Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations 33845

173.55(a)(3)(ii). We will consider all

comments received during the comment

period and may change 33 CFR

173.55(a)(3) in response to the

comments.

Dated: June 19, 2001.

Kenneth T. Venuto,

Rear Admiral, U.S. Coast Guard, Acting

Assistant Commandant for Operations.

For the reasons set forth in the

preamble, 33 CFR part 173 is amended

as follows:

PART 173—VESSEL NUMBERING AND

CASUALTY AND ACCIDENT

REPORTING

1. The authority citation for part 173

continues to read as follows:

Authority: 31 U.S.C. 9701; 46 U.S.C. 2110,

6101, 12301, 12302; OMB Circular A–25; 49

CFR 1.46.

§ 173.55 [Amended]

2. In § 173.55 in paragraph (a)(3), the

text reading ‘‘Damage to vessels and

other property totals $2000 or more or

there is a complete loss of any vessel;

or’’ is designated as paragraph (a)(3)(i),

and the remainder of the paragraph is

designated as paragraph (a)(3)(ii) and

suspended indefinitely.

[FR Doc. 01–15838 Filed 6–25–01; 8:45 am]

BILLING CODE 4910–15–U

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Parts 17 and 59

RIN 2900–AJ43

Grants to States for Construction and

Acquisition of State Home Facilities

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

SUMMARY: This document establishes

regulations regarding grants to States for

the construction or acquisition of State

homes for furnishing domiciliary and

nursing home care to veterans, or for the

expansion, remodeling, or alteration of

existing State homes for furnishing

domiciliary, nursing home, or adult day

health care to veterans. This is

necessary to update the regulations and

to implement statutory provisions,

including provisions of the Veterans

Millennium Health Care and Benefits

Act.

DATES: Effective Date: June 26, 2001.

Comments must be received by VA on

or before August 27, 2001.

The incorporation by reference of

certain publications in this rule is

approved by the Director of the Office

of the Federal Register as of June 26,

2001.

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–

AJ43.’’ 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:

Frank Salvas, Chief, State Home

Construction Grant Program (114),

Veterans Health Administration, 202–

273–8534.

SUPPLEMENTARY INFORMATION: This

document establishes regulations

regarding grants to States for the

construction or acquisition of State

homes for furnishing domiciliary and

nursing home care to veterans, or for the

expansion, remodeling, or alteration of

existing State homes for furnishing

domiciliary, nursing home, or adult day

health care to veterans. The rule, which

is set forth in a new 38 CFR part 59,

consists of a comprehensive rewrite of

the regulations set forth in 38 CFR

17.210 through 17.222. The substantive

differences from the previous

regulations are discussed below.

Public Law 102–585 changed from 90

days to 180 days the time limit for

States receiving a conditionallyapproved grant to fully comply with the

requirements for a grant. The rule

reflects this statutory provision.

Under authority of Public Law 104–

262 (enacted on October 9, 1996), the

rule includes provisions for awarding

grants to States to expand, remodel, or

alter existing buildings for furnishing

adult day health care.

The rule also includes provisions to

implement statutory provisions

established by the Veterans Millennium

Health Care and Benefits Act (Public

Law 106–117, enacted on November 30,

1999). This Act made the following

changes that are reflected in the rule:

• The Act requires VA to prescribe for

each State the number of nursing home

and domiciliary beds for which grants

may be furnished. This is required to be

based on the projected demand for

nursing home and domiciliary care on

November 30, 2009 (10 years after the

date of enactment of the Veterans

Millennium Health Care and Benefits

Act (Pub. L. 106–117)), by veterans who

at such time are 65 years of age or older

and who reside in that State. In

determining the projected demand, VA

must take into account travel distances

for veterans and their families.

• The Act sets forth new criteria for

determining the order of priority for

grants for projects, including provisions

regarding whether the need for a bedproducing project is great, significant, or

limited.

• The Act provides that VA may not

accord any priority to projects for the

construction or acquisition of a hospital.

• The Act provides that a State may

not request a grant for a project for

which the total cost of construction is

not in excess of $400,000.

• The Act provides that a grant may

not include maintenance and repair

work.

• The Act requires an application for

a grant for construction or acquisition of

a nursing home or a domiciliary facility

to include the following in the

application for a grant:

(1) Documentation that the site of the

project is in reasonable proximity to a

sufficient concentration and population

of veterans that are 65 years of age and

older and that there is a reasonable basis

to conclude that the facility when

complete will be fully occupied,

(2) A financial plan for the first three

years of operation of such facility, and

(3) A five-year capital plan for the

State home program for that State.

The rule also includes provisions to

reflect that, under Public Law 106–419,

VA will not recapture amounts for all or

portions of a facility that was changed

to an outpatient clinic established and

operated by VA.

As noted above, the Veterans

Millennium Health Care and Benefits

Act sets forth new criteria for

determining the order of priority for

grants for projects. We have also created

new subpriorities for each priority

category that reflect the statutory

priority scheme. In addition, further

subpriorities in ‘‘priority group 1—

subpriority 1’’ are established to give

higher priorities to the most urgently

needed projects. Further subpriorities in

‘‘priority group 1—subpriority 4’’ are

established to give higher priority to

projects that we have determined are

most needed for care of veterans. As a

last resort for ties in subpriorities, the

rule will give projects priority based on

the earliest dates of receipt by VA of

applications.

For a State’s application to be

included in priority group 1, a State

must have made sufficient funds

available for the project for which the

grant is requested so that such project

may proceed upon approval of the grant

33846 Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations

without further action required by the

State (such as subsequent issuance of

bonds) to make such funds available for

such purpose. To meet this criteria, the

State must provide to VA a letter from

an authorized State budget official

certifying that the State funds are, or

will be, available for the project, so that

if VA awards the grant, the project may

proceed without further State action to

make such funds available. If the

certification is based on an Act

authorizing the project and making

available the State’s matching funds for

the project, a copy of the Act must be

submitted with the certification.

Previously, at the time of prioritizing

applications, instead of the whole

amount, a State was merely required to

provide a copy of an Act making

available at least one-half of the State’s

matching funds for the project. We

propose to require the full amount for

priority group 1 applications. The

change to require the full amount is

necessary to help ensure that the State

will actually have all of the funds

available as needed for the project

without having to take further action

which could delay the construction of

the State home.

As noted above, the Veterans

Millennium Health Care and Benefits

Act requires VA to prescribe for each

State the number of nursing home and

domiciliary beds for which grants may

be furnished. This is required to be

based on the projected demand for

nursing home and domiciliary care on

November 30, 2009 (10 years after the

date of enactment of the Act), by

veterans who at such time are 65 years

of age or older and who reside in that

State. As described below, we

established the maximum number for

each State in accordance with that

criteria.

To determine the maximum number

of nursing home beds for each State, we

started with the national nursing home

utilization by males 65 and older which

came from the Medical Expenditure

Panel Survey (MEPS) conducted by the

Department of Health and Human

Services in 1996. The MEPS includes

nursing home utilization by age group

and by level of dependency in activities

of daily living (ADL). Based on the

assumptions that the national nursing

home use rate for males would be

approximately the same for veterans and

non-veterans, and that the projected

number of female veterans over 65

would be very small, we applied the

national rate to the projected male and

female veteran population 65 years and

older in 2009 in each State. We

multiplied the resulting number for

each State by 11.5 percent. This

percentage represents the projected

national State nursing home reliance

factor projected for VA for 2009. We

also project that the VA national

reliance factor for VA nursing homes

and community nursing homes will be

11.5 percent for 2009. These percentages

are based upon recent historical and

projected data in VA’s market share in

providing nursing home care for

veterans.

