Per Diem for Nursing Home Care of Veterans in State Homes

SUMMARY: This document amends regulations regarding the payment of per

diem to State homes that provide nursing home care to eligible

veterans. The intended effect of the final rule is to ensure that

veterans receive high quality care in State homes.

DATES: Effective date: February 7, 2000.

The incorporation by reference of certain publications listed in

the regulations is approved by the Director of the Federal Register as

of February 7, 2000.

FOR FURTHER INFORMATION CONTACT: L. Nan Stout, Chief, State Home Per

Diem Program (114), Veterans Health Administration, 202-273-8538.

SUPPLEMENTARY INFORMATION: In a document published in the Federal

Register on November 9, 1998 (63 FR 60227), we proposed to establish a

new part 51 setting forth a mechanism for paying per diem to State

homes providing nursing home care to eligible veterans. We provided a

60-day comment period which ended January 8, 1999. We received

responses from 20 commenters. The issues raised in the comments are

discussed below.

Based on the rationale set forth in the proposed rule and in this

document, we are adopting the provisions of the proposed rule as a

final rule with changes explained below. Under the final rule, VA will

pay per diem to a State for providing nursing home care to eligible

veterans in a facility if the Under Secretary for Health recognizes the

facility as a State home based on a current VA certification that the

facility meets the standards set forth in subpart D.

Section 51.2 Definitions

We proposed to define ``physician assistant'' to mean a person who

meets the applicable State requirements for physician assistants, is

currently certified by the National Commission on Certification of

Physician Assistants (NCCPA) as a physician assistant, and has an

individualized written scope of practice that determines the

authorization to write medical orders, prescribe medications and other

clinical tasks under appropriate physician supervision which is

approved by the primary care physician.

One commenter asserted that the definition should not include a

requirement that a physician assistant be currently certified by the

National Commission on Certification of Physician Assistants. In this

regard, the commenter argued that the imposition of a national

certification requirement would be cumbersome to administer and create

confusion regarding which physician assistants regulated by the State

could provide services to veterans in State homes. No changes are made

based on this comment. We believe this certification is necessary to

ensure that physician assistants meet uniform standards necessary to

ensure that they are qualified to provide adequate care at a State

nursing home facility. In our view, this will not cause significant

administrative work. The State home merely will have to determine

whether the individual has the appropriate certification.

Under the proposed definition of ``State home,'' a State home may

provide domiciliary care, nursing home care, adult day health care, and

hospital care. Also, under the definition, hospital care may be

provided only when the State home also provides domiciliary and/or

nursing home care.

One commenter asserted the definition should replace ``domiciliary

care'' with ``assisted living.'' No changes are made based on this

comment. The statutory authority for levels of care at State homes

includes domiciliary care, but not assisted living. (See 38 U.S.C.

1741-1743).

Section 51.10 Per Diem based on Recognition and Certification

The provisions of Sec. 51.10 state that after recognition has been

granted, VA will continue to pay per diem to a State for providing

nursing home care to eligible veterans in such a facility for a

temporary period based on a certification that the facility and

facility management provisionally meet the standards of subpart D. One

commenter asked how long the temporary period would be if a facility

receives a ``provisionally meets'' certification.

The temporary period related to provisionally meeting the standards

could vary. Under the provision of Sec. 51.30(a)(2) the temporary

period is based on time frames provided by the State home in a written

plan of correction and approved by the director of VA medical center of

jurisdiction.

Section 51.30 Recognition and Certification

The provisions of Sec. 51.30 state that the Under Secretary for

Health will make the determination regarding recognition and the

initial determination regarding certification, after receipt of a

tentative determination from the director of the VA medical center of

jurisdiction regarding whether, based on a VA survey, the facility and

facility management meet or do not meet the standards of subpart D.

Commenters asserted that we should establish a time limit for the

determination for recognition, initial certification, notification

regarding failure to meet standards, and re-certification by VA. No

changes are made based on these comments. We are committed to making

decisions as quickly as possible. However, VA must take whatever time

is necessary to make accurate decisions. Section 51.30 provides for

recognition and certification based on surveys establishing that the

standards in subpart D are met.

One commenter asserted that Sec. 51.30 is reactive and punitive by

anticipating deficiencies and precluding a deficiency-free review. The

commenter further stated that a paper compliance review should be

established for the year following a review that did not cite

deficiencies. No changes are made based on these comments. We believe

that the yearly review must be adequate to ensure compliance with the

provision in subpart D. This will require more than a paper review

regardless of previous compliance.

With respect to the provisions of Sec. 51.30(a)(2), one commenter

inquired about when a facility would be determined to ``provisionally''

meet the standards and continue to receive per diem. In this regard,

the provisions of Sec. 51.30(a)(2) allow for provisional certification

only if all of the following are met: the facility or facility

management does not meet one or more of the standards in subpart D,

that the deficiencies do not jeopardize the health or safety of the

residents, and that the facility management and the director have

agreed to a plan of correction to remedy the deficiencies in a

specified amount of time (not more time than the VA medical center of

jurisdiction director determines is reasonable for correcting the

specific deficiencies). If the facility does not meet one or more of

the standards in subpart D and also does not meet the criteria for

provisional certification, VA must take action to withhold per diem

payments and withdraw recognition.

[[Page 963]]

One commenter asserted that the final rule should provide for an

informal dispute resolution process regarding the existence and scope

of potential deficiencies. No changes are made based on this comment.

The authority and responsibility for the per diem program have been

delegated solely to VA by statute. (See 38 U.S.C. 1741-1743). There is

no basis for delegating this authority outside VA.

One commenter questioned whether Veterans Integrated Service

Network (VISN) entities would conduct annual certification surveys. No

changes are made based on this comment. The director of the VA Medical

Center of jurisdiction is responsible for the annual certification

survey and may delegate any qualified VA official to conduct the

survey.

One commenter asserted that VA should accept Joint Commisson on

Accreditation Healthcare Organizations (JCAHO) and Medicaid/Medicare

inspections in lieu of annual VA inspections. The commenter also

asserted that State homes that are licensed as nursing homes by the

State should be exempt from annual VA inspections. The commenter

further asserted that annual VA inspections should occur only if there

is reason to believe that a facility is not substantially in compliance

with VA regulations. No changes are made based on this comment. It is

solely VA's responsibility to ensure that VA's regulations are met.

Further, non-VA inspections do not cover all of the standards in the

final rule and compliance with State standards would not be sufficient

to ensure compliance with all of the standards in the final rule.

Furthermore, we believe that in order to ensure compliance with our

standards, VA must conduct reviews at least on a yearly basis. Even so,

under Sec. 51.30(a) the judgement of VA officials concerning compliance

with the requirements of the final rule may be made in part based on

reviews of reports of inspection by other entities.

Section 51.31 Automatic Recognition

Under the final rule VA would pay per diem to a State for providing

nursing home care to eligible veterans in a facility if the Under

Secretary for Health recognizes the facility as a State home based on a

current VA certification that the facility meets the standards set

forth in subpart D. One commenter questioned whether previously

recognized facilities would be required to submit a new request for

recognition and certification under the final rule.

We have added a new Sec. 51.31 to explain that a facility that

already is recognized by a VA as a State home for nursing home care at

the time this part becomes effective, automatically will continue to be

recognized as a State home for nursing home care. This new section

further explains that even though the facility would continue to be

recognized, it is subject to all of the provisions of this part that

apply to facilities that have achieved recognition, including the

provisions for withholding payment and withdrawal of recognition.

Section 51.40 Monthly Payment

The provisions of Sec. 51.40(a)(1) specify that during fiscal year

2000 VA will pay monthly one-half of the cost of each eligible

veteran's nursing home care for each day the veteran is in a facility

recognized as a State home for nursing home care, not to exceed $50.55

per diem. Five commenters asserted that the currently applicable rate

should not be included in the regulations. In this regard, they were

concerned that a delay in publishing changed amounts could delay the

receipt of increases in per diem. No changes are made based on these

comments. The amount of per diem to be paid is based on provisions of

38 U.S.C. 1741. We intend to change the per diem amount in the

regulations as quickly as possible after there is a basis for doing so.

The provisions of Sec. 51.40(a)(5) state that as a condition for

receiving payment of per diem the State must submit to the VA medical

center of jurisdiction for each veteran completed VA Forms 10-10EZ,

Application for Medical Benefits, and 10-10SH, State Home Program

Application for Care-- Medical Certification, at the time of admission

and with any request for a change in the level of care (domiciliary,

hospital, or adult day health care). The 10-10SH form provides that it

is to be completed by the ``primary physician assigned'' at the State

facility. One commenter suggested that any physician (State, VA, or

personal) should be allowed to complete the form. They further asserted

that this could be a hardship for veterans ``who live around the

State''. No changes are made based on this comment. The purpose of the

forms, among other things, is to obtain information regarding whether

the veteran has been admitted to the nursing home as a resident and

whether the veteran meets eligibility criteria for per diem payments.

It was not intended to be used by the State facility for an earlier

State determination concerning whether a veteran should become a

resident at the facility.

The commenter further questioned whether VA would conduct any

screening of applicants for admission to State homes. The commenter

further questioned whether the facility needs to obtain prior approval

before admitting a veteran as a resident or whether they can assume

approval based on the submission of the appropriate forms. No changes

are made based on these comments. In our view, the provisions for

determining eligibility for placement for nursing home care are

sufficiently clear so that State homes can make appropriate

determinations without prior approval of residents by VA.

The provisions of Sec. 51.40(a)(5) also provide that if the

facility is eligible to receive per diem payments for a veteran, VA

will pay per diem from the date of receipt of the completed forms

required by this paragraph, except that VA will pay per diem from the

day on which the veteran was admitted to the facility if the completed

forms are received within 10 days after admission. One commenter

asserted that the 10-day requirement is too short because information

required by form 10-10EZ ``may be difficult to get.'' No changes are

made based on this comment. The information requested is the basic

information required for eligibility determinations. We do not see any

reason why the information requested cannot be obtained at the time the

veteran is admitted to a State home.

As noted above, Sec. 51.40(a)(5) provides that if the forms are

submitted to the VA medical center of jurisdiction within 10 days after

admission, VA will pay per diem from the day on which the veteran was

admitted. One commenter suggested that VA clarify who in VA must

receive the completed forms. No changes are made based on this comment.

All that is necessary is that the forms be received by the VA medical

center of jurisdiction and if received within the 10 day period, the

requirement will be met. Officials at the medical center will ensure

that the forms are sent to the appropriate VA officials for processing.

A veteran may be VA approved for nursing home care, then be

approved for a different level of care (domiciliary, hospital, or adult

day health care) for a period of time, and then be readmitted to

nursing home care. One commenter asserted that the initial approval

should be sufficient for any subsequent readmission. No changes are

made based on this comment. The provisions of Sec. 51.40(a)(5) state

that information must be submitted for each admission. This is

necessary to ensure that the veteran still meets VA requirements for

[[Page 964]]

payment of per diem for that level of care.

Section 51.50 Eligible Veterans

Per diem payments may be paid only for eligible veterans. Section

51.50 specifies which individuals are eligible veterans. This includes

paragraph (j) which consists of veterans who agree to pay to the United

States the applicable co-payment determined under 38 U.S.C. 1710(f) and

1710(g). Four commenters asserted that paragraph (j) should be deleted.

No changes are made based on these comments. The eligibility

requirements are established by statute (see 38 U.S.C. 1710(a)).

Accordingly, the requirement for this category of eligible veterans

cannot be changed by regulation.

Section 51.70 Resident Rights

The advance directive provisions of Sec. 51.70(b)(7) of this rule

and the provisions of a separate VA proposed rulemaking regarding

advanced directives (63 FR 58678) would not prohibit an advance

directive from being honored at a VA facility if it has not been signed

by a notary public or Justice of the Peace. One commenter noted that

such an advance directive might not be effective if the veteran were

moved to a State home in which a State law requires the use of a notary

public or Justice of the Peace. No changes are made based on this

comment. Since VA cannot reasonably administer all State laws regarding

advanced directives, we believe the responsibility for ensuring that

advanced directives are effective in State homes rests within State

home officials and not VA.

One commenter asserted that Sec. 51.70(b)(7) presents a dilemma.

The commenter asserted that if a person is incapacitated and unable to

receive/understand information on advanced directives and does not have

a power of attorney, he/she would be unable to give informed consent to

moving to the home in the first place and their right to ``self-

determination'' Sec. 51.70(7) would be violated. No changes are made

based on this comment. The provisions of Sec. 51.70(7) cover the issue

of incapacitation. Section 51.70(7) states: ``If an individual is

incapacitated at the time of admission and is unable to receive

information (due to the incapacitating conditions) or articulate

whether or not he or she has executed an advance directive, the

facility may give advance directive information to the individual's

family or surrogate in the same manner that it issues other materials

about policies and procedures to the family of the incapacitated

individual or to a surrogate or other concerned persons in accordance

with State laws.''

The provisions of Sec. 51.70(c)(1) state that the residents have a

right to manage their financial affairs, and the facility and facility

management may not require residents to deposit their personal funds

with the facility. Commenters asserted that nursing home facilities

should be allowed to require residents to deposit funds with the

facility for payment of personal items. No changes are made based on

these comments. Although many residents may choose to deposit an amount

with the facility for personal items, we believe that residents should

be allowed to pay for their personal items by check or other means they

deem appropriate.

