[Federal Register Volume 65, Number 4 (Thursday, January 6, 2000)]
[Rules and Regulations]
[Pages 962-997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-60]
[[Page 961]]
Part III
Department of Veterans Affairs
_______________________________________________________________________
38 CFR Parts 17 et al.
Per Diem for Nursing Home Care of Veterans in State Homes; Final Rule
Federal Register / Vol. 65, No. 4 / Thursday, January 6, 2000 / Rules
and Regulations
[[Page 962]]
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 17, 51, and 58
RIN 2900-AE87
Per Diem for Nursing Home Care of Veterans in State Homes
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends regulations regarding the payment of per
diem to State homes that provide nursing home care to eligible
veterans. The intended effect of the final rule is to ensure that
veterans receive high quality care in State homes.
DATES: Effective date: February 7, 2000.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of February 7, 2000.
FOR FURTHER INFORMATION CONTACT: L. Nan Stout, Chief, State Home Per
Diem Program (114), Veterans Health Administration, 202-273-8538.
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on November 9, 1998 (63 FR 60227), we proposed to establish a
new part 51 setting forth a mechanism for paying per diem to State
homes providing nursing home care to eligible veterans. We provided a
60-day comment period which ended January 8, 1999. We received
responses from 20 commenters. The issues raised in the comments are
discussed below.
Based on the rationale set forth in the proposed rule and in this
document, we are adopting the provisions of the proposed rule as a
final rule with changes explained below. Under the final rule, VA will
pay per diem to a State for providing nursing home care to eligible
veterans in a facility if the Under Secretary for Health recognizes the
facility as a State home based on a current VA certification that the
facility meets the standards set forth in subpart D.
Section 51.2 Definitions
We proposed to define ``physician assistant'' to mean a person who
meets the applicable State requirements for physician assistants, is
currently certified by the National Commission on Certification of
Physician Assistants (NCCPA) as a physician assistant, and has an
individualized written scope of practice that determines the
authorization to write medical orders, prescribe medications and other
clinical tasks under appropriate physician supervision which is
approved by the primary care physician.
One commenter asserted that the definition should not include a
requirement that a physician assistant be currently certified by the
National Commission on Certification of Physician Assistants. In this
regard, the commenter argued that the imposition of a national
certification requirement would be cumbersome to administer and create
confusion regarding which physician assistants regulated by the State
could provide services to veterans in State homes. No changes are made
based on this comment. We believe this certification is necessary to
ensure that physician assistants meet uniform standards necessary to
ensure that they are qualified to provide adequate care at a State
nursing home facility. In our view, this will not cause significant
administrative work. The State home merely will have to determine
whether the individual has the appropriate certification.
Under the proposed definition of ``State home,'' a State home may
provide domiciliary care, nursing home care, adult day health care, and
hospital care. Also, under the definition, hospital care may be
provided only when the State home also provides domiciliary and/or
nursing home care.
One commenter asserted the definition should replace ``domiciliary
care'' with ``assisted living.'' No changes are made based on this
comment. The statutory authority for levels of care at State homes
includes domiciliary care, but not assisted living. (See 38 U.S.C.
1741-1743).
Section 51.10 Per Diem based on Recognition and Certification
The provisions of Sec. 51.10 state that after recognition has been
granted, VA will continue to pay per diem to a State for providing
nursing home care to eligible veterans in such a facility for a
temporary period based on a certification that the facility and
facility management provisionally meet the standards of subpart D. One
commenter asked how long the temporary period would be if a facility
receives a ``provisionally meets'' certification.
The temporary period related to provisionally meeting the standards
could vary. Under the provision of Sec. 51.30(a)(2) the temporary
period is based on time frames provided by the State home in a written
plan of correction and approved by the director of VA medical center of
jurisdiction.
Section 51.30 Recognition and Certification
The provisions of Sec. 51.30 state that the Under Secretary for
Health will make the determination regarding recognition and the
initial determination regarding certification, after receipt of a
tentative determination from the director of the VA medical center of
jurisdiction regarding whether, based on a VA survey, the facility and
facility management meet or do not meet the standards of subpart D.
Commenters asserted that we should establish a time limit for the
determination for recognition, initial certification, notification
regarding failure to meet standards, and re-certification by VA. No
changes are made based on these comments. We are committed to making
decisions as quickly as possible. However, VA must take whatever time
is necessary to make accurate decisions. Section 51.30 provides for
recognition and certification based on surveys establishing that the
standards in subpart D are met.
One commenter asserted that Sec. 51.30 is reactive and punitive by
anticipating deficiencies and precluding a deficiency-free review. The
commenter further stated that a paper compliance review should be
established for the year following a review that did not cite
deficiencies. No changes are made based on these comments. We believe
that the yearly review must be adequate to ensure compliance with the
provision in subpart D. This will require more than a paper review
regardless of previous compliance.
With respect to the provisions of Sec. 51.30(a)(2), one commenter
inquired about when a facility would be determined to ``provisionally''
meet the standards and continue to receive per diem. In this regard,
the provisions of Sec. 51.30(a)(2) allow for provisional certification
only if all of the following are met: the facility or facility
management does not meet one or more of the standards in subpart D,
that the deficiencies do not jeopardize the health or safety of the
residents, and that the facility management and the director have
agreed to a plan of correction to remedy the deficiencies in a
specified amount of time (not more time than the VA medical center of
jurisdiction director determines is reasonable for correcting the
specific deficiencies). If the facility does not meet one or more of
the standards in subpart D and also does not meet the criteria for
provisional certification, VA must take action to withhold per diem
payments and withdraw recognition.
[[Page 963]]
One commenter asserted that the final rule should provide for an
informal dispute resolution process regarding the existence and scope
of potential deficiencies. No changes are made based on this comment.
The authority and responsibility for the per diem program have been
delegated solely to VA by statute. (See 38 U.S.C. 1741-1743). There is
no basis for delegating this authority outside VA.
One commenter questioned whether Veterans Integrated Service
Network (VISN) entities would conduct annual certification surveys. No
changes are made based on this comment. The director of the VA Medical
Center of jurisdiction is responsible for the annual certification
survey and may delegate any qualified VA official to conduct the
survey.
One commenter asserted that VA should accept Joint Commisson on
Accreditation Healthcare Organizations (JCAHO) and Medicaid/Medicare
inspections in lieu of annual VA inspections. The commenter also
asserted that State homes that are licensed as nursing homes by the
State should be exempt from annual VA inspections. The commenter
further asserted that annual VA inspections should occur only if there
is reason to believe that a facility is not substantially in compliance
with VA regulations. No changes are made based on this comment. It is
solely VA's responsibility to ensure that VA's regulations are met.
Further, non-VA inspections do not cover all of the standards in the
final rule and compliance with State standards would not be sufficient
to ensure compliance with all of the standards in the final rule.
Furthermore, we believe that in order to ensure compliance with our
standards, VA must conduct reviews at least on a yearly basis. Even so,
under Sec. 51.30(a) the judgement of VA officials concerning compliance
with the requirements of the final rule may be made in part based on
reviews of reports of inspection by other entities.
Section 51.31 Automatic Recognition
Under the final rule VA would pay per diem to a State for providing
nursing home care to eligible veterans in a facility if the Under
Secretary for Health recognizes the facility as a State home based on a
current VA certification that the facility meets the standards set
forth in subpart D. One commenter questioned whether previously
recognized facilities would be required to submit a new request for
recognition and certification under the final rule.
We have added a new Sec. 51.31 to explain that a facility that
already is recognized by a VA as a State home for nursing home care at
the time this part becomes effective, automatically will continue to be
recognized as a State home for nursing home care. This new section
further explains that even though the facility would continue to be
recognized, it is subject to all of the provisions of this part that
apply to facilities that have achieved recognition, including the
provisions for withholding payment and withdrawal of recognition.
Section 51.40 Monthly Payment
The provisions of Sec. 51.40(a)(1) specify that during fiscal year
2000 VA will pay monthly one-half of the cost of each eligible
veteran's nursing home care for each day the veteran is in a facility
recognized as a State home for nursing home care, not to exceed $50.55
per diem. Five commenters asserted that the currently applicable rate
should not be included in the regulations. In this regard, they were
concerned that a delay in publishing changed amounts could delay the
receipt of increases in per diem. No changes are made based on these
comments. The amount of per diem to be paid is based on provisions of
38 U.S.C. 1741. We intend to change the per diem amount in the
regulations as quickly as possible after there is a basis for doing so.
The provisions of Sec. 51.40(a)(5) state that as a condition for
receiving payment of per diem the State must submit to the VA medical
center of jurisdiction for each veteran completed VA Forms 10-10EZ,
Application for Medical Benefits, and 10-10SH, State Home Program
Application for Care-- Medical Certification, at the time of admission
and with any request for a change in the level of care (domiciliary,
hospital, or adult day health care). The 10-10SH form provides that it
is to be completed by the ``primary physician assigned'' at the State
facility. One commenter suggested that any physician (State, VA, or
personal) should be allowed to complete the form. They further asserted
that this could be a hardship for veterans ``who live around the
State''. No changes are made based on this comment. The purpose of the
forms, among other things, is to obtain information regarding whether
the veteran has been admitted to the nursing home as a resident and
whether the veteran meets eligibility criteria for per diem payments.
It was not intended to be used by the State facility for an earlier
State determination concerning whether a veteran should become a
resident at the facility.
The commenter further questioned whether VA would conduct any
screening of applicants for admission to State homes. The commenter
further questioned whether the facility needs to obtain prior approval
before admitting a veteran as a resident or whether they can assume
approval based on the submission of the appropriate forms. No changes
are made based on these comments. In our view, the provisions for
determining eligibility for placement for nursing home care are
sufficiently clear so that State homes can make appropriate
determinations without prior approval of residents by VA.
The provisions of Sec. 51.40(a)(5) also provide that if the
facility is eligible to receive per diem payments for a veteran, VA
will pay per diem from the date of receipt of the completed forms
required by this paragraph, except that VA will pay per diem from the
day on which the veteran was admitted to the facility if the completed
forms are received within 10 days after admission. One commenter
asserted that the 10-day requirement is too short because information
required by form 10-10EZ ``may be difficult to get.'' No changes are
made based on this comment. The information requested is the basic
information required for eligibility determinations. We do not see any
reason why the information requested cannot be obtained at the time the
veteran is admitted to a State home.
As noted above, Sec. 51.40(a)(5) provides that if the forms are
submitted to the VA medical center of jurisdiction within 10 days after
admission, VA will pay per diem from the day on which the veteran was
admitted. One commenter suggested that VA clarify who in VA must
receive the completed forms. No changes are made based on this comment.
All that is necessary is that the forms be received by the VA medical
center of jurisdiction and if received within the 10 day period, the
requirement will be met. Officials at the medical center will ensure
that the forms are sent to the appropriate VA officials for processing.
A veteran may be VA approved for nursing home care, then be
approved for a different level of care (domiciliary, hospital, or adult
day health care) for a period of time, and then be readmitted to
nursing home care. One commenter asserted that the initial approval
should be sufficient for any subsequent readmission. No changes are
made based on this comment. The provisions of Sec. 51.40(a)(5) state
that information must be submitted for each admission. This is
necessary to ensure that the veteran still meets VA requirements for
[[Page 964]]
payment of per diem for that level of care.
Section 51.50 Eligible Veterans
Per diem payments may be paid only for eligible veterans. Section
51.50 specifies which individuals are eligible veterans. This includes
paragraph (j) which consists of veterans who agree to pay to the United
States the applicable co-payment determined under 38 U.S.C. 1710(f) and
1710(g). Four commenters asserted that paragraph (j) should be deleted.
No changes are made based on these comments. The eligibility
requirements are established by statute (see 38 U.S.C. 1710(a)).
Accordingly, the requirement for this category of eligible veterans
cannot be changed by regulation.
Section 51.70 Resident Rights
The advance directive provisions of Sec. 51.70(b)(7) of this rule
and the provisions of a separate VA proposed rulemaking regarding
advanced directives (63 FR 58678) would not prohibit an advance
directive from being honored at a VA facility if it has not been signed
by a notary public or Justice of the Peace. One commenter noted that
such an advance directive might not be effective if the veteran were
moved to a State home in which a State law requires the use of a notary
public or Justice of the Peace. No changes are made based on this
comment. Since VA cannot reasonably administer all State laws regarding
advanced directives, we believe the responsibility for ensuring that
advanced directives are effective in State homes rests within State
home officials and not VA.
One commenter asserted that Sec. 51.70(b)(7) presents a dilemma.
The commenter asserted that if a person is incapacitated and unable to
receive/understand information on advanced directives and does not have
a power of attorney, he/she would be unable to give informed consent to
moving to the home in the first place and their right to ``self-
determination'' Sec. 51.70(7) would be violated. No changes are made
based on this comment. The provisions of Sec. 51.70(7) cover the issue
of incapacitation. Section 51.70(7) states: ``If an individual is
incapacitated at the time of admission and is unable to receive
information (due to the incapacitating conditions) or articulate
whether or not he or she has executed an advance directive, the
facility may give advance directive information to the individual's
family or surrogate in the same manner that it issues other materials
about policies and procedures to the family of the incapacitated
individual or to a surrogate or other concerned persons in accordance
with State laws.''
The provisions of Sec. 51.70(c)(1) state that the residents have a
right to manage their financial affairs, and the facility and facility
management may not require residents to deposit their personal funds
with the facility. Commenters asserted that nursing home facilities
should be allowed to require residents to deposit funds with the
facility for payment of personal items. No changes are made based on
these comments. Although many residents may choose to deposit an amount
with the facility for personal items, we believe that residents should
be allowed to pay for their personal items by check or other means they
deem appropriate.
One commenter suggested that a resident who insists on carrying
large sums of cash should be required to sign a waiver for lost or
misplaced funds. No changes are made in Sec. 51.70(c)(3) based on this
comment. The final rule does not prohibit nursing homes from
establishing such a policy.