To determine the maximum number

of domiciliary beds for each State

projected to 2009, we applied the

current age-specific utilization rates in

existing State home domiciliaries to the

projected veteran population 65 years

and older in 2009 by State.

The maximum number of State home

beds by State was then derived by

adding the projected number of State

nursing home beds for 2009 to the

projected number of State domiciliary

beds for 2009.

The ‘‘natural break points’’ (large gaps

between groups of numbers representing

maximum beds needed for States) in the

list of maximum State home beds by

State are utilized to define great,

significant and limited need for beds. A

State with great need is a State with no

State home beds or with a need for 2000

or more beds; a State with significant

need is a State with a need for 1000–

1999 beds; and a State with limited

need is a State with a need for less than

1000 beds.

For purposes of great, significant, and

limited need for beds, the maximum

number of State home nursing home

and domiciliary beds for each State is

the number in the chart in § 59.40 for

the State, minus the sum of the number

of nursing home and domiciliary beds

already in operation at State home

facilities, and the number of State home

nursing home and domiciliary beds not

yet in operation but for which a grant

has either been requested or awarded.

The numbers for making these

calculations will be made available to

the public on a VA website at http://

www.va.gov/About_VA/Orgs/VHA/

VHAProg.htm.

As noted above, the Veterans

Millennium Health Care and Benefits

Act requires that in considering the

number of nursing home and

domiciliary beds for which grants may

be furnished, VA must take into account

travel distances for veterans and their

families. In this regard, the rule states

that a State may request a grant for a

project that would increase the total

number of State home nursing home

and domiciliary beds beyond the

maximum number for that State if the

State submits to the Chief Consultant,

Geriatrics and Extended Care,

documentation to establish a need for an

exception based on travel distances of at

least two hours (by land transportation

or any other usual mode of

transportation if land transportation is

not available) between a veteran

population center sufficient for the

establishment of a State home and any

existing State home. We believe this is

a reasonable method for meeting the

statutory requirement.

The rule contains construction

requirements for facilities that would

furnish nursing home care, domiciliary

care, and adult day health care

(§§ 59.121 through 59.170). The

construction requirements for nursing

homes are consistent with the

construction requirements that were

recently established for per diem for

nursing home care of veterans in State

homes (38 CFR part 51). The proposed

construction requirements for

domiciliaries are the same as those for

nursing homes because the construction

needs are the same. The construction

requirements for adult day health care

are consistent with the proposed

construction requirements for per diem

for adult day health care of veterans in

State homes (65 FR 39835).

The rule incorporates by reference the

2000 edition of the National Fire

Protection Association Life Safety Code

entitled ‘‘NFPA 101, Life Safety Code’’

and the 1999 edition of the NFPA 99,

Standard for Health Care Facilities

(1999 edition). The regulations are

designed to ensure that State homes

meet these national standards for fire

and safety.

Administrative Procedure Act

Pursuant to 5 U.S.C. 553, we have

found for this rule that notice and

public procedure are impracticable,

unnecessary, and contrary to the public

interest and that we have good cause to

dispense with notice and comment on

this rule and to dispense with a 30-day

delay of its effective date. The Veterans’

Millennium Health Care and Benefits

Act provides that the Secretary shall

prescribe provisions in this rule to be

used for awarding grants for fiscal year

2002. Without this rule becoming

effective immediately, States would not

have sufficient time to meet the

requirements for inclusion on the

priority list for obtaining a grant for

fiscal year 2002.

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

Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations 33847

the entities that would be subject to this

proposed rule are State government

entities under the control of State

governments. Of the 100 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.

Executive Order 12866

The Office of Management and Budget

has reviewed this interim final rule

under Executive Order 12866.

Unfunded Mandates

The Unfunded Mandates Reform Act

requires (in section 202) that agencies

prepare an assessment of anticipated

costs and benefits before developing any

rule that may result in an expenditure

by State, local, or tribal governments, in

the aggregate, or by the private sector of

$100 million or more in any given year.

This rule would have no consequential

effect on State, local, or tribal

governments.

Paperwork Reduction Act

This rule is exempt from the

collections of information requirements

under the Paperwork Reduction Act (44

U.S.C. 3501–3520). The rule only

applies to States. Further, in 2000, VA

received applications for grants from

only six States and we expect that each

year fewer than 10 States will submit

applications. If VA expects to receive 10

or more applications in any year, we

will seek approval under the Paperwork

Reduction Act for this collection of

information.

List of Subjects

38 CFR Part 17

Administrative practice and

procedure, Alcohol abuse, Alcoholism,

Claims, Day care, Dental health, Drug

abuse, Foreign relations, Government

contracts, Grant programs-health,

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.

38 CFR Part 59

Administrative practice and

procedure, Alcohol abuse, Alcoholism,

Claims, Day care, Dental health, Drug

abuse, Foreign relations, Government

contracts, Grant programs-health,

Government programs-veterans, Health

care, Health facilities, Health

professions, Health records, Homeless,

Incorporation by reference, Medical and

dental schools, Medical devices,

Medical research, Mental health

programs, Nursing home care,

Philippines, Reporting and

recordkeeping requirements,

Scholarships and fellowships, Travel

and transportation expenses, Veterans.

Approved: June 7, 2001.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the

preamble, 38 CFR Chapter I is amended

as follows:

PART 17—MEDICAL

1. The authority citation for part 17

continues to read as follows:

Authority: 38 U.S.C. 501, 1721, unless

otherwise noted.

2. Immediately after § 17.200, remove

the undesignated center heading, the

note, and §§ 17.210 through 17.222.

3. A new part 59 is added to read as

follows:

PART 59—GRANTS TO STATES FOR

CONSTRUCTION OR ACQUISITION OF

STATE HOMES

Sec.

59.1 Purpose.

59.2 Definitions.

59.3 Federal Application Identifier.

59.4 Decisionmakers, notifications, and

additional information.

59.5 Submissions of information and

documents to VA.

59.10 General requirements for a grant.

59.20 Initial application requirements.

59.30 Documentation.

59.40 Maximum number of nursing home

care and domiciliary care beds for

veterans by State.

59.50 Priority list.

59.60 Additional application requirements.

59.70 Award of grants.

59.80 Amount of grant.

59.90 Line item adjustments to grants.

59.100 Payment of grant award.

59.110 Recapture provisions.

59.120 Hearings.

59.121 Amendments to application.

59.122 Withdrawal of application.

59.123 Conference.

59.124 Inspections, audits, and reports.

59.130 General requirements for all State

home facilities.

59.140 Nursing home care requirements.

59.150 Domiciliary care requirements.

59.160 Adult day health care requirements.

59.170 Forms.

Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.1 Purpose.

This part sets forth the mechanism for

a State to obtain a grant:

(a) To construct State home facilities

(or to acquire facilities to be used as

State home facilities) for furnishing

domiciliary or nursing home care to

veterans, and

(b) To expand, remodel, or alter

existing buildings for furnishing

domiciliary, nursing home, adult day

health, or hospital care to veterans in

State homes.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.2 Definitions.

For the purpose of this part:

Acquisition means the purchase of a

facility in which to establish a State

home for the provision of domiciliary

and/or nursing home care to veterans.

Adult day health care is 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

elderly veterans.

Construction means the construction

of new domiciliary or nursing home

buildings, the expansion, remodeling, or

alteration of existing buildings for the

provision of domiciliary, nursing home,

or adult day health care, or hospital care

in State homes, and the provision of

initial equipment for any such

buildings.

Domiciliary care means providing

shelter, food, and necessary medical

care on an ambulatory self-care basis

(this is more than room and board). It

assists eligible veterans who are

suffering from a disability, disease, or

defect of such a degree that

incapacitates veterans from earning a

living, but who are not in need of

hospitalization or nursing care services.