One commenter suggested that a resident who insists on carrying

large sums of cash should be required to sign a waiver for lost or

misplaced funds. No changes are made in Sec. 51.70(c)(3) based on this

comment. The final rule does not prohibit nursing homes from

establishing such a policy.

The provisions of proposed Sec. 51.70(c)(3) stated that the

facility management must deposit any residents' personal funds in

excess of $50 in an interest bearing account (or accounts) that is

separate from any of the facility's operating accounts, and that

credits all interest earned on the resident's funds to that account.

(In pooled accounts, there must be a separate accounting for each

resident's share.) One commenter asserted that any resident's personal

funds held by facility management should be allowed to accrue interest

for projects for the benefit of all residents if allowed by State law.

No changes are made based on this comment. In our view, the interest

generated from personal funds belongs to the owner of the funds and,

therefore, should be held for the owner.

One commenter suggested that the $50 threshold amount should be

raised to $100. We agree and have changed the final rule accordingly.

The larger amount will allow more flexibility for veterans and State

homes and will still provide a reasonable threshold for requiring

amounts to be placed in interest bearing accounts.

The provisions of Sec. 51.70(c)(4)(ii) state that individual

financial records must be available through quarterly statements and on

request from the resident or legal representative. One commenter

asserted that there is no need for any reports until requested. No

changes are made based on this comment. We believe that residents who

would not otherwise review their accounts would be more likely to do so

if statements were received on a periodic basis. Further, this will

help to ensure that any differences would be resolved in a timely

manner.

The provisions of proposed Sec. 51.70(c)(5) stated that upon the

death of a resident with personal funds deposited with the facility,

the facility management must convey within 30 days the resident's

funds, and a final accounting of those funds, to the individual or

probate jurisdiction administering the resident's estate. One commenter

asserted that sometimes the cost to the family or interested parties to

probate an estate may be prohibitive compared to what is left in the

estate. This commenter indicated that at least one State allows for the

transfer of balances to an appropriate family member. We have changed

our final rule to allow for this possibility.

The provisions of Sec. 51.70(i) state that a State home resident

must have the right to privacy in written communications, including the

right to send and promptly receive mail that is unopened. One commenter

stated that facility officials need to be allowed to open VA and Social

Security mail with permission of the veteran. The commenter further

asserted that otherwise the veteran might miss appointments. No changes

are made based on this comment. The final rule merely states that a

veteran has the right to send and receive mail that is unopened. This

does not prohibit an agreement between the facility and the resident to

allow the facility to open the veteran's mail.

The provisions of Sec. 51.70(j)(1) state that a resident must have

the right to, and the facility management must provide, immediate

access to a physician of the resident's choice. One commenter asserted

that a physician, acting as a physician on behalf of a resident should

not be allowed to provide care to a resident in the nursing home if the

physician is not approved by the Medical Director to practice in the

nursing home. The final rule at Sec. 51.210(j) already requires

physicians practicing at the nursing home to be credentialed and

privileged by the nursing home. The provisions of Sec. 51.70(j)(1) are

amended to clarify this issue.

The provisions of Sec. 51.70(l) states that the resident has the

right to retain and use personal possessions, including some

furnishings, and appropriate clothing, as space permits, unless to do

so would infringe upon the rights or health and safety of other

residents. One commenter asserted that the retention of personal

furnishings should be at the sole discretion of the facility. No

[[Page 965]]

changes are made based on this comment. The final rule allows the

resident to retain and use personal possessions ``as space permits.''

This gives the facility the needed discretion to ensure order within

the facility.

Section 51.80 Admission, Transfer and Discharge Rights

The provisions of Sec. 51.80(a)(1) state that transfer and

discharge includes movement of a resident to a bed outside of the

facility whether that bed is in the same physical plant or not.

Transfer and discharge does not refer to movement of a resident to a

bed within the same facility. One commenter asserted that the

regulations were unclear as whether there would be transfer or

discharge if a resident were moved from one level of care to another

level of care in the same building or in the same complex of buildings.

No changes are made based on this comment. The provisions of

Sec. 51.80(a)(1) read in conjunction with the definition of facility in

Sec. 51.2 clearly provide that a movement outside of the facility is

any movement outside of the nursing home portion of the complex.

Section 51.100 Quality of Life

The provisions of Sec. 51.100(g)(1)(2)(i) and (ii) state that the

facility management must provide 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

resident. The provisions require that the activities program be

directed by a qualified professional who is a qualified therapeutic

recreation specialist or an activities professional who is licensed or

registered, if applicable, by the State in which practicing; and is

certified as a therapeutic recreation specialist or as an activities

professional by a recognized accrediting body. Two commenters asserted

that these provisions are too stringent and that qualified personnel

would be prohibited from working at the facility. No changes are made

based on these comments. We believe these are the minimal criteria

necessary to ensure that the ongoing program of activities is

sufficient to meet, in accordance with the comprehensive assessment,

the interests and the physical, mental, and psychological well-being of

each veteran.

The proposed provisions of Sec. 51.100(h)(3) stated that a social

worker at a facility must have the following: a bachelor's degree in

social work from a school accredited by the Council of Social Work

Education and a social work license from the State in which the State

home is located, if offered by the State, and a minimum of one year of

supervised social work experience, under the supervision of a social

worker with a master's degree, in a health care setting working

directly with individuals. Six commenters opposed the provision that

would require the experience to be under the supervision of a social

worker with a master's degree. We agree and eliminated this provision.

We believe that a social worker can provide adequate service without

meeting such requirement.

The provisions of Sec. 51.100(i)(6) state that facility management

must provide comfortable and safe temperature levels. In this regard,

it states that facilities must maintain a temperature range of 71-81

degrees Fahrenheit. One commenter asserted that this requirement should

be waived in older facilities where central air conditioning is not

available. No changes are made based on this comment. The specified

temperatures are necessary to ensure that residents are comfortable and

safe.

Section 51.110 Resident Assessment

The provisions of Sec. 51.110(b)(1)(iii) state that the facility

management must make a comprehensive assessment of a resident's needs

using the Health Care Financing Administration Long Term Care Resident

Assessment Instrument Version 2.0; and describing the resident's

capability to perform daily life functions, strengths, performances,

needs as well as significant impairments in functional capacity. All

nursing homes must be in compliance with this standard by no later than

January 1, 2000. Two commenters asserted that the compliance date of

January 1, 2000, must be extended. The commenters essentially asserted

that more time is needed to computerize the process and train staff. No

changes are made based on these comments. Most facilities report that

they already are in compliance. Compliance is needed to ensure that

facilities have standardized comprehensive assessments of resident

needs.

Section 51.120 Quality of Care

The proposed provisions of Sec. 51.120(a)(3) state that the

facility management must report sentinel events to the director of the

VA medical center of jurisdiction, VA Network Director (10N 1-22),

Chief Network Officer (10N), and Chief Consultant, Geriatrics and

Extended Care Strategic Healthcare Group (114) within 24 hours of

identification. Nine commenters objected to reporting the same

information to so many VA entities. They asserted that they should have

to report only to one VA entity and that VA could report internally as

it sees fit. We agree and have changed the final rule to provide for

reporting to the VA medical center of jurisdiction. We also have added

language requiring the VA medical center to immediately report to the

other listed VA entities.

One commenter also asserted that the report should be required to

be submitted within 7 days rather than with 24 hours of identification

of the event. No changes are made based on this comment. The sentinel

events often reflect need for immediate review.

Section 51.130 Nursing Services

The provisions of Sec. 51.130(d) state that the facility management

must provide nursing services to ensure that there is direct care nurse

staffing of no less than 2.5 hours per patient per 24 hours, 7 days per

week. One commenter questioned whether managers would be included for

calculating the 2.5 hours. No changes are made based on this comment.

The provisions of paragraph (d) made clear that the 2.5 hours consist

only of ``direct care nurse staffing''. Supervisory nurses normally

would not meet these criteria.

One commenter questioned whether the 2.5 hours requirement would be

based on a facility-wide average or based on each individual nursing

station. This was intended to apply to all or portion of a facility

where the direct care nurses would have immediate access to nursing

home care. In our view, this would be accomplished if the 2.5 hours

requirement were met for all of any building providing nursing home

care. We have clarified the final rule accordingly.

In the past, we administratively imposed a 2.0 hours per patient

per day requirement. One commenter asserted that we should retain the

2.0 hour requirement. No changes are based on this comment. Although

the 2.0 hour requirement was appropriate in the past, there has been a

significant increase in patient acuity that requires the increase to

2.5 hours.

One commenter asserted that the 2.5 hours requirement should not

become effective until January 2000. No changes are based on this

comment. Almost all State homes providing nursing home care currently

meet the 2.5 hours requirement. Further, we believe this is a minimal

requirement for ensuring adequate care for nursing home care patients.

One commenter asserted that the 2.5 hours requirement should be

allowed to include paid staff break times. No changes based on this

comment. Breaks,

[[Page 966]]

including lunch, are not included. The 2.5 hours constitute minimum

criteria for ensuring the availability of adequate care.

One commenter asserted that an increase from the 2.0 hours

requirement to a 2.5 hours requirement constitutes an unfunded mandate

and, consequently, is subject to Federal unfunded mandate requirements.

No changes are made based on this comment. The provisions of 2 U.S.C.

658 exclude from any Federal unfunded mandate requirements any

regulation that imposes a duty on a State as a condition of Federal

Assistance and (with exceptions not relevant to this care) any

regulation that imposes a duty arising from participation in a

voluntary Federal Program.

One commenter questioned whether certain circumstances might

require 3.0 hours per patient. No changes are made based on this

comment. The 2.5 hours requirement is a minimum requirement. The

provision of paragraph (e) also require that nursing care must be

adequate for meeting the standards of part D. A high patient acuity

could require more nursing care than those set forth as minimum

standards.

The provisions of Sec. 51.130(e) state that nurse staffing must be

based on a staffing methodology that applies case-mix and is adequate

for meeting the standards of this part. One commenter argued that the

final rule should establish a specific standard for staffing

methodology. No changes are made based on this comment. Although the

staffing methodology must apply case mix and be adequate for meeting

the standards of subpart D, we believe that several methodologies would

be adequate for meeting the requirement.

Section 51.140 Dietary Services

The provisions of Sec. 51.140(f)(2) state that there must be no

more than 14 hours between a substantial evening meal and breakfast the

following day, except that the 14 hour period may be extended to 16

hours if a resident group agrees to the extension and a nourishing

snack is provided at bedtime. Two commenters noted that some residents

wish to sleep late and have a late breakfast that may exceed the 14

hours. They indicated that the breakfast meal should merely be

available within the 14 hour time period. We agree and have made

appropriate changes to the final rule.

Section 51.150 Physician Services

The provisions of Sec. 51.150(d) state that the facility management

must provide or arrange for the provision of physician services 24

hours a day, 7 days per week, in case of an emergency. One commenter

asserted that physician assistants should be able to act for physicians

within their scope of practice. No changes are made based on this

comment. This must be limited to physicians since a need could arise

that would be beyond the scope of practice of physician assistants.

Under the provisions of proposed Sec. 51.150(e) the primary

physician may not delegate a task when the regulations specify that the

primary physician must perform it personally or when the delegation is

prohibited under State law or by the facility's own policies.

Otherwise, under these provisions a primary physician may delegate

tasks to a certified physician assistant or a certified nurse

practitioner, or a clinical nurse specialist who is acting within the

scope of practice as defined by State law and who is under the

supervision of the physician. These provisions also include a note

stating that a certified clinical nurse specialist with experience in

long term care is preferred. Two commenters asserted that the note

should be clarified to reflect that experience in long term care is

preferred for physician assistants and certified nurse practitioners as

well as clinical nurse specialist. We have amended the note

accordingly.

Section 51.180 Pharmacy Services

The provisions of Sec. 51.180 state that the facility management

must employ or obtain the services of a pharmacist licensed in a State

in which the facility is located. One commenter asserted that the final

rule should allow facilities to obtain the services of a VA pharmacist

under a VA contract arrangement even if the VA pharmacist is not

licensed in the State. We agree and have made appropriate changes. The

purpose of this limitation is to ensure that the facility is able to

obtain information for drug reviews and otherwise ensure appropriate

on-site drug services. This purpose can be accomplished with VA

pharmacist under VA contract.

Section 51.200 Physical Environment

The provisions of Sec. 51.200(d) state that resident rooms must be

designed and equipped for adequate nursing care, comfort, and privacy

of residents. Bedrooms must accommodate no more than four residents;

must measure at least 115 net square feet per resident in multiple

resident bedrooms; must measure at least 150 net square feet in single

resident bedrooms; must measure at least 245 net square feet in small

double resident bedrooms; and measure at least 305 net square feet in

large double resident bedrooms used for spinal cord injury residents.

It is recommended that the facility have one large double resident

bedroom for every 30 resident bedrooms. Six commenters asserted that

these square footage requirements should be reduced or apply only to

new construction. No changes are made based on these comments. We

believe that the square footage requirements are necessary to ensure

sufficient space for normal daily living activities, including adequate

room for movements of wheel chairs.

The provisions of Sec. 51.200(d)(x) state that resident rooms must

have a floor at or above grade level. One commenter asserted they have

one subgrade unit that should be exempted from the requirement in

Sec. 51.200(d)(x). No changes are made based on this comment. We

believe that nursing home care units must be at floor level or above to

help ensure the availability of natural ventilation and opportunity for

seeing outside.

