thursday january 6, 2000 - veterans affairs962 federal register/vol. 65, no. 4/thursday, january 6,...

Thursday

January 6, 2000

Part III

Department ofVeterans Affairs38 CFR Parts 17 et al.Per Diem for Nursing Home Care ofVeterans in State Homes; Final Rule

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962 Federal Register / Vol. 65, No. 4 / Thursday, January 6, 2000 / Rules and Regulations

DEPARTMENT OF VETERANSAFFAIRS

38 CFR Parts 17, 51, and 58

RIN 2900–AE87

Per Diem for Nursing Home Care ofVeterans in State Homes

AGENCY: Department of Veterans Affairs.ACTION: Final rule.

SUMMARY: This document amendsregulations regarding the payment of perdiem to State homes that providenursing home care to eligible veterans.The intended effect of the final rule isto ensure that veterans receive highquality care in State homes.DATES: Effective date: February 7, 2000.

The incorporation by reference ofcertain publications listed in theregulations is approved by the Directorof the Federal Register as of February 7,2000.FOR FURTHER INFORMATION CONTACT: L.Nan Stout, Chief, State Home Per DiemProgram (114), Veterans HealthAdministration, 202–273–8538.SUPPLEMENTARY INFORMATION: In adocument published in the FederalRegister on November 9, 1998 (63 FR60227), we proposed to establish a newpart 51 setting forth a mechanism forpaying per diem to State homesproviding nursing home care to eligibleveterans. We provided a 60-daycomment period which ended January8, 1999. We received responses from 20commenters. The issues raised in thecomments are discussed below.

Based on the rationale set forth in theproposed rule and in this document, weare adopting the provisions of theproposed rule as a final rule withchanges explained below. Under thefinal rule, VA will pay per diem to aState for providing nursing home care toeligible veterans in a facility if theUnder Secretary for Health recognizesthe facility as a State home based on acurrent VA certification that the facilitymeets the standards set forth in subpartD.

Section 51.2 Definitions

We proposed to define ‘‘physicianassistant’’ to mean a person who meetsthe applicable State requirements forphysician assistants, is currentlycertified by the National Commission onCertification of Physician Assistants(NCCPA) as a physician assistant, andhas an individualized written scope ofpractice that determines theauthorization to write medical orders,prescribe medications and other clinicaltasks under appropriate physician

supervision which is approved by theprimary care physician.

One commenter asserted that thedefinition should not include arequirement that a physician assistantbe currently certified by the NationalCommission on Certification ofPhysician Assistants. In this regard, thecommenter argued that the impositionof a national certification requirementwould be cumbersome to administerand create confusion regarding whichphysician assistants regulated by theState could provide services to veteransin State homes. No changes are madebased on this comment. We believe thiscertification is necessary to ensure thatphysician assistants meet uniformstandards necessary to ensure that theyare qualified to provide adequate care ata State nursing home facility. In ourview, this will not cause significantadministrative work. The State homemerely will have to determine whetherthe individual has the appropriatecertification.

Under the proposed definition of‘‘State home,’’ a State home mayprovide domiciliary care, nursing homecare, adult day health care, and hospitalcare. Also, under the definition, hospitalcare may be provided only when theState home also provides domiciliaryand/or nursing home care.

One commenter asserted thedefinition should replace ‘‘domiciliarycare’’ with ‘‘assisted living.’’ No changesare made based on this comment. Thestatutory authority for levels of care atState homes includes domiciliary care,but not assisted living. (See 38 U.S.C.1741–1743).

Section 51.10 Per Diem based onRecognition and Certification

The provisions of § 51.10 state thatafter recognition has been granted, VAwill continue to pay per diem to a Statefor providing nursing home care toeligible veterans in such a facility for atemporary period based on acertification that the facility and facilitymanagement provisionally meet thestandards of subpart D. One commenterasked how long the temporary periodwould be if a facility receives a‘‘provisionally meets’’ certification.

The temporary period related toprovisionally meeting the standardscould vary. Under the provision of§ 51.30(a)(2) the temporary period isbased on time frames provided by theState home in a written plan ofcorrection and approved by the directorof VA medical center of jurisdiction.

Section 51.30 Recognition andCertification

The provisions of § 51.30 state thatthe Under Secretary for Health willmake the determination regardingrecognition and the initialdetermination regarding certification,after receipt of a tentative determinationfrom the director of the VA medicalcenter of jurisdiction regarding whether,based on a VA survey, the facility andfacility management meet or do notmeet the standards of subpart D.

Commenters asserted that we shouldestablish a time limit for thedetermination for recognition, initialcertification, notification regardingfailure to meet standards, and re-certification by VA. No changes aremade based on these comments. We arecommitted to making decisions asquickly as possible. However, VA musttake whatever time is necessary to makeaccurate decisions. Section 51.30provides for recognition andcertification based on surveysestablishing that the standards insubpart D are met.

One commenter asserted that § 51.30is reactive and punitive by anticipatingdeficiencies and precluding adeficiency-free review. The commenterfurther stated that a paper compliancereview should be established for theyear following a review that did not citedeficiencies. No changes are made basedon these comments. We believe that theyearly review must be adequate toensure compliance with the provision insubpart D. This will require more thana paper review regardless of previouscompliance.

With respect to the provisions of§ 51.30(a)(2), one commenter inquiredabout when a facility would bedetermined to ‘‘provisionally’’ meet thestandards and continue to receive perdiem. In this regard, the provisions of§ 51.30(a)(2) allow for provisionalcertification only if all of the followingare met: the facility or facilitymanagement does not meet one or moreof the standards in subpart D, that thedeficiencies do not jeopardize the healthor safety of the residents, and that thefacility management and the directorhave agreed to a plan of correction toremedy the deficiencies in a specifiedamount of time (not more time than theVA medical center of jurisdictiondirector determines is reasonable forcorrecting the specific deficiencies). Ifthe facility does not meet one or moreof the standards in subpart D and alsodoes not meet the criteria forprovisional certification, VA must takeaction to withhold per diem paymentsand withdraw recognition.


963Federal Register / Vol. 65, No. 4 / Thursday, January 6, 2000 / Rules and Regulations

One commenter asserted that the finalrule should provide for an informaldispute resolution process regarding theexistence and scope of potentialdeficiencies. No changes are made basedon this comment. The authority andresponsibility for the per diem programhave been delegated solely to VA bystatute. (See 38 U.S.C. 1741–1743).There is no basis for delegating thisauthority outside VA.

One commenter questioned whetherVeterans Integrated Service Network(VISN) entities would conduct annualcertification surveys. No changes aremade based on this comment. Thedirector of the VA Medical Center ofjurisdiction is responsible for the annualcertification survey and may delegateany qualified VA official to conduct thesurvey.

One commenter asserted that VAshould accept Joint Commisson onAccreditation Healthcare Organizations(JCAHO) and Medicaid/Medicareinspections in lieu of annual VAinspections. The commenter alsoasserted that State homes that arelicensed as nursing homes by the Stateshould be exempt from annual VAinspections. The commenter furtherasserted that annual VA inspectionsshould occur only if there is reason tobelieve that a facility is not substantiallyin compliance with VA regulations. Nochanges are made based on thiscomment. It is solely VA’s responsibilityto ensure that VA’s regulations are met.Further, non-VA inspections do notcover all of the standards in the finalrule and compliance with Statestandards would not be sufficient toensure compliance with all of thestandards in the final rule. Furthermore,we believe that in order to ensurecompliance with our standards, VAmust conduct reviews at least on ayearly basis. Even so, under § 51.30(a)the judgement of VA officialsconcerning compliance with therequirements of the final rule may bemade in part based on reviews of reportsof inspection by other entities.

Section 51.31 Automatic Recognition

Under the final rule VA would payper diem to a State for providingnursing home care to eligible veterans ina facility if the Under Secretary forHealth recognizes the facility as a Statehome based on a current VAcertification that the facility meets thestandards set forth in subpart D. Onecommenter questioned whetherpreviously recognized facilities wouldbe required to submit a new request forrecognition and certification under thefinal rule.

We have added a new § 51.31 toexplain that a facility that already isrecognized by a VA as a State home fornursing home care at the time this partbecomes effective, automatically willcontinue to be recognized as a Statehome for nursing home care. This newsection further explains that eventhough the facility would continue to berecognized, it is subject to all of theprovisions of this part that apply tofacilities that have achieved recognition,including the provisions forwithholding payment and withdrawal ofrecognition.

Section 51.40 Monthly PaymentThe provisions of § 51.40(a)(1) specify

that during fiscal year 2000 VA will paymonthly one-half of the cost of eacheligible veteran’s nursing home care foreach day the veteran is in a facilityrecognized as a State home for nursinghome care, not to exceed $50.55 perdiem. Five commenters asserted that thecurrently applicable rate should not beincluded in the regulations. In thisregard, they were concerned that a delayin publishing changed amounts coulddelay the receipt of increases in perdiem. No changes are made based onthese comments. The amount of perdiem to be paid is based on provisionsof 38 U.S.C. 1741. We intend to changethe per diem amount in the regulationsas quickly as possible after there is abasis for doing so.

The provisions of § 51.40(a)(5) statethat as a condition for receivingpayment of per diem the State mustsubmit to the VA medical center ofjurisdiction for each veteran completedVA Forms 10–10EZ, Application forMedical Benefits, and 10–10SH, StateHome Program Application for Care—Medical Certification, at the time ofadmission and with any request for achange in the level of care (domiciliary,hospital, or adult day health care). The10–10SH form provides that it is to becompleted by the ‘‘primary physicianassigned’’ at the State facility. Onecommenter suggested that any physician(State, VA, or personal) should beallowed to complete the form. Theyfurther asserted that this could be ahardship for veterans ‘‘who live aroundthe State’’. No changes are made basedon this comment. The purpose of theforms, among other things, is to obtaininformation regarding whether theveteran has been admitted to thenursing home as a resident and whetherthe veteran meets eligibility criteria forper diem payments. It was not intendedto be used by the State facility for anearlier State determination concerningwhether a veteran should become aresident at the facility.

The commenter further questionedwhether VA would conduct anyscreening of applicants for admission toState homes. The commenter furtherquestioned whether the facility needs toobtain prior approval before admitting aveteran as a resident or whether theycan assume approval based on thesubmission of the appropriate forms. Nochanges are made based on thesecomments. In our view, the provisionsfor determining eligibility for placementfor nursing home care are sufficientlyclear so that State homes can makeappropriate determinations withoutprior approval of residents by VA.

The provisions of § 51.40(a)(5) alsoprovide that if the facility is eligible toreceive per diem payments for a veteran,VA will pay per diem from the date ofreceipt of the completed forms requiredby this paragraph, except that VA willpay per diem from the day on which theveteran was admitted to the facility ifthe completed forms are received within10 days after admission. Onecommenter asserted that the 10-dayrequirement is too short becauseinformation required by form 10–10EZ‘‘may be difficult to get.’’ No changes aremade based on this comment. Theinformation requested is the basicinformation required for eligibilitydeterminations. We do not see anyreason why the information requestedcannot be obtained at the time theveteran is admitted to a State home.

As noted above, § 51.40(a)(5) providesthat if the forms are submitted to the VAmedical center of jurisdiction within 10days after admission, VA will pay perdiem from the day on which the veteranwas admitted. One commentersuggested that VA clarify who in VAmust receive the completed forms. Nochanges are made based on thiscomment. All that is necessary is thatthe forms be received by the VA medicalcenter of jurisdiction and if receivedwithin the 10 day period, therequirement will be met. Officials at themedical center will ensure that theforms are sent to the appropriate VAofficials for processing.

A veteran may be VA approved fornursing home care, then be approved fora different level of care (domiciliary,hospital, or adult day health care) for aperiod of time, and then be readmittedto nursing home care. One commenterasserted that the initial approval shouldbe sufficient for any subsequentreadmission. No changes are madebased on this comment. The provisionsof § 51.40(a)(5) state that informationmust be submitted for each admission.This is necessary to ensure that theveteran still meets VA requirements for



payment of per diem for that level ofcare.

Section 51.50 Eligible VeteransPer diem payments may be paid only

for eligible veterans. Section 51.50specifies which individuals are eligibleveterans. This includes paragraph (j)which consists of veterans who agree topay to the United States the applicableco-payment determined under 38 U.S.C.1710(f) and 1710(g). Four commentersasserted that paragraph (j) should bedeleted. No changes are made based onthese comments. The eligibilityrequirements are established by statute(see 38 U.S.C. 1710(a)). Accordingly, therequirement for this category of eligibleveterans cannot be changed byregulation.

Section 51.70 Resident RightsThe advance directive provisions of

§ 51.70(b)(7) of this rule and theprovisions of a separate VA proposedrulemaking regarding advanceddirectives (63 FR 58678) would notprohibit an advance directive frombeing honored at a VA facility if it hasnot been signed by a notary public orJustice of the Peace. One commenternoted that such an advance directivemight not be effective if the veteranwere moved to a State home in whicha State law requires the use of a notarypublic or Justice of the Peace. Nochanges are made based on thiscomment. Since VA cannot reasonablyadminister all State laws regardingadvanced directives, we believe theresponsibility for ensuring thatadvanced directives are effective inState homes rests within State homeofficials and not VA.

One commenter asserted that§ 51.70(b)(7) presents a dilemma. Thecommenter asserted that if a person isincapacitated and unable to receive/understand information on advanceddirectives and does not have a power ofattorney, he/she would be unable to giveinformed consent to moving to the homein the first place and their right to ‘‘self-determination’’ § 51.70(7) would beviolated. No changes are made based onthis comment. The provisions of§ 51.70(7) cover the issue ofincapacitation. Section 51.70(7) states:‘‘If an individual is incapacitated at thetime of admission and is unable toreceive information (due to theincapacitating conditions) or articulatewhether or not he or she has executedan advance directive, the facility maygive advance directive information tothe individual’s family or surrogate inthe same manner that it issues othermaterials about policies and proceduresto the family of the incapacitated

individual or to a surrogate or otherconcerned persons in accordance withState laws.’’