It assists in attaining physical, mental,

and social well-being through special

rehabilitative programs to restore

residents to their highest level of

functioning.

Nursing home care means the

accommodation of convalescents or

other persons who are not acutely ill

and not in need of hospital care, but

who require skilled nursing care and

related medical services.

33848 Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations

Secretary means the Secretary of the

United States Department of Veterans

Affairs.

State means each of the several States,

the District of Columbia, the Virgin

Islands, and the Commonwealth of

Puerto Rico.

State representative means the official

designated in accordance with State

authority with responsibility for matters

relating to the request for a grant under

this part.

VA means the United States

Department of Veterans Affairs.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.3 Federal Application Identifier.

Once VA has provided the State

representative with a Federal

Application Identifier Number for a

project, the number must be included

on all subsequent written

communications to VA from the State,

or its agent, regarding a request for a

grant for that project under this part.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.4 Decisionmakers, notifications, and

additional information.

The decisionmaker for decisions

required under this part will be the

Chief Consultant, Geriatrics and

Extended Care, unless specified to be

the Secretary or other VA official. The

VA decisionmaker will provide written

notice to affected States of approvals,

denials, or requests for additional

information under this part.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.5 Submissions of information and

documents to VA.

All submissions of information and

documents required to be presented to

VA must be made, unless otherwise

specified under this part, to the Chief

Consultant, Geriatrics and Extended

Care (114), VA Central Office, 810

Vermont Avenue, NW., Washington, DC

20420.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.10 General requirements for a grant.

For a State to obtain a grant under this

part and grant funds, its initial

application for the grant must be

approved under § 59.20, and the project

must be ranked sufficiently high on the

priority list for the current fiscal year so

that funding is available for the project.

It must meet the additional application

requirements in § 59.60, and it must

meet all other requirements under this

part for obtaining a grant and grant

funds.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.20 Initial application requirements.

(a) For a project to be considered for

inclusion on the priority list in § 59.50

of this part for the next fiscal year, a

State must submit to VA an original and

one copy of a completed VA Form 10–

0388 and all information,

documentation, and other forms

specified by VA form 10–0388 (these

forms are set forth at § 59.170 of this

part).

(b) The Secretary, based on the

information submitted for a project

pursuant to paragraph (a) of this section,

will approve the project for inclusion on

the priority list in § 59.50 of this part if

the submission includes all of the

information requested under paragraph

(a) of this section and if the submission

represents a project that, if further

developed, could meet the requirements

for a grant under this part.

(c) The information requested under

paragraph (a) of this section should be

submitted to VA by April 15, and must

be received by VA by August 15, if the

State wishes an application to be

included on the priority list for the

award of grants during the next fiscal

year.

(d) If a State representative believes

that VA may not award a grant to the

State for a grant application during the

current fiscal year and wants to ensure

that VA includes the application on the

priority list for the next fiscal year, the

State representative must, prior to

August 15 of the current fiscal year,

(1) Request VA to include the

application in those recommended to

the Secretary for inclusion on the

priority list, and

(2) Send any updates to VA.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.30 Documentation.

For a State to obtain a grant and grant

funds under this part, the State must

submit to VA documentation that the

site of the project is in reasonable

proximity to a sufficient concentration

and population of veterans that are 65

years of age and older and that there is

a reasonable basis to conclude that the

facility when complete will be fully

occupied. This documentation must be

included in the initial application

submitted to VA under § 59.20.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.40 Maximum number of nursing home

care and domiciliary care beds for veterans

by State.

(a) Except as provided in paragraph

(b) of this section, a State may not

request a grant for a project to construct

or acquire a new State home facility, to

increase the number of beds available at

a State home facility, or to replace beds

at a State home facility if the project

would increase the total number of State

home nursing home and domiciliary

beds beyond the maximum number

designated for that State. The maximum

number of State home nursing home

and domiciliary beds designated for

each State is (for maximum numbers see

VA website at http://www.va.gov/

About_VA/Orgs/VHA/VHAProg.htm).

the number in the following chart for

the State, minus the sum of the number

of nursing home and domiciliary beds

already in operation at State home

facilities, and the number of State home

nursing home and domiciliary beds not

yet in operation but for which a grant

has either been requested or awarded

under this part (the availability of VA

and community nursing home beds in

each State will also be considered at the

time of grant application for bedproducing projects):

State

State home

nursing home

and domiciliary beds

Alabama .................................. 883

Alaska ..................................... 79

Arizona .................................... 1,068

Arkansas ................................. 557

California ................................. 5,754

Colorado ................................. 717

Connecticut ............................. 738

Delaware ................................. 165

District of Columbia ................ 104

Florida ..................................... 4,471

Georgia ................................... 1,202

Hawaii ..................................... 216

Idaho ....................................... 233

Illinois ...................................... 2,271

Indiana .................................... 1,209

Iowa ........................................ 632

Kansas .................................... 542

Kentucky ................................. 759

Louisiana ................................ 785

Maine ...................................... 301

Maryland ................................. 1,020

Massachusetts ........................ 1,348

Michigan ................................. 1,896

Minnesota ............................... 932

Mississippi .............................. 500

Missouri .................................. 1,230

Montana .................................. 198

Nebraska ................................ 355

Nevada ................................... 428

New Hampshire ...................... 264

New Jersey ............................. 1,683

New Mexico ............................ 344

New York ................................ 3,220

North Carolina ........................ 1,454

North Dakota .......................... 121

Ohio ........................................ 2,530

Oklahoma ............................... 747

Oregon .................................... 804

Pennsylvania .......................... 3,173

Puerto Rico ............................. 350

Rhode Island .......................... 254

Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations 33849

State

State home

nursing home

and domiciliary beds

South Carolina ........................ 750

South Dakota .......................... 155

Tennessee .............................. 1,050

Texas ...................................... 3,226

Utah ........................................ 304

Vermont .................................. 124

Virginia .................................... 1,312

Virgin Islands .......................... 8

Washington ............................. 1,215

West Virginia .......................... 455

Wisconsin ............................... 1,070

Wyoming ................................. 93

Note to paragraph (a): The provisions of 38

U.S.C. 8134 require VA to prescribe for each

State the number of nursing home and

domiciliary beds for which grants may be

furnished. This is required to be based on the

projected demand for nursing home and

domiciliary care on November 30, 2009 (10

years after the date of enactment of the

Veterans Millennium Health Care and

Benefits Act (P.L. 106–117)), by veterans who

at such time are 65 years of age or older and

who reside in that State. In determining the

projected demand, VA must take into

account travel distances for veterans and

their families.

(b) A State may request a grant for a

project that would increase the total

number of State nursing home and

domiciliary beds beyond the maximum

number for that State, if the State

submits to VA, documentation to

establish a need for the exception based

on travel distances of at least two hours

(by land transportation or any other

usual mode of transportation if land

transportation is not available) between

a veteran population center sufficient

for the establishment of a State home

and any existing State home. The

determination regarding a request for an

exception will be made by the Secretary.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.50 Priority list.

(a) The Secretary will make a list

prioritizing the applications that were

received on or before August 15 and that

were approved under § 59.20 of this

part. Except as provided in paragraphs

(b) and (c) of this section, applications

will be prioritized from the highest to

the lowest in the following order:

(1) Priority group 1. An application

from a State that has made sufficient

funds available for the project for which

the grant is requested so that such

project may proceed upon approval of

the grant without further action required

by the State (such as subsequent

issuance of bonds) to make such funds

available for the project. To meet this

criteria, the State must provide to VA a

letter from an authorized State budget

official certifying that the State funds

are, or will be, available for the project,

so that if VA awards the grant, the

project may proceed without further

State action to make such funds

available (such as further action to issue

bonds). If the certification is based on an

Act authorizing the project and making

available the State’s matching funds for

the project, a copy of the Act must be

submitted with the certification.

