§ 17.213 - Applications with respect to projects.

(a) A State desiring to receive Federal assistance for construction or acquisition of a State home facility shall submit to the Secretary a preapplication (if the need for Federal funding exceeds $100,000) and an application for such assistance in compliance with the uniform requirements for grant-in-aid to State and local governments prescribed in the Office of Management and Budget Circular No. A-102, Revised. The applicant will submit as part of the application or as an attachment thereto:

(1) The amount of the grant requested with respect to such project which may not exceed 65 percent of the estimated cost of construction or acquisition and construction of such project.

(2) A description of the site for such project.

(3) Plans and specifications as required by 38 U.S.C. 8135 and 38 CFR 17.210 through 17.216.

(4) Any comments or recommendations made by appropriate State (and areawide) clearinghouses pursuant to policies outlined in Executive Order 12372, Intergovernmental Review of Federal Programs (part 40 of this chapter).

(5) The State application for Federal assistance shall include environmental documentation for the project by submitting a Categorical Exclusion (CE), Environmental Assessment (EA), or an Environmental Impact Statement (EIS). The environmental documentation will require approval by the Department of Veterans Affairs before final award of a construction or acquisition grant for a State veterans home. (See § 26.6 of this chapter for compliance requirements.) If the proposed actions involving construction or acquisition do not individually or cumulatively have a significant effect on the human environment, the applicant shall submit a letter noting a Categorical Exclusion. If construction outside the walls of an existing structure will involve more than 75,000 gross square feet (GSF), the application shall include an environmental assessment to determine if an Environmental Impact Statement is necessary for compliance with section 102(2)(c) of the National Environmental Policy Act of 1969. When the application submission requires an environmental assessment, the State shall briefly describe the possible beneficial and/or harmful effect which the project may have on the following impact categories:

(i) Transportation;

(ii) Air quality;

(iii) Noise;

(iv) Solid waste;

(v) Utilities;

(vi) Geology (soils/hydrology/flood plains);

(vii) Water quality;

(viii) Land use;

(ix) Vegetation, wildlife, aquatic, and ecology/wetlands;

(x) Economic activities;

(xi) Cultural resources;

(xii) Aesthetics;

(xiii) Residential population;

(xiv) Community services and facilities;

(xv) Community plans and projects; and

(xvi) Other.

If an adverse environmental impact is anticipated, the action to be taken to minimize the impact should be explained in the environmental assessment.

(b) The applicant must furnish reasonable assurance that:

(1) Upon completion of such project the facilities will be used principally to furnish to veterans the level of care for which such application is made, and that not more than 25 per centum of the bed occupancy at any one time will consist of patients who are not receiving such level of care as veterans, and that such level of care will meet the standards prescribed by the Secretary.

(2) Title to such site is or will be vested solely in the applicant, State home, or other agency or instrumentality of the State.

(3) Adequate financial support will be available for the construction of the project, and for its maintenance, repair and operation when complete.

(4) The State will make such reports in such form and containing such information as the Secretary may from time to time reasonably require, and give the Secretary, upon demand, access to the records upon which such information is based.

(5) The rates of pay for laborers and mechanics engaged in construction of the project will not be less than the prevailing local wage rates for similar work as determined in accordance with the Act of March 3, 1931 (40 U.S.C. 276a through 276a-5) known as the Davis-Bacon Act.

(6) Contractors engaged in the construction of the project will be required to comply with the provisions of Executive Order 11246 of September 24, 1965 (30 FR 12319), as amended by Executive Order 11375 of October 13, 1967 (32 FR 14303), and by Executive Order 12086 of October 5, 1978 (43 FR 46501), and rules, regulations, or orders as the Secretary of Labor may issue or adopt.

(7) Grantees will comply with the Federal requirements contained in title 38, Code of Federal Regulations, parts 43 and 44 and assurances contained in SF-424D, Assurances-Construction Programs.

(8) The structures constructed will be of fire, earthquake, and other natural disaster resistant construction.

(9) In the case of a project for acquisition of a facility, the State agency must provide reasonable assurance that the total cost of acquisition of the facility, including any expansion, remodeling and alteration to meet all building requirements and codes, and for all other purposes, shall not be greater than the estimated cost of construction of an equivalent new State home facility.

(10) An audit will be performed in compliance with the Single Audit Act of 1984 (See part 41 of this chapter).

