § 52.100(g)(5) requires State
                                                      mandate the frequency of primary care                   requirement in current § 52.80(b)(2) that              homes to provide a clean bed for acute
                                                      physician or other licensed medical                     ‘‘[a]ll participants’ preparedness for                 illness. We propose in § 52.420(g)(5) to
                                                      practitioner visits. We would specify                   discharge from adult day health care                   require that the State home provide
                                                      that the resident must be seen by the                   must be a part of a comprehensive care                 either a clean bed or a reclining chair.
                                                      primary care physician or other licensed                plan.’’ We do not maintain
                                                                                                                                                                     51.425 Physician Orders and
                                                      medical practitioner at least once every                comprehensive care plans for VA-
                                                                                                                                                                     Participant Medical Assessment
                                                      30 days for the first 90 days after                     operated adult day health care
                                                      admission, and at least once a calendar                 programs. The State home must record                     Section 51.425 would restate current
                                                      year thereafter, or more frequently based               information about a participants’                      § 52.110, with a number of changes
                                                      on the condition of the resident. We                    discharge from an adult day health care                concerning physician orders and
                                                      believe this requirement would be                       program in the clinical record as                      participant assessments. This section,
                                                      sufficient to meet the needs of the                     described in § 51.410(c) and the                       among other things, is designed to
                                                      resident population in these homes. It                  participant must receive information                   ensure that appropriate plans of care are
                                                      strikes an appropriate balance between                  about the discharge as described in                    prepared and updated based on
                                                      providing needed medical care and the                   proposed § 51.410(e).                                  assessments.
                                                      lower need for ongoing medical                             Proposed § 51.410(a) also would not                   Proposed paragraph (a) would restate
                                                      supervision of residents in                             include a provision parallel to current                the admission requirements in current
                                                      domiciliaries.                                          § 52.80(b)(3), concerning the                          § 52.110(b), with some changes. We
                                                         Proposed paragraph (e) would                         documentation by a primary physician                   would continue to require a medical
                                                      mandate that the domiciliary provide or                 that is required for a transfer and                    history and physical examination of the
                                                      arrange for the provision of physician or               discharge. We would not include this                   participant, but would additionally
                                                      other licensed medical practitioner                     requirement because the veteran’s                      require documentation of tuberculosis
                                                      services 24 hours a day, 7 days a week,                 primary physician would generally not                  (TB) screening. Presently, VA requires
                                                      in case of an emergency.                                be on staff with the adult day health                  the examination within a reasonable
                                                                                                              care program, and therefore would                      time of the resident’s admission, not to
                                                      51.350, 51.390 Incorporation of                         generally not have privileges to                       exceed 72 hours following admission.
                                                      Standards to State Home Domiciliaries                   document notes in the program’s                        We propose to require that the
                                                        Proposed § 51.350 would apply VA’s                    clinical records.                                      examination occur no earlier than 30
                                                      State nursing home standards for                           Finally, we would incorporate current               days before admission. The proposed
                                                      dietary, dental, pharmacy services,                     § 52.210(p) into this rule at proposed                 changes to this section would ensure
                                                      infection control, and the physical                     § 51.410(g) because it also concerns                   that State homes receive current
                                                      environment to State home                               transfers.                                             information about veterans’ conditions
                                                      domiciliaries. Proposed § 51.390 would                                                                         for the purposes of making
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                                                                                                              51.411 Program Practices                               determinations regarding admission,
                                                      apply VA’s State nursing home
                                                      standards for administration to State                     Proposed § 51.411 would include                      and would ensure that participants will
                                                      home domiciliaries.                                     those parts of current § 52.80 that are                not endanger themselves or others
                                                                                                              not included elsewhere. We would not                   because of TB, which could easily
                                                      51.400 Participant Rights                               include a provision parallel to current                spread in an adult day health care
                                                         Proposed § 51.400 would state that                   § 52.80(f) because we do not require VA-               setting.
                                                      States must protect and promote the                     operated adult day health care programs                  Proposed paragraph (b) would revise
                                                      rights of participants in adult day health              to have caregiver support programs. The                current § 52.110(c), with a proposed
                                                      care programs of care, as they do for                   purpose of adult day health care is to                 change to the method for conducting


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                                                      34804                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      assessments of participants. The current                sentinel event—such as an attempted                    program. The requirement that
                                                      regulation requires that a                              suicide or misuse of prescribed                        participants remain under the care of a
                                                      comprehensive plan of care be                           medication—may occur in the evening,                   physician would not impose a staffing
                                                      developed from comprehensive                            the adult day health care program                      burden on State homes because the
                                                      assessments based on the Minimum                        would not be required to report that                   veterans would be enrolled in the VA
                                                      Data Set for Home Care (MDS–HC)                         event to VA. In proposed § 51.430(c),                  health care system, and therefore many
                                                      Instrument Version 2.0, August 2, 2000.                 State homes would continue to be                       would be under the care of a VA
                                                      The MDS–HC is not used in adult day                     required to make counseling and related                physician. A physician must approve a
                                                      health care programs because it requires                psychosocial services available to                     veteran’s participation in an adult day
                                                      more of an assessment than is necessary                 improve the mental and psychological                   health care program in the written order
                                                      for participants in such programs. We                   functioning of adult day health care                   for enrollment and, moreover, must
                                                      propose to base assessments conducted                   participants with psychosocial needs, as               indicate whether there are medical
                                                      under proposed paragraph (b) on the                     individuals in such programs often                     needs that would require placement in
                                                      criteria stated in proposed paragraph                   have, or are at risk for developing,                   an adult day health care program that
                                                      (d), described below.                                   psychosocial problems. We would                        offers medical supervision.
                                                         In proposed paragraph (c)(2), we                     update the phrasing of this requirement                   However, the level of involvement of
                                                      would continue to require that each                     to make clear the types of services that               the State home adult day health care
                                                      person who completes a portion of the                   State homes must provide. Other                        program in the participant’s medical
                                                      assessment sign and certify the accuracy                paragraphs in § 51.430 of the proposed                 care depends on whether the program of
                                                      of that portion of the assessment in                    rule are identical to current § 51.210,                care offers medical supervision.
                                                      order to ensure accuracy and                            and would reference that section.                      Therefore, we propose changes to
                                                      accountability for the assessment.                        Current § 52.120(c) through (f) and                  paragraphs (a), (b) and (c) of the current
                                                         In proposed paragraph (d), we would                  § 52.120(k) set forth requirements                     rule text to indicate that they only apply
                                                      require the State home to ensure that                   concerning vision and hearing, pressure                if the program of care offers ‘‘medical
                                                      each participant has a care plan based                  ulcers, urinary and fecal incontinence,                supervision.’’ If medical supervision is
                                                      on criteria VA developed to describe the                range of motion, accidents, nutrition,                 offered, physician supervision and
                                                      issues that need to be addressed for                    hydration, unnecessary drugs, and                      review must be appropriate to the level
                                                      participation in an adult day health care               antipsychotic drugs in adult day health                of care required by the participant.
                                                      program. The criteria would be set forth                care programs of care. We propose to                      We propose to revise the language of
                                                      under paragraph (d), and would ensure                   remove these provisions because they                   current § 52.150(d) to clarify that the
                                                      that participants receive appropriate                   are not pertinent to care at a State home              program management need only ensure
                                                      care. Current § 52.110(e)(1) requires the               providing adult day health care.                       that participants are able to obtain
                                                      State home to ‘‘develop’’ such a plan.                                                                         emergency care when necessary. This
                                                      We are changing the language to require                 51.435 Nursing Services                                requirement could be met if the program
                                                      that the participant have a plan rather                    Current § 52.130 would become                       management called 911 on behalf of the
                                                      than that the State home develop the                    § 51.435, and the last sentence of                     participant. States may provide
                                                      plan because, in some cases, the plan                   paragraph (a) of the current rule would                emergency care if they desire, but they
                                                      may have been created before the                        be removed. That sentence recommends                   would not be required to do so.
                                                      participant entered into the State                      that duty nurses be geriatric nurse
                                                      home’s program of adult day health                                                                             51.450 Specialized Rehabilitative
                                                                                                              practitioners or clinical nurse
                                                      care. The word ‘‘develop’’ in the current                                                                      Services
                                                                                                              specialists. We propose to remove this
                                                      rule can be misread to require the State                recommendation because this level of                     Current § 52.160, which sets
                                                      home to create a new plan, even when                    specialty is not necessary for an adult                standards for specialized rehabilitative
                                                      VA has already created one. Under the                   day health care program. Because there                 services in adult day health care, would
                                                      proposed paragraph (d)(1), the plan of                  is no collection of information                        become proposed § 51.450. We note that
                                                      care must include measurable objectives                 associated with this regulation, we                    unlike current § 52.150 and proposed
                                                      and timetables for meeting the needs                    propose to remove the OMB control                      § 51.445, no adjustments to the current
                                                      identified in the assessment. With the                  number that appears in current § 52.130                language are required. This rule would
                                                      simplified assessments this can and                     from proposed § 51.435.                                apply only where the participant’s
                                                      should be readily accomplished without                                                                         individualized care plan requires the
                                                      the need for interdisciplinary teams that               51.440 Dietary Services                                provision of specialized rehabilitative
                                                      are required by the current regulations.                  Proposed § 51.440 would apply to                     services. If a State home does not have
                                                         Proposed paragraph (e) is based on                   State home adult day health care                       the capability to provide specialized
                                                      current 52.110(f), with no substantial                  programs the State nursing home                        rehabilitative services, it would not
                                                      changes.                                                standards for dietary services.                        accept a veteran with such needs for
                                                                                                                                                                     placement in its adult day health care
                                                      51.430 Quality of Care                                  51.445 Physician Services
                                                                                                                                                                     program. Because there is no collection
                                                        Section 51.430 would restate current                    Proposed § 51.445 would be based on                  of information associated with this
                                                      § 52.120, with some significant changes.                current § 52.150, which sets standards                 regulation, we propose to remove the
                                                      First, we would clarify in proposed                     for physician services in adult day                    OMB control number that appears in
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                                                      § 51.430(a)(2) that a home must report                  health care. The first two sentences of                current § 52.160 from proposed
                                                      only sentinel events that happen ‘‘while                the current rule require that adult day                § 51.450.
                                                      the participant is under the care of the                health care participants ‘‘obtain a
                                                      State home, including while in State                    written physician order for enrollment’’               51.455 Dental Services
                                                      home-provided transportation.’’ It is not               and ‘‘remain under the care of a                         Current § 52.170, which sets
                                                      necessary for a program to report a                     physician.’’ This would be required in                 standards for dental services in adult
                                                      sentinel event that did not occur while                 the proposed rule, irrespective of the                 day health care, would become
                                                      the veteran was under the care of the                   level of medical supervision provided in               proposed § 51.455. We propose minor
                                                      State home. Thus, to the extent that a                  the State home adult day health care                   changes to the current language so that


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34805

                                                      this regulation would apply only to                     health care programs that do not                       Effect of Rulemaking
                                                      State homes that offer an adult day                     provide medical supervision. We would
                                                      health care program with medical                        update the authority citation to reflect                 The Code of Federal Regulations, as
                                                      supervision.                                            VA’s current adult day health care                     proposed to be revised by this proposed
                                                                                                              authorities.                                           rulemaking, would represent the
                                                      51.460 Administration of Drugs                                                                                 exclusive legal authority on this subject.
                                                        Current § 52.180, which sets                          51.480 Transportation                                  No contrary rules or procedures would
                                                      standards for administration of drugs in                   Current 38 CFR § 52.220 concerns the                be authorized. All VA guidance would
                                                      adult day health care, would become                     transportation of participants. Paragraph              be read to conform with this proposed
                                                      proposed § 51.460. We propose minor                     (b) specifies that the program                         rulemaking if possible or, if not
                                                      changes to the current language so that                 management must have a transportation                  possible, such guidance would be
                                                      this regulation would apply only to                     policy that includes routine and                       superseded by this rulemaking.
                                                      State homes that offer medical                          emergency procedures. The current                      Paperwork Reduction Act
                                                      supervision in their adult day health                   regulation further states that a copy of
                                                      care programs.                                          the procedures must be located in all                     This proposed rule includes
                                                                                                              program vehicles. We propose to delete                 provisions constituting collections of
                                                      51.465 Infection Control                                the provisions regarding the placement                 information under the Paperwork
                                                        Proposed § 51.465 would apply the                     of the procedures in program vehicles.                 Reduction Act of 1995 (44 U.S.C. 3501–
                                                      State nursing home standards for                        Instead, we propose to add language                    3521) that require approval by the Office
                                                      infection control to State home adult                   requiring that all such transportation                 of Management and Budget (OMB).
                                                      day health care programs.                               (including that provided under contract)               Accordingly, under 44 U.S.C. 3507(d),
                                                                                                              must be in compliance with the                         VA has submitted a copy of this
                                                      51.470 Physical Environment                             procedures. The goal is to achieve                     rulemaking to OMB for review.
                                                         Proposed § 51.470 is based on current                compliance, and we do not believe that                    OMB assigns control numbers to
                                                      § 52.200, with the following revisions.                 it is necessary to impose requirements                 collections of information it approves.
                                                         First, current § 52.200 requires State               regarding the methods of obtaining                     VA may not conduct or sponsor, and a
                                                      homes to meet certain standards                         compliance.                                            person is not required to respond to, a
                                                      established in outdated editions of the                    Current 38 CFR 52.220(c) requires that
                                                                                                                                                                     collection of information unless it
                                                      National Fire Protection Association                    all vehicles transporting participants be
                                                                                                                                                                     displays a currently valid OMB control
                                                      (NFPA) code. However, current § 51.200                  equipped with a device for two-way
                                                                                                                                                                     number. Proposed § 17.74(q) contains a
                                                      cites more recent editions of the                       communication. We propose revising
                                                                                                                                                                     collection of information under the
                                                      standards. We propose to merely cross-                  this to clarify that the vehicle itself does
                                                                                                                                                                     Paperwork Reduction Act (44 U.S.C.
                                                      reference the § 51.200(a) requirement in                not need to be equipped with the
                                                                                                                                                                     3501–3521). Proposed §§ 51.20, 51.30,
                                                      § 51.470, to clarify that the same fire-                device. However, we propose to require
                                                                                                                                                                     51.31, 51.42, 51.210, 51.300, 51.310,
                                                      safety standards apply to adult day                     that the driver have access to such a
                                                                                                                                                                     51.320, 51.350, and 51.390 contain new
                                                      health care programs, except that those                 device. We also propose to revise this
                                                                                                                                                                     collections of information under the
                                                      provisions that only apply to nursing                   requirement to clarify that it only
                                                                                                                                                                     Paperwork Reduction Act of 1995. State
                                                      homes would not apply. In this manner,                  applies to State home-provided
                                                                                                                                                                     home domiciliaries are already
                                                      we would ensure that adult day health                   transportation, not transportation
                                                                                                                                                                     submitting this information voluntarily
                                                      care programs and nursing homes are                     arranged by the veteran.
                                                                                                                 Current § 52.220(e) specifies that the              as part of their participation in VA’s
                                                      required to comply with the same
                                                                                                              time to transport a participant to or from             State home program, because this is
                                                      edition of the appropriate NFPA
                                                                                                              the home must not be more than 60                      necessary in order for VA to provide
                                                      publication. We note that most State
                                                                                                              minutes except under unusual                           payment to them for the care that they
                                                      homes must abide by the current
                                                                                                              conditions, e.g., bad weather. We                      provide. There is, therefore, little or no
                                                      versions of these standards in order to
                                                                                                              propose to delete this provision.                      additional burden to State home
                                                      obtain appropriate permits and licenses
                                                                                                              Instead, we propose to require that State              domiciliary programs due to this
                                                      from authorities other than VA.
                                                         In addition, current 38 CFR                          homes ensure that the care needs of                    rulemaking. Because these requirements
                                                      52.200(b)(4)(v) requires a State home to                each participant are addressed during                  are virtually identical to those imposed
                                                      have a quiet room with at least one bed,                travel. This requirement more directly                 upon the other two programs of care and
                                                      which functions to isolate participants                 addresses the particular needs of each                 approved under control number 2900–
                                                      who become ill or disruptive, or who                    participant.                                           0160, VA seeks to amend that approved
                                                      require rest, privacy, or observation. We                                                                      collection of information to include
                                                                                                              Other Technical Changes                                State home domiciliaries, as described
                                                      propose to change this requirement to
                                                      permit the home to have either a bed or                    We would make other technical, non-                 in further detail below. Additionally,
                                                      a reclining chair. We believe that this                 substantive changes to provisions                      VA proposes minor modifications to
                                                      would satisfy the specified needs. Also,                amended by or established by this                      collections of information from State
                                                      we would indicate that the purpose of                   rulemaking. Notably, we describe                       home nursing homes and adult day
                                                      the quiet room is for separation from                   veterans as being ‘‘admitted’’ (or a                   health care programs that are already
                                                      other participants rather than isolation                derivative) when discussing the adult                  approved under control number 2900–
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                                                      from other participants. This                           day health care program, where the                     0160 and set forth at §§ 51.210, 51.415,
                                                      accomplishes the intended purpose                       current part 52 often uses the term                    51.425, 51.430, and 51.460 of the
                                                      without the connotation of restraint                    ‘‘enrolled’’ (or a derivative). This is                proposed regulations.
                                                      which often would not apply.                            intended to make sure that a reader does                  If OMB does not approve the
                                                                                                              not mistake the use of the term                        collections of information as requested,
                                                      51.475 Administration                                   ‘‘enrolled’’ to mean enrollment in the                 VA will immediately remove the
                                                        We would adopt all of the                             VA health care system when it is                       provisions containing a collection of
                                                      requirements of current § 51.210 except                 intended to refer to participation in a                information or take such other action as
                                                      for those that do not apply to adult day                State home program of care.                            is directed by OMB.