The provisions of § 51.70(c)(1) statethat the residents have a right to managetheir financial affairs, and the facilityand facility management may notrequire residents to deposit theirpersonal funds with the facility.Commenters asserted that nursing homefacilities should be allowed to requireresidents to deposit funds with thefacility for payment of personal items.No changes are made based on thesecomments. Although many residentsmay choose to deposit an amount withthe facility for personal items, webelieve that residents should be allowedto pay for their personal items by checkor other means they deem appropriate.

One commenter suggested that aresident who insists on carrying largesums of cash should be required to signa waiver for lost or misplaced funds. Nochanges are made in § 51.70(c)(3) basedon this comment. The final rule doesnot prohibit nursing homes fromestablishing such a policy.

The provisions of proposed§ 51.70(c)(3) stated that the facilitymanagement must deposit anyresidents’ personal funds in excess of$50 in an interest bearing account (oraccounts) that is separate from any ofthe facility’s operating accounts, andthat credits all interest earned on theresident’s funds to that account. (Inpooled accounts, there must be aseparate accounting for each resident’sshare.) One commenter asserted that anyresident’s personal funds held byfacility management should be allowedto accrue interest for projects for thebenefit of all residents if allowed byState law. No changes are made basedon this comment. In our view, theinterest generated from personal fundsbelongs to the owner of the funds and,therefore, should be held for the owner.

One commenter suggested that the$50 threshold amount should be raisedto $100. We agree and have changed thefinal rule accordingly. The largeramount will allow more flexibility forveterans and State homes and will stillprovide a reasonable threshold forrequiring amounts to be placed ininterest bearing accounts.

The provisions of § 51.70(c)(4)(ii) statethat individual financial records mustbe available through quarterlystatements and on request from theresident or legal representative. Onecommenter asserted that there is noneed for any reports until requested. Nochanges are made based on thiscomment. We believe that residents whowould not otherwise review theiraccounts would be more likely to do so

if statements were received on aperiodic basis. Further, this will help toensure that any differences would beresolved in a timely manner.

The provisions of proposed§ 51.70(c)(5) stated that upon the deathof a resident with personal fundsdeposited with the facility, the facilitymanagement must convey within 30days the resident’s funds, and a finalaccounting of those funds, to theindividual or probate jurisdictionadministering the resident’s estate. Onecommenter asserted that sometimes thecost to the family or interested partiesto probate an estate may be prohibitivecompared to what is left in the estate.This commenter indicated that at leastone State allows for the transfer ofbalances to an appropriate familymember. We have changed our final ruleto allow for this possibility.

The provisions of § 51.70(i) state thata State home resident must have theright to privacy in writtencommunications, including the right tosend and promptly receive mail that isunopened. One commenter stated thatfacility officials need to be allowed toopen VA and Social Security mail withpermission of the veteran. Thecommenter further asserted thatotherwise the veteran might missappointments. No changes are madebased on this comment. The final rulemerely states that a veteran has the rightto send and receive mail that isunopened. This does not prohibit anagreement between the facility and theresident to allow the facility to open theveteran’s mail.

The provisions of § 51.70(j)(1) statethat a resident must have the right to,and the facility management mustprovide, immediate access to aphysician of the resident’s choice. Onecommenter asserted that a physician,acting as a physician on behalf of aresident should not be allowed toprovide care to a resident in the nursinghome if the physician is not approvedby the Medical Director to practice inthe nursing home. The final rule at§ 51.210(j) already requires physicianspracticing at the nursing home to becredentialed and privileged by thenursing home. The provisions of§ 51.70(j)(1) are amended to clarify thisissue.

The provisions of § 51.70(l) states thatthe resident has the right to retain anduse personal possessions, includingsome furnishings, and appropriateclothing, as space permits, unless to doso would infringe upon the rights orhealth and safety of other residents. Onecommenter asserted that the retention ofpersonal furnishings should be at thesole discretion of the facility. No



changes are made based on thiscomment. The final rule allows theresident to retain and use personalpossessions ‘‘as space permits.’’ Thisgives the facility the needed discretionto ensure order within the facility.

Section 51.80 Admission, Transfer andDischarge Rights

The provisions of § 51.80(a)(1) statethat transfer and discharge includesmovement of a resident to a bed outsideof the facility whether that bed is in thesame physical plant or not. Transfer anddischarge does not refer to movement ofa resident to a bed within the samefacility. One commenter asserted thatthe regulations were unclear as whetherthere would be transfer or discharge ifa resident were moved from one level ofcare to another level of care in the samebuilding or in the same complex ofbuildings. No changes are made basedon this comment. The provisions of§ 51.80(a)(1) read in conjunction withthe definition of facility in § 51.2 clearlyprovide that a movement outside of thefacility is any movement outside of thenursing home portion of the complex.

Section 51.100 Quality of LifeThe provisions of § 51.100(g)(1)(2)(i)

and (ii) state that the facilitymanagement must provide an ongoingprogram of activities designed to meet,in accordance with the comprehensiveassessment, the interests and thephysical, mental, and psychosocialwell-being of each resident. Theprovisions require that the activitiesprogram be directed by a qualifiedprofessional who is a qualifiedtherapeutic recreation specialist or anactivities professional who is licensedor registered, if applicable, by the Statein which practicing; and is certified asa therapeutic recreation specialist or asan activities professional by arecognized accrediting body. Twocommenters asserted that theseprovisions are too stringent and thatqualified personnel would be prohibitedfrom working at the facility. No changesare made based on these comments. Webelieve these are the minimal criterianecessary to ensure that the ongoingprogram of activities is sufficient tomeet, in accordance with thecomprehensive assessment, the interestsand the physical, mental, andpsychological well-being of eachveteran.

The proposed provisions of§ 51.100(h)(3) stated that a social workerat a facility must have the following: abachelor’s degree in social work from aschool accredited by the Council ofSocial Work Education and a socialwork license from the State in which the

State home is located, if offered by theState, and a minimum of one year ofsupervised social work experience,under the supervision of a social workerwith a master’s degree, in a health caresetting working directly withindividuals. Six commenters opposedthe provision that would require theexperience to be under the supervisionof a social worker with a master’sdegree. We agree and eliminated thisprovision. We believe that a socialworker can provide adequate servicewithout meeting such requirement.

The provisions of § 51.100(i)(6) statethat facility management must providecomfortable and safe temperature levels.In this regard, it states that facilitiesmust maintain a temperature range of71–81 degrees Fahrenheit. Onecommenter asserted that thisrequirement should be waived in olderfacilities where central air conditioningis not available. No changes are madebased on this comment. The specifiedtemperatures are necessary to ensurethat residents are comfortable and safe.

Section 51.110 Resident AssessmentThe provisions of § 51.110(b)(1)(iii)

state that the facility management mustmake a comprehensive assessment of aresident’s needs using the Health CareFinancing Administration Long TermCare Resident Assessment InstrumentVersion 2.0; and describing theresident’s capability to perform dailylife functions, strengths, performances,needs as well as significant impairmentsin functional capacity. All nursinghomes must be in compliance with thisstandard by no later than January 1,2000. Two commenters asserted that thecompliance date of January 1, 2000,must be extended. The commentersessentially asserted that more time isneeded to computerize the process andtrain staff. No changes are made basedon these comments. Most facilitiesreport that they already are incompliance. Compliance is needed toensure that facilities have standardizedcomprehensive assessments of residentneeds.

Section 51.120 Quality of CareThe proposed provisions of

§ 51.120(a)(3) state that the facilitymanagement must report sentinel eventsto the director of the VA medical centerof jurisdiction, VA Network Director(10N 1–22), Chief Network Officer(10N), and Chief Consultant, Geriatricsand Extended Care Strategic HealthcareGroup (114) within 24 hours ofidentification. Nine commentersobjected to reporting the sameinformation to so many VA entities.They asserted that they should have to

report only to one VA entity and thatVA could report internally as it sees fit.We agree and have changed the finalrule to provide for reporting to the VAmedical center of jurisdiction. We alsohave added language requiring the VAmedical center to immediately report tothe other listed VA entities.

One commenter also asserted that thereport should be required to besubmitted within 7 days rather thanwith 24 hours of identification of theevent. No changes are made based onthis comment. The sentinel events oftenreflect need for immediate review.

Section 51.130 Nursing ServicesThe provisions of § 51.130(d) state

that the facility management mustprovide nursing services to ensure thatthere is direct care nurse staffing of noless than 2.5 hours per patient per 24hours, 7 days per week. One commenterquestioned whether managers would beincluded for calculating the 2.5 hours.No changes are made based on thiscomment. The provisions of paragraph(d) made clear that the 2.5 hours consistonly of ‘‘direct care nurse staffing’’.Supervisory nurses normally would notmeet these criteria.

One commenter questioned whetherthe 2.5 hours requirement would bebased on a facility-wide average orbased on each individual nursingstation. This was intended to apply toall or portion of a facility where thedirect care nurses would haveimmediate access to nursing home care.In our view, this would beaccomplished if the 2.5 hoursrequirement were met for all of anybuilding providing nursing home care.We have clarified the final ruleaccordingly.

In the past, we administrativelyimposed a 2.0 hours per patient per dayrequirement. One commenter assertedthat we should retain the 2.0 hourrequirement. No changes are based onthis comment. Although the 2.0 hourrequirement was appropriate in the past,there has been a significant increase inpatient acuity that requires the increaseto 2.5 hours.

One commenter asserted that the 2.5hours requirement should not becomeeffective until January 2000. No changesare based on this comment. Almost allState homes providing nursing homecare currently meet the 2.5 hoursrequirement. Further, we believe this isa minimal requirement for ensuringadequate care for nursing home carepatients.

One commenter asserted that the 2.5hours requirement should be allowed toinclude paid staff break times. Nochanges based on this comment. Breaks,



including lunch, are not included. The2.5 hours constitute minimum criteriafor ensuring the availability of adequatecare.

One commenter asserted that anincrease from the 2.0 hours requirementto a 2.5 hours requirement constitutesan unfunded mandate and,consequently, is subject to Federalunfunded mandate requirements. Nochanges are made based on thiscomment. The provisions of 2 U.S.C.658 exclude from any Federal unfundedmandate requirements any regulationthat imposes a duty on a State as acondition of Federal Assistance and(with exceptions not relevant to thiscare) any regulation that imposes a dutyarising from participation in a voluntaryFederal Program.

One commenter questioned whethercertain circumstances might require 3.0hours per patient. No changes are madebased on this comment. The 2.5 hoursrequirement is a minimum requirement.The provision of paragraph (e) alsorequire that nursing care must beadequate for meeting the standards ofpart D. A high patient acuity couldrequire more nursing care than those setforth as minimum standards.

The provisions of § 51.130(e) statethat nurse staffing must be based on astaffing methodology that applies case-mix and is adequate for meeting thestandards of this part. One commenterargued that the final rule shouldestablish a specific standard for staffingmethodology. No changes are madebased on this comment. Although thestaffing methodology must apply casemix and be adequate for meeting thestandards of subpart D, we believe thatseveral methodologies would beadequate for meeting the requirement.

Section 51.140 Dietary ServicesThe provisions of § 51.140(f)(2) state

that there must be no more than 14hours between a substantial eveningmeal and breakfast the following day,except that the 14 hour period may beextended to 16 hours if a resident groupagrees to the extension and a nourishingsnack is provided at bedtime. Twocommenters noted that some residentswish to sleep late and have a latebreakfast that may exceed the 14 hours.They indicated that the breakfast mealshould merely be available within the14 hour time period. We agree and havemade appropriate changes to the finalrule.

Section 51.150 Physician ServicesThe provisions of § 51.150(d) state

that the facility management mustprovide or arrange for the provision ofphysician services 24 hours a day, 7

days per week, in case of an emergency.One commenter asserted that physicianassistants should be able to act forphysicians within their scope ofpractice. No changes are made based onthis comment. This must be limited tophysicians since a need could arise thatwould be beyond the scope of practiceof physician assistants.

Under the provisions of proposed§ 51.150(e) the primary physician maynot delegate a task when the regulationsspecify that the primary physician mustperform it personally or when thedelegation is prohibited under State lawor by the facility’s own policies.Otherwise, under these provisions aprimary physician may delegate tasks toa certified physician assistant or acertified nurse practitioner, or a clinicalnurse specialist who is acting within thescope of practice as defined by State lawand who is under the supervision of thephysician. These provisions alsoinclude a note stating that a certifiedclinical nurse specialist with experiencein long term care is preferred. Twocommenters asserted that the noteshould be clarified to reflect thatexperience in long term care is preferredfor physician assistants and certifiednurse practitioners as well as clinicalnurse specialist. We have amended thenote accordingly.

Section 51.180 Pharmacy ServicesThe provisions of § 51.180 state that

the facility management must employ orobtain the services of a pharmacistlicensed in a State in which the facilityis located. One commenter asserted thatthe final rule should allow facilities toobtain the services of a VA pharmacistunder a VA contract arrangement evenif the VA pharmacist is not licensed inthe State. We agree and have madeappropriate changes. The purpose ofthis limitation is to ensure that thefacility is able to obtain information fordrug reviews and otherwise ensureappropriate on-site drug services. Thispurpose can be accomplished with VApharmacist under VA contract.