(c) Upon receipt of an application for a grant for a project for construction or acquisition of a State veterans home, the Secretary or designee shall:

(1) Determine whether the application meets the requirements of 38 U.S.C. 8135 and §§ 17.210 through 17.216 and appendix A to § 17.211 of this title and whether the application contains sufficient information for the Secretary to establish its priority. The Secretary shall consider the following factors when making a determination for purposes of this section that a project is primarily a State veterans nursing home, domiciliary or hospital project:

(i) The number of State veterans nursing home, domiciliary, and/or hospital beds that would be constructed or acquired by the project;

(ii) The amount of nursing home, domiciliary, or hospital project space that will result from the construction or acquisition project;

(iii) The estimated number of veteran patients who would benefit from the construction or acquisition project.

(2) Notify the State submitting the application whether the application conforms with such requirements, and, if it does not, notify the State

(i) Of the actions necessary to bring the application into conformance with those requirements; and

(ii) If the application provides insufficient information for the Secretary to establish its priority under subparagraph (1) of this paragraph; and

(3)(i) If such application provides sufficient information for the Secretary to establish its priority, determine the priority of the project described in the application in relation to all other projects in accordance with the criteria set forth in this paragraph. In establishing a project's priority, the Secretary shall rank projects from the highest to the lowest priority in the order of priority groups set forth in this paragraph, giving the projects in Group 1 the highest priority and the projects in Group 6 the lowest. Where more than one project is ranked in a single priority group, the Secretary shall rank those projects by applying the criteria applicable to the next lower priority group. If a State's application for Federal assistance for a project that exceeds 50 percent of the next fiscal year's estimated appropriation for State home grants will be placed at the bottom of the priority group in which it is ranked. Where such ranking results in more than one project being given the same priority, the Secretary shall rank those projects, except as otherwise provided, in accordance with the criteria applicable to the next lowest priority group until all projects are ranked with a different priority.

(ii) The priority groups are:

(A) Priority Group 1: A State veterans nursing home or domiciliary project for which a State, in the judgment of the Secretary, has made sufficient funds available for construction and/or acquisition so that the project may proceed upon approval of the grant which the State has requested without further action required by the State to make such funds available for that purpose, shall be accorded first priority. For the purpose of the priority list, the Secretary will accept the following as demonstrating that a State has made sufficient funds available:

(1) A copy of the Act, as approved by the Governor, making available at least one-half of the State's matching funds for the project; and

(2) A letter from an authorized State budget official certifying that at least one-half of the State funds are, or will be, available for the project, so that if VA approves the grant during the next fiscal year, the project may proceed without further State action to make such funds available.

(B) Priority Group 2: A State veterans nursing home or domiciliary project from a State which has not received a construction or acquisition grant from the Secretary under 38 U.S.C. 15035 shall be accorded second priority.

(C) Priority Group 3: A State veterans nursing home or domiciliary bed producing or non-bed producing project from a State, which the Secretary determines, pursuant to this paragraph, to have a greater need for State veterans nursing home or domiciliary beds than other States which have submitted applications, shall be accorded third priority. The Secretary shall base such determinations on the Secretary's calculation, pursuant to this paragraph, of the State's unmet need for such beds. A State which has submitted an application for a project which the Secretary determines to be primarily a nursing home project will be deemed to have a greater need for State veterans nursing home beds than other States if the Secretary determines that the State has an unmet need for such beds of between 91 percent and 100 percent. The Secretary shall determine a State's unmet need for State veterans nursing home beds by dividing the number of that State's nursing home beds authorized by the Department of Veterans Affairs in State veterans Homes as of August 15 of the current year by the number of beds needed to provide adequate nursing home care to veterans residing in that State as prescribed by the Secretary in appendix A. The quotient, expressed as a percentage will be subtracted from 100 percent. The difference constitutes the State's unmet need for State veterans nursing home beds for purposes of this section. The Secretary shall determine a State's unmet need for domiciliary beds by dividing the number of that State's domiciliary beds authorized by the Department of Veterans Affairs as of August 15 of the current year by the number of beds needed to provide adequate domiciliary care to veterans residing in that State prescribed by the Secretary in appendix A. The quotient, expressed as a percentage will be subtracted from 100 percent. The difference constitutes the State's unmet need for State veterans domiciliary beds for purposes of this section.

(D) Priority Group 4: A State veterans nursing home or domiciliary project, which is not assigned a higher priority under this section, shall be accorded fourth priority. If there is more than one project in this priority group, the Secretary shall assign each project a value as set forth in the following table in accordance with the Secretary's determination of the type of project:

Type of projectValueLife-safety project for nursing home facility 10Project resulting in the construction or acquisition of nursing home beds 10Life-safety project for domiciliary facility 9Project resulting in the construction or acquisition of domiciliary beds 8Nursing home renovation project 6Domiciliary renovation project 4 If the Secretary determines that a project could be included in two or more of the above-listed types so that the project, in the judgment of the Secretary, cannot be accurately characterized as to type by reference to any single type listed above, the Secretary shall determine the numerical value to be assigned a project by calculating the average of all the numerical values associated with all types of projects in which the project could be included. The Secretary shall rank projects in accordance with the numerical values assigned, with the highest priority being assigned to the project with the highest numerical valuation. Where this results in two or more projects with the same priority, these projects shall be ranked in the order in which the Secretary received the State's preapplication for that project giving highest priority to the project for which a preapplication was received first. If a preapplication was not received by the Secretary for a project, the project shall be ranked with other projects using the date on which the Secretary received the application for the projects.

