2011-3887. Updating Fire Safety Standards

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule with request for comments.

SUMMARY:

This document adopts as a final rule, with changes, the proposed rule to amend the Department of Veterans Affairs (VA) regulations concerning community residential care facilities, contract facilities for certain outpatient and residential services, and State home facilities. The final rule will clarify current regulations and update the standards for VA approval of such facilities, including standards for fire safety and heating and cooling systems. The final rule will help ensure the safety of veterans in the affected facilities. This document also implements and seeks comments regarding a new interim final sprinkler system requirement for certain facilities.

DATES:

Effective Date: This final rule is effective March 28, 2011.

Comment Date: Comments on the interim final amendments to 38 CFR 59.130 only must be received on or before April 25, 2011.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this rule as of March 28, 2011.

ADDRESSES:

Written comments may be submitted through http://www.regulations.gov;​; by mail or hand-delivery to the Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to [phone]. Comments should indicate that they are submitted in response to “RIN 2900-AN57—Updating Fire Safety Standards.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please call [phone] for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Brian McCarthy, Office of Patient Care Services, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, 202-461-6759. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

In a document published in the Federal Register on April 7, 2010 (75 FR 17641), VA proposed to amend its regulations concerning the codes and standards applicable to community residential care facilities, contract facilities for outpatient and residential treatment services for veterans with alcohol or drug dependence or abuse disabilities, and State homes. We proposed to amend 38 CFR 17.63, 17.81(a)(1), 17.82(a)(1), and 59.130(d)(1) to require facilities to meet the requirements in the applicable provisions of current editions of publications produced by the National Fire Protection Association (NFPA). These publications are: NFPA 10, Standard for Portable Fire Extinguishers; NFPA 99, Standard for Health Care Facilities; NFPA 101, Life Safety Code; and NFPA 101A, Guide on Alternative Approaches to Life Safety.

We provided a 60-day comment period and received three comments. All three comments were entirely supportive. Two comments from the public noted the importance of requiring facilities to meet up-to-date safety standards. The third comment, from the NFPA, described in detail the improvements in the current editions of the codes that are referenced in this final rule. Although we noted in the proposed rule that we were not aware of any significant changes from the 2000 edition of NFPA 101 referenced in current § 59.130 to the 2009 edition of NFPA 101, as the NFPA commented, a substantive revision in the 2009 edition of NFPA 101 is the requirement that all existing nursing homes have automatic sprinklers. We are aware that not all existing State home facilities currently meet this requirement. Therefore, to give certain facilities that are not currently in compliance ample time to come into compliance with the sprinkler requirement, we are requiring certain existing nursing home facilities to comply with the automatic sprinkler requirement of the 2009 edition of NFPA 101 by February 24, 2016.

The Centers for Medicare & Medicaid Services (CMS) has determined that, after considering fire safety concerns and feasibility, 5 years is a reasonable amount of time to install sprinkler systems in existing nursing home facilities, see 73 FR 47081, as required by paragraph 19.3.5.1 in the 2009 edition of NFPA 101, which specifically states that “[b]uildings containing nursing homes shall be protected throughout by an approved, supervised automatic sprinkler system in accordance with Section 9.7, unless otherwise permitted by 19.3.5.5.” We agree, and therefore based on the NFPA's comment we have included such a requirement in the final rule. The extended compliance date of 5 years from the date of publication of this final rule does not apply to buildings with nursing home facilities that were newly constructed and in operation after June 25, 2001, because the 2000 edition of NFPA 101, which was incorporated by reference into 38 CFR 59.130 in 66 FR 33845 as of June 26, 2001, required installment of automatic sprinklers in all newly constructed buildings with nursing home facilities. Thus, the extended compliance date applies only to “existing buildings” with nursing home facilities as of June 25, 2001, and is not intended to postpone enforcement of the existing requirement for sprinkler protection in all other buildings with nursing home facilities. See paragraph 3.3.32.5 in the 2009 edition of NFPA 101 (defining an “[e]xisting [b]uilding” as “[a] building erected or officially authorized prior to the effective date of the adoption of this edition of the Code by the agency or jurisdiction”). Accordingly, we have made interim final revisions to 38 CFR 59.130 to reflect this change. The public is invited to comment on the 5-year extended compliance period for existing buildings with nursing home facilities as of June 25, 2001.

