Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules 39835

listed above. Commenters wishing the

FAA to acknowledge receipt of their

comments on this notice must submit

with those comments a self-addressed,

stamped postcard on which the

following statement is made:

‘‘Comments to Airspace Docket No. 00–

AAL–02.’’ The postcard will be date/

time stamped and returned to the

commenter. All communications

received on or before the specified

closing date for comments will be

considered before taking action on the

proposed rule. The proposal contained

in this notice may be changed in light

of comments received. All comments

submitted will be available for

examination in the Rules Docket both

before and after the closing date for

comments. A report summarizing each

substantive public contact with FAA

personnel concerned with this

rulemaking will be filed in the docket.

Availability of NPRM’s

An electronic copy of this document

may be downloaded, using a modem

and suitable communications software,

from the FAA regulations section of the

Fedworld electronic bulletin board

service (telephone: 703–321–3339) or

the Federal Register’s electronic bulletin

board service (telephone: 202–512–

1661).

Internet users may reach the FAA’s

web page at http://www.faa.gov or the

Superintendent of Document’s web page

at http://www.access.gpo.gov/nara for

access to recently published rulemaking

documents.

Any person may obtain a copy of this

NPRM by submitting a request to the

Federal Aviation Administration, Office

of Air Traffic Airspace Management,

ATA–400, 800 Independence Avenue,

SW., Washington, DC 20591, or by

calling (202) 267–8783.

Communications must identify the

notice number of this NPRM. Persons

interested in being placed on a mailing

list for future NPRM’s should call the

FAA’s Office of Rulemaking, (202) 267–

9677, for a copy of Advisory Circular

No. 11–2A, Notice of Proposed

Rulemaking Distribution System, which

describes the application procedure.

The Proposal

The FAA is proposing an amendment

to 14 CFR part 71 (part 71) to establish

a VOR Federal airway (V–457) in

Alaska. Presently, there is an uncharted

nonregulatory route that uses the same

routings as this proposed airway. The

current route is used daily by air carrier

and general aviation aircraft. The FAA

is proposing to establish this Federal

airway for the following reasons: (1) the

conversion of this uncharted

nonregulatory route to a VOR Federal

airway would add to the IFR airway and

route infrastructure in Alaska; (2) pilots

would be provided with minimum en

route altitudes and minimum

obstruction clearance altitudes

information; (3) this amendment would

establish controlled airspace, thus

eliminating some of the commercial IFR

operations in uncontrolled airspace; and

(4) the addition of this route would

improve the management of air traffic

operations and thereby enhance safety.

The FAA has determined that this

proposed regulation only involves an

established body of technical

regulations for which frequent and

routine amendments are necessary to

keep them operationally current.

Therefore, this proposed regulation: (1)

is not a ‘‘significant regulatory action’’

under Executive Order 12866; (2) is not

a ‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 11034; February 26, 1979); and (3)

does not warrant preparation of a

regulatory evaluation as the anticipated

impact is so minimal. Since this is a

routine matter that will only affect air

traffic procedures and air navigation, it

is certified that this proposed rule,

when promulgated, will not have a

significant economic impact on a

substantial number of small entities

under the criteria of the Regulatory

Flexibility Act.

Alaskan VOR Federal airways are

published in paragraph 6010(b) of FAA

Order 7400.9G dated September 1, 1999,

and effective September 16, 1999, which

is incorporated by reference in 14 CFR

71.1. The Alaskan VOR Federal airway

listed in this document would be

published subsequently in the order.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,

Navigation (air).

The Proposed Amendment

In consideration of the foregoing, the

Federal Aviation Administration

proposes to amend 14 CFR part 71 as

follows:

PART 71—DESIGNATION OF CLASS A,

CLASS B, CLASS C, CLASS D, AND

CLASS E AIRSPACE AREAS;

AIRWAYS; ROUTES; AND REPORTING

POINTS

1. The authority citation for part 71

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–

1963 Comp., p.389.

§ 71.1 [Amended]

2. The incorporation by reference in

14 CFR 71.1 of FAA Order 7400.9G,

Airspace Designations and Reporting

Points, dated September 1, 1999, and

effective September 16, 1999, is

amended as follows:

Paragraph 6010(b)—Alaskan VOR Federal

Airways

* * * * *

V–457 [New]

From Iliamna, AK, NDB; to Kenai, AK.

* * * * *

Issued in Washington, DC, on June 19,

2000.

Reginald C. Matthews,

Manager, Airspace and Rules Division.

[FR Doc. 00–16329 Filed 6–27–00; 8:45 am]

BILLING CODE 4910–13–P

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 52

RIN 2900–AJ74

Per Diem for Adult Day Health Care of

Veterans in State Homes

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

SUMMARY: This document proposes to

establish regulations setting forth a

mechanism for paying per diem to State

homes providing adult day health care

to eligible veterans. The intended effect

of the proposed regulations is to ensure

that veterans receive high quality care in

State homes.

DATES: Comments must be received by

VA on or before August 28, 2000.

ADDRESSES: Mail or hand-deliver

written comments to: Director, Office of

Regulations Management (02D),

Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154,

Washington, DC 20420; or fax comments

to (202) 273–9289; or e-mail comments

to ‘‘OGCRegulations@mail.va.gov’’.

Comments should indicate that they are

submitted in response to ‘‘RIN 2900–

AJ74’’ All comments received will be

available for public inspection in the

Office of Regulations Management,

Room 1158, between the hours of 8:00

a.m. and 4:30 p.m., Monday through

Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: L.

Nan Stout, Chief, State Home Per Diem

Program (114), Veterans Health

Administration, 202–273–8538.

SUPPLEMENTARY INFORMATION: This

document proposes to establish a new

part 52 setting forth a mechanism for

paying per diem to State homes

providing adult day health care to

eligible veterans. The adult day health

39836 Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules

care program has the following basic

purposes: (a) to enable functionally

impaired veterans to reside in

supportive home environments; (b) to

facilitate expeditious medical center

discharge and to reduce risk of

readmission or institutional placement,

through improved provision and

coordination of health care services and

education of patients and caregivers

about service options and their

appropriate use; (c) to maximize

veterans’ physical and psychosocial

functional level; (d) to improve the

quality of life for the participants by

providing a rehabilitation program in

the community among their peers; and

(e) to provide support and respite for the

family and other caregivers to enable

them to maintain veterans in the

community.

Under the proposal, VA would pay

per diem to a State for providing adult

day health 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 proposed subpart D.

The standards in proposed subpart D

are patterned after the standards of the

U.S. Department of Veterans Affairs

Adult Day Health Care Program and the

National Council on the Aging, National

Adult Day Services Association. The

standards are intended to set forth

minimum requirements necessary to

ensure that VA pays per diem for

eligible veterans only if the State homes

provide high quality care.

The proposed regulations include

application and inspection provisions

that are designed to ensure that per

diem is paid only to facilities that have

been inspected and found to meet the

proposed standards. Also, in order to

ensure continued compliance with the

standards, the proposed regulations

include an ongoing review and

certification program. Further, the

proposed regulations contain provisions

for withdrawing recognition and

stopping payment of per diem if a

facility fails to meet the proposed

standards.

The proposed rule sets forth the

statutory list of veterans for whom per

diem may be paid. The per diem

amount would be the amount

authorized under 38 U.S.C. 1741 and

Congressionally approved in the yearly

budget. For fiscal year 2000 the amount

is $30.25.

The proposed rule imposes

requirements concerning accreditation

and training by certain national entities

(see definition of ‘‘Physician Assistant’’

at proposed § 52.2, qualifications of a

social worker at proposed § 52.100(g),

qualifications of a dietitian at proposed

§ 52.140(a)(2), and requirements for

program assistants at proposed

§ 52.210(j)). VA will consider changing

the requirements to allow accreditation

or training by other national entities

when warranted.

The proposed rule includes

provisions regarding medical errors (see

proposed § 52.120(a), (k), and (l)). This

is consistent with the President’s

initiative on medical errors announced

on December 7, 1999, and the

recommendation of the Quality

Interagency Coordination Task Force.

The proposed rule would incorporate

by reference the 1997 edition of the

National Fire Protection Association

Life Safety Code entitled ‘‘NFPA 101,

Life Safety Code.’’ The regulations are

designed to ensure that State homes

meet the fire and safety provisions of

the Life Safety Code.

