Ensuring a Safe Environment for Community Residential Care Residents, 69909-69915 [2015-28749]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 80, Number 218 (Thursday, November 12, 2015)]
[Proposed Rules]
[Pages 69909-69915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28749]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP06


Ensuring a Safe Environment for Community Residential Care 
Residents

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This document proposes to amend the Department of Veterans 
Affairs (VA) regulations governing the approval of a community 
residential care facility (CRC). We would prohibit a CRC from employing 
an individual who has been convicted in a court of law of certain 
listed crimes against a person or property, or has had a finding 
entered into an applicable state registry or with the applicable 
licensing authority concerning abuse, neglect, mistreatment of 
individuals or misappropriation of property. VA also proposes to 
require CRCs to develop and implement written policies and procedures 
that prohibit mistreatment, neglect, and abuse of residents and 
misappropriation of resident property. The proposed rule would also 
require CRCs to report and investigate any allegations of abuse or 
mistreatment. In addition, the proposed rule would require the CRC to 
screen and monitor individuals who are not CRC residents, but have 
direct access to a veteran living in a CRC. The revisions would improve 
the safety and help prevent the neglect or abuse of veteran residents 
in CRCs. In addition, we propose to amend the rule regarding the 
maximum number of beds allowed in a resident's bedroom.

DATES: Comment Date: Comments must be received by VA on or before 
January 11, 2016.

ADDRESSES: Written comments may be submitted through 
www.regulations.gov; by mail or hand-delivery to the Director, 
Regulation Policy and Management (02REG), Department of Veterans 
Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or by 
fax to (202) 273-9026. Comments should indicate that they are submitted 
in response to ``RIN 2900-AP06--Ensuring a Safe Environment for 
Community Residential Care Residents.'' Copies of comments received 
will be available for public inspection in the Office of Regulation 
Policy and Management, Room 1068, between the hours of 8:00 a.m. and 
4:30 p.m., Monday through Friday (except holidays). Please call (202) 
461-4902 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 https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Richard Allman, Chief Consultant, 
Geriatrics and Extended Care Services (10P4G), Veterans Health 
Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., 
Washington, DC 20420, (202) 461-6750. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: VA is authorized under 38 U.S.C. 1730 to 
assist veterans by referring them for placement, and aiding veterans in 
obtaining placement, in CRCs. A CRC is a form of enriched housing that 
provides health care supervision to eligible veterans not in need of 
hospital or nursing home care, but who, because of medical, psychiatric 
and/or psychosocial limitations as determined through a statement of 
needed care, are not able to live independently and have no suitable 
family or significant others to provide the needed supervision and 
supportive care. Examples of CRC's enriched housing may include, but 
are not limited to: Medical Foster Homes, Assisted Living Homes, Group 
Living Homes, Family Care Homes, and psychiatric CRC Homes. CRC care 
consists of room, board, assistance with activities of daily living 
(ADL), and supervision as required on an individual basis. The size of 
a CRC can vary from one bed to several hundred. VA maintains a list of 
approved CRCs. The cost of community residential care is financed by 
the veteran's own resources. A veteran may elect to reside in any CRC 
he or she wants; however, VA will only recommend CRCs that apply for 
approval and meet VA's standards. Once approved, the CRC is placed on 
VA's referral list and VA refers veterans for whom CRC care is an 
option to the VA-approved CRCs when those veterans are determining 
where they would like to live. VA may provide care to a veteran at the 
CRC when it is medically appropriate to provide such home-based care. 
The provision of such home-based care is not contingent upon VA 
approval of a CRC; a veteran's right to such care exists independent of 
the veteran's residence in a CRC. Employees of the CRC are not VA 
employees, and no employment relationship exists between employees of 
the CRC and VA.
    To become approved, a CRC must meet the specified criteria in 38 
CFR 17.63, which sets forth standards relating to the physical 
integrity of the facility, the health care provided at the CRC, the 
standard of living therein, costs charged directly to veteran residents 
of the CRC, and other criteria for approval.
    VA has authority under 38 U.S.C. 1730(b)(2) to establish criteria 
for approval of a CRC that will ensure the health, safety and welfare 
of veterans residing in that facility. Current Sec.  17.63(j) requires 
CRCs to maintain sufficient, qualified staff on duty who are available 
to care for residents and ensure the health and safety of each 
resident. The CRC provider and staff must have adequate education, 
training, or experience to maintain the facility. However, VA believes 
that other issues are also important in determining whether a veteran 
residing in a CRC is receiving an appropriate standard of care. A 
veteran residing in a CRC is unable to live independently and has no 
suitable family or significant others to provide the needed supervision 
and supportive care, and the CRC serves as