Section 51.200 Physical EnvironmentThe provisions of § 51.200(d) state

that resident rooms must be designedand equipped for adequate nursing care,comfort, and privacy of residents.Bedrooms must accommodate no morethan four residents; must measure atleast 115 net square feet per resident inmultiple resident bedrooms; mustmeasure at least 150 net square feet insingle resident bedrooms; must measureat least 245 net square feet in smalldouble resident bedrooms; and measureat least 305 net square feet in largedouble resident bedrooms used for

spinal cord injury residents. It isrecommended that the facility have onelarge double resident bedroom for every30 resident bedrooms. Six commentersasserted that these square footagerequirements should be reduced orapply only to new construction. Nochanges are made based on thesecomments. We believe that the squarefootage requirements are necessary toensure sufficient space for normal dailyliving activities, including adequateroom for movements of wheel chairs.

The provisions of § 51.200(d)(x) statethat resident rooms must have a floor ator above grade level. One commenterasserted they have one subgrade unitthat should be exempted from therequirement in § 51.200(d)(x). Nochanges are made based on thiscomment. We believe that nursing homecare units must be at floor level or aboveto help ensure the availability of naturalventilation and opportunity for seeingoutside.

Section 51.210 AdministrationThe provisions of proposed

§ 51.210(b)(3) provide that the Statemust give written notice to the ChiefConsultant, Geriatrics and ExtendedCare Strategic Healthcare Group (114) atthe time of the change of the State homedirector of nursing. One commenterargued that there is no need to givenotice of a change regarding the Statehome director of nursing. We agree andhave changed § 51.210(b)(3)accordingly. The notificationrequirement was intended to ensure thatVA had a point of contact at the facility.The final rule requires written notice ofa change in a State home administratorand the State employee responsible foroversight of the State home facility if acontractor operates the State home. Thisis sufficient for ensuring that VA has acurrent point of contact.

The provisions of § 51.210(c), amongother things, state that the facilitymanagement must submit the followingto the director of the VA medical centerof jurisdiction as often as necessary tobe current: The number of the staff bycategory indicating full-time, part-timeand minority designation and thenumber of nursing home patients whoare veterans and non-veterans, thenumber of veterans who are minoritiesand the number of non-veterans who areminorities.

One commenter suggested thatchanges should be required to bereported only on a semi-annual orannual basis. We have changed§ 51.210(c) to state that the facility mustsubmit the information in questionannually. The reporting requirementsraised by the commenter are necessary



for determining whether facilitiescontinue to meet the standards insubpart D, for determining whetherfacilities meet the criteria for obtainingper diem, and to help ensurecompliance with civil rights laws. Webelieve that annual reporting issufficient to meet the intended purpose.

The provisions of § 51.210(d) statethat the percent of the facility residentseligible for VA nursing home care mustbe at least 75 percent veterans exceptthat the veteran percentage need only bemore than 50 percent if the facility wasconstructed or renovated solely withState funds. This paragraph furtherstates that all non-veteran residentsmust be spouses of veterans or parentsall of whose children died while servingin the armed forces of the United States.

One commenter asserted that thedefinition of State home should includelanguage stating that care may beprovided for a spouse of a veteran asallowed by individual State law. Threecommenters argued that honorablydischarged members of the NationalGuard and certain non-listedindividuals related to veterans shouldbe allowed to be included asnonveterans at State nursing homes. Nochanges are made based on thesecomments. The requirementsconcerning non-veterans are necessaryto ensure that the State homes are usedfor veterans as required by 38 U.S.C.101(19). We believe the narrowexceptions are necessary for the wellbeing of veterans and we do not believethat it is in the best interests of veteransto expand this further.

The provisions of proposed § 51.210(j)stated that the facility management mustuniformly apply credentialing criteria tolicensed independent practitionersapplying to provide resident care ortreatment under the facility’s care. Theprovisions of proposed § 51.210(j)further state that the facilitymanagement must verify and uniformlyapply the following core criteria:Current license; current certification, ifapplicable; relevant education, training,and experience; current competence;and a statement that the individual isable to perform the services he or she isapplying to provide. One commenterasserted that the word ‘‘independent’’be deleted so that credentialing criteriawould apply to physician assistants. Weagree and have deleted the word‘‘independent’’ since physicianassistants may be credentialed. Anothercommenter asserted that therequirements of § 51.210(j) are toostringent. No changes are made based onthis comment. The required informationis basic information needed to ensure

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

The provisions of proposed§ 51.210(j)(5) stated that whenreappointing a licensed independentpractitioner, the facility managementmust review the individual’s trackrecord. Two commenters asserted thatthe term ‘‘track record’’ was toocolloquial and should be replaced with‘‘record of experience.’’ We agree andhave changed the final rule accordingly.

The provisions of proposed§ 51.210(n)(2)(i) stated that the facilitymust provide or obtain radiology andother diagnostic services only whenordered by the primary physician. Onecommenter asserted that the final ruleshould reflect that radiology and otherdiagnostic services may be ordered by aphysician assistant. We agree and havedeleted the word ‘‘only.’’ The authorityand limitations for a physician assistantto order radiology and other diagnosticservices are set forth at § 51.150(e) of thefinal rule.

VA Form 10–10SH

VA Form 10–10SH, State HomeProgram Application for Veteran Care—Medical Certification, provides amedical certification for individualsadmitted to a State nursing homefacility and for the State applying forper diem payments. The form isrequired to be signed by the primaryphysician as well as other staffmembers. One commenter asserted thatthe form should be amended to allowphysician assistants to conduct medicalevaluations and to sign the medicalevaluation form. No changes are madebased on this comment. Physicianassistants would not have the privilegesnecessary for admitting patients.

Incorporation by Reference

In § 51.200, paragraphs (a), (b)(2), and(b)(4) incorporate by reference theNational Fire Protection Association’sNFPA 101, Life Safety Code, 1997edition and the NFPA 99, Standard forHealth Care Facilities, 1996 edition.This action would require State homesproviding nursing home care to eligibleveterans to comply with a national codebased on actual fire experience acrossthe country. This is necessary to helpensure that veterans are placed infacilities that are adequately protectedagainst fires and the final rule isdesigned to ensure that State homesmeet the fire and safety provisions ofthe Life Safety Code.

Forms

We have placed all forms that applyto this rule in a new Part 58 for the

purpose of making it easier to find theforms.

Executive Order 12866This document was reviewed by the

Office of Management and Budget underExecutive Order 12866.

Unfunded MandatesThe Unfunded Mandates Reform Act

requires (in section 202) that agenciesprepare an assessment of anticipatedcosts and benefits before developing anyrule that may result in an expenditureby State, local, or tribal governments, inthe aggregate, or by the private sector, of$100 million or more in any given year.This final rule will have noconsequential effect on State, local ortribal governments.

Regulatory Flexibility ActThe Secretary hereby certifies that the

adoption of this final rule would nothave a significant economic impact ona substantial number of small entities asthey are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601–612. All ofthe entities that are subject to this finalrule are State government entities underthe control of State governments. Of the93 State homes, all are operated by Stategovernments except for 16 that areoperated by entities under contract withState governments. These contractorsare not small entities. Therefore,pursuant to 5 U.S.C. 605(b), this finalrule is exempt from the initial and finalregulatory flexibility analysisrequirement of §§ 603 and 604.

Paperwork Reduction Act of 1995The collection of information

contained in the notice of the proposedrulemaking was submitted to the Officeof Management and Budget (OMB) forreview in accordance with thePaperwork Reduction Act (44 U.S.C.3540(h)). The information collectionssubject to this rulemaking are set forthin the provisions of §§ 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 requiresfacilities to supply various kinds ofinformation regarding facilitiesproviding nursing home care to ensurethat high quality care is furnished toveterans who are residents in suchfacilities. The information includes anapplication for recognition based oncertification; appeal information;application and justification forpayment; records and reports whichfacility management must maintainregarding activities of residents; toinclude information relating to whetherthe facility meets standards concerning



residents rights and responsibilitiesprior to admission, during admission,and upon discharge; the records andreports which facility management andhealth care professionals must maintainregarding residents and employees;various types of documentationpertaining to the management of thefacility; food menu planning;pharmaceutical records; and life safetydocumentation.

Interested parties were invited tosubmit comments on the collection ofinformation. We received two commentsfrom two commenters. One comment isdiscussed above under the heading VAForm 10–10SH. One commentersuggested that VA provide for electronictransmission of forms. No changes aremade based on this comment. We areworking on a system to allow theelectronic transmission of forms. This isnot available yet from VA.

One commenter asserted that theproposed rule did not identify howoften information is required to becollected. No changes are made basedon this comment. Each of the sectionscontaining collections of informationspecify how often the information mustbe collected.

The proposed rule states that theaverage burden per collection is 14minutes and that the annual reportingand recordkeeping burden for each Statehome is slightly less than 1 hour (12,467total hours and 13,136 respondents).One commenter asserted that thesenumbers may not be accurate. Nochanges are made based on thesecomments. These figures are based onsampling in the field.

OMB has approved this informationcollection under control number 2900–0160 except for VA Form 10–10EZwhich 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 apenalty on persons for failure to complywith information collectionrequirements which do not display acurrent OMB control number, ifrequired.

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

Administrative practice andprocedure, Alcohol abuse, Alcoholism,Claims, Day care, Dental health, Drugabuse, Foreign relations, Governmentcontracts, Grant programs-health,Government programs-veterans, Healthcare, Health facilities, Healthprofessions, Health records, Homeless,Incorporation by reference, Medical anddental schools, Medical devices,Medical research, Mental health

programs, Nursing homes, Philippines,Reporting and recordkeepingrequirements, Scholarships andfellowships, Travel and transportationexpenses, 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 17continues to read as follows:

Authority: 38 U.S.C. 501, 1721, unlessotherwise noted.

§ 17.190 [Amended]

2. In § 17.190, the introductory text isamended by removing ‘‘hospital,domiciliary or nursing home’’ andadding, in its place, ‘‘hospital ordomiciliary;’’ paragraph (a) is amendedby removing ‘‘or nursing home care;’’paragraph (b) is amended by removing‘‘nursing home care patients or;’’ andparagraph (d) is removed.

§ 17.191 [Amended]

3. Section 17.191 is amended byremoving ‘‘domiciliary, nursing home’’and adding, in its place, ‘‘domiciliary.’’

§ 17.192 [Amended]

4. Section 17.192 is amended byremoving ‘‘nursing home or’’.

§ 17.193 [Amended]

5. Section 17.193 is amended byremoving the second sentence thereof.

§ 17.195 [Removed]

6. Section 17.195 is removed.

§ 17.197 [Amended]

7. Section 17.197 is amended byremoving ‘‘section 1741(a)(2) for nursinghome care;.’’

§ 17.198 [Amended]

8. Section 17.198 is amended byremoving ‘‘hospital, domiciliary ornursing home’’ and adding, in its place,‘‘hospital or domiciliary.’’

§§ 17.190 through 17.199 [Amended]

9. A ‘‘Note’’ is added immediatelyfollowing the undesignated centerheading above § 17.190 to read asfollows:

Note: Sections 17.190 through 17.200 donot apply to nursing home care in Statehomes. The provisions for nursing home carein State homes are set forth in 38 CFR part51.

10. Part 51 is added to read as follows:

PART 51—PER DIEM FOR NURSINGHOME CARE OF VETERANS IN STATEHOMES

Subpart A—GeneralSec.51.1 Purpose.51.2 Definitions.

Subpart B—Obtaining Per Diem for NursingHome Care in State Homes51.10 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 Payments51.40 Monthly payment.51.50 Eligible veterans.

Subpart D—Standards51.60 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

§ 51.1 Purpose.This part sets forth the mechanism for

paying per diem to State homesproviding nursing home care to eligibleveterans and is intended to ensure thatveterans receive high quality care inState homes.

§ 51.2 Definitions.For purposes of this part:Clinical nurse specialist means a

licensed professional nurse with amaster’s degree in nursing with a majorin a clinical nursing specialty from anacademic program accredited by theNational League for Nursing and at least2 years of successful clinical practice inthe specialized area of nursing practicefollowing this academic preparation.

Facility means a building or any partof a building for which a State hassubmitted an application for recognitionas a State home for the provision ofnursing home care or a building or anypart of a building which VA hasrecognized as a State home for theprovision of nursing home care.



Nurse practitioner means a licensedprofessional nurse who is currentlylicensed to practice in the State; whomeets the State’s requirementsgoverning the qualifications of nursepractitioners; and who is currentlycertified as an adult, family, orgerontological nurse practitioner by theAmerican Nurses’ Association.

Nursing home care means theaccommodation of convalescents orother persons who are not acutely illand not in need of hospital care, butwho require skilled nursing care andrelated medical services.

Physician means a doctor of medicineor osteopathy legally authorized topractice medicine or surgery in theState.

Physician assistant means a personwho meets the applicable Staterequirements for physician assistant, iscurrently certified by the NationalCommission on Certification ofPhysician Assistants (NCCPA) as aphysician assistant, and has anindividualized written scope of practicethat determines the authorization towrite medical orders, prescribemedications and other clinical tasksunder appropriate physiciansupervision which is approved by theprimary care physician.

Primary physician or primary carephysician means a designated generalistphysician responsible for providing,directing and coordinating all healthcare that is indicated for the residents.

State means each of the several States,territories, and possessions of theUnited States, the District of Columbia,and the Commonwealth of Puerto Rico.

State home means a home approvedby VA which a State establishedprimarily for veterans disabled by age,disease, or otherwise, who by reason ofsuch disability are incapable of earninga living. A State home may providedomiciliary care, nursing home care,adult day health care, and hospital care.Hospital care may be provided onlywhen the State home also providesdomiciliary and/or nursing home care.

VA means the U.S. Department ofVeterans Affairs.

Subpart B—Obtaining Per Diem forNursing Home Care in State Homes

§ 51.10 Per diem based on recognition andcertification.