Regulatory Flexibility Act

The Secretary hereby 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, 5 U.S.C. 601–612. All of

the entities that would be subject to this

proposed rule are State government

entities under the control of State

governments. Of the 95 State homes, all

are operated by State governments

except for 17 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 proposed rule is

exempt from the initial and final

regulatory flexibility analysis

requirement of sections 603 and 604.

Paperwork Reduction Act of 1995

Under the Paperwork Reduction Act

of 1995 (44 U.S.C. 3501–3520),

proposed collections of information are

set forth in the provisions of §§ 52.20,

52.30, 52.40, 52.70, 52.71, 52.80, 52.90,

52.100, 52.110, 52.120, 52.130, 52.150,

52.160, 52.180, 52.190 and 52.210 of

this proposed rule. Many of these

collections of information require the

submission to VA of information on

forms published at 38 CFR Part 58.

The information collections in this

document concern various activities

related to the operation of a State home

providing adult day health care to

eligible veterans. As required under

section 3507(d) of the Act, VA has

submitted a copy of this proposed

rulemaking action to the Office of

Management and Budget (OMB) for its

review of the collections of information.

The forms in 38 CFR Part 58, which

are republished at the end of this

proposed rule, are intended to be used

for a number of VA programs.

Collections of information using these

forms already have been approved by

OMB for the regulations in 38 CFR Part

51 captioned ‘‘Per Diem for Nursing

Home Care of Veterans in State Homes’’

under OMB approval number 2900–

0160. This proposed rule also would

require collections of information using

these same forms. Accordingly, we are

requesting that OMB approve the

collections of information in this

proposed rule as an amendment of the

collections of information already

approved under OMB control number

2900–0160.

OMB assigns control numbers to

collections 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.

Comments on the collection of

information 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 to

the Director, Office of Regulations

Management (02D), Department of

Veterans Affairs, 810 Vermont Avenue,

NW, Washington, DC 20420. Comments

should indicate that they are submitted

in response to ‘‘RIN 2900–AJ74.’’

Title: Aid to States for Care of

Veterans in State Homes—Adult Day

Health Care Per Diem.

Summary of collection of information:

VA is proposing to establish the

mechanism for paying per diem to State

homes providing adult day health care

to eligible veterans. VA proposes to

require the State homes to supply

various kinds of information regarding

their adult day health care programs to

ensure that high quality care is

furnished to veterans who are

participants in such programs. The

information includes an application for

recognition based on certification;

appeal information; application and

justification for payment; records and

reports which program management

must maintain regarding activities of

participants; to include information

relating to whether the program meets

standards concerning participants’

rights and responsibilities prior to

enrollment, during enrollment, and

upon discharge; the records and reports

which program management and health

care professionals must maintain

regarding participants and employees;

various types of documentation

pertaining to the management of the

facility; food menu planning;

Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules 39837

pharmaceutical records; and life safety

documentation.

Description of need for information

and proposed use of information: The

collections of information contained in

the proposed rule appear to be

necessary to ensure that VA per diem

payments are limited to facilities

providing high quality care. Without

access to such information VA would

not be able to determine whether high

quality care is being provided.

Collections of Information Including

Collections of Information Using Forms

at 38 CFR Part 51 Already Aapproved

Under OMB Control Number 2900–0160

Description of likely respondents:

State home officials who receive per

diem for nursing home care for veterans.

Estimated number of respondents:

13,136.

Estimated frequency of responses:

52,872.

Estimated average burden per

collection: 14 minutes.

Estimated total annual reporting and

record keeping burden: 12,467 hours.

Additional Collections of Information

Under This Proposed Rule, Including

Collections of Information Using Forms

Published at 38 CFR Part 58

Description of likely respondents:

State home officials who receive per

diem for adult day health care for

veterans.

Estimated number of respondents:

2,200.

Estimated frequency of responses:

7,568.

Estimated average burden per

collection: 13 minutes.

Estimated total annual reporting and

record keeping burden: 2,733. hours.

The Department 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 the

functions of the Department, including

whether the information will have

practical utility;

• Evaluating the accuracy of the

Department’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,

e.g., permitting electronic submission of

responses.

OMB is required to make a decision

concerning the proposed 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 regulation.

List of Subjects in 38 CFR Part 52

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,

Medical and dental schools, Medical

devices, Medical research, Mental

health programs, Nursing home care,

Philippines, Reporting and

recordkeeping requirements,

Scholarships and fellowships, Travel

and transportation expenses, Veterans.

Editorial Note: This document was

received at the Office of the Federal Register

on June 16, 2000.

Approved: October 29, 1999.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

For the reason set forth in the

preamble, 38 CFR Chapter I is proposed

to be amended by adding a new part 52

to read as follows.

PART 52—PER DIEM FOR ADULT DAY

HEALTH CARE OF VETERANS IN

STATE HOMES

Subpart A—General

Sec.

52.1 Purpose.

52.2 Definitions.

Subpart B—Obtaining Per Diem for Adult

Day Health Care in State Homes

52.10 Per diem based on recognition and

certification.

52.20 Application for recognition based on

certification.

52.30 Recognition and certification.

Subpart C—Per Diem Payments

52.40 Monthly payment.

52.50 Eligible veterans.

Subpart D—Standards

52.60 Standards applicable for payment of

per diem.

52.61 General requirements for adult day

health care program.

52.70 Participant rights.

52.71 Participant and family caregiver

responsibilities.

52.80 Enrollment, transfer and discharge

rights.

52.90 Participant behavior and program

practices.

52.100 Quality of life.

52.110 Participant assessment.

52.120 Quality of care.

52.130 Nursing services.

52.140 Dietary services.

52.150 Physician services.

52.160 Specialized rehabilitative services.

52.170 Dental services.

52.180 Administration of drugs.

52.190 Infection control.

52.200 Physical environment.

52.210 Administration.

52.220 Transportation.

Authority: 38 U.S.C. 101, 501, 1741–1743,

unless otherwise noted.

Subpart A—General

§ 52.1 Purpose.

This part sets forth the mechanism for

paying per diem to State homes

providing adult day health care to

eligible veterans and includes quality

assurance requirements that are

intended to ensure that veterans receive

high quality care in State homes.

§ 52.2 Definitions.

For purposes of this part—

Activities of daily living (ADLs) means

the functions or tasks for self-care

usually performed in the normal course

of a day, i.e., mobility, bathing, dressing,

grooming, toileting, transferring, and

eating.

Clinical nurse specialist means a

licensed professional nurse with a

master’s degree in nursing and 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

adult day health care or a building or

any part of a building which VA has

recognized as a State home for the

provision of adult day health care.

Instrumental activities of daily living

(IADLs) means functions or tasks of

independent living, i.e., shopping,

housework, meal preparation and

cleanup, laundry, taking medication,

money management, transportation,

correspondence, and telephoning.

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

39838 Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules

gerontological nurse practitioner by the

American Nurses Association.

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 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.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

Subpart B—Obtaining Per Diem for

Adult Day Health Care in State Homes

§ 52.10 Per diem based on recognition and

certification.

VA will pay per diem to a State for

providing adult day health 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

program 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 adult day health care to

eligible veterans in such a facility for a

temporary period based on a

certification that the facility and

program management provisionally

meet the standards of subpart D of this

part.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

§ 52.20 Application for recognition based

on certification.

To apply for recognition and

certification of a State home for adult

day health 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 § 52.30(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, 1741–1743)

§ 52.30 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

the facility and program 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 program, 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

program 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 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

program management does not meet one

or more of the standards in subpart D of

this part, that the deficiencies do not

jeopardize the health or safety of the

residents, and that the program

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

program, 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 program 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 program

management does not meet the

standards of subpart D of this part.

Recognition of a program 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 program 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 program 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 adult day

care health program management must

submit to the director a completed VA

Form 10–3567, Staffing Profile, set forth

at 38 CFR 58.10. 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

the State home facility or program

management does not meet the

standards of this part, the director will

notify the State home program manager

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

Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules 39839

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 an 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

State home facility or program

management 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

the 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 at the State

home facility that poses an immediate

threat to public or patient safety or other

information indicating the existence of

such a threat, the director of the 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, 1741–1743)

Subpart C—Per Diem Payments

§ 52.40 Monthly payment.