Section 51.210 Administration

The provisions of proposed Sec. 51.210(b)(3) provide that the State

must give written notice to the Chief Consultant, Geriatrics and

Extended Care Strategic Healthcare Group (114) at the time of the

change of the State home director of nursing. One commenter argued that

there is no need to give notice of a change regarding the State home

director of nursing. We agree and have changed Sec. 51.210(b)(3)

accordingly. The notification requirement was intended to ensure that

VA had a point of contact at the facility. The final rule requires

written notice of a change in a State home administrator and the State

employee responsible for oversight of the State home facility if a

contractor operates the State home. This is sufficient for ensuring

that VA has a current point of contact.

The provisions of Sec. 51.210(c), among other things, state that

the facility management must submit the following to the director of

the VA medical center of jurisdiction as often as necessary to be

current: The number of the staff by category indicating full-time,

part-time and minority designation and the number of nursing home

patients who are veterans and non-veterans, the number of veterans who

are minorities and the number of non-veterans who are minorities.

One commenter suggested that changes should be required to be

reported only on a semi-annual or annual basis. We have changed

Sec. 51.210(c) to state that the facility must submit the information

in question annually. The reporting requirements raised by the

commenter are necessary

[[Page 967]]

for determining whether facilities continue to meet the standards in

subpart D, for determining whether facilities meet the criteria for

obtaining per diem, and to help ensure compliance with civil rights

laws. We believe that annual reporting is sufficient to meet the

intended purpose.

The provisions of Sec. 51.210(d) state that the percent of the

facility residents eligible for VA nursing home care must be at least

75 percent veterans except that the veteran percentage need only be

more than 50 percent if the facility was constructed or renovated

solely with State funds. This paragraph further states that all non-

veteran residents must be spouses of veterans or parents all of whose

children died while serving in the armed forces of the United States.

One commenter asserted that the definition of State home should

include language stating that care may be provided for a spouse of a

veteran as allowed by individual State law. Three commenters argued

that honorably discharged members of the National Guard and certain

non-listed individuals related to veterans should be allowed to be

included as nonveterans at State nursing homes. No changes are made

based on these comments. The requirements concerning non-veterans are

necessary to ensure that the State homes are used for veterans as

required by 38 U.S.C. 101(19). We believe the narrow exceptions are

necessary for the well being of veterans and we do not believe that it

is in the best interests of veterans to expand this further.

The provisions of proposed Sec. 51.210(j) stated that the facility

management must uniformly apply credentialing criteria to licensed

independent practitioners applying to provide resident care or

treatment under the facility's care. The provisions of proposed

Sec. 51.210(j) further state that the facility management must verify

and uniformly apply the following core criteria: Current license;

current certification, if applicable; relevant education, training, and

experience; current competence; and a statement that the individual is

able to perform the services he or she is applying to provide. One

commenter asserted that the word ``independent'' be deleted so that

credentialing criteria would apply to physician assistants. We agree

and have deleted the word ``independent'' since physician assistants

may be credentialed. Another commenter asserted that the requirements

of Sec. 51.210(j) are too stringent. No changes are made based on this

comment. The required information is basic information needed to ensure

that the practitioners caring for the veterans are qualified to do so.

The provisions of proposed Sec. 51.210(j)(5) stated that when

reappointing a licensed independent practitioner, the facility

management must review the individual's track record. Two commenters

asserted that the term ``track record'' was too colloquial and should

be replaced with ``record of experience.'' We agree and have changed

the final rule accordingly.

The provisions of proposed Sec. 51.210(n)(2)(i) stated that the

facility must provide or obtain radiology and other diagnostic services

only when ordered by the primary physician. One commenter asserted that

the final rule should reflect that radiology and other diagnostic

services may be ordered by a physician assistant. We agree and have

deleted the word ``only.'' The authority and limitations for a

physician assistant to order radiology and other diagnostic services

are set forth at Sec. 51.150(e) of the final rule.

VA Form 10-10SH

VA Form 10-10SH, State Home Program Application for Veteran Care--

Medical Certification, provides a medical certification for individuals

admitted to a State nursing home facility and for the State applying

for per diem payments. The form is required to be signed by the primary

physician as well as other staff members. One commenter asserted that

the form should be amended to allow physician assistants to conduct

medical evaluations and to sign the medical evaluation form. No changes

are made based on this comment. Physician assistants would not have the

privileges necessary for admitting patients.

Incorporation by Reference

In Sec. 51.200, paragraphs (a), (b)(2), and (b)(4) incorporate by

reference the National Fire Protection Association's NFPA 101, Life

Safety Code, 1997 edition and the NFPA 99, Standard for Health Care

Facilities, 1996 edition. This action would require State homes

providing nursing home care to eligible veterans to comply with a

national code based on actual fire experience across the country. This

is necessary to help ensure that veterans are placed in facilities that

are adequately protected against fires and the final rule is designed

to ensure that State homes meet the fire and safety provisions of the

Life Safety Code.

Forms

We have placed all forms that apply to this rule in a new Part 58

for the purpose of making it easier to find the forms.

Executive Order 12866

This document was reviewed by the Office of Management and Budget

under Executive Order 12866.

Unfunded Mandates

The Unfunded Mandates Reform Act requires (in section 202) that

agencies prepare an assessment of anticipated costs and benefits before

developing any rule that may result in an expenditure by State, local,

or tribal governments, in the aggregate, or by the private sector, of

$100 million or more in any given year. This final rule will have no

consequential effect on State, local or tribal governments.

Regulatory Flexibility Act

The Secretary hereby certifies that the adoption of this final 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. All of the entities that are subject to this final rule

are State government entities under the control of State governments.

Of the 93 State homes, all are operated by State governments except for

16 that are operated by entities under contract with State governments.

These contractors are not small entities. Therefore, pursuant to 5

U.S.C. 605(b), this final rule is exempt from the initial and final

regulatory flexibility analysis requirement of Secs. 603 and 604.

Paperwork Reduction Act of 1995

The collection of information contained in the notice of the

proposed rulemaking was submitted to the Office of Management and

Budget (OMB) for review in accordance with the Paperwork Reduction Act

(44 U.S.C. 3540(h)). The information collections subject to this

rulemaking are set forth in the provisions of Secs. 51.20, 51.30,

51.40, 51.70, 51.80, 51.90, 51.100, 51.110, 51.120, 51.150, 51.160,

51.180, 51.190 and 51.210 of this final rule.

In this regard, the final rule requires facilities to supply

various kinds of information regarding facilities providing nursing

home care to ensure that high quality care is furnished to veterans who

are residents in such facilities. The information includes an

application for recognition based on certification; appeal information;

application and justification for payment; records and reports which

facility management must maintain regarding activities of residents; to

include information relating to whether the facility meets standards

concerning

[[Page 968]]

residents rights and responsibilities prior to admission, during

admission, and upon discharge; the records and reports which facility

management and health care professionals must maintain regarding

residents and employees; various types of documentation pertaining to

the management of the facility; food menu planning; pharmaceutical

records; and life safety documentation.

Interested parties were invited to submit comments on the

collection of information. We received two comments from two

commenters. One comment is discussed above under the heading VA Form

10-10SH. One commenter suggested that VA provide for electronic

transmission of forms. No changes are made based on this comment. We

are working on a system to allow the electronic transmission of forms.

This is not available yet from VA.

One commenter asserted that the proposed rule did not identify how

often information is required to be collected. No changes are made

based on this comment. Each of the sections containing collections of

information specify how often the information must be collected.

The proposed rule states that the average burden per collection is

14 minutes and that the annual reporting and recordkeeping burden for

each State home is slightly less than 1 hour (12,467 total hours and

13,136 respondents). One commenter asserted that these numbers may not

be accurate. No changes are made based on these comments. These figures

are based on sampling in the field.

OMB has approved this information collection under control number

2900-0160 except for VA Form 10-10EZ which is approved under 2900-0091.

This approval is through January 31, 2002, except for VA Form 10-10EZ,

which is approved through October 31, 2001. VA is not authorized to

impose a penalty on persons for failure to comply with information

collection requirements which do not display a current OMB control

number, if required.

List of Subjects in 38 CFR Parts 17, 51, and 58

Administrative practice and procedure, Alcohol abuse, Alcoholism,

Claims, Day care, Dental health, Drug abuse, Foreign relations,

Government contracts, Grant programs-health, Government programs-

veterans, Health care, Health facilities, Health professions, Health

records, Homeless, Incorporation by reference, Medical and dental

schools, Medical devices, Medical research, Mental health programs,

Nursing homes, Philippines, Reporting and recordkeeping requirements,

Scholarships and fellowships, Travel and transportation expenses,

Veterans.

Approved: August 13, 1999.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

For the reason set out in the preamble, 38 CFR Chapter I is amended

as follows:

PART 17--MEDICAL

1. The authority citation for part 17 continues to read as follows:

Authority: 38 U.S.C. 501, 1721, unless otherwise noted.

Sec. 17.190 [Amended]

2. In Sec. 17.190, the introductory text is amended by removing

``hospital, domiciliary or nursing home'' and adding, in its place,

``hospital or domiciliary;'' paragraph (a) is amended by removing ``or

nursing home care;'' paragraph (b) is amended by removing ``nursing

home care patients or;'' and paragraph (d) is removed.

Sec. 17.191 [Amended]

3. Section 17.191 is amended by removing ``domiciliary, nursing

home'' and adding, in its place, ``domiciliary.''

Sec. 17.192 [Amended]

4. Section 17.192 is amended by removing ``nursing home or''.

Sec. 17.193 [Amended]

5. Section 17.193 is amended by removing the second sentence

thereof.

Sec. 17.195 [Removed]

6. Section 17.195 is removed.

Sec. 17.197 [Amended]

7. Section 17.197 is amended by removing ``section 1741(a)(2) for

nursing home care;.''

Sec. 17.198 [Amended]

8. Section 17.198 is amended by removing ``hospital, domiciliary or

nursing home'' and adding, in its place, ``hospital or domiciliary.''

Secs. 17.190 through 17.199 [Amended]

9. A ``Note'' is added immediately following the undesignated

center heading above Sec. 17.190 to read as follows:

Note: Sections 17.190 through 17.200 do not apply to nursing

home care in State homes. The provisions for nursing home care in

State homes are set forth in 38 CFR part 51.

10. Part 51 is added to read as follows:

PART 51--PER DIEM FOR NURSING HOME CARE OF VETERANS IN STATE HOMES

Subpart A--General

Sec.

51.1 Purpose.

51.2 Definitions.

Subpart B--Obtaining Per Diem for Nursing Home Care in State Homes

51.10 Per diem based on recognition and certification.

51.20 Application for recognition based on certification.

51.30 Recognition and certification.

51.31 Automatic recognition.

Subpart C--Per Diem Payments

51.40 Monthly payment.

51.50 Eligible veterans.

Subpart D--Standards

51.60 Standards applicable for payment of per diem.

51.70 Resident rights.

51.80 Admission, transfer and discharge rights.

51.90 Resident behavior and facility practices.

51.100 Quality of life.

51.110 Resident assessment.

51.120 Quality of care.

51.130 Nursing services.

51.140 Dietary services.

51.150 Physician services.

51.160 Specialized rehabilitative services.

51.170 Dental services.

51.180 Pharmacy services.

51.190 Infection control.

51.200 Physical environment.

51.210 Administration.

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

Subpart A--General

Sec. 51.1 Purpose.

This part sets forth the mechanism for paying per diem to State

homes providing nursing home care to eligible veterans and is intended

to ensure that veterans receive high quality care in State homes.

Sec. 51.2 Definitions.

For purposes of this part:

Clinical nurse specialist means a licensed professional nurse with

a master's degree in nursing with a major in a clinical nursing

specialty from an academic program accredited by the National League

for Nursing and at least 2 years of successful clinical practice in the

specialized area of nursing practice following this academic

preparation.

Facility means a building or any part of a building for which a

State has submitted an application for recognition as a State home for

the provision of nursing home care or a building or any part of a

building which VA has recognized as a State home for the provision of

nursing home care.

[[Page 969]]

Nurse practitioner means a licensed professional nurse who is

currently licensed to practice in the State; who meets the State's

requirements governing the qualifications of nurse practitioners; and

who is currently certified as an adult, family, or gerontological nurse

practitioner by the American Nurses' Association.

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 skilled nursing care and related medical services.

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 (NCCPA) as

a physician assistant, and has an individualized written scope of

practice that determines the authorization to write medical orders,

prescribe medications and other clinical tasks under appropriate

physician supervision which is approved by the primary care physician.

Primary physician or primary care physician means a designated

generalist physician responsible for providing, directing and

coordinating all health care that is indicated for the residents.

State means each of the several States, territories, and

possessions of the United States, the District of Columbia, and the

Commonwealth of Puerto Rico.

State home means a home approved by VA which 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 may provide domiciliary care, nursing home care, adult day health

care, and hospital care. Hospital care may be provided only when the

State home also provides domiciliary and/or nursing home care.

VA means the U.S. Department of Veterans Affairs.

Subpart B--Obtaining Per Diem for Nursing Home Care in State Homes

Sec. 51.10 Per diem based on recognition and certification.

VA will pay per diem to a State for providing nursing home care to

eligible veterans in a facility if the Under Secretary for Health

recognizes the facility as a State home based on a current

certification that the facility and facility management meet the

standards of subpart D of this part. Also, after recognition has been

granted, VA will continue to pay per diem to a State for providing

nursing home care to eligible veterans in such a facility for a

temporary period based on a certification that the facility and

facility management provisionally meet the standards of subpart D.