The provisions of proposed Sec. 51.70(c)(3) stated that the
facility management must deposit any residents' personal funds in
excess of $50 in an interest bearing account (or accounts) that is
separate from any of the facility's operating accounts, and that
credits all interest earned on the resident's funds to that account.
(In pooled accounts, there must be a separate accounting for each
resident's share.) One commenter asserted that any resident's personal
funds held by facility management should be allowed to accrue interest
for projects for the benefit of all residents if allowed by State law.
No changes are made based on this comment. In our view, the interest
generated from personal funds belongs to the owner of the funds and,
therefore, should be held for the owner.
One commenter suggested that the $50 threshold amount should be
raised to $100. We agree and have changed the final rule accordingly.
The larger amount will allow more flexibility for veterans and State
homes and will still provide a reasonable threshold for requiring
amounts to be placed in interest bearing accounts.
The provisions of Sec. 51.70(c)(4)(ii) state that individual
financial records must be available through quarterly statements and on
request from the resident or legal representative. One commenter
asserted that there is no need for any reports until requested. No
changes are made based on this comment. We believe that residents who
would not otherwise review their accounts would be more likely to do so
if statements were received on a periodic basis. Further, this will
help to ensure that any differences would be resolved in a timely
manner.
The provisions of proposed Sec. 51.70(c)(5) stated that upon the
death of a resident with personal funds deposited with the facility,
the facility management must convey within 30 days the resident's
funds, and a final accounting of those funds, to the individual or
probate jurisdiction administering the resident's estate. One commenter
asserted that sometimes the cost to the family or interested parties to
probate an estate may be prohibitive compared to what is left in the
estate. This commenter indicated that at least one State allows for the
transfer of balances to an appropriate family member. We have changed
our final rule to allow for this possibility.
The provisions of Sec. 51.70(i) state that a State home resident
must have the right to privacy in written communications, including the
right to send and promptly receive mail that is unopened. One commenter
stated that facility officials need to be allowed to open VA and Social
Security mail with permission of the veteran. The commenter further
asserted that otherwise the veteran might miss appointments. No changes
are made based on this comment. The final rule merely states that a
veteran has the right to send and receive mail that is unopened. This
does not prohibit an agreement between the facility and the resident to
allow the facility to open the veteran's mail.
The provisions of Sec. 51.70(j)(1) state that a resident must have
the right to, and the facility management must provide, immediate
access to a physician of the resident's choice. One commenter asserted
that a physician, acting as a physician on behalf of a resident should
not be allowed to provide care to a resident in the nursing home if the
physician is not approved by the Medical Director to practice in the
nursing home. The final rule at Sec. 51.210(j) already requires
physicians practicing at the nursing home to be credentialed and
privileged by the nursing home. The provisions of Sec. 51.70(j)(1) are
amended to clarify this issue.
The provisions of Sec. 51.70(l) states that the resident has the
right to retain and use personal possessions, including some
furnishings, and appropriate clothing, as space permits, unless to do
so would infringe upon the rights or health and safety of other
residents. One commenter asserted that the retention of personal
furnishings should be at the sole discretion of the facility. No
[[Page 965]]
changes are made based on this comment. The final rule allows the
resident to retain and use personal possessions ``as space permits.''
This gives the facility the needed discretion to ensure order within
the facility.
Section 51.80 Admission, Transfer and Discharge Rights
The provisions of Sec. 51.80(a)(1) state that transfer and
discharge includes movement of a resident to a bed outside of the
facility whether that bed is in the same physical plant or not.
Transfer and discharge does not refer to movement of a resident to a
bed within the same facility. One commenter asserted that the
regulations were unclear as whether there would be transfer or
discharge if a resident were moved from one level of care to another
level of care in the same building or in the same complex of buildings.
No changes are made based on this comment. The provisions of
Sec. 51.80(a)(1) read in conjunction with the definition of facility in
Sec. 51.2 clearly provide that a movement outside of the facility is
any movement outside of the nursing home portion of the complex.
Section 51.100 Quality of Life
The provisions of Sec. 51.100(g)(1)(2)(i) and (ii) state that the
facility management must provide an ongoing program of activities
designed to meet, in accordance with the comprehensive assessment, the
interests and the physical, mental, and psychosocial well-being of each
resident. The provisions require that the activities program be
directed by a qualified professional who is a qualified therapeutic
recreation specialist or an activities professional who is licensed or
registered, if applicable, by the State in which practicing; and is
certified as a therapeutic recreation specialist or as an activities
professional by a recognized accrediting body. Two commenters asserted
that these provisions are too stringent and that qualified personnel
would be prohibited from working at the facility. No changes are made
based on these comments. We believe these are the minimal criteria
necessary to ensure that the ongoing program of activities is
sufficient to meet, in accordance with the comprehensive assessment,
the interests and the physical, mental, and psychological well-being of
each veteran.
The proposed provisions of Sec. 51.100(h)(3) stated that a social
worker at a facility must have the following: a bachelor's degree in
social work from a school accredited by the Council of Social Work
Education and a social work license from the State in which the State
home is located, if offered by the State, and a minimum of one year of
supervised social work experience, under the supervision of a social
worker with a master's degree, in a health care setting working
directly with individuals. Six commenters opposed the provision that
would require the experience to be under the supervision of a social
worker with a master's degree. We agree and eliminated this provision.
We believe that a social worker can provide adequate service without
meeting such requirement.
The provisions of Sec. 51.100(i)(6) state that facility management
must provide comfortable and safe temperature levels. In this regard,
it states that facilities must maintain a temperature range of 71-81
degrees Fahrenheit. One commenter asserted that this requirement should
be waived in older facilities where central air conditioning is not
available. No changes are made based on this comment. The specified
temperatures are necessary to ensure that residents are comfortable and
safe.
Section 51.110 Resident Assessment
The provisions of Sec. 51.110(b)(1)(iii) state that the facility
management must make a comprehensive assessment of a resident's needs
using the Health Care Financing Administration Long Term Care Resident
Assessment Instrument Version 2.0; and describing the resident's
capability to perform daily life functions, strengths, performances,
needs as well as significant impairments in functional capacity. All
nursing homes must be in compliance with this standard by no later than
January 1, 2000. Two commenters asserted that the compliance date of
January 1, 2000, must be extended. The commenters essentially asserted
that more time is needed to computerize the process and train staff. No
changes are made based on these comments. Most facilities report that
they already are in compliance. Compliance is needed to ensure that
facilities have standardized comprehensive assessments of resident
needs.
Section 51.120 Quality of Care
The proposed provisions of Sec. 51.120(a)(3) state that the
facility management must report sentinel events to the director of the
VA medical center of jurisdiction, VA Network Director (10N 1-22),
Chief Network Officer (10N), and Chief Consultant, Geriatrics and
Extended Care Strategic Healthcare Group (114) within 24 hours of
identification. Nine commenters objected to reporting the same
information to so many VA entities. They asserted that they should have
to report only to one VA entity and that VA could report internally as
it sees fit. We agree and have changed the final rule to provide for
reporting to the VA medical center of jurisdiction. We also have added
language requiring the VA medical center to immediately report to the
other listed VA entities.
One commenter also asserted that the report should be required to
be submitted within 7 days rather than with 24 hours of identification
of the event. No changes are made based on this comment. The sentinel
events often reflect need for immediate review.
Section 51.130 Nursing Services
The provisions of Sec. 51.130(d) state that the facility management
must provide nursing services to ensure that there is direct care nurse
staffing of no less than 2.5 hours per patient per 24 hours, 7 days per
week. One commenter questioned whether managers would be included for
calculating the 2.5 hours. No changes are made based on this comment.
The provisions of paragraph (d) made clear that the 2.5 hours consist
only of ``direct care nurse staffing''. Supervisory nurses normally
would not meet these criteria.
One commenter questioned whether the 2.5 hours requirement would be
based on a facility-wide average or based on each individual nursing
station. This was intended to apply to all or portion of a facility
where the direct care nurses would have immediate access to nursing
home care. In our view, this would be accomplished if the 2.5 hours
requirement were met for all of any building providing nursing home
care. We have clarified the final rule accordingly.
In the past, we administratively imposed a 2.0 hours per patient
per day requirement. One commenter asserted that we should retain the
2.0 hour requirement. No changes are based on this comment. Although
the 2.0 hour requirement was appropriate in the past, there has been a
significant increase in patient acuity that requires the increase to
2.5 hours.
One commenter asserted that the 2.5 hours requirement should not
become effective until January 2000. No changes are based on this
comment. Almost all State homes providing nursing home care currently
meet the 2.5 hours requirement. Further, we believe this is a minimal
requirement for ensuring adequate care for nursing home care patients.
One commenter asserted that the 2.5 hours requirement should be
allowed to include paid staff break times. No changes based on this
comment. Breaks,
[[Page 966]]
including lunch, are not included. The 2.5 hours constitute minimum
criteria for ensuring the availability of adequate care.
One commenter asserted that an increase from the 2.0 hours
requirement to a 2.5 hours requirement constitutes an unfunded mandate
and, consequently, is subject to Federal unfunded mandate requirements.
No changes are made based on this comment. The provisions of 2 U.S.C.
658 exclude from any Federal unfunded mandate requirements any
regulation that imposes a duty on a State as a condition of Federal
Assistance and (with exceptions not relevant to this care) any
regulation that imposes a duty arising from participation in a
voluntary Federal Program.
One commenter questioned whether certain circumstances might
require 3.0 hours per patient. No changes are made based on this
comment. The 2.5 hours requirement is a minimum requirement. The
provision of paragraph (e) also require that nursing care must be
adequate for meeting the standards of part D. A high patient acuity
could require more nursing care than those set forth as minimum
standards.
The provisions of Sec. 51.130(e) state that nurse staffing must be
based on a staffing methodology that applies case-mix and is adequate
for meeting the standards of this part. One commenter argued that the
final rule should establish a specific standard for staffing
methodology. No changes are made based on this comment. Although the
staffing methodology must apply case mix and be adequate for meeting
the standards of subpart D, we believe that several methodologies would
be adequate for meeting the requirement.
Section 51.140 Dietary Services
The provisions of Sec. 51.140(f)(2) state that there must be no
more than 14 hours between a substantial evening meal and breakfast the
following day, except that the 14 hour period may be extended to 16
hours if a resident group agrees to the extension and a nourishing
snack is provided at bedtime. Two commenters noted that some residents
wish to sleep late and have a late breakfast that may exceed the 14
hours. They indicated that the breakfast meal should merely be
available within the 14 hour time period. We agree and have made
appropriate changes to the final rule.
Section 51.150 Physician Services
The provisions of Sec. 51.150(d) state that the facility management
must provide or arrange for the provision of physician services 24
hours a day, 7 days per week, in case of an emergency. One commenter
asserted that physician assistants should be able to act for physicians
within their scope of practice. No changes are made based on this
comment. This must be limited to physicians since a need could arise
that would be beyond the scope of practice of physician assistants.
Under the provisions of proposed Sec. 51.150(e) the primary
physician may not delegate a task when the regulations specify that the
primary physician must perform it personally or when the delegation is
prohibited under State law or by the facility's own policies.
Otherwise, under these provisions a primary physician may delegate
tasks to a certified physician assistant or a certified nurse
practitioner, or a clinical nurse specialist who is acting within the
scope of practice as defined by State law and who is under the
supervision of the physician. These provisions also include a note
stating that a certified clinical nurse specialist with experience in
long term care is preferred. Two commenters asserted that the note
should be clarified to reflect that experience in long term care is
preferred for physician assistants and certified nurse practitioners as
well as clinical nurse specialist. We have amended the note
accordingly.
Section 51.180 Pharmacy Services
The provisions of Sec. 51.180 state that the facility management
must employ or obtain the services of a pharmacist licensed in a State
in which the facility is located. One commenter asserted that the final
rule should allow facilities to obtain the services of a VA pharmacist
under a VA contract arrangement even if the VA pharmacist is not
licensed in the State. We agree and have made appropriate changes. The
purpose of this limitation is to ensure that the facility is able to
obtain information for drug reviews and otherwise ensure appropriate
on-site drug services. This purpose can be accomplished with VA
pharmacist under VA contract.
Section 51.200 Physical Environment
The provisions of Sec. 51.200(d) state that resident rooms must be
designed and equipped for adequate nursing care, comfort, and privacy
of residents. Bedrooms must accommodate no more than four residents;
must measure at least 115 net square feet per resident in multiple
resident bedrooms; must measure at least 150 net square feet in single
resident bedrooms; must measure at least 245 net square feet in small
double resident bedrooms; and measure at least 305 net square feet in
large double resident bedrooms used for spinal cord injury residents.
It is recommended that the facility have one large double resident
bedroom for every 30 resident bedrooms. Six commenters asserted that
these square footage requirements should be reduced or apply only to
new construction. No changes are made based on these comments. We
believe that the square footage requirements are necessary to ensure
sufficient space for normal daily living activities, including adequate
room for movements of wheel chairs.
The provisions of Sec. 51.200(d)(x) state that resident rooms must
have a floor at or above grade level. One commenter asserted they have
one subgrade unit that should be exempted from the requirement in
Sec. 51.200(d)(x). No changes are made based on this comment. We
believe that nursing home care units must be at floor level or above to
help ensure the availability of natural ventilation and opportunity for
seeing outside.
Section 51.210 Administration
The provisions of proposed Sec. 51.210(b)(3) provide that the State
must give written notice to the Chief Consultant, Geriatrics and
Extended Care Strategic Healthcare Group (114) at the time of the
change of the State home director of nursing. One commenter argued that
there is no need to give notice of a change regarding the State home
director of nursing. We agree and have changed Sec. 51.210(b)(3)
accordingly. The notification requirement was intended to ensure that
VA had a point of contact at the facility. The final rule requires
written notice of a change in a State home administrator and the State
employee responsible for oversight of the State home facility if a
contractor operates the State home. This is sufficient for ensuring
that VA has a current point of contact.