(a)(1) During fiscal year 2000, VA will

pay monthly one-half of the total cost of

each eligible veteran’s adult day health

care for each day the veteran is in a

facility recognized as a State home for

adult day health care, not to exceed

$30.25 per diem.

(2) Per diem will be paid only for a

day that the veteran is under the care of

the facility at least six hours.

(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 38 CFR 58.11.

(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 enrollment

and with any request for a change in the

level of care (nursing home, domiciliary

or hospital care). These forms are set

forth in full at 38 CFR 58.12 and 58.13,

respectively. If the program is eligible to

receive per diem payments for adult day

health care for a veteran, VA will pay

per diem under this part from the date

of receipt of the completed forms

required by this paragraph (a)(5), except

that VA will pay per diem from the day

on which the veteran was enrolled in

the program if VA receives the

completed forms within 10 days after

enrollment.

(b) For determining ‘‘the one-half of

the total cost’’ under paragraph (a)(1) of

this section, total per diem costs for an

eligible veteran’s adult day health care

consist of those direct and indirect costs

attributable to adult day health care at

the facility divided by the total number

of participants enrolled in the adult day

health care program. 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’’ (OMB

Circulars are available at the addresses

in 5 CFR 1310.3).

(Authority: 38 U.S.C. 101, 501, 1741–1743)

§ 52.50 Eligible veterans.

A veteran is an eligible veteran under

this part if VA determines that the

veteran needs adult day health 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 adult day

health 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

determined under 38 U.S.C. 1710(f) and

1710(g), if they seek VA (U.S.

Department of Veterans Affairs)

hospital, nursing home, or outpatient

care.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

Subpart D—Standards

§ 52.60 Standards applicable for payment

of per diem.

The provisions of this subpart are the

standards that a State home and

program management must meet for the

State to receive per diem for adult day

health care provided at that home.

§ 52.61 General requirements for adult day

health care program.

Adult day health care must be a

therapeutically oriented outpatient day

program, which provides health

maintenance and rehabilitative services

to participants. The program must

provide individualized care delivered

by an interdisciplinary health care team

and support staff, with an emphasis on

helping participants and their caregivers

to develop the knowledge and skills

necessary to manage care requirements

in the home. Adult day health care is

principally targeted for complex

medical and/or functional needs of

geriatric patients.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

§ 52.70 Participant rights.

The participant has a right to a

dignified existence, self-determination,

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and communication with and access to

persons and services inside and outside

the facility. The program management

must protect and promote the rights of

each participant, including each of the

following rights:

(a) Exercise of rights. (1) The

participant has the right to exercise his

or her rights as a participant of the

program and as a citizen or resident of

the United States.

(2) The participant has the right to be

free of interference, coercion,

discrimination, and reprisal from the

program management in exercising his

or her rights.

(3) The participant has the right to

freedom from chemical or physical

restraint.

(4) In the case of a participant

determined incompetent under the laws

of a State by a court of jurisdiction, the

rights of the participant are exercised by

the person appointed under State law to

act on the participant’s behalf.

(b) Notice of rights and services. (1)

The program management must inform

the participant both orally and in

writing in a language that the

participant understands of his or her

rights and all rules and regulations

governing participant conduct and

responsibilities during enrollment in the

program. Such notification must be

made prior to or upon enrollment and

periodically during the participant’s

enrollment.

(2) Participants or their legal

representatives have the right—

(i) Upon an oral or written request, to

access all records pertaining to them

including current participant records

within 24 hours (excluding weekends

and holidays); and

(ii) After receipt of their 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) Participants have the right to be

fully informed in language that they can

understand of their total health status.

(4) Participants have the right to

refuse treatment, to refuse to participate

in patient activities, to refuse to

participate in experimental research,

and to formulate an advance directive as

specified in paragraph (a)(7) of this

section.

(5) The program management must

inform each participant before, or at the

time of enrollment, and periodically

during the participant’s stay, of services

available in the facility and of charges

for those services to be billed to the

participant.

(6) The program management must

furnish a written description of legal

rights which includes a statement that

the participant may file a complaint

with the State (agency) concerning

participant abuse and neglect.

(7) The program management must

have written policies and procedures

regarding advance directives (e.g., living

wills). These requirements include

provisions to inform and provide

written information to all participants

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.

(8) Notification of changes. (i)

Program management must immediately

inform the participant; consult with the

primary physician; and notify the

participant’s legal representative or an

interested family member when there

is—

(A) An accident involving the

participant which results in injury and

has the potential for requiring physician

intervention;

(B) A significant change in the

participant’s physical, mental, or

psychosocial status (e.g., 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 participant from the program.

(ii) The program management must

also promptly notify the participant and

the participant’s legal representative or

interested family member when there is

a change in resident rights under

Federal or State law or regulations as

specified in paragraph (b)(1) of this

section.

(iii) The program management must

record and periodically update the

address and phone number of the

participant’s legal representative or

interested family member and the

primary physician.

(c) Free choice. (1) The participant has

the right to—

(i) Be fully informed in advance about

care and treatment and of any changes

in that care or treatment that may affect

the participant’s well-being; and

(ii) 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.

(2) If the participant is determined

incompetent or otherwise determined to

be incapacitated under the laws of the

State, the participant’s legal

representative or interested family

member(s) has the right to participant in

planning care and treatment or changes

in care and treatment.

(d) Privacy and confidentiality.

Participants have the right to privacy

and confidentiality of their personal and

clinical records.

(1) Participants have a right to privacy

in their medical treatment, and personal

care.

(2) Except as provided in paragraph

(d)(3) of this section, participants may

approve or refuse the release of personal

and clinical records to any individual

outside the facility.

(3) The participant’s right to refuse

release of personal and clinical records

does not apply when—

(i) The participant is transferred to

another health care institution; or

(ii) The release is required by law.

(e) Grievances. A participant has the

right to—

(1) Voice grievances without

discrimination or reprisal. Participants

may voice grievances with respect to

treatment received and not received;

and

(2) Prompt efforts by facility

management to resolve grievances the

participant may have, including those

with respect to the behavior of other

participants.

(f) Examination of survey results. A

participant has the right to—

(1) Examine the results of the most

recent VA survey with respect to the

program. The program management

must make the results available for

examination in a place readily

accessible to participants, 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.

(g) Work. The participant 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 therapy 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 (work therapy)

paid services is at or above prevailing

rates; and

(iv) The participant agrees to the work

therapy arrangement described in the

plan of care.

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(h) Access and visitation rights. (1)

The program management must provide

immediate access to any participant by

the following:

(i) Any representative of the Under

Secretary for Health;

(ii) Any representative of the State;

(iii) The State long term care

ombudsman;

(iv) Immediate family or other

relatives of the participant subject to the

participant’s right to deny or withdraw

consent at any time; and

(v) Others who are visiting subject to

reasonable restrictions and the

participant’s right to deny or withdraw

consent at any time.

(2) The program management must

provide reasonable access to any

participant by any entity or individual

that provides health, social, legal, or

other services to the participant, subject

to the participant’s right to deny or

withdraw consent at any time.

(3) The program management must

allow representatives of the State

Ombudsman Program to examine a

participant’s clinical records with the

permission of the participant or the

participant’s legal representative,

subject to State law.

(i) Telephone. The participant has the

right to reasonable access to use a

telephone where calls can be made

without being overheard.

(j) Personal property. The participant

has the right to have at least one change

of personal clothing.

(k) Self-administration of drugs. An

individual participant may selfadminister drugs if the interdisciplinary

team has determined that this practice

is safe for the individual and is a part

of the care plan.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

§ 52.71 Participant and family caregivers

responsibilities.

The program management has a

written statement of participant and

family caregiver responsibilities that are

posted in the facility and provided to

the participant and caregiver at the time

of the intake screening. The statement of

responsibilities must include the

following:

(a) Treat personnel with respect and

courtesy;

(b) Communicate with staff to develop

a relationship of trust;

(c) Make appropriate choices and seek

appropriate care;

(d) Ask questions and confirm

understanding of instructions;

(e) Share opinions, concerns, and

complaints with the program director;

(f) Communicate any changes in the

participant’s condition;

(g) Communicate to the program

director about medications and

remedies used by the participant;

(h) Let the program director know if

the participant decides not to follow any

instructions or treatment; and

(i) Communicate with the adult day

health care staff if the participant is

unable to attend the adult day health

care program.

52.80 Enrollment, transfer and

discharge rights.