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                                                      34806                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                         Comments on the collections of                       responsible for administration of the                  an Eligible Veteran in a State Home, VA
                                                      information contained in this proposed                  homes. Most of the collections in                      Form 10–0460. VA is amending these
                                                      rule should be submitted to the Office                  § 51.210 are currently approved for State              forms in a separate request; that request
                                                      of Management and Budget, Attention:                    home nursing homes and adult day                       includes a request to include State home
                                                      Desk Officer for the Department of                      health care programs of care, with the                 domiciliaries as respondents to the
                                                      Veterans Affairs, Office of Information                 exception of a new collection in                       forms, in addition to other amendments
                                                      and Regulatory Affairs, Washington, DC                  proposed § 51.210(b)(3), which would                   that would apply as to all State Home
                                                      20503, with copies sent by mail or hand                 require State homes to submit the name                 programs of care. VA therefore seeks
                                                      delivery to the Director, Regulation                    of the director of nursing services. All               approval in this proposed rule only for
                                                      Policy and Management (02REG),                          of the collections in proposed § 51.210                the information that would be required
                                                      Department of Veterans Affairs, 810                     would constitute new collections for                   of State home domiciliaries by proposed
                                                      Vermont Avenue NW., Room 1068,                          State home domiciliaries.                              part 51 that would not be included on
                                                      Washington, DC 20420; fax to (202)                         Sections 51.20, 51.30, 51.31, 51.42,                the forms listed above.
                                                      273–9026; or through                                    51.300, 51.310, 51.320, 51.350, and                      VA proposes to modify the collections
                                                      www.Regulations.gov. Comments                           51.390 would require State homes                       of information from State home adult
                                                      should indicate that they are submitted                 domiciliary programs to submit                         day health care programs of care as set
                                                      in response to ‘‘RIN 2900–AO88 Per                      information about veterans receiving                   forth at proposed §§ 51.415, 51.425, and
                                                      Diem Paid to States for Care of Eligible                domiciliary care. State home                           51.430. OMB has approved most of the
                                                      Veterans in State Homes.’’                              domiciliaries would be required to                     collections in these sections under OMB
                                                         OMB is required to make a decision                   furnish an application for recognition                 control number 2900–0160. VA
                                                      concerning the collections of                           based on certification; appeal                         proposes to modify these collections as
                                                      information contained in this proposed                  information, application and
                                                                                                                                                                     follows. In proposed § 51.425(a), VA
                                                      rule between 30 and 60 days after                       justification for payment; records and
                                                                                                                                                                     would require programs to collect
                                                      publication of this document in the                     reports which program management
                                                                                                                                                                     documentation of participants’
                                                      Federal Register. Therefore, a comment                  must maintain regarding activities of
                                                                                                                                                                     tuberculosis screening, in addition to
                                                      to OMB is best assured of having its full               residents or participants; information
                                                                                                                                                                     the current requirement that State
                                                      effect if OMB receives it within 30 days                relating to whether the domiciliary
                                                                                                                                                                     homes record the participant’s medical
                                                      of publication. This does not affect the                meets standards concerning residents’
                                                                                                                                                                     history and document a physical
                                                      deadline for the public to comment on                   rights and responsibilities prior to
                                                                                                                                                                     examination. In proposed § 51.425(b),
                                                      the proposed rule.                                      admission or enrollment, during
                                                                                                                                                                     VA would change the criteria that
                                                         VA considers comments by the public                  admission or enrollment, and upon
                                                                                                              discharge; the records and reports                     programs would use to record each
                                                      on proposed collections of information                                                                         participants’ assessment from the
                                                      in—                                                     which management and health care
                                                                                                                                                                     Minimum Data Set for Home Care to
                                                         • Evaluating whether the proposed                    professionals must maintain regarding
                                                                                                              residents or participants and employees;               new criteria developed by VA. In
                                                      collections of information are necessary
                                                                                                              documents pertain to the management                    proposed § 51.430(a), VA would clarify
                                                      for the proper performance of the
                                                                                                              of the home; food menu planning;                       that State homes must report sentinel
                                                      functions of VA, including whether the
                                                                                                              pharmaceutical records; and life safety                events only when they occur while the
                                                      information will have practical utility;
                                                         • Evaluating the accuracy of VA’s                    documentation. Without access to such                  veteran is under the care of the home;
                                                      estimate of the burden of the proposed                  information, VA would not be able to                   the current regulations indicate such
                                                      collections of information, including the               determine whether high quality care is                 reports are necessary regardless of when
                                                      validity of the methodology and                         being provided to veterans.                            or where a sentinel event occurs.
                                                      assumptions used;                                          The information that VA would                         • Description of the need for
                                                         • Enhancing the quality, usefulness,                 collect from State home domiciliaries                  information and proposed use of
                                                      and clarity of the information to be                    under this proposed rulemaking is                      information: VA uses this information
                                                      collected; and                                          already collected from State home                      in order to effectively manage the
                                                         • Minimizing the burden of the                       nursing homes and adult day health                     operations and payment of per diem
                                                      collections of information on those who                 care programs under OMB control                        through the State home domiciliary
                                                      are to respond, including through the                   number 2900–0160, pursuant to 38 CFR                   program of care. Specifically, the
                                                      use of appropriate automated,                           parts 51 and 52, State Home Programs,                  information collected is used to
                                                      electronic, mechanical, or other                        and on VA forms as follows: State Home                 determine eligibility of veterans for
                                                      technological collection techniques or                  Inspection—Staffing Profile, VA Form                   participation in the program; whether
                                                      other forms of information technology,                  10–3567, Instructions for State Home                   State home domiciliary programs meet
                                                      e.g., permitting electronic submission of               Report and Statement of Federal Aid                    appropriate clinical, safety, and quality
                                                      responses.                                              Claimed, VA Form 10–5588, State Home                   standards; and to calculate the amount
                                                         The proposed amendments to title 38                  Program Application for Veteran Care—                  of payments that are due for care
                                                      CFR part 51 contain collections of                      Medical Certification, VA Form 10–                     provided to veterans on a monthly basis.
                                                      information under the Paperwork                         10SH, Department of Veterans Affairs                     • Description of likely respondents:
                                                      Reduction Act of 1995 for which we are                  Certification Regarding Drug-Free                      State home domiciliary programs that
                                                      requesting approval by OMB. These                       Workplace Requirements for Grantees
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                                                                                                                                                                     seek payment from VA.
                                                      collections of information are described                Other Than Individuals, VA Form 10–                      • Estimated number of respondents:
                                                      immediately following this paragraph,                   0143, Statement of Assurance of                        53 per year.
                                                      under their respective titles.                          Compliance with Section 504 of the
                                                         Title: Per Diem Paid to States for Care              Rehabilitation Act of 1973, VA Form                      • Estimated frequency of responses:
                                                      of Eligible Veterans in State Homes.                    10–0143a, Certification Regarding                      Once per year.
                                                         • Summary of collection of                           Lobbying, VA Form 10–0144; Statement                     • Estimated average burden per
                                                      information: Section 51.210 would                       of Assurance of Compliance with Equal                  response: 7 minutes.
                                                      require State homes to submit                           Opportunity Laws, VA Form 10–0144a,                      • Estimated total annual reporting
                                                      information about the individuals                       and Request for Prescription Drugs from                and recordkeeping burden: 6.2 hours.


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                            34807

                                                      State Home Nursing Homes and Adult                      governments except for a small number                  link for ‘‘VA Regulations Published
                                                      Day Health Care Programs                                that are operated by entities under                    From FY 2004 Through Fiscal Year to
                                                        Although this action contains                         contract with State governments. These                 Date.’’
                                                      provisions constituting collections of                  contractors are not small entities. Also,
                                                                                                              this rulemaking would not have a                       Unfunded Mandates
                                                      information at 38 CFR 51.20, 51.30,
                                                      51.31, 51.42, 51.210, 51.300, 51.310,                   consequential effect on any pharmacies                    The Unfunded Mandates Reform Act
                                                      51.320, 51.350, 51.390, 51.400, 51.405,                 that could be considered small entities.
                                                                                                                                                                     of 1995 requires, at 2 U.S.C. 1532, that
                                                      51.410, 51.415, 51.420, 51.425, 51.430,                 Therefore, pursuant to 5 U.S.C. 605(b),
                                                                                                                                                                     agencies prepare an assessment of
                                                      51.445, 51.460, and 51.475, under the                   this rulemaking is exempt from the
                                                                                                              initial and final regulatory flexibility               anticipated costs and benefits before
                                                      provisions of the Paperwork Reduction                                                                          issuing any rule that may result in an
                                                                                                              analysis requirements of sections 603
                                                      Act of 1995 (44 U.S.C. 3501–3521), no                                                                          expenditure by State, local, and tribal
                                                                                                              and 604.
                                                      new or proposed revised collections of                                                                         governments, in the aggregate, or by the
                                                      information are associated with these                   Executive Orders 12866 and 13563                       private sector, of $100 million or more
                                                      sections. The proposed regulations                         Executive Orders 12866 and 13563                    (adjusted annually for inflation) in any
                                                      impose certain paperwork requirements                   direct agencies to assess the costs and                one year. This proposed rule would
                                                      on States with State homes receiving per                benefits of available regulatory                       have no such effect on State, local, and
                                                      diem for nursing home care (at §§ 51.20,                alternatives and, when regulation is                   tribal governments, or on the private
                                                      51.30, 51.31, 51.42, and 51.210) and                    necessary, to select regulatory                        sector.
                                                      impose similar paperwork requirements                   approaches that maximize net benefits
                                                      on State homes receiving per diem for                   (including potential economic,                         Catalog of Federal Domestic Assistance
                                                      adult day health care (at §§ 51.20, 51.30,              environmental, public health and safety
                                                      51.31, 51.210, 51.400, 51.405, 51.410,                  effects, and other advantages;                           The Catalog of Federal Domestic
                                                      51.415, 51.420, 51.425, 51.430, 51.460,                 distributive impacts; and equity).                     Assistance numbers and titles for the
                                                      and 51.475). The information collection                 Executive Order 13563 (Improving                       programs affected by this document are
                                                      requirements for §§ 51.20, 51.30, 51.31,                Regulation and Regulatory Review)                      64.005, Grants to States for Construction
                                                      51.42, 51.210, 51.400, 51.405, 51.410,                  emphasizes the importance of                           of State Home Facilities; 64.007, Blind
                                                      51.415, 51.420, 51.425, 51.430, 51.460,                 quantifying both costs and benefits,                   Rehabilitation Centers; 64.008, Veterans
                                                      and 51.475 are currently approved by                    reducing costs, harmonizing rules, and                 Domiciliary Care; 64.009, Veterans
                                                      OMB (except for the proposed minor                      promoting flexibility. Executive Order                 Medical Care Benefits; 64.010, Veterans
                                                      modifications to §§ 51.415, 51.425, and                 12866 (Regulatory Planning and                         Nursing Home Care; 64.011, Veterans
                                                      51.430 described above) and have been                   Review) defines a ‘‘significant                        Dental Care; 64.012, Veterans
                                                      assigned OMB control number 2900–                       regulatory action’’ requiring review by                Prescription Service; 64.013, Veterans
                                                      0160. This rulemaking simply                            the Office of Management and Budget                    Prosthetic Appliances; 64.014, Veterans
                                                      reorganizes the material to which this                  (OMB), unless OMB waives such                          State Domiciliary Care; 64.015, Veterans
                                                      control number has already been                         review, as ‘‘any regulatory action that is             State Nursing Home Care; 64.016,
                                                      applied in the current U.S. Code of                     likely to result in a rule that may: (1)               Veterans State Hospital Care; 64.018,
                                                      Federal Regulations. As stated above,                   Have an annual effect on the economy                   Sharing Specialized Medical Resources;
                                                      VA is revising the forms used for these                 of $100 million or more or adversely                   64.019, Veterans Rehabilitation Alcohol
                                                      approved collections from State Home                    affect in a material way the economy, a                and Drug Dependence; 64.022, Veterans
                                                      nursing home and adult day health care                  sector of the economy, productivity,
                                                                                                                                                                     Home Based Primary Care; and 64.026,
                                                      programs under OMB control number                       competition, jobs, the environment,
                                                      2900–0160, and will seek approval for                                                                          Veterans State Adult Day Health Care.
                                                                                                              public health or safety, or State, local,
                                                      the proposed revisions in a separate                    or tribal governments or communities;                  Signing Authority
                                                      request for OMB review. Additionally,                   (2) Create a serious inconsistency or
                                                      § 51.42 in effect imposes paperwork                     otherwise interfere with an action taken                 The Secretary of Veterans Affairs, or
                                                      requirements on certain Veterans                        or planned by another agency; (3)                      designee, approved this document and
                                                      seeking admission to a State home                       Materially alter the budgetary impact of               authorized the undersigned to sign and
                                                      program of care. The information                        entitlements, grants, user fees, or loan               submit the document to the Office of the
                                                      collection requirement pertaining to                    programs or the rights and obligations of              Federal Register for publication
                                                      Veterans under these sections is                        recipients thereof; or (4) Raise novel                 electronically as an official document of
                                                      currently approved by OMB and has                       legal or policy issues arising out of legal            the Department of Veterans Affairs. Jose
                                                      been assigned OMB control number                        mandates, the President’s priorities, or               D. Riojas, Chief of Staff, approved this
                                                      2900–0091.                                              the principles set forth in this Executive             document on January 15, 2015, for
                                                                                                              Order.’’                                               publication.
                                                      Regulatory Flexibility Act                                 The economic, interagency,
                                                        The Secretary hereby certifies that                   budgetary, legal, and policy                           List of Subjects in 38 CFR Parts 17, 51
                                                      this proposed rule would not have a                     implications of this regulatory action                 and 52
                                                      significant economic impact on a                        have been examined, and it has been
                                                      substantial number of small entities as                 determined to be a significant regulatory                Administrative practice and
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                                                      they are defined in the Regulatory                      action under Executive Order 12866.                    procedure, Claims, Day care, Dental
                                                      Flexibility Act, 5 U.S.C. 601–612. This                 VA’s impact analysis can be found as a                 health, Government contracts, Grant
                                                      proposed rule would affect veterans,                    supporting document at http://                         programs—health, Grant programs—
                                                      State homes, and pharmacies. The State                  www.regulations.gov, usually within 48                 veterans, Health care, Health facilities,
                                                      homes that are subject to this                          hours after the rulemaking document is                 Health professions, Health records,
                                                      rulemaking are State government                         published. Additionally, a copy of the                 Mental health programs, Nursing
                                                      entities under the control of State                     rulemaking and its impact analysis are                 homes, Reporting and recordkeeping
                                                      governments. All State homes are                        available on VA’s Web site at http://                  requirements, Travel and transportation
                                                      owned, operated and managed by State                    www.va.gov/orpm/, by following the                     expenses, Veterans.