[[Page 69910]]

that veteran's primary place of residence. VA believes that the CRC 
should be an environment in which the veteran is physically safe and 
where the veteran is not at risk of damage, theft, or loss of personal 
property. To ensure the safety and welfare of veterans residing in 
CRCs, VA proposes to establish standards that will require CRCs to 
investigate individuals in CRCs who have direct access to veteran 
residents and/or veteran resident property.
    VA considered several approaches to address the issue of the 
background and behavior of individuals in CRCs. For example, on the 
national level, the Patient Protection and Affordable Care Act, Public 
Law 111-148, established a state grant program for conducting federal 
and state criminal background checks on direct patient access employees 
of long-term care facilities and providers that accept Medicare and 
Medicaid patients (42 U.S.C. 1320a-7l). However, not all states 
participate and it is applicable to only long-term care facilities. A 
survey of approved CRCs reflects that only a small percentage of those 
facilities are approved to accept Medicare or Medicaid patients. 
Another Medicare statute, 42 U.S.C. 1320a-7, excludes an individual 
from participating in any federal health care program if that 
individual has been convicted of certain listed crimes. However, a 
person working in a CRC, or an individual with direct resident access, 
would not be considered a participant in a federal health care program.
    Employees, contractors and volunteers working in VA-operated 
facilities, such as community living centers or nursing homes, must 
undergo a background screening as required by Office of Personnel 
Management (OPM) regulations at 5 CFR parts 731 and 736. If the 
employee or contractor has access to federally maintained records or 
databases, the level of scrutiny is greater. CRC staff and others with 
direct resident access are not federal employees, contractors or 
volunteers, and do not have access to VA records or databases. 
Therefore, OPM's federal background screening requirements are 
inapplicable.
    We reviewed state requirements for licensing residential care 
facilities as well as state screening requirements for employment to 
work with the elderly or disabled. The states vary in how these issues 
are addressed. Some require licensing only for facilities that have a 
minimum number of beds (i.e., five or more beds). Many of the VA-
approved CRCs have one to three resident beds. Some state laws and 
regulations do not use the term ``residential care facility'' and it is 
unclear whether a VA-approved CRC would be covered. Several state 
licensing laws or regulations do not address hiring requirements. Some 
do not have any general screening requirements for individuals assigned 
to duties caring for the elderly or disabled. In those states that do 
have screening requirements, the level of screening varies from 
criminal history checks at the county or state level only, to both 
state and federal-level checks.
    While state laws vary on the requirement for background screenings 
on individuals working with the elderly or disabled, all states 
maintain a long-term care ombudsman program charged with investigating 
reports of elder abuse. In addition, all states maintain registries for 
licensed health care professionals such as nurses and nurse aides to 
track reports of patient abuse or neglect. However, many individuals 
employed in a VA approved CRC are not licensed health care 
professionals and states do not maintain any type of registry that 
would capture information pertaining to all the types of CRC employees.
    Due to these variations, we do not believe we can rely on state law 
to ensure that veterans can trust and rely on VA-recommended CRCs to 
provide a certain, uniform minimum level of safety and care. VA 
believes that all veterans residing in a CRC should have the same level 
of assurance that a CRC staff member or other covered individual does 
not have a criminal history, regardless of where that facility is 
located.
    In considering possible national standards, we reviewed existing 
regulations governing other VA programs. State Veterans Homes are 
owned, operated, and managed by state governments and provide nursing 
home, domiciliary, or adult day care to eligible veterans. Regulations 
governing State Veterans Homes are found at 38 CFR parts 51 through 59. 
We believe that the State Veterans Home program is meaningfully similar 
to the community residential care program because it serves a similar 
veteran population and provides similar services; however, there are 
two important differences. A State Veterans Homes is owned, operated 
and managed by the state government while a CRC is a privately owned 
entity. States exercise a layer of control over State Veterans Homes 
that is not present in CRCs. In addition, persons living in some CRCs 
who are not obtaining services from that facility regularly interact 
with CRC residents and sometimes provide services to residents. State 
Veterans Homes provide resident services through employees of the state 
home, many of which are professionals licensed by the state. 
Nonetheless, VA believes it is appropriate to look to how resident 
safety and welfare is addressed in the State Veterans Homes program as 
a guide on how to proceed in the CRC program.
    We propose to amend Sec.  17.63 by adding a new paragraph (j)(3) 
which would require the CRC to develop and implement written policies 
and procedures that prohibit mistreatment, neglect, and abuse of 
residents and misappropriation of resident property. This would ensure 
that each facility has a policy in place to address these issues. In 
addition, it would serve to inform both employees and CRC residents of 
the prohibited practices and inform CRC residents about procedures for 
reporting alleged mistreatment, neglect, and abuse of residents and 
misappropriation of resident property.
    Proposed paragraph (j)(3)(i)(A)(1) would prohibit the CRC from 
employing an individual who has been convicted by a court of law of 
abusing, neglecting, or mistreating individuals. VA published a similar 
rule at Sec.  51.90(c) for State Veterans Homes. That rule has been in 
place since February 7, 2000, and we believe it has been effective in 
ensuring the safety of veterans residing in those facilities. We 
believe a similar standard should be applied to employment in CRCs. The 
terms ``abuse'' and ``neglect'' are defined in Sec.  51.90(b), and 
would have the same meaning here.
    Proposed paragraph (j)(3)(i)(A)(2) would prohibit the CRC from 
employing individuals who 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 
property. Examples of applicable state registries include, but are not 
limited to, state sex offender registries and registries of criminal 
offenders which are maintained by some states. Typical licensing 
authorities include, but are not limited to, state boards or agencies 
that license or certify Registered Nurses (RN), Licensed Practical 
Nurses (LPN), Certified Nursing Assistants (CNA), nursing aides or 
medication aides. State laws and regulations typically require 
employers to report abuse, neglect, mistreatment of individuals or 
misappropriation of property alleged to have been committed by certain 
licensed health care professionals. These reports are made part of the 
relevant State registry, and the registry may contain