(i) Priority group 1—subpriority 1. An

application for a project to remedy a

condition, or conditions, at an existing

facility that have been cited as

threatening to the lives or safety of the

residents in the facility by a VA Life

Safety Engineer, a State or local

government agency (including a Fire

Marshal), or an accrediting institution

(including the Joint Commission on

Accreditation of Healthcare

Organizations). This priority group does

not include applications for the addition

or replacement of building utility

systems, such as heating and air

conditioning systems or building

features, such as roof replacements.

Projects in this subpriority will be

further prioritized in the following

order: seismic; building construction;

egress; building compartmentalization

(e.g., smoke barrier, fire walls); fire

alarm/detection; asbestos/hazardous

materials; and all other projects. Projects

in this subpriority will be further

prioritized based on the date the

application for the project was received

in VA (the earlier the application was

received, the higher the priority given).

(ii) Priority group 1—subpriority 2. An

application from a State that has not

previously applied for a grant under 38

U.S.C. 8131–8137 for construction or

acquisition of a State nursing home.

Projects in this subpriority will be

further prioritized based on the date the

application for the project was received

in VA (the earlier the application was

received, the higher the priority given).

(iii) Priority group 1—subpriority 3.

An application for construction or

acquisition of a nursing home or

domiciliary from a State that has a great

need for the beds that the State, in that

application, proposes to establish.

Projects in this subpriority will be

further prioritized based on the date the

application for the project was received

in VA (the earlier the application was

received, the higher the priority given).

(iv) Priority group 1—subpriority 4.

An application from a State for

renovations to a State Home facility

other than renovations that would be

included in subpriority 1 of Priority

group 1. Projects will be further

prioritized in the following order: adult

day health care construction; nursing

home construction (e.g., patient

privacy); code compliance under the

Americans with Disabilities Act;

building systems and utilities (e.g.,

electrical; heating, ventilation, and air

conditioning (HVAC); boiler; medical

gasses; roof; elevators); clinical-support

facilities (e.g., for dietetics, laundry,

rehabilitation therapy); and general

renovation/upgrade (e.g., warehouse,

storage, administration/office,

multipurpose). Projects in this

subpriority will be further prioritized

based on the date the application for the

project was received in VA (the earlier

the application was received, the higher

the priority given).

(v) Priority group 1—subpriority 5. An

application for construction or

acquisition of a nursing home or

domiciliary from a State that has a

significant need for the beds that the

State in that application proposes to

establish. Projects in this subpriority

will be further prioritized based on the

date the application for the project was

received in VA (the earlier the

application was received, the higher the

priority given).

(vi) Priority group 1—subpriority 6.

An application for construction or

acquisition of a nursing home or

domiciliary from a State that has a

limited need for the beds that the State,

in that application, proposes to

establish. Projects in this subpriority

will be further prioritized based on the

date the application for the project was

received in VA (the earlier the

application was received, the higher the

priority given).

Note to paragraph (a)(1): The following

chart is intended to provide a graphic aid for

understanding Priority group 1 and its

subpriorities.

BILLING CODE 8320–01–P

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BILLING CODE 8320–01–C

Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations 33851

(2) Priority group 2. An application

not meeting the criteria of paragraph

(a)(1) of this section but meeting the

criteria of paragraph (a)(1)(i) of this

section. Projects within this priority

group will be further prioritized the

same as in paragraph (a)(1)(i) of this

section.

(3) Priority group 3. An application

not meeting the criteria of paragraph

(a)(1) of this section but meeting the

criteria of paragraph (a)(1)(ii) of this

section. Projects within this priority

group will be further prioritized the

same as in paragraph (a)(1)(ii) of this

section.

(4) Priority group 4. An application

not meeting the criteria of paragraph

(a)(1) of this section but meeting the

criteria of paragraph (a)(1)(iii) of this

section. Projects within this priority

group will be further prioritized the

same as in paragraph (a)(1)(iii) of this

section.

(5) Priority group 5. An application

not meeting the criteria of paragraph

(a)(1) of this section but meeting the

criteria of paragraph (a)(1)(iv) of this

section. Projects within this priority

group will be further prioritized the

same as in paragraph (a)(1)(iv) of this

section.

(6) Priority group 6. An application

not meeting the criteria of paragraph

(a)(1) of this section but meeting the

criteria of paragraph (a)(1)(v) of this

section. Projects within this priority

group will be further prioritized the

same as in paragraph (a)(1)(v) of this

section.

(7) Priority group 7. An application

not meeting the criteria of paragraph

(a)(1) of this section but meeting the

criteria of paragraph (a)(1)(vi) of this

section. Projects within this priority

group will be further prioritized the

same as in paragraph (a)(1)(vi) of this

section.

(b) An application will be given

highest priority on the priority list for

the next fiscal year within the priority

group to which it is assigned in

paragraph (a) of this section (without

consideration of subpriorities) if:

(1) During the current fiscal year the

State accepted a grant for that

application that was less than the

amount that would have been awarded

if VA had sufficient appropriations to

award the full amount of the grant

requested; and

(2) The application was the lowestranking application on the priority list

for the current fiscal year for which

grant funds were available.

(c) An application will be given

priority on the priority list (after

applications described in paragraph (b)

of this section) for the next fiscal year

ahead of all applications that had not

been approved under § 59.20 on the date

that the application was approved under

§ 59.20, if:

(1) During the current fiscal year VA

would have awarded a grant based on

the application except for the fact that

VA determined that the State did not, by

July 1, provide evidence that it had its

matching funds for the project, and

(2) The State was notified prior to July

1 that VA had funding available for this

grant application.

(d) The priority list will not contain

any project for the construction or

acquisition of a hospital or hospital

beds.

(e) For purposes of establishing

priorities under this section:

(1) A State has a great need for

nursing home and domiciliary beds if

the State:

(i) Has no State homes with nursing

home or domiciliary beds, or

(ii) Has an unmet need of 2,000 or

more nursing home and domiciliary

beds;

(2) A State has a significant need for

nursing home and domiciliary beds if

the State has an unmet need of 1,000 to

1,999 nursing home and domiciliary

beds; and

(3) A State has a limited need for

nursing home and domiciliary beds if

the State has an unmet need of 999 or

fewer nursing home and domiciliary

beds.

(f) Projects that could be placed in

more than one subpriority will be

placed in the subpriority toward which

the preponderance of the cost of the

project is allocated. For example, under

priority group 1—subpriority 1, if a

project for which 25 percent of the

funds needed would concern seismic

and 75 percent of the funds needed

would concern building construction,

the project would be placed in the

subpriority for building construction.

(g) Once the Secretary prioritizes the

applications in the priority list, VA will

not change the priorities unless a

change is necessary as a result of an

appeal.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.60 Additional application

requirements.

For a project to be eligible for a grant

under this part for the fiscal year for

which the priority list was made, during

that fiscal year the State must submit to

VA an original and a copy of the

following:

(a) Complete, updated Standard

Forms 424 (mark the box labeled

application and submit the information

requested for an application), 424C, and

424D (the forms are set forth at § 59.170

of this part), and

(b) A completed VA Form 10–0388

and all information and documentation

specified by VA Form 10–0388 (the

form is set forth at § 59.170h).

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.70 Award of grants.