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

Sec. 51.20 Application for recognition based on certification.

To apply for recognition and certification of a State home for

nursing home care, a State must:

(a) Send a request for recognition and certification to the Under

Secretary for Health (10), VA Headquarters, 810 Vermont Avenue, NW.,

Washington, DC 20420. The request must be in the form of a letter and

must be signed by the State official authorized to establish the State

home;

(b) Allow VA to survey the facility as set forth in Sec. 51.30(c);

and

(c) Upon request from the director of the VA medical center of

jurisdiction, submit to the director all documentation required under

subpart D of this part.

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

Sec. 51.30 Recognition and certification.

(a)(1) The Under Secretary for Health will make the determination

regarding recognition and the initial determination regarding

certification, after receipt of a tentative determination from the

director of the VA medical center of jurisdiction regarding whether,

based on a VA survey, the facility and facility management meet or do

not meet the standards of subpart D of this part. The Under Secretary

for Health will notify the official in charge of the facility, the

State official authorized to oversee operations of the State home, the

VA Network Director (10N 1-22), Chief Network Officer (10N), and the

Chief Consultant, Geriatrics and Extended Care Strategic Healthcare

Group (114) of the action taken.

(2) For each facility recognized as a State home, the director of

the VA medical center of jurisdiction will certify annually whether the

facility and facility management meet, provisionally meet, or do not

meet the standards of subpart D of this part (this certification should

be made every 12 months during the recognition anniversary month or

during a month agreed upon by the VA medical care center director and

officials of the State home facility). A provisional certification will

be issued by the director only upon a determination that the facility

or facility management does not meet one or more of the standards in

subpart D, that the deficiencies do not jeopardize the health or safety

of the residents, and that the facility management and the director

have agreed to a plan of correction to remedy the deficiencies in a

specified amount of time (not more time than the VA medical center of

jurisdiction director determines is reasonable for correcting the

specific deficiencies). The director of the VA medical center of

jurisdiction will notify the official in charge of the facility, the

State official authorized to oversee the operations of the State home,

the VA Network Director (10N 1-22), Chief Network Officer (10N) and the

Chief Consultant, Geriatrics and Extended Care Strategic Healthcare

Group (114) of the certification, provisional certification, or

noncertification.

(b) Once a facility has achieved recognition, the recognition will

remain in effect unless the State requests that the recognition be

withdrawn or the Under Secretary for Health makes a final decision that

the facility or facility management does not meet the standards of

subpart D. Recognition of a facility will apply only to the facility as

it exists at the time of recognition; any annex, branch, enlargement,

expansion, or relocation must be separately recognized.

(c) Both during the application process for recognition and after

the Under Secretary for Health has recognized a facility, VA may survey

the facility as necessary to determine if the facility and facility

management comply with the provisions of this part. Generally, VA will

provide advance notice to the State before a survey occurs; however,

surveys may be conducted without notice. A survey, as necessary, will

cover all parts of the facility, and include a review and audit of all

records of the facility that have a bearing on compliance with any of

the requirements of this part (including any reports from State or

local entities). For purposes of a survey, at the request of the

director of the VA medical center of jurisdiction, the State home

facility management must submit to the director a completed VA Form 10-

3567, Staffing Profile, set forth at Sec. 58.10 of this chapter. The

director of the VA medical center of jurisdiction will designate the VA

officials to survey the facility. These officials may include

physicians; nurses; pharmacists; dietitians; rehabilitation therapists;

social workers; representatives from health administration,

engineering, environmental management systems, and fiscal officers.

(d) If the director of the VA medical center of jurisdiction

determines that

[[Page 970]]

the State home facility or facility management does not meet the

standards of this part, the director will notify the State home

facility in writing of the standards not met. The director will send a

copy of this notice to the State official authorized to oversee

operations of the facility, the VA Network Director (10N 1-22), the

Chief Network Officer (10N), and the Chief Consultant, Geriatrics and

Extended Care Strategic Healthcare Group (114). The letter will include

the reasons for the decision and indicate that the State has the right

to appeal the decision.

(e) The State must submit the appeal to the Under Secretary for

Health in writing, within 30 days of receipt of the notice of failure

to meet the standards. In its appeal, the State must explain why the

determination is inaccurate or incomplete and provide any new and

relevant information not previously considered. Any appeal that does

not identify a reason for disagreement will be returned to the sender

without further consideration.

(f) After reviewing the matter, including any relevant supporting

documentation, the Under Secretary for Health will issue a written

determination that affirms or reverses the previous determination. If

the Under Secretary for Health decides that the facility does not meet

the standards of subpart D of this part, the Under Secretary for Health

will withdraw recognition and stop paying per diem for care provided on

and after the date of the decision. The decision of Under Secretary for

Health will constitute a final VA decision. The Under Secretary for

Health will send a copy of this decision to the State home facility and

to the State official authorized to oversee the operations of the State

home.

(g) In the event that a VA survey team or other VA medical center

staff identifies any condition that poses an immediate threat to public

or patient safety or other information indicating the existence of such

a threat, the director of VA medical center of jurisdiction will

immediately report this to the VA Network Director (10N 1-22), Chief

Network Officer (10N), Chief Consultant, Geriatrics and Extended Care

Strategic Healthcare Group (114) and State official authorized to

oversee operations of the State home.

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

Sec. 51.31 Automatic recognition.

Notwithstanding other provisions of this part, a facility that

already is recognized by VA as a State home for nursing home care at

the time this part becomes effective, automatically will continue to be

recognized as a State home for nursing home care but will be subject to

all of the provisions of this part that apply to facilities that have

achieved recognition, including the provisions requiring that the

facility meet the standards set forth in subpart D and the provisions

for withholding per diem payments and withdrawal of recognition.

Subpart C--Per Diem Payments

Sec. 51.40 Monthly payment.

(a)(1) VA will pay per diem monthly for nursing home care provided

to an eligible veteran in a facility recognized as a State home for

nursing home care. During Fiscal Year 2000, VA will pay the lesser of

the following:

(i) One-half of the cost of the care for each day the veteran is in

the facility; or

(ii) $50.55 for each day the veteran is in the facility.

(2) Per diem will be paid only for the days that the veteran is a

resident at the facility. For purposes of paying per diem, VA will

consider a veteran to be a resident at the facility during each full

day that the veteran is receiving care at the facility. VA will not

deem the veteran to be a resident at the facility if the veteran is

receiving care outside the State home facility at VA expense.

Otherwise, VA will deem the veteran to be a resident at the facility

during any absence from the facility that lasts for no more than 96

consecutive hours. This absence will be considered to have ended when

the veteran returns as a resident if the veteran's stay is for at least

a continuous 24-hour period.

(3) As a condition for receiving payment of per diem under this

part, the State must submit a completed VA Form 10-5588, State Home

Report and Statement of Federal Aid Claimed. This form is set forth in

full at Sec. 58.11 of this chapter.

(4) Initial payments will not be made until the Under Secretary for

Health recognizes the State home. However, payments will be made

retroactively for care that was provided on and after the date of the

completion of the VA survey of the facility that provided the basis for

determining that the facility met the standards of this part.

(5) As a condition for receiving payment of per diem under this

part, the State must submit to the VA medical center of jurisdiction

for each veteran the following completed VA Forms 10-10EZ, Application

for Medical Benefits, and 10-10SH, State Home Program Application for

Care--Medical Certification, at the time of admission and with any

request for a change in the level of care (domiciliary, hospital care

or adult day health care). These forms are set forth in full at

Secs. 58.12 and 58.13 of this chapter, respectively, of this part. If

the facility is eligible to receive per diem payments for a veteran, VA

will pay per diem under this part from the date of receipt of the

completed forms required by this paragraph, except that VA will pay per

diem from the day on which the veteran was admitted to the facility if

the completed forms are received within 10 days after admission.

(b) Total per diem costs for an eligible veteran's nursing home

care consist of those direct and indirect costs attributable to nursing

home care at the facility divided by the total number of patients at

the nursing home. Relevant cost principles are set forth in the Office

of Management and Budget (OMB) Circular number A-87, dated May 4, 1995,

``Cost Principles for State, Local, and Indian Tribal Governments.''

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

Sec. 51.50 Eligible veterans.

A veteran is an eligible veteran under this part if VA determines

that the veteran needs nursing home care and the veteran is within one

of the following categories:

(a) Veterans with service-connected disabilities;

(b) Veterans who are former prisoners of war;

(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 of the Mexican border period or of World War I;

(i) Veterans solely seeking care for a disorder associated with

exposure to a toxic substance or radiation or 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);

(j) Veterans who agree to pay to the United States the applicable

co-payment

[[Page 971]]

determined under 38 U.S.C. 1710(f) and 1710(g).

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

Subpart D--Standards

Sec. 51.60 Standards applicable for payment of per diem.

The provisions of this subpart are the standards that a State home

and facility management must meet for the State to receive per diem for

nursing home care.

Sec. 51.70 Resident rights.

The resident has a right to a dignified existence, self-

determination, and communication with and access to persons and

services inside and outside the facility. The facility management must

protect and promote the rights of each resident, including each of the

following rights:

(a) Exercise of rights. (1) The resident has the right to exercise

his or her rights as a resident of the facility and as a citizen or

resident of the United States.

(2) The resident has the right to be free of interference,

coercion, discrimination, and reprisal from the facility management in

exercising his or her rights.

(3) The resident has the right to freedom from chemical or physical

restraint.

(4) In the case of a resident determined incompetent under the laws

of a State by a court of jurisdiction, the rights of the resident are

exercised by the person appointed under State law to act on the

resident's behalf.

(5) In the case of a resident who has not been determined

incompetent by the State court, any legal-surrogate designated in

accordance with State law may exercise the resident's rights to the

extent provided by State law.

(b) Notice of rights and services. (1) The facility management must

inform the resident both orally and in writing in a language that the

resident understands of his or her rights and all rules and regulations

governing resident conduct and responsibilities during the stay in the

facility. Such notification must be made prior to or upon admission and

periodically during the resident's stay.

(2) The resident or his or her legal representative has the right:

(i) Upon an oral or written request, to access all records

pertaining to himself or herself including current clinical records

within 24 hours (excluding weekends and holidays); and

(ii) After receipt of his or her records for review, to purchase at

a cost not to exceed the community standard photocopies of the records

or any portions of them upon request and with 2 working days advance

notice to the facility management.

(3) The resident has the right to be fully informed in language

that he or she can understand of his or her total health status;

(4) The resident has the right to refuse treatment, to refuse to

participate in experimental research, and to formulate an advance

directive as specified in paragraph (b)(7) of this section; and

(5) The facility management must inform each resident before, or at

the time of admission, and periodically during the resident's stay, of

services available in the facility and of charges for those services to

be billed to the resident.

(6) The facility management must furnish a written description of

legal rights which includes:

(i) A description of the manner of protecting personal funds, under

paragraph (c) of this section;

(ii) A statement that the resident may file a complaint with the

State (agency) concerning resident abuse, neglect, misappropriation of

resident property in the facility, and non-compliance with the advance

directives requirements.

(7) The facility management must have written policies and

procedures regarding advance directives (e.g., living wills) that

include provisions to inform and provide written information to all

residents concerning the right to accept or refuse medical or surgical

treatment and, at the individual's option, formulate an advance

directive. This includes a written description of the facility's

policies to implement advance directives and applicable State law. If

an individual is incapacitated at the time of admission and is unable

to receive information (due to the incapacitating conditions) or

articulate whether or not he or she has executed an advance directive,

the facility may give advance directive information to the individual's

family or surrogate in the same manner that it issues other materials

about policies and procedures to the family of the incapacitated

individual or to a surrogate or other concerned persons in accordance

with State law. The facility management is not relieved of its

obligation to provide this information to the individual once he or she

is no longer incapacitated or unable to receive such information.

Follow-up procedures must be in place to provide the information to the

individual directly at the appropriate time.

(8) The facility management must inform each resident of the name

and way of contacting the primary physician responsible for his or her

care.

(9) Notification of changes. (i) Facility management must

immediately inform the resident; consult with the primary physician;

and if known, notify the resident's legal representative or an

interested family member when there is--

(A) An accident involving the resident which results in injury and

has the potential for requiring physician intervention;

(B) A significant change in the resident's physical, mental, or

psychosocial status (i.e., a deterioration in health, mental, or

psychosocial status in either life-threatening conditions or clinical

complications);

(C) A need to alter treatment significantly (i.e., a need to

discontinue an existing form of treatment due to adverse consequences,

or to commence a new form of treatment); or

(D) A decision to transfer or discharge the resident from the

facility as specified in Sec. 51.80(a) of this part.

(ii) The facility management must also promptly notify the resident

and, if known, the resident's legal representative or interested family

member when there is--

(A) A change in room or roommate assignment as specified in

Sec. 51.100(f)(2); or

(B) A change in resident rights under Federal or State law or

regulations as specified in paragraph (b)(1) of this section.

(iii) The facility management must record and periodically update

the address and phone number of the resident's legal representative or

interested family member.

(c) Protection of resident funds. (1) The resident has the right to

manage his or her financial affairs, and the facility management may

not require residents to deposit their personal funds with the

facility.

(2) Management of personal funds. Upon written authorization of a

resident, the facility management must hold, safeguard, manage, and

account for the personal funds of the resident deposited with the

facility, as specified in paragraphs (c)(3) through (c)(6) of this

section.