The provisions of Sec. 51.210(c), among other things, state that
the facility management must submit the following to the director of
the VA medical center of jurisdiction as often as necessary to be
current: The number of the staff by category indicating full-time,
part-time and minority designation and the number of nursing home
patients who are veterans and non-veterans, the number of veterans who
are minorities and the number of non-veterans who are minorities.
One commenter suggested that changes should be required to be
reported only on a semi-annual or annual basis. We have changed
Sec. 51.210(c) to state that the facility must submit the information
in question annually. The reporting requirements raised by the
commenter are necessary
[[Page 967]]
for determining whether facilities continue to meet the standards in
subpart D, for determining whether facilities meet the criteria for
obtaining per diem, and to help ensure compliance with civil rights
laws. We believe that annual reporting is sufficient to meet the
intended purpose.
The provisions of Sec. 51.210(d) state that the percent of the
facility residents eligible for VA nursing home care must be at least
75 percent veterans except that the veteran percentage need only be
more than 50 percent if the facility was constructed or renovated
solely with State funds. This paragraph further states that all non-
veteran residents must be spouses of veterans or parents all of whose
children died while serving in the armed forces of the United States.
One commenter asserted that the definition of State home should
include language stating that care may be provided for a spouse of a
veteran as allowed by individual State law. Three commenters argued
that honorably discharged members of the National Guard and certain
non-listed individuals related to veterans should be allowed to be
included as nonveterans at State nursing homes. No changes are made
based on these comments. The requirements concerning non-veterans are
necessary to ensure that the State homes are used for veterans as
required by 38 U.S.C. 101(19). We believe the narrow exceptions are
necessary for the well being of veterans and we do not believe that it
is in the best interests of veterans to expand this further.
The provisions of proposed Sec. 51.210(j) stated that the facility
management must uniformly apply credentialing criteria to licensed
independent practitioners applying to provide resident care or
treatment under the facility's care. The provisions of proposed
Sec. 51.210(j) further state that the facility management must verify
and uniformly apply the following core criteria: Current license;
current certification, if applicable; relevant education, training, and
experience; current competence; and a statement that the individual is
able to perform the services he or she is applying to provide. One
commenter asserted that the word ``independent'' be deleted so that
credentialing criteria would apply to physician assistants. We agree
and have deleted the word ``independent'' since physician assistants
may be credentialed. Another commenter asserted that the requirements
of Sec. 51.210(j) are too stringent. No changes are made based on this
comment. The required information is basic information needed to ensure
that the practitioners caring for the veterans are qualified to do so.
The provisions of proposed Sec. 51.210(j)(5) stated that when
reappointing a licensed independent practitioner, the facility
management must review the individual's track record. Two commenters
asserted that the term ``track record'' was too colloquial and should
be replaced with ``record of experience.'' We agree and have changed
the final rule accordingly.
The provisions of proposed Sec. 51.210(n)(2)(i) stated that the
facility must provide or obtain radiology and other diagnostic services
only when ordered by the primary physician. One commenter asserted that
the final rule should reflect that radiology and other diagnostic
services may be ordered by a physician assistant. We agree and have
deleted the word ``only.'' The authority and limitations for a
physician assistant to order radiology and other diagnostic services
are set forth at Sec. 51.150(e) of the final rule.
VA Form 10-10SH
VA Form 10-10SH, State Home Program Application for Veteran Care--
Medical Certification, provides a medical certification for individuals
admitted to a State nursing home facility and for the State applying
for per diem payments. The form is required to be signed by the primary
physician as well as other staff members. One commenter asserted that
the form should be amended to allow physician assistants to conduct
medical evaluations and to sign the medical evaluation form. No changes
are made based on this comment. Physician assistants would not have the
privileges necessary for admitting patients.
Incorporation by Reference
In Sec. 51.200, paragraphs (a), (b)(2), and (b)(4) incorporate by
reference the National Fire Protection Association's NFPA 101, Life
Safety Code, 1997 edition and the NFPA 99, Standard for Health Care
Facilities, 1996 edition. This action would require State homes
providing nursing home care to eligible veterans to comply with a
national code based on actual fire experience across the country. This
is necessary to help ensure that veterans are placed in facilities that
are adequately protected against fires and the final rule is designed
to ensure that State homes meet the fire and safety provisions of the
Life Safety Code.
Forms
We have placed all forms that apply to this rule in a new Part 58
for the purpose of making it easier to find the forms.
Executive Order 12866
This document was reviewed by the Office of Management and Budget
under Executive Order 12866.
Unfunded Mandates
The Unfunded Mandates Reform Act requires (in section 202) that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any given year. This final rule will have no
consequential effect on State, local or tribal governments.
Regulatory Flexibility Act
The Secretary hereby certifies that the adoption of this final rule
would not have a significant economic impact on a substantial number of
small entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. All of the entities that are subject to this final rule
are State government entities under the control of State governments.
Of the 93 State homes, all are operated by State governments except for
16 that are operated by entities under contract with State governments.
These contractors are not small entities. Therefore, pursuant to 5
U.S.C. 605(b), this final rule is exempt from the initial and final
regulatory flexibility analysis requirement of Secs. 603 and 604.
Paperwork Reduction Act of 1995
The collection of information contained in the notice of the
proposed rulemaking was submitted to the Office of Management and
Budget (OMB) for review in accordance with the Paperwork Reduction Act
(44 U.S.C. 3540(h)). The information collections subject to this
rulemaking are set forth in the provisions of Secs. 51.20, 51.30,
51.40, 51.70, 51.80, 51.90, 51.100, 51.110, 51.120, 51.150, 51.160,
51.180, 51.190 and 51.210 of this final rule.
In this regard, the final rule requires facilities to supply
various kinds of information regarding facilities providing nursing
home care to ensure that high quality care is furnished to veterans who
are residents in such facilities. The information includes an
application for recognition based on certification; appeal information;
application and justification for payment; records and reports which
facility management must maintain regarding activities of residents; to
include information relating to whether the facility meets standards
concerning
[[Page 968]]
residents rights and responsibilities prior to admission, during
admission, and upon discharge; the records and reports which facility
management and health care professionals must maintain regarding
residents and employees; various types of documentation pertaining to
the management of the facility; food menu planning; pharmaceutical
records; and life safety documentation.
Interested parties were invited to submit comments on the
collection of information. We received two comments from two
commenters. One comment is discussed above under the heading VA Form
10-10SH. One commenter suggested that VA provide for electronic
transmission of forms. No changes are made based on this comment. We
are working on a system to allow the electronic transmission of forms.
This is not available yet from VA.
One commenter asserted that the proposed rule did not identify how
often information is required to be collected. No changes are made
based on this comment. Each of the sections containing collections of
information specify how often the information must be collected.
The proposed rule states that the average burden per collection is
14 minutes and that the annual reporting and recordkeeping burden for
each State home is slightly less than 1 hour (12,467 total hours and
13,136 respondents). One commenter asserted that these numbers may not
be accurate. No changes are made based on these comments. These figures
are based on sampling in the field.
OMB has approved this information collection under control number
2900-0160 except for VA Form 10-10EZ which is approved under 2900-0091.
This approval is through January 31, 2002, except for VA Form 10-10EZ,
which is approved through October 31, 2001. VA is not authorized to
impose a penalty on persons for failure to comply with information
collection requirements which do not display a current OMB control
number, if required.
List of Subjects in 38 CFR Parts 17, 51, and 58
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs-health, Government programs-
veterans, Health care, Health facilities, Health professions, Health
records, Homeless, Incorporation by reference, Medical and dental
schools, Medical devices, Medical research, Mental health programs,
Nursing homes, Philippines, Reporting and recordkeeping requirements,
Scholarships and fellowships, Travel and transportation expenses,
Veterans.
Approved: August 13, 1999.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
For the reason set out in the preamble, 38 CFR Chapter I is amended
as follows:
PART 17--MEDICAL
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, 1721, unless otherwise noted.
Sec. 17.190 [Amended]
2. In Sec. 17.190, the introductory text is amended by removing
``hospital, domiciliary or nursing home'' and adding, in its place,
``hospital or domiciliary;'' paragraph (a) is amended by removing ``or
nursing home care;'' paragraph (b) is amended by removing ``nursing
home care patients or;'' and paragraph (d) is removed.
Sec. 17.191 [Amended]
3. Section 17.191 is amended by removing ``domiciliary, nursing
home'' and adding, in its place, ``domiciliary.''
Sec. 17.192 [Amended]
4. Section 17.192 is amended by removing ``nursing home or''.
Sec. 17.193 [Amended]
5. Section 17.193 is amended by removing the second sentence
thereof.
Sec. 17.195 [Removed]
6. Section 17.195 is removed.
Sec. 17.197 [Amended]
7. Section 17.197 is amended by removing ``section 1741(a)(2) for
nursing home care;.''
Sec. 17.198 [Amended]
8. Section 17.198 is amended by removing ``hospital, domiciliary or
nursing home'' and adding, in its place, ``hospital or domiciliary.''
Secs. 17.190 through 17.199 [Amended]
9. A ``Note'' is added immediately following the undesignated
center heading above Sec. 17.190 to read as follows:
Note: Sections 17.190 through 17.200 do not apply to nursing
home care in State homes. The provisions for nursing home care in
State homes are set forth in 38 CFR part 51.
10. Part 51 is added to read as follows:
PART 51--PER DIEM FOR NURSING HOME CARE OF VETERANS IN STATE HOMES
Subpart A--General
Sec.
51.1 Purpose.
51.2 Definitions.
Subpart B--Obtaining Per Diem for Nursing Home Care in State Homes
51.10 Per diem based on recognition and certification.
51.20 Application for recognition based on certification.
51.30 Recognition and certification.
51.31 Automatic recognition.
Subpart C--Per Diem Payments
51.40 Monthly payment.
51.50 Eligible veterans.
Subpart D--Standards
51.60 Standards applicable for payment of per diem.
51.70 Resident rights.
51.80 Admission, transfer and discharge rights.
51.90 Resident behavior and facility practices.
51.100 Quality of life.
51.110 Resident assessment.
51.120 Quality of care.
51.130 Nursing services.
51.140 Dietary services.
51.150 Physician services.
51.160 Specialized rehabilitative services.
51.170 Dental services.
51.180 Pharmacy services.
51.190 Infection control.
51.200 Physical environment.
51.210 Administration.
Authority: 38 U.S.C. 101, 501, 1710, 1741-1743.
Subpart A--General
Sec. 51.1 Purpose.
This part sets forth the mechanism for paying per diem to State
homes providing nursing home care to eligible veterans and is intended
to ensure that veterans receive high quality care in State homes.
Sec. 51.2 Definitions.
For purposes of this part:
Clinical nurse specialist means a licensed professional nurse with
a master's degree in nursing with a major in a clinical nursing
specialty from an academic program accredited by the National League
for Nursing and at least 2 years of successful clinical practice in the
specialized area of nursing practice following this academic
preparation.
Facility means a building or any part of a building for which a
State has submitted an application for recognition as a State home for
the provision of nursing home care or a building or any part of a
building which VA has recognized as a State home for the provision of
nursing home care.
[[Page 969]]
Nurse practitioner means a licensed professional nurse who is
currently licensed to practice in the State; who meets the State's
requirements governing the qualifications of nurse practitioners; and
who is currently certified as an adult, family, or gerontological nurse
practitioner by the American Nurses' Association.
Nursing home care means the accommodation of convalescents or other
persons who are not acutely ill and not in need of hospital care, but
who require skilled nursing care and related medical services.
Physician means a doctor of medicine or osteopathy legally
authorized to practice medicine or surgery in the State.
Physician assistant means a person who meets the applicable State
requirements for physician assistant, is currently certified by the
National Commission on Certification of Physician Assistants (NCCPA) as
a physician assistant, and has an individualized written scope of
practice that determines the authorization to write medical orders,
prescribe medications and other clinical tasks under appropriate
physician supervision which is approved by the primary care physician.
Primary physician or primary care physician means a designated
generalist physician responsible for providing, directing and
coordinating all health care that is indicated for the residents.
State means each of the several States, territories, and
possessions of the United States, the District of Columbia, and the
Commonwealth of Puerto Rico.
State home means a home approved by VA which a State established
primarily for veterans disabled by age, disease, or otherwise, who by
reason of such disability are incapable of earning a living. A State
home may provide domiciliary care, nursing home care, adult day health
care, and hospital care. Hospital care may be provided only when the
State home also provides domiciliary and/or nursing home care.
VA means the U.S. Department of Veterans Affairs.
Subpart B--Obtaining Per Diem for Nursing Home Care in State Homes
Sec. 51.10 Per diem based on recognition and certification.
VA will pay per diem to a State for providing nursing home care to
eligible veterans in a facility if the Under Secretary for Health
recognizes the facility as a State home based on a current
certification that the facility and facility management meet the
standards of subpart D of this part. Also, after recognition has been
granted, VA will continue to pay per diem to a State for providing
nursing home care to eligible veterans in such a facility for a
temporary period based on a certification that the facility and
facility management provisionally meet the standards of subpart D.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.20 Application for recognition based on certification.
To apply for recognition and certification of a State home for
nursing home care, a State must:
(a) Send a request for recognition and certification to the Under
Secretary for Health (10), VA Headquarters, 810 Vermont Avenue, NW.,
Washington, DC 20420. The request must be in the form of a letter and
must be signed by the State official authorized to establish the State
home;
(b) Allow VA to survey the facility as set forth in Sec. 51.30(c);
and
(c) Upon request from the director of the VA medical center of
jurisdiction, submit to the director all documentation required under
subpart D of this part.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.30 Recognition and certification.
(a)(1) The Under Secretary for Health will make the determination
regarding recognition and the initial determination regarding
certification, after receipt of a tentative determination from the
director of the VA medical center of jurisdiction regarding whether,
based on a VA survey, the facility and facility management meet or do
not meet the standards of subpart D of this part. The Under Secretary
for Health will notify the official in charge of the facility, the
State official authorized to oversee operations of the State home, the
VA Network Director (10N 1-22), Chief Network Officer (10N), and the
Chief Consultant, Geriatrics and Extended Care Strategic Healthcare
Group (114) of the action taken.