Participants in the adult day health

care program must meet the provisions

of this part that apply to participants

and—

(1) Must meet at least two of the

following indicators:

(i) Dependence in 2 or more activities

of daily living (ADLs).

(ii) Dependence in 3 or more

instrumental activities of daily living

(IADLs).

(iii) Advanced age, i.e., 75 years old

or over.

(iv) High use of medical services

defined as 3 or more hospitalizations in

past year; utilization of outpatient

clinics; or Emergency Evaluation Units,

12 or more times in past year.

(v) Diagnosis of clinical depression.

(vi) Recent discharge from nursing

home or hospital.

(vii) Significant cognitive impairment,

particularly when characterized by

multiple behavior problems;

(2) Must have a supportive living

arrangement sufficient to meet their

health care needs when not

participating in the adult day health

care program; and

(3) Must be able to benefit from the

adult day health care program.

(b) Transfer and discharge. (1)

Definition. Transfer and discharge

includes movement of a participant to a

program outside of the adult day health

care program whether or not that

program or facility is in the same

physical plant.

(2) Transfer and discharge

requirements. All participants’

preparedness for discharge from adult

day health care must be a part of a

comprehensive care plan. The possible

reasons for discharge must be discussed

with the participant and family

members at the time of intake screening.

Program management must permit each

participant to remain in the program,

and not transfer or discharge the

participant from the program unless—

(i) The transfer or discharge is

necessary for the participant’s welfare

and the participant’s needs cannot be

met in the adult day health care setting;

(ii) The transfer or discharge is

appropriate because the participant’s

health has improved sufficiently so the

participant no longer needs the services

provided in the adult day health care

setting;

(iii) The safety of individuals in the

program is endangered;

(iv) The health of individuals in the

program would otherwise be

endangered;

(v) The participant has failed, after

reasonable and appropriate notice, to

pay for participation in the adult day

health care program; or

(vi) The adult day health care program

ceases to operate.

(3) Documentation. When the facility

transfers or discharges a participant

under any of the circumstances

specified in paragraphs (b)(2)(i) through

(vi) of this section, the primary

physician must document the reason for

such action in the participant’s clinical

record.

(4) Notice before transfer. Before a

facility transfers or discharges a

participant, the program management

must—

(i) Notify the participant and a family

member or legal representative of the

participant of the transfer or discharge

and the reasons for the move in writing

and in a language and manner they can

understand;

(ii) Record the reasons in the

participant’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 (b)(4) of this section must be

made by program management at least

30 days before the participant is

transferred or discharged, except when

specified in paragraph (b)(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

program would be endangered;

(B) The health of individuals in the

program would be otherwise

endangered;

(C) The participant’s health improves

sufficiently so the participant no longer

needs the services provided by the adult

day health care program;

(D) The resident’s needs cannot be

met in the adult day health care

program.

(6) Contents of the notice. The written

notice specified in paragraph (b)(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

participant is transferred or discharged,

if any;

39842 Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules

(iv) A statement that the participant

has the right to appeal the action to the

State official responsible for the

oversight of State Veterans Home

programs; and

(v) The name, address and telephone

number of the State long-term care

ombudsman.

(7) Orientation for transfer or

discharge. The program management

must provide sufficient preparation and

orientation to participants to ensure safe

and orderly transfer or discharge from

the program.

(c) Equal access to quality care. The

program 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) Enrollment policy. The program

management must not require a third

party guarantee of payment to the

program as a condition of enrollment or

expedited enrollment, or continued

enrollment in the program. However,

program management may require a

participant or an individual who has

legal access to a participant’s income or

resources to pay for program care from

the participant’s income or resources,

when available.

(e) Hours of operation. Each adult day

health care program must provide at

least 8 hours of operation five days a

week. The hours of operation must be

flexible and responsive to caregiver

needs.

(f) Caregiver support. The adult day

health care program must develop a

Caregiver Program which offers mutual

support, information and education.

(Authority: U.S.C. 101, 501, 1741–1743)

§ 52.90 Participant behavior and program

practices.

(a) Restraints. (1) The participant 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

and documented in the participant’s

clinical record.

(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.

(2) The program management uses a

system to achieve a restraint-free

environment.

(3) The program management collects

data about the use of restraints.

(4) When alternatives to the use of

restraint are ineffective, restraint is

safely and appropriately used.

(b) Abuse. (1) The participant has the

right to be free from mental, physical,

sexual, and verbal abuse or neglect,

corporal punishment, and involuntary

seclusion.

(i) Mental abuse includes humiliation,

harassment, and threats of punishment

or deprivation.

(ii) Physical abuse includes hitting,

slapping, pinching, kicking or

controlling behavior through corporal

punishment.

(iii) Sexual abuse includes sexual

harassment, sexual coercion, and sexual

assault.

(iv) Neglect is any impaired quality of

life for an individual because of the

absence of minimal services or

resources to meet basic needs. Neglect

may include withholding or

inadequately providing food and

hydration, clothing, medical care, and

good hygiene. It also includes placing

the individual in unsafe or

unsupervised conditions.

(v) Involuntary seclusion is a

participant’s separation from other

participants against his or her will or

the will of his or her legal

representative.

(c) Staff treatment of participants. The

program management must develop and

implement written policies and

procedures that prohibit mistreatment,

neglect, and abuse of participants and

misappropriation of participant

property.

(1) The program 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

employee, which would indicate

unfitness for service as a program

assistant or other program staff to the

State oversight agency director and

licensing authorities.

(2) The program management must

ensure that all alleged violations

involving mistreatment, neglect, or

abuse, including injuries of unknown

source, and misappropriation of

participant property are reported

immediately to the State oversight

agency director and to other officials in

accordance with State law through

established procedures.

(3) The program management must

have evidence that all alleged violations

are thoroughly investigated, and must

prevent potential abuse while the

investigation is in progress.

(4) The results of all investigations

must be reported to the State oversight

agency director 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, 1741–1743)

§ 52.100 Quality of life.

Program management must provide

an environment and provide or

coordinate care that supports the quality

of life of each participant by maximizing

the individual’s potential strengths and

skills.

(a) Dignity. The program management

must promote care for participants in a

manner and in an environment that

maintains or enhances each

participant’s dignity and respect in full

recognition of his or her individuality.

(b) Self-determination and

participation. The participant 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

program; and

(3) Make choices about aspects of his

or her life in the program that are

significant to the participant.

(c) Participant and family concerns.

The program management must

document any concerns submitted to

the management of the program by

participants or family members.

(1) A participant’s family has the right

to meet with families of other

participants in the program.

(2) Staff or visitors may attend

participant or family meetings at the

group’s invitation.

(3) The program management must

respond to written requests that result

from group meetings.

(4) The program management must

listen to the views of any participant or

family group and act upon the concerns

of participants and families regarding

policy and operational decisions

affecting participant care in the

program.

(d) Participation in other activities. A

participant has the right to participate in

social, religious, and community

activities that do not interfere with the

rights of other participants in the

program.

(e) Therapeutic Participant Activities.

(1) The program management must

Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules 39843

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 participant.

(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.

(3) A critical role of the adult day

health care program is to build

relationships and create a culture that

supports, involves, and validates the

participant. Therapeutic activity refers

to that supportive culture and is a

significant aspect of the individualized

plan of care. A participant’s activity

includes everything the individual

experiences during the day, not just

arranged events. As part of effective

therapeutic activity the adult day health

care program must:

(i) Provide direction and support for

participants, including breaking down

activities into small, discrete steps or

behaviors, if needed by a participant;

(ii) Have alternative programming

available for any participant unable or

unwilling to take part in group activity;

(iii) Design activities that promote

personal growth and enhance the selfimage and/or improve or maintain the

functioning level of participants to the

extent possible;

(iv) Provide opportunities for a variety

of involvement (social, intellectual,

cultural, economic, emotional, physical,

and spiritual) at different levels,

including community activities and

events;

(v) Emphasize participants’ strengths

and abilities rather than impairments

and contribute to participant feelings of

competence and accomplishment; and

(vi) Provide opportunities to

voluntarily perform services for

community groups and organizations.

(f) Social services. (1) The facility

management must provide medicallyrelated social services to participants

and their families.

(2) An adult day health care program

must employ or contract for a qualified

social worker to provide social services.