(3) Deposit of funds. (i) Funds in excess of $100. The facility

management must deposit any residents' personal funds in excess of $100

in an interest bearing account (or accounts) that is separate from any

of the facility's operating accounts, and that credits all interest

earned on resident's funds to that account. (In pooled accounts, there

must be a separate accounting for each resident's share.)

(ii) Funds less than $100. The facility management must maintain a

resident's

[[Page 972]]

personal funds that do not exceed $100 in a non-interest bearing

account, interest-bearing account, or petty cash fund.

(4) Accounting and records. The facility management must establish

and maintain a system that assures a full and complete and separate

accounting, according to generally accepted accounting principles, of

each resident's personal funds entrusted to the facility on the

resident's behalf.

(i) The system must preclude any commingling of resident funds with

facility funds or with the funds of any person other than another

resident.

(ii) The individual financial record must be available through

quarterly statements and on request from the resident or his or her

legal representative.

(5) Conveyance upon death. Upon the death of a resident with a

personal fund deposited with the facility, the facility management must

convey within 30 days the resident's funds, and a final accounting of

those funds, to the individual or probate jurisdiction administering

the resident's estate; or other appropriate individual or entity, if

State law allows.

(6) Assurance of financial security. The facility management must

purchase a surety bond, or otherwise provide assurance satisfactory to

the Under Secretary for Health, to assure the security of all personal

funds of residents deposited with the facility.

(d) Free choice. The resident has the right to--

(1) Be fully informed in advance about care and treatment and of

any changes in that care or treatment that may affect the resident's

well-being; and

(2) Unless determined incompetent or otherwise determined to be

incapacitated under the laws of the State, participate in planning care

and treatment or changes in care and treatment.

(e) Privacy and confidentiality. The resident has the right to

personal privacy and confidentiality of his or her personal and

clinical records.

(1) Residents have a right to personal privacy in their

accommodations, medical treatment, written and telephone

communications, personal care, visits, and meetings of family and

resident groups. This does not require the facility management to give

a private room to each resident.

(2) Except as provided in paragraph (e)(3) of this section, the

resident may approve or refuse the release of personal and clinical

records to any individual outside the facility;

(3) The resident's right to refuse release of personal and clinical

records does not apply when--

(i) The resident is transferred to another health care institution;

or

(ii) Record release is required by law.

(f) Grievances. A resident has the right to--

(1) Voice grievances without discrimination or reprisal. Residents

may voice grievances with respect to treatment received and not

received; and

(2) Prompt efforts by the facility to resolve grievances the

resident may have, including those with respect to the behavior of

other residents.

(g) Examination of survey results. A resident has the right to--

(1) Examine the results of the most recent VA survey with respect

to the facility. The facility management must make the results

available for examination in a place readily accessible to residents,

and must post a notice of their availability; and

(2) Receive information from agencies acting as client advocates,

and be afforded the opportunity to contact these agencies.

(h) Work. The resident has the right to--

(1) Refuse to perform services for the facility;

(2) Perform services for the facility, if he or she chooses, when--

(i) The facility has documented the need or desire for work in the

plan of care;

(ii) The plan specifies the nature of the services performed and

whether the services are voluntary or paid;

(iii) Compensation for paid services is at or above prevailing

rates; and

(iv) The resident agrees to the work arrangement described in the

plan of care.

(i) Mail. The resident must have the right to privacy in written

communications, including the right to--

Send and promptly receive mail that is unopened; and

(2) Have access to stationery, postage, and writing implements at

the resident's own expense.

(j) Access and visitation rights. (1) The resident has the right

and the facility management must provide immediate access to any

resident by the following:

(i) Any representative of the Under Secretary for Health;

(ii) Any representative of the State;

(iii) Physicians of the resident's choice (to provide care in the

nursing home, physicians must meet the provisions of Sec. 51.210(j));

(iv) The State long term care ombudsman;

(v) Immediate family or other relatives of the resident subject to

the resident's right to deny or withdraw consent at any time; and

(vi) Others who are visiting subject to reasonable restrictions and

the resident's right to deny or withdraw consent at any time.

(2) The facility management must provide reasonable access to any

resident by any entity or individual that provides health, social,

legal, or other services to the resident, subject to the resident's

right to deny or withdraw consent at any time.

(3) The facility management must allow representatives of the State

Ombudsman Program, described in paragraph (j)(1)(iv) of this section,

to examine a resident's clinical records with the permission of the

resident or the resident's legal representative, subject to State law.

(k) Telephone. The resident has the right to reasonable access to

use a telephone where calls can be made without being overheard.

(l) Personal property. The resident has the right to retain and use

personal possessions, including some furnishings, and appropriate

clothing, as space permits, unless to do so would infringe upon the

rights or health and safety of other residents.

(m) Married couples. The resident has the right to share a room

with his or her spouse when married residents live in the same facility

and both spouses consent to the arrangement.

(n) Self-Administration of Drugs. An individual resident may self-

administer drugs if the interdisciplinary team, as defined by

Sec. 51.110(d)(2)(ii) of this part, has determined that this practice

is safe.

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

Sec. 51.80 Admission, transfer and discharge rights.

(a) Transfer and discharge. (1) Definition: Transfer and discharge

includes movement of a resident to a bed outside of the facility

whether that bed is in the same physical plant or not. Transfer and

discharge does not refer to movement of a resident to a bed within the

same facility.

(2) Transfer and discharge requirements. The facility management

must permit each resident to remain in the facility, and not transfer

or discharge the resident from the facility unless--

(i) The transfer or discharge is necessary for the resident's

welfare and the resident's needs cannot be met in the nursing home;

(ii) The transfer or discharge is appropriate because the

resident's health has improved sufficiently so the

[[Page 973]]

resident no longer needs the services provided by the nursing home;

(iii) The safety of individuals in the facility is endangered;

(iv) The health of individuals in the facility would otherwise be

endangered;

(v) The resident has failed, after reasonable and appropriate

notice to pay for a stay at the facility; or

(vi) The nursing home ceases to operate.

(3) Documentation. When the facility transfers or discharges a

resident under any of the circumstances specified in paragraphs

(a)(2)(i) through (a)(2)(vi) of this section, the primary physician

must document this in the resident's clinical record.

(4) Notice before transfer. Before a facility transfers or

discharges a resident, the facility must--

(i) Notify the resident and, if known, a family member or legal

representative of the resident of the transfer or discharge and the

reasons for the move in writing and in a language and manner they

understand.

(ii) Record the reasons in the resident's clinical record; and

(iii) Include in the notice the items described in paragraph (a)(6)

of this section.

(5) Timing of the notice. (i) The notice of transfer or discharge

required under paragraph (a)(4) of this section must be made by the

facility at least 30 days before the resident is transferred or

discharged, except when specified in paragraph (a)(5)(ii) of this

section,

(ii) Notice may be made as soon as practicable before transfer or

discharge when--

(A) The safety of individuals in the facility would be endangered;

(B) The health of individuals in the facility would be otherwise

endangered;

(C) The resident's health improves sufficiently so the resident no

longer needs the services provided by the nursing home;

(D) The resident's needs cannot be met in the nursing home;

(6) Contents of the notice. The written notice specified in

paragraph (a)(4) of this section must include the following:

(i) The reason for transfer or discharge;

(ii) The effective date of transfer or discharge;

(iii) The location to which the resident is transferred or

discharged;

(iv) A statement that the resident has the right to appeal the

action to the State official designated by the State; and

(v) The name, address and telephone number of the State long term

care ombudsman.

(7) Orientation for transfer or discharge. A facility management

must provide sufficient preparation and orientation to residents to

ensure safe and orderly transfer or discharge from the facility.

(b) Notice of bed-hold policy and readmission. (1) Notice before

transfer. Before a facility transfers a resident to a hospital or

allows a resident to go on therapeutic leave, the facility management

must provide written information to the resident and a family member or

legal representative that specifies--

(i) The duration of the facility's bed-hold policy, if any, during

which the resident is permitted to return and resume residence in the

facility; and

(ii) The facility's policies regarding bed-hold periods, which must

be consistent with paragraph (b)(3) of this section, permitting a

resident to return.

(2) Bed-hold notice upon transfer. At the time of transfer of a

resident for hospitalization or therapeutic leave, facility management

must provide to the resident and a family member or legal

representative written notice which specifies the duration of the bed-

hold policy described in paragraph (b)(1) of this section.

(3) Permitting resident to return to facility. A nursing facility

must establish and follow a written policy under which a resident,

whose hospitalization or therapeutic leave exceeds the bed-hold period

is readmitted to the facility immediately upon the first availability

of a bed in a semi-private room, if the resident requires the services

provided by the facility.

(c) Equal access to quality care. The facility management must

establish and maintain identical policies and practices regarding

transfer, discharge, and the provision of services for all individuals

regardless of source of payment.

(d) Admissions policy. The facility management must not require a

third party guarantee of payment to the facility as a condition of

admission or expedited admission, or continued stay in the facility.

However, the facility may require an individual who has legal access to

a resident's income or resources available to pay for facility care to

sign a contract to pay the facility from the resident's income or

resources.

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

Sec. 51.90 Resident behavior and facility practices.

(a) Restraints. (1) The resident has a right to be free from any

chemical or physical restraints imposed for purposes of discipline or

convenience. When a restraint is applied or used, the purpose of the

restraint is reviewed and is justified as a therapeutic intervention.

(i) Chemical restraint is the inappropriate use of a sedating

psychotropic drug to manage or control behavior.

(ii) Physical restraint is any method of physically restricting a

person's freedom of movement, physical activity or normal access to his

or her body. Bed rails and vest restraints are examples of physical

restraints.

(2) The facility management uses a system to achieve a restraint-

free environment.

(3) The facility management collects data about the use of

restraints.

(4) When alternatives to the use of restraint are ineffective, a

restraint must be safely and appropriately used.

(b) Abuse. The resident has the right to be free from mental,

physical, sexual, and verbal abuse or neglect, corporal punishment, and

involuntary seclusion.

(1) Mental abuse includes humiliation, harassment, and threats of

punishment or deprivation.

(2) Physical abuse includes hitting, slapping, pinching, or

kicking. Also includes controlling behavior through corporal

punishment.

(3) Sexual abuse includes sexual harassment, sexual coercion, and

sexual assault.

(4) Neglect is any impaired quality of life for an individual

because of the absence of minimal services or resources to meet basic

needs. Includes withholding or inadequately providing food and

hydration (without physician, resident, or surrogate approval),

clothing, medical care, and good hygiene. May also include placing the

individual in unsafe or unsupervised conditions.

(5) Involuntary seclusion is a resident's separation from other

residents or from the resident's room against his or her will or the

will of his or her legal representative.

(c) Staff treatment of residents. The facility management must

develop and implement written policies and procedures that prohibit

mistreatment, neglect, and abuse of residents and misappropriation of

resident property.

(1) The facility management must:

(i) Not employ individuals who--

(A) Have been found guilty of abusing, neglecting, or mistreating

individuals by a court of law; or

(B) Have had a finding entered into an applicable State registry or

with the applicable licensing authority concerning abuse, neglect,

mistreatment of individuals or misappropriation of their property; and

(ii) Report any knowledge it has of actions by a court of law

against an

[[Page 974]]

employee, which would indicate unfitness for service as a nurse aide or

other facility staff to the State nurse aide registry or licensing

authorities.

(2) The facility management must ensure that all alleged violations

involving mistreatment, neglect, or abuse, including injuries of

unknown source, and misappropriation of resident property are reported

immediately to the administrator of the facility and to other officials

in accordance with State law through established procedures.

(3) The facility management must have evidence that all alleged

violations are thoroughly investigated, and must prevent further

potential abuse while the investigation is in progress.

(4) The results of all investigations must be reported to the

administrator or the designated representative and to other officials

in accordance with State law within 5 working days of the incident, and

appropriate corrective action must be taken if the alleged violation is

verified.

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

Sec. 51.100 Quality of life.

A facility management must care for its residents in a manner and

in an environment that promotes maintenance or enhancement of each

resident's quality of life.

(a) Dignity. The facility management must promote care for

residents in a manner and in an environment that maintains or enhances

each resident's dignity and respect in full recognition of his or her

individuality.

(b) Self-determination and participation. The resident 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 resident.

(c) Resident Council. The facility management must establish a

council of residents that meet at least quarterly. The facility

management must document any concerns submitted to the management of

the facility by the council.

(d) Participation in resident and family groups. (1) A resident has

the right to organize and participate in resident groups in the

facility;

(2) A resident's family has the right to meet in the facility with

the families of other residents in the facility;

(3) The facility management must provide the council and any

resident or family group that exists with private space;

(4) Staff or visitors may attend meetings at the group's

invitation;

(5) The facility management must provide a designated staff person

responsible for providing assistance and responding to written requests

that result from group meetings;

(6) The facility management must listen to the views of any

resident or family group, including the council established under

paragraph (c) of this section, and act upon the concerns of residents,

families, and the council regarding policy and operational decisions

affecting resident care and life in the facility.

(e) Participation in other activities. A resident has the right to

participate in social, religious, and community activities that do not

interfere with the rights of other residents in the facility. The

facility management must arrange for religious counseling by clergy of

various faith groups.

(f) Accommodation of needs. A resident has the right to--

(1) Reside and receive services in the facility with reasonable

accommodation of individual needs and preferences, except when the

health or safety of the individual or other residents would be

endangered; and

(2) Receive notice before the resident's room or roommate in the

facility is changed.

(g) Patient Activities. (1) The facility management 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 resident.