VA will pay per diem to a State forproviding nursing home care to eligibleveterans in a facility if the UnderSecretary for Health recognizes thefacility as a State home based on acurrent certification that the facility andfacility management meet the standardsof subpart D of this part. Also, after

recognition has been granted, VA willcontinue to pay per diem to a State forproviding nursing home care to eligibleveterans in such a facility for atemporary period based on acertification that the facility and facilitymanagement provisionally meet thestandards of subpart D.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.20 Application for recognition basedon certification.

To apply for recognition andcertification of a State home for nursinghome care, a State must:

(a) Send a request for recognition andcertification to the Under Secretary forHealth (10), VA Headquarters, 810Vermont Avenue, NW., Washington, DC20420. The request must be in the formof a letter and must be signed by theState official authorized to establish theState home;

(b) Allow VA to survey the facility asset forth in § 51.30(c); and

(c) Upon request from the director ofthe VA medical center of jurisdiction,submit to the director all documentationrequired under subpart D of this part.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.30 Recognition and certification.(a)(1) The Under Secretary for Health

will make the determination regardingrecognition and the initialdetermination regarding certification,after receipt of a tentative determinationfrom the director of the VA medicalcenter of jurisdiction regarding whether,based on a VA survey, the facility andfacility management meet or do notmeet the standards of subpart D of thispart. The Under Secretary for Healthwill notify the official in charge of thefacility, the State official authorized tooversee operations of the State home,the VA Network Director (10N 1–22),Chief Network Officer (10N), and theChief Consultant, Geriatrics andExtended Care Strategic HealthcareGroup (114) of the action taken.

(2) For each facility recognized as aState home, the director of the VAmedical center of jurisdiction willcertify annually whether the facility andfacility management meet, provisionallymeet, or do not meet the standards ofsubpart D of this part (this certificationshould be made every 12 months duringthe recognition anniversary month orduring a month agreed upon by the VAmedical care center director andofficials of the State home facility). Aprovisional certification will be issuedby the director only upon adetermination that the facility or facilitymanagement does not meet one or more

of the standards in subpart D, that thedeficiencies do not jeopardize the healthor safety of the residents, and that thefacility management and the directorhave agreed to a plan of correction toremedy the deficiencies in a specifiedamount of time (not more time than theVA medical center of jurisdictiondirector determines is reasonable forcorrecting the specific deficiencies). Thedirector of the VA medical center ofjurisdiction will notify the official incharge of the facility, the State officialauthorized to oversee the operations ofthe State home, the VA NetworkDirector (10N 1–22), Chief NetworkOfficer (10N) and the Chief Consultant,Geriatrics and Extended Care StrategicHealthcare Group (114) of thecertification, provisional certification, ornoncertification.

(b) Once a facility has achievedrecognition, the recognition will remainin effect unless the State requests thatthe recognition be withdrawn or theUnder Secretary for Health makes a finaldecision that the facility or facilitymanagement does not meet thestandards of subpart D. Recognition of afacility will apply only to the facility asit exists at the time of recognition; anyannex, branch, enlargement, expansion,or relocation must be separatelyrecognized.

(c) Both during the applicationprocess for recognition and after theUnder Secretary for Health hasrecognized a facility, VA may survey thefacility as necessary to determine if thefacility and facility management complywith the provisions of this part.Generally, VA will provide advancenotice to the State before a surveyoccurs; however, surveys may beconducted without notice. A survey, asnecessary, will cover all parts of thefacility, and include a review and auditof all records of the facility that have abearing on compliance with any of therequirements of this part (including anyreports from State or local entities). Forpurposes of a survey, at the request ofthe director of the VA medical center ofjurisdiction, the State home facilitymanagement must submit to the directora completed VA Form 10–3567, StaffingProfile, set forth at § 58.10 of thischapter. The director of the VA medicalcenter of jurisdiction will designate theVA officials to survey the facility. Theseofficials may include physicians;nurses; pharmacists; dietitians;rehabilitation therapists; social workers;representatives from healthadministration, engineering,environmental management systems,and fiscal officers.

(d) If the director of the VA medicalcenter of jurisdiction determines that



the State home facility or facilitymanagement does not meet thestandards of this part, the director willnotify the State home facility in writingof the standards not met. The directorwill send a copy of this notice to theState official authorized to overseeoperations of the facility, the VANetwork Director (10N 1–22), the ChiefNetwork Officer (10N), and the ChiefConsultant, Geriatrics and ExtendedCare Strategic Healthcare Group (114).The letter will include the reasons forthe decision and indicate that the Statehas the right to appeal the decision.

(e) The State must submit the appealto the Under Secretary for Health inwriting, within 30 days of receipt of thenotice of failure to meet the standards.In its appeal, the State must explainwhy the determination is inaccurate orincomplete and provide any new andrelevant information not previouslyconsidered. Any appeal that does notidentify a reason for disagreement willbe returned to the sender withoutfurther consideration.

(f) After reviewing the matter,including any relevant supportingdocumentation, the Under Secretary forHealth will issue a writtendetermination that affirms or reversesthe previous determination. If the UnderSecretary for Health decides that thefacility does not meet the standards ofsubpart D of this part, the UnderSecretary for Health will withdrawrecognition and stop paying per diemfor care provided on and after the dateof the decision. The decision of UnderSecretary for Health will constitute afinal VA decision. The Under Secretaryfor Health will send a copy of thisdecision to the State home facility andto the State official authorized tooversee the operations of the Statehome.

(g) In the event that a VA survey teamor other VA medical center staffidentifies any condition that poses animmediate threat to public or patientsafety or other information indicatingthe existence of such a threat, thedirector of VA medical center ofjurisdiction will immediately report thisto the VA Network Director (10N 1–22),Chief Network Officer (10N), ChiefConsultant, Geriatrics and ExtendedCare Strategic Healthcare Group (114)and State official authorized to overseeoperations of the State home.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.31 Automatic recognition.Notwithstanding other provisions of

this part, a facility that already isrecognized by VA as a State home fornursing home care at the time this part

becomes effective, automatically willcontinue to be recognized as a Statehome for nursing home care but will besubject to all of the provisions of thispart that apply to facilities that haveachieved recognition, including theprovisions requiring that the facilitymeet the standards set forth in subpartD and the provisions for withholdingper diem payments and withdrawal ofrecognition.

Subpart C—Per Diem Payments

§ 51.40 Monthly payment.(a)(1) VA will pay per diem monthly

for nursing home care provided to aneligible veteran in a facility recognizedas a State home for nursing home care.During Fiscal Year 2000, VA will paythe lesser of the following:

(i) One-half of the cost of the care foreach day the veteran is in the facility;or

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

(2) Per diem will be paid only for thedays that the veteran is a resident at thefacility. For purposes of paying perdiem, VA will consider a veteran to bea resident at the facility during each fullday that the veteran is receiving care atthe facility. VA will not deem theveteran to be a resident at the facility ifthe veteran is receiving care outside theState home facility at VA expense.Otherwise, VA will deem the veteran tobe a resident at the facility during anyabsence from the facility that lasts for nomore than 96 consecutive hours. Thisabsence will be considered to haveended when the veteran returns as aresident if the veteran’s stay is for atleast a continuous 24-hour period.

(3) As a condition for receivingpayment of per diem under this part, theState must submit a completed VA Form10–5588, State Home Report andStatement of Federal Aid Claimed. Thisform is set forth in full at § 58.11 of thischapter.

(4) Initial payments will not be madeuntil the Under Secretary for Healthrecognizes the State home. However,payments will be made retroactively forcare that was provided on and after thedate of the completion of the VA surveyof the facility that provided the basis fordetermining that the facility met thestandards of this part.

(5) As a condition for receivingpayment of per diem under this part, theState must submit to the VA medicalcenter of jurisdiction for each veteranthe following completed VA Forms 10–10EZ, Application for Medical Benefits,and 10–10SH, State Home ProgramApplication for Care—MedicalCertification, at the time of admission

and with any request for a change in thelevel of care (domiciliary, hospital careor adult day health care). These formsare set forth in full at §§ 58.12 and 58.13of this chapter, respectively, of this part.If the facility is eligible to receive perdiem payments for a veteran, VA willpay per diem under this part from thedate of receipt of the completed formsrequired by this paragraph, except thatVA will pay per diem from the day onwhich the veteran was admitted to thefacility if the completed forms arereceived within 10 days after admission.

(b) Total per diem costs for an eligibleveteran’s nursing home care consist ofthose direct and indirect costsattributable to nursing home care at thefacility divided by the total number ofpatients at the nursing home. Relevantcost principles are set forth in the Officeof 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)

§ 51.50 Eligible veterans.A veteran is an eligible veteran under

this part if VA determines that theveteran needs nursing home care andthe veteran is within one of thefollowing categories:

(a) Veterans with service-connecteddisabilities;

(b) Veterans who are former prisonersof war;

(c) Veterans who were discharged orreleased from active military service fora disability incurred or aggravated in theline of duty;

(d) Veterans who receive disabilitycompensation under 38 U.S.C. 1151;

(e) Veterans whose entitlement todisability compensation is suspendedbecause of the receipt of retired pay;

(f) Veterans whose entitlement todisability compensation is suspendedpursuant to 38 U.S.C. 1151, but only tothe extent that such veterans’continuing eligibility for nursing homecare is provided for in the judgment orsettlement described in 38 U.S.C. 1151;

(g) Veterans who VA determines areunable to defray the expenses ofnecessary care as specified under 38U.S.C. 1722(a);

(h) Veterans of the Mexican borderperiod or of World War I;

(i) Veterans solely seeking care for adisorder associated with exposure to atoxic substance or radiation or for adisorder associated with service in theSouthwest Asia theater of operationsduring the Persian Gulf War, asprovided in 38 U.S.C. 1710(e);

(j) Veterans who agree to pay to theUnited States the applicable co-payment



determined under 38 U.S.C. 1710(f) and1710(g).(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

Subpart D—Standards

§ 51.60 Standards applicable for paymentof per diem.

The provisions of this subpart are thestandards that a State home and facilitymanagement must meet for the State toreceive per diem for nursing home care.

§ 51.70 Resident rights.The resident has a right to a dignified

existence, self-determination, andcommunication with and access topersons and services inside and outsidethe facility. The facility managementmust protect and promote the rights ofeach resident, including each of thefollowing rights:

(a) Exercise of rights. (1) The residenthas the right to exercise his or her rightsas a resident of the facility and as acitizen or resident of the United States.

(2) The resident has the right to befree of interference, coercion,discrimination, and reprisal from thefacility management in exercising his orher rights.

(3) The resident has the right tofreedom from chemical or physicalrestraint.

(4) In the case of a residentdetermined incompetent under the lawsof a State by a court of jurisdiction, therights of the resident are exercised bythe person appointed under State law toact on the resident’s behalf.

(5) In the case of a resident who hasnot been determined incompetent by theState court, any legal-surrogatedesignated in accordance with State lawmay exercise the resident’s rights to theextent provided by State law.

(b) Notice of rights and services. (1)The facility management must informthe resident both orally and in writingin a language that the residentunderstands of his or her rights and allrules and regulations governing residentconduct and responsibilities during thestay in the facility. Such notificationmust be made prior to or uponadmission and periodically during theresident’s stay.

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

(i) Upon an oral or written request, toaccess all records pertaining to himselfor herself including current clinicalrecords within 24 hours (excludingweekends and holidays); and

(ii) After receipt of his or her recordsfor review, to purchase at a cost not toexceed the community standardphotocopies of the records or any

portions of them upon request and with2 working days advance notice to thefacility management.

(3) The resident has the right to befully informed in language that he orshe can understand of his or her totalhealth status;

(4) The resident has the right to refusetreatment, to refuse to participate inexperimental research, and to formulatean advance directive as specified inparagraph (b)(7) of this section; and

(5) The facility management mustinform each resident before, or at thetime of admission, and periodicallyduring the resident’s stay, of servicesavailable in the facility and of chargesfor those services to be billed to theresident.

(6) The facility management mustfurnish a written description of legalrights which includes:

(i) A description of the manner ofprotecting personal funds, underparagraph (c) of this section;

(ii) A statement that the resident mayfile a complaint with the State (agency)concerning resident abuse, neglect,misappropriation of resident property inthe facility, and non-compliance withthe advance directives requirements.

(7) The facility management musthave written policies and proceduresregarding advance directives (e.g., livingwills) that include provisions to informand provide written information to allresidents concerning the right to acceptor refuse medical or surgical treatmentand, at the individual’s option,formulate an advance directive. Thisincludes a written description of thefacility’s policies to implement advancedirectives and applicable State law. If anindividual is incapacitated at the time ofadmission and is unable to receiveinformation (due to the incapacitatingconditions) or articulate whether or nothe or she has executed an advancedirective, the facility may give advancedirective information to the individual’sfamily or surrogate in the same mannerthat it issues other materials aboutpolicies and procedures to the family ofthe incapacitated individual or to asurrogate or other concerned persons inaccordance with State law. The facilitymanagement is not relieved of itsobligation to provide this information tothe individual once he or she is nolonger incapacitated or unable to receivesuch information. Follow-up proceduresmust be in place to provide theinformation to the individual directly atthe appropriate time.

(8) The facility management mustinform each resident of the name andway of contacting the primary physicianresponsible for his or her care.

(9) Notification of changes. (i) Facilitymanagement must immediately informthe resident; consult with the primaryphysician; and if known, notify theresident’s legal representative or aninterested family member when thereis—

(A) An accident involving the residentwhich results in injury and has thepotential for requiring physicianintervention;

(B) A significant change in theresident’s physical, mental, orpsychosocial status (i.e., a deteriorationin health, mental, or psychosocial statusin either life-threatening conditions orclinical complications);

(C) A need to alter treatmentsignificantly (i.e., a need to discontinuean existing form of treatment due toadverse consequences, or to commencea new form of treatment); or

(D) A decision to transfer or dischargethe resident from the facility asspecified in § 51.80(a) of this part.