(2) For each facility recognized as a State home, the director of
the VA medical center of jurisdiction will certify annually whether the
facility and facility management meet, provisionally meet, or do not
meet the standards of subpart D of this part (this certification should
be made every 12 months during the recognition anniversary month or
during a month agreed upon by the VA medical care center director and
officials of the State home facility). A provisional certification will
be issued by the director only upon a determination that the facility
or facility management does not meet one or more of the standards in
subpart D, that the deficiencies do not jeopardize the health or safety
of the residents, and that the facility management and the director
have agreed to a plan of correction to remedy the deficiencies in a
specified amount of time (not more time than the VA medical center of
jurisdiction director determines is reasonable for correcting the
specific deficiencies). The director of the VA medical center of
jurisdiction will notify the official in charge of the facility, the
State official authorized to oversee the operations of the State home,
the VA Network Director (10N 1-22), Chief Network Officer (10N) and the
Chief Consultant, Geriatrics and Extended Care Strategic Healthcare
Group (114) of the certification, provisional certification, or
noncertification.
(b) Once a facility has achieved recognition, the recognition will
remain in effect unless the State requests that the recognition be
withdrawn or the Under Secretary for Health makes a final decision that
the facility or facility management does not meet the standards of
subpart D. Recognition of a facility will apply only to the facility as
it exists at the time of recognition; any annex, branch, enlargement,
expansion, or relocation must be separately recognized.
(c) Both during the application process for recognition and after
the Under Secretary for Health has recognized a facility, VA may survey
the facility as necessary to determine if the facility and facility
management comply with the provisions of this part. Generally, VA will
provide advance notice to the State before a survey occurs; however,
surveys may be conducted without notice. A survey, as necessary, will
cover all parts of the facility, and include a review and audit of all
records of the facility that have a bearing on compliance with any of
the requirements of this part (including any reports from State or
local entities). For purposes of a survey, at the request of the
director of the VA medical center of jurisdiction, the State home
facility management must submit to the director a completed VA Form 10-
3567, Staffing Profile, set forth at Sec. 58.10 of this chapter. The
director of the VA medical center of jurisdiction will designate the VA
officials to survey the facility. These officials may include
physicians; nurses; pharmacists; dietitians; rehabilitation therapists;
social workers; representatives from health administration,
engineering, environmental management systems, and fiscal officers.
(d) If the director of the VA medical center of jurisdiction
determines that
[[Page 970]]
the State home facility or facility management does not meet the
standards of this part, the director will notify the State home
facility in writing of the standards not met. The director will send a
copy of this notice to the State official authorized to oversee
operations of the facility, the VA Network Director (10N 1-22), the
Chief Network Officer (10N), and the Chief Consultant, Geriatrics and
Extended Care Strategic Healthcare Group (114). The letter will include
the reasons for the decision and indicate that the State has the right
to appeal the decision.
(e) The State must submit the appeal to the Under Secretary for
Health in writing, within 30 days of receipt of the notice of failure
to meet the standards. In its appeal, the State must explain why the
determination is inaccurate or incomplete and provide any new and
relevant information not previously considered. Any appeal that does
not identify a reason for disagreement will be returned to the sender
without further consideration.
(f) After reviewing the matter, including any relevant supporting
documentation, the Under Secretary for Health will issue a written
determination that affirms or reverses the previous determination. If
the Under Secretary for Health decides that the facility does not meet
the standards of subpart D of this part, the Under Secretary for Health
will withdraw recognition and stop paying per diem for care provided on
and after the date of the decision. The decision of Under Secretary for
Health will constitute a final VA decision. The Under Secretary for
Health will send a copy of this decision to the State home facility and
to the State official authorized to oversee the operations of the State
home.
(g) In the event that a VA survey team or other VA medical center
staff identifies any condition that poses an immediate threat to public
or patient safety or other information indicating the existence of such
a threat, the director of VA medical center of jurisdiction will
immediately report this to the VA Network Director (10N 1-22), Chief
Network Officer (10N), Chief Consultant, Geriatrics and Extended Care
Strategic Healthcare Group (114) and State official authorized to
oversee operations of the State home.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.31 Automatic recognition.
Notwithstanding other provisions of this part, a facility that
already is recognized by VA as a State home for nursing home care at
the time this part becomes effective, automatically will continue to be
recognized as a State home for nursing home care but will be subject to
all of the provisions of this part that apply to facilities that have
achieved recognition, including the provisions requiring that the
facility meet the standards set forth in subpart D and the provisions
for withholding per diem payments and withdrawal of recognition.
Subpart C--Per Diem Payments
Sec. 51.40 Monthly payment.
(a)(1) VA will pay per diem monthly for nursing home care provided
to an eligible veteran in a facility recognized as a State home for
nursing home care. During Fiscal Year 2000, VA will pay the lesser of
the following:
(i) One-half of the cost of the care for each day the veteran is in
the facility; or
(ii) $50.55 for each day the veteran is in the facility.
(2) Per diem will be paid only for the days that the veteran is a
resident at the facility. For purposes of paying per diem, VA will
consider a veteran to be a resident at the facility during each full
day that the veteran is receiving care at the facility. VA will not
deem the veteran to be a resident at the facility if the veteran is
receiving care outside the State home facility at VA expense.
Otherwise, VA will deem the veteran to be a resident at the facility
during any absence from the facility that lasts for no more than 96
consecutive hours. This absence will be considered to have ended when
the veteran returns as a resident if the veteran's stay is for at least
a continuous 24-hour period.
(3) As a condition for receiving payment of per diem under this
part, the State must submit a completed VA Form 10-5588, State Home
Report and Statement of Federal Aid Claimed. This form is set forth in
full at Sec. 58.11 of this chapter.
(4) Initial payments will not be made until the Under Secretary for
Health recognizes the State home. However, payments will be made
retroactively for care that was provided on and after the date of the
completion of the VA survey of the facility that provided the basis for
determining that the facility met the standards of this part.
(5) As a condition for receiving payment of per diem under this
part, the State must submit to the VA medical center of jurisdiction
for each veteran the following completed VA Forms 10-10EZ, Application
for Medical Benefits, and 10-10SH, State Home Program Application for
Care--Medical Certification, at the time of admission and with any
request for a change in the level of care (domiciliary, hospital care
or adult day health care). These forms are set forth in full at
Secs. 58.12 and 58.13 of this chapter, respectively, of this part. If
the facility is eligible to receive per diem payments for a veteran, VA
will pay per diem under this part from the date of receipt of the
completed forms required by this paragraph, except that VA will pay per
diem from the day on which the veteran was admitted to the facility if
the completed forms are received within 10 days after admission.
(b) Total per diem costs for an eligible veteran's nursing home
care consist of those direct and indirect costs attributable to nursing
home care at the facility divided by the total number of patients at
the nursing home. Relevant cost principles are set forth in the Office
of Management and Budget (OMB) Circular number A-87, dated May 4, 1995,
``Cost Principles for State, Local, and Indian Tribal Governments.''
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.50 Eligible veterans.
A veteran is an eligible veteran under this part if VA determines
that the veteran needs nursing home care and the veteran is within one
of the following categories:
(a) Veterans with service-connected disabilities;
(b) Veterans who are former prisoners of war;
(c) Veterans who were discharged or released from active military
service for a disability incurred or aggravated in the line of duty;
(d) Veterans who receive disability compensation under 38 U.S.C.
1151;
(e) Veterans whose entitlement to disability compensation is
suspended because of the receipt of retired pay;
(f) Veterans whose entitlement to disability compensation is
suspended pursuant to 38 U.S.C. 1151, but only to the extent that such
veterans' continuing eligibility for nursing home care is provided for
in the judgment or settlement described in 38 U.S.C. 1151;
(g) Veterans who VA determines are unable to defray the expenses of
necessary care as specified under 38 U.S.C. 1722(a);
(h) Veterans of the Mexican border period or of World War I;
(i) Veterans solely seeking care for a disorder associated with
exposure to a toxic substance or radiation or for a disorder associated
with service in the Southwest Asia theater of operations during the
Persian Gulf War, as provided in 38 U.S.C. 1710(e);
(j) Veterans who agree to pay to the United States the applicable
co-payment
[[Page 971]]
determined under 38 U.S.C. 1710(f) and 1710(g).
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Subpart D--Standards
Sec. 51.60 Standards applicable for payment of per diem.
The provisions of this subpart are the standards that a State home
and facility management must meet for the State to receive per diem for
nursing home care.
Sec. 51.70 Resident rights.
The resident has a right to a dignified existence, self-
determination, and communication with and access to persons and
services inside and outside the facility. The facility management must
protect and promote the rights of each resident, including each of the
following rights:
(a) Exercise of rights. (1) The resident has the right to exercise
his or her rights as a resident of the facility and as a citizen or
resident of the United States.
(2) The resident has the right to be free of interference,
coercion, discrimination, and reprisal from the facility management in
exercising his or her rights.
(3) The resident has the right to freedom from chemical or physical
restraint.
(4) In the case of a resident determined incompetent under the laws
of a State by a court of jurisdiction, the rights of the resident are
exercised by the person appointed under State law to act on the
resident's behalf.
(5) In the case of a resident who has not been determined
incompetent by the State court, any legal-surrogate designated in
accordance with State law may exercise the resident's rights to the
extent provided by State law.
(b) Notice of rights and services. (1) The facility management must
inform the resident both orally and in writing in a language that the
resident understands of his or her rights and all rules and regulations
governing resident conduct and responsibilities during the stay in the
facility. Such notification must be made prior to or upon admission and
periodically during the resident's stay.
(2) The resident or his or her legal representative has the right:
(i) Upon an oral or written request, to access all records
pertaining to himself or herself including current clinical records
within 24 hours (excluding weekends and holidays); and
(ii) After receipt of his or her records for review, to purchase at
a cost not to exceed the community standard photocopies of the records
or any portions of them upon request and with 2 working days advance
notice to the facility management.
(3) The resident has the right to be fully informed in language
that he or she can understand of his or her total health status;
(4) The resident has the right to refuse treatment, to refuse to
participate in experimental research, and to formulate an advance
directive as specified in paragraph (b)(7) of this section; and
(5) The facility management must inform each resident before, or at
the time of admission, and periodically during the resident's stay, of
services available in the facility and of charges for those services to
be billed to the resident.
(6) The facility management must furnish a written description of
legal rights which includes:
(i) A description of the manner of protecting personal funds, under
paragraph (c) of this section;
(ii) A statement that the resident may file a complaint with the
State (agency) concerning resident abuse, neglect, misappropriation of
resident property in the facility, and non-compliance with the advance
directives requirements.
(7) The facility management must have written policies and
procedures regarding advance directives (e.g., living wills) that
include provisions to inform and provide written information to all
residents concerning the right to accept or refuse medical or surgical
treatment and, at the individual's option, formulate an advance
directive. This includes a written description of the facility's
policies to implement advance directives and applicable State law. If
an individual is incapacitated at the time of admission and is unable
to receive information (due to the incapacitating conditions) or
articulate whether or not he or she has executed an advance directive,
the facility may give advance directive information to the individual's
family or surrogate in the same manner that it issues other materials
about policies and procedures to the family of the incapacitated
individual or to a surrogate or other concerned persons in accordance
with State law. The facility management is not relieved of its
obligation to provide this information to the individual once he or she
is no longer incapacitated or unable to receive such information.
Follow-up procedures must be in place to provide the information to the
individual directly at the appropriate time.
(8) The facility management must inform each resident of the name
and way of contacting the primary physician responsible for his or her
care.
(9) Notification of changes. (i) Facility management must
immediately inform the resident; consult with the primary physician;
and if known, notify the resident's legal representative or an
interested family member when there is--
(A) An accident involving the resident which results in injury and
has the potential for requiring physician intervention;
(B) A significant change in the resident's physical, mental, or
psychosocial status (i.e., a deterioration in health, mental, or
psychosocial status in either life-threatening conditions or clinical
complications);
(C) A need to alter treatment significantly (i.e., a need to
discontinue an existing form of treatment due to adverse consequences,
or to commence a new form of treatment); or
(D) A decision to transfer or discharge the resident from the
facility as specified in Sec. 51.80(a) of this part.
(ii) The facility management must also promptly notify the resident
and, if known, the resident's legal representative or interested family
member when there is--
(A) A change in room or roommate assignment as specified in
Sec. 51.100(f)(2); or
(B) A change in resident rights under Federal or State law or
regulations as specified in paragraph (b)(1) of this section.
(iii) The facility management must record and periodically update
the address and phone number of the resident's legal representative or
interested family member.
(c) Protection of resident funds. (1) The resident has the right to
manage his or her financial affairs, and the facility management may
not require residents to deposit their personal funds with the
facility.
(2) Management of personal funds. Upon written authorization of a
resident, the facility management must hold, safeguard, manage, and
account for the personal funds of the resident deposited with the
facility, as specified in paragraphs (c)(3) through (c)(6) of this
section.
(3) Deposit of funds. (i) Funds in excess of $100. The facility
management must deposit any residents' personal funds in excess of $100
in an interest bearing account (or accounts) that is separate from any
of the facility's operating accounts, and that credits all interest
earned on resident's funds to that account. (In pooled accounts, there
must be a separate accounting for each resident's share.)
(ii) Funds less than $100. The facility management must maintain a
resident's
[[Page 972]]
personal funds that do not exceed $100 in a non-interest bearing
account, interest-bearing account, or petty cash fund.
(4) Accounting and records. The facility management must establish
and maintain a system that assures a full and complete and separate
accounting, according to generally accepted accounting principles, of
each resident's personal funds entrusted to the facility on the
resident's behalf.
(i) The system must preclude any commingling of resident funds with
facility funds or with the funds of any person other than another
resident.
(ii) The individual financial record must be available through
quarterly statements and on request from the resident or his or her
legal representative.