(a) The Secretary, during the fiscal

year for which a priority list is made

under this part, will:

(1) Award a grant for each application

that has been approved under § 59.20,

that is sufficiently high on the priority

list so that funding is available for the

application, that meets the additional

application requirements in § 59.60, and

that meets all other requirements under

this part for obtaining a grant, or

(2) Conditionally approve a grant for

a project for which a State has

submitted an application that

substantially meets the requirements of

this part if the State representative

requests conditional approval and

provides written assurance that the

State will meet all requirements for a

grant not later than 180 calendar days

after the date of conditional approval. If

a State that has obtained conditional

approval for a project does not meet all

of the requirements within 180 calendar

days after the date of conditional

approval, the Secretary will rescind the

conditional approval and the project

will be ineligible for a grant in the fiscal

year in which the State failed to fully

complete the application. The funds

that were conditionally obligated for the

project will be deobligated.

(b) As a condition of receiving a grant,

a State must make sufficient funds

available for the project for which the

grant is requested so that such project

may proceed upon approval of the grant

without further action required by the

State (such as subsequent issuance of

bonds) to make such funds available for

such purpose. To meet this criteria, the

State must provide to VA a letter from

an authorized State budget official

certifying that the State funds are, or

will be, available for the project, so that

if VA awards the grant, the project may

proceed without further State action to

make such funds available (such as

further action to issue bonds). If the

certification is based on an Act

authorizing the project and making

available the State’s matching funds for

the project, a copy of the Act must be

submitted with the certification. To be

eligible for inclusion in priority group 1

under this part, a State must make such

funds available by August 15 of the year

33852 Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations

prior to the fiscal year for which the

grant is requested. To otherwise be

eligible for a grant and grant funds

based on inclusion on the priority list in

other than priority group 1, a State must

make such funds available by July 1 of

the fiscal year for which the grant is

requested.

(c) As a condition of receiving a grant,

the State representative and the

Secretary will sign three originals of the

Memorandum of Agreement documents

(one for the State and two for VA). A

sample is in § 59.170.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.80 Amount of grant.

(a) The total cost of a project (VA and

State) for which a grant is awarded

under this part may not be less than

$400,000 and, except as provided in

paragraph (i) of this section, the total

cost of a project will not exceed the total

cost of new construction. The amount of

a grant awarded under this part will be

the amount requested by the State and

approved in accordance with this part,

not to exceed 65 percent of the total cost

of the project except that:

(1) The total cost of a project will not

include the cost of space that exceeds

the maximum allowable space specified

in this part, and

(2) The amount of the grant may be

less than 65 percent of the total cost of

the project if the State accepts less

because VA did not have sufficient

funds to award the full amount of the

grant requested.

(b) The total cost of a project under

this part for acquisition of a facility may

also include construction costs.

(c) The total cost of a project under

this part will not include any costs

incurred before the date VA sent the

State written notification that the

application in § 59.20 was approved.

(d) The total cost of a project under

this part may include administration

and production costs, e.g., architectural

and engineering fees, inspection fees,

and printing and advertising costs.

(e) The total cost of a project under

this part may include the cost of

projects on the grounds of the facility,

e.g., parking lots, landscaping,

sidewalks, streets, and storm sewers,

only if they are inextricably involved

with the construction of the project.

(f) The total cost of a project under

this part may include the cost of

equipment necessary for the operation

of the State home facility. This may

include the cost of:

(1) Fixed equipment included in the

construction or acquisition contract.

Fixed equipment must be permanently

affixed to the building or connected to

the heating, ventilating, air

conditioning, or other service

distributed through the building via

ducts, pipes, wires, or other connecting

device. Fixed equipment must be

installed during construction. Examples

of fixed equipment include kitchen and

intercommunication equipment, built-in

cabinets, and cubicle curtain rods; and

(2) Other equipment not included in

the construction contract constituting

no more than 10 percent of the total

construction contract cost of the project.

Other equipment includes: furniture,

furnishings, wheeled equipment,

kitchen utensils, linens, draperies,

blinds, electric clocks, pictures and

trash cans.

(g) The contingency allowance may

not exceed five percent of the total cost

of the project for new construction or

eight percent for renovation projects.

(h) The total cost of a project under

this part may not include the cost of:

(1) Land acquisition;

(2) Maintenance or repair work; or

(3) Office supplies or consumable

goods (such as food, drugs, medical

dressings, paper, printed forms, and

soap) which are routinely used in a

State home.

(i) A grant for expansion, remodeling,

or alteration of an existing State home,

which is on or eligible for inclusion in

the National Register of Historic Places,

for furnishing domiciliary, nursing

home, or adult day health care to

veterans may not be awarded for the

expansion, remodeling, or alteration of

such building if such action does not

comply with National Historic

Preservation Act procedures or if the

total cost of remodeling, renovating, or

adapting such building or facility

exceeds the cost of comparable new

construction by more than five percent.

If demolition of an existing building or

facility on, or eligible for inclusion in,

the National Register of Historic Places

is deemed necessary and such

demolition action is taken in

compliance with National Historic

Preservation Act procedures, any

mitigation cost negotiated in the

compliance process and/or the cost to

professionally record the building or

facility in the Historic American

Buildings Survey (HABS), plus the total

cost for demolition and site restoration,

shall be included by the State in

calculating the total cost of new

construction.

(j) The cost of demolition of a

building cannot be included in the total

cost of construction unless the proposed

construction is in the same location as

the building to be demolished or unless

the demolition is inextricably linked to

the design of the construction project.

(k) With respect to the final award of

a conditionally-approved grant, the

Secretary may not award a grant for an

amount that is 10 percent more than the

amount conditionally-approved.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.90 Line item adjustments to grants.

After a grant has been awarded, upon

request from the State representative,

VA may approve a change in a line item

(line items are identified in Form 424C

which is set forth in § 59.170(o) of this

part) of up to 10 percent (increase or

decrease) of the cost of the line item if

the change would be within the scope

or objective of the project and would not

change the amount of the grant.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.100 Payment of grant award.

The amount of the grant award will be

paid to the State or, if designated by the

State representative, the State home for

which such project is being carried out,

or any other State agency or

instrumentality. Such amount shall be

paid by way of reimbursement, and in

such installments consistent with the

progress of the project, as the Chief

Consultant, Geriatrics and Extended

Care, may determine and certify for

payment to the appropriate Federal

institution. Funds paid under this

section for an approved project shall be

used solely for carrying out such project

as so approved. As a condition for the

final payment, the State must comply

with the requirements of this part based

on an architectural and engineering

inspection approved by VA, must obtain

VA approval of the final equipment list

submitted by the State representative,

and must submit to VA a completed VA

Form 10–0388 (see § 59.170(i)). The

equipment list and the completed VA

form 10–0388 must be submitted to the

Chief Consultant, Geriatrics and

Extended Care (114), VA Central Office,

810 Vermont Avenue, NW.,

Washington, DC 20420.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.110 Recapture provisions.

If a facility for which a grant has been

awarded ceases to be operated as a State

home for the purpose for which the

grant was made, the United States shall

be entitled to recover from the State

which was the recipient of the grant or

from the then owner of such

construction as follows:

(a) If less than 20 years has lapsed

since the grant was awarded, and VA

provided 65 percent of the estimated

cost to construct, acquire or renovate a

Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations 33853

State home facility principally for

furnishing domiciliary care, nursing

home care, adult day health care,

hospital care, or non-institutional care

to veterans, VA shall be entitled to

recover 65 percent of the current value

of such facility (but in no event an

amount greater than the amount of

assistance provided for such under

these regulations), as determined by

agreement of the parties or by action

brought in the district court of the

United States for the district in which

the facility is situated.