[[Page 69911]]

information on incidents that were not forwarded to law enforcement for 
prosecution. VA believes that such information would be relevant to the 
issue of whether a particular individual should have direct access to a 
veteran residing in a CRC.
    The CRC would be required by proposed paragraph (j)(3)(i)(B) to 
immediately, meaning no more than 24 hours after the provider becomes 
aware of the alleged violation, report all alleged violations involving 
mistreatment, neglect, or abuse, including injuries of unknown source, 
and misappropriation of resident property to the approving official. In 
proposed paragraph (j)(3)(i)(B)(1)-(6), we would set out the minimum 
information that must be contained in a report of an alleged violation. 
The intent of the proposed rule is to place the approving official on 
notice of any alleged violation so that appropriate follow-up measures 
can be initiated. Follow-up measures may include contacting veteran 
residents, ensuring any affected veteran resident receives a medical 
evaluation from a VA health care provider, or conduct necessary interim 
monitoring as provided for in Sec.  17.65(a). Proposed paragraph 
(j)(3)(i)(C) would require the CRC to have evidence that all alleged 
violations are documented and thoroughly investigated. The facility 
would be required to prevent further potential abuse while the 
investigation is in progress. The proposed rule would require that the 
results of all investigations be reported to the approving official 
within 5 working days of the incident, and to other officials in 
accordance with State law, and that appropriate corrective action be 
taken if the alleged violation is verified. The proposed requirements 
in paragraphs (j)(3)(i)(B) and (C) are consistent with those already in 
effect for State Veterans Homes under Sec.  51.90(c).
    VA currently receives reports of alleged mistreatment, neglect, or 
abuse, including injuries of unknown source, and misappropriation of 
resident property on an ad hoc basis. The proposed rule would formalize 
a reporting requirement and would ensure that VA is notified of any 
such allegation so that appropriate steps can be taken to ensure the 
safety and health of veterans residing in the CRC. The requirement that 
the investigation be completed within 5 working days and reported to 
both VA and other officials in accordance with State law would ensure 
that the investigation is completed in a timely manner, and that 
corrective action is taken to prevent further violations.
    We propose in paragraph (j)(3)(i)(D) that employees accused of 
alleged violations involving mistreatment, neglect, or abuse or 
misappropriation of resident property, must be removed from all duties 
requiring direct veteran resident contact during the pendency of the 
facility's investigation. VA believes that removing such employee from 
duties involving direct resident contact until the facility completes 
its investigation is a prudent step to ensure veteran resident safety 
and to provide assurance to veteran residents that the accused employee 
would not be allowed direct access to them until the alleged incident 
is investigated and any necessary corrective steps are taken, if 
needed.
    Proposed paragraph (j)(4) would define the three classes of 
individuals considered to be employees of the CRC for purposes of this 
proposed rule. Proposed paragraph (j)(4)(i) would establish that non-VA 
health care providers at CRCs would be considered employees. Non-VA 
health care providers may have frequent contact with veteran residents, 
and are not subject to direct VA control or management. In addition, 
proposed paragraph (j)(4)(ii) would establish that the term 
``employee'' would include CRC staff who are not health care providers. 