We are also clarifying the second sentence in proposed 38 CFR 17.1(a) to state the following: “To enforce an edition of a publication other than that specified in this section, VA will provide notice of the change in a notice of proposed rulemaking in the Federal Register and the material will be made available to the public.” We will thus provide notice of the adoption of an updated edition of a publication specified in § 17.1 through the public notice-and-comment process.

This final rule amends parts 17 and 59 and incorporates by reference, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, the following publications: NFPA 10, Standard for Portable Fire Extinguishers (2010 edition); NFPA 99, Standard for Health Care Facilities (2005 edition); NFPA 101, Life Safety Code (2009 edition); and NFPA 101A, Guide on Alternative Approaches to Life Safety (2010 edition). In the proposed rule, we noted that facilities had to meet the requirements in certain provisions of specific editions of these NFPA publications. Regarding the NFPA 10 requirements, we proposed to require facilities to meet the standard for portable fire extinguishers. However, we did not propose to separately incorporate by reference NFPA 10 because we believed the applicable requirements in the updated version of that standard were subsumed in NFPA 101. The Office of the Federal Register recently informed us that we need to incorporate by reference NFPA 10 because our regulations refer to it directly and require its use. Accordingly, we are correcting the final rule to separately incorporate by reference NFPA 10. This correction is consistent with our proposal regarding compliance with the portable fire extinguisher standard.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule will have no such effect on State, local, and Tribal governments, or on the private sector.

Paperwork Reduction Act of 1995

This document contains no collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

VA has examined the economic, interagency, budgetary, legal, and policy implications of this final rule and has concluded that it does not constitute a significant regulatory action under the Executive Order.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will 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. In addition to having an effect on individuals (veterans), the final rule will have an insignificant economic impact on a few small entities.

The changes to § 17.63 will likely affect fewer than 100 of the 2,800 community residential care facilities approved for referral of veterans under the regulations. Also, any additional costs for compliance with the final rule will constitute an inconsequential amount of the operational costs of such facilities.

The changes to §§ 17.81 and 17.82 will affect only small entities; however, most, if not all, of these entities are already in compliance with the current NFPA codes and therefore should not be significantly impacted by this rule.

The changes to part 59 will affect State homes. The State homes that will be subject to this rulemaking are State government entities under the control of State governments. All State homes are owned, operated and managed by State governments except for a small number operated by entities under contract with State governments. These contractors are not small entities.

Accordingly, pursuant to 5 U.S.C. 605(b), this rule will be exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, approved this document on December 10, 2010 for publication.

List of Subjects

38 CFR Part 17

• Administrative practice and procedure
• Alcohol abuse
• Alcoholism
• Claims
• Day care
• Dental health
• Drug abuse
• Foreign relations
• Government contracts
• Grant programs—health
• Grant 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

38 CFR Part 59

• Administrative practice and procedure
• Alcohol abuse
• Alcoholism
• Claims
• Day care
• Dental health
• Drug abuse
• Foreign relations
• Government contracts
• Grant programs—health
• Grant 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
• Reporting and recordkeeping requirements
• Travel and transportation expenses
• Veterans

Dated: February 16, 2010.

Robert C. McFetridge,

Director, Regulations Policy and Management, Department of Veterans Affairs.

For the reasons stated above, VA amends 38 CFR parts 17 and 59 as follows:

PART 17—MEDICAL

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

Authority: 38 U.S.C. 501, 1721, and as noted in specific sections.

2. Add § 17.1 to part 17 to read as follows:

§ 17.1

Incorporation by reference.

(a) Certain materials are incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce an edition of a publication other than that specified in this section, VA will provide notice of the change in a notice of proposed rulemaking in the Federal Register and the material will be made available to the public. All approved materials are available for inspection at the Department of Veterans Affairs, Office of Regulation Policy and Management (02REG), 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420, or at the National Archives and Records Administration (NARA). For information on the availability of approved materials at NARA, call [phone], or go to: http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html. Copies may be obtained from the National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02269. (For ordering information, call toll-free 1-800-344-3555.)

(b) The following materials are incorporated by reference into this part.

(1) NFPA 10, Standard for Portable Fire Extinguishers (2010 edition), Incorporation by Reference (IBR) approved for §§ 17.63 and 17.81.

(2) NFPA 101, Life Safety Code (2009 edition), IBR approved for §§ 17.63, 17.81, 17.82.

(3) NFPA 101A, Guide on Alternative Approaches to Life Safety (2010 edition), IBR approved for § 17.63.