(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);

(ii) A social work license from the

State in which the State home is

located, if license is 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 social worker and

support staff to meet participant and

family social services needs. The adult

day health care social services must:

(i) Provide counseling to participants

and families/caregivers;

(ii) Facilitate the participant’s

adaptation to the adult day health care

program and active involvement in the

plan of care, if appropriate;

(iii) Arrange for services not provided

by the adult day health care program

and work with these resources to

coordinate services;

(iv) Serve as participant advocate by

asserting and safeguarding the human

and civil rights of the participants;

(v) Assess signs of mental illness and/

or dementia and make appropriate

referrals;

(vi) Provide information and referral

for persons not appropriate for adult day

health care program;

(vii) Provide family conferences and

serve as liaison between participant,

family/caregiver and program staff;

(viii) Provide individual or group

counseling and support to caregivers

and participants;

(ix) Conduct support groups or

facilitate participant or family/caregiver

participation in support groups;

(x) Assist program staff in adapting to

changes in participants’ behavior; and

(xi) Provide or arrange for individual,

group, or family psychotherapy for

participants’ with significant

psychosocial needs.

(5) Space for social services must be

adequate to ensure privacy for

interviews.

(g) Environment. The program

management must provide—

(1) A safe, clean, comfortable, and

homelike environment, and support the

participants’ ability to function as

independently as possible and to engage

in program activities;

(2) Housekeeping and maintenance

services necessary to maintain a

sanitary, orderly, and comfortable

interior;

(3) Private storage space for each

participant sufficient for a change of

clothes;

(4) Interior signs to facilitate

participants’ ability to move about the

facility independently and safely;

(5) A clean bed available for acute

illness, when indicated;

(6) A shower for resident’s need,

when indicated;

(7) Adequate and comfortable lighting

levels in all areas;

(8) Comfortable and safe temperature

levels; and

(9) Comfortable sound levels.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

52.110 Participant assessment.

The program management must

conduct initially, semi-annually and as

required by a change in the participant’s

condition a comprehensive, accurate,

standardized, reproducible assessment

of each participant’s functional

capacity.

(a) Intake screening. An intake

screening must be completed to

determine the appropriateness of the

adult day health care program for each

participant.

(b) Enrollment orders. The program

management must have physician

orders for the participant’s immediate

care and a medical assessment,

including a medical history and

physical examination, within a time

frame appropriate to the participant’s

condition, not to exceed 72 hours after

enrollment, except when an

examination was performed within five

days before enrollment and the findings

were provided and placed in the clinical

record on enrollment.

(c) Comprehensive assessments. (1)(i)

The program management must make a

comprehensive assessment of a

participant’s needs:

(A) Using (on and after January 1,

2000) the Health Care Financing

Administration Long Term Care

Resident Assessment Instrument

Version 2.0; and

(B) Describing the participant’s

capability to perform daily life

functions, strengths, performances,

needs as well as significant impairments

in functional capacity.

(ii) An initial home visit must be

conducted by program staff or in

coordination with community resources

to identify home safety issues, home

medication use, use of or need for

adaptive equipment, and the in-home

functioning of the participant and

family/caregiver.

(2) Frequency. Participant

assessments must be completed—

(i) No later than 14 calendar days after

the date of enrollment; and

(ii) Promptly after a significant change

in the participant’s physical, mental, or

social condition.

(3) Review of assessments. Program

management must review each

39844 Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules

participant no less than once every 6

months and as appropriate, revise the

participant’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 participant’s individualized

comprehensive plan of care, under

paragraph (e) of this section.

(d) 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 who 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.

(e) Comprehensive care plans. (1) The

program management must develop an

individualized comprehensive care plan

for each participant that includes

measurable objectives and timetables to

meet a participant’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 provided

by the program and by other sources to

attain or maintain the participant’s

highest physical, mental, and

psychosocial well-being as required

under § 52.120;

(ii) Any services that would otherwise

be required under § 52.120 but are not

provided due to the participant’s

exercise of rights under § 52.70,

including the right to refuse treatment

under § 52.70(b)(4);

(iii) Type and scope of interventions

to be provided in order to reach desired,

realistic outcomes;

(iv) Roles of participant and family/

caregiver; and

(v) Discharge or transition plan,

including specific criteria for discharge

or transfer.

(2) A comprehensive care plan must

be—

(i) Developed within 21 calendar days

from the date of the adult day care

enrollment and after completion of the

comprehensive assessment;

(ii) Assigned to one team member for

the accountability of coordinating the

completion of the interdisciplinary

plan;

(iii) Prepared by an interdisciplinary

team, that includes the primary

physician, a registered nurse with

responsibility for the participant, social

worker, recreational therapist and other

appropriate staff in disciplines as

determined by the participant’s needs,

the participation of the participant, and

the participant’s family or the

participant’s legal representative; and

(iv) 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 participant’s

written plan of care.

(f) Discharge summary. Prior to

discharging a participant, the program

management must prepare a discharge

summary that includes—

(1) A recapitulation of the

participant’s care;

(2) A summary of the participant’s

status at the time of the discharge to

include items in paragraph (c)(2) of this

section; and

(3) A discharge/transition plan related

to changes in service needs and changes

in functional status that prompted

another level of care.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

52.120 Quality of care.

Each participant must receive and the

program 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 participant death, paralysis,

coma or other major permanent loss of

function associated with a medication

error; or

(ii) Any suicide or attempted suicide

of a participant, including suicides

following elopement (unauthorized

departure) from the program; or

(iii) Any elopement of a participant

from the program 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 a participant’s death or

major permanent loss of function; or

(vi) A participant’s fall that results in

death or major permanent loss of

function as a direct result of the injuries

sustained in the fall; or

(vii) A serious injury requiring

hospitalization.

(3) The program management must

report sentinel events to the director of

VA medical center of jurisdiction within

24 hours of identification. The director

of VA medical center of jurisdiction

must report sentinel events to 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 and/or

notification by State home.

(4) The program 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 in an adult day health care

program is to prevent future injuries to

residents, visitors, and personnel.

(b) Activities of daily living. Based on

the comprehensive assessment of a

resident, the program management must

ensure that—

(1) A participant’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 participant’s ability to—

(i) Bathe, dress, and groom;

(ii) Transfer and ambulate;

(iii) Toilet; and

(iv) Eat.

(2) A participant is given the

appropriate treatment and services to

maintain or improve his or her abilities

specified in paragraph (b)(1) of this

section.

(3) A participant 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

participants receive proper treatment

and assistive devices to maintain vision

and hearing abilities, the program

management must, if necessary, assist

the participant and family—

(1) In making appointments; and

(2) Arranging for transportation to and

from the office of a practitioner

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 ulcers. Based on the

comprehensive assessment of a

participant, the program management

must ensure that—

(1) A participant who enters the

program without pressure ulcers does

Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules 39845

not develop pressure ulcers unless the

individual’s clinical condition

demonstrates that they were

unavoidable; and

(2) A participant having pressure

ulcers receives necessary treatment and

services to promote healing, prevent

infection and prevent new ulcers from

developing.

(e) Urinary and fecal incontinence.

Based on the participant’s

comprehensive assessment, the program

management must ensure that—

(1) A participant who enters the

program without an indwelling catheter

is not catheterized unless the

participant’s clinical condition

demonstrates that catheterization was

necessary;

(2) A participant 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 participant 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

participant, the program management

must ensure that—

(1) A participant who enters the

program without a limited range of

motion does not experience reduction in

range of motion unless the participant’s

clinical condition demonstrates that a

reduction in range of motion is

unavoidable; and

(2) A participant 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

participant, the program management

must ensure that a participant who

displays mental or psychosocial

adjustment difficulty, receives

appropriate treatment and services to

correct the assessed problem.

(h) Accidents. The program

management must ensure that—

(1) The participant environment

remains as free of accident hazards as is

possible; and

(2) Each participant receives adequate

supervision and assistance devices to

prevent accidents.

(i) Nutrition. Based on a participant’s

comprehensive assessment, the program

management must ensure, by working

with the family, that a participant—

(1) Maintains acceptable parameters

of nutritional status, such as body

weight and protein levels, unless the

participant’s clinical condition

demonstrates that this is not possible;

and

(2) Receives a therapeutic diet when

a nutritional deficiency is identified.

(j) Hydration. The program

management must provide each

participant with sufficient fluid intake

during the day to maintain proper

hydration and health.

(k) Unnecessary drugs.—(1) General.