CRCs employ a variety of personnel that may include, for example, 
contractors or janitorial staff. These individuals have access to 
veteran residents, and some may be in a unique position to take 
advantage of veterans.
    Proposed paragraph (j)(4)(iii) would include persons with direct 
resident access in the definition of ``employee.'' The term ``person 
with direct resident access'' would mean an individual living in the 
facility who is not receiving services from the facility, who may have 
access to the resident or the resident's property, or may have one-on-
one contact with the resident. This could include relatives of live-in 
staff members. These individuals with direct resident access are most 
commonly found in medical foster homes, which are typically small CRCs 
located in a family home, with no more than three consumer residents 
that are run by certain members of a family, while other family members 
are not employed by the CRC but continue to live in the home. They do 
not provide care or services to veteran residents, but may have regular 
contact with, or access to, veteran residents and their property. We do 
not include fellow residents who are receiving services from the CRC in 
the definition of ``person with direct resident access'' because we 
believe that it is inappropriate to consider the background of 
patients.
    In proposed paragraph (j)(5), we would define the term 
``convicted'' for purposes of this proposed rule. An employee would be 
considered ``convicted'' of a criminal offense when a judgment of 
conviction has been entered against the individual by a Federal, State, 
or local court, regardless of whether there is an appeal pending or 
whether the judgment of conviction or other record relating to criminal 
conduct has been expunged. It would also include a finding of guilt 
against the individual by a Federal, State, or local court. The term 
``convicted'' would also include a plea of guilty or nolo contendere by 
the individual has been accepted by a Federal, State, or local court. 
Finally, the term would also encompass participation in a first 
offender, deferred adjudication, or other arrangement or program where 
judgment of conviction has been withheld. The proposed definition 
covers the spectrum of outcomes possible when a court of competent 
jurisdiction finds that a defendant has committed a criminal act. It 
recognizes that the act that resulted in the conviction, as well as the 
conviction itself, is relevant to the issue of safety and health of 
veterans residing in CRCs.
    Proposed paragraph (j)(6) would provide that, for purposes of 
proposed paragraph (j)(3), the terms ``abuse'' and ``neglect'' would 
have the same meaning set forth in 38 CFR 51.90(b). That paragraph 
describes residents' right to be free from mental, physical, sexual, 
and verbal abuse or neglect, corporal punishment, and involuntary 
seclusion. Mental abuse, physical abuse, and sexual abuse are also 
further defined.
    The proposed rule would be enforced through the normal VA 
inspection and approval process established in Sec.  17.65. This 
section states that VA may approve a CRC meeting all of the standards 
in Sec.  17.63 based on the report of a VA inspection and any findings 
of necessary interim monitoring of the facility. CRCs are inspected by 
VA at least every 12 months, and an approval is valid for a 12-month 
period. A CRC may gain provisional approval if that facility does not 
meet one or more of the standards in Sec.  17.63, provided the 
deficiencies do not jeopardize the health or safety of residents, and 
the facility and VA agree to a plan for correcting the deficiencies in 
a specified amount of time.
    If the approving official determines that a CRC does not comply 
with all of the standards in Sec.  17.63, the facility is

[[Page 69912]]