(5) Conveyance upon death. Upon the death of a resident with a
personal fund deposited with the facility, the facility management must
convey within 30 days the resident's funds, and a final accounting of
those funds, to the individual or probate jurisdiction administering
the resident's estate; or other appropriate individual or entity, if
State law allows.
(6) Assurance of financial security. The facility management must
purchase a surety bond, or otherwise provide assurance satisfactory to
the Under Secretary for Health, to assure the security of all personal
funds of residents deposited with the facility.
(d) Free choice. The resident has the right to--
(1) Be fully informed in advance about care and treatment and of
any changes in that care or treatment that may affect the resident's
well-being; and
(2) Unless determined incompetent or otherwise determined to be
incapacitated under the laws of the State, participate in planning care
and treatment or changes in care and treatment.
(e) Privacy and confidentiality. The resident has the right to
personal privacy and confidentiality of his or her personal and
clinical records.
(1) Residents have a right to personal privacy in their
accommodations, medical treatment, written and telephone
communications, personal care, visits, and meetings of family and
resident groups. This does not require the facility management to give
a private room to each resident.
(2) Except as provided in paragraph (e)(3) of this section, the
resident may approve or refuse the release of personal and clinical
records to any individual outside the facility;
(3) The resident's right to refuse release of personal and clinical
records does not apply when--
(i) The resident is transferred to another health care institution;
or
(ii) Record release is required by law.
(f) Grievances. A resident has the right to--
(1) Voice grievances without discrimination or reprisal. Residents
may voice grievances with respect to treatment received and not
received; and
(2) Prompt efforts by the facility to resolve grievances the
resident may have, including those with respect to the behavior of
other residents.
(g) Examination of survey results. A resident has the right to--
(1) Examine the results of the most recent VA survey with respect
to the facility. The facility management must make the results
available for examination in a place readily accessible to residents,
and must post a notice of their availability; and
(2) Receive information from agencies acting as client advocates,
and be afforded the opportunity to contact these agencies.
(h) Work. The resident has the right to--
(1) Refuse to perform services for the facility;
(2) Perform services for the facility, if he or she chooses, when--
(i) The facility has documented the need or desire for work in the
plan of care;
(ii) The plan specifies the nature of the services performed and
whether the services are voluntary or paid;
(iii) Compensation for paid services is at or above prevailing
rates; and
(iv) The resident agrees to the work arrangement described in the
plan of care.
(i) Mail. The resident must have the right to privacy in written
communications, including the right to--
Send and promptly receive mail that is unopened; and
(2) Have access to stationery, postage, and writing implements at
the resident's own expense.
(j) Access and visitation rights. (1) The resident has the right
and the facility management must provide immediate access to any
resident by the following:
(i) Any representative of the Under Secretary for Health;
(ii) Any representative of the State;
(iii) Physicians of the resident's choice (to provide care in the
nursing home, physicians must meet the provisions of Sec. 51.210(j));
(iv) The State long term care ombudsman;
(v) Immediate family or other relatives of the resident subject to
the resident's right to deny or withdraw consent at any time; and
(vi) Others who are visiting subject to reasonable restrictions and
the resident's right to deny or withdraw consent at any time.
(2) The facility management must provide reasonable access to any
resident by any entity or individual that provides health, social,
legal, or other services to the resident, subject to the resident's
right to deny or withdraw consent at any time.
(3) The facility management must allow representatives of the State
Ombudsman Program, described in paragraph (j)(1)(iv) of this section,
to examine a resident's clinical records with the permission of the
resident or the resident's legal representative, subject to State law.
(k) Telephone. The resident has the right to reasonable access to
use a telephone where calls can be made without being overheard.
(l) Personal property. The resident has the right to retain and use
personal possessions, including some furnishings, and appropriate
clothing, as space permits, unless to do so would infringe upon the
rights or health and safety of other residents.
(m) Married couples. The resident has the right to share a room
with his or her spouse when married residents live in the same facility
and both spouses consent to the arrangement.
(n) Self-Administration of Drugs. An individual resident may self-
administer drugs if the interdisciplinary team, as defined by
Sec. 51.110(d)(2)(ii) of this part, has determined that this practice
is safe.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.80 Admission, transfer and discharge rights.
(a) Transfer and discharge. (1) Definition: Transfer and discharge
includes movement of a resident to a bed outside of the facility
whether that bed is in the same physical plant or not. Transfer and
discharge does not refer to movement of a resident to a bed within the
same facility.
(2) Transfer and discharge requirements. The facility management
must permit each resident to remain in the facility, and not transfer
or discharge the resident from the facility unless--
(i) The transfer or discharge is necessary for the resident's
welfare and the resident's needs cannot be met in the nursing home;
(ii) The transfer or discharge is appropriate because the
resident's health has improved sufficiently so the
[[Page 973]]
resident no longer needs the services provided by the nursing home;
(iii) The safety of individuals in the facility is endangered;
(iv) The health of individuals in the facility would otherwise be
endangered;
(v) The resident has failed, after reasonable and appropriate
notice to pay for a stay at the facility; or
(vi) The nursing home ceases to operate.
(3) Documentation. When the facility transfers or discharges a
resident under any of the circumstances specified in paragraphs
(a)(2)(i) through (a)(2)(vi) of this section, the primary physician
must document this in the resident's clinical record.
(4) Notice before transfer. Before a facility transfers or
discharges a resident, the facility must--
(i) Notify the resident and, if known, a family member or legal
representative of the resident of the transfer or discharge and the
reasons for the move in writing and in a language and manner they
understand.
(ii) Record the reasons in the resident's clinical record; and
(iii) Include in the notice the items described in paragraph (a)(6)
of this section.
(5) Timing of the notice. (i) The notice of transfer or discharge
required under paragraph (a)(4) of this section must be made by the
facility at least 30 days before the resident is transferred or
discharged, except when specified in paragraph (a)(5)(ii) of this
section,
(ii) Notice may be made as soon as practicable before transfer or
discharge when--
(A) The safety of individuals in the facility would be endangered;
(B) The health of individuals in the facility would be otherwise
endangered;
(C) The resident's health improves sufficiently so the resident no
longer needs the services provided by the nursing home;
(D) The resident's needs cannot be met in the nursing home;
(6) Contents of the notice. The written notice specified in
paragraph (a)(4) of this section must include the following:
(i) The reason for transfer or discharge;
(ii) The effective date of transfer or discharge;
(iii) The location to which the resident is transferred or
discharged;
(iv) A statement that the resident has the right to appeal the
action to the State official designated by the State; and
(v) The name, address and telephone number of the State long term
care ombudsman.
(7) Orientation for transfer or discharge. A facility management
must provide sufficient preparation and orientation to residents to
ensure safe and orderly transfer or discharge from the facility.
(b) Notice of bed-hold policy and readmission. (1) Notice before
transfer. Before a facility transfers a resident to a hospital or
allows a resident to go on therapeutic leave, the facility management
must provide written information to the resident and a family member or
legal representative that specifies--
(i) The duration of the facility's bed-hold policy, if any, during
which the resident is permitted to return and resume residence in the
facility; and
(ii) The facility's policies regarding bed-hold periods, which must
be consistent with paragraph (b)(3) of this section, permitting a
resident to return.
(2) Bed-hold notice upon transfer. At the time of transfer of a
resident for hospitalization or therapeutic leave, facility management
must provide to the resident and a family member or legal
representative written notice which specifies the duration of the bed-
hold policy described in paragraph (b)(1) of this section.
(3) Permitting resident to return to facility. A nursing facility
must establish and follow a written policy under which a resident,
whose hospitalization or therapeutic leave exceeds the bed-hold period
is readmitted to the facility immediately upon the first availability
of a bed in a semi-private room, if the resident requires the services
provided by the facility.
(c) Equal access to quality care. The facility management must
establish and maintain identical policies and practices regarding
transfer, discharge, and the provision of services for all individuals
regardless of source of payment.
(d) Admissions policy. The facility management must not require a
third party guarantee of payment to the facility as a condition of
admission or expedited admission, or continued stay in the facility.
However, the facility may require an individual who has legal access to
a resident's income or resources available to pay for facility care to
sign a contract to pay the facility from the resident's income or
resources.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.90 Resident behavior and facility practices.
(a) Restraints. (1) The resident has a right to be free from any
chemical or physical restraints imposed for purposes of discipline or
convenience. When a restraint is applied or used, the purpose of the
restraint is reviewed and is justified as a therapeutic intervention.
(i) Chemical restraint is the inappropriate use of a sedating
psychotropic drug to manage or control behavior.
(ii) Physical restraint is any method of physically restricting a
person's freedom of movement, physical activity or normal access to his
or her body. Bed rails and vest restraints are examples of physical
restraints.
(2) The facility management uses a system to achieve a restraint-
free environment.
(3) The facility management collects data about the use of
restraints.
(4) When alternatives to the use of restraint are ineffective, a
restraint must be safely and appropriately used.
(b) Abuse. The resident has the right to be free from mental,
physical, sexual, and verbal abuse or neglect, corporal punishment, and
involuntary seclusion.
(1) Mental abuse includes humiliation, harassment, and threats of
punishment or deprivation.
(2) Physical abuse includes hitting, slapping, pinching, or
kicking. Also includes controlling behavior through corporal
punishment.
(3) Sexual abuse includes sexual harassment, sexual coercion, and
sexual assault.
(4) Neglect is any impaired quality of life for an individual
because of the absence of minimal services or resources to meet basic
needs. Includes withholding or inadequately providing food and
hydration (without physician, resident, or surrogate approval),
clothing, medical care, and good hygiene. May also include placing the
individual in unsafe or unsupervised conditions.
(5) Involuntary seclusion is a resident's separation from other
residents or from the resident's room against his or her will or the
will of his or her legal representative.
(c) Staff treatment of residents. The facility management must
develop and implement written policies and procedures that prohibit
mistreatment, neglect, and abuse of residents and misappropriation of
resident property.
(1) The facility management must:
(i) Not employ individuals who--
(A) Have been found guilty of abusing, neglecting, or mistreating
individuals by a court of law; or
(B) Have had a finding entered into an applicable State registry or
with the applicable licensing authority concerning abuse, neglect,
mistreatment of individuals or misappropriation of their property; and
(ii) Report any knowledge it has of actions by a court of law
against an
[[Page 974]]
employee, which would indicate unfitness for service as a nurse aide or
other facility staff to the State nurse aide registry or licensing
authorities.
(2) The facility management must ensure that all alleged violations
involving mistreatment, neglect, or abuse, including injuries of
unknown source, and misappropriation of resident property are reported
immediately to the administrator of the facility and to other officials
in accordance with State law through established procedures.
(3) The facility management must have evidence that all alleged
violations are thoroughly investigated, and must prevent further
potential abuse while the investigation is in progress.
(4) The results of all investigations must be reported to the
administrator or the designated representative and to other officials
in accordance with State law within 5 working days of the incident, and
appropriate corrective action must be taken if the alleged violation is
verified.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.100 Quality of life.
A facility management must care for its residents in a manner and
in an environment that promotes maintenance or enhancement of each
resident's quality of life.
(a) Dignity. The facility management must promote care for
residents in a manner and in an environment that maintains or enhances
each resident's dignity and respect in full recognition of his or her
individuality.
(b) Self-determination and participation. The resident has the
right to--
(1) Choose activities, schedules, and health care consistent with
his or her interests, assessments, and plans of care;
(2) Interact with members of the community both inside and outside
the facility; and
(3) Make choices about aspects of his or her life in the facility
that are significant to the resident.
(c) Resident Council. The facility management must establish a
council of residents that meet at least quarterly. The facility
management must document any concerns submitted to the management of
the facility by the council.
(d) Participation in resident and family groups. (1) A resident has
the right to organize and participate in resident groups in the
facility;
(2) A resident's family has the right to meet in the facility with
the families of other residents in the facility;
(3) The facility management must provide the council and any
resident or family group that exists with private space;
(4) Staff or visitors may attend meetings at the group's
invitation;
(5) The facility management must provide a designated staff person
responsible for providing assistance and responding to written requests
that result from group meetings;
(6) The facility management must listen to the views of any
resident or family group, including the council established under
paragraph (c) of this section, and act upon the concerns of residents,
families, and the council regarding policy and operational decisions
affecting resident care and life in the facility.
(e) Participation in other activities. A resident has the right to
participate in social, religious, and community activities that do not
interfere with the rights of other residents in the facility. The
facility management must arrange for religious counseling by clergy of
various faith groups.
(f) Accommodation of needs. A resident has the right to--
(1) Reside and receive services in the facility with reasonable
accommodation of individual needs and preferences, except when the
health or safety of the individual or other residents would be
endangered; and
(2) Receive notice before the resident's room or roommate in the
facility is changed.
(g) Patient Activities. (1) The facility management must provide
for an ongoing program of activities designed to meet, in accordance
with the comprehensive assessment, the interests and the physical,
mental, and psychosocial well-being of each resident.
(2) The activities program must be directed by a qualified
professional who is a qualified therapeutic recreation specialist or an
activities professional who--
(i) Is licensed or registered, if applicable, by the State in which
practicing; and
(ii) Is certified as a therapeutic recreation specialist or as an
activities professional by a recognized accrediting body.
(h) Social Services. (1) The facility management must provide
medically related social services to attain or maintain the highest
practicable mental and psychosocial well-being of each resident.
(2) A nursing home with 100 or more beds must employ a qualified
social worker on a full-time basis.
(3) Qualifications of social worker. A qualified social worker is
an individual with--
(i) A bachelor's degree in social work from a school accredited by
the Council of Social Work Education (Note: A master's degree social
worker with experience in long-term care is preferred), and
(ii) A social work license from the State in which the State home
is located, if offered by the State, and
(iii) A minimum of one year of supervised social work experience in
a health care setting working directly with individuals.
(4) The facility management must have sufficient support staff to
meet patients' social services needs.
(5) Facilities for social services must ensure privacy for
interviews.