(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 or registered, if applicable, by the State in which

practicing; and

(ii) Is certified as a therapeutic recreation specialist or as an

activities professional by a recognized accrediting body.

(h) Social Services. (1) The facility management must provide

medically related social services to attain or maintain the highest

practicable mental and psychosocial well-being of each resident.

(2) A nursing home with 100 or more beds must employ a qualified

social worker on a full-time basis.

(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), and

(ii) A social work license from the State in which the State home

is located, if 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 facility management must have sufficient support staff to

meet patients' social services needs.

(5) Facilities for social services must ensure privacy for

interviews.

(i) Environment. The facility management must provide--

(1) A safe, clean, comfortable, and homelike environment, allowing

the resident to use his or her personal belongings to the extent

possible;

(2) Housekeeping and maintenance services necessary to maintain a

sanitary, orderly, and comfortable interior;

(3) Clean bed and bath linens that are in good condition;

(4) Private closet space in each resident room, as specified in

Sec. 51.200(d)(2)(iv) of this part;

(5) Adequate and comfortable lighting levels in all areas;

(6) Comfortable and safe temperature levels. Facilities must

maintain a temperature range of 71-81 degrees Fahrenheit; and

(7) For the maintenance of comfortable sound levels.

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

Sec. 51.110 Resident assessment.

The facility management must conduct initially, annually and as

required by a change in the resident's condition a comprehensive,

accurate, standardized, reproducible assessment of each resident's

functional capacity.

(a) Admission orders. At the time each resident is admitted, the

facility management 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 an examination was performed within five days before admission and

the findings were recorded in the medical record on admission.

(b) Comprehensive assessments. (1) The facility management must

make a

[[Page 975]]

comprehensive assessment of a resident's needs:

(i) Using the Health Care Financing Administration Long Term Care

Resident Assessment Instrument Version 2.0; and

(ii) Describing the resident's capability to perform daily life

functions, strengths, performances, needs as well as significant

impairments in functional capacity.

(iii) All nursing homes must be in compliance with the use of the

Health Care Financing Administration Long Term Care Resident Assessment

Instrument Version 2.0 by no later than January 1, 2000.

(2) Frequency. Assessments must be conducted--

(i) No later than 14 days after the date of admission;

(ii) Promptly after a significant change in the resident's

physical, mental, or social condition; and

(iii) In no case less often than once every 12 months.

(3) Review of assessments. The nursing facility management must

examine each resident no less than once every 3 months, and as

appropriate, revise the resident's assessment to assure the continued

accuracy of the assessment.

(4) Use. The results of the assessment are used to develop, review,

and revise the resident's individualized comprehensive plan of care,

under paragraph (d) of this section.

(c) Accuracy of assessments. (1) Coordination--

(i) Each assessment must be conducted or coordinated with the

appropriate participation of health professionals.

(ii) Each assessment must be conducted or coordinated by a

registered nurse that signs and certifies the completion of the

assessment.

(2) Certification. Each person who completes a portion of the

assessment must sign and certify the accuracy of that portion of the

assessment.

(d) Comprehensive care plans. (1) The facility management must

develop an individualized comprehensive care plan for each resident

that includes measurable objectives and timetables to meet a resident's

physical, mental, and psychosocial needs that are identified in the

comprehensive assessment. The care plan must describe the following--

(i) The services that are to be furnished to attain or maintain the

resident's highest practicable physical, mental, and psychosocial well-

being as required under Sec. 51.120; and

(ii) Any services that would otherwise be required under

Sec. 51.120 of this part but are not provided due to the resident's

exercise of rights under Sec. 51.70, including the right to refuse

treatment under Sec. 51.70(b)(4) of this part.

(2) A comprehensive care plan must be--

(i) Developed within 7 calendar days after completion of the

comprehensive assessment;

(ii) Prepared by an interdisciplinary team, that includes the

primary physician, a registered nurse with 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, the resident's family or the resident's legal

representative; and

(iii) Periodically reviewed and revised by a team of qualified

persons after each assessment.

(3) The services provided or arranged by the facility must--

(i) Meet professional standards of quality; and

(ii) Be provided by qualified persons in accordance with each

resident's written plan of care.

(e) Discharge summary. Prior to discharging a resident, the

facility management 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 items in paragraph (b)(2) of this section; and

(3) A post-discharge plan of care that is developed with the

participation of the resident and his or her family, which will assist

the resident to adjust to his or her new living environment.

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

Sec. 51.120 Quality of care.

Each resident must receive and the facility management 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 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, including suicides following

elopement (unauthorized departure) from the facility; or

(iii) Any elopement of a resident from the facility resulting in a

death or a major permanent loss of function; or

(iv) Any procedure or clinical intervention, including restraints,

that result in death or a major permanent loss of function; or

(v) Assault, homicide or other crime resulting in patient death or

major permanent loss of function; or

(vi) A patient fall that results in death or major permanent loss

of function as a direct result of the injuries sustained in the fall.

(3) The facility management must report sentinel events to the

director of VA medical center of jurisdiction within 24 hours of

identification. The VA medical center of jurisdiction must report

sentinel events by calling VA Network Director (10N 1-22) and Chief

Consultant, Geriatrics and Extended Care Strategic Healthcare Group

(114) within 24 hours of notification.

(4) The facility management must establish a mechanism to review

and analyze a sentinel event resulting in a written report 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

facility.

(b) Activities of daily living. Based on the comprehensive

assessment of a resident, the facility management must ensure that--

(1) 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. This includes the

resident's ability to--

(i) Bathe, dress, and groom;

(ii) Transfer and ambulate;

(iii) Toilet;

(iv) Eat; and

(v) Talk or otherwise communicate.

(2) A resident is given the appropriate treatment and services to

maintain or improve his or her abilities specified in paragraph (b)(1)

of this section; and

(3) A resident 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) Vision and hearing. To ensure that residents receive proper

treatment and assistive devices to maintain vision and hearing

abilities, the facility must, if necessary, assist the resident--

(1) In making appointments, and

(2) By arranging for transportation to and from the office of a

practitioner

[[Page 976]]

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) Pressure sores. Based on the comprehensive assessment of a

resident, the facility management must ensure that--

(1) A resident who enters the facility without pressure sores does

not develop pressure sores unless the individual's clinical condition

demonstrates that they were unavoidable; and

(2) A resident having pressure sores receives necessary treatment

and services to promote healing, prevent infection and prevent new

sores from developing.

(e) Urinary and Fecal Incontinence. Based on the resident's

comprehensive assessment, the facility management must ensure that--

(1) A resident who enters the facility without an indwelling

catheter is not catheterized unless the resident's clinical condition

demonstrates that catheterization was necessary;

(2) A resident who is incontinent of urine receives appropriate

treatment and services to prevent urinary tract infections and to

restore as much normal bladder function as possible; and

(3) A resident who has persistent fecal incontinence receives

appropriate treatment and services to treat reversible causes and to

restore as much normal bowel function as possible.

(f) Range of motion. Based on the comprehensive assessment of a

resident, the facility management must ensure that--

(1) A resident who enters the facility without a limited range of

motion does not experience reduction in range of motion unless the

resident's clinical condition demonstrates that a reduction in range of

motion is unavoidable; and

(2) A resident with a limited range of motion receives appropriate

treatment and services to increase range of motion and/or to prevent

further decrease in range of motion.

(g) Mental and Psychosocial functioning. Based on the comprehensive

assessment of a resident, the facility management must ensure that a

resident who displays mental or psychosocial adjustment difficulty,

receives appropriate treatment and services to correct the assessed

problem.

(h) Enteral Feedings. Based on the comprehensive assessment of a

resident, the facility management must ensure that--

(1) A resident who has been able to adequately eat or take fluids

alone or with assistance is not fed by enteral feedings unless the

resident's clinical condition demonstrates that use of enteral feedings

was unavoidable; and

(2) A resident who is fed by enteral feedings receives the

appropriate treatment and services to prevent aspiration pneumonia,

diarrhea, vomiting, dehydration, metabolic abnormalities, nasal-

pharyngeal ulcers and other skin breakdowns, and to restore, if

possible, normal eating skills.

(i) Accidents. The facility management must ensure that--

(1) The resident environment remains as free of accident hazards as

is possible; and

(2) Each resident receives adequate supervision and assistance

devices to prevent accidents.

(j) Nutrition. Based on a resident's comprehensive assessment, the

facility management must ensure that a resident--

(1) Maintains acceptable parameters of nutritional status, such as

body weight and protein levels, unless the resident's clinical

condition demonstrates that this is not possible; and

(2) Receives a therapeutic diet when a nutritional deficiency is

identified.

(k) Hydration. The facility management must provide each resident

with sufficient fluid intake to maintain proper hydration and health.

(l) Special needs. The facility management must ensure that

residents receive proper treatment and care for the following special

services:

(1) Injections;

(2) Parenteral and enteral fluids;

(3) Colostomy, ureterostomy, or ileostomy care;

(4) Tracheostomy care;

(5) Tracheal suctioning;

(6) Respiratory care;

(7) Foot care; and

(8) Prostheses.

(m) Unnecessary drugs. (1) General. Each resident's drug regimen

must be free from unnecessary drugs. An unnecessary drug is any drug

when used:

(i) In excessive dose (including duplicate drug therapy); or

(ii) For excessive duration; or

(iii) Without adequate monitoring; or

(iv) Without adequate indications for its use; or

(v) In the presence of adverse consequences which indicate the dose

should be reduced or discontinued; or

(vi) Any combinations of the reasons above.

(2) Antipsychotic Drugs. Based on a comprehensive assessment of a

resident, the facility management must ensure that--

(i) Residents who have not used antipsychotic drugs are not given

these drugs unless antipsychotic drug therapy is necessary to treat a

specific condition as diagnosed and documented in the clinical record;

and

(ii) Residents who use antipsychotic drugs receive gradual dose

reductions, and behavioral interventions, unless clinically

contraindicated, in an effort to discontinue these drugs.

(n) Medication Errors. The facility management must ensure that--

(1) Medication errors are identified and reviewed on a timely

basis; and

(2) strategies for preventing medication errors and adverse

reactions are implemented.

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

Sec. 51.130 Nursing services.

The facility management must provide an organized nursing service

with a sufficient number of qualified nursing personnel to meet the

total nursing care needs, as determined by resident assessment and

individualized comprehensive plans of care, of all patients 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 services

staff.

(b) The facility management must provide registered nurses 24 hours

per day, 7 days per week.

(c) The director of nursing service must designate a registered

nurse as a supervising nurse for each tour of duty.

(1) Based on the application and results of the case mix and

staffing methodology, the director of nursing may serve in a dual role

as director and as an onsite-supervising nurse only when the facility

has an average daily occupancy of 60 or fewer residents in nursing

home.

(2) Based on the application and results of the case mix and

staffing methodology, the evening or night supervising nurse may serve

in a dual role as supervising nurse as well as provides direct patient

care only when the facility has an average daily occupancy of 60 or

fewer residents in nursing home.

(d) The facility management must provide nursing services to ensure

that there is direct care nurse staffing of no less than 2.5 hours per

patient per 24 hours, 7 days per week in the portion of any building

providing nursing home care.

(e) Nurse staffing must be based on a staffing methodology that

applies case

[[Page 977]]

mix and is adequate for meeting the standards of this part.

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

Sec. 51.140 Dietary services.

The facility management must provide each resident with a

nourishing, palatable, well-balanced diet that meets the daily

nutritional and special dietary needs of each resident.

(a) Staffing. The facility management must employ a qualified

dietitian either full-time, part-time, or on a consultant basis.

(1) If a dietitian is not employed, the facility management must

designate a person to serve as the director of food service who

receives at least a monthly scheduled consultation from a qualified

dietitian.

(2) A qualified dietitian is one who is qualified based upon

registration by the Commission on Dietetic Registration of the American

Dietetic Association.

(b) Sufficient staff. The facility management must employ

sufficient support personnel competent to carry out the functions of

the dietary service.

(c) Menus and nutritional adequacy. Menus must--

(1) Meet the nutritional needs of residents in accordance with the

recommended dietary allowances of the Food and Nutrition Board of the

National Research Council, National Academy of Sciences;

(2) Be prepared in advance; and

(3) Be followed.

(d) Food. Each resident receives and the facility provides--

(1) Food prepared by methods that conserve nutritive value, flavor,

and appearance;

(2) Food that is palatable, attractive, and at the proper

temperature;

(3) Food prepared in a form designed to meet individual needs; and

(4) Substitutes offered of similar nutritive value to residents who

refuse food served.

(e) Therapeutic diets. Therapeutic diets must be prescribed by the

primary care physician.

(f) Frequency of meals. (1) Each resident receives and the facility

provides at least three meals daily, at regular times comparable to

normal mealtimes in the community.

(2) There must be no more than 14 hours between a substantial

evening meal and the availability of breakfast the following day,

except as provided in (f)(4) of this section.

(3) The facility staff must offer snacks at bedtime daily.

(4) When a nourishing snack is provided at bedtime, up to 16 hours

may elapse between a substantial evening meal and breakfast the

following day.

(g) Assistive devices. The facility management must provide special

eating equipment and utensils for residents who need them.

(h) Sanitary conditions. The facility must--

(1) Procure food from sources approved or considered satisfactory

by Federal, State, or local authorities;

(2) Store, prepare, distribute, and serve food under sanitary

conditions; and (3) Dispose of garbage and refuse properly.

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

Sec. 51.150 Physician services.