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                                                      34808                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                        Approved: June 2, 2015.                               certification of a State home. Subpart C     Nurses Credentialing Center or the
                                                      William F. Russo,                                       sets forth rules governing the rates of,     American Academy of Nurse
                                                      Acting Director, Office of Regulation Policy            and procedures applicable to, the            Practitioners.
                                                      & Management.                                           payment of per diem; the provision of           Nursing home care means the
                                                        For the reasons stated in the preamble                drugs and medicines; and which               accommodation of convalescents or
                                                      and under the authority of of 38 U.S.C.                 veterans on whose behalf VA will pay         other persons who are not acutely ill
                                                      1741–1743 and 38 U.S.C. 1745, the                       per diem. Subparts D, E, and F set forth     and not in need of hospital care, but
                                                      Department of Veterans Affairs proposes                 standards that must be met by any State      who require nursing care and related
                                                      to amend 38 CFR parts 17, 51, and 52                    home seeking per diem payments for           medical services, if such nursing care
                                                      as set forth below:                                     nursing home care (subpart D),               and medical services are prescribed by,
                                                                                                              domiciliary care (subpart E), or adult       or are performed under the general
                                                      PART 17—MEDICAL                                         day health care (subpart F).                 direction of, persons duly licensed to
                                                                                                              (Authority: 38 U.S.C. 501)                   provide such care. Such term includes
                                                      ■ 1. The authority citation for part 17                                                              services furnished in skilled nursing
                                                      continues to read as follows:                           § 51.2 Definitions.                          care facilities, in intermediate care
                                                        Authority: 38 U.S.C. 501, and as noted in                For the purposes of this part:            facilities, and in combined facilities. It
                                                      specific sections.                                         Activities of daily living (ADLs) means does not include domiciliary care.
                                                                                                              the functions or tasks for self-care            Participant means an individual
                                                      §§ 17.190–17.200      [Removed].                        usually performed in the normal course receiving adult day health care.
                                                      ■ 2. Amend part 17 by removing                          of a day, i.e., mobility, bathing, dressing,    Physician means a doctor of medicine
                                                      §§ 17.190–17.200.                                       grooming, toileting, transferring, and       or osteopathy legally authorized to
                                                                                                              eating.                                      practice medicine or surgery in the
                                                      PART 51—PER DIEM FOR NURSING                               Adult day health care means a             State.
                                                      HOME, DOMICILIARY, OR ADULT DAY                         therapeutic outpatient care program that        Physician assistant means a person
                                                      HEALTH CARE OF VETERANS IN                              includes one or more of the following        who meets the applicable State
                                                      STATE HOMES                                             services, based on patient care needs:       requirements for physician assistant, is
                                                                                                              medical services, rehabilitation,            currently certified by the National
                                                      ■3. The authority citation for part 51 is               therapeutic activities, socialization, and Commission on Certification of
                                                      amended to read as follows:                             nutrition. Services are provided in a        Physician Assistants as a physician
                                                        Authority: 38 U.S.C. 101, 501, 1710, 1720,            congregate setting.                          assistant, and has an individualized
                                                      1741–1743, 1745, and as stated in specific                 Clinical nurse specialist means a         written scope of practice that
                                                      sections.                                               licensed professional nurse with a           determines the authorization to write
                                                      ■ 4. Subparts A, B, and C of part 51 are                master’s degree in nursing and a major       medical orders, prescribe medications
                                                      revised to read as follows:                             in a clinical nursing specialty from an      and to accomplish other clinical tasks
                                                                                                              academic program accredited by the           under appropriate physician
                                                      Subpart A—General                                                                                    supervision.
                                                                                                              National League for Nursing.
                                                      Sec.                                                       Director means the Director of the VA        Primary physician or Primary care
                                                      51.1 Purpose and Scope of part 51                       medical center of jurisdiction, unless       physician means a designated generalist
                                                      51.2 Definitions                                                                                     physician responsible for providing,
                                                                                                              the reference is specifically to another
                                                      Subpart B—Obtaining Recognition and                     type of director.                            directing and coordinating health care
                                                      Certification for Per Diem Payments                        Domiciliary care means the furnishing that is indicated for the residents or
                                                      51.20 Recognition of a State home                       of a home to a veteran, including the        participants.
                                                      51.30 Certification                                     furnishing of shelter, food, and other          Program of care means any or all of
                                                      51.31 Surveys for recognition and/or                    comforts of home, and necessary              the three levels of care for which VA
                                                          certification                                       medical services as defined in this          may pay per diem under this part.
                                                      51.32 Terminating recognition                           regulation.                                     Resident means an individual
                                                      Subpart C—Eligibility, Rates, and Payments                 Eligible veteran means a veteran          receiving nursing home or domiciliary
                                                      51.40 Basic per diem rates                              whose care in a State home may serve         care.
                                                      51.42 Payment procedures                                as a basis for per diem payments to the         State means each of the several states,
                                                      51.43 Drugs and medicines for certain                   State. The requirements that an eligible     the District of Columbia, the Virgin
                                                          veterans                                            veteran must meet are set forth in           Islands, the Commonwealth of Puerto
                                                      51.50 Eligible veterans-nursing home care               §§ 51.50 (nursing home care), 51.51          Rico, Guam, the Commonwealth of the
                                                      51.51 Eligible veterans-domiciliary care                (domiciliary care), and 51.52 (adult day     Northern Mariana Islands, and
                                                      51.58 Standards applicable for payment of               health care).                                American Samoa.
                                                          per diem                                               Licensed medical practitioner means a        State home means a home recognized
                                                      51.59 Authority to continue payment of per
                                                                                                              nurse practitioner, physician, physician and, to the extent required by this part,
                                                          diem when veterans are relocated due to                                                          certified pursuant to this part that a
                                                          emergency
                                                                                                              assistant, and primary physician or
                                                                                                              primary care physician.                      State established primarily for veterans
                                                      Subpart A—General                                          Nurse practitioner means a licensed       disabled by age, disease, or otherwise,
                                                                                                              professional nurse who is currently          who by reason of such disability are
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                                                      § 51.1   Purpose and scope of part 51.                  licensed to practice in a State; who         incapable of earning a living. A State
                                                        The purpose of this part is to establish              meets that State’s requirements              home must provide at least one program
                                                      VA’s policies, procedures, and                          governing the qualifications of nurse        of care (i.e., domiciliary care, nursing
                                                      standards applicable to the payment of                  practitioners; and who is currently          home care, or adult day health care).
                                                      per diem to State homes that provide                    certified as an adult, family, or               VA means the U.S. Department of
                                                      nursing home care, domiciliary care, or                 gerontological nurse practitioner by a       Veterans Affairs.
                                                      adult day health care to eligible                       nationally recognized body that                 Veteran means a veteran under 38
                                                      veterans. Subpart B of this part sets                   provides such certification for nurse        U.S.C. 101.
                                                      forth the procedures for recognition and                practitioners, such as the American          (Authority: 38 U.S.C. 101, 501, 1741–1743)



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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                              34809

                                                      Subpart B—Obtaining Recognition and                       (2) After a State home is recognized,                Director next issues a certification of the
                                                      Certification for Per Diem Payments                     any new annex, new branch, or other                    State home under § 51.30(b), whichever
                                                                                                              expansion in the size of a home or any                 occurs first. VA will pay per diem for
                                                      § 51.20   Recognition of a State home.                  relocation of the home to a new facility               the care of eligible veterans in the beds
                                                         (a) How to apply for recognition. To                 must be separately recognized.                         provided on and after the date the
                                                      apply for initial recognition of a home                 However, changes in the use of                         Director precertifies the beds.
                                                      for purposes of receiving per diem from                 particular beds between recognized                        (2) Decreasing beds for a program of
                                                      VA, a State must submit a letter                        programs of care and increases in the                  care. The State must report any
                                                      requesting recognition to the Office of                 number of beds that are not described in               decreases in the number of beds that
                                                      Geriatrics and Extended Care in VA                      the previous sentence require                          may be used for a particular program of
                                                      Central Office, 810 Vermont Avenue                      certification of the beds, but not                     care to the Director within 30 days after
                                                      NW., Washington, DC 20420. The letter                   recognition, in accordance with                        such decrease, and must provide an
                                                      must be signed by the State official                    paragraph (c)(1) of this section.                      explanation for the decrease.
                                                      authorized to make the request. The                                                                               (d) Provisional certification—(1)
                                                                                                              (Authority: 38 U.S.C. 501, 511, 1742, 1743,
                                                      letter will be reviewed by VA, in                       7104, 7105)                                            When issuance is required. After a VA
                                                      accordance with this section.                                                                                  survey, the Director must issue a
                                                         (b) Survey and recommendation by                     (The Office of Management and Budget                   provisional certification for the
                                                      Director. (1) After receipt of a letter                 has approved the information collection                surveyed State home if the Director
                                                      requesting recognition, VA will survey                  requirements in this section under                     determines that all of the following are
                                                      the home in accordance with § 51.31 to                  control number 2900–XXXX.)                             true:
                                                      determine whether the facility and                                                                                (i) The State home does not meet one
                                                                                                              § 51.30    Certification.
                                                      program of care meet the standards in                                                                          or more of the applicable standards in
                                                      subpart D, E, or F, as applicable. For                     (a) General certification requirement.              this part;
                                                      purposes of the recognition process                     In order to be certified, the State home                  (ii) None of these deficiencies
                                                      including the survey, references to State               must allow VA to survey the home in                    jeopardize the health or safety of any
                                                      homes in the standards apply to homes                   accordance with § 51.31. A State home                  resident or participant;
                                                      that are being considered by VA for                     must be certified within 450 days after                   (iii) No later than 20 days after receipt
                                                      recognition as State homes.                             the State home is recognized.                          by the State home of the survey report,
                                                         (2) If the Director of the VA Medical                Certifications expire 600 days after the               the State submitted to the Director a
                                                      Center of jurisdiction determines that                  date of their issuance.                                written plan to remedy each deficiency
                                                      the applicable standards are met, the                      (b) Periodic certifications required.               in a specified amount of time; and
                                                      Director will submit a written                          The Director of the VA medical center                     (iv) The plan is reasonable and the
                                                      recommendation for recognition to the                   of jurisdiction will certify a State home              Director has sent a written notice to the
                                                      Under Secretary for Health.                             based on a survey conducted at least                   appropriate person(s) at the State home
                                                         (3) If the Director does not                         once every 270–450 days, at VA’s                       informing them that the Director agrees
                                                      recommend recognition, the Director                     discretion, and will notify the State                  to the plan.
                                                      will submit a written recommendation                    official authorized to oversee operations                 (2) Surveys to continue while under
                                                      against recognition to the Under                        of the State home of the decision                      provisional certification. VA will
                                                      Secretary for Health and will notify in                 regarding certification within 20 days                 continue to survey the State home while
                                                      writing the State official who signed the               after the Director’s decision.                         it is under a provisional certification in
                                                      letter submitted under paragraph (a) of                    (c) Certification of beds based on                  accordance with this section and
                                                      this section and the State official                     changes in the program of care—(1)                     § 51.31. After such a survey, the Director
                                                      authorized to oversee operations of the                 Switching beds between programs of                     will continue the provisional
                                                      home. The notification will state the                   care or increasing beds in a program of                certification if the Director determines
                                                      following:                                              care. When a State home that is                        that the four criteria listed in paragraphs
                                                         (i) The specific standard(s) not met;                recognized to provide both domiciliary                 (c)(1)(i)–(iv) of this section are true.
                                                      and                                                     and nursing home care changes the care                    (3) Issuance of additional provisional
                                                         (ii) The State’s right to submit a                   provided in one or more beds, or when                  certification. If the State fails to remedy
                                                      response, including any additional                      a State home increases the number of                   the identified deficiencies within the
                                                      evidence, within 30 days after the date                 nursing home or domiciliary beds                       amount of time specified in the written
                                                      of the notification to the State.                       (except increases described in the first               plan described in paragraph (d)(1)(iii) of
                                                         (c) Decision by the Under Secretary                  sentence of § 51.20(d)(2) of this part),               this section, the State must submit, no
                                                      for Health. After receipt of a                          VA must survey the home taking the                     later than 20 days after the expiration of
                                                      recommendation from the Director, the                   proposed changes into account and the                  the time specified in the written plan,
                                                      Under Secretary for Health will award                   Director must certify the beds before VA               a new written plan to remedy each
                                                      or deny recognition based on all                        may pay per diem under this part for                   remaining deficiency in a reasonable
                                                      available evidence. The applicant will                  care provided in those beds. However,                  time. Upon receiving the plan within
                                                      be notified of the decision. Adverse                    the Director may precertify, at the                    the 20 day period, the Director may
                                                      decisions may be appealed to the Board                  request of a State home, the increased                 issue another provisional certification if
                                                      of Veterans’ Appeals (see 38 CFR part                   number of beds or beds that are                        all the criteria listed in paragraphs
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                                                      20).                                                    switched between programs of care.                     (c)(1)(i)–(iv) of this section are true. If
                                                         (d) Effect of recognition.                           Precertification is authorized if the                  not, the Director will deny certification.
                                                         (1) Recognition of a State home means                Director reasonably expects, based on                     (e) Notice and the right to appeal a
                                                      that, at the time of recognition, the                   prior surveys and any other relevant                   denial of certification. A State home has
                                                      facility and its program of care meet the               information, that the State home will                  the right to appeal when the Director
                                                      applicable requirements of this part.                   continue to comply with this part until                determines that a State home does not
                                                      The State home must obtain                              such time as the State home is surveyed                meet the requirements of this part (i.e.,
                                                      certification after recognition in                      and certified. Precertifications will                  denies certification). An appeal is not
                                                      accordance with § 51.30.                                continue for 360 days or until the                     provided to a State for a State home that