provided notice of the discrepancy and an opportunity for a hearing. 
Approval of a CRC may be revoked following a hearing as provided for in 
Sec.  17.71. When revocation occurs, VA ceases referring veterans to 
the CRC and notifies any veteran residing in that facility of the 
revocation. Although this proposed rule would not change the process of 
inspection, approval, or revocation of approval of CRCs established in 
current 38 CFR 17.61 through 17.72, we have provided the above 
discussion to show as a practical matter how CRCs would be affected by 
this proposed rule. The public is invited to comment on whether the 
proposed new standards in paragraphs (e) and (j) should be enforced in 
the same manner as every other standard in Sec.  17.63.
    The proposed changes to paragraph (j) require a CRC to maintain 
certain records, develop and implement written policies and procedures 
prohibiting mistreatment, neglect, abuse of residents, and 
misappropriation of resident property. The approving VA official may 
request these records and policies to ensure compliance with VA 
standards. Current paragraph (i) addresses records that must be 
maintained by the CRC. We propose to amend paragraph (i) to include the 
new recordkeeping requirement. We would also reorganize this paragraph 
to consolidate all resident-related record requirements into a single 
subparagraph.
    Proposed paragraph (i)(1) would state that the CRC must maintain 
records on each resident in a secure place. Resident records must 
include a copy of all signed agreements with the resident. Resident 
records may be disclosed only with the permission of the resident, or 
when required by law. This mirrors current paragraph (i)(1), 
(i)(2)(ii), and (i)(3).
    In paragraph (i)(2), we would state that the CRC must maintain and 
make available, upon request of the approving official, records 
establishing compliance with paragraphs (j)(1) through (3) of this 
section; written policies and procedures required under paragraph 
(j)(3) of this section; and, emergency notification procedures. A CRC 
is required to hire qualified and properly trained staff, per current 
paragraphs (j)(1) and (2). VA verifies compliance with this standard 
during routine facility inspections. The proposed rule would prohibit a 
CRC from employing certain individuals and would require a CRC to 
develop and implement certain policies and to investigate and document 
certain allegations of abuse or neglect. The proposed change to 
paragraph (i) would address the need to maintain records reflecting 
compliance with these standards, and would ensure that the approving 
official may access these records upon request. Current paragraph 
(i)(2)(i) already requires a CRC to maintain records regarding 
emergency notification procedures. This proposal would consolidate this 
with other recordkeeping requirements that are not resident-specific.
    In addition, we propose to amend Sec.  17.63(e)(1), regarding the 
maximum number of beds allowed in a resident's bedroom. Current 
standards provide that resident bedrooms must contain no more than four 
beds, and multiresident rooms must provide each resident at least 80 
square feet of living space. We propose to limit the number of resident 
beds in newly established bedrooms in approved facilities and 
facilities seeking approval. Limiting the number of beds to up to two 
per bedroom would ensure that veterans receive an appropriate amount of 
privacy and would appropriately minimize the impact of visits from 
guests, care providers, etc., on the veteran's quality of life. Under 
the proposed rule, facilities approved before the effective date of the 
rule that already have bedrooms with more than two beds would be able 
to retain that configuration, but could not establish any new bedrooms 
with more than two beds in a room. Bedrooms in facilities approved 
after the effective date of the final rule, or newly established 
bedrooms in facilities approved before the effective date of the final 
rule, would not be permitted to provide more than two beds. We would 
allow currently approved configurations because we do not want to 
negatively impact veteran residents placed in those CRCs who are 
satisfied with their arrangement.

Effect of Rulemaking

    The Code of Federal Regulations, as proposed to be revised by this 
proposed rulemaking, would represent the exclusive legal authority on 
this subject. No contrary rules or procedures would be authorized. All 
VA guidance would be read to conform with this proposed rulemaking if 
possible or, if not possible, such guidance would be superseded by this 
rulemaking.

Paperwork Reduction Act

    This proposed rule includes provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521) that require approval by the Office of Management and Budget 
(OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of 
this rulemaking to OMB for review. OMB assigns a control number for 
each collection of information it approves. VA may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. 
Proposed Sec.  17.63(i) and (j) would require a collection of 
information under the Paperwork Reduction Act of 1995. If OMB does not 
approve the collection of information as requested, VA will immediately 
remove the provisions containing a collection of information or take 
such other action as is directed by OMB.
    Comments on the collection of information contained in this 
proposed rule should be submitted to the Office of Management and 
Budget, Attention: Desk Officer for the Department of Veterans Affairs, 
Office of Information and Regulatory Affairs, Washington, DC 20503, 
with copies sent by mail or hand-delivery to: Director, Office of 
Regulation Policy and Management (02REG), Department of Veterans 
Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or 
fax to (202) 273-9026; or submitted through https://www.regulations.gov. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AP06--Ensuring a Safe Environment for Community Residential Care 
Residents.''
    OMB is required to make a decision concerning the collection of 
information contained in this proposed rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the proposed rule.
    VA considers comments by the public on proposed collections of 
information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of VA functions, including 
whether the information will have practical utility;
     Evaluating the accuracy of VA's estimate of the burden of 
the proposed collections of information, including the validity of the 
methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology,