(b) Based on the time periods for grant

amounts set forth below, if VA provided

between 50 and 65 percent of the

estimated cost of expansion,

remodeling, or alteration of an existing

State home facility, VA shall be entitled

to recover the amount of the grant as

determined by agreement of the parties

or by action brought in the district court

of the United States for the district in

which the facility is situated:

Grant amount

(dollars in thousands)

Recovery

period

(in years)

0–250 ........................................ 7

251–500 .................................... 8

501–750 .................................... 9

751–1,000 ................................. 10

1,001–1,250 .............................. 11

1,251–1,500 .............................. 12

1,501–1,750 .............................. 13

1,751–2,000 .............................. 14

2,001–2,250 .............................. 15

2,251–2,500 .............................. 16

2,501–2,750 .............................. 17

2,751–3,000 .............................. 18

Over 3,000 ................................ 20

(c ) If the magnitude of the VA

contribution is below 50 percent of the

estimated cost of the expansion,

remodeling, or alteration of an existing

State home facility recognized by the

Department of Veterans Affairs, the

Under Secretary for Health may

authorize a recovery period between 7

and 20 years depending on the grant

amount involved and the magnitude of

the project.

(d) This section does not apply to any

portion of a State home in which VA

has established and operates an

outpatient clinic.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.120 Hearings.

If the Secretary determines that a

submission from a State does not meet

the requirements of this part, the

Secretary will advise the State by letter

that a grant is tentatively denied,

explain the reasons for the tentative

denial, and inform the State of the

opportunity to appeal to the Board of

Veterans’ Appeals pursuant to 38 U.S.C.

7105. Decisions under this part are not

subject to the provisions of § 17.133 of

this order.

(Authority: 38 U.S.C. 101, 501, 511, 1710,

1742, 7101–7298, 8105, 8131–8137).

§ 59.121 Amendments to application.

Any amendment of an application

that changes the scope of the

application or changes the cost

estimates by 10 percent or more shall be

subject to approval in the same manner

as an original application.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.122 Withdrawal of application.

A State representative may withdraw

an application by submitting to VA a

written document requesting

withdrawal.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.123 Conference.

At any time, VA may recommend that

a conference (such as a design

development conference) be held in VA

Central Office in Washington, DC, to

provide an opportunity for the State and

its architects to discuss requirements for

a grant with VA officials.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.124 Inspections, audits, and reports.

(a) A State will allow VA inspectors

and auditors to conduct inspections and

audits as necessary to ensure

compliance with the provisions of this

part. The State will provide evidence

that it has met its responsibility under

the Single Audit Act of 1984 (see part

41 of this chapter) and submit that

evidence to VA.

(b) A State will make such reports in

such form and containing such

information as the Chief Consultant,

Geriatrics and Extended Care, may from

time to time reasonably require and give

the Chief Consultant, Geriatrics and

Extended Care, upon demand, access to

the records upon which such

information is based.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.130 General requirements for all State

home facilities.

As a condition for receiving a grant

and grant funds under this part, States

must comply with the requirements of

this section.

(a) The physical environment of a

State home must be designed,

constructed, equipped, and maintained

to protect the health and safety of

participants, personnel and the public.

(b) A State home must meet the

general conditions of the American

Institute of Architects, or other general

conditions required by the State, for

awarding contracts for State home grant

projects. Facilities must meet all

Federal, State, and local requirements,

including the Uniform Federal

Accessibility Standards (UFAS) (24 CFR

part 40, appendix A), during the design

and construction of projects subject to

this part. If the State or local

requirements are different from the

Federal requirements, compliance with

the most stringent provisions is

required. A State must design and

construct the project to provide

sufficient space and equipment in

dining, health services, recreation, and

program areas to enable staff to provide

residents with needed services as

required by this part and as identified

in each resident’s plan of care.

(c) State homes should be planned to

approximate the home atmosphere as

closely as possible. The interior and

exterior should provide an attractive

and home-like environment for elderly

residents. The site will be located in a

safe, secure, residential-type area that is

accessible to acute medical care

facilities, community activities and

amenities, and transportation facilities

typical of the area.

(d)(1) State homes must meet the

applicable provisions of the National

Fire Protection Association’s NFPA 101,

Life Safety Code (2000 edition) and the

NFPA 99, Standard for Health Care

Facilities (1999 edition). Incorporation

by reference of these materials was

approved by the Director of the Federal

Register in accordance with 5 U.S.C.

552(a) and 1 CFR part 51. These

materials, incorporated by reference, are

available for inspection at the Office of

the Federal Register, Suite 700, 800

North Capitol Street, NW, Washington,

DC, and the Department of Veterans

Affairs, Office of Regulations

Management (02D), Room 1154, 810

Vermont Avenue, NW, Washington, DC

20420. Copies may be obtained from the

National Fire Protection Association, 1

Batterymarch Park, P.O. Box 9101,

Quincy, MA 02269–9101. (For ordering

information, call toll free 1–800–344–

3555.)

(2) Facilities must also meet the State

and local fire codes.

(e) State homes must have an

emergency electrical power system to

supply power adequate to operate all

exit signs and lighting for means of

egress, fire and medical gas alarms, and

emergency communication systems. The

source of power must be an on-site

emergency standby generator of

33854 Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations

sufficient size to serve the connected

load or other approved sources.

(f) The nurse’s station must be

equipped to receive resident calls

through a communication system from

resident rooms, toilet and bathing

facilities, dining areas, and activity

areas.

(g) The State home must have one or

more rooms designated for resident

dining and activities. These rooms must

be:

(1) Well lighted;

(2) Well ventilated; and

(3) Adequately furnished.

(h) The facility management must

provide a safe, functional, sanitary, and

comfortable environment for the

residents, staff and the public. The

facility must:

(1) Ensure that water is available to

essential areas when there is a loss of

normal water supply;

(2) Have adequate outside ventilation

by means of windows, or mechanical

ventilation, or a combination of the two;

(3) Equip corridors with firmly

secured handrails on each side; and

(4) Maintain an effective pest control

program so that the facility is free of

pests and rodents.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.140 Nursing home care requirements.

As a condition for receiving a grant

and grant funds for a nursing home

facility under this part, States must

comply with the requirements of this

section.

(a) Resident rooms must be designed

and equipped for adequate nursing care,

comfort, and privacy of residents.

Resident rooms must:

(1) Accommodate no more than four

residents;

(2) Have direct access to an exit

corridor;

(3) Have at least one window to the

outside;

(4) Be equipped with, or located near,

toilet and bathing facilities (VA

recommends that public toilet facilities

also be located near the residents dining

and recreational areas);

(5) Be at or above grade level;

(6) Be designed or equipped to ensure

full visual privacy for each resident;

(7) Except in private rooms, each bed

must have ceiling suspended curtains

that extend around the bed to provide

total visual privacy in combination with

adjacent walls and curtains;

(8) Have a separate bed for each

resident of proper size and height for

the safety of the resident;

(9) Have a clean, comfortable

mattress;

(10) Have bedding appropriate to the

weather and climate;

(11) Have functional furniture

appropriate to the resident’s needs, and

(12) Have individual closet space with

clothes racks and shelves accessible to

the resident.

(b) Unless determined by VA as

necessary to accommodate an increased

quality of care for patients, a nursing

home project may propose a deviation

of no more than 10 percent (more or

less) from the following net square

footage for the State to be eligible for a

grant of 65 percent of the total estimated

cost of the project. If the project

proposes building more than the

following net square footage and VA

makes a determination that it is not

needed, the cost of the additional net

square footage will not be included in

the estimated total cost of construction.

TABLE TO PARAGRAPH (B)—NURSING HOME

I. Support facilities [allowable square feet (or metric equivalent) per facility for VA participation]:

Administrator ............................................................................................................................................................ 200

Assistant administrator ............................................................................................................................................ 150

Medical officer, director of nursing or equivalent .................................................................................................... 150

Nurse and dictation area ......................................................................................................................................... 120

General administration (each office/person) ........................................................................................................... 120

Clerical staff (each) ................................................................................................................................................. 80

Computer area ......................................................................................................................................................... 40

Conference room (consultation area, in-service training) ....................................................................................... 500 (for each room)

Lobby/waiting area. (150 minimum/600 maximum per facility) ............................................................................... 3 (per bed)

Public/resident toilets (male/female) ....................................................................................................................... 25 (per fixture)

Pharmacy 1.