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                                                      34810                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      receives a provisional certification                    requirements in this section under                     Subpart C—Eligibility, Rates, and
                                                      because, by providing the corrective                    control number 2900–XXXX)                              Payments
                                                      action plan necessary to receive a
                                                      provisional certification, a State                      § 51.31 Surveys for recognition and/or                 § 51.40   Basic per diem rates.
                                                                                                              certification.                                           (a) Basic rate. Except as provided in
                                                      demonstrates its acceptance of VA’s
                                                      determination that it does not meet the                   (a) General. Both before and after a                 § 51.41, VA will pay per diem for care
                                                      VA standards for which the corrective                   home is recognized and certified, VA                   provided to an eligible veteran at a State
                                                      action plan was submitted.                              may survey the home as necessary to                    home at the lesser of the following rates:
                                                         (1) Notice of decision denying                       determine whether it complies with                       (1) One-half of the daily cost of the
                                                      certification. The Director will issue in               applicable regulations. VA will provide                care for each day the veteran is in the
                                                      writing a decision denying certification                advance notice before a recognition                    State home, as calculated under
                                                      that sets forth the specific standard(s)                survey, but advance notice is not                      paragraph (b) of this section.
                                                      not met. The Director will send a copy                  required before other surveys. A survey,                 (2) The basic per diem rate for each
                                                      of this decision to the State official                  as necessary, may cover all parts of the               day the veteran is in the State home.
                                                      authorized to oversee operations of the                 home or only certain parts, and may                    The basic per diem rate is established by
                                                      State home, and notify that official of                 include review, audit, and production of               VA for each fiscal year in accordance
                                                      the State’s right to submit a written                   any records that have a bearing on                     with 38 U.S.C. 1741(a) and (c).
                                                      appeal to the Under Secretary for Health                compliance with the requirements of
                                                                                                                                                                       Note: To determine the number of days
                                                      as stated in paragraph (d)(2). If the State             this part (including any reports from                  that a veteran was in a State home, see
                                                      home does not submit a timely written                   state or local entities), as well as the               paragraph (c) of this section.
                                                      appeal, the Director’s decision becomes                 completion and submission to VA of all
                                                                                                              required forms. The Director will                        (b) How to calculate the daily cost of
                                                      final and VA will not pay per diem for                                                                         a veteran’s care. The daily cost of care
                                                      any care provided on or after the 31st                  designate the VA officials and/or
                                                                                                              contractors to survey the home.                        consists of those direct and indirect
                                                      day after the State’s receipt of the                                                                           costs attributable to care at the State
                                                      Director’s decision.                                      (b) Recognition surveys. VA will not
                                                                                                              conduct a recognition survey unless the                home, divided by the total number of
                                                         (2) Appeal of denial of certification.                                                                      residents serviced by the program of
                                                      The State must submit a written appeal                  following minimum requirements are
                                                                                                              met:                                                   care. Relevant cost principles are set
                                                      no later than 30 days after the date of                                                                        forth in the Office of Management and
                                                      the notice of the denial of certification.                (1) For nursing homes and
                                                                                                              domiciliaries, the home has at least 21                Budget (OMB) Circular number A–87,
                                                      The appeal must explain why the denial                                                                         dated May 10, 2004, ‘‘Cost Principles for
                                                      of certification is inaccurate or                       residents or has a number of residents
                                                                                                              consisting of at least 50 percent of the               State, Local, and Indian Tribal
                                                      incomplete and provide any relevant                                                                            Governments.’’ (OMB Circulars are
                                                      information not considered by the                       resident capacity of the home;
                                                                                                                (2) For adult day health care programs               available at the addresses in 5 CFR
                                                      Director. Any appeal that does not                                                                             1310.3.)
                                                      identify a reason for disagreement will                 of care, the program has at least 10
                                                                                                              participants or has a number of                          (c) Determining whether a veteran
                                                      be returned to the sender without                                                                              spent a day receiving nursing home and
                                                      further consideration. If the State home                participants consisting of at least 50
                                                                                                              percent of participant capacity of the                 domiciliary care. Per diem will be paid
                                                      submits a timely written appeal, the                                                                           for each day that the veteran is receiving
                                                      Director’s decision will not take effect                program.
                                                                                                                (c) Threats to public, resident, or                  nursing home or domiciliary care and
                                                      and VA will continue to pay per diem                                                                           has an overnight stay. Per diem also will
                                                                                                              participant safety. If VA identifies a
                                                      to the State home pending a decision by                                                                        be paid for a day when there is no
                                                                                                              condition at the home that poses an
                                                      the Under Secretary for Health.                                                                                overnight stay if the State home has an
                                                         (3) Decision on appeal of a denial of                immediate threat to public, resident or
                                                                                                              participant safety, or other information               occupancy rate of 90 percent or greater
                                                      certification. The Under Secretary for
                                                                                                              indicating the existence of such a threat,             on that day. However, these payments
                                                      Health will review the matter, including
                                                                                                              the Director of the VA medical center of               will be made only for the first 10
                                                      any relevant supporting documentation,
                                                                                                              jurisdiction will immediately report this              consecutive days during which the
                                                      and issue a written decision that affirms
                                                                                                              to the VA Network Director (10N1–22);                  veteran is admitted as a patient for any
                                                      or reverses the Director’s decision. The
                                                                                                              the Assistant Deputy Under Secretary                   stay in a VA or other hospital (a hospital
                                                      State will be notified of the decision,
                                                                                                              for Health (10N); the Office of Geriatrics             stay could occur more than once in a
                                                      which may be appealed to the Board of
                                                                                                              and Extended Care in VA Central Office;                calendar year) and only for the first 12
                                                      Veterans’ Appeals (see 38 CFR part 20)
                                                                                                              and the State official authorized to                   days in a calendar year during which
                                                      if it results in a loss of per diem
                                                                                                              oversee operations of the home.                        the veteran is absent for purposes other
                                                      payments to the State. VA will
                                                                                                              (Authority: 38 U.S.C. 501, 1741, 1742)                 than receiving hospital care. Occupancy
                                                      terminate recognition and certification
                                                                                                                                                                     rate is calculated by dividing the total
                                                      and discontinue per diem payments for                   (The Office of Management and Budget                   number of residents (including
                                                      care provided on and after the date of                  has approved the information collection                nonveterans) in the nursing home or
                                                      the Under Secretary for Health’s                        requirements in this section under                     domiciliary on that day by the total
                                                      decision affirming a denial of                          control number 2900–XXXX)                              recognized nursing home or domiciliary
                                                      certification or on a later date that must
                                                                                                                                                                     beds in that State home.
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                                                      be specified by the Under Secretary for                 § 51.32    Terminating recognition.
                                                                                                                                                                       (d) Determining whether a Veteran
                                                      Health.                                                   Once a home has achieved                             spent a day receiving adult day health
                                                         (f) Other appeals. Appeals of matters                recognition, the recognition will be                   care. Per diem will be paid only for a
                                                      not addressed in this section will be                   terminated only if the State requests that             day of adult day health care. For
                                                      governed by 38 CFR part 20.                             the recognition be terminated or VA                    purposes of this section a day of adult
                                                      (Authority: 38 U.S.C. 501, 511, 1741–1743,              makes a final decision that affirms the                day health care means:
                                                      7104, 7105).                                            Director’s decision not to certify the                   (1) Six hours or more in one calendar
                                                      (The Office of Management and Budget                    State home.                                            day in which a veteran receives adult
                                                      has approved the information collection                 (Authority: 38 U.S.C. 501, 1742)                       day health care; or


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                               34811

                                                         (2) Any two periods of at least 3 hours                 (ii) A completed VA Form 10–10SH,                   veteran receiving nursing home care in
                                                      each but less than 6 hours each in any                  State Home Program Application for                     a State home, if:
                                                      2 calendar days in the same calendar                    Care—Medical Certification.                               (1) The veteran:
                                                      month in which the veteran receives                        (2) Form required for monthly                          (i) Has a singular or combined rating
                                                      adult day health care.                                  payments. Except as provided in (b)(1)                 of less than 50 percent based on one or
                                                         (3) Time during which the State home                 and (b)(2), VA pays per diem on a                      more service-connected disabilities and
                                                      provides transportation between the                     monthly basis for care provided during                 is in need of such drugs and medicines
                                                      veteran’s residence and the State home                  the prior month. To receive payment,                   for a service-connected disability; and
                                                      or to a health care visit, or provides staff            the State must submit each month to the                   (ii) Is in need of nursing home care for
                                                      to accompany a veteran during                           VA a completed, VA Form 10–5588,                       reasons that do not include care for a
                                                      transportation or a health care visit, will             State Home Report and Statement of                     VA adjudicated service-connected
                                                      be included as time the veteran receives                Federal Aid Claimed.                                   disability, or
                                                      adult day health care.                                     (b) Commencement of payments—(1)                       (2) The veteran:
                                                                                                              Per diem payments for a newly-                            (i) Has a singular or combined rating
                                                      (Authority: 38 U.S.C. 501, 1710, 1741–1744)
                                                                                                              recognized State home. No per diem                     of 50 or 60 percent based on one or
                                                      § 51.42   Payment procedures.                           payments will be made until VA                         more service-connected disabilities and
                                                         (a) Forms required—(1) Forms                         recognizes the home and each veteran                   is in need of such drugs and medicines;
                                                      required at time of admission or                        resident for whom VA pays per diem is                  and
                                                      enrollment. As a condition for receiving                verified as being eligible; however, per                  (ii) Is in need of nursing home care for
                                                      payment of per diem under this part, the                diem payments will be made                             reasons that do not include care for a
                                                      State home must submit the forms                        retroactively for care that was provided               VA adjudicated service-connected
                                                      identified in paragraphs (i) through (ii)               on and after the date of the completion                disability.
                                                      of this paragraph to the VA medical                     of the VA survey that provided the basis                  (b) VA will also furnish drugs and
                                                      center of jurisdiction for each veteran at              for determining that the home met the                  medicines to a State home for a veteran
                                                      the time of the veteran’s admission or                  standards of this part.                                receiving nursing home, domiciliary
                                                      enrollment (or, if the home is not a                                                                           and adult day health care in a State
                                                                                                                 (2) Per diem payments for beds
                                                      recognized State home, the home must,                                                                          home pursuant to 38 U.S.C. 1712(d), as
                                                                                                              certified or precertified under § 51.30(c).
                                                      after recognition, submit forms for                                                                            implemented by § 17.96 of this chapter,
                                                                                                              Per diem will be paid for the care of
                                                      Veterans who received care on and after                                                                        subject to the limitation in § 51.41(c)(2).
                                                                                                              veterans in beds precertified in                          (c) VA may furnish a drug or
                                                      the date of the completion of the VA                    accordance with § 51.30(c) retroactive to
                                                      survey that provided the basis for                                                                             medicine under paragraph (a) of this
                                                                                                              the date of precertification. Per diem                 section and under § 17.96 of this chapter
                                                      determining that the home met the                       will be paid for the care of veterans in
                                                      standards of this part), and with any                                                                          only if the drug or medicine is included
                                                                                                              beds certified in accordance with                      on VA’s National Formulary, unless VA
                                                      request for a change in the type of per                 § 51.30(c) retroactive to the date of the
                                                      diem paid on behalf of a veteran as a                                                                          determines a non-Formulary drug or
                                                                                                              completion of the survey if the Director               medicine is medically necessary.
                                                      result of a change in the veteran’s                     certifies the beds as a result of that                    (d) VA may furnish a drug or
                                                      program of care or a change in the                      survey.                                                medicine under this section and § 17.96
                                                      veteran’s service-connected disability                     (3) Payments for eligible veterans.                 of this chapter by having the drug or
                                                      rating that makes the veteran’s care                    When a State home admits or enrolls an                 medicine delivered to the State home in
                                                      eligible for payment under § 51.41.                     eligible veteran, VA will pay per diem                 which the veteran resides by mail or
                                                      Copies of VA Forms can be obtained                      under this part from the date of receipt               other means and packaged in a form that
                                                      from any VA Medical Center and are                      of the completed forms required by this                is mutually acceptable to the State home
                                                      available on our Web site at                            section, except that VA will pay per                   and VA set forth in a written agreement.
                                                      www.va.gov/vaforms. The required                        diem from the day on which the veteran                    (e) As a condition for receiving drugs
                                                      forms are:                                              was admitted or enrolled if the Director               or medicine under this section or under
                                                         (i) A completed VA Form 10–10EZ,                     receives the completed forms within 12                 § 17.96 of this chapter, the State must
                                                      Application for Medical Benefits (or VA                 days of the date of admission or                       submit to the VA medical center of
                                                      Form 10–10EZR, Health Benefits                          enrollment. VA will make retroactive                   jurisdiction a completed VA Form 10–
                                                      Renewal Form, if a completed Form 10–                   payments of per diem under paragraphs                  0460 for each eligible veteran. The
                                                      10EZ is already on file at VA). Note:                   (b)(1) and (b)(2) only if the Director                 corresponding prescriptions also should
                                                      Domiciliary applicants and residents                    receives the completed forms that must                 be submitted to the VA medical center
                                                      must complete the financial disclosure                  be submitted under this section.                       of jurisdiction.
                                                      sections of VA Forms 1010–EZ and 10–
                                                                                                              (Authority: 38 U.S.C. 510, 1741, 1743)                 (Authority: 38 U.S.C. 501, 1712, 1745)
                                                      10EZR, and adult day health care
                                                      applicants may be required to complete                  (The Office of Management and Budget                   (The Office of Management and Budget
                                                      the financial disclosure sections of these              has approved the information collection                has approved the information collection
                                                      forms in order to enroll with VA;                       requirements in this section under                     requirements in this section under
                                                      however, State homes should not                         control number 2900–XXXX.)                             control number 2900–XXXX.)
                                                      require nursing home applicants or
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                                                      residents or adult day health care                      § 51.43 Drugs and medicines for certain                § 51.50   Eligible veterans-nursing home
                                                      participants to complete the financial                  veterans.                                              care.
                                                      disclosure sections of VA Forms 10–                        (a) In addition to the per diem                       A veteran is an eligible veteran for the
                                                      10EZ and 10–10EZR as long as these                      payments under § 51.40 of this part, the               purposes of payment of per diem for
                                                      veterans sign the form, thereby                         Secretary will furnish drugs and                       nursing home care under this part if VA
                                                      indicating knowledge of, and                            medicines to a State home as may be                    determines that the veteran needs
                                                      willingness to pay, any applicable co-                  ordered by prescription of a duly                      nursing home care; is not barred from
                                                      pays for the treatment of nonservice-                   licensed physician as specific therapy in              receiving care based on his or her
                                                      connected conditions by VA.                             the treatment of illness or injury for a               service (see 38 U.S.C. 5303–5303A), is