(ii) The facility management must alsopromptly notify the resident and, ifknown, the resident’s legalrepresentative or interested familymember when there is—

(A) A change in room or roommateassignment as specified in § 51.100(f)(2);or

(B) A change in resident rights underFederal or State law or regulations asspecified in paragraph (b)(1) of thissection.

(iii) The facility management mustrecord and periodically update theaddress and phone number of theresident’s legal representative orinterested family member.

(c) Protection of resident funds. (1)The resident has the right to manage hisor her financial affairs, and the facilitymanagement may not require residentsto deposit their personal funds with thefacility.

(2) Management of personal funds.Upon written authorization of aresident, the facility management musthold, safeguard, manage, and accountfor the personal funds of the residentdeposited with the facility, as specifiedin paragraphs (c)(3) through (c)(6) of thissection.

(3) Deposit of funds. (i) Funds inexcess of $100. The facility managementmust deposit any residents’ personalfunds in excess of $100 in an interestbearing account (or accounts) that isseparate from any of the facility’soperating accounts, and that credits allinterest earned on resident’s funds tothat account. (In pooled accounts, theremust be a separate accounting for eachresident’s share.)

(ii) Funds less than $100. The facilitymanagement must maintain a resident’s



personal funds that do not exceed $100in a non-interest bearing account,interest-bearing account, or petty cashfund.

(4) Accounting and records. Thefacility management must establish andmaintain a system that assures a full andcomplete and separate accounting,according to generally acceptedaccounting principles, of each resident’spersonal funds entrusted to the facilityon the resident’s behalf.

(i) The system must preclude anycommingling of resident funds withfacility funds or with the funds of anyperson other than another resident.

(ii) The individual financial recordmust be available through quarterlystatements and on request from theresident or his or her legalrepresentative.

(5) Conveyance upon death. Upon thedeath of a resident with a personal funddeposited with the facility, the facilitymanagement must convey within 30days the resident’s funds, and a finalaccounting of those funds, to theindividual or probate jurisdictionadministering the resident’s estate; orother appropriate individual or entity, ifState law allows.

(6) Assurance of financial security.The facility management must purchasea surety bond, or otherwise provideassurance satisfactory to the UnderSecretary for Health, to assure thesecurity of all personal funds ofresidents deposited with the facility.

(d) Free choice. The resident has theright to—

(1) Be fully informed in advanceabout care and treatment and of anychanges in that care or treatment thatmay affect the resident’s well-being; and

(2) Unless determined incompetent orotherwise determined to beincapacitated under the laws of theState, participate in planning care andtreatment or changes in care andtreatment.

(e) Privacy and confidentiality. Theresident has the right to personalprivacy and confidentiality of his or herpersonal and clinical records.

(1) Residents have a right to personalprivacy in their accommodations,medical treatment, written andtelephone communications, personalcare, visits, and meetings of family andresident groups. This does not requirethe facility management to give a privateroom to each resident.

(2) Except as provided in paragraph(e)(3) of this section, the resident mayapprove or refuse the release of personaland clinical records to any individualoutside the facility;

(3) The resident’s right to refuserelease of personal and clinical recordsdoes not apply when—

(i) The resident is transferred toanother 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. Residentsmay voice grievances with respect totreatment received and not received;and

(2) Prompt efforts by the facility toresolve grievances the resident mayhave, including those with respect tothe behavior of other residents.

(g) Examination of survey results. Aresident has the right to—

(1) Examine the results of the mostrecent VA survey with respect to thefacility. The facility management mustmake the results available forexamination in a place readilyaccessible to residents, and must post anotice of their availability; and

(2) Receive information from agenciesacting as client advocates, and beafforded the opportunity to contactthese agencies.

(h) Work. The resident has the rightto—

(1) Refuse to perform services for thefacility;

(2) Perform services for the facility, ifhe or she chooses, when—

(i) The facility has documented theneed or desire for work in the plan ofcare;

(ii) The plan specifies the nature ofthe services performed and whether theservices are voluntary or paid;

(iii) Compensation for paid services isat or above prevailing rates; and

(iv) The resident agrees to the workarrangement described in the plan ofcare.

(i) Mail. The resident must have theright to privacy in writtencommunications, including the rightto—

Send and promptly receive mail thatis unopened; and

(2) Have access to stationery, postage,and writing implements at the resident’sown expense.

(j) Access and visitation rights. (1)The resident has the right and thefacility management must provideimmediate access to any resident by thefollowing:

(i) Any representative of the UnderSecretary for Health;

(ii) Any representative of the State;(iii) Physicians of the resident’s

choice (to provide care in the nursinghome, physicians must meet theprovisions of § 51.210(j));

(iv) The State long term careombudsman;

(v) Immediate family or other relativesof the resident subject to the resident’sright to deny or withdraw consent atany time; and

(vi) Others who are visiting subject toreasonable restrictions and theresident’s right to deny or withdrawconsent at any time.

(2) The facility management mustprovide reasonable access to anyresident by any entity or individual thatprovides health, social, legal, or otherservices to the resident, subject to theresident’s right to deny or withdrawconsent at any time.

(3) The facility management mustallow representatives of the StateOmbudsman Program, described inparagraph (j)(1)(iv) of this section, toexamine a resident’s clinical recordswith the permission of the resident orthe resident’s legal representative,subject to State law.

(k) Telephone. The resident has theright to reasonable access to use atelephone where calls can be madewithout being overheard.

(l) Personal property. The resident hasthe right to retain and use personalpossessions, including somefurnishings, and appropriate clothing, asspace permits, unless to do so wouldinfringe upon the rights or health andsafety of other residents.

(m) Married couples. The resident hasthe right to share a room with his or herspouse when married residents live inthe same facility and both spousesconsent to the arrangement.

(n) Self-Administration of Drugs. Anindividual resident may self-administerdrugs if the interdisciplinary team, asdefined by § 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)

§ 51.80 Admission, transfer and dischargerights.

(a) Transfer and discharge. (1)Definition: Transfer and dischargeincludes movement of a resident to abed outside of the facility whether thatbed is in the same physical plant or not.Transfer and discharge does not refer tomovement of a resident to a bed withinthe same facility.

(2) Transfer and dischargerequirements. The facility managementmust permit each resident to remain inthe facility, and not transfer or dischargethe resident from the facility unless—

(i) The transfer or discharge isnecessary for the resident’s welfare andthe resident’s needs cannot be met inthe nursing home;

(ii) The transfer or discharge isappropriate because the resident’shealth has improved sufficiently so the



resident no longer needs the servicesprovided by the nursing home;

(iii) The safety of individuals in thefacility is endangered;

(iv) The health of individuals in thefacility would otherwise be endangered;

(v) The resident has failed, afterreasonable and appropriate notice topay for a stay at the facility; or

(vi) The nursing home ceases tooperate.

(3) Documentation. When the facilitytransfers or discharges a resident underany of the circumstances specified inparagraphs (a)(2)(i) through (a)(2)(vi) ofthis section, the primary physician mustdocument this in the resident’s clinicalrecord.

(4) Notice before transfer. Before afacility transfers or discharges aresident, the facility must—

(i) Notify the resident and, if known,a family member or legal representativeof the resident of the transfer ordischarge and the reasons for the movein writing and in a language and mannerthey understand.

(ii) Record the reasons in theresident’s clinical record; and

(iii) Include in the notice the itemsdescribed in paragraph (a)(6) of thissection.

(5) Timing of the notice. (i) The noticeof transfer or discharge required underparagraph (a)(4) of this section must bemade by the facility at least 30 daysbefore the resident is transferred ordischarged, except when specified inparagraph (a)(5)(ii) of this section,

(ii) Notice may be made as soon aspracticable before transfer or dischargewhen—

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

(B) The health of individuals in thefacility would be otherwise endangered;

(C) The resident’s health improvessufficiently so the resident no longerneeds the services provided by thenursing home;

(D) The resident’s needs cannot bemet in the nursing home;

(6) Contents of the notice. The writtennotice specified in paragraph (a)(4) ofthis section must include the following:

(i) The reason for transfer ordischarge;

(ii) The effective date of transfer ordischarge;

(iii) The location to which theresident is transferred or discharged;

(iv) A statement that the resident hasthe right to appeal the action to the Stateofficial designated by the State; and

(v) The name, address and telephonenumber of the State long term careombudsman.

(7) Orientation for transfer ordischarge. A facility management must

provide sufficient preparation andorientation to residents to ensure safeand orderly transfer or discharge fromthe facility.

(b) Notice of bed-hold policy andreadmission. (1) Notice before transfer.Before a facility transfers a resident toa hospital or allows a resident to go ontherapeutic leave, the facilitymanagement must provide writteninformation to the resident and a familymember or legal representative thatspecifies—

(i) The duration of the facility’s bed-hold policy, if any, during which theresident is permitted to return andresume residence in the facility; and

(ii) The facility’s policies regardingbed-hold periods, which must beconsistent with paragraph (b)(3) of thissection, permitting a resident to return.

(2) Bed-hold notice upon transfer. Atthe time of transfer of a resident forhospitalization or therapeutic leave,facility management must provide to theresident and a family member or legalrepresentative written notice whichspecifies the duration of the bed-holdpolicy described in paragraph (b)(1) ofthis section.

(3) Permitting resident to return tofacility. A nursing facility mustestablish and follow a written policyunder which a resident, whosehospitalization or therapeutic leaveexceeds the bed-hold period isreadmitted to the facility immediatelyupon the first availability of a bed in asemi-private room, if the residentrequires the services provided by thefacility.

(c) Equal access to quality care. Thefacility management must establish andmaintain identical policies andpractices regarding transfer, discharge,and the provision of services for allindividuals regardless of source ofpayment.

(d) Admissions policy. The facilitymanagement must not require a thirdparty guarantee of payment to thefacility as a condition of admission orexpedited admission, or continued stayin the facility. However, the facility mayrequire an individual who has legalaccess to a resident’s income orresources available to pay for facilitycare to sign a contract to pay the facilityfrom the resident’s income or resources.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.90 Resident behavior and facilitypractices.

(a) Restraints. (1) The resident has aright to be free from any chemical orphysical restraints imposed for purposesof discipline or convenience. When arestraint is applied or used, the purpose

of the restraint is reviewed and isjustified as a therapeutic intervention.

(i) Chemical restraint is theinappropriate use of a sedatingpsychotropic drug to manage or controlbehavior.

(ii) Physical restraint is any method ofphysically restricting a person’s freedomof movement, physical activity ornormal access to his or her body. Bedrails and vest restraints are examples ofphysical restraints.

(2) The facility management uses asystem to achieve a restraint-freeenvironment.

(3) The facility management collectsdata about the use of restraints.

(4) When alternatives to the use ofrestraint are ineffective, a restraint mustbe safely and appropriately used.

(b) Abuse. The resident has the rightto be free from mental, physical, sexual,and verbal abuse or neglect, corporalpunishment, and involuntary seclusion.

(1) Mental abuse includeshumiliation, harassment, and threats ofpunishment or deprivation.

(2) Physical abuse includes hitting,slapping, pinching, or kicking. Alsoincludes controlling behavior throughcorporal punishment.

(3) Sexual abuse includes sexualharassment, sexual coercion, and sexualassault.

(4) Neglect is any impaired quality oflife for an individual because of theabsence of minimal services orresources to meet basic needs. Includeswithholding or inadequately providingfood and hydration (without physician,resident, or surrogate approval),clothing, medical care, and goodhygiene. May also include placing theindividual in unsafe or unsupervisedconditions.

(5) Involuntary seclusion is aresident’s separation from otherresidents or from the resident’s roomagainst his or her will or the will of hisor her legal representative.

(c) Staff treatment of residents. Thefacility management must develop andimplement written policies andprocedures that prohibit mistreatment,neglect, and abuse of residents andmisappropriation of resident property.

(1) The facility management must:(i) Not employ individuals who—(A) Have been found guilty of

abusing, neglecting, or mistreatingindividuals by a court of law; or

(B) Have had a finding entered into anapplicable State registry or with theapplicable licensing authorityconcerning abuse, neglect, mistreatmentof individuals or misappropriation oftheir property; and

(ii) Report any knowledge it has ofactions by a court of law against an



employee, which would indicateunfitness for service as a nurse aide orother facility staff to the State nurse aideregistry or licensing authorities.

(2) The facility management mustensure that all alleged violationsinvolving mistreatment, neglect, orabuse, including injuries of unknownsource, and misappropriation ofresident property are reportedimmediately to the administrator of thefacility and to other officials inaccordance with State law throughestablished procedures.

(3) The facility management musthave evidence that all alleged violationsare thoroughly investigated, and mustprevent further potential abuse whilethe investigation is in progress.

(4) The results of all investigationsmust be reported to the administrator orthe designated representative and toother officials in accordance with Statelaw within 5 working days of theincident, and appropriate correctiveaction must be taken if the allegedviolation is verified.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.100 Quality of life.

A facility management must care forits residents in a manner and in anenvironment that promotes maintenanceor enhancement of each resident’squality of life.

(a) Dignity. The facility managementmust promote care for residents in amanner and in an environment thatmaintains or enhances each resident’sdignity and respect in full recognition ofhis or her individuality.

(b) Self-determination andparticipation. The resident has the rightto—

(1) Choose activities, schedules, andhealth care consistent with his or herinterests, assessments, and plans of care;

(2) Interact with members of thecommunity both inside and outside thefacility; and

(3) Make choices about aspects of hisor her life in the facility that aresignificant to the resident.