Dietetic service 1.

Dining area .............................................................................................................................................................. 20 (per bed)

Canteen/retail sales ................................................................................................................................................. 2 (per bed)

Vending machines (450 max. per facility) ............................................................................................................... 1 (per bed)

Resident toilets (male/female) ................................................................................................................................. 25 (per fixture)

Child day care 1.

Medical support (staff offices/exam/treatment room/family counseling, etc.) ......................................................... 140 (for each room)

Barber and/or beauty shops .................................................................................................................................... 140

Mail room ................................................................................................................................................................. 120

Janitor’s closet ......................................................................................................................................................... 40

Multipurpose room ................................................................................................................................................... 15 (per bed)

Employee lockers .................................................................................................................................................... 6 (per employee)

Employee lounge (500 max. per facility) ................................................................................................................. 120

Employee toilets ...................................................................................................................................................... 25 (per fixture)

Chapel ..................................................................................................................................................................... 450

Physical therapy ...................................................................................................................................................... 5 (per bed)

Office, if required ..................................................................................................................................................... 120

Occupational therapy ............................................................................................................................................... 5 (per bed).

Office, if required ..................................................................................................................................................... 120

Library ...................................................................................................................................................................... 1.5 (per bed)

Building maintenance storage ................................................................................................................................. 2.5 (per bed)

Resident storage ..................................................................................................................................................... 6 (per bed)

General warehouse storage .................................................................................................................................... 6 (per bed)

Medical/dietary/pharmacy ........................................................................................................................................ 7 (per bed)

General laundry 1.

II. Bed units:

One .......................................................................................................................................................................... 150

Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations 33855

TABLE TO PARAGRAPH (B)—NURSING HOME—Continued

Two .......................................................................................................................................................................... 245

Large two-bed per unit ............................................................................................................................................ 305

Four ......................................................................................................................................................................... 460

Lounge areas (resident lounge with storage) ......................................................................................................... 8 (per bed)

Resident quiet room ................................................................................................................................................ 3 (per bed)

Clean utility .............................................................................................................................................................. 120

Soiled utility ............................................................................................................................................................. 105

Linen storage ........................................................................................................................................................... 150

General storage ....................................................................................................................................................... 100

Nurses station, ward secretary ................................................................................................................................ 260

Medication room ...................................................................................................................................................... 75

Exam/Treatment room ............................................................................................................................................. 140

Waiting area ............................................................................................................................................................ 50

Unit supply and equipment ...................................................................................................................................... 50

Staff toilet ................................................................................................................................................................. 25 (per fixture)

Stretcher/wheelchair storage ................................................................................................................................... 100

Kitchenette ............................................................................................................................................................... 150

Janitor’s closet ......................................................................................................................................................... 40

Resident laundry ...................................................................................................................................................... 125

Trash collection ....................................................................................................................................................... 60

III. Bathing and Toilet Facilities:

(A) Private or shared facilities:

Wheelchair facilities .......................................................................................................................................... 25 (per fixture)

Standard facilities ............................................................................................................................................. 15 (per fixture)

(B) Full bathroom ..................................................................................................................................................... 75

(C) Congregate bathing facilities:

First tub/shower ................................................................................................................................................ 80

Each additional fixture ...................................................................................................................................... 25

1The size to be determined by the Chief Consultant, Geriatrics and Extended Care, as necessary to accommodate projected patient care

needs (must be justified by State in space program analysis).

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137; Sections 2, 3, 4, and 4a of

the Architectural Barriers Act of 1968, as

amended, Public Law 90–480, 42 U.S.C.

4151–4157).

§ 59.150 Domiciliary care requirements.

As a condition for receiving a grant

and grant funds for a domiciliary under

this part, the domiciliary must meet the

requirements for a nursing home

specified in § 59.140 of this part.

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137).

§ 59.160 Adult day health care

requirements.

As a condition for receiving a grant

and grant funds under this part for an

adult day health care facility, States

must meet the requirements of this

section.

(a) 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.

(b) 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.

(c) Each program will need to design

and partition its space to meet its own

needs, but the following functional

areas must be available:

(1) A dividable multipurpose room or

area for group activities, including

dining, with adequate table setting

space.

(2) Rehabilitation rooms or an area for

individual and group treatments for

occupational therapy, physical therapy,

and other treatment modalities.

(3) A kitchen area for refrigerated food

storage, the preparation of meals and/or

training participants in activities of

daily living.

(4) An examination and/or medication

room.

(5) A quiet room (with at least one

bed), 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.

(6) Bathing facilities adequate to

facilitate bathing of participants with

functional impairments.

(7) 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 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.

(8) 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.

(9) An individual room for counseling

and interviewing participants and

family members.

(10) A reception area.

(11) 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 a garden

area. It should be easily supervised by

staff.

(d) Furnishings must be available for

all participants. This must include

functional furniture appropriate to the

participants’ needs.

(e) Unless determined by VA as

necessary to accommodate an increased

quality of care for patients, an adult day

health care facility project may propose

a deviation of no more than 10 percent

(more or less) from the following net

square footage for the State to be eligible

for a grant of 65 percent of the total

estimated cost of the project. If the

project proposes building more than the

following net square footage and VA

makes a determination that it is not

needed, the cost of the additional net

square footage will not be included in

the estimated total cost of construction.

33856 Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations

TABLE TO PARAGRAPH (E)—ADULT DAY HEALTH CARE

I. Support facilities [allowable square feet (or metric equivalent) per facility for VA participation]:

Program Director ..................................................................................................................................................... 200

Assistant administrator ............................................................................................................................................ 150

Medical officer, director of nursing or equivalent .................................................................................................... 150

Nurse and dictation area ......................................................................................................................................... 120

General administration (each office/person) ........................................................................................................... 120

Clerical staff (each) ................................................................................................................................................. 80

Computer area ......................................................................................................................................................... 40

Conference room (consultation area, in-service training) ....................................................................................... 500 (for each room).

Lobby/receiving/waiting area (150 minimum) .......................................................................................................... 3 (per participant)

Public/resident toilets (male/female) ....................................................................................................................... 25 (per fixture).

Dining area (may be included in the multipurpose room) ....................................................................................... 20 (per participant).

Vending machines ................................................................................................................................................... 1 (per participant).

Participant toilets (male/female) .............................................................................................................................. 25 (per fixture).

Medical support (staff offices/family counseling, etc.) ............................................................................................ 140 (for each room).

Janitor’s closet ......................................................................................................................................................... 40

Dividable multipurpose room ................................................................................................................................... 15 (per participant).

Employee lockers .................................................................................................................................................... 6 (per employee)

Employee lounge ..................................................................................................................................................... 120

Employee toilets ...................................................................................................................................................... 25 (per fixture).

Physical therapy ...................................................................................................................................................... 5 (per participant).

Office, if required ..................................................................................................................................................... 120

Occupational therapy ............................................................................................................................................... 5 (per participant).

Office, if required ..................................................................................................................................................... 120

Building maintenance storage ................................................................................................................................. 2.5 (per participant).

Resident storage ..................................................................................................................................................... 6 (per participant).

General warehouse storage .................................................................................................................................... 6 (per participant).

Medical/dietary ......................................................................................................................................................... 7 (per participant).

General laundry 1 .....................................................................................................................................................

II. Other Areas:

Participant quiet room ............................................................................................................................................. 3 (per participant).