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                                                      34812                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      not barred from receiving VA pension,                      (1) A veteran whose annual income                      (2) The veteran has significant
                                                      compensation or dependency and                          does not exceed the maximum annual                     cognitive impairment.
                                                      indemnity compensation based on the                     rate of pension payable to a veteran in                   (3) The veteran has two ADL
                                                      character of a discharge from military                  need of regular aid and attendance; or                 dependencies and two or more of the
                                                      service (see 38 CFR 3.12) and is within                    (2) A veteran who VA determines has                 following conditions:
                                                      one of the following categories:                        no adequate means of support. The                         (i) Seventy-five years old or older;
                                                         (a) Veterans with service-connected                  phrase no adequate means of support                       (ii) High use of medical services, i.e.,
                                                      disabilities;                                           refers to an applicant for domiciliary                 three or more hospitalizations per
                                                         (b) Veterans who are former prisoners                care whose annual income exceeds the                   calendar year, or twelve or more visits
                                                      of war, who were awarded the Purple                     rate of pension described in paragraph                 to outpatient clinics and emergency
                                                      Heart, or who were awarded the medal                    (1), but who is able to demonstrate to                 evaluation units per calendar year;
                                                      of honor under 10 U.S.C. 3741, 6241, or                 competent VA medical authority, on the                    (iii) Diagnosis of clinical depression;
                                                      8741 or 14 U.S.C. 491;                                  basis of objective evidence, that deficits             or
                                                         (c) Veterans who were discharged or                  in health and/or functional status render                 (iv) Living alone in the community.
                                                      released from active military service for               the applicant incapable of pursuing                       (4) The veteran does not meet the
                                                      a disability incurred or aggravated in the              substantially gainful employment, as                   criteria in paragraphs (d)(1), (d)(2), or
                                                      line of duty;                                           determined by the Chief of Staff of the                (d)(3) of this section, but nevertheless is
                                                         (d) Veterans who receive disability                  VA medical center of jurisdiction, and                 determined by a VA licensed medical
                                                      compensation under 38 U.S.C. 1151;                      who is otherwise without the means to                  practitioner to need adult day health
                                                         (e) Veterans whose entitlement to                                                                           care services.
                                                                                                              provide adequately for self, or be
                                                      disability compensation is suspended
                                                                                                              provided for in the community.                         (Authority: 38 U.S.C. 501, 1720(f), 1741–
                                                      because of the receipt of retired pay;
                                                                                                                 (b) For purposes of this section, the               1743)
                                                         (f) Veterans whose entitlement to
                                                                                                              eligible veteran must be able to perform
                                                      disability compensation is suspended                                                                           § 51.58 Standards applicable for payment
                                                      pursuant to 38 U.S.C. 1151, but only to                 the following:
                                                                                                                 (1) Daily ablutions, such as brushing               of per diem.
                                                      the extent that such veterans’                                                                                   A State home must meet the standards
                                                                                                              teeth; bathing; combing hair; body
                                                      continuing eligibility for nursing home                                                                        in the applicable subpart to be
                                                                                                              eliminations, without assistance.
                                                      care is provided for in the judgment or                                                                        recognized, certified, and receive per
                                                                                                                 (2) Dress self, with a minimum of
                                                      settlement described in 38 U.S.C. 1151;                                                                        diem for that program of care:
                                                         (g) Veterans who VA determines are                   assistance.
                                                                                                                 (3) Proceed to and return from the                    (a) For nursing home care, subpart D.
                                                      unable to defray the expenses of                                                                                 (b) For domiciliary care, subpart E.
                                                      necessary care as specified under 38                    dining hall without aid.
                                                                                                                 (4) Feed self.                                        (c) For adult day health care,
                                                      U.S.C. 1722(a);                                                                                                subpart F.
                                                         (h) Veterans solely seeking care for a                  (5) Secure medical attention on an
                                                      disorder associated with exposure to a                  ambulatory basis or by use of personally               (Authority: 38 U.S.C. 501)
                                                      toxic substance or radiation, for a                     propelled wheelchair.
                                                                                                                 (6) Have voluntary control over body                § 51.59 Authority to continue payment of
                                                      disorder associated with service in the                                                                        per diem when veterans are relocated due
                                                      Southwest Asia theater of operations                    eliminations or control by use of an
                                                                                                                                                                     to emergency.
                                                      during the Persian Gulf War, as                         appropriate prosthesis.
                                                                                                                 (7) Share in some measure, however                     (a) Definition of emergency. For the
                                                      provided in 38 U.S.C. 1710(e), or for any                                                                      purposes of this section, emergency
                                                                                                              slight, in the maintenance and operation
                                                      illness associated with service in                                                                             means an occasion or instance where all
                                                                                                              of the State home.
                                                      combat in a war after the Gulf War or                                                                          of the following are true:
                                                                                                                 (8) Make rational and competent
                                                      during a period of hostility after                                                                                (1) It would be unsafe for veterans
                                                                                                              decisions as to his or her desire to
                                                      November 11, 1998, as provided and                                                                             receiving care at a State home to remain
                                                                                                              remain or leave the State home.
                                                      limited in 38 U.S.C. 1710(e);                                                                                  in that home.
                                                         (i) Veterans who agree to pay to the                 (Authority: 38 U.S.C. 101, 501, 1710, 1741–
                                                                                                                                                                        (2) The State is not, or believes that
                                                      United States the applicable co-payment                 1743)
                                                                                                                                                                     it will not be, able to provide care in the
                                                      determined under 38 U.S.C. 1710(f) and                  § 51.52    Eligible veterans-adult day health          State home on a temporary or long-term
                                                      1710(g).                                                care.                                                  basis for any or all of its veteran
                                                        Note: Neither enrollment in the VA                      A veteran is an eligible veteran for                 residents due to a situation involving
                                                      healthcare system nor eligibility to enroll is          payment of per diem to a State for adult               the State home, and not due to a
                                                      required to be an eligible veteran for the              day health care if VA determines that                  situation where a particular veteran’s
                                                      purposes of payment of per diem for nursing                                                                    medical condition requires that the
                                                      home care.                                              the veteran
                                                                                                                (a) Is not barred from receiving VA                  veteran be transferred to another
                                                      (Authority: 38 U.S.C. 501, 1710, 1741–1743)             pension, compensation or dependency                    facility, such as for a period of
                                                                                                              and indemnity compensation based on                    hospitalization.
                                                      § 51.51   Eligible veterans-domiciliary care.           the character of a discharge from                         (3) The State determines that the
                                                        (a) A veteran is an eligible veteran for              military service (see 38 CFR 3.12)                     veterans must be evacuated to another
                                                      the purposes of payment of per diem for                   (b) Is enrolled in the VA health care                facility or facilities.
                                                      domiciliary care in a State home under                  system,                                                   (b) General authority to pay per diem
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                                                      this part if VA determines that the                       (c) Would otherwise require nursing                  during relocation period.
                                                      veteran is not barred from receiving care               home care;                                             Notwithstanding any other provision of
                                                      based on his or her service (see 38                       and                                                  this part, VA will continue to pay per
                                                      U.S.C. 5303–5303A), is not barred from                    (d) Needs adult day health care                      diem for a period not to exceed 30 days
                                                      receiving VA pension, compensation or                   because the veteran meets any one of                   for any eligible veteran who resided in
                                                      dependency and indemnity                                the following conditions:                              a State home, and for whom VA was
                                                      compensation based on the character of                    (1) The veteran has three or more                    paying per diem, if such veteran is
                                                      a discharge from military service (see 38               Activities of Daily Living (ADL)                       evacuated during an emergency into a
                                                      CFR 3.12), and the veteran is:                          dependencies.                                          facility other than a VA nursing home,


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                              34813

                                                      hospital, domiciliary, or other VA site of              paying per diem, if the adult day health                 (b) * * *
                                                      care if the State is responsible for                    care facility becomes temporarily                        (2) The State home administrator;
                                                      providing or paying for the care. VA                    unavailable due to an emergency.                         (3) The director of nursing services (or
                                                      will not pay per diem payments under                    Approval of a temporary program of                     other individual in charge of nursing
                                                      this section for more than 30 days of                   care for such veteran is subject to                    services); and
                                                      care provided in the evacuation facility,               paragraph (e) of this section. If after 30               (4) The State employee responsible for
                                                      unless the official who approved the                    days the veteran cannot return to the                  oversight of the State home if a
                                                      emergency response under paragraph (e)                  adult day health care program in the                   contractor operates the State home.
                                                      of this section determines that it is not               State home, VA will discontinue per                    *     *      *     *    *
                                                      reasonably possible to return the veteran               diem payments unless the official who                    (h)(3) If a veteran requires health care
                                                      to a State home within the 30-day                       approved the emergency response under                  that the State home is not required to
                                                      period, in which case such official will                paragraph (e) of this section determines               provide under this part, the State home
                                                      approve additional period(s) of no more                 that it is not reasonably possible to                  may assist the veteran in obtaining that
                                                      than 30 days in accordance with this                    provide care in the State home or to                   care from sources outside the State
                                                      section. VA will not provide per diem                   relocate an eligible veteran to a different            home, including the Veterans Health
                                                      if VA determines that a veteran is or has               recognized or certified facility, in which             Administration. If VA is contacted about
                                                      been placed in a facility that does not                 case such official will approve                        providing such care, VA will determine
                                                      meet the standards set forth in                         additional period(s) of no more than 30                the best option for obtaining the needed
                                                      paragraph (c)(1) of this section, and VA                days at the temporary program of care                  services and will notify the veteran or
                                                      may recover all per diem payments                       in accordance with this section. VA will               the authorized representative of the
                                                      made for the care of the veteran in that                not provide per diem if VA determines                  veteran.
                                                      facility.                                               that a veteran was provided adult day                  *     *      *     *    *
                                                         (c) Selection of evacuation facilities.              health care in a facility that does not                ■ 8. Amend part 51 by adding subparts
                                                      The following standards and procedures                  meet the standards set forth in                        E and F, to read as follows:
                                                      apply to the selection of an evacuation                 paragraph (c)(1) of this section, and VA               Subpart E—Standards Applicable to the
                                                      facility in order for VA to continue to                 may recover all per diem payments                      Payment of Per Diem for Domiciliary Care
                                                      pay per diem during an emergency;                       made for the care of the veteran in that
                                                                                                                                                                     Sec
                                                      these standards and procedures also                     facility.                                              51.300 Resident rights and behavior; State
                                                      apply to evacuation facilities when                       (e) Approval of response. Per diem                       home practices; quality of life
                                                      veterans are evacuated from a nursing                   payments will not be made under this                   51.310 Resident assessment
                                                      home in which care is being provided                    section unless and until the Director of               51.320 Quality of care
                                                      pursuant to a contract under 38 U.S.C.                  the VA medical center of jurisdiction                  51.330 Nursing care
                                                      1720.                                                   determines, or the director of the VISN                51.340 Physician and other licensed
                                                         (1) Each veteran who is evacuated                    in which the State home is located (if                     medical practitioner services
                                                                                                              the VAMC Director is not capable of                    51.350 Provision of certain specialized
                                                      must be placed in a facility that, at a
                                                                                                                                                                         services and environmental requirements
                                                      minimum, will meet the needs for food,                  doing so) determines, that an emergency
                                                                                                                                                                     51.390 Administration
                                                      shelter, toileting, and essential medical               exists and that the evacuation facility
                                                      care of that veteran.                                   meets VA standards set forth in                        Subpart F—Standards Applicable to Adult
                                                         (2) For veterans evacuated from                      paragraph (c)(1) of this section.                      Day Health Care Programs of Care
                                                      nursing homes, the following types of                   (Authority 38 U.S.C. 501, 1720, 1742)                  51.400 Participant rights
                                                      facilities may meet the standards under                                                                        51.405 Participant and family caregiver
                                                                                                              ■ 4. Amend the heading of Subpart D,                       responsibilities
                                                      paragraph (c)(1) of this section:
                                                                                                              part 51, to read as follows:                           51.410 Transfer and discharge
                                                         (i) VA Community Living Centers;                                                                            51.411 Program practices
                                                         (ii) VA contract nursing homes;                      Subpart D—Standards applicable to                      51.415 Restraints, abuse, and staff treatment
                                                         (iii) Centers for Medicare and                       the payment of per diem for nursing                        of participants
                                                      Medicaid Services certified facilities;                 home care.                                             51.420 Quality of life
                                                      and                                                                                                            51.425 Physician orders and participant
                                                         (iv) Licensed nursing homes.                         § 51.120    [Amended]                                      medical assessment
                                                                                                              ■  5. Amend § 51.120(a)(3) by replacing                51.430 Quality of care
                                                        Note to paragraph (c)(2): If none of the
                                                                                                              ‘‘Chief Consultant, Office of Geriatrics               51.435 Nursing services
                                                      above options are available, veterans may be
                                                                                                                                                                     51.440 Dietary services
                                                      evacuated temporarily to other facilities that          and Extended Care (114)’’ with ‘‘Office
                                                                                                                                                                     51.445 Physician services
                                                      meet the standards under paragraph (c)(1) of            of Geriatrics and Extended Care in VA                  51.450 Specialized rehabilitative services
                                                      this section.                                           Central Office.’’                                      51.455 Dentist
                                                        (3) For veterans evacuated from                       § 51.140    [Amended]                                  51.460 Administration of drugs
                                                      domiciliaries, the following types of                                                                          51.465 Infection control
                                                                                                              ■ 6. Amend § 51.140(d)(4) by removing                  51.470 Physical environment
                                                      facilities may meet the standards in
                                                                                                              ‘‘who refuse food served’’.                            51.475 Administration
                                                      paragraph (c)(1) of this section:                       ■ 7. Amend § 51.210 by:                                51.480 Transportation
                                                        (i) Emergency evacuation facilities                   ■ a. In paragraph (b), replacing ‘‘Chief
                                                      identified by the city or State;
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                                                                                                              Consultant, Office of Geriatrics and                   Subpart E—Standards Applicable to
                                                        (ii) Assisted living facilities; and                  Extended Care (114)’’ with ‘‘Office of                 the Payment of Per Diem for
                                                        (iii) Hotels.                                         Geriatrics and Extended Care’’.                        Domiciliary Care
                                                        (d) Applicability to adult day health                 ■ b. Revising paragraph (b)(2),
                                                      care programs of care. Notwithstanding                  redesignating (b)(3) as (b)(4), and adding             § 51.300 Resident rights and behavior;
                                                      any other provision of this part, VA will               new paragraphs (b)(3) and (h)(3), to read              state home practices; quality of life.
                                                      continue to pay per diem for a period                   as follows:                                              The State home must protect and
                                                      not to exceed 30 days for any eligible                                                                         promote the rights and quality of life of
                                                      veteran who was receiving adult day                     § 51.210    Administration.                            each resident receiving domiciliary care,
                                                      health care, and for whom VA was                        *      *      *       *      *                         and otherwise comply with the