(c) Resident Council. The facilitymanagement must establish a council ofresidents that meet at least quarterly.The facility management mustdocument any concerns submitted tothe management of the facility by thecouncil.

(d) Participation in resident andfamily groups. (1) A resident has theright to organize and participate inresident groups in the facility;

(2) A resident’s family has the right tomeet in the facility with the families ofother residents in the facility;

(3) The facility management mustprovide the council and any resident orfamily group that exists with privatespace;

(4) Staff or visitors may attendmeetings at the group’s invitation;

(5) The facility management mustprovide a designated staff personresponsible for providing assistance andresponding to written requests thatresult from group meetings;

(6) The facility management mustlisten to the views of any resident orfamily group, including the councilestablished under paragraph (c) of thissection, and act upon the concerns ofresidents, families, and the councilregarding policy and operationaldecisions affecting resident care and lifein the facility.

(e) Participation in other activities. Aresident has the right to participate insocial, religious, and communityactivities that do not interfere with therights of other residents in the facility.The facility management must arrangefor religious counseling by clergy ofvarious faith groups.

(f) Accommodation of needs. Aresident has the right to—

(1) Reside and receive services in thefacility with reasonable accommodationof individual needs and preferences,except when the health or safety of theindividual or other residents would beendangered; and

(2) Receive notice before theresident’s room or roommate in thefacility is changed.

(g) Patient Activities. (1) The facilitymanagement must provide for anongoing program of activities designedto meet, in accordance with thecomprehensive assessment, the interestsand the physical, mental, andpsychosocial well-being of eachresident.

(2) The activities program must bedirected by a qualified professional whois a qualified therapeutic recreationspecialist or an activities professionalwho—

(i) Is licensed or registered, ifapplicable, by the State in whichpracticing; and

(ii) Is certified as a therapeuticrecreation specialist or as an activitiesprofessional by a recognized accreditingbody.

(h) Social Services. (1) The facilitymanagement must provide medicallyrelated social services to attain ormaintain the highest practicable mentaland psychosocial well-being of eachresident.

(2) A nursing home with 100 or morebeds must employ a qualified socialworker on a full-time basis.

(3) Qualifications of social worker. Aqualified social worker is an individualwith—

(i) A bachelor’s degree in social workfrom a school accredited by the Councilof Social Work Education (Note: Amaster’s degree social worker withexperience in long-term care ispreferred), and

(ii) A social work license from theState in which the State home islocated, if offered by the State, and

(iii) A minimum of one year ofsupervised social work experience in ahealth care setting working directly withindividuals.

(4) The facility management musthave sufficient support staff to meetpatients’ social services needs.

(5) Facilities for social services mustensure privacy for interviews.

(i) Environment. The facilitymanagement must provide—

(1) A safe, clean, comfortable, andhomelike environment, allowing theresident to use his or her personalbelongings to the extent possible;

(2) Housekeeping and maintenanceservices necessary to maintain asanitary, orderly, and comfortableinterior;

(3) Clean bed and bath linens that arein good condition;

(4) Private closet space in eachresident room, as specified in§ 51.200(d)(2)(iv) of this part;

(5) Adequate and comfortable lightinglevels in all areas;

(6) Comfortable and safe temperaturelevels. Facilities must maintain atemperature range of 71–81 degreesFahrenheit; and

(7) For the maintenance ofcomfortable sound levels.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.110 Resident assessment.The facility management must

conduct initially, annually and asrequired by a change in the resident’scondition a comprehensive, accurate,standardized, reproducible assessmentof each resident’s functional capacity.

(a) Admission orders. At the time eachresident is admitted, the facilitymanagement must have physicianorders for the resident’s immediate careand a medical assessment, including amedical history and physicalexamination, within a time frameappropriate to the resident’s condition,not to exceed 72 hours after admission,except when an examination wasperformed within five days beforeadmission and the findings wererecorded in the medical record onadmission.

(b) Comprehensive assessments. (1)The facility management must make a



comprehensive assessment of aresident’s needs:

(i) Using the Health Care FinancingAdministration Long Term CareResident Assessment InstrumentVersion 2.0; and

(ii) Describing the resident’scapability to perform daily lifefunctions, strengths, performances,needs as well as significant impairmentsin functional capacity.

(iii) All nursing homes must be incompliance with the use of the HealthCare Financing Administration LongTerm Care Resident AssessmentInstrument Version 2.0 by no later thanJanuary 1, 2000.

(2) Frequency. Assessments must beconducted—

(i) No later than 14 days after the dateof admission;

(ii) Promptly after a significant changein the resident’s physical, mental, orsocial condition; and

(iii) In no case less often than onceevery 12 months.

(3) Review of assessments. Thenursing facility management mustexamine each resident no less than onceevery 3 months, and as appropriate,revise the resident’s assessment toassure the continued accuracy of theassessment.

(4) Use. The results of the assessmentare used to develop, review, and revisethe resident’s individualizedcomprehensive plan of care, underparagraph (d) of this section.

(c) Accuracy of assessments. (1)Coordination—

(i) Each assessment must beconducted or coordinated with theappropriate participation of healthprofessionals.

(ii) Each assessment must beconducted or coordinated by aregistered nurse that signs and certifiesthe completion of the assessment.

(2) Certification. Each person whocompletes a portion of the assessmentmust sign and certify the accuracy ofthat portion of the assessment.

(d) Comprehensive care plans. (1) Thefacility management must develop anindividualized comprehensive care planfor each resident that includesmeasurable objectives and timetables tomeet a resident’s physical, mental, andpsychosocial needs that are identified inthe comprehensive assessment. The careplan must describe the following—

(i) The services that are to befurnished to attain or maintain theresident’s highest practicable physical,mental, and psychosocial well-being asrequired under § 51.120; and

(ii) Any services that would otherwisebe required under § 51.120 of this partbut are not provided due to the

resident’s exercise of rights under§ 51.70, including the right to refusetreatment under § 51.70(b)(4) of thispart.

(2) A comprehensive care plan mustbe—

(i) Developed within 7 calendar daysafter completion of the comprehensiveassessment;

(ii) Prepared by an interdisciplinaryteam, that includes the primaryphysician, a registered nurse withresponsibility for the resident, and otherappropriate staff in disciplines asdetermined by the resident’s needs, and,to the extent practicable, theparticipation of the resident, theresident’s family or the resident’s legalrepresentative; and

(iii) Periodically reviewed and revisedby a team of qualified persons after eachassessment.

(3) The services provided or arrangedby the facility must—

(i) Meet professional standards ofquality; and

(ii) Be provided by qualified personsin accordance with each resident’swritten plan of care.

(e) Discharge summary. Prior todischarging a resident, the facilitymanagement must prepare a dischargesummary that includes—

(1) A recapitulation of the resident’sstay;

(2) A summary of the resident’s statusat the time of the discharge to includeitems in paragraph (b)(2) of this section;and

(3) A post-discharge plan of care thatis developed with the participation ofthe resident and his or her family,which will assist the resident to adjustto his or her new living environment.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.120 Quality of care.Each resident must receive and the

facility management must provide thenecessary care and services to attain ormaintain the highest practicablephysical, mental, and psychosocialwell-being, in accordance with thecomprehensive assessment and plan ofcare.

(a) Reporting of Sentinel Events. (1)Definition. A sentinel event is anadverse event that results in the loss oflife or limb or permanent loss offunction.

(2) Examples of sentinel events are asfollows:

(i) Any resident death, paralysis,coma or other major permanent loss offunction associated with a medicationerror; or

(ii) Any suicide of a resident,including suicides following elopement

(unauthorized departure) from thefacility; or

(iii) Any elopement of a resident fromthe facility resulting in a death or amajor permanent loss of function; or

(iv) Any procedure or clinicalintervention, including restraints, thatresult in death or a major permanentloss of function; or

(v) Assault, homicide or other crimeresulting in patient death or majorpermanent loss of function; or

(vi) A patient fall that results in deathor major permanent loss of function asa direct result of the injuries sustainedin the fall.

(3) The facility management mustreport sentinel events to the director ofVA medical center of jurisdiction within24 hours of identification. The VAmedical center of jurisdiction mustreport sentinel events by calling VANetwork Director (10N 1–22) and ChiefConsultant, Geriatrics and ExtendedCare Strategic Healthcare Group (114)within 24 hours of notification.

(4) The facility management mustestablish a mechanism to review andanalyze a sentinel event resulting in awritten report no later than 10 workingdays following the event. The purposeof the review and analysis of a sentinelevent is to prevent injuries to residents,visitors, and personnel, and to managethose injuries that do occur and tominimize the negative consequences tothe injured individuals and facility.

(b) Activities of daily living. Based onthe comprehensive assessment of aresident, the facility management mustensure that—

(1) A resident’s abilities in activitiesof daily living do not diminish unlesscircumstances of the individual’sclinical condition demonstrate thatdiminution was unavoidable. Thisincludes 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 orimprove his or her abilities specified inparagraph (b)(1) of this section; and

(3) A resident who is unable to carryout activities of daily living receives thenecessary services to maintain goodnutrition, hydration, grooming, personaland oral hygiene, mobility, and bladderand bowel elimination.

(c) Vision and hearing. To ensure thatresidents receive proper treatment andassistive devices to maintain vision andhearing abilities, the facility must, ifnecessary, assist the resident—

(1) In making appointments, and(2) By arranging for transportation to

and from the office of a practitioner



specializing in the treatment of vision orhearing impairment or the office of aprofessional specializing in theprovision of vision or hearing assistivedevices.

(d) Pressure sores. Based on thecomprehensive assessment of a resident,the facility management must ensurethat—

(1) A resident who enters the facilitywithout pressure sores does not developpressure sores unless the individual’sclinical condition demonstrates thatthey were unavoidable; and

(2) A resident having pressure soresreceives necessary treatment andservices to promote healing, preventinfection and prevent new sores fromdeveloping.

(e) Urinary and Fecal Incontinence.Based on the resident’s comprehensiveassessment, the facility managementmust ensure that—

(1) A resident who enters the facilitywithout an indwelling catheter is notcatheterized unless the resident’sclinical condition demonstrates thatcatheterization was necessary;

(2) A resident who is incontinent ofurine receives appropriate treatmentand services to prevent urinary tractinfections and to restore as muchnormal bladder function as possible;and

(3) A resident who has persistent fecalincontinence receives appropriatetreatment and services to treat reversiblecauses and to restore as much normalbowel function as possible.

(f) Range of motion. Based on thecomprehensive assessment of a resident,the facility management must ensurethat—

(1) A resident who enters the facilitywithout a limited range of motion doesnot experience reduction in range ofmotion unless the resident’s clinicalcondition demonstrates that a reductionin range of motion is unavoidable; and

(2) A resident with a limited range ofmotion receives appropriate treatmentand services to increase range of motionand/or to prevent further decrease inrange of motion.

(g) Mental and Psychosocialfunctioning. Based on thecomprehensive assessment of a resident,the facility management must ensurethat a resident who displays mental orpsychosocial adjustment difficulty,receives appropriate treatment andservices to correct the assessed problem.

(h) Enteral Feedings. Based on thecomprehensive assessment of a resident,the facility management must ensurethat—

(1) A resident who has been able toadequately eat or take fluids alone orwith assistance is not fed by enteral

feedings unless the resident’s clinicalcondition demonstrates that use ofenteral feedings was unavoidable; and

(2) A resident who is fed by enteralfeedings receives the appropriatetreatment and services to preventaspiration pneumonia, diarrhea,vomiting, dehydration, metabolicabnormalities, nasal-pharyngeal ulcersand other skin breakdowns, and torestore, if possible, normal eating skills.

(i) Accidents. The facilitymanagement must ensure that—

(1) The resident environment remainsas free of accident hazards as ispossible; and

(2) Each resident receives adequatesupervision and assistance devices toprevent accidents.

(j) Nutrition. Based on a resident’scomprehensive assessment, the facilitymanagement must ensure that aresident—

(1) Maintains acceptable parametersof nutritional status, such as bodyweight and protein levels, unless theresident’s clinical conditiondemonstrates that this is not possible;and

(2) Receives a therapeutic diet whena nutritional deficiency is identified.

(k) Hydration. The facilitymanagement must provide each residentwith sufficient fluid intake to maintainproper hydration and health.

(l) Special needs. The facilitymanagement must ensure that residentsreceive proper treatment and care forthe 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 befree from unnecessary drugs. Anunnecessary drug is any drug whenused:

(i) In excessive dose (includingduplicate 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 doseshould be reduced or discontinued; or

(vi) Any combinations of the reasonsabove.

(2) Antipsychotic Drugs. Based on acomprehensive assessment of a resident,the facility management must ensurethat—

(i) Residents who have not usedantipsychotic drugs are not given these

drugs unless antipsychotic drug therapyis necessary to treat a specific conditionas diagnosed and documented in theclinical record; and

(ii) Residents who use antipsychoticdrugs receive gradual dose reductions,and behavioral interventions, unlessclinically contraindicated, in an effort todiscontinue these drugs.

(n) Medication Errors. The facilitymanagement must ensure that—

(1) Medication errors are identifiedand reviewed on a timely basis; and

(2) strategies for preventingmedication errors and adverse reactionsare implemented.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.130 Nursing services.The facility management must

provide an organized nursing servicewith a sufficient number of qualifiednursing personnel to meet the totalnursing care needs, as determined byresident assessment and individualizedcomprehensive plans of care, of allpatients within the facility 24 hours aday, 7 days a week.

(a) The nursing service must be underthe direction of a full-time registerednurse who is currently licensed by theState and has, in writing, administrativeauthority, responsibility, andaccountability for the functions,activities, and training of the nursingservices staff.

(b) The facility management mustprovide registered nurses 24 hours perday, 7 days per week.

(c) The director of nursing servicemust designate a registered nurse as asupervising nurse for each tour of duty.