(i) Environment. The facility management must provide--
(1) A safe, clean, comfortable, and homelike environment, allowing
the resident to use his or her personal belongings to the extent
possible;
(2) Housekeeping and maintenance services necessary to maintain a
sanitary, orderly, and comfortable interior;
(3) Clean bed and bath linens that are in good condition;
(4) Private closet space in each resident room, as specified in
Sec. 51.200(d)(2)(iv) of this part;
(5) Adequate and comfortable lighting levels in all areas;
(6) Comfortable and safe temperature levels. Facilities must
maintain a temperature range of 71-81 degrees Fahrenheit; and
(7) For the maintenance of comfortable sound levels.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.110 Resident assessment.
The facility management must conduct initially, annually and as
required by a change in the resident's condition a comprehensive,
accurate, standardized, reproducible assessment of each resident's
functional capacity.
(a) Admission orders. At the time each resident is admitted, the
facility management must have physician orders for the resident's
immediate care and a medical assessment, including a medical history
and physical examination, within a time frame appropriate to the
resident's condition, not to exceed 72 hours after admission, except
when an examination was performed within five days before admission and
the findings were recorded in the medical record on admission.
(b) Comprehensive assessments. (1) The facility management must
make a
[[Page 975]]
comprehensive assessment of a resident's needs:
(i) Using the Health Care Financing Administration Long Term Care
Resident Assessment Instrument Version 2.0; and
(ii) Describing the resident's capability to perform daily life
functions, strengths, performances, needs as well as significant
impairments in functional capacity.
(iii) All nursing homes must be in compliance with the use of the
Health Care Financing Administration Long Term Care Resident Assessment
Instrument Version 2.0 by no later than January 1, 2000.
(2) Frequency. Assessments must be conducted--
(i) No later than 14 days after the date of admission;
(ii) Promptly after a significant change in the resident's
physical, mental, or social condition; and
(iii) In no case less often than once every 12 months.
(3) Review of assessments. The nursing facility management must
examine each resident no less than once every 3 months, and as
appropriate, revise the resident's assessment to assure the continued
accuracy of the assessment.
(4) Use. The results of the assessment are used to develop, review,
and revise the resident's individualized comprehensive plan of care,
under paragraph (d) of this section.
(c) Accuracy of assessments. (1) Coordination--
(i) Each assessment must be conducted or coordinated with the
appropriate participation of health professionals.
(ii) Each assessment must be conducted or coordinated by a
registered nurse that signs and certifies the completion of the
assessment.
(2) Certification. Each person who completes a portion of the
assessment must sign and certify the accuracy of that portion of the
assessment.
(d) Comprehensive care plans. (1) The facility management must
develop an individualized comprehensive care plan for each resident
that includes measurable objectives and timetables to meet a resident's
physical, mental, and psychosocial needs that are identified in the
comprehensive assessment. The care plan must describe the following--
(i) The services that are to be furnished to attain or maintain the
resident's highest practicable physical, mental, and psychosocial well-
being as required under Sec. 51.120; and
(ii) Any services that would otherwise be required under
Sec. 51.120 of this part but are not provided due to the resident's
exercise of rights under Sec. 51.70, including the right to refuse
treatment under Sec. 51.70(b)(4) of this part.
(2) A comprehensive care plan must be--
(i) Developed within 7 calendar days after completion of the
comprehensive assessment;
(ii) Prepared by an interdisciplinary team, that includes the
primary physician, a registered nurse with responsibility for the
resident, and other appropriate staff in disciplines as determined by
the resident's needs, and, to the extent practicable, the participation
of the resident, the resident's family or the resident's legal
representative; and
(iii) Periodically reviewed and revised by a team of qualified
persons after each assessment.
(3) The services provided or arranged by the facility must--
(i) Meet professional standards of quality; and
(ii) Be provided by qualified persons in accordance with each
resident's written plan of care.
(e) Discharge summary. Prior to discharging a resident, the
facility management must prepare a discharge summary that includes--
(1) A recapitulation of the resident's stay;
(2) A summary of the resident's status at the time of the discharge
to include items in paragraph (b)(2) of this section; and
(3) A post-discharge plan of care that is developed with the
participation of the resident and his or her family, which will assist
the resident to adjust to his or her new living environment.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.120 Quality of care.
Each resident must receive and the facility management must provide
the necessary care and services to attain or maintain the highest
practicable physical, mental, and psychosocial well-being, in
accordance with the comprehensive assessment and plan of care.
(a) Reporting of Sentinel Events. (1) Definition. A sentinel event
is an adverse event that results in the loss of life or limb or
permanent loss of function.
(2) Examples of sentinel events are as follows:
(i) Any resident death, paralysis, coma or other major permanent
loss of function associated with a medication error; or
(ii) Any suicide of a resident, including suicides following
elopement (unauthorized departure) from the facility; or
(iii) Any elopement of a resident from the facility resulting in a
death or a major permanent loss of function; or
(iv) Any procedure or clinical intervention, including restraints,
that result in death or a major permanent loss of function; or
(v) Assault, homicide or other crime resulting in patient death or
major permanent loss of function; or
(vi) A patient fall that results in death or major permanent loss
of function as a direct result of the injuries sustained in the fall.
(3) The facility management must report sentinel events to the
director of VA medical center of jurisdiction within 24 hours of
identification. The VA medical center of jurisdiction must report
sentinel events by calling VA Network Director (10N 1-22) and Chief
Consultant, Geriatrics and Extended Care Strategic Healthcare Group
(114) within 24 hours of notification.
(4) The facility management must establish a mechanism to review
and analyze a sentinel event resulting in a written report no later
than 10 working days following the event. The purpose of the review and
analysis of a sentinel event is to prevent injuries to residents,
visitors, and personnel, and to manage those injuries that do occur and
to minimize the negative consequences to the injured individuals and
facility.
(b) Activities of daily living. Based on the comprehensive
assessment of a resident, the facility management must ensure that--
(1) A resident's abilities in activities of daily living do not
diminish unless circumstances of the individual's clinical condition
demonstrate that diminution was unavoidable. This includes the
resident's ability to--
(i) Bathe, dress, and groom;
(ii) Transfer and ambulate;
(iii) Toilet;
(iv) Eat; and
(v) Talk or otherwise communicate.
(2) A resident is given the appropriate treatment and services to
maintain or improve his or her abilities specified in paragraph (b)(1)
of this section; and
(3) A resident who is unable to carry out activities of daily
living receives the necessary services to maintain good nutrition,
hydration, grooming, personal and oral hygiene, mobility, and bladder
and bowel elimination.
(c) Vision and hearing. To ensure that residents receive proper
treatment and assistive devices to maintain vision and hearing
abilities, the facility must, if necessary, assist the resident--
(1) In making appointments, and
(2) By arranging for transportation to and from the office of a
practitioner
[[Page 976]]
specializing in the treatment of vision or hearing impairment or the
office of a professional specializing in the provision of vision or
hearing assistive devices.
(d) Pressure sores. Based on the comprehensive assessment of a
resident, the facility management must ensure that--
(1) A resident who enters the facility without pressure sores does
not develop pressure sores unless the individual's clinical condition
demonstrates that they were unavoidable; and
(2) A resident having pressure sores receives necessary treatment
and services to promote healing, prevent infection and prevent new
sores from developing.
(e) Urinary and Fecal Incontinence. Based on the resident's
comprehensive assessment, the facility management must ensure that--
(1) A resident who enters the facility without an indwelling
catheter is not catheterized unless the resident's clinical condition
demonstrates that catheterization was necessary;
(2) A resident who is incontinent of urine receives appropriate
treatment and services to prevent urinary tract infections and to
restore as much normal bladder function as possible; and
(3) A resident who has persistent fecal incontinence receives
appropriate treatment and services to treat reversible causes and to
restore as much normal bowel function as possible.
(f) Range of motion. Based on the comprehensive assessment of a
resident, the facility management must ensure that--
(1) A resident who enters the facility without a limited range of
motion does not experience reduction in range of motion unless the
resident's clinical condition demonstrates that a reduction in range of
motion is unavoidable; and
(2) A resident with a limited range of motion receives appropriate
treatment and services to increase range of motion and/or to prevent
further decrease in range of motion.
(g) Mental and Psychosocial functioning. Based on the comprehensive
assessment of a resident, the facility management must ensure that a
resident who displays mental or psychosocial adjustment difficulty,
receives appropriate treatment and services to correct the assessed
problem.
(h) Enteral Feedings. Based on the comprehensive assessment of a
resident, the facility management must ensure that--
(1) A resident who has been able to adequately eat or take fluids
alone or with assistance is not fed by enteral feedings unless the
resident's clinical condition demonstrates that use of enteral feedings
was unavoidable; and
(2) A resident who is fed by enteral feedings receives the
appropriate treatment and services to prevent aspiration pneumonia,
diarrhea, vomiting, dehydration, metabolic abnormalities, nasal-
pharyngeal ulcers and other skin breakdowns, and to restore, if
possible, normal eating skills.
(i) Accidents. The facility management must ensure that--
(1) The resident environment remains as free of accident hazards as
is possible; and
(2) Each resident receives adequate supervision and assistance
devices to prevent accidents.
(j) Nutrition. Based on a resident's comprehensive assessment, the
facility management must ensure that a resident--
(1) Maintains acceptable parameters of nutritional status, such as
body weight and protein levels, unless the resident's clinical
condition demonstrates that this is not possible; and
(2) Receives a therapeutic diet when a nutritional deficiency is
identified.
(k) Hydration. The facility management must provide each resident
with sufficient fluid intake to maintain proper hydration and health.
(l) Special needs. The facility management must ensure that
residents receive proper treatment and care for the following special
services:
(1) Injections;
(2) Parenteral and enteral fluids;
(3) Colostomy, ureterostomy, or ileostomy care;
(4) Tracheostomy care;
(5) Tracheal suctioning;
(6) Respiratory care;
(7) Foot care; and
(8) Prostheses.
(m) Unnecessary drugs. (1) General. Each resident's drug regimen
must be free from unnecessary drugs. An unnecessary drug is any drug
when used:
(i) In excessive dose (including duplicate drug therapy); or
(ii) For excessive duration; or
(iii) Without adequate monitoring; or
(iv) Without adequate indications for its use; or
(v) In the presence of adverse consequences which indicate the dose
should be reduced or discontinued; or
(vi) Any combinations of the reasons above.
(2) Antipsychotic Drugs. Based on a comprehensive assessment of a
resident, the facility management must ensure that--
(i) Residents who have not used antipsychotic drugs are not given
these drugs unless antipsychotic drug therapy is necessary to treat a
specific condition as diagnosed and documented in the clinical record;
and
(ii) Residents who use antipsychotic drugs receive gradual dose
reductions, and behavioral interventions, unless clinically
contraindicated, in an effort to discontinue these drugs.
(n) Medication Errors. The facility management must ensure that--
(1) Medication errors are identified and reviewed on a timely
basis; and
(2) strategies for preventing medication errors and adverse
reactions are implemented.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.130 Nursing services.
The facility management must provide an organized nursing service
with a sufficient number of qualified nursing personnel to meet the
total nursing care needs, as determined by resident assessment and
individualized comprehensive plans of care, of all patients within the
facility 24 hours a day, 7 days a week.
(a) The nursing service must be under the direction of a full-time
registered nurse who is currently licensed by the State and has, in
writing, administrative authority, responsibility, and accountability
for the functions, activities, and training of the nursing services
staff.
(b) The facility management must provide registered nurses 24 hours
per day, 7 days per week.
(c) The director of nursing service must designate a registered
nurse as a supervising nurse for each tour of duty.
(1) Based on the application and results of the case mix and
staffing methodology, the director of nursing may serve in a dual role
as director and as an onsite-supervising nurse only when the facility
has an average daily occupancy of 60 or fewer residents in nursing
home.
(2) Based on the application and results of the case mix and
staffing methodology, the evening or night supervising nurse may serve
in a dual role as supervising nurse as well as provides direct patient
care only when the facility has an average daily occupancy of 60 or
fewer residents in nursing home.
(d) The facility management must provide nursing services to ensure
that there is direct care nurse staffing of no less than 2.5 hours per
patient per 24 hours, 7 days per week in the portion of any building
providing nursing home care.
(e) Nurse staffing must be based on a staffing methodology that
applies case
[[Page 977]]
mix and is adequate for meeting the standards of this part.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.140 Dietary services.
The facility management must provide each resident with a
nourishing, palatable, well-balanced diet that meets the daily
nutritional and special dietary needs of each resident.
(a) Staffing. The facility management must employ a qualified
dietitian either full-time, part-time, or on a consultant basis.
(1) If a dietitian is not employed, the facility management must
designate a person to serve as the director of food service who
receives at least a monthly scheduled consultation from a qualified
dietitian.
(2) A qualified dietitian is one who is qualified based upon
registration by the Commission on Dietetic Registration of the American
Dietetic Association.
(b) Sufficient staff. The facility management must employ
sufficient support personnel competent to carry out the functions of
the dietary service.
(c) Menus and nutritional adequacy. Menus must--
(1) Meet the nutritional needs of residents in accordance with the
recommended dietary allowances of the Food and Nutrition Board of the
National Research Council, National Academy of Sciences;
(2) Be prepared in advance; and
(3) Be followed.
(d) Food. Each resident receives and the facility provides--
(1) Food prepared by methods that conserve nutritive value, flavor,
and appearance;
(2) Food that is palatable, attractive, and at the proper
temperature;
(3) Food prepared in a form designed to meet individual needs; and
(4) Substitutes offered of similar nutritive value to residents who
refuse food served.
(e) Therapeutic diets. Therapeutic diets must be prescribed by the
primary care physician.
(f) Frequency of meals. (1) Each resident receives and the facility
provides at least three meals daily, at regular times comparable to
normal mealtimes in the community.
(2) There must be no more than 14 hours between a substantial
evening meal and the availability of breakfast the following day,
except as provided in (f)(4) of this section.
(3) The facility staff must offer snacks at bedtime daily.