A physician must personally approve in writing a recommendation

that an individual be admitted to a facility. Each resident must remain

under the care of a physician.

(a) Physician supervision. The facility management must ensure

that--

(1) The medical care of each resident is supervised by a primary

care physician;

(2) Each resident's medical record lists the name of the resident's

primary physician, and

(3) Another physician supervises the medical care of residents when

their primary physician is unavailable.

(b) Physician visits. The physician must--

(1) Review the resident's total program of care, including

medications and treatments, at each visit required by paragraph (c) of

this section;

(2) Write, sign, and date progress notes at each visit; and

(3) Sign and date all orders.

(c) Frequency of physician visits.

(1) The resident must be seen by the primary physician at least

once every 30 days for the first 90 days after admission, and at least

once every 60 days thereafter, or more frequently based on the

condition of the resident.

(2) A physician visit is considered timely if it occurs not later

than 10 days after the date the visit was required.

(3) Except as provided in paragraphs (c)(4) of this section, all

required physician visits must be made by the physician personally.

(4) At the option of the physician, required visits in the facility

after the initial visit may alternate between personal visits by the

physician and visits by a physician assistant, nurse practitioner, or

clinical nurse specialist in accordance with paragraph (e) of this

section.

(d) Availability of physicians for emergency care. The facility

management must provide or arrange for the provision of physician

services 24 hours a day, 7 days per week, in case of an emergency.

(e) Physician delegation of tasks. (1) Except as specified in

paragraph (e)(2) of this section, 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.

Note to paragraph (e): An individual with experience in long

term care is preferred.

(2) The primary physician may not delegate a task when the

regulations specify that the primary physician must perform it

personally, or when the delegation is prohibited under State law or by

the facility's own policies.

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

Sec. 51.160 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 resident's comprehensive plan of care, facility

management must--

(1) Provide the required services; or

(2) Obtain the required services from an outside resource, in

accordance with Sec. 51.210(h) of this part, from a provider of

specialized rehabilitative services.

(b) Specialized rehabilitative services must be provided under the

written order of a physician by qualified personnel.

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

Sec. 51.170 Dental services.

(a) A facility must provide or obtain from an outside resource, in

accordance with Sec. 51.210(h) of this part, routine and emergency

dental services to meet the needs of each resident;

(b) A facility may charge a resident an additional amount for

routine and emergency dental services; and

(c) A facility must, if necessary, assist the resident--

(1) In making appointments;

(2) By arranging for transportation to and from the dental

services; and

(3) Promptly refer residents with lost or damaged dentures to a

dentist.

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

Sec. 51.180 Pharmacy services.

The facility management must provide routine and emergency drugs

[[Page 978]]

and biologicals to its residents, or obtain them under an agreement

described in Sec. 51.210(h) of this part. The facility management must

have a system for disseminating drug information to medical and nursing

staff.

(a) Procedures. The facility management must provide pharmaceutical

services (including procedures that assure the accurate acquiring,

receiving, dispensing, and administering of all drugs and biologicals)

to meet the needs of each resident.

(b) Service consultation. The facility management must employ or

obtain the services of a pharmacist licensed in a State in which the

facility is located or a VA pharmacist under VA contract who--

(1) Provides consultation on all aspects of the provision of

pharmacy services in the facility;

(2) Establishes a system of records of receipt and disposition of

all controlled drugs in sufficient detail to enable an accurate

reconciliation; and

(3) Determines that drug records are in order and that an account

of all controlled drugs is maintained and periodically reconciled.

(c) Drug regimen review. (1) The drug regimen of each resident must

be reviewed at least once a month by a licensed pharmacist.

(2) The pharmacist must report any irregularities to the primary

physician and the director of nursing, and these reports must be acted

upon.

(d) Labeling of drugs and biologicals. Drugs and biologicals used

in the facility management must be labeled in accordance with currently

accepted professional principles, and include the appropriate accessory

and cautionary instructions, and the expiration date when applicable.

(e) Storage of drugs and biologicals. (1) In accordance with State

and Federal laws, the facility management must store all drugs and

biologicals in locked compartments under proper temperature controls,

and permit only authorized personnel to have access to the keys.

(2) The facility management must provide separately locked,

permanently affixed compartments for storage of controlled drugs listed

in Schedule II of the Comprehensive Drug Abuse Prevention and Control

Act of 1976 and other drugs subject to abuse.

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

Sec. 51.190 Infection control.

The facility management must establish and maintain an infection

control program designed to provide a safe, sanitary, and comfortable

environment and to help prevent the development and transmission of

disease and infection.

(a) Infection control program. The facility management must

establish an infection control program under which it--

(1) Investigates, controls, and prevents infections in the

facility;

(2) Decides what procedures, such as isolation, should be applied

to an individual resident; and

(3) Maintains a record of incidents and corrective actions related

to infections.

(b) Preventing spread of infection. (1) When the infection control

program determines that a resident needs isolation to prevent the

spread of infection, the facility management must isolate the resident.

(2) The facility management must prohibit employees with a

communicable disease or infected skin lesions from engaging in any

contact with residents or their environment that would transmit the

disease.

(3) The facility management must require staff to wash their hands

after each direct resident contact for which hand washing is indicated

by accepted professional practice.

(c) Linens. Personnel must handle, store, process, and transport

linens so as to prevent the spread of infection.

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

Sec. 51.200 Physical environment.

The facility management must be designed, constructed, equipped,

and maintained to protect the health and safety of residents, personnel

and the public.

(a) Life safety from fire. The facility must meet the applicable

provisions of the National Fire Protection Association's NFPA 101, Life

Safety Code (1997 edition) and the NFPA 99, Standard for Health Care

Facilities (1996 edition). Incorporation by reference of these

materials was approved by the Director of the Federal Register in

accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials

incorporated by reference are available for inspection at the Office of

the Federal Register, Suite 700, 800 North Capitol Street, NW.,

Washington, DC, and the Department of Veterans Affairs, Office of

Regulations Management (02D), Room 1154, 810 Vermont Avenue, NW.,

Washington, DC 20420. Copies may be obtained from the National Fire

Protection Association, 1 Batterymarch Park, P.O. Box 9101, Quincy, MA

02269-9101. (For ordering information, call toll-free 1-800-344-3555.)

(b) Emergency power. (1) An emergency electrical power system must

be provided to supply power adequate for illumination of all exit signs

and lighting for the means of egress, fire alarm and medical gas

alarms, emergency communication systems, and generator task

illumination.

(2) The system must be the appropriate type essential electrical

system in accordance with the applicable provisions of the National

Fire Protection Association's NFPA 101, Life Safety Code (1997 edition)

and the NFPA 99, Standard for Health Care Facilities (1996 edition).

Incorporation by reference of these materials was approved by the

Director of the Federal Register in accordance with 5 U.S.C. 552(a) and

1 CFR part 51. The availability of these materials is described in

paragraph (a) of this section.

(3) When electrical life support devices are used, an emergency

electrical power system must also be provided for devices in accordance

with NFPA 99, Standard for Health Care Facilities (1996 edition).

(4) The source of power must be an on-site emergency standby

generator of sufficient size to serve the connected load or other

approved sources in accordance with the National Fire Protection

Association's NFPA 101, Life Safety Code (1997 edition) and the NFPA

99, Standard for Health Care Facilities (1996 edition). Incorporation

by reference of these materials was approved by the Director of the

Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

The availability of these materials is described in paragraph (a) of

this section.

(c) Space and equipment. Facility management must--

(1) Provide sufficient space and equipment in dining, health

services, recreation, and program areas to enable staff to provide

residents with needed services as required by these standards and as

identified in each resident's plan of care; and

(2) Maintain all essential mechanical, electrical, and patient care

equipment in safe operating condition.

(d) Resident rooms. Resident rooms must be designed and equipped

for adequate nursing care, comfort, and privacy of residents: (1)

Bedrooms must--

(i) Accommodate no more than four residents;

(ii) Measure at least 115 net square feet per resident in multiple

resident bedrooms;

[[Page 979]]

(iii) Measure at least 150 net square feet in single resident

bedrooms;

(iv) Measure at least 245 net square feet in small double resident

bedrooms; and

(v) Measure at least 305 net square feet in large double resident

bedrooms used for spinal cord injury residents. It is recommended that

the facility have one large double resident bedroom for every 30

resident bedrooms.

(vi) Have direct access to an exit corridor;

(vii) Be designed or equipped to assure full visual privacy for

each resident;

(viii) Except in private rooms, each bed must have ceiling

suspended curtains, which extend around the bed to provide total visual

privacy in combination with adjacent walls and curtains;

(ix) Have at least one window to the outside; and

(x) Have a floor at or above grade level.

(2) The facility management must provide each resident with--

(i) A separate bed of proper size and height for the safety of the

resident;

(ii) A clean, comfortable mattress;

(iii) Bedding appropriate to the weather and climate; and

(iv) Functional furniture appropriate to the resident's needs, and

individual closet space in the resident's bedroom with clothes racks

and shelves accessible to the resident.

(e) Toilet facilities. Each resident room must be equipped with or

located near toilet and bathing facilities. It is recommended that

public toilet facilities be also located near the resident's dining and

recreational areas.

(f) Resident call system. The nurse's station must be equipped to

receive resident calls through a communication system from--

(1) Resident rooms; and

(2) Toilet and bathing facilities.

(g) Dining and resident activities. The facility management must

provide one or more rooms designated for resident dining and

activities. These rooms must--

(1) Be well lighted;

(2) Be well ventilated;

(3) Be adequately furnished; and

(4) Have sufficient space to accommodate all activities.

(h) Other environmental conditions. The facility management must

provide a safe, functional, sanitary, and comfortable environment for

the residents, staff and the public. The facility must--

(1) Establish procedures to ensure that water is available to

essential areas when 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 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, 1710, 1741-1743)

Sec. 51.210 Administration.

A facility must be administered in a manner that enables it to use

its resources effectively and efficiently to attain or maintain the

highest practicable physical, mental, and psychosocial well being of

each resident.

(a) Governing body. (1) The State must have a governing body, or

designated person functioning as a governing body, that is legally

responsible for establishing and implementing policies regarding the

management and operation of the facility; and

(2) The governing body or State official with oversight for the

facility appoints the administrator who is--

(i) Licensed by the State where licensing is required; and

(ii) Responsible for operation and management of the facility.

(b) Disclosure of State agency and individual responsible for

oversight of facility. The State must give written notice to the Chief

Consultant, Geriatrics and Extended Care Strategic Healthcare Group

(114), VA Headquarters, 810 Vermont Avenue, NW, Washington, DC 20420,

at the time of the change, if any of the following change:

(1) The State agency and individual responsible for oversight of a

State home facility;

(2) The State home administrator; and

(3) The State employee responsible for oversight of the State home

facility if a contractor operates the State home.

(c) Required Information. The facility management must submit the

following to the director of the VA medical center of jurisdiction as

part of the application for recognition and thereafter as often as

necessary to be current or as specified:

(1) The copy of legal and administrative action establishing the

State-operated facility (e.g., State laws);

(2) Site plan of facility and surroundings;

(3) Legal title, lease, or other document establishing right to

occupy facility;

(4) Organizational charts and the operational plan of the facility;

(5) The number of the staff by category indicating full-time, part-

time and minority designation (annual at time of survey);

(6) The number of nursing home patients who are veterans and non-

veterans, the number of veterans who are minorities and the number of

non-veterans who are minorities (annual at time of survey);

(7) Annual State Fire Marshall's report;

(8) Annual certification from the responsible State Agency showing

compliance with Section 504 of the Rehabilitation Act of 1973 (Public

Law 93-112) (VA Form 10-0143A set forth at Sec. 58.14 of this chapter);

(9) Annual certification for Drug-Free Workplace Act of 1988 (VA

Form 10-0143 set forth at Sec. 58.15 of this chapter);

(10) Annual certification regarding lobbying in compliance with

Public Law 101-121 (VA Form 10-0144 set forth at Sec. 58.16 of this

chapter); and

(11) Annual certification of compliance with Title VI of the Civil

Rights Act of 1964 as incorporated in Title 38 CFR 18.1-18.3 (VA Form

10-0144A located at Sec. 58.17 of this chapter).

(d) Percentage of Veterans. The percent of the facility residents

eligible for VA nursing home care must be at least 75 percent veterans

except that the veteran percentage need only be more than 50 percent if

the facility was constructed or renovated solely with State funds. All

non-veteran residents must be spouses of veterans or parents all of

whose children died while serving in the armed forces of the United

States.

(e) Management Contract Facility. If a facility is operated by an

entity contracting with the State, the State must assign a State

employee to monitor the operations of the facility on a full-time

onsite basis.

(f) Licensure. The facility and facility management must comply

with applicable State and local licensure laws.

(g) Staff qualifications. (1) The facility management must employ

on a full-time, part-time or consultant basis those professionals

necessary to carry out the provisions of these requirements.

(2) Professional staff must be licensed, certified, or registered

in accordance with applicable State laws.

(h) Use of outside resources. (1) If the facility does not employ a

qualified professional person to furnish a specific service to be

provided by the facility, the facility management must have that

service furnished to residents by a person or agency outside the

facility under a written agreement described in paragraph (h)(2) of

this section.

(2) Agreements pertaining to services furnished by outside

resources must specify in writing that the facility

[[Page 980]]

management assumes responsibility for--

(i) Obtaining services that meet professional standards and

principles that apply to professionals providing services in such a

facility; and

(ii) The timeliness of the services.