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                                                      34814                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      requirements set forth in §§ 51.70,                        (ii) Prepared by health professionals,              function as a direct result of the injuries
                                                      51.80, 51.90, and 51.100. For purposes                  that include the primary physician, a                  sustained in the fall.
                                                      of this section, the references in the                  social worker, and a registered nurse                     (3) The State home must report
                                                      cited sections to nursing home and                      who have responsibility for the resident,              sentinel events to the Director within 24
                                                      nursing facility refer to a domiciliary.                and other appropriate staff in                         hours of identification. The VA medical
                                                      (Authority: 38 U.S.C. 501, 1741–1743)                   disciplines as determined by the                       center of jurisdiction must report
                                                                                                              resident’s needs, and, to the extent                   sentinel events by notifying the VA
                                                      (The Office of Management and Budget                    practicable, the participation of the                  Network Director (10N1–10N22) and the
                                                      has approved the information collection                 resident and the resident’s family                     Director, Office of Geriatrics and
                                                      requirements in this section under                      (subject to the consent of the resident)               Extended Care—Operations (10NC4)
                                                      control number 2900–XXXX.)                              or the resident’s legal representative, if             within 24 hours of notification.
                                                                                                              appropriate; and                                          (4) The State home must establish a
                                                      § 51.310   Resident assessment.                            (iii) Periodically reviewed and revised             mechanism to review and analyze a
                                                         The State home must conduct a                        by a team of qualified persons after each              sentinel event resulting in a written
                                                      comprehensive, accurate, and written                    assessment.                                            report to be submitted to the VA
                                                      assessment of each resident’s medical                      (3) The services provided by the                    Medical Center of jurisdiction no later
                                                      and functional capacity upon                            facility must—                                         than 10 working days following the
                                                      admission, annually, and as required by                    (i) Meet professional standards of                  event. The purpose of the review and
                                                      a change in the resident’s condition.                   quality; and                                           analysis of a sentinel event is to prevent
                                                         (a) Admission orders. At the time each                  (ii) Be provided by qualified persons
                                                                                                                                                                     injuries to residents, visitors, and
                                                      resident is admitted, the State home                    in accordance with each resident’s
                                                                                                                                                                     personnel, and to manage those injuries
                                                      must have physician orders for the                      written treatment plan.
                                                                                                                                                                     that do occur and to minimize the
                                                      resident’s immediate care and a medical                    (e) Discharge summary. Prior to
                                                                                                                                                                     negative consequences to the injured
                                                      assessment, including a medical history                 discharging a resident, the State home
                                                                                                                                                                     individuals and the State home.
                                                      and physical examination, within a time                 must prepare a discharge summary that
                                                                                                              includes—                                                 (b) Activities of daily living. Based on
                                                      frame appropriate to the resident’s                                                                            the comprehensive assessment of a
                                                      condition, not to exceed 72 hours after                    (1) A recapitulation of the resident’s
                                                                                                              stay;                                                  resident, the State home must ensure
                                                      admission, except when the required                                                                            that a resident’s abilities in activities of
                                                      physical examination was performed                         (2) A summary of the resident’s status
                                                                                                              at the time of the discharge to include                daily living do not diminish unless
                                                      within five days before admission and                                                                          circumstances of the individual’s
                                                      the findings were recorded in the                       a summary of the resident’s progress on
                                                                                                              the treatment plan in paragraph (d)(2) of              clinical condition demonstrate that
                                                      medical record on admission, in which                                                                          diminution was unavoidable, and the
                                                      case the physician orders may be                        this section; and
                                                                                                                 (3) A post-discharge plan of care that              resident is given appropriate treatment
                                                      submitted when available.                                                                                      and services to maintain or improve his
                                                         (b) Use. The State home must use the                 is developed with the participation of
                                                                                                              the resident and, to the extent                        activities of daily living. This includes
                                                      results of the assessment to develop,                                                                          the resident’s ability to:
                                                      review, and revise the resident’s                       practicable and appropriate, his or her
                                                                                                              family, (subject to the consent of the                    (1) Bathe, dress, and groom;
                                                      treatment plan.
                                                                                                              resident) and legal representative,                       (2) Transfer and ambulate;
                                                         (c) Coordination of assessments. Each
                                                                                                              which will assist the resident to adjust                  (3) Toilet;
                                                      assessment must be conducted or
                                                                                                              to his or her new living environment.                     (4) Eat; and
                                                      coordinated by a registered nurse with
                                                      the appropriate participation of health                 (Authority: 38 U.S.C. 501, 1720(f), 1741–                 (5) Talk or otherwise communicate.
                                                      professionals, including at least one                   1743)                                                     (c) Vision and hearing. To ensure that
                                                      physician, the registered nurse, and one                (The Office of Management and Budget                   residents receive proper treatment and
                                                      social worker. The registered nurse must                has approved the information collection                assistive devices to maintain vision and
                                                      sign and certify the assessment.                        requirements in this section under                     hearing abilities, the State home must,
                                                         (d) Treatment plans. (1) The State                   control number 2900–XXXX.)                             if necessary, assist the resident:
                                                      home must develop a treatment plan for                                                                            (1) In making appointments, and
                                                                                                              § 51.320    Quality of care.
                                                      each resident that includes measurable                                                                            (2) By arranging for transportation to
                                                      objectives and timetables to address a                    The State home must provide each                     and from the office of a practitioner
                                                      resident’s physical, mental, and                        resident with the care described in this               specializing in the treatment of vision or
                                                      psychosocial needs that are identified in               subpart in accordance with the                         hearing impairment or the office of a
                                                      the written assessment. The treatment                   assessment and plan of care.                           professional specializing in the
                                                                                                                (a) Reporting of sentinel events. (1) A
                                                      plan must describe the following:                                                                              provision of vision or hearing assistive
                                                                                                              sentinel event is an adverse event that
                                                         (i) The services that are to be                                                                             devices.
                                                                                                              results in the loss of life or limb or
                                                      furnished to support the resident’s                                                                               (d) Mental and Psychosocial
                                                                                                              permanent loss of function.
                                                      highest practicable physical, mental,                     (2) Examples of sentinel events are as               functioning. Based on the
                                                      and psychosocial well-being as required                 follows:                                               comprehensive assessment of a resident,
                                                      under § 51.350; and                                       (i) Any resident death, paralysis,                   the State home must assist a resident
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                                                         (ii) Any services that would otherwise               coma or other major permanent loss of                  who displays mental or psychosocial
                                                      be required under § 51.350 but are not                  function associated with a medication                  adjustment difficulty, obtain
                                                      provided due to the resident’s exercise                 error; or                                              appropriate treatment and services to
                                                      of rights under § 51.300, including the                   (ii) Any suicide of a resident; or                   correct the assessed problem.
                                                      right to refuse treatment.                                (iii) Assault, homicide or other crime                  (e) Accidents. The State home must
                                                         (2) A treatment plan must be:                        resulting in resident death or major                   ensure that:
                                                         (i) Developed within 7 calendar days                 permanent loss of function; or                            (1) The resident environment remains
                                                      after completion of the comprehensive                     (iv) A resident fall that results in                 as free of accident hazards as possible;
                                                      assessment;                                             death or major permanent loss of                       and


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                               34815

                                                         (2) Each resident receives adequate                  obtaining that care. The State home                    § 51.390   Administration.
                                                      supervision and assistance devices to                   must ensure that a physician personally                  The State home must follow § 51.210
                                                      prevent accidents.                                      approves in writing a recommendation                   regarding administration in providing
                                                         (f) Nutrition. The State home must                   that an individual be admitted to a                    domiciliary care. For purposes of this
                                                      follow § 51.120(j) regarding nutrition in               domiciliary. Each resident must remain                 section, the references in the cited
                                                      providing domiciliary care.                             at all times under the care of a licensed              section to nursing home and nursing
                                                         (g) Special needs. The State home                    medical practitioner assigned by the                   home care refer to a domiciliary and
                                                      must provide residents with the                         State home. The name of the                            domiciliary care.
                                                      following services, if needed:                          practitioner will be listed in the                     (Authority: 38 U.S.C. 101, 501, 1710, 1741–
                                                         (1) Injections;                                      resident’s medical record. The State                   1743)
                                                         (2) Colostomy, ureterostomy, or                      home must ensure that all of the
                                                      ileostomy care;                                         following conditions are met:                          (The Office of Management and Budget
                                                         (3) Respiratory care;                                   (a) Supervision of medical                          has approved the information collection
                                                         (4) Foot care; and                                   practitioners. Any licensed medical                    requirements in this section under
                                                         (5) Non-customized or non-                           practitioner who is not a physician may                control number 2900–XXXX.)
                                                      individualized prosthetic devices.                      provide medical care to a resident
                                                         (h) Unnecessary drugs. The State                                                                            Subpart F—Standards Applicable to
                                                                                                              within the practitioner’s scope of                     Adult Day Health Care Programs of
                                                      home must ensure that the standards set                 practice without physician supervision
                                                      forth in § 51.120(m) regarding                                                                                 Care
                                                                                                              when permitted by state law.
                                                      unnecessary drugs are followed in                                                                              § 51.400   Participant rights.
                                                                                                                 (b) Availability of medical
                                                      providing domiciliary care.
                                                                                                              practitioners. If the resident’s assigned                The State home must protect and
                                                         (i) Medication Errors. The State home
                                                                                                              licensed medical practitioner is                       promote the rights of a participant in an
                                                      must ensure that the standards set forth
                                                                                                              unavailable, another licensed medical                  adult day health care program,
                                                      in § 51.120(n) regarding medication
                                                                                                              practitioner must be available to provide              including the rights set forth in § 51.70,
                                                      errors are followed in providing
                                                                                                              care for that resident.                                except for the right set forth in
                                                      domiciliary care.
                                                                                                                 (c) Visits. The primary care physician              § 51.70(m). For purposes of this section,
                                                      (Authority: 38 U.S.C. 101, 501, 1710, 1741–             or other licensed medical practitioner,                the references in the cited section to
                                                      1743)                                                                                                          resident refer to a participant.
                                                                                                              for each visit required by paragraph (d)
                                                      (The Office of Management and Budget                    of this section, must—                                 (Authority: 38 U.S.C. 501)
                                                      has approved the information collection                    (1) Review the resident’s total
                                                                                                                                                                     (The Office of Management and Budget
                                                      requirements in this section under                      program of care, including medications
                                                                                                                                                                     has approved the information collection
                                                      control number 2900–XXXX.)                              and treatments;
                                                                                                                                                                     requirements in this section under
                                                      § 51.330   Nursing care.
                                                                                                                 (2) Write, sign, and date progress                  control number 2900–0160.)
                                                                                                              notes; and
                                                         The State home must provide an                                                                              § 51.405 Participant and family caregiver
                                                                                                                 (3) Sign and date all orders.
                                                      organized nursing service with a                                                                               responsibilities.
                                                      sufficient number of qualified nursing                     (d) Frequency of visits. The resident
                                                                                                              must be seen by the primary care                          The State home must post in a place
                                                      personnel to meet the total nursing care                                                                       where participants in the adult day
                                                      needs, as determined by the resident                    physician or other licensed medical
                                                                                                              practitioner at least once every 30 days               health care program and their families
                                                      assessment and individualized                                                                                  will see it a written statement of
                                                      treatment plans, of all residents within                for the first 90 days after admission, and
                                                                                                              at least once a calendar year thereafter,              participant and family caregiver
                                                      the facility, 24 hours a day, 7 days a                                                                         responsibilities and must provide a
                                                      week.                                                   or more frequently based on the
                                                                                                              condition of the resident.                             copy to the participant and caregiver at
                                                         (a) The nursing service must be under                                                                       or before the time of the intake
                                                      the direction of a full-time registered                    (e) Availability of emergency care.
                                                                                                              The State home must assist residents in                screening. The statement of
                                                      nurse who is currently licensed by the                                                                         responsibilities must include the
                                                      State and has, in writing, administrative               obtaining emergency care.
                                                                                                                                                                     following responsibilities:
                                                      authority, responsibility, and                          (Authority: 38 U.S.C. 101, 501, 1710, 1741–               (a) Treat personnel with respect and
                                                      accountability for the functions,                       1743)                                                  courtesy;
                                                      activities, and training of the nursing                                                                           (b) Communicate with staff to develop
                                                      service’s staff.                                        § 51.350 Provision of certain specialized
                                                                                                              services and environmental requirements.               a relationship of trust;
                                                         (b) The director of nursing service                                                                            (c) Make appropriate choices and seek
                                                      must designate a licensed nurse as the                    The State home must comply with the                  appropriate care;
                                                      supervising nurse for each tour of duty.                requirements, set forth in §§ 51.140,                     (d) Ask questions and confirm your
                                                      (Authority: 38 U.S.C. 101, 501, 1710, 1741–             51.170, 51.180, 51.190, and 51.200                     understanding of instructions;
                                                      1743)                                                   concerning dietary, dental, pharmacy                      (e) Share opinions, concerns, and
                                                                                                              services, infection control, and physical              complaints with the program director;
                                                      § 51.340 Physician and other licensed                   environment. For purposes of this                         (f) Communicate any changes in the
                                                      medical practitioner services.                          section, the references in the cited                   participant’s condition;
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                                                        The State home must provide the                       sections to nursing home and nursing                      (g) Communicate to the program
                                                      necessary primary care for its residents                facility refer to a domiciliary.                       director about medications and
                                                      to permit them to attain or maintain the                (Authority: 38 U.S.C. 101, 501, 1710, 1741–            remedies used by the participant;
                                                      highest practicable physical, mental,                   1743)                                                     (h) Let the program director know if
                                                      and psychosocial well-being. When a                                                                            the participant decides not to follow any
                                                      resident needs care other than what the                 (The Office of Management and Budget                   instructions or treatment; and
                                                      State home is required to provide under                 has approved the information collection                   (i) Communicate with the adult day
                                                      this subpart, the State home is                         requirements in this section under                     health care staff if the participant is
                                                      responsible for assisting the resident in               control number 2900–XXXX.)                             unable to attend adult day health care.