(4) When a nourishing snack is provided at bedtime, up to 16 hours
may elapse between a substantial evening meal and breakfast the
following day.
(g) Assistive devices. The facility management must provide special
eating equipment and utensils for residents who need them.
(h) Sanitary conditions. The facility must--
(1) Procure food from sources approved or considered satisfactory
by Federal, State, or local authorities;
(2) Store, prepare, distribute, and serve food under sanitary
conditions; and (3) Dispose of garbage and refuse properly.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.150 Physician services.
A physician must personally approve in writing a recommendation
that an individual be admitted to a facility. Each resident must remain
under the care of a physician.
(a) Physician supervision. The facility management must ensure
that--
(1) The medical care of each resident is supervised by a primary
care physician;
(2) Each resident's medical record lists the name of the resident's
primary physician, and
(3) Another physician supervises the medical care of residents when
their primary physician is unavailable.
(b) Physician visits. The physician must--
(1) Review the resident's total program of care, including
medications and treatments, at each visit required by paragraph (c) of
this section;
(2) Write, sign, and date progress notes at each visit; and
(3) Sign and date all orders.
(c) Frequency of physician visits.
(1) The resident must be seen by the primary physician at least
once every 30 days for the first 90 days after admission, and at least
once every 60 days thereafter, or more frequently based on the
condition of the resident.
(2) A physician visit is considered timely if it occurs not later
than 10 days after the date the visit was required.
(3) Except as provided in paragraphs (c)(4) of this section, all
required physician visits must be made by the physician personally.
(4) At the option of the physician, required visits in the facility
after the initial visit may alternate between personal visits by the
physician and visits by a physician assistant, nurse practitioner, or
clinical nurse specialist in accordance with paragraph (e) of this
section.
(d) Availability of physicians for emergency care. The facility
management must provide or arrange for the provision of physician
services 24 hours a day, 7 days per week, in case of an emergency.
(e) Physician delegation of tasks. (1) Except as specified in
paragraph (e)(2) of this section, a primary physician may delegate
tasks to:
(i) a certified physician assistant or a certified nurse
practitioner, or
(ii) a clinical nurse specialist who--
(A) Is acting within the scope of practice as defined by State law;
and
(B) Is under the supervision of the physician.
Note to paragraph (e): An individual with experience in long
term care is preferred.
(2) The primary physician may not delegate a task when the
regulations specify that the primary physician must perform it
personally, or when the delegation is prohibited under State law or by
the facility's own policies.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.160 Specialized rehabilitative services.
(a) Provision of services. If specialized rehabilitative services
such as but not limited to physical therapy, speech therapy,
occupational therapy, and mental health services for mental illness are
required in the resident's comprehensive plan of care, facility
management must--
(1) Provide the required services; or
(2) Obtain the required services from an outside resource, in
accordance with Sec. 51.210(h) of this part, from a provider of
specialized rehabilitative services.
(b) Specialized rehabilitative services must be provided under the
written order of a physician by qualified personnel.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.170 Dental services.
(a) A facility must provide or obtain from an outside resource, in
accordance with Sec. 51.210(h) of this part, routine and emergency
dental services to meet the needs of each resident;
(b) A facility may charge a resident an additional amount for
routine and emergency dental services; and
(c) A facility must, if necessary, assist the resident--
(1) In making appointments;
(2) By arranging for transportation to and from the dental
services; and
(3) Promptly refer residents with lost or damaged dentures to a
dentist.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.180 Pharmacy services.
The facility management must provide routine and emergency drugs
[[Page 978]]
and biologicals to its residents, or obtain them under an agreement
described in Sec. 51.210(h) of this part. The facility management must
have a system for disseminating drug information to medical and nursing
staff.
(a) Procedures. The facility management must provide pharmaceutical
services (including procedures that assure the accurate acquiring,
receiving, dispensing, and administering of all drugs and biologicals)
to meet the needs of each resident.
(b) Service consultation. The facility management must employ or
obtain the services of a pharmacist licensed in a State in which the
facility is located or a VA pharmacist under VA contract who--
(1) Provides consultation on all aspects of the provision of
pharmacy services in the facility;
(2) Establishes a system of records of receipt and disposition of
all controlled drugs in sufficient detail to enable an accurate
reconciliation; and
(3) Determines that drug records are in order and that an account
of all controlled drugs is maintained and periodically reconciled.
(c) Drug regimen review. (1) The drug regimen of each resident must
be reviewed at least once a month by a licensed pharmacist.
(2) The pharmacist must report any irregularities to the primary
physician and the director of nursing, and these reports must be acted
upon.
(d) Labeling of drugs and biologicals. Drugs and biologicals used
in the facility management must be labeled in accordance with currently
accepted professional principles, and include the appropriate accessory
and cautionary instructions, and the expiration date when applicable.
(e) Storage of drugs and biologicals. (1) In accordance with State
and Federal laws, the facility management must store all drugs and
biologicals in locked compartments under proper temperature controls,
and permit only authorized personnel to have access to the keys.
(2) The facility management must provide separately locked,
permanently affixed compartments for storage of controlled drugs listed
in Schedule II of the Comprehensive Drug Abuse Prevention and Control
Act of 1976 and other drugs subject to abuse.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.190 Infection control.
The facility management must establish and maintain an infection
control program designed to provide a safe, sanitary, and comfortable
environment and to help prevent the development and transmission of
disease and infection.
(a) Infection control program. The facility management must
establish an infection control program under which it--
(1) Investigates, controls, and prevents infections in the
facility;
(2) Decides what procedures, such as isolation, should be applied
to an individual resident; and
(3) Maintains a record of incidents and corrective actions related
to infections.
(b) Preventing spread of infection. (1) When the infection control
program determines that a resident needs isolation to prevent the
spread of infection, the facility management must isolate the resident.
(2) The facility management must prohibit employees with a
communicable disease or infected skin lesions from engaging in any
contact with residents or their environment that would transmit the
disease.
(3) The facility management must require staff to wash their hands
after each direct resident contact for which hand washing is indicated
by accepted professional practice.
(c) Linens. Personnel must handle, store, process, and transport
linens so as to prevent the spread of infection.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.200 Physical environment.
The facility management must be designed, constructed, equipped,
and maintained to protect the health and safety of residents, personnel
and the public.
(a) Life safety from fire. The facility must meet the applicable
provisions of the National Fire Protection Association's NFPA 101, Life
Safety Code (1997 edition) and the NFPA 99, Standard for Health Care
Facilities (1996 edition). Incorporation by reference of these
materials was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials
incorporated by reference are available for inspection at the Office of
the Federal Register, Suite 700, 800 North Capitol Street, NW.,
Washington, DC, and the Department of Veterans Affairs, Office of
Regulations Management (02D), Room 1154, 810 Vermont Avenue, NW.,
Washington, DC 20420. Copies may be obtained from the National Fire
Protection Association, 1 Batterymarch Park, P.O. Box 9101, Quincy, MA
02269-9101. (For ordering information, call toll-free 1-800-344-3555.)
(b) Emergency power. (1) An emergency electrical power system must
be provided to supply power adequate for illumination of all exit signs
and lighting for the means of egress, fire alarm and medical gas
alarms, emergency communication systems, and generator task
illumination.
(2) The system must be the appropriate type essential electrical
system in accordance with the applicable provisions of the National
Fire Protection Association's NFPA 101, Life Safety Code (1997 edition)
and the NFPA 99, Standard for Health Care Facilities (1996 edition).
Incorporation by reference of these materials was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. The availability of these materials is described in
paragraph (a) of this section.
(3) When electrical life support devices are used, an emergency
electrical power system must also be provided for devices in accordance
with NFPA 99, Standard for Health Care Facilities (1996 edition).
(4) The source of power must be an on-site emergency standby
generator of sufficient size to serve the connected load or other
approved sources in accordance with the National Fire Protection
Association's NFPA 101, Life Safety Code (1997 edition) and the NFPA
99, Standard for Health Care Facilities (1996 edition). Incorporation
by reference of these materials was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
The availability of these materials is described in paragraph (a) of
this section.
(c) Space and equipment. Facility management must--
(1) Provide sufficient space and equipment in dining, health
services, recreation, and program areas to enable staff to provide
residents with needed services as required by these standards and as
identified in each resident's plan of care; and
(2) Maintain all essential mechanical, electrical, and patient care
equipment in safe operating condition.
(d) Resident rooms. Resident rooms must be designed and equipped
for adequate nursing care, comfort, and privacy of residents: (1)
Bedrooms must--
(i) Accommodate no more than four residents;
(ii) Measure at least 115 net square feet per resident in multiple
resident bedrooms;
[[Page 979]]
(iii) Measure at least 150 net square feet in single resident
bedrooms;
(iv) Measure at least 245 net square feet in small double resident
bedrooms; and
(v) Measure at least 305 net square feet in large double resident
bedrooms used for spinal cord injury residents. It is recommended that
the facility have one large double resident bedroom for every 30
resident bedrooms.
(vi) Have direct access to an exit corridor;
(vii) Be designed or equipped to assure full visual privacy for
each resident;
(viii) Except in private rooms, each bed must have ceiling
suspended curtains, which extend around the bed to provide total visual
privacy in combination with adjacent walls and curtains;
(ix) Have at least one window to the outside; and
(x) Have a floor at or above grade level.
(2) The facility management must provide each resident with--
(i) A separate bed of proper size and height for the safety of the
resident;
(ii) A clean, comfortable mattress;
(iii) Bedding appropriate to the weather and climate; and
(iv) Functional furniture appropriate to the resident's needs, and
individual closet space in the resident's bedroom with clothes racks
and shelves accessible to the resident.
(e) Toilet facilities. Each resident room must be equipped with or
located near toilet and bathing facilities. It is recommended that
public toilet facilities be also located near the resident's dining and
recreational areas.
(f) Resident call system. The nurse's station must be equipped to
receive resident calls through a communication system from--
(1) Resident rooms; and
(2) Toilet and bathing facilities.
(g) Dining and resident activities. The facility management must
provide one or more rooms designated for resident dining and
activities. These rooms must--
(1) Be well lighted;
(2) Be well ventilated;
(3) Be adequately furnished; and
(4) Have sufficient space to accommodate all activities.
(h) Other environmental conditions. The facility management must
provide a safe, functional, sanitary, and comfortable environment for
the residents, staff and the public. The facility must--
(1) Establish procedures to ensure that water is available to
essential areas when there is a loss of normal water supply;
(2) Have adequate outside ventilation by means of windows, or
mechanical ventilation, or a combination of the two;
(3) Equip corridors with firmly secured handrails on each side; and
(4) Maintain an effective pest control program so that the facility
is free of pests and rodents.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743)
Sec. 51.210 Administration.
A facility must be administered in a manner that enables it to use
its resources effectively and efficiently to attain or maintain the
highest practicable physical, mental, and psychosocial well being of
each resident.
(a) Governing body. (1) The State must have a governing body, or
designated person functioning as a governing body, that is legally
responsible for establishing and implementing policies regarding the
management and operation of the facility; and
(2) The governing body or State official with oversight for the
facility appoints the administrator who is--
(i) Licensed by the State where licensing is required; and
(ii) Responsible for operation and management of the facility.
(b) Disclosure of State agency and individual responsible for
oversight of facility. The State must give written notice to the Chief
Consultant, Geriatrics and Extended Care Strategic Healthcare Group
(114), VA Headquarters, 810 Vermont Avenue, NW, Washington, DC 20420,
at the time of the change, if any of the following change:
(1) The State agency and individual responsible for oversight of a
State home facility;
(2) The State home administrator; and
(3) The State employee responsible for oversight of the State home
facility if a contractor operates the State home.
(c) Required Information. The facility management must submit the
following to the director of the VA medical center of jurisdiction as
part of the application for recognition and thereafter as often as
necessary to be current or as specified:
(1) The copy of legal and administrative action establishing the
State-operated facility (e.g., State laws);
(2) Site plan of facility and surroundings;
(3) Legal title, lease, or other document establishing right to
occupy facility;
(4) Organizational charts and the operational plan of the facility;
(5) The number of the staff by category indicating full-time, part-
time and minority designation (annual at time of survey);
(6) The number of nursing home patients who are veterans and non-
veterans, the number of veterans who are minorities and the number of
non-veterans who are minorities (annual at time of survey);
(7) Annual State Fire Marshall's report;
(8) Annual certification from the responsible State Agency showing
compliance with Section 504 of the Rehabilitation Act of 1973 (Public
Law 93-112) (VA Form 10-0143A set forth at Sec. 58.14 of this chapter);
(9) Annual certification for Drug-Free Workplace Act of 1988 (VA
Form 10-0143 set forth at Sec. 58.15 of this chapter);
(10) Annual certification regarding lobbying in compliance with
Public Law 101-121 (VA Form 10-0144 set forth at Sec. 58.16 of this
chapter); and
(11) Annual certification of compliance with Title VI of the Civil
Rights Act of 1964 as incorporated in Title 38 CFR 18.1-18.3 (VA Form
10-0144A located at Sec. 58.17 of this chapter).
(d) Percentage of Veterans. The percent of the facility residents
eligible for VA nursing home care must be at least 75 percent veterans
except that the veteran percentage need only be more than 50 percent if
the facility was constructed or renovated solely with State funds. All
non-veteran residents must be spouses of veterans or parents all of
whose children died while serving in the armed forces of the United
States.
(e) Management Contract Facility. If a facility is operated by an
entity contracting with the State, the State must assign a State
employee to monitor the operations of the facility on a full-time
onsite basis.
(f) Licensure. The facility and facility management must comply
with applicable State and local licensure laws.
(g) Staff qualifications. (1) The facility management must employ
on a full-time, part-time or consultant basis those professionals
necessary to carry out the provisions of these requirements.
(2) Professional staff must be licensed, certified, or registered
in accordance with applicable State laws.
(h) Use of outside resources. (1) If the facility does not employ a
qualified professional person to furnish a specific service to be
provided by the facility, the facility management must have that
service furnished to residents by a person or agency outside the
facility under a written agreement described in paragraph (h)(2) of
this section.