(i) Medical director. (1) The facility management must designate a

primary care physician to serve as medical director.

(2) The medical director is responsible for--

(i) Participating in establishing policies, procedures, and

guidelines to ensure adequate, comprehensive services;

(ii) Directing and coordinating medical care in the facility;

(iii) Helping to arrange for continuous physician coverage to

handle medical emergencies;

(iv) Reviewing the credentialing and privileging process;

(v) Participating in managing the environment by reviewing and

evaluating incident reports or summaries of incident reports,

identifying hazards to health and safety, and making recommendations to

the administrator; and

(vi) Monitoring employees' health status and advising the

administrator on employee-health policies.

(j) Credentialing and Privileging. Credentialing is the process of

obtaining, verifying, and assessing the qualifications of a health care

practitioner, which may include physicians, podiatrists, dentists,

psychologists, physician assistants, nurse practitioners, licensed

nurses to provide patient care services in or for a health care

organization. Privileging is the process whereby a specific scope and

content of patient care services are authorized for a health care

practitioner by the facility management, based on evaluation of the

individual's credentials and performance.

(1) The facility management must uniformly apply credentialing

criteria to licensed practitioners applying to provide resident care or

treatment under the facility's care.

(2) The facility management must verify and uniformly apply the

following core criteria: current licensure; current certification, if

applicable, relevant education, training, and experience; current

competence; and a statement that the individual is able to perform the

services he or she is applying to provide.

(3) The facility management must decide whether to authorize the

independent practitioner to provide resident care or treatment, and

each credentials file must indicate that these criteria are uniformly

and individually applied.

(4) The facility management must maintain documentation of current

credentials for each licensed independent practitioner practicing

within the facility.

(5) When reappointing a licensed independent practitioner, the

facility management must review the individual's record of experience.

(6) The facility management systematically must assess whether

individuals with clinical privileges act within the scope of privileges

granted.

(k) Required training of nursing aides. (1) Nurse aide means any

individual providing nursing or nursing-related services to residents

in a facility who is not a licensed health professional, a registered

dietitian, or a volunteer who provide such services without pay.

(2) The facility management must not use any individual working in

the facility as a nurse aide whether permanent or not unless:

(i) That individual is competent to provide nursing and nursing

related services; and

(ii) That individual has completed a training and competency

evaluation program, or a competency evaluation program approved by the

State.

(3) Registry verification. Before allowing an individual to serve

as a nurse aide, facility management must receive registry verification

that the individual has met competency evaluation requirements unless

the individual can prove that he or she has recently successfully

completed a training and competency evaluation program or competency

evaluation program approved by the State and has not yet been included

in the registry. Facilities must follow up to ensure that such an

individual actually becomes registered.

(4) Multi-State registry verification. Before allowing an

individual to serve as a nurse aide, facility management must seek

information from every State registry established under HHS regulations

at 42 CFR 483.156 which the facility believes will include information

on the individual.

(5) Required retraining. If, since an individual's most recent

completion of a training and competency evaluation program, there has

been a continuous period of 24 consecutive months during none of which

the individual provided nursing or nursing-related services for

monetary compensation, the individual must complete a new training and

competency evaluation program or a new competency evaluation program.

(6) Regular in-service education. The facility management must

complete a performance review of every nurse aide at least once every

12 months, and must provide regular in-service education based on the

outcome of these reviews. The in-service training must--

(i) Be sufficient to ensure the continuing competence of nurse

aides, but must be no less than 12 hours per year;

(ii) Address areas of weakness as determined in nurse aides'

performance reviews and may address the special needs of residents as

determined by the facility staff; and

(iii) For nurse aides providing services to individuals with

cognitive impairments, also address the care of the cognitively

impaired.

(l) Proficiency of Nurse aides. The facility management must ensure

that nurse aides are able to demonstrate competency in skills and

techniques necessary to care for residents' needs, as identified

through resident assessments, and described in the plan of care.

(m) Level B Requirement Laboratory services. (1) The facility

management must provide or obtain laboratory services to meet the needs

of its residents. The facility is responsible for the quality and

timeliness of the services.

(i) If the facility provides its own laboratory services, the

services must meet all applicable certification standards, statutes,

and regulations for laboratory services.

(ii) If the facility provides blood bank and transfusion services,

it must meet all applicable certification standards, statutes, and

regulations.

(iii) If the laboratory chooses to refer specimens for testing to

another laboratory, the referral laboratory must be certified in the

appropriate specialities and subspecialties of services and meet

certification standards, statutes, and regulations.

(iv) The laboratory performing the testing must have a current,

valid CLIA number (Clinical Laboratory Improvement Amendments of 1988).

The facility management must provide VA surveyors with the CLIA number

and a copy of the results of the last CLIA inspection.

(v) Such services must be available to the resident seven days a

week, 24 hours a day.

(2) The facility management must--

(i) Provide or obtain laboratory services only when ordered by the

primary physician;

(ii) Promptly notify the primary physician of the findings;

(iii) Assist the resident in making transportation arrangements to

and from the source of service, if the resident needs assistance; and

[[Page 981]]

(iv) File in the resident's clinical record laboratory reports that

are dated and contain the name and address of the testing laboratory.

(n) Radiology and other diagnostic services. (1) The facility

management must provide or obtain radiology and other diagnostic

services to meet the needs of its residents. The facility is

responsible for the quality and timeliness of the services.

(i) If the facility provides its own diagnostic services, the

services must meet all applicable certification standards, statutes,

and regulations.

(ii) If the facility does not provide its own diagnostic services,

it must have an agreement to obtain these services. The services must

meet all applicable certification standards, statutes, and regulations.

(iii) Radiologic and other diagnostic services must be available 24

hours a day, seven days a week.

(2) The facility must--

(i) Provide or obtain radiology and other diagnostic services when

ordered by the primary physician;

(ii) Promptly notify the primary physician of the findings;

(iii) Assist the resident in making transportation arrangements to

and from the source of service, if the resident needs assistance; and

(iv) File in the resident's clinical record signed and dated

reports of x-ray and other diagnostic services.

(o) Clinical records. (1) The facility management must maintain

clinical records on each resident in accordance with accepted

professional standards and practices that are--

(i) Complete;

(ii) Accurately documented;

(iii) Readily accessible; and

(iv) Systematically organized.

(2) Clinical records must be retained for--

(i) The period of time required by State law; or

(ii) Five years from the date of discharge when there is no

requirement in State law.

(3) The facility management must safeguard clinical record

information against loss, destruction, or unauthorized use;

(4) The facility management must keep confidential all information

contained in the resident's records, regardless of the form or storage

method of the records, except when release is required by--

(i) Transfer to another health care institution;

(ii) Law;

(iii) Third party payment contract;

(iv) The resident or;

(v) The resident's authorized agent or representative.

(5) The clinical record must contain--

(i) Sufficient information to identify the resident;

(ii) A record of the resident's assessments;

(iii) The plan of care and services provided;

(iv) The results of any pre-admission screening conducted by the

State; and

(v) Progress notes.

(p) Quality assessment and assurance. (1) Facility management must

maintain a quality assessment and assurance committee consisting of--

(i) The director of nursing services;

(ii) A primary physician designated by the facility; and

(iii) At least 3 other members of the facility's staff.

(2) The quality assessment and assurance committee--

(i) Meets at least quarterly to identify issues with respect to

which quality assessment and assurance activities are necessary; and

(ii) Develops and implements appropriate plans of action to correct

identified quality deficiencies; and

(3) Identified quality deficiencies are corrected within an

established time period.

(4) The VA Under Secretary for Health may not require disclosure of

the records of such committee unless such disclosure is related to the

compliance with requirements of this section.

(q) Disaster and emergency preparedness. (1) The facility

management must have detailed written plans and procedures to meet all

potential emergencies and disasters, such as fire, severe weather, and

missing residents.

(2) The facility management must train all employees in emergency

procedures when they begin to work in the facility, periodically review

the procedures with existing staff, and carry out unannounced staff

drills using those procedures.

(r) Transfer agreement. (1) The facility management must have in

effect a written transfer agreement with one or more hospitals that

reasonably assures that--

(i) Residents will be transferred from the nursing home to the

hospital, and ensured of timely admission to the hospital when transfer

is medically appropriate as determined by the primary physician; and

(ii) Medical and other information needed for care and treatment of

residents, and, when the transferring facility deems it appropriate,

for determining whether such residents can be adequately cared for in a

less expensive setting than either the nursing home or the hospital,

will be exchanged between the institutions.

(2) The facility is considered to have a transfer agreement in

effect if the facility has an agreement with a hospital sufficiently

close to the facility to make transfer feasible.

(s) Compliance with Federal, State, and local laws and professional

standards. The facility management must operate and provide services in

compliance with all applicable Federal, State, and local laws,

regulations, and codes, and with accepted professional standards and

principles that apply to professionals providing services in such a

facility. This includes the Single Audit Act of 1984 (Title 31, Section

7501 et seq.) and the Cash Management Improvement Acts of 1990 and 1992

(Public Laws 101-453 and 102-589, see 31 USC 3335, 3718, 3720A, 6501,

6503)

(t) Relationship to other Federal regulations. In addition to

compliance with the regulations set forth in this subpart, facilities

are obliged to meet the applicable provisions of other Federal laws and

regulations, including but not limited to those pertaining to

nondiscrimination on the basis of race, color, national origin,

handicap, or age (38 CFR part 18); protection of human subjects of

research (45 CFR part 46), section 504 of the Rehabilitation Act of

1993, Public Law 93-112; Drug-Free Workplace Act of 1988, 38 CFR part

44, section 44.100 through 44.420; section 319 of Public Law 101-121;

Title VI of the Civil Rights Act of 1964, 38 CFR 18.1-18.3. Although

these regulations are not in themselves considered requirements under

this part, their violation may result in the termination or suspension

of, or the refusal to grant or continue payment with Federal funds.

(u) Intermingling. A building housing a facility recognized as a

State home for providing nursing home care may only provide nursing

home care in the areas of the building recognized as a State home for

providing nursing home care.

(v) VA Management of State Veterans Homes. Except as specifically

provided by statute or regulations, VA employees have no authority

regarding the management or control of State homes providing nursing

home care.

(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743, 8135)

11. Part 58 is added to read as follows:

PART 58--FORMS

Sec.

58.10 VA Form 10-3567--State Home Inspection: Staffing Profile.

58.11 VA Form 10-5588--State Home Report and Statement of Federal

Aid Claimed.

[[Page 982]]

58.12 VA Form 10-10EZ--Application for Health Benefits.

58.13 VA Form 10-10SH--State Home Program Application for Veteran

Care--Medical Certification.

58.14 VA Form 10-0143A--Statement of Assurance of Compliance with

Section 504 of The Rehabilitation Act of 1973.

58.15 VA Form 10-0143--Department of Veterans Affairs Certification

Regarding Drug-Free Workplace Requirements for Grantees Other Than

Individuals.

58.16 VA Form 10-0144--Certification Regarding Lobbying.

58.17 VA Form 10-0144A--Statement of Assurance of Compliance with

Equal Opportunity Laws.

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

BILLING CODE 8320-01-C

[[Page 983]]

Sec. 58.10 VA Form 10-3567--State Home Inspection Staffing Profile.

[GRAPHIC] [TIFF OMITTED] TR06JA00.000

[[Page 984]]

[GRAPHIC] [TIFF OMITTED] TR06JA00.001

[[Page 985]]

[GRAPHIC] [TIFF OMITTED] TR06JA00.002

[[Page 986]]

Sec. 58.11 VA Form 10-5588--State Home Report and Statement of Federal

Aid Claimed.

[GRAPHIC] [TIFF OMITTED] TR06JA00.003

[[Page 987]]

[GRAPHIC] [TIFF OMITTED] TR06JA00.004

[[Page 988]]

Sec. 58.12 VA Form 10-10EZ--Application for Health Benefits

[GRAPHIC] [TIFF OMITTED] TR06JA00.005

[[Page 989]]

[GRAPHIC] [TIFF OMITTED] TR06JA00.006

[[Page 990]]

Sec. 58.13 VA Form 10-10SH--State Home Program Application for Veteran

Care Medical Certification.

[GRAPHIC] [TIFF OMITTED] TR06JA00.007

[[Page 991]]

[GRAPHIC] [TIFF OMITTED] TR06JA00.008

[[Page 992]]

[GRAPHIC] [TIFF OMITTED] TR06JA00.009

[[Page 993]]

Sec. 58.14 VA Form 10-0143A--Statement of Assurance of Compliance with

Section 504 of The Rehabilitation Act of 1973.

[GRAPHIC] [TIFF OMITTED] TR06JA00.010

[[Page 994]]

Sec. 58.15 VA Form 10-0143--Department of Veterans Affairs

Certification Regarding Drug-Free Workplace Requirements for Grantees

Other Than Individuals.

[GRAPHIC] [TIFF OMITTED] TR06JA00.011

[[Page 995]]

[GRAPHIC] [TIFF OMITTED] TR06JA00.012

[[Page 996]]

Sec. 58.16 VA Form 10-0144--Certification Regarding Lobbying.

[GRAPHIC] [TIFF OMITTED] TR06JA00.013

[[Page 997]]

Sec. 58.17 VA Form 10-0144A--Statement of Assurance of Compliance with

Equal Opportunity Laws.

[GRAPHIC] [TIFF OMITTED] TR06JA00.014

[FR Doc. 00-60 Filed 1-5-00; 8:45 am]

BILLING CODE 8320-01-C