[[Page 69913]]

e.g., permitting electronic submission of responses.
    The collection of information contained in 38 CFR 17.63(i) and (j) 
is described immediately following this paragraph.
    Title: Ensuring a Safe Environment for Community Residential Care 
Residents.
    Summary of collection of information: Current Sec.  17.63(i) 
addresses recordkeeping requirements for a CRC. Information collection 
under this paragraph was approved by OMB under OMB control number 2900-
0491; however that approval has expired. We propose amending paragraph 
(i) to address not only the recordkeeping requirements currently in 
that paragraph, but also recordkeeping requirements under paragraphs 
(j)(1) through (3).
    Paragraph (i)(1) would require the CRC to maintain records on each 
resident, to include a copy of all signed agreements with the resident. 
We estimate the annual burden related to this information collection to 
be one hour per year.
    Paragraph (i)(2) would state that the CRC must maintain and make 
available upon request of the approving official, records establishing 
compliance with paragraphs (j)(1) and (2). These paragraphs relate to 
CRC staff requirements, and provide that the CRC must have sufficient, 
qualified staff must be on duty and available to care for the resident 
and ensure the health and safety of each resident. The CRC provider and 
staff must have adequate education, training, or experience to maintain 
the facility. We estimate that the annual burden related to information 
collection required to establish that the CRC has sufficient, qualified 
staff, and that the CRC provider and staff have adequate training and 
education, would be two hours.
    Paragraph (i)(2) would also require the CRC to maintain records 
related to proposed paragraph (j)(3). Proposed Sec.  17.63(j)(3) would 
require CRCs to immediately, meaning no more than 24 hours after the 
provider becomes aware of the alleged violation, report all alleged 
violations involving mistreatment, neglect, or abuse, including 
injuries of unknown source, and misappropriation of resident property 
to the approving official. We would require that the report, at a 
minimum, must include the facility name, address, telephone number, and 
owner; the date and time of the alleged violation; a summary of the 
alleged violation; the name of any public or private officials or VHA 
program offices that have been notified of the alleged violations, if 
any; whether additional investigation is necessary to provide VHA with 
more information about the alleged violation; and contact information 
for a person who can provide additional details at the community 
residential care provider, including a name, position, location, and 
phone number.
    We would require the CRCs to document and thoroughly investigate 
evidence of an alleged violation. The results of all investigations 
must be reported to the approving official within 5 working days of the 
incident and to other officials in accordance with State law. It would 
also require facilities to develop and implement written policies and 
procedures to prohibit the mistreatment, neglect, and abuse of 
residents and misappropriation of resident property. The approving VA 
official may request the facility to produce such written policies and 
procedures.
    The most current data available to VA (Q4 FY2012) reflects that we 
have 1,293 approved CRCs, 493 of which are Medical Foster Homes at the 
1 to 3 bed size. The total number of staff working in these facilities 
is 5,614. This aggregate number of CRC staff is distributed in CRCs as 
follows: 2.5 staff for a 1 to 3 bed facility, 4 staff for a 4 to 15 bed 
facility, 5 staff for a 15 to 26 bed facility and 11 staff for a 26 to 
100+ bed facility.
    CRCs would be required to report information under this proposed 
rule when the facility: (1) Has an alleged violation involving 
mistreatment, neglect, or abuse, including injuries of unknown source, 
and misappropriation of resident property; or, (2) is reporting the 
results of an investigation into that alleged violation. The CRCs would 
also be required to document and investigate evidence of any alleged 
violation. We view the reporting, documenting, and investigating of an 
alleged incident and the subsequent report of the results of the 
investigation to be one collection of information, as it focuses on one 
set of alleged facts and the facility's investigation of those facts.
    VA does not currently require CRCs to report to the approving 
official allegations of resident abuse or neglect. VA surveyed CRC 
coordinators at the VA medical facilities that approve CRC sponsors. 
Based on information from CRC coordinators, we believe that VA 
currently receives fewer than one report of alleged mistreatment, 
neglect, or abuse, including injuries of unknown source, or 
misappropriation of resident property from CRCs in any given year. This 
proposed rule would formalize the reporting and investigation 
requirement and we believe this would more likely than not result in an 
increase in the number of reports of alleged abuse mistreatment, 
neglect, or abuse, including injuries of unknown source, or 
misappropriation of resident property per year. However, for purposes 
of this estimate, we will assume that a CRC will have one incident per 
year related to an alleged violation involving mistreatment, neglect, 
or abuse, including injuries of unknown source, and misappropriation of 
resident property; or, reporting the results of an investigation into 
that alleged violation. The estimated average burden for an alleged 
violation response is three hours.
    All approved CRCs would be required to develop and implement 
written policies and procedures to prohibit the mistreatment, neglect, 
and abuse of residents and misappropriation of resident property. On 
inspection of a CRC, VA would require the facility to produce such 
written policies and procedures. The written policies would have to be 
developed once, although it is possible that a promulgated policy could 
require revision in the future. VA intends to develop sample policies 
and boilerplate that could be adapted by a CRC to meet the facility's 
individual requirements. This would decrease the burden of this 
proposed information collection. VA estimates that the information 
collection burden on a CRC utilizing a sample policy or boilerplate 
developed by VA would be two hours.
    Finally, paragraph (i)(2) would require the CRC to maintain a 
record of emergency notification procedures. This is consistent with 
current Sec.  17.63(i)(2)(i). Once emergency notification procedures 
are in place, there may be instances in which the CRC may periodically 
review and modify the existing procedures. We estimate the annual 
burden of this information collection to be 0.5 hours.
    Description of need for information and proposed use of 
information: VA needs this information to ensure the health and safety 
of veterans placed in these facilities. In CRCs, where VA involvement 
is less intensive and to which VA does not provide any payments or 
services, we believe that information obtained under the proposed rule 
would provide necessary protection for veteran residents.
    Description of Likely Respondents: Operators of CRCs currently 
listed or that request future listing on VA's approved CRCs referral 
list.
    Estimated Number of Respondents per Year: 1,293 operators of CRCs.
    Estimated Frequency of Responses: Once in a 12-month period.