(Authority: 5 U.S.C. 552(a), 38 U.S.C. 501, 1721.)

3. Amend § 17.63 as follows:

a. Revise paragraph (a)(2); and

b. Add a new paragraph (a)(4).

The revision and addition read as follows:

§ 17.63

Approval of community residential care facilities.

* * * * *

(a) * * *

(2) Meet the requirements in the applicable provisions of NFPA 101 and NFPA 101A (incorporated by reference, see § 17.1) and the other publications referenced in those provisions. The institution shall provide sufficient staff to assist patients in the event of fire or other emergency. Any equivalencies or variances to VA requirements must be approved by the appropriate Veterans Health Administration Veterans Integrated Service Network (VISN) Director;

* * * * *

(4) Meet the following additional requirements, if the provisions for One and Two-Family Dwellings, as defined in NFPA 101, are applicable to the facility:

(i) Portable fire extinguishers must be installed, inspected, and maintained in accordance with NFPA 10 (incorporated by reference, see § 17.1); and

(ii) The facility must meet the requirements in section 33.7 of NFPA 101.

* * * * *

4. Amend § 17.81(a)(1) as follows:

a. Revise paragraph (a)(1)(i);

b. Remove paragraphs (a)(1)(v) through (a)(1)(viii);

c. Add a new paragraph (a)(1)(v); and

d. Redesignate paragraph (a)(1)(ix) as paragraph (a)(1)(vi).

The revision and addition read as follows:

§ 17.81

Contracts for residential treatment services for veterans with alcohol or drug dependence or abuse disabilities.

(a) * * *

(1) * * *

(i) The building must meet the requirements in the applicable provisions of NFPA 101 (incorporated by reference, see § 17.1) and the other publications referenced in those provisions. Any equivalencies or variances to VA requirements must be approved by the appropriate Veterans Health Administration Veterans Integrated Service Network (VISN) Director.

* * * * *

(v) The facility must meet the following additional requirements, if the provisions for One and Two-Family Dwellings, as defined in NFPA 101, are applicable to the facility:

(A) Portable fire extinguishers shall be installed, inspected, and maintained in accordance with NFPA 10 (incorporated by reference, see § 17.1).

(B) The facility shall meet the requirements in section 33.7 of NFPA 101.

* * * * *

5. Amend § 17.82(a)(1) as follows:

a. Revise paragraphs (a)(1)(i) and (iv);

b. Remove paragraphs (a)(1)(v) and (a)(1)(vi); and

c. Redesignate paragraph (a)(1)(vii) as (a)(1)(v).

The revisions read as follows:

§ 17.82

Contracts for outpatient services for veterans with alcohol or drug dependence or abuse disabilities.

(a) * * *

(1) * * *

(i) The building must meet the requirements in the applicable provisions of the NFPA 101 (incorporated by reference, see § 17.1) and the other publications referenced in those provisions. Any equivalencies or variances to VA requirements must be approved by the appropriate Veterans Health Administration Veterans Integrated Service Network (VISN) Director.

* * * * *

(iv) As a minimum, fire exit drills must be held at least quarterly, and a written plan for evacuation in the event of fire shall be developed and reviewed annually. The plan shall outline the duties, responsibilities and actions to be taken by the staff in the event of a fire emergency. This plan shall be implemented during fire exit drills.

* * * * *

PART 59—GRANTS TO STATES FOR CONSTRUCTION OR ACQUISITION OF STATE HOMES

6. The authority citation for part 59 continues to read as follows:

Authority: 38 U.S.C. 101, 501, 1710, 1742, 8105, 8131-8137.

7. Amend § 59.130(d)(1) as follows:

a. Remove the phrase “(2000 edition)” and add, in its place, “(2009 edition), except that the NFPA requirement in paragraph 19.3.5.1 for all buildings containing nursing homes to have an automatic sprinkler system is not applicable until February 24, 2016 for “existing buildings” with nursing home facilities as of June 25, 2001 (paragraph 3.3.32.5 in the NFPA 101 defines an “[e]xisting [b]uilding” as “[a] building erected or officially authorized prior to the effective date of the adoption of this edition of the Code by the agency or jurisdiction”),”; and

b. Remove the phrase “(1999 edition)” and add, in its place, “(2005 edition)”.

c. Remove “Office of Regulations Management (02D), Room 1154” and add, in its place, “Office of Regulation Policy and Management (02REG), Room 1068”.