Each participant’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

in paragraphs (k)(1)(i) through (v) of this

section.

(2) Antipsychotic drugs. Based on a

comprehensive assessment of a

participant, the program management

must ensure that—

(i) Participants who have not used

antipsychotic drugs are not given these

drugs unless antipsychotic drug therapy

is necessary to treat a specific condition

as diagnosed by the primary physician

and documented in the clinical record;

and

(ii) Participants who use

antipsychotic drugs receive gradual

dose reductions, and behavioral

interventions, unless clinically

contraindicated, in an effort to

discontinue these drugs.

(l) Medication errors. The program

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, 1741–1743)

52.130 Nursing services.

The program 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

participant assessment and

individualized comprehensive plans of

care, of all participants in the program.

(a) There must be at least one

registered nurse on duty each day of

operation of the adult day health care

program. This nurse must be currently

licensed by the State and must have, in

writing, administrative authority,

responsibility, and accountability for

the functions, activities, and training of

the nursing and program assistants. VA

recommends that this nurse be a

geriatric nurse practitioner or a clinical

nurse specialist.

(b) The number and level of nursing

staff is determined by the authorized

capacity of participants and the nursing

care needs of the participants.

(c) Nurse staffing must be based on a

staffing methodology that uses case mix

and is adequate for meeting the

standards of this part.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

52.140 Dietary services.

The program management must

provide each participant with a

nourishing, palatable, well-balanced

meal that proportionally meets the daily

nutritional and special dietary needs of

each participant.

(a) Food and nutritional services. The

program management provides and/or

contracts with a food service entity and

provides and/or contracts sufficient

support personnel competent to carry

out the functions of the food service.

(1) The program management must

employ a qualified dietitian either parttime or on a contract consultant basis to

provide nutritional guidance.

(2) A qualified dietitian is one who is

qualified based upon registration by the

Commission on Dietetic Registration of

the American Dietetic Association.

(3) The dietitian must—

(i) Conduct participant nutritional

assessments and recommend nutritional

intervention as appropriate.

(ii) Consult and provide nutrition

education to participants, family/

caregivers, and program staff as needed.

(iii) Consult and provide education

and training to the food service staff.

(iv) Monitor and evaluate participants

receiving enteral tube feedings and

parenteral line solutions, and

recommend changes as appropriate.

(b) Menus and nutritional

adequacy.—(1) The participant’s total

dietary intake is of concern but is not

the adult day health care program’s

responsibility.

(2) The program is responsible for the

meals served in the facility.

(c) Food. Each participant receives

and the program 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

39846 Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules

(4) Substitutes offered of similar

nutritive value to participants who

refuse food served.

(d) Therapeutic diets. (1) Therapeutic

diets must be prescribed by the primary

care physician.

(2) Special, modified, or therapeutic

diets must be provided as necessary for

participants with medical conditions or

functional impairments.

(3) An adult day health care program

must not admit nor continue to serve a

participant whose dietary requirements

cannot be accommodated by the

program.

(e) Frequency of meals. (1) Each

participant may receive and program

management must provide at least two

meals daily, at a regular time

comparable to normal mealtimes in the

community.

(2) The program management must

offer snacks and fluids as appropriate to

meet the participants’ nutritional and

fluid needs.

(f) Assistive devices. The program

management must provide special

eating equipment and utensils for

participants who need them.

(g) Sanitary conditions. The program

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, 1741–1743)

§ 52.150 Physician services.

As a condition of enrollment in adult

day health care program, a participant

must obtain a written physician order

for enrollment. Each participant must

remain under the care of a physician.

(a) Physician supervision. The

program management must ensure

that—

(1) The medical care of each

participant is supervised by a primary

care physician;

(2) Each participant’s medical record

must contain the name of the

participant’s primary physician; and

(3) Another physician is available to

supervise the medical care of

participants when their primary

physician is unavailable.

(b) Frequency of physician reviews.—

(1) The participant must be seen by the

primary physician at least annually and

as indicated by a change of condition.

(2) The program management must

have a policy to help ensure that

adequate medical services are provided

to participant.

(3) At the option of the primary

physician, required reviews in the

program after the initial review may

alternate between personal physician

reviews and reviews by a physician

assistant, nurse practitioner, or clinical

nurse specialist in accordance with

paragraph (f) of this section.

(c) Availability of Acute Care. The

program management must provide or

arrange for the provision of acute care

when it is indicated.

(d) Availability of physicians for

emergency care. The program

management must provide or arrange for

the provision of physician services

when the program has participants

under its care, in case of an emergency.

(e) Physician delegation of tasks. (1) 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.

(2) The primary physician may not

delegate a task when the provisions of

this part 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, 1741–1743)

§ 52.160 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 participant’s

comprehensive plan of care, program

management must—

(1) Provide the required services; or

(2) Obtain the required services and

equipment from an outside resource, in

accordance with § 52.210(h), 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, 1741–1743)

§ 52.170 Dental services.

(a) Program management must, if

necessary, assist the participant and

family/caregiver—

(1) In making appointments; and

(2) By arranging for transportation to

and from the dental services.

(b) Program management must

promptly assist and refer participants

with lost or damaged dentures to a

dentist.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

§ 52.180 Administration of drugs.

The program management must assist

with the management of medication and

have a system for disseminating drug

information to participants and program

staff.

(a) Procedures. (1) The program

management must provide reminders or

prompts to participants to initiate and

follow though with self-administration

of medications.

(2) The program management must

establish a system of records to

document the administration of drugs

by participants and/or staff.

(3) The program management must

ensure that drugs and biologicals used

by participants are labeled in

accordance with currently accepted

professional principles, and include the

appropriate accessory and cautionary

instructions, and the expiration date

when applicable.

(4) The program management must

store all drugs, biologicals, and

controlled scheduled II drugs listed in

21 CFR 1308.12 in locked compartments

under proper temperature controls,

permit only authorized personnel to

have access, and otherwise comply with

all applicable State and Federal laws.

(b) Service consultation. The program

management must employ or contract

for the services of a pharmacist licensed

in the State in which the program is

located who provides consultation, as

needed, on all the provision of drugs.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

§ 52.190 Infection control.

The program management must

establish and maintain an infection

control program designed to prevent the

development and transmission of

disease and infection.

(a) Infection control program. The

program management must—

(1) Investigate, control, and prevent

infections in the program participants

and staff; and

(2) Maintain a record of incidents and

corrective actions related to infections.

(b) Preventing spread of infection. (1)

The program management must prevent

participants or staff, with a

communicable disease or infected skin

lesions from attending the adult day

health care program, if direct contact

will transmit the disease.

(2) The program management must

require staff to wash their hands after

each direct participant contact for

which hand washing is indicated by

accepted professional practice.

Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules 39847

(Authority: 38 U.S.C. 101, 501, 1741–1743)

§ 52.200 Physical environment.

The physical environment must be

designed, constructed, equipped, and

maintained to protect the health and

safety of participants, 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. Incorporation by

reference this document was approved

by the Director of the Federal Register

in accordance with 5 U.S.C. 552(a) and

1 CFR part 51. The document

incorporated by reference is 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,

Battery March Park, Quincy, MA 02269.

(For ordering information, call toll-free

1–800–344–3555.)

(b) Space and equipment. (1) Program

management must—

(i) Provide sufficient space and

equipment in dining, health services,

recreation, and program areas to enable

staff to provide participants with

needed services as required by these

standards and as identified in each

participant’s plan of care; and

(ii) Maintain all essential mechanical,

electrical, and patient care equipment in

safe operating condition.

(2) Each adult day health care

program, when it is co-located in a

nursing home, domiciliary, or other care

facility, must have its own separate

designated space during operational

hours.

(3) The indoor space for an adult day

health care program must be at least 100

square feet per participant including

office space for staff and must be 60

square feet per participant excluding

office space for staff.

(4) Each program will need to design

and partition its space to meet its own

needs, but a minimal number of

functional areas must be available.

These include:

(i) A dividable multipurpose room or

area for group activities, including

dining, with adequate table setting

space.

(ii) Rehabilitation rooms or an area for

individual and group treatments for

occupational therapy, physical therapy,

and other treatment modalities.

(iii) A kitchen area for refrigerated

food storage, the preparation of meals

and/or training participants in activities

of daily living.

(iv) An examination and/or

medication room.