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                                                      34816                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      (Authority: 38 U.S.C. 501)                                 (d) Timing of the notice. (1) The                   § 51.411   Program practices.
                                                                                                              notice of transfer and discharge required                (a) Equal access to quality care. The
                                                      (The Office of Management and Budget
                                                                                                              under paragraph (c) of this section must               State home must establish and maintain
                                                      has approved the information collection
                                                                                                              be made by the State home at least 30                  identical policies and practices
                                                      requirements in this section under
                                                                                                              days before the participant is given a                 regarding transfer and discharge under
                                                      control number 2900–0160)
                                                                                                              transfer and discharge, except when                    § 51.410 and the provision of services
                                                      § 51.410   Transfer and discharge.                      specified in paragraph (d)(2) of this                  for all participants regardless of the
                                                         (a) Definition. For purposes of this                 section.                                               source of payment.
                                                      section, the term ‘‘transfer and                           (2) Notice may be made as soon as                     (b) Admission policy. The State home
                                                      discharge’’ includes movement of a                      practicable before a transfer and                      must not require a third-party guarantee
                                                      participant to a program outside of the                 discharge when—                                        of payment as a condition of admission
                                                      adult day health care program whether                      (i) The safety of individuals in the                or expedited admission, or continued
                                                      or not that program of care is in the                   facility would be endangered;                          admission in the program of care.
                                                      same facility.                                             (ii) The health of individuals in the               However, the State home may require a
                                                         (b) Transfer and discharge                           facility would be otherwise endangered;                participant or an individual who has
                                                      requirements. The possible reasons for                     (iii) The participant’s health improves             legal access to a participant’s income or
                                                      transfer and discharge must be                          sufficiently so the participant no longer              resources to pay for the care from the
                                                      discussed with the participant and, to                  needs the services provided by the adult               participant’s income or resources, when
                                                      the extent practicable and appropriate,                 day health care program of care; or                    available.
                                                      with family members (subject to the                                                                              (c) Hours of operation. Each adult day
                                                                                                                 (iv) The resident’s needs cannot be
                                                      consent of the participant) and legal                                                                          health care program of care must
                                                                                                              met in the adult day health care
                                                      representatives at the time of intake                                                                          provide at least 8 hours of operation 5
                                                                                                              program of care.
                                                      screening. In the case of a transfer and                                                                       days a week. The hours of operation
                                                                                                                 (e) Contents of the notice. The written             must be flexible and responsive to
                                                      discharge to a hospital, the transfer and               notice specified in paragraph (c) of this
                                                      discharge must be to the hospital closest                                                                      caregiver needs.
                                                                                                              section must include the following:
                                                      to the adult day health care facility that                 (1) The reason for the transfer and                 (Authority: 38 U.S.C. 501, 1741–1743)
                                                      is capable of providing the necessary                   discharge;                                             § 51.415 Restraints, abuse, and staff
                                                      care. The State home must permit each                      (2) The effective date of the transfer              treatment of participants.
                                                      participant to remain in the program of                 and discharge;
                                                      care, and not transfer or discharge the                                                                          The State home must meet the
                                                                                                                 (3) The location to which the                       requirements regarding the use of
                                                      participant from the program of care
                                                                                                              participant is taken in accordance with                restraints, abuse, and other matters
                                                      unless:
                                                                                                              the transfer and discharge, if any;                    concerning staff treatment of
                                                         (1) The transfer and discharge is
                                                      necessary for the participant’s welfare                    (4) A statement that the participant                participants set forth in § 51.90. For
                                                      and the participant’s needs cannot be                   has the right to appeal the action to the              purposes of this section, the references
                                                      met in the adult day health care setting;               State official responsible for the                     in the cited section to resident refer to
                                                         (2) The transfer and discharge is                    oversight of State Veterans Home                       a participant.
                                                      appropriate because the participant’s                   programs; and                                          (Authority: 38 U.S.C. 501)
                                                      health has improved sufficiently so the                    (5) The name, address and telephone
                                                                                                              number of the State long-term care                     (The Office of Management and Budget
                                                      participant no longer needs the services
                                                                                                              ombudsman.                                             has approved the information collection
                                                      provided in the adult day health care
                                                                                                                 (f) Orientation for transfer and                    requirements in this section under
                                                      program;
                                                                                                              discharge. The State home must provide                 control number 2900–XXXX.)
                                                         (3) The safety of individuals in the
                                                      facility is endangered;                                 sufficient preparation and orientation to              § 51.420   Quality of life.
                                                         (4) The health of individuals in the                 participants to ensure safe and orderly
                                                                                                                                                                        The State home must provide an
                                                      facility would otherwise be endangered;                 transfer and discharge from the State
                                                                                                                                                                     environment that supports the quality of
                                                         (5) The participant has failed, after                home.
                                                                                                                                                                     life of each participant by maximizing
                                                      reasonable and appropriate notice, to                      (g) Written policy. The State home                  the participant’s potential strengths and
                                                      pay for participation in adult day health               must have in effect a written transfer                 skills.
                                                      care; or                                                and discharge procedure that reasonably                   (a) Dignity. The State home must
                                                         (6) The adult day health care program                ensures that:                                          promote care for participants in a
                                                      of care ceases to operate.                                 (1) Participants will be given a                    manner and in an environment that
                                                         (c) Notice before transfer. Before an                transfer and discharge from the adult                  maintains or enhances each
                                                      adult day health care program                           day health care program to the hospital,               participant’s dignity and respect in full
                                                      undertakes the transfer and discharge of                and ensured of timely admission to the                 recognition of his or her individuality.
                                                      a participant, the State home must:                     hospital when transfer and discharge is                   (b) Self-determination and
                                                         (1) Notify the participant or the legal              medically appropriate as determined by                 participation. The State home must
                                                      representative of the participant and, if               a physician; and                                       ensure that the participant has the right
                                                      appropriate, a family member, of the                       (2) Medical and other information                   to—
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                                                      transfer and discharge and the reasons                  needed for care and treatment of                          (1) Choose activities, schedules, and
                                                      for the move in writing and in a                        participants will be exchanged between                 health care consistent with his or her
                                                      language and manner they can                            the facility and the hospital.                         interests, assessments, and plans of care;
                                                      understand;                                             (Authority: 38 U.S.C. 501, 1741–1743)                     (2) Interact with members of the
                                                         (2) Record the reasons in the                                                                               community both inside and outside the
                                                      participant’s clinical record; and                      (The Office of Management and Budget                   facility; and
                                                         (3) Include in the notice the items                  has approved the information collection                   (3) Make choices about aspects of his
                                                      described in paragraph (e) of this                      requirements in this section under                     or her life in the facility that are
                                                      section.                                                control number 2900–0160)                              significant to the participant.


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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                              34817

                                                         (c) Participant and family concerns.                 image and/or improve or maintain the                     (viii) Provide individual or group
                                                      The State home must document any                        functioning level of participants to the               counseling and support to caregivers
                                                      concerns submitted to the management                    extent possible;                                       and participants;
                                                      of the program by participants or family                  (iv) Provide opportunities for a variety               (ix) Conduct support groups or
                                                      members.                                                of involvement (social, intellectual,                  facilitate participant or family/caregiver
                                                         (1) A participant’s family has the right             cultural, economic, emotional, physical,               participation in support groups;
                                                      to meet with families of other                          and spiritual) at different levels,                      (x) Assist program staff in adapting to
                                                      participants in the program.                            including community activities and                     changes in participants’ behavior; and
                                                         (2) Staff or visitors may attend                     events;                                                  (xi) Provide or arrange for individual,
                                                      meetings of participant or family groups                  (v) Emphasize participants’ strengths                group, or family psychotherapy for
                                                      at the group’s invitation.                              and abilities rather than impairments                  participants with significant
                                                         (3) The State home must respond to                   and contribute to participants’ feelings               psychosocial needs.
                                                      written requests that result from group                 of competence and accomplishment;                        (5) Space for social services must be
                                                      meetings.                                               and                                                    adequate to ensure privacy for
                                                         (4) The State home must listen to the                  (vi) Provide opportunities to                        interviews.
                                                      views of any participant or family group                voluntarily perform services for                         (g) Environment. The State home must
                                                      and act upon the concerns of                            community groups and organizations.                    provide:
                                                      participants and families regarding                       (f) Social services. (1) The State home                (1) A safe, clean, comfortable, and
                                                      policy and operational decisions                        must provide medically-related social                  homelike environment, and support the
                                                      affecting participant care in the                       services to participants and their                     participants’ ability to function as
                                                      program.                                                families.                                              independently as possible and to engage
                                                         (d) Participation in other activities.                 (2) An adult day health care program                 in program activities;
                                                      The State home must ensure that a                       of care must provide a qualified social                  (2) Housekeeping and maintenance
                                                      participant has the right to participate in             worker to furnish social services.                     services necessary to maintain a
                                                      social, religious, and community                          (3) Qualifications of social worker. A               sanitary, orderly, and comfortable
                                                      activities that do not interfere with the               qualified social worker is an individual               interior;
                                                      rights of other participants in the                     with:                                                    (3) Private storage space that can be
                                                      program.                                                  (i) A bachelor’s degree in social work               secured with a lock for each participant
                                                         (e) Therapeutic participant activities.                                                                     sufficient for a change of clothes;
                                                                                                              from a school accredited by the Council
                                                      (1) The State home must provide for an                                                                           (4) Interior signs to facilitate
                                                                                                              of Social Work Education (Note: A
                                                      ongoing program of activities designed                                                                         participants’ ability to move about the
                                                                                                              master’s degree social worker with
                                                      to meet, in accordance with the                                                                                facility independently and safely;
                                                                                                              experience in long-term care is
                                                      comprehensive assessment, the interests                                                                          (5) A clean bed or reclining chair
                                                                                                              preferred);
                                                      and the physical, mental, and                                                                                  available for acute illness;
                                                                                                                (ii) A social work license from the
                                                      psychosocial well-being of each                                                                                  (6) A shower for residents;
                                                                                                              State in which the State home is
                                                      participant.                                                                                                     (7) Adequate and comfortable lighting
                                                                                                              located, if that license is offered by the
                                                         (2) The activities program must be                                                                          levels in all areas;
                                                                                                              State; and
                                                      directed by a qualified professional who                                                                         (8) Comfortable and safe temperature
                                                                                                                (iii) A minimum of one year of
                                                      is a qualified therapeutic recreation                                                                          levels; and
                                                                                                              supervised social work experience in a
                                                      specialist or an activities professional                                                                         (9) Comfortable sound levels.
                                                                                                              health care setting working directly with
                                                      who:                                                                                                           (Authority: 38 U.S.C. 101, 501, 1741–1743)
                                                         (i) Is licensed, if applicable, by the               individuals.
                                                      State in which practicing; and                            (4) The State home must have                         (The Office of Management and Budget
                                                         (ii) Is certified as a therapeutic                   sufficient social workers and support                  has approved the information collection
                                                      recreation specialist or an activities                  staff to meet participant and family                   requirements in this section under
                                                      professional by a recognized certifying                 social services needs. The adult day                   control number 2900–0160.)
                                                      body.                                                   health care program of care must:
                                                         (3) A critical role of adult day health                (i) Provide counseling to participants               § 51.425 Physician orders and participant
                                                      care is to build relationships and create               and families/caregivers;                               medical assessment.
                                                      a culture that supports, involves, and                    (ii) Facilitate the participant’s                       (a) Admission. At the time of
                                                      validates the participant. Therapeutic                  adaptation to the adult day health care                admission, the State home must have
                                                      activity refers to that supportive culture              program of care and active involvement                 physician orders for the participant’s
                                                      and is a significant aspect of the                      in the plan of care, if appropriate;                   immediate care and a medical
                                                      individualized plan of care. A                            (iii) Arrange for services not provided              assessment including a medical history
                                                      participant’s activity includes                         by adult day health care and work with                 and physical examination (with
                                                      everything the individual experiences                   these resources to coordinate services;                documentation of TB screening)
                                                      during the day, not just arranged events.                 (iv) Serve as an advocate for                        completed no earlier than 30 days
                                                      As part of effective therapeutic activity,              participants by asserting and                          before admission.
                                                      the adult day health care program of                    safeguarding the human and civil rights                   (b) Assessments. On the participant’s
                                                      care must:                                              of the participants;                                   first visit, the State home must ensure
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                                                         (i) Provide direction and support for                  (v) Assess signs of mental illness and/              that the participant has an
                                                      participants, including breaking down                   or dementia and make appropriate                       individualized care plan that meets the
                                                      activities into small, discrete steps or                referrals;                                             requirements of paragraph (d) of this
                                                      behaviors, if needed by a participant;                    (vi) Provide information and referral                section. Additional assessments must be
                                                         (ii) Have alternative programming                    for persons not appropriate for adult day              conducted annually, as well as
                                                      available for any participant unable or                 health care;                                           promptly after every significant change
                                                      unwilling to take part in group activity;                 (vii) Provide family conferences and                 in the participant’s physical, mental, or
                                                         (iii) Design activities that promote                 serve as liaison between participant,                  social condition. The State home must
                                                      personal growth and enhance the self-                   family/caregiver and program staff;                    immediately change the participant’s


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                                                      34818                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      care plan when warranted by an                            (1) A recapitulation of the                          specified in paragraph (b)(1) of this
                                                      assessment. Assessments must meet the                   participant’s care;                                    section.
                                                      other applicable criteria of this section,                (2) A summary of the participant’s                      (3) Necessary services provided to
                                                      and the written assessment must                         status at the time of the discharge to                 participant unable to carry out activities
                                                      address the following:                                  include items in paragraph (b) of this                 of daily living. A participant who is
                                                        (1) Ability to ambulate,                              section; and                                           unable to carry out activities of daily
                                                        (2) Ability to use bathroom facilities,                 (3) A discharge/transition plan related              living receives the necessary services to
                                                        (3) Ability to eat and swallow,                       to changes in service needs and changes                maintain good nutrition, hydration,
                                                        (4) Ability to hear,                                  in functional status that prompted                     grooming, personal and oral hygiene,
                                                        (5) Ability to see,                                   another level of care.                                 mobility, and bladder and bowel
                                                        (6) Ability to experience feeling and                                                                        elimination.
                                                                                                              (Authority: 38 U.S.C. 501, 1741–1743)
                                                      movement,
                                                        (7) Ability to communicate,                           (The Office of Management and Budget                      (c) Mental and Psychosocial
                                                        (8) Risk of wandering,                                has approved the information collection                functioning. The State home must make
                                                        (9) Risk of elopement,                                requirements in this section under                     counseling and related psychosocial
                                                        (10) Risk of suicide,                                 control number 2900–XXXX.)                             services available for improving mental
                                                        (11) Risk of deficiencies regarding                                                                          and psychosocial functioning of
                                                      social interactions, and                                § 51.430    Quality of care.                           participants with mental or
                                                        (12) Special needs (such as regarding                    Each participant must receive, and the              psychosocial needs. The services
                                                      medication, diet, nutrition, hydration,                 State home must provide, the necessary                 available must include counseling and
                                                      prosthetics, etc.).                                     care and services to attain or maintain                psychosocial services provided by
                                                        (c) Coordination of assessment. (1)                   the highest practicable physical, mental,              licensed independent mental health
                                                      Each assessment must be conducted or                    and psychosocial well-being, in                        professionals.
                                                      coordinated with the appropriate                        accordance with the comprehensive                         (d) Medication errors. The State home
                                                      participation of health professionals.                  assessment and plan of care.                           must comply with § 51.120(n) with
                                                        (2) Each person who completes a                          (a) Reporting of sentinel events.                   respect to medication errors.
                                                      portion of the assessment must sign and                    (1) Definition. A ‘‘sentinel event’’ is             (Authority: 38 U.S.C. 101, 501, 1741–1743)
                                                      certify the accuracy of that portion of                 defined in § 51.120(a)(1).
                                                      the assessment.                                            (2) Duty to report, review, and prevent             (The Office of Management and Budget
                                                        (d) Care plans. (1) The State home                    sentinel events. The State home must                   has approved the information collection
                                                      must ensure that each participant has a                 comply with the duties to report,                      requirements in this section under
                                                      care plan. A participant’s care plan must               review, and prevent sentinel events as                 control number 2900–XXXX.)
                                                      be individualized and must include                      set forth in § 51.120(a)(3) and (4) except             § 51.435   Nursing services.
                                                      measurable objectives and timetables to                 that the duty to report applies only to
                                                      meet all physical, mental, and                          a sentinel event that occurs while the                   The State home must provide an
                                                      psychosocial needs identified in the                    participant is under the care of the State             organized nursing service with a
                                                      most recent assessment. The care plan                   home, including while in State home-                   sufficient number of qualified nursing
                                                      must describe the following:                            provided transportation.                               personnel to meet the total nursing care
                                                        (i) The services that are to be provided                 (3) Review and prevention of sentinel               needs, as determined by participant
                                                      as part of the program of care and by                   events. The State home must establish a                assessment and individualized
                                                      other sources to attain or maintain the                 mechanism to review and analyze a                      comprehensive plans of care, of all
                                                      participant’s highest physical, mental,                 sentinel event resulting in a written                  participants in the program.
                                                      and psychosocial well-being as required                 report to be submitted to the VA                         (a) There must be at least one
                                                      under § 51.430;                                         Medical Center of jurisdiction no later                registered nurse on duty each day of
                                                        (ii) Any services that would otherwise                than 10 working days after the event.                  operation of the adult day health care
                                                      be required under § 51.430 but are not                  The purpose of the review and analysis                 program of care. This nurse must be
                                                      provided due to the participant’s                       of a sentinel event is to prevent future               currently licensed by the State and must
                                                      exercise of rights under § 51.70,                       injuries to participants, visitors, and                have, in writing, administrative
                                                      including the right to refuse treatment                 personnel.                                             authority, responsibility, and
                                                      under § 51.70(b)(4);                                       (b) Activities of daily living. Based on            accountability for the functions,
                                                        (iii) Type and scope of interventions                 the comprehensive assessment of a                      activities, and training of the nursing
                                                      to be provided in order to reach desired,               participant, the State home must ensure                and program assistants.
                                                      realistic outcomes;                                     that:                                                    (b) The number and level of nursing
                                                        (iv) Roles of participant and family/                    (1) No diminution in activities of daily            staff is determined by the authorized
                                                      caregiver; and                                          living. A participant’s abilities in                   capacity of participants and the nursing
                                                        (v) Discharge or transition plan,                     activities of daily living do not diminish             care needs of the participants.
                                                      including specific criteria for discharge               unless the circumstances of the                          (c) Nurse staffing must be adequate for
                                                      or transfer.                                            individual’s clinical condition                        meeting the standards of this part.
                                                        (2) The services provided or arranged                 demonstrate that diminution was
                                                      by the State home must:                                                                                        (Authority: 38 U.S.C. 501, 1741–1743)
                                                                                                              unavoidable. This includes the
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                                                        (i) Meet professional standards of                    participant’s ability to—                              § 51.440   Dietary services.
                                                      quality; and                                               (i) Bathe, dress, and groom;
                                                        (ii) Be provided by qualified persons                    (ii) Transfer and ambulate;                           The State home must comply with the
                                                      in accordance with each participant’s                      (iii) Toilet; and                                   requirements concerning the dietary
                                                      care plan.                                                 (iv) Eat.                                           services set forth in § 51.140. For
                                                        (e) Discharge summary. Prior to                          (2) Appropriate treatment and                       purposes of this section, the references
                                                      discharging a participant, the State                    services given. A participant is given the             in the cited section to resident refer to
                                                      home must prepare a discharge                           appropriate treatment and services to                  a participant.
                                                      summary that includes:                                  maintain or improve his or her abilities               (Authority: 38 U.S.C. 101, 501, 1741–1743)