(1) Based on the application andresults of the case mix and staffingmethodology, the director of nursingmay serve in a dual role as director andas an onsite-supervising nurse onlywhen the facility has an average dailyoccupancy of 60 or fewer residents innursing home.

(2) Based on the application andresults of the case mix and staffingmethodology, the evening or nightsupervising nurse may serve in a dualrole as supervising nurse as well asprovides direct patient care only whenthe facility has an average dailyoccupancy of 60 or fewer residents innursing home.

(d) The facility management mustprovide nursing services to ensure thatthere is direct care nurse staffing of noless than 2.5 hours per patient per 24hours, 7 days per week in the portionof any building providing nursing homecare.

(e) Nurse staffing must be based on astaffing methodology that applies case



mix and is adequate for meeting thestandards of this part.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.140 Dietary services.The facility management must

provide each resident with a nourishing,palatable, well-balanced diet that meetsthe daily nutritional and special dietaryneeds of each resident.

(a) Staffing. The facility managementmust employ a qualified dietitian eitherfull-time, part-time, or on a consultantbasis.

(1) If a dietitian is not employed, thefacility management must designate aperson to serve as the director of foodservice who receives at least a monthlyscheduled consultation from a qualifieddietitian.

(2) A qualified dietitian is one who isqualified based upon registration by theCommission on Dietetic Registration ofthe American Dietetic Association.

(b) Sufficient staff. The facilitymanagement must employ sufficientsupport personnel competent to carryout the functions of the dietary service.

(c) Menus and nutritional adequacy.Menus must—

(1) Meet the nutritional needs ofresidents in accordance with therecommended dietary allowances of theFood and Nutrition Board of theNational Research Council, NationalAcademy 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, andappearance;

(2) Food that is palatable, attractive,and at the proper temperature;

(3) Food prepared in a form designedto meet individual needs; and

(4) Substitutes offered of similarnutritive value to residents who refusefood served.

(e) Therapeutic diets. Therapeuticdiets must be prescribed by the primarycare physician.

(f) Frequency of meals. (1) Eachresident receives and the facilityprovides at least three meals daily, atregular times comparable to normalmealtimes in the community.

(2) There must be no more than 14hours between a substantial eveningmeal and the availability of breakfast thefollowing day, except as provided in(f)(4) of this section.

(3) The facility staff must offer snacksat bedtime daily.

(4) When a nourishing snack isprovided at bedtime, up to 16 hoursmay elapse between a substantial

evening meal and breakfast thefollowing day.

(g) Assistive devices. The facilitymanagement must provide specialeating equipment and utensils forresidents who need them.

(h) Sanitary conditions. The facilitymust—

(1) Procure food from sourcesapproved or considered satisfactory byFederal, State, or local authorities;

(2) Store, prepare, distribute, andserve food under sanitary conditions;and (3) Dispose of garbage and refuseproperly.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.150 Physician services.A physician must personally approve

in writing a recommendation that anindividual be admitted to a facility.Each resident must remain under thecare of a physician.

(a) Physician supervision. The facilitymanagement must ensure that—

(1) The medical care of each residentis supervised by a primary carephysician;

(2) Each resident’s medical recordlists the name of the resident’s primaryphysician, and

(3) Another physician supervises themedical care of residents when theirprimary physician is unavailable.

(b) Physician visits. The physicianmust—

(1) Review the resident’s totalprogram of care, including medicationsand treatments, at each visit required byparagraph (c) of this section;

(2) Write, sign, and date progressnotes 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 30days for the first 90 days afteradmission, and at least once every 60days thereafter, or more frequentlybased on the condition of the resident.

(2) A physician visit is consideredtimely if it occurs not later than 10 daysafter the date the visit was required.

(3) Except as provided in paragraphs(c)(4) of this section, all requiredphysician visits must be made by thephysician personally.

(4) At the option of the physician,required visits in the facility after theinitial visit may alternate betweenpersonal visits by the physician andvisits by a physician assistant, nursepractitioner, or clinical nurse specialistin accordance with paragraph (e) of thissection.

(d) Availability of physicians foremergency care. The facilitymanagement must provide or arrange for

the provision of physician services 24hours a day, 7 days per week, in caseof an emergency.

(e) Physician delegation of tasks. (1)Except as specified in paragraph (e)(2)of this section, a primary physician maydelegate tasks to:

(i) a certified physician assistant or acertified 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 notdelegate a task when the regulationsspecify that the primary physician mustperform it personally, or when thedelegation is prohibited under State lawor by the facility’s own policies.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.160 Specialized rehabilitativeservices.

(a) Provision of services. If specializedrehabilitative services such as but notlimited to physical therapy, speechtherapy, occupational therapy, andmental health services for mental illnessare required in the resident’scomprehensive plan of care, facilitymanagement must—

(1) Provide the required services; or(2) Obtain the required services from

an outside resource, in accordance with§ 51.210(h) of this part, from a providerof specialized rehabilitative services.

(b) Specialized rehabilitative servicesmust be provided under the writtenorder of a physician by qualifiedpersonnel.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.170 Dental services.(a) A facility must provide or obtain

from an outside resource, in accordancewith § 51.210(h) of this part, routine andemergency dental services to meet theneeds of each resident;

(b) A facility may charge a resident anadditional amount for routine andemergency dental services; and

(c) A facility must, if necessary, assistthe 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)

§ 51.180 Pharmacy services.The facility management must

provide routine and emergency drugs



and biologicals to its residents, or obtainthem under an agreement described in§ 51.210(h) of this part. The facilitymanagement must have a system fordisseminating drug information tomedical and nursing staff.

(a) Procedures. The facilitymanagement must providepharmaceutical services (includingprocedures that assure the accurateacquiring, receiving, dispensing, andadministering of all drugs andbiologicals) to meet the needs of eachresident.

(b) Service consultation. The facilitymanagement must employ or obtain theservices of a pharmacist licensed in aState in which the facility is located ora VA pharmacist under VA contractwho—

(1) Provides consultation on allaspects of the provision of pharmacyservices in the facility;

(2) Establishes a system of records ofreceipt and disposition of all controlleddrugs in sufficient detail to enable anaccurate reconciliation; and

(3) Determines that drug records arein order and that an account of allcontrolled drugs is maintained andperiodically reconciled.

(c) Drug regimen review. (1) The drugregimen of each resident must bereviewed at least once a month by alicensed pharmacist.

(2) The pharmacist must report anyirregularities to the primary physicianand the director of nursing, and thesereports must be acted upon.

(d) Labeling of drugs and biologicals.Drugs and biologicals used in thefacility management must be labeled inaccordance with currently acceptedprofessional principles, and include theappropriate accessory and cautionaryinstructions, and the expiration datewhen applicable.

(e) Storage of drugs and biologicals.(1) In accordance with State and Federallaws, the facility management muststore all drugs and biologicals in lockedcompartments under propertemperature controls, and permit onlyauthorized personnel to have access tothe keys.

(2) The facility management mustprovide separately locked, permanentlyaffixed compartments for storage ofcontrolled drugs listed in Schedule II ofthe Comprehensive Drug AbusePrevention and Control Act of 1976 andother drugs subject to abuse.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.190 Infection control.The facility management must

establish and maintain an infectioncontrol program designed to provide a

safe, sanitary, and comfortableenvironment and to help prevent thedevelopment and transmission ofdisease and infection.

(a) Infection control program. Thefacility management must establish aninfection control program under whichit—

(1) Investigates, controls, and preventsinfections in the facility;

(2) Decides what procedures, such asisolation, should be applied to anindividual resident; and

(3) Maintains a record of incidentsand corrective actions related toinfections.

(b) Preventing spread of infection. (1)When the infection control programdetermines that a resident needsisolation to prevent the spread ofinfection, the facility management mustisolate the resident.

(2) The facility management mustprohibit employees with acommunicable disease or infected skinlesions from engaging in any contactwith residents or their environment thatwould transmit the disease.

(3) The facility management mustrequire staff to wash their hands aftereach direct resident contact for whichhand washing is indicated by acceptedprofessional practice.

(c) Linens. Personnel must handle,store, process, and transport linens so asto prevent the spread of infection.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.200 Physical environment.

The facility management must bedesigned, constructed, equipped, andmaintained to protect the health andsafety of residents, personnel and thepublic.

(a) Life safety from fire. The facilitymust meet the applicable provisions ofthe National Fire ProtectionAssociation’s NFPA 101, Life SafetyCode (1997 edition) and the NFPA 99,Standard for Health Care Facilities(1996 edition). Incorporation byreference of these materials wasapproved by the Director of the FederalRegister in accordance with 5 U.S.C.552(a) and 1 CFR part 51. Thesematerials incorporated by reference areavailable for inspection at the Office ofthe Federal Register, Suite 700, 800North Capitol Street, NW., Washington,DC, and the Department of VeteransAffairs, Office of RegulationsManagement (02D), Room 1154, 810Vermont Avenue, NW., Washington, DC20420. Copies may be obtained from theNational Fire Protection Association, 1Batterymarch Park, P.O. Box 9101,Quincy, MA 02269–9101. (For ordering

information, call toll-free 1–800–344–3555.)

(b) Emergency power. (1) Anemergency electrical power system mustbe provided to supply power adequatefor illumination of all exit signs andlighting for the means of egress, firealarm and medical gas alarms,emergency communication systems, andgenerator task illumination.

(2) The system must be theappropriate type essential electricalsystem in accordance with theapplicable provisions of the NationalFire Protection Association’s NFPA 101,Life Safety Code (1997 edition) and theNFPA 99, Standard for Health CareFacilities (1996 edition). Incorporationby reference of these materials wasapproved by the Director of the FederalRegister in accordance with 5 U.S.C.552(a) and 1 CFR part 51. Theavailability of these materials isdescribed in paragraph (a) of thissection.

(3) When electrical life supportdevices are used, an emergencyelectrical power system must also beprovided for devices in accordance withNFPA 99, Standard for Health CareFacilities (1996 edition).

(4) The source of power must be anon-site emergency standby generator ofsufficient size to serve the connectedload or other approved sources inaccordance with the National FireProtection Association’s NFPA 101, LifeSafety Code (1997 edition) and theNFPA 99, Standard for Health CareFacilities (1996 edition). Incorporationby reference of these materials wasapproved by the Director of the FederalRegister in accordance with 5 U.S.C.552(a) and 1 CFR part 51. Theavailability of these materials isdescribed in paragraph (a) of thissection.

(c) Space and equipment. Facilitymanagement must—

(1) Provide sufficient space andequipment in dining, health services,recreation, and program areas to enablestaff to provide residents with neededservices as required by these standardsand as identified in each resident’s planof care; and

(2) Maintain all essential mechanical,electrical, and patient care equipment insafe operating condition.

(d) Resident rooms. Resident roomsmust be designed and equipped foradequate nursing care, comfort, andprivacy of residents: (1) Bedroomsmust—

(i) Accommodate no more than fourresidents;

(ii) Measure at least 115 net squarefeet per resident in multiple residentbedrooms;



(iii) Measure at least 150 net squarefeet in single resident bedrooms;

(iv) Measure at least 245 net squarefeet in small double resident bedrooms;and

(v) Measure at least 305 net squarefeet in large double resident bedroomsused for spinal cord injury residents. Itis recommended that the facility haveone large double resident bedroom forevery 30 resident bedrooms.

(vi) Have direct access to an exitcorridor;

(vii) Be designed or equipped toassure full visual privacy for eachresident;

(viii) Except in private rooms, eachbed must have ceiling suspendedcurtains, which extend around the bedto provide total visual privacy incombination with adjacent walls andcurtains;

(ix) Have at least one window to theoutside; and

(x) Have a floor at or above gradelevel.

(2) The facility management mustprovide each resident with—

(i) A separate bed of proper size andheight 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 individualcloset space in the resident’s bedroomwith clothes racks and shelvesaccessible to the resident.

(e) Toilet facilities. Each residentroom must be equipped with or locatednear toilet and bathing facilities. It isrecommended that public toiletfacilities be also located near theresident’s dining and recreational areas.

(f) Resident call system. The nurse’sstation must be equipped to receiveresident calls through a communicationsystem from—

(1) Resident rooms; and(2) Toilet and bathing facilities.(g) Dining and resident activities. The

facility management must provide oneor more rooms designated for residentdining and activities. These roomsmust—

(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 asafe, functional, sanitary, andcomfortable environment for theresidents, staff and the public. Thefacility must—

(1) Establish procedures to ensure thatwater is available to essential areaswhen there is a loss of normal watersupply;

(2) Have adequate outside ventilationby means of windows, or mechanicalventilation, or a combination of the two;

(3) Equip corridors with firmlysecured handrails on each side; and

(4) Maintain an effective pest controlprogram so that the facility is free ofpests and rodents.(Authority: 38 U.S.C. 101, 501, 1710, 1741–1743)

§ 51.210 Administration.A facility must be administered in a

manner that enables it to use itsresources effectively and efficiently toattain or maintain the highestpracticable physical, mental, andpsychosocial well being of eachresident.

(a) Governing body. (1) The State musthave a governing body, or designatedperson functioning as a governing body,that is legally responsible forestablishing and implementing policiesregarding the management andoperation of the facility; and

(2) The governing body or Stateofficial with oversight for the facilityappoints the administrator who is—

(i) Licensed by the State wherelicensing is required; and

(ii) Responsible for operation andmanagement of the facility.

(b) Disclosure of State agency andindividual responsible for oversight offacility. The State must give writtennotice to the Chief Consultant,Geriatrics and Extended Care StrategicHealthcare Group (114), VAHeadquarters, 810 Vermont Avenue,NW, Washington, DC 20420, at the timeof the change, if any of the followingchange:

(1) The State agency and individualresponsible for oversight of a State homefacility;

(2) The State home administrator; and(3) The State employee responsible for

oversight of the State home facility if acontractor operates the State home.