[[Page 69914]]

    Estimated Average Burden per Response: 8.5 hours.
    Estimated Total Annual Reporting and Recordkeeping Burden: 10,990.5 
hours.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed 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). This proposed rule would be small business neutral as 
it applies only to those CRCs seeking inclusion on VA's list of 
approved CRCs. The costs associated with this proposed rule are 
minimal, consisting of the administrative requirement to develop and 
implement written policies and procedures that prohibit mistreatment, 
neglect, and abuse of residents and misappropriation of resident 
property; ensure that no employees are employed in contravention to the 
proposed rule; report to VA any alleged violation involving 
mistreatment, neglect, or abuse, including injuries of unknown source, 
and misappropriation of resident property; and investigate alleged 
resident abuse, take steps to prevent further harm, and implement 
appropriate corrective measures.
    A CRC may elect to order background checks on employees from 
commercial sources or local law enforcement agencies. The cost of an 
individual background check varies dependent on the vendor, but VA 
believes the average cost is $50. VA believes that 75 percent of CRCs 
are required to, or could obtain, criminal background checks on 
employees through one or more existing federal or state programs. This 
includes: (1) The state grant program administered by the Centers for 
Medicare and Medicaid Services (CMS) for conducting federal and state 
criminal background checks on direct patient access employees of long-
term care facilities and providers (42 U.S.C. 1320a-7l); (2) the CMS 
requirement applicable to facilities receiving Medicare and Medicaid 
funds; and (3) various state laws or regulations mandating criminal 
background screening for employment to work with the elderly or 
disabled. In addition, many CRCs that are currently servicing veterans 
already, voluntarily, have policies and procedures in place to review 
the backgrounds of their employees and make employment decisions 
consistent with this rulemaking as one way to ensure resident safety.
    The remaining 25 percent of CRCs (324) would more likely than not 
opt to obtain criminal background checks on CRC staff in order to be 
approved by VA. The median number of staff in CRCs currently approved 
by VA is five. We estimate the cost that would be incurred for 
obtaining criminal background checks on CRC staff is $250 per CRC.
    On this basis, the Secretary certifies that the adoption of this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities as they are defined in the 
Regulatory Flexibility Act. Therefore, under 5 U.S.C. 605(b), this 
rulemaking is exempt from the initial and final regulatory flexibility 
analysis requirements of sections 603 and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action'' requiring review by 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 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined, and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866. VA's impact analysis can be found as a supporting document 
at https://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's Web site at 
https://www.va.gov/orpm/, by following the link for VA Regulations 
Published From FY 2004 to FYTD.

Unfunded Mandates Reform Act

    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 expenditures 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 one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers and 
titles affected by this document are 64.009, Veterans Medical Care 
Benefits; 64.010, Veterans Nursing Home Care; and 64.018, Sharing 
Specialized Medical Resources.

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. Robert L. 
Nabors II, Chief of Staff, Department of Veterans Affairs, approved 
this document on November 5, 2015, for publication

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Government contracts, 
Grant programs-health, Government programs-veterans, Health care, 
Health facilities, Health professions, Health records, Homeless, Mental 
health programs, Nursing homes, Reporting and recordkeeping 
requirements, Veterans.