Clean utility .............................................................................................................................................................. 120

Soiled utility ............................................................................................................................................................. 105

General storage ....................................................................................................................................................... 100

Nurses station, ward secretary ................................................................................................................................ 260

Medication/exam/treatment rooms .......................................................................................................................... 75

Waiting area ............................................................................................................................................................ 50

Program supply and equipment .............................................................................................................................. 50

Staff toilet ................................................................................................................................................................. 25 (per fixture).

Wheelchair storage .................................................................................................................................................. 100

Kitchen ..................................................................................................................................................................... 120

Janitor’s closet ......................................................................................................................................................... 40

Resident laundry ...................................................................................................................................................... 125

Trash collection ....................................................................................................................................................... 60

III. Bathing and Toilet Facilities:

(A) Private or shared facilities:

Wheelchair facilities .......................................................................................................................................... 25 (per fixture).

Standard facilities ............................................................................................................................................. 15 (per fixture).

(B) Full bathroom ..................................................................................................................................................... 75

1The size to be determined by the Chief Consultant, Geriatrics and Extended Care, as necessary to accommodate projected patient care

needs (must be justified by State in space program analysis).

(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137; Sections 2, 3, 4, and 4a of

the Architectural Barriers Act of 1968, as

amended, Public Law 90–480, 42 U.S.C.

4151–4157).

§ 59.170 Forms.

All forms set forth in this part are

available on the Internet at http://

www.va.gov/About_VA/Orgs/VHA/

VHAProg.htm.

BILLING CODE 8330–01–P

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(Authority: 38 U.S.C. 101, 501, 1710, 1742,

8105, 8131–8137; Sections 2, 3, 4, and 4a of

the Architectural Barriers Act of 1968, as

amended, Public Law 90–480, 42 U.S.C.

4151–4157)

[FR Doc. 01–15773 Filed 6–25–01; 8:45 am]

BILLING CODE 8320–01–C

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 268

[FRL–7002–3]

Land Disposal Restrictions: Granting

of a Site-Specific Treatment Variance

to Dupont Environmental Treatment—

Chambers Works Wastewater

Treatment Plant, Deepwater, NJ

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA or Agency) is

promulgating a site-specific treatment

variance from the Land Disposal

Restrictions (LDR) standards for

wastewater treatment sludge generated

at the Dupont Environmental Treatment

(DET)—Chambers Works Wastewater

Treatment Plant located in Deepwater,

New Jersey. This sludge is derived from

the treatment of multiple listed wastes,

including K088, and characteristic

hazardous waste, and differs

significantly from the waste used to

establish the LDR treatment standard for

arsenic in K088 nonwastewaters.

Accordingly, we are finalizing an

alternate treatment standard of 5.0 mg/

L Toxicity Characteristic Leaching

Procedure (TCLP) for the arsenic in the

wastewater treatment sludge generated

at this facility.

This treatment variance requires DET

to dispose of their wastewater treatment

sludge in their on-site RCRA Subtitle C

landfill provided the sludge complies

with the specified alternate treatment

standard for arsenic in K088

nonwastewaters and meets all other

applicable LDR treatment standards.

DATES: This rule is effective June 26,

2001.

ADDRESSES: The official record for this

rulemaking is identified as Docket

Number F–2001–DPVF–FFFFF and is

located in the RCRA Docket Information

Center (RIC), Crystal Gateway One, 1235

Jefferson Davis Highway, First Floor,

Arlington, VA 22202. The RIC is open

from 9 am to 4 pm Monday through

Friday, excluding federal holidays. To

review docket materials, we recommend

that you make an appointment by

calling 703–603–9230. You may copy

up to 100 pages from any regulatory

document at no charge. Additional

copies cost $0.15 per page. (The index

is available electronically. See the

‘‘Supplementary Information’’ section

for information on accessing them).

FOR FURTHER INFORMATION CONTACT: For

general information, call the RCRA Call

Center at 1–800–424–9346 or TDD 1–

800–553–7672 (hearing impaired). The

RCRA Call Center operates MondayFriday, 9 am to 6 pm, Eastern Standard

Time. For more detailed information on

specific aspects of this rule, contact

Elaine Eby at 703–308–8449,

eby.elaine@epa.gov, or write her at the

Office of Solid Waste, 5302W, U.S.

Environmental Protection Agency, Ariel

Rios Building, 1200 Pennsylvania

Avenue, NW, Washington, DC 20460–

0002.

SUPPLEMENTARY INFORMATION:

Availability of Rule on Internet

Please follow these instructions to

access the rule: From the World Wide

Web (WWW), type http://www.epa.gov/

epaoswer/hazwaste/ldr.

The official record for this action will

be kept in paper form. Accordingly, EPA

has transferred any comments received

electronically into paper form and

placed them in the official record which

also includes comments submitted

directly in writing. The official record is

the paper record maintained at the RIC

listed in the ADDRESSES section at the

beginning of this document.

Table of Contents

I. Why and How Are Treatment Variances

Granted?

I. Summary of the Proposed Rule

II. Comment Summary and Final Rule

III. Administrative Requirements

A. Regulatory Impact Analysis Pursuant to

Executive Order 12866

B. Regulatory Flexibility Act (RFA), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.

C. Unfunded Mandates Reform Act

D. Executive Order 13045: Protection of

Children from Environmental Health

Risks and Safety Risks

E. Environmental Justice Executive Order

12898

F. Paperwork Reduction Act

G. National Technology Transfer and

Advancement Act

H. Consultation with Tribal Governments

I. Executive Order 13132 (Federalism)

J. Congressional Review Act

I. Why and How Are Treatment

Variances Granted?

Under Section 3004(m) of the

Resource Conservation and Recovery

Act (RCRA) as amended by the

Hazardous and Solid Waste

Amendments of 1984, EPA is required

to set ‘‘levels or methods of treatment,

if any, which substantially diminish the

toxicity of the waste or substantially

reduce the likelihood of migration of

hazardous constituents from the waste

so that short-term and long-term threats

to human health and the environment

are minimized.’’ We have interpreted

this language to authorize treatment

standards based on the performance of

best demonstrated available technology

(BDAT). This interpretation was

sustained by the court in Hazardous

Waste Treatment Council vs. EPA, 886

F. 2d 355 (D.C.Cir.1989).

We recognize that there may be

wastes that cannot be treated to levels

specified in the regulation (see 40 CFR

268.40) (51 FR 40576, November 7,

1986). For such wastes, a treatment

variance exists (40 CFR 268.44) that, if

granted, becomes the treatment standard

for the waste at issue.

Treatment variances may be generic

or site-specific. A generic variance can

result in the establishment of a new

treatability group and a corresponding

treatment standard that applies to all

wastes that meet the criteria of the new

waste treatability group (55 FR 22526,

June 1, 1990). A site-specific variance

applies only to a specific waste from a

specific facility. Under 40 CFR

268.44(h), a generator or treatment

facility may apply to the Administrator,

or EPA’s delegated representative, for a

site-specific variance in cases where a

waste that is generated under conditions

specific to only one site and cannot or

should not be treated to the specified

level(s). The applicant for a site-specific

variance must demonstrate that because

the physical or chemical properties of

the waste differ significantly from the

waste analyzed in development of the

treatment standard, the waste cannot be

treated by BDAT to the specified levels

or by the specified method(s). Although

there are other grounds for obtaining

treatment variances, we will not discuss

those in this notice because this is the

only provision relevant to the present

petition.

Dupont Environmental Treatment—

Chambers Works submitted their

request for a treatment variance in

February 2000. All information and data

used in the development of this final

rule can be found in the RCRA docket

supporting this rule.

II. Summary of the Proposed Rule

On December 4, 2000 (65 FR 75651),

we published a proposed rule detailing

our intent to grant a site-specific

variance from the K088 treatment

standard for arsenic in nonwastewaters

to Dupont Environmental Treatment—