(c) Required Information. The facilitymanagement must submit the followingto the director of the VA medical centerof jurisdiction as part of the applicationfor recognition and thereafter as often asnecessary to be current or as specified:

(1) The copy of legal andadministrative action establishing theState-operated facility (e.g., State laws);

(2) Site plan of facility andsurroundings;

(3) Legal title, lease, or otherdocument establishing right to occupyfacility;

(4) Organizational charts and theoperational plan of the facility;

(5) The number of the staff bycategory indicating full-time, part-timeand minority designation (annual attime of survey);

(6) The number of nursing homepatients who are veterans and non-veterans, the number of veterans whoare minorities and the number of non-veterans who are minorities (annual attime of survey);

(7) Annual State Fire Marshall’sreport;

(8) Annual certification from theresponsible State Agency showingcompliance with Section 504 of theRehabilitation Act of 1973 (Public Law93–112) (VA Form 10–0143A set forth at§ 58.14 of this chapter);

(9) Annual certification for Drug-FreeWorkplace Act of 1988 (VA Form 10–0143 set forth at § 58.15 of this chapter);

(10) Annual certification regardinglobbying in compliance with Public Law101–121 (VA Form 10–0144 set forth at§ 58.16 of this chapter); and

(11) Annual certification ofcompliance with Title VI of the CivilRights Act of 1964 as incorporated inTitle 38 CFR 18.1–18.3 (VA Form 10–0144A located at § 58.17 of thischapter).

(d) Percentage of Veterans. Thepercent of the facility residents eligiblefor VA nursing home care must be atleast 75 percent veterans except that theveteran percentage need only be morethan 50 percent if the facility wasconstructed or renovated solely withState funds. All non-veteran residentsmust be spouses of veterans or parentsall of whose children died while servingin the armed forces of the United States.

(e) Management Contract Facility. If afacility is operated by an entitycontracting with the State, the Statemust assign a State employee to monitorthe operations of the facility on a full-time onsite basis.

(f) Licensure. The facility and facilitymanagement must comply withapplicable State and local licensurelaws.

(g) Staff qualifications. (1) The facilitymanagement must employ on a full-time, part-time or consultant basis thoseprofessionals necessary to carry out theprovisions of these requirements.

(2) Professional staff must be licensed,certified, or registered in accordancewith applicable State laws.

(h) Use of outside resources. (1) If thefacility does not employ a qualifiedprofessional person to furnish a specificservice to be provided by the facility,the facility management must have thatservice furnished to residents by aperson or agency outside the facilityunder a written agreement described inparagraph (h)(2) of this section.

(2) Agreements pertaining to servicesfurnished by outside resources mustspecify in writing that the facility



management assumes responsibilityfor—

(i) Obtaining services that meetprofessional standards and principlesthat apply to professionals providingservices in such a facility; and

(ii) The timeliness of the services.(i) Medical director. (1) The facility

management must designate a primarycare physician to serve as medicaldirector.

(2) The medical director isresponsible for—

(i) Participating in establishingpolicies, procedures, and guidelines toensure adequate, comprehensiveservices;

(ii) Directing and coordinatingmedical care in the facility;

(iii) Helping to arrange for continuousphysician coverage to handle medicalemergencies;

(iv) Reviewing the credentialing andprivileging process;

(v) Participating in managing theenvironment by reviewing andevaluating incident reports orsummaries of incident reports,identifying hazards to health and safety,and making recommendations to theadministrator; and

(vi) Monitoring employees’ healthstatus and advising the administrator onemployee-health policies.

(j) Credentialing and Privileging.Credentialing is the process ofobtaining, verifying, and assessing thequalifications of a health carepractitioner, which may includephysicians, podiatrists, dentists,psychologists, physician assistants,nurse practitioners, licensed nurses toprovide patient care services in or for ahealth care organization. Privileging isthe process whereby a specific scopeand content of patient care services areauthorized for a health care practitionerby the facility management, based onevaluation of the individual’scredentials and performance.

(1) The facility management mustuniformly apply credentialing criteria tolicensed practitioners applying toprovide resident care or treatment underthe facility’s care.

(2) The facility management mustverify and uniformly apply thefollowing core criteria: currentlicensure; current certification, ifapplicable, relevant education, training,and experience; current competence;and a statement that the individual isable to perform the services he or she isapplying to provide.

(3) The facility management mustdecide whether to authorize theindependent practitioner to provideresident care or treatment, and eachcredentials file must indicate that these

criteria are uniformly and individuallyapplied.

(4) The facility management mustmaintain documentation of currentcredentials for each licensedindependent practitioner practicingwithin the facility.

(5) When reappointing a licensedindependent practitioner, the facilitymanagement must review theindividual’s record of experience.

(6) The facility managementsystematically must assess whetherindividuals with clinical privileges actwithin the scope of privileges granted.

(k) Required training of nursing aides.(1) Nurse aide means any individualproviding nursing or nursing-relatedservices to residents in a facility who isnot a licensed health professional, aregistered dietitian, or a volunteer whoprovide such services without pay.

(2) The facility management must notuse any individual working in thefacility as a nurse aide whetherpermanent or not unless:

(i) That individual is competent toprovide nursing and nursing relatedservices; and

(ii) That individual has completed atraining and competency evaluationprogram, or a competency evaluationprogram approved by the State.

(3) Registry verification. Beforeallowing an individual to serve as anurse aide, facility management mustreceive registry verification that theindividual has met competencyevaluation requirements unless theindividual can prove that he or she hasrecently successfully completed atraining and competency evaluationprogram or competency evaluationprogram approved by the State and hasnot yet been included in the registry.Facilities must follow up to ensure thatsuch an individual actually becomesregistered.

(4) Multi-State registry verification.Before allowing an individual to serveas a nurse aide, facility managementmust seek information from every Stateregistry established under HHSregulations at 42 CFR 483.156 which thefacility believes will includeinformation on the individual.

(5) Required retraining. If, since anindividual’s most recent completion ofa training and competency evaluationprogram, there has been a continuousperiod of 24 consecutive months duringnone of which the individual providednursing or nursing-related services formonetary compensation, the individualmust complete a new training andcompetency evaluation program or anew competency evaluation program.

(6) Regular in-service education. Thefacility management must complete a

performance review of every nurse aideat least once every 12 months, and mustprovide regular in-service educationbased on the outcome of these reviews.The in-service training must—

(i) Be sufficient to ensure thecontinuing competence of nurse aides,but must be no less than 12 hours peryear;

(ii) Address areas of weakness asdetermined in nurse aides’ performancereviews and may address the specialneeds of residents as determined by thefacility staff; and

(iii) For nurse aides providingservices to individuals with cognitiveimpairments, also address the care ofthe cognitively impaired.

(l) Proficiency of Nurse aides. Thefacility management must ensure thatnurse aides are able to demonstratecompetency in skills and techniquesnecessary to care for residents’ needs, asidentified through resident assessments,and described in the plan of care.

(m) Level B Requirement Laboratoryservices. (1) The facility managementmust provide or obtain laboratoryservices to meet the needs of itsresidents. The facility is responsible forthe quality and timeliness of theservices.

(i) If the facility provides its ownlaboratory services, the services mustmeet all applicable certificationstandards, statutes, and regulations forlaboratory services.

(ii) If the facility provides blood bankand transfusion services, it must meetall applicable certification standards,statutes, and regulations.

(iii) If the laboratory chooses to referspecimens for testing to anotherlaboratory, the referral laboratory mustbe certified in the appropriatespecialities and subspecialties ofservices and meet certificationstandards, statutes, and regulations.

(iv) The laboratory performing thetesting must have a current, valid CLIAnumber (Clinical LaboratoryImprovement Amendments of 1988).The facility management must provideVA surveyors with the CLIA numberand a copy of the results of the last CLIAinspection.

(v) Such services must be available tothe resident seven days a week, 24hours a day.

(2) The facility management must—(i) Provide or obtain laboratory

services only when ordered by theprimary physician;

(ii) Promptly notify the primaryphysician of the findings;

(iii) Assist the resident in makingtransportation arrangements to and fromthe source of service, if the residentneeds assistance; and



(iv) File in the resident’s clinicalrecord laboratory reports that are datedand contain the name and address of thetesting laboratory.

(n) Radiology and other diagnosticservices. (1) The facility managementmust provide or obtain radiology andother diagnostic services to meet theneeds of its residents. The facility isresponsible for the quality andtimeliness of the services.

(i) If the facility provides its owndiagnostic services, the services mustmeet all applicable certificationstandards, statutes, and regulations.

(ii) If the facility does not provide itsown diagnostic services, it must have anagreement to obtain these services. Theservices must meet all applicablecertification standards, statutes, andregulations.

(iii) Radiologic and other diagnosticservices must be available 24 hours aday, seven days a week.

(2) The facility must—(i) Provide or obtain radiology and

other diagnostic services when orderedby the primary physician;

(ii) Promptly notify the primaryphysician of the findings;

(iii) Assist the resident in makingtransportation arrangements to and fromthe source of service, if the residentneeds assistance; and

(iv) File in the resident’s clinicalrecord signed and dated reports of x-rayand other diagnostic services.

(o) Clinical records. (1) The facilitymanagement must maintain clinicalrecords on each resident in accordancewith accepted professional standardsand 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 requirementin State law.

(3) The facility management mustsafeguard clinical record informationagainst loss, destruction, orunauthorized use;

(4) The facility management mustkeep confidential all informationcontained in the resident’s records,regardless of the form or storage methodof the records, except when release isrequired by—

(i) Transfer to another health careinstitution;

(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 maintaina quality assessment and assurancecommittee 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 qualityassessment and assurance activities arenecessary; and

(ii) Develops and implementsappropriate plans of action to correctidentified quality deficiencies; and

(3) Identified quality deficiencies arecorrected within an established timeperiod.

(4) The VA Under Secretary for Healthmay not require disclosure of therecords of such committee unless suchdisclosure is related to the compliancewith requirements of this section.

(q) Disaster and emergencypreparedness. (1) The facilitymanagement must have detailed writtenplans and procedures to meet allpotential emergencies and disasters,such as fire, severe weather, andmissing residents.

(2) The facility management musttrain all employees in emergencyprocedures when they begin to work inthe facility, periodically review theprocedures with existing staff, and carryout unannounced staff drills using thoseprocedures.

(r) Transfer agreement. (1) The facilitymanagement must have in effect awritten transfer agreement with one ormore hospitals that reasonably assuresthat—

(i) Residents will be transferred fromthe nursing home to the hospital, andensured of timely admission to thehospital when transfer is medicallyappropriate as determined by theprimary physician; and

(ii) Medical and other informationneeded for care and treatment ofresidents, and, when the transferringfacility deems it appropriate, fordetermining whether such residents canbe adequately cared for in a lessexpensive setting than either thenursing home or the hospital, will beexchanged between the institutions.

(2) The facility is considered to havea transfer agreement in effect if thefacility has an agreement with a hospitalsufficiently close to the facility to maketransfer feasible.

(s) Compliance with Federal, State,and local laws and professionalstandards. The facility managementmust operate and provide services incompliance with all applicable Federal,State, and local laws, regulations, andcodes, and with accepted professionalstandards and principles that apply toprofessionals providing services in sucha facility. This includes the Single AuditAct of 1984 (Title 31, Section 7501 etseq.) and the Cash ManagementImprovement Acts of 1990 and 1992(Public Laws 101–453 and 102–589, see31 USC 3335, 3718, 3720A, 6501, 6503)

(t) Relationship to other Federalregulations. In addition to compliancewith the regulations set forth in thissubpart, facilities are obliged to meet theapplicable provisions of other Federallaws and regulations, including but notlimited to those pertaining tonondiscrimination on the basis of race,color, national origin, handicap, or age(38 CFR part 18); protection of humansubjects of research (45 CFR part 46),section 504 of the Rehabilitation Act of1993, Public Law 93–112; Drug-FreeWorkplace Act of 1988, 38 CFR part 44,section 44.100 through 44.420; section319 of Public Law 101–121; Title VI ofthe Civil Rights Act of 1964, 38 CFR18.1–18.3. Although these regulationsare not in themselves consideredrequirements under this part, theirviolation may result in the terminationor suspension of, or the refusal to grantor continue payment with Federalfunds.

(u) Intermingling. A building housinga facility recognized as a State home forproviding nursing home care may onlyprovide nursing home care in the areasof the building recognized as a Statehome for providing nursing home care.

(v) VA Management of State VeteransHomes. Except as specifically providedby statute or regulations, VA employeeshave no authority regarding themanagement or control of State homesproviding 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 AidClaimed.



58.12 VA Form 10–10EZ—Application forHealth Benefits.

58.13 VA Form 10–10SH—State HomeProgram Application for Veteran Care—Medical Certification.

58.14 VA Form 10–0143A—Statement ofAssurance of Compliance with Section504 of The Rehabilitation Act of 1973.

58.15 VA Form 10–0143—Department ofVeterans Affairs Certification RegardingDrug-Free Workplace Requirements forGrantees Other Than Individuals.

58.16 VA Form 10–0144—CertificationRegarding Lobbying.

58.17 VA Form 10–0144A—Statement ofAssurance of Compliance with EqualOpportunity Laws.

Authority: 38 U.S.C. 101, 501, 1710, 1741–1743.BILLING CODE 8320–01–C



§ 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.



§ 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 GranteesOther 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.

[FR Doc. 00–60 Filed 1–5–00; 8:45 am]BILLING CODE 8320–01–C


thursday january 6, 2000 - veterans affairs962 federal register/vol. 65, no. 4/thursday, january 6,...

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