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                                                                            Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules                                              34819

                                                      § 51.445   Physician services.                          physician must perform it personally, or               appropriate accessory and cautionary
                                                        As a condition of enrollment in adult                 when the delegation is prohibited under                instructions, and the expiration dates
                                                      day health care program, a participant                  State law or by the State home’s own                   when applicable.
                                                      must have a written physician order for                 policies.                                                 (4) Store all drugs, biologicals, and
                                                      enrollment. If a participant’s medical                  (Authority: 38 U.S.C. 101, 501, 1741–1743)             controlled schedule II drugs listed in 21
                                                      needs require that the participant be                                                                          CFR 1308.12 in locked compartments
                                                      placed in an adult day health care                      (The Office of Management and Budget                   under proper temperature controls,
                                                      program that offers medical supervision,                has approved the information collection                permit only authorized personnel to
                                                      the order for enrollment from the                       requirements in this section under                     have access, and otherwise comply with
                                                      physician must state that. Each                         control number 2900–0160)                              all applicable State and Federal laws.
                                                      participant must remain under the care                  § 51.450 Specialized rehabilitative                       (b) Service consultation. The State
                                                      of a physician.                                         services.                                              home must provide the services of a
                                                        (a) Physician supervision. If the adult                 (a) Provision of services. If specialized            pharmacist licensed in the State in
                                                      day health care program offers medical                  rehabilitative services such as, but not               which the program is located who
                                                      supervision, the program management                     limited to, physical therapy, speech                   provides consultation, as needed, on all
                                                      must ensure that:                                       therapy, occupational therapy, and                     the provision of drugs.
                                                        (1) The medical care of each                          mental health services for mental illness              (Authority: 38 U.S.C. 101, 501, 1741–1743)
                                                      participant is supervised by a primary                  are required in the participant’s
                                                      care physician;                                                                                                (The Office of Management and Budget
                                                                                                              comprehensive plan of care, program                    has approved the information collection
                                                        (2) Each participant’s medical record
                                                                                                              management must:                                       requirements in this section under
                                                      must contain the name of the
                                                                                                                (1) Provide the required services; or                control number 2900–0160)
                                                      participant’s primary physician; and                      (2) Obtain the required services and
                                                        (3) Another physician is available to                                                                        § 51.465   Infection control.
                                                                                                              equipment from an outside resource, in
                                                      supervise the medical care of
                                                                                                              accordance with § 52.210(h), from a                      The State home must meet the
                                                      participants when their primary
                                                                                                              provider of specialized rehabilitative                 requirements concerning infection
                                                      physician is unavailable.
                                                                                                              services.                                              control set forth in § 51.190. For
                                                        (b) Frequency of physician reviews. If
                                                                                                                (b) Written order. Specialized                       purposes of this section, the references
                                                      the adult day health care program offers
                                                                                                              rehabilitative services must be provided               in the cited section to resident refer to
                                                      medical supervision:
                                                         (1) The participant must be seen by                  under the written order of a physician                 a participant.
                                                      the primary physician at least annually                 by qualified personnel.                                (Authority: 38 U.S.C. 501)
                                                      and as indicated by a change of                         (Authority: 38 U.S.C. 101, 501, 1741–1743)
                                                                                                                                                                     § 51.470   Physical environment.
                                                      condition.
                                                                                                              § 51.455    Dental services.                             The State home must ensure that the
                                                         (2) The program management must
                                                      have a policy to help ensure that                         (a) If the adult day health care                     physical environment is designed,
                                                      adequate medical services are provided                  program offers medical supervision,                    constructed, equipped, and maintained
                                                      to the participant.                                     program management must, if                            to protect the health and safety of
                                                         (3) At the option of the primary                     necessary, assist the participant and                  participants, personnel and the public.
                                                      physician, required reviews in the                      family/caregiver:                                        (a) Life safety from fire. The State
                                                      program after the initial review may                      (1) In making appointments; and                      home must meet the requirements of
                                                      alternate between personal physician                      (2) By arranging for transportation to               § 51.200(a), except as to any standard in
                                                      reviews and reviews by a physician                      and from the dental services.                          the National Fire Protection Association
                                                      assistant, nurse practitioner, or clinical                (b) If the adult day health care                     code that only applies to nursing homes.
                                                      nurse specialist in accordance with                     program offers medical supervision,                      (b) Space and equipment. (1) The
                                                      paragraph (e) of this section.                          program management must promptly                       State home must—
                                                         (c) Availability of acute care. If the               assist and refer participants with lost or                (i) Provide sufficient space and
                                                      adult day health care program offers                    damaged dentures to a dentist.                         equipment in dining, health services,
                                                      medical supervision, the program                        (Authority: 38 U.S.C. 101, 501, 1741–1743)             recreation, and program areas to enable
                                                      management must provide or arrange for                                                                         staff to provide participants with
                                                                                                              § 51.460    Administration of drugs.                   needed services as required by these
                                                      the provision of acute care when it is
                                                      indicated.                                                If the adult day health care program                 standards and as identified in each
                                                         (d) Availability of physicians for                   offers medical supervision, the program                participant’s plan of care; and
                                                      emergency care. In case of an                           management must assist participants                       (ii) Maintain all essential mechanical,
                                                      emergency, the program management                       with the management of medication and                  electrical, and patient care equipment in
                                                      must ensure that participants are able to               have a system for disseminating drug                   safe operating condition.
                                                      obtain emergency care when necessary.                   information to participants and program                   (2) Each adult day health care
                                                         (e) Physician delegation of tasks. (1) A             staff in accordance with this section.                 program of care, when it is co-located in
                                                      primary physician may delegate tasks                      (a) Procedures. The State home must:                 a nursing home, domiciliary, or other
                                                      to:                                                       (1) Provide reminders or prompts to                  care facility, must have its own separate
                                                         (i) A certified physician assistant or a             participants to initiate and follow                    designated space during operational
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                                                      certified nurse practitioner, or                        through with self-administration of                    hours.
                                                         (ii) A clinical nurse specialist who—                medications.                                              (3) The indoor space for adult day
                                                         (A) Is acting within the scope of                      (2) Establish a system of records to                 health care must be at least 100 square
                                                      practice as defined by State law; and                   document the administration of drugs                   feet per participant including office
                                                         (B) Is under the supervision of the                  by participants and/or staff.                          space for staff and must be 60 square
                                                      physician.                                                (3) Ensure that drugs and biologicals                feet per participant excluding office
                                                         (2) The primary physician may not                    used by participants are labeled in                    space for staff.
                                                      delegate a task when the provisions of                  accordance with currently accepted                        (4) Each program of care will need to
                                                      this part specify that the primary                      professional principles, and include the               design and partition its space to meet its


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                                                      34820                 Federal Register / Vol. 80, No. 116 / Wednesday, June 17, 2015 / Proposed Rules

                                                      own needs, but the following functional                   (c) Furnishings. Furnishings must be                 care programs are not required to
                                                      areas must be available:                                available for all participants. This must              comply with § 51.210(p), regarding
                                                         (i) A dividable multipurpose room or                 include functional furniture appropriate               quality assessment and assurance
                                                      area for group activities, including                    to the participants’ needs. Furnishings                committees consisting of specified
                                                      dining, with adequate table-setting                     must be attractive, comfortable, and                   medical providers and staff.
                                                      space.                                                  homelike, while being sturdy and safe.                 (Authority: 38 U.S.C. 501, 1741–1743)
                                                         (ii) Rehabilitation rooms or an area for               (d) Participant call system. The
                                                      individual and group treatments for                     coordinator’s station must be equipped                 (The Office of Management and Budget
                                                      occupational therapy, physical therapy,                 to receive participant calls through a                 has approved the information collection
                                                      and other treatment modalities.                         communication system from:                             requirements in this section under
                                                         (iii) A kitchen area for refrigerated                  (1) Clinic rooms; and                                control number 2900–0160)
                                                      food storage, the preparation of meals                    (2) Toilet and bathing facilities.
                                                                                                                (e) Other environmental conditions.                  § 51.480   Transportation.
                                                      and/or training participants in activities
                                                      of daily living.                                        The State home must provide a safe,                       Transportation of participants to and
                                                         (iv) An examination and/or                           functional, sanitary, and comfortable                  from the adult day health care facility
                                                      medication room.                                        environment for the participants, staff                must be a component of the overall
                                                         (v) A quiet room (with a bed or a                    and the public. The facility management                program of care.
                                                      reclining chair), which functions to                    must:                                                     (a)(1) Except as provided in paragraph
                                                                                                                (1) Establish procedures to ensure that              (a)(2) of this section, the State home
                                                      separate participants who become ill or
                                                                                                              water is available to essential areas if               must provide for transportation to
                                                      disruptive, or who require rest, privacy,
                                                                                                              there is a loss of normal water supply;                enable participants, including persons
                                                      or observation. It should be separate                     (2) Have adequate outside ventilation
                                                      from activity areas, near a restroom, and                                                                      with disabilities, to attend the program
                                                                                                              by means of windows, or mechanical                     and to participate in State home-
                                                      supervised.                                             ventilation, or a combination of the two;
                                                         (vi) Bathing facilities adequate to                                                                         sponsored outings.
                                                                                                                (3) Equip corridors, when available,
                                                      facilitate bathing of participants with                                                                           (2) The veteran or the family of a
                                                                                                              with firmly-secured handrails on each
                                                      functional impairments.                                                                                        veteran may decline transportation
                                                                                                              side; and
                                                         (vii) Toilet facilities and bathrooms                  (4) Maintain an effective pest control               offered by the adult day health care
                                                      easily accessible to people with mobility               program so that the facility is free of                program of care and make their own
                                                      problems, including participants in                     pests and rodents.                                     arrangements for the transportation.
                                                      wheelchairs. There must be at least one                                                                           (b) The State home must have a
                                                                                                              (Authority: 38 U.S.C. 101, 501, 1741–1743)             transportation policy that includes
                                                      toilet for every eight participants. The
                                                      toilets must be equipped for use by                     § 51.475    Administration.                            procedures for routine and emergency
                                                      persons with limited mobility, easily                     For purposes of this section, the                    transportation. All transportation
                                                      accessible from all programs areas, i.e.,               references in the cited section to nursing             (including that provided under contract)
                                                      preferably within 40 feet from that area,               home and nursing home care refer to                    must be in compliance with such
                                                      designed to allow assistance from one or                adult day health care programs and                     procedures.
                                                      two staff, and barrier-free.                            adult day health care. The State home                     (c) The State home must ensure that
                                                         (viii) Adequate storage space. There                 must comply with all administration                    the transportation it provides is done by
                                                      should be space to store arts and crafts                requirements set forth in § 51.210 except              drivers who have access to a device for
                                                      materials, wheelchairs, chairs,                         for the following if the adult day health              two-way communication.
                                                      individual handiwork, and general                       care program does not offer medical                       (d) All systems and vehicles used by
                                                      supplies. Locked cabinets must be                       supervision:                                           the State home to comply with this
                                                      provided for files, records, supplies, and                (a) Medical director. State home adult               section must meet all applicable local,
                                                      medications.                                            day health care programs are not                       State and federal regulations.
                                                         (ix) An individual room for                          required to designate a primary care                      (e) The State home must ensure that
                                                      counseling and interviewing                             physician to serve as a medical director,              the care needs of each participant are
                                                      participants and family members.                        and therefore are not required to comply               addressed during transportation
                                                         (x) A reception area.                                with § 51.210(i).                                      furnished by the home.
                                                         (xi) An outside space that is used for                 (b) Laboratory services, radiology, and              (Authority: 38 U.S.C. 101, 501, 1741–1743)
                                                      outdoor activities that is safe, accessible             other diagnostic services. State home
                                                      to indoor areas, and accessible to those                adult day health care programs are not                 PART 52—[REMOVED]
                                                      with a disability. This space may                       required to provide the medical services
                                                      include recreational space and garden                   identified in § 51.210(m) and (n).                     ■   8. Remove part 52.
                                                      area. It should be easily supervised by                   (c) Quality assessment and assurance                 [FR Doc. 2015–13838 Filed 6–16–15; 8:45 am]
                                                      staff.                                                  committee. State home adult day health                 BILLING CODE 8320–01–P
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Document Created: 2015-12-15 14:22:40
Document Modified: 2015-12-15 14:22:40
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received on or before August 17, 2015.
ContactDr. Richard Allman, Chief Consultant, Geriatrics and Extended Care Services (10P4G), Veterans Health Administration, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6750. (This is not a toll-free number.)
FR Citation80 FR 34793 
RIN Number2900-AO88
CFR Citation38 CFR 17
38 CFR 51
38 CFR 52
CFR AssociatedAdministrative Practice and Procedure; Claims; Day Care; Dental Health; Government Contracts; Grant Programs-Health; Grant Programs-Veterans; Health Care; Health Facilities; Health Professions; Health Records; Mental Health Programs; Nursing Homes; Reporting and Recordkeeping Requirements; Travel and Transportation Expenses and Veterans

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