(v) A quiet room, which functions to

isolate participants who become ill or

disruptive, or who require rest, privacy,

or observation. It should be separate

from activity areas, near a restroom, and

supervised.

(vi) Bathing facilities adequate to

facilitate bathing of participants with

functional impairments.

(vii) Toilet facilities and bathrooms

easily accessible to people with mobility

problems, including participants in

wheelchairs. There must be at least one

toilet for every eight (8) participants.

The toilets must be equipped for use by

persons with limited mobility, easily

accessible from all programs areas, i.e.

preferably within 40 feet from that area,

designed to allow assistance from one or

two staff, and barrier-free.

(viii) Adequate storage space. There

should be space to store arts and crafts

materials, personal clothing and

belongings, wheelchairs, chairs,

individual handiwork, and general

supplies. Locked cabinets must be

provided for files, records, supplies, and

medications.

(ix) An individual room for

counseling and interviewing

participants and family members.

(x) A reception area.

(xi) An outside space that is used for

outdoor activities that is safe, accessible

to indoor areas, and accessible to those

with a disability. This space may

include recreational space and garden

area. It should be easily supervised by

staff.

(c) Furnishings must be available for

all participants. This must include

functional furniture appropriate to the

participants’ needs. Furnishings must be

attractive, comfortable, and homelike,

while being sturdy and safe.

(d) Participant call system. The

coordinator’s station must be equipped

to receive participant calls through a

communication system from—

(1) Clinic rooms; and

(2) Toilet and bathing facilities.

(e) Other environmental conditions.

The program management must provide

a safe, functional, sanitary, and

comfortable environment for the

participants, staff and the public. The

program management must—

(1) Establish procedures to ensure that

water is available to essential areas if

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, when available,

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, 1741–1743)

§ 52.210 Administration.

An adult day health care program

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

participant.

(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 program; and

(2) The governing body or State

official with oversight for the program

appoints the adult day health care

program administrator who is:

(i) a qualified heath care professional

experienced in clinical program

management and, if required by the

State, certified as a Certified

Administrator in Adult Day Health Care;

and

(ii) Responsible for the operation and

management of the program including:

(A) Documentation of current

credentials for each licensed

independent practitioner employed by

the program;

(B) Review of the practitioner’s record

of experience;

(C) Assessment of whether

practitioners with clinical privileges act

within the scope of privileges granted;

and

(iii) Awareness of local trends in

community adult day health care and

other services, and participation in area

adult day health care organizations.

(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 adult day health care

program administrator; or

(3) The State employee responsible for

oversight of the State home adult day

health care program if a contractor

operates the State program.

(c) Required information. The

program management must submit the

following to the director of the VA

39848 Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules

medical center of jurisdiction as part of

the application for recognition and

thereafter as often as necessary to be

current:

(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 adult day health

care program;

(5) The number of the staff by

category indicating full-time, part-time

and minority designation, annually;

(6) The number of adult day health

care participants who are veterans and

non-veterans, the number of veterans

who are minorities and the number of

non-veterans who are minorities,

annually;

(7) Annual State Fire Marshall’s

report;

(8) Annual certification from the

responsible State home showing

compliance with Section 504 of the

Rehabilitation Act of 1973 (29 U.S.C.

794) (VA Form 10–0143A set forth at 38

CFR 58.14);

(9) Annual certification for Drug-Free

Workplace Act of 1988 (41 U.S.C. 701–

707) (VA From 10–0143 set forth at 38

CFR 58.15);

(10) Annual certification regarding

lobbying in compliance with 31 U.S.C.

1352 (VA Form 10–0144 set forth at 38

CFR 58.16);

(11) Annual certification of

compliance with Title VI of the Civil

Rights Act of 1964 (42 U.S.C. 2000d-1)

as effectuated in 38 CFR part 18 (VA

Form 10–0144A located at 38 CFR

58.17);

(d) Percentage of veterans. At least 75

percent of the program participants

must be eligible veterans except that the

veteran percentage need only be more

than 50 percent if the facility was

acquired, constructed, or renovated

solely with State funds. All non-veteran

participants must be veteran-related

family members or gold star parents of

veterans.

(e) Management contract facility. If a

program 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 fulltime onsite basis.

(f) Licensure. The facility and program

management must comply with

applicable State and local licensure

laws.

(g) Staff qualifications. (1) The

program management must employ on a

full-time, part-time or consultant basis

those professionals necessary to carry

out the provisions of these

requirements. Professional disciplines

involved in participant care must

include registered nurses, program

assistants, physicians, social workers,

rehabilitation therapist, dietitian, and

therapeutic activity therapist and

pharmacist. Other disciplines may be

considered depending upon the

participant and/or program needs.

(2) Professional staff must be licensed,

certified, or registered in accordance

with applicable State laws.

(3) The staff-participant ratio must be

sufficient in number and skills (at least

one staff to 4 participants) to ensure

compliance with the standards of this

part. There must be at least two

responsible persons (paid staff

members) at the adult day health care

center at all times when there are two

or more participants in attendance.

(4) Persons counted in the staff to

participant ratio must spend at least 70

percent of their time in direct service

with participants.

(5) All professional team members

will serve in the role of case manager for

designated participants.

(6) All personnel, paid and volunteer,

will be provided appropriate training to

maintain the knowledge and skills

required for the participant needs.

(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 program management must have

that service furnished to participants 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 program

management assumes responsibility

for—

(i) Obtaining services that meet

professional standards and principles

that apply to professionals providing

services in such a program; and

(ii) The timeliness of the services.

(i) Medical director. (1) The program

management must provide a primary

care physician to serve as medical

director and a consultant to the

interdisciplinary program team.

(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 program;

(iii) Ensuring continuous physician

coverage to handle medical

emergencies;

(iv) 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

adult day health care program

administrator; and

(v) Monitoring employees’ health

status and advising the program

administrator on employee-health

policies.

(3) The medical director may also

provide hands-on assessment and/or

treatment if authorized by the

participant’s primary care provider. In

programs where a medical director is

available to act as a member of the team

and authorizes care, information

concerning the care provided must be

shared with the primary care physician

who continues to provide the ongoing

medical care.

(4) The program management must

have written procedures for handling

medical emergencies. The procedures

must include, at least:

(i) Procedures for notification of the

family;

(ii) Procedures for transportation

arrangements;

(iii) Provision for an escort, if

necessary; and

(iv) Procedures for maintaining a

portable basic emergency information

file for each participant that includes:

(A) Hospital preference;

(B) Physician of record and telephone

number;

(C) Emergency contact (family);

(D) Insurance information;

(E) Medications/allergies;

(F) Current diagnosis and history; and

(G) Photograph for participant

identification.

(j) Required training of program

assistants. (1) Program assistants must

have a high school diploma or the

equivalent and must have at least one

year of experience in working with

adults in a health care setting. Program

assistants also must complete the

National Adult Day Services

Association training course or complete

equivalent training.

(2) The program management must

not use any individual working in the

program as a program assistant whether

permanent or not unless:

(i) That individual is competent to

provide appropriate services; and

(ii) That individual has completed

training or is certified by the National

Adult Day Services Association as a

certified Program Assistant in Adult Day

Services.

(3) Verification. Before allowing an

individual to serve as a nurse aide or

program assistant, program management

Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules 39849

must verify that the individual has

successfully completed a training and

competency evaluation program.

Facilities must follow up to ensure that

such an individual actually becomes

certified, if available in the State.

(4) Multi-State registry verification.

Before allowing an individual to serve

as a nurse aide or program assistant,

program management must seek

information from every State registry

established under HHS regulations at 42

CFR 483.156 which the facility believes

may 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

program management must complete a

performance review of every nurse aide

or program assistant at least once every

12 months, and must provide regular inservice education based on the outcome

of these reviews. The in-service training

must—

(i) Be sufficient to ensure the

continuing competence of nurse aides or

program assistants, but must be no less

than 12 hours per year;

(ii) Address areas of weakness as

determined in program assistants’

performance reviews and address the

special needs of participants as

determined by the program staff; and

(iii) For program assistants or nurse

aides providing services to individuals

with cognitive impairments, address the

care of the cognitively impaired.

(k) Proficiency of program assistants.

The program management must ensure

that program assistants or nurse aides

are able to demonstrate competency in

skills and techniques necessary to care

for participants’ needs, as identified

through participant assessments, and

described in the plan of care.