(2) Agreements pertaining to services furnished by outside
resources must specify in writing that the facility
[[Page 980]]
management assumes responsibility for--
(i) Obtaining services that meet professional standards and
principles that apply to professionals providing services in such a
facility; and
(ii) The timeliness of the services.
(i) Medical director. (1) The facility management must designate a
primary care physician to serve as medical director.
(2) The medical director is responsible for--
(i) Participating in establishing policies, procedures, and
guidelines to ensure adequate, comprehensive services;
(ii) Directing and coordinating medical care in the facility;
(iii) Helping to arrange for continuous physician coverage to
handle medical emergencies;
(iv) Reviewing the credentialing and privileging process;
(v) Participating in managing the environment by reviewing and
evaluating incident reports or summaries of incident reports,
identifying hazards to health and safety, and making recommendations to
the administrator; and
(vi) Monitoring employees' health status and advising the
administrator on employee-health policies.
(j) Credentialing and Privileging. Credentialing is the process of
obtaining, verifying, and assessing the qualifications of a health care
practitioner, which may include physicians, podiatrists, dentists,
psychologists, physician assistants, nurse practitioners, licensed
nurses to provide patient care services in or for a health care
organization. Privileging is the process whereby a specific scope and
content of patient care services are authorized for a health care
practitioner by the facility management, based on evaluation of the
individual's credentials and performance.
(1) The facility management must uniformly apply credentialing
criteria to licensed practitioners applying to provide resident care or
treatment under the facility's care.
(2) The facility management must verify and uniformly apply the
following core criteria: current licensure; current certification, if
applicable, relevant education, training, and experience; current
competence; and a statement that the individual is able to perform the
services he or she is applying to provide.
(3) The facility management must decide whether to authorize the
independent practitioner to provide resident care or treatment, and
each credentials file must indicate that these criteria are uniformly
and individually applied.
(4) The facility management must maintain documentation of current
credentials for each licensed independent practitioner practicing
within the facility.
(5) When reappointing a licensed independent practitioner, the
facility management must review the individual's record of experience.
(6) The facility management systematically must assess whether
individuals with clinical privileges act within the scope of privileges
granted.
(k) Required training of nursing aides. (1) Nurse aide means any
individual providing nursing or nursing-related services to residents
in a facility who is not a licensed health professional, a registered
dietitian, or a volunteer who provide such services without pay.
(2) The facility management must not use any individual working in
the facility as a nurse aide whether permanent or not unless:
(i) That individual is competent to provide nursing and nursing
related services; and
(ii) That individual has completed a training and competency
evaluation program, or a competency evaluation program approved by the
State.
(3) Registry verification. Before allowing an individual to serve
as a nurse aide, facility management must receive registry verification
that the individual has met competency evaluation requirements unless
the individual can prove that he or she has recently successfully
completed a training and competency evaluation program or competency
evaluation program approved by the State and has not yet been included
in the registry. Facilities must follow up to ensure that such an
individual actually becomes registered.
(4) Multi-State registry verification. Before allowing an
individual to serve as a nurse aide, facility management must seek
information from every State registry established under HHS regulations
at 42 CFR 483.156 which the facility believes will include information
on the individual.
(5) Required retraining. If, since an individual's most recent
completion of a training and competency evaluation program, there has
been a continuous period of 24 consecutive months during none of which
the individual provided nursing or nursing-related services for
monetary compensation, the individual must complete a new training and
competency evaluation program or a new competency evaluation program.
(6) Regular in-service education. The facility management must
complete a performance review of every nurse aide at least once every
12 months, and must provide regular in-service education based on the
outcome of these reviews. The in-service training must--
(i) Be sufficient to ensure the continuing competence of nurse
aides, but must be no less than 12 hours per year;
(ii) Address areas of weakness as determined in nurse aides'
performance reviews and may address the special needs of residents as
determined by the facility staff; and
(iii) For nurse aides providing services to individuals with
cognitive impairments, also address the care of the cognitively
impaired.
(l) Proficiency of Nurse aides. The facility management must ensure
that nurse aides are able to demonstrate competency in skills and
techniques necessary to care for residents' needs, as identified
through resident assessments, and described in the plan of care.
(m) Level B Requirement Laboratory services. (1) The facility
management must provide or obtain laboratory services to meet the needs
of its residents. The facility is responsible for the quality and
timeliness of the services.
(i) If the facility provides its own laboratory services, the
services must meet all applicable certification standards, statutes,
and regulations for laboratory services.
(ii) If the facility provides blood bank and transfusion services,
it must meet all applicable certification standards, statutes, and
regulations.
(iii) If the laboratory chooses to refer specimens for testing to
another laboratory, the referral laboratory must be certified in the
appropriate specialities and subspecialties of services and meet
certification standards, statutes, and regulations.
(iv) The laboratory performing the testing must have a current,
valid CLIA number (Clinical Laboratory Improvement Amendments of 1988).
The facility management must provide VA surveyors with the CLIA number
and a copy of the results of the last CLIA inspection.
(v) Such services must be available to the resident seven days a
week, 24 hours a day.
(2) The facility management must--
(i) Provide or obtain laboratory services only when ordered by the
primary physician;
(ii) Promptly notify the primary physician of the findings;
(iii) Assist the resident in making transportation arrangements to
and from the source of service, if the resident needs assistance; and
[[Page 981]]
(iv) File in the resident's clinical record laboratory reports that
are dated and contain the name and address of the testing laboratory.
(n) Radiology and other diagnostic services. (1) The facility
management must provide or obtain radiology and other diagnostic
services to meet the needs of its residents. The facility is
responsible for the quality and timeliness of the services.
(i) If the facility provides its own diagnostic services, the
services must meet all applicable certification standards, statutes,
and regulations.
(ii) If the facility does not provide its own diagnostic services,
it must have an agreement to obtain these services. The services must
meet all applicable certification standards, statutes, and regulations.
(iii) Radiologic and other diagnostic services must be available 24
hours a day, seven days a week.
(2) The facility must--
(i) Provide or obtain radiology and other diagnostic services when
ordered by the primary physician;
(ii) Promptly notify the primary physician of the findings;
(iii) Assist the resident in making transportation arrangements to
and from the source of service, if the resident needs assistance; and
(iv) File in the resident's clinical record signed and dated
reports of x-ray and other diagnostic services.
(o) Clinical records. (1) The facility management must maintain
clinical records on each resident in accordance with accepted
professional standards and practices that are--
(i) Complete;
(ii) Accurately documented;
(iii) Readily accessible; and
(iv) Systematically organized.
(2) Clinical records must be retained for--
(i) The period of time required by State law; or
(ii) Five years from the date of discharge when there is no
requirement in State law.
(3) The facility management must safeguard clinical record
information against loss, destruction, or unauthorized use;
(4) The facility management must keep confidential all information
contained in the resident's records, regardless of the form or storage
method of the records, except when release is required by--
(i) Transfer to another health care institution;
(ii) Law;
(iii) Third party payment contract;
(iv) The resident or;
(v) The resident's authorized agent or representative.
(5) The clinical record must contain--
(i) Sufficient information to identify the resident;
(ii) A record of the resident's assessments;
(iii) The plan of care and services provided;
(iv) The results of any pre-admission screening conducted by the
State; and
(v) Progress notes.
(p) Quality assessment and assurance. (1) Facility management must
maintain a quality assessment and assurance committee consisting of--
(i) The director of nursing services;
(ii) A primary physician designated by the facility; and
(iii) At least 3 other members of the facility's staff.
(2) The quality assessment and assurance committee--
(i) Meets at least quarterly to identify issues with respect to
which quality assessment and assurance activities are necessary; and
(ii) Develops and implements appropriate plans of action to correct
identified quality deficiencies; and
(3) Identified quality deficiencies are corrected within an
established time period.
(4) The VA Under Secretary for Health may not require disclosure of
the records of such committee unless such disclosure is related to the
compliance with requirements of this section.
(q) Disaster and emergency preparedness. (1) The facility
management must have detailed written plans and procedures to meet all
potential emergencies and disasters, such as fire, severe weather, and
missing residents.
(2) The facility management must train all employees in emergency
procedures when they begin to work in the facility, periodically review
the procedures with existing staff, and carry out unannounced staff
drills using those procedures.
(r) Transfer agreement. (1) The facility management must have in
effect a written transfer agreement with one or more hospitals that
reasonably assures that--
(i) Residents will be transferred from the nursing home to the
hospital, and ensured of timely admission to the hospital when transfer
is medically appropriate as determined by the primary physician; and
(ii) Medical and other information needed for care and treatment of
residents, and, when the transferring facility deems it appropriate,
for determining whether such residents can be adequately cared for in a
less expensive setting than either the nursing home or the hospital,
will be exchanged between the institutions.
(2) The facility is considered to have a transfer agreement in
effect if the facility has an agreement with a hospital sufficiently
close to the facility to make transfer feasible.
(s) Compliance with Federal, State, and local laws and professional
standards. The facility management must operate and provide services in
compliance with all applicable Federal, State, and local laws,
regulations, and codes, and with accepted professional standards and
principles that apply to professionals providing services in such a
facility. This includes the Single Audit Act of 1984 (Title 31, Section
7501 et seq.) and the Cash Management Improvement Acts of 1990 and 1992
(Public Laws 101-453 and 102-589, see 31 USC 3335, 3718, 3720A, 6501,
6503)
(t) Relationship to other Federal regulations. In addition to
compliance with the regulations set forth in this subpart, facilities
are obliged to meet the applicable provisions of other Federal laws and
regulations, including but not limited to those pertaining to
nondiscrimination on the basis of race, color, national origin,
handicap, or age (38 CFR part 18); protection of human subjects of
research (45 CFR part 46), section 504 of the Rehabilitation Act of
1993, Public Law 93-112; Drug-Free Workplace Act of 1988, 38 CFR part
44, section 44.100 through 44.420; section 319 of Public Law 101-121;
Title VI of the Civil Rights Act of 1964, 38 CFR 18.1-18.3. Although
these regulations are not in themselves considered requirements under
this part, their violation may result in the termination or suspension
of, or the refusal to grant or continue payment with Federal funds.
(u) Intermingling. A building housing a facility recognized as a
State home for providing nursing home care may only provide nursing
home care in the areas of the building recognized as a State home for
providing nursing home care.
(v) VA Management of State Veterans Homes. Except as specifically
provided by statute or regulations, VA employees have no authority
regarding the management or control of State homes providing nursing
home care.
(Authority: 38 U.S.C. 101, 501, 1710, 1741-1743, 8135)
11. Part 58 is added to read as follows:
PART 58--FORMS
Sec.
58.10 VA Form 10-3567--State Home Inspection: Staffing Profile.
58.11 VA Form 10-5588--State Home Report and Statement of Federal
Aid Claimed.
[[Page 982]]
58.12 VA Form 10-10EZ--Application for Health Benefits.
58.13 VA Form 10-10SH--State Home Program Application for Veteran
Care--Medical Certification.
58.14 VA Form 10-0143A--Statement of Assurance of Compliance with
Section 504 of The Rehabilitation Act of 1973.
58.15 VA Form 10-0143--Department of Veterans Affairs Certification
Regarding Drug-Free Workplace Requirements for Grantees Other Than
Individuals.
58.16 VA Form 10-0144--Certification Regarding Lobbying.
58.17 VA Form 10-0144A--Statement of Assurance of Compliance with
Equal Opportunity Laws.
Authority: 38 U.S.C. 101, 501, 1710, 1741-1743.
BILLING CODE 8320-01-C
[[Page 983]]
Sec. 58.10 VA Form 10-3567--State Home Inspection Staffing Profile.
[GRAPHIC] [TIFF OMITTED] TR06JA00.000
[[Page 984]]
[GRAPHIC] [TIFF OMITTED] TR06JA00.001
[[Page 985]]
[GRAPHIC] [TIFF OMITTED] TR06JA00.002
[[Page 986]]
Sec. 58.11 VA Form 10-5588--State Home Report and Statement of Federal
Aid Claimed.
[GRAPHIC] [TIFF OMITTED] TR06JA00.003
[[Page 987]]
[GRAPHIC] [TIFF OMITTED] TR06JA00.004
[[Page 988]]
Sec. 58.12 VA Form 10-10EZ--Application for Health Benefits
[GRAPHIC] [TIFF OMITTED] TR06JA00.005
[[Page 989]]
[GRAPHIC] [TIFF OMITTED] TR06JA00.006
[[Page 990]]
Sec. 58.13 VA Form 10-10SH--State Home Program Application for Veteran
Care Medical Certification.
[GRAPHIC] [TIFF OMITTED] TR06JA00.007
[[Page 991]]
[GRAPHIC] [TIFF OMITTED] TR06JA00.008
[[Page 992]]
[GRAPHIC] [TIFF OMITTED] TR06JA00.009
[[Page 993]]
Sec. 58.14 VA Form 10-0143A--Statement of Assurance of Compliance with
Section 504 of The Rehabilitation Act of 1973.
[GRAPHIC] [TIFF OMITTED] TR06JA00.010
[[Page 994]]
Sec. 58.15 VA Form 10-0143--Department of Veterans Affairs
Certification Regarding Drug-Free Workplace Requirements for Grantees
Other Than Individuals.
[GRAPHIC] [TIFF OMITTED] TR06JA00.011
[[Page 995]]
[GRAPHIC] [TIFF OMITTED] TR06JA00.012
[[Page 996]]
Sec. 58.16 VA Form 10-0144--Certification Regarding Lobbying.
[GRAPHIC] [TIFF OMITTED] TR06JA00.013
[[Page 997]]
Sec. 58.17 VA Form 10-0144A--Statement of Assurance of Compliance with
Equal Opportunity Laws.
[GRAPHIC] [TIFF OMITTED] TR06JA00.014
[FR Doc. 00-60 Filed 1-5-00; 8:45 am]
BILLING CODE 8320-01-C