(E) Priority Group 5: A project which is primarily designed to renovate a State veterans hospital facility but which would not expand a State's capacity to furnish hospital care in a State veterans home shall be accorded fifth priority. Where more than one project is ranked in this priority group, the Secretary shall rank them in the order in which the Secretary received the State's preapplication for the project and shall give highest priority to the project for which a preapplication was received first. If a preapplication was not received by the Secretary for a project, the project shall be ranked with other projects using the date on which the Secretary received the application for the project.

(F) Priority Group 6: A hospital project which would expand a State's capacity to furnish hospital care in a State veterans home shall be accorded no priority. Where more than one such project has been submitted, the Secretary shall rank them in the order in which the Secretary received the State's preapplication for the projects and shall assign the lowest ranking to the project for which a preapplication was received last. If a preapplication was not received by the Secretary for a project, the project shall be ranked with other projects using the date on which the Secretary received the application for the project.

(d) The Secretary shall establish after August 15 of each year a list of projects, including projects that have been conditionally approved under paragraph (e) of this section, in the order of their priority on August 15 of that year as determined pursuant to paragraph (c) of this section. To the extent that Federal funds are available, the Secretary shall award grants in the order of their priority on this list during the fiscal year beginning on October 1 of the calendar year in which the list is made. Once the list is established for the purpose of awarding grants, the Secretary shall not add projects or change the list in any way except to delete a project at the request of the State which has applied for grant assistance for that project or upon the award by the Secretary of a grant for a project on the list.

(e) The Secretary may conditionally approve a project, conditionally award a grant for the project, and obligate funds for the grant if:

(1) The grant application is sufficiently complete to warrant the conditional award; and

(2) The State requests conditional approval for its application and provides the Department of Veterans Affairs written assurance that it will complete the application and meet all requirements not later than 90 days after the date of conditional approval by the Secretary of the Department of Veterans Affairs.

The final grant award shall not exceed 10 percent of the amount conditionally approved, and in no case shall the total amount of the grant exceed 65 percent of the total estimated cost of the project. If the State fails to complete the remaining requirements within the 90 days from the date of conditional approval, the Secretary shall rescind the conditional approval and grant award, and deobligate the funds previously obligated for the project.

(f)(1) The Secretary shall defer approval of an application that otherwise meets the requirements of 38 U.S.C. 8135, if the State which submitted the application does not, by July 1 of the Federal fiscal year in which the State is notified by the Assistant Chief Medical Director for Geriatrics and Extended Care of the availability of Federal funding for a grant for the project described in the application, demonstrate that the State has provided adequate financial support (matching funds) for such project. A State's enactment into law of a bill appropriating the State's share of funding for the project is acceptable to demonstrate that the State has provided adequate financial support (matching funds) for the project. The Department of Veterans Affairs will evaluate other types of assurances on a case by case basis.

(2) The Secretary will apply Federal funds, which had been intended for an application which has been deferred pursuant to subparagraph (1) of this paragraph to applications for State veterans nursing home or domiciliary projects that:

(i) Would not have been funded during the fiscal year but for the deferral,

(ii) Will meet the requirements of these regulations by the end of the Federal fiscal year, and

(iii) The Secretary has accorded the highest priority under paragraph (c) of this section.

(3) An application deferred in accordance with paragraph (e)(1) of this section shall be accorded priority in any subsequent Federal fiscal year ahead of applications that had not been approved before the first day of the Federal fiscal year in which the deferred application was first approved.

(g) The amount of a grant under these regulations shall be paid to the applicant or, if designated by the applicant, the State home for which such project is being developed or any other agency or instrumentality of the applicant. Funds paid for an approved project will be used solely for carrying out such project as so approved.

(h) Any amendment of any application whether or not approved under paragraph (d) of this section will be subject to review and approval pursuant to the regulations concerning grants to States for construction of State home facilities in the same manner as an original application.

(i) Any amendment of any application whether or not approved under paragraph (c) of this section will be subject to review and approval pursuant to the regulations concerning grants to States for construction of State home facilities in the same manner as an original application.

(Information collection requirements contained in § 17.213 were approved by the Office of Management and Budget under control number 2900-0502)