    Dated: November 6, 2015.
Jeffrey M. Martin,
Office Program Manager, Regulation Policy and Management, Office of the 
General Counsel, Department of Veterans Affairs.
    For the reasons stated in the preamble, Department of Veterans 
Affairs proposes to amend 38 CFR part 17 as follows:

[[Page 69915]]

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. Amend Sec.  17.63 by revising paragraph (e)(1) and paragraph (i) and 
adding paragraphs (j)(3) through (6) to read as follows:


Sec.  17.63  Approval of community residential care facilities.

* * * * *
    (e) * * *
    (1) Contain no more than four beds:
    (i) Facilities approved before [DATE 30 DAYS AFTER DATE OF 
PUBLICATION OF FINAL RULE] may not establish any new resident bedrooms 
with more than two beds per room;
    (ii) Facilities approved on or after [DATE 30 DAYS AFTER DATE OF 
PUBLICATION OF FINAL RULE] may not provide resident bedrooms containing 
more than two beds per room.
* * * * *
    (i) Records. (1) The facility must maintain records on each 
resident in a secure place. Resident records must include a copy of all 
signed agreements with the resident. Resident records may be disclosed 
only with the permission of the resident, or when required by law.
    (2) The facility must maintain and make available, upon request of 
the approving VA official, records establishing compliance with 
paragraphs (j)(1) through (3) of this section; written policies and 
procedures required under paragraph (j)(3) of this section; and, 
emergency notification procedures. (Approved by the Office of 
Management and Budget under control number 2900-XXXX.)
    (j) * * *
    (3) The community residential care provider must develop and 
implement written policies and procedures that prohibit mistreatment, 
neglect, and abuse of residents and misappropriation of resident 
property.
    (i) The community residential care provider must do all of the 
following:
    (A) Not employ individuals who--
    (1) Have been convicted by a court of law of abuse, neglect, or 
mistreatment of individuals; or
    (2) 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 property.
    (B) Ensure that all alleged violations involving mistreatment, 
neglect, or abuse, including injuries of unknown source, and 
misappropriation of resident property are reported to the approving 
official immediately, which means no more than 24 hours after the 
provider becomes aware of the alleged violation. The report, at a 
minimum, must include--
    (1) The facility name, address, telephone number, and owner;
    (2) The date and time of the alleged violation;
    (3) A summary of the alleged violation;
    (4) The name of any public or private officials or VHA program 
offices that have been notified of the alleged violations, if any;
    (5) Whether additional investigation is necessary to provide VHA 
with more information about the alleged violation; and
    (6) Contact information for a person who can provide additional 
details at the community residential care provider, including a name, 
position, location, and phone number.
    (C) Have evidence that all alleged violations of this paragraph (j) 
are documented and thoroughly investigated, and must prevent further 
abuse while the investigation is in progress. The results of all 
investigations must be reported to the approving official within 5 
working days of the incident and to other officials in accordance with 
State law, and appropriate corrective action must be taken if the 
alleged violation is verified.
    (D) Remove all duties requiring direct resident contact with 
veteran residents from any employee alleged to have violated this 
paragraph (j) during the investigation of such employee.
    (4) For purposes of paragraph (j)(3) of this section, the term 
``employee'' includes a:
    (i) Non-VA health care provider at the community residential care 
facility;
    (ii) Staff member of the community residential care facility who is 
not a health care provider, including a contractor; and
    (iii) Person with direct resident access. The term ``person with 
direct resident access'' means an individual living in the facility who 
is not receiving services from the facility, who may have access to a 
resident or a resident's property, or may have one-on-one contact with 
a resident.
    (5) For purposes of paragraph (j)(3) of this section, an employee 
is considered ``convicted'' of a criminal offense--
    (i) When a judgment of conviction has been entered against the 
individual by a Federal, State, or local court, regardless of whether 
there is an appeal pending or whether the judgment of conviction or 
other record relating to criminal conduct has been expunged;
    (ii) When there has been a finding of guilt against the individual 
by a Federal, State, or local court;
    (iii) When a plea of guilty or nolo contendere by the individual 
has been accepted by a Federal, State, or local court; or
    (iv) When the individual has entered into participation in a first 
offender, deferred adjudication, or other arrangement or program where 
judgment of conviction has been withheld.
    (6) For purposes of paragraph (j)(3) of this section, the terms 
``abuse'' and ``neglect'' have the same meaning set forth in 38 CFR 
51.90(b).
* * * * *
(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-
XXXX.)

[FR Doc. 2015-28749 Filed 11-10-15; 8:45 am]
BILLING CODE 8320-01-P