(l) Laboratory and radiology results.

The program management must—

(1) Obtain laboratory or radiology

results from the participant’s primary

physician to support the needs of its

participants.

(2) Assist the participant and/or

family/caregiver in making

transportation arrangements to and from

the source of laboratory or radiology

services, if the participant needs

assistance.

(3) File in the participant’s clinical

record laboratory or radiology reports

that are dated and contain the name and

address of the testing laboratory or

radiology service.

(m) Participant records. (1) The

facility management must maintain

clinical records on each participant 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 if there is no requirement in

State law.

(3) The program management must

safeguard clinical record information

against loss, destruction, or

unauthorized use.

(4) The program management must

keep confidential all information

contained in the participant’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) A third-party payment contract;

(iv) The participant; or

(v) The participant’s legal

representative.

(5) The clinical record must contain—

(i) Sufficient information to identify

the participant;

(ii) A record of the participant’s

assessments;

(iii) The plan of care and services

provided;

(iv) The results of any pre-enrollment

screening conducted by the State; and

(v) Progress notes.

(n) Quality assessment and assurance.

(1) Program management must maintain

a quality improvement program and a

quality improvement committee

consisting of—

(i) A registered nurse;

(ii) A medical director designated by

the program; and

(iii) At least 3 other members of the

program’s staff.

(2) The quality improvement

committee—

(i) Must implement a quality

improvement plan for the evaluation of

its operation and services and review

and revise annually; and

(ii) Must meet at least quarterly to

identify quality of care issues; and

(iii) Must develop and implement

appropriate plans of action to correct

identified quality deficiencies; and

(iv) Must ensure that identified

quality deficiencies are corrected within

an established time period.

(3) 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 the requirements of this section.

(o) Disaster and emergency

preparedness. (1) The program

management must have detailed written

plans and procedures to meet all

potential emergencies and disasters,

such as fire, severe weather, bomb

threats, and missing participants.

(2) The program management must

train all employees in emergency

procedures when they begin to work in

the program, periodically review the

procedures with existing staff, and carry

out unannounced staff drills using those

procedures.

(p) Transfer procedure. (1) The

program management must have in

effect a written transfer procedure that

reasonably assures that—

(i) Participants will be transferred

from the adult day health care program

to the hospital, and ensured of timely

admission to the hospital when transfer

is medically appropriate as determined

by a physician; and

(ii) Medical and other information

needed for care and treatment of

participants will be exchanged between

the institutions.

(2) The transfer must be with a

hospital sufficiently close to the adult

day health care program to make

transfer feasible.

(q) Compliance with Federal, State,

and local laws and professional

standards. The program 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 (31 U.S.C. 7501 et seq.) and

the Cash Management Improvement

Acts of 1990 and 1992 (31 U.S.C. 3335,

3718, 3720A, 6501, 6503).

(r) Relationship to other Federal

regulations. In addition to compliance

with the regulations set forth in this

subpart, the program must 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 (29 U.S.C. 794); Drug-Free

Workplace Act of 1988 (41 U.S.C. 701–

707); restrictions regarding lobbying (31

U.S.C. 1352); Title VI of the Civil Rights

Act of 1964 (42 U.S.C. 2000d–1).

Although these regulations are not in

39850 Federal Register / Vol. 65, No. 125 / Wednesday, June 28, 2000 / Proposed Rules

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.

(s) Intermingling. A facility

recognized as a State home for

providing adult day health care may

only provide adult day health care in

the areas of the facility recognized as a

State home for providing adult day

health care.

(t) 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 adult day health care.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

§ 52.220 Transportation.

Transportation of participants to and

from the adult day health care facility

must be a component of the overall

program.

(a) The adult day health care program

management must provide, arrange, or

contract for transportation to enable

participants, including persons with

disabilities, to attend the program and to

participate in facility-sponsored outings.

(b) The adult day health care program

management must have a transportation

policy that includes routine and

emergency procedures, with a copy of

the relevant procedures located in all

program vehicles.

(c) All vehicles transporting

participants to and from adult day

health care must be equipped with a

device for two-way communication and

one additional staff person besides the

driver.

(d) All facility-provided and

contracted transportation systems must

meet local, state and federal regulations.

(e) The time to transport participant to

or from the facility must not be more

than 60 minutes except under unusual

conditions, e.g. bad weather.

(Authority: 38 U.S.C. 101, 501, 1741–1743)

[FR Doc. 00–15639 Filed 6–27–00; 8:45 am]

BILLING CODE 8320–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE30

Endangered and Threatened Wildlife

and Plants; Reopening of Comment

Period and Notice of Availability of

Draft Economic Analysis on Proposed

Critical Habitat Determination for the

Tidewater Goby

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule; reopening of

comment period and notice of

availability of draft economic analysis.

SUMMARY: The U.S. Fish and Wildlife

Service announces the availability of a

draft economic analysis of the proposed

designation of critical habitat for the

tidewater goby (Eucyclogobius

newberryi). We also provide notice of

the reopening of the comment period for

the proposal to allow all interested

parties to submit written comments on

the proposal and on the draft economic

analysis. Comments previously

submitted need not be resubmitted as

they will be incorporated into the public

records as a part of this reopening and

will be fully considered in the final rule.

DATES: The original comment period on

the critical habitat proposal closed on

October 4, 1999. The first reopened

comment period closed on November

30, 1999. The comment period is again

reopened and we will accept comments

until July 28, 2000. Comments must be

received by the closing date. Any

comments that are received after the

closing date may not be considered in

the final decision on this proposal.

ADDRESSES: Copies of the draft

economic analysis are available on the

Internet at ‘‘http://pacific.fws.gov/

crithab/tg’’ or by contacting the U.S.

Fish and Wildlife Service, Carlsbad Fish

and Wildlife Office, 2730 Loker Avenue

West, Carlsbad, California, 92008

(telephone 760–431–9440; facsimile

760–431–9618). Written comments

should be sent to the Field Supervisor.

You may also send comments by

electronic mail (e-mail) to

‘‘fw1cfwogoecan@r1.fws.gov.’’ Please

submit comments in ASCII file format

and avoid the use of special characters

and encryption. Please include ‘‘Attn:

RIN 1018–AE30’’ and your name and

return address in your e-mail message.

Comments and materials received will

be available for public inspection, by

appointment, during normal business

hours at the above Service address.

FOR FURTHER INFORMATION CONTACT: Glen

Knowles, Fish and Wildlife Biologist,

Carlsbad Fish and Wildlife Office, at the

above address (telephone 760–431–

9440; facsimile 760-431–9618).

SUPPLEMENTARY INFORMATION:

Background

The tidewater goby is a small, grayish

brown fish approximately 2 inches long

and which lives for about one year. It

occurs in coastal brackish-water habitats

such as lagoons, tidal bays, and

estuaries of rivers and streams along the

California coastline. This fish is

threatened by habitat loss and

degradation, predation by non-native

species, and extreme weather and

streamflow conditions. On August 3,

1999, the Fish and Wildlife Service

published a rule proposing critical

habitat for the tidewater goby

Eucyclogobius newberryi in the Federal

Register (64 FR 42250), a species

Federally listed as endangered

throughout its range. We proposed

designation of approximately 11.8 miles

of rivers, streams, and estuaries as

critical habitat for the tidewater goby

pursuant to the Endangered Species Act

of 1973, as amended (Act). Proposed

critical habitat is in Orange and San

Diego counties, California, as described

in the proposed rule.

Section 4(b)(2) of the Act requires that

the Secretary shall designate or revise

critical habitat based upon the best

scientific data available and after taking

into consideration the economic impact

of specifying any particular area as

critical habitat. Based upon the

previously published proposal to

designate critical habitat for the

tidewater goby and comments received

during previous comment periods, we

have conducted a draft economic

analysis of the proposed critical habitat

designation. The draft economic

analysis is available at the above

Internet and mailing address. In order to

accept the best and most current

scientific data regarding the critical

habitat proposal and the draft economic

analysis of the proposal, we reopen the

comment period at this time. We will

accept written comments during this

reopened comment period. Previously

submitted oral or written comments on

this critical habitat proposal need not be

resubmitted. The current comment

period on this proposal closes on July

28, 2000. Written comments may be

submitted to the Service office in the

ADDRESSES section.

Author: The primary author of this

notice is Glen Knowles (see ADDRESSES

section).