Regulation re Grants to States for Construction and Acquisition of State Home Facilities

Federal Register / Vol. 66, No. 123 / Tuesday, June 26, 2001 / Rules and Regulations
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
Department of Veterans Affairs.
Interim final rule.

AGENCY:
ACTION:

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

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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

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33845

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

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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

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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,

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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

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

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.

Executive Order 12866
The Office of Management and Budget
has reviewed this interim final rule
under Executive Order 12866.

Approved: June 7, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.

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

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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
59.2
59.3
59.4

Purpose.
Definitions.
Federal Application Identifier.
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).

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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).

For the reasons set out in the
preamble, 38 CFR Chapter I is amended
as follows:

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§ 59.1

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§ 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.

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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.

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(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

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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

Alabama ..................................
Alaska .....................................
Arizona ....................................
Arkansas .................................
California .................................
Colorado .................................
Connecticut .............................
Delaware .................................
District of Columbia ................
Florida .....................................
Georgia ...................................
Hawaii .....................................
Idaho .......................................
Illinois ......................................
Indiana ....................................
Iowa ........................................
Kansas ....................................
Kentucky .................................
Louisiana ................................
Maine ......................................
Maryland .................................
Massachusetts ........................
Michigan .................................
Minnesota ...............................
Mississippi ..............................
Missouri ..................................
Montana ..................................
Nebraska ................................
Nevada ...................................
New Hampshire ......................
New Jersey .............................
New Mexico ............................
New York ................................
North Carolina ........................
North Dakota ..........................
Ohio ........................................
Oklahoma ...............................
Oregon ....................................
Pennsylvania ..........................
Puerto Rico .............................
Rhode Island ..........................

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State home
nursing home
and domiciliary beds
883
79
1,068
557
5,754
717
738
165
104
4,471
1,202
216
233
2,271
1,209
632
542
759
785
301
1,020
1,348
1,896
932
500
1,230
198
355
428
264
1,683
344
3,220
1,454
121
2,530
747
804
3,173
350
254

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

State

South Carolina ........................
South Dakota ..........................
Tennessee ..............................
Texas ......................................
Utah ........................................
Vermont ..................................
Virginia ....................................
Virgin Islands ..........................
Washington .............................
West Virginia ..........................
Wisconsin ...............................
Wyoming .................................

State home
nursing home
and domiciliary beds
750
155
1,050
3,226
304
124
1,312
8
1,215
455
1,070
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

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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

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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

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

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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

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33851

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

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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

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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.

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(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

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

11
12
13
14
15
16
17
18
20

(Authority: 38 U.S.C. 101, 501, 1710, 1742,
8105, 8131–8137).

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.

Hearings.

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(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.

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

16:09 Jun 25, 2001

§ 59.121

At any time, VA may recommend that
a conference (such as a design
development conference) be held in VA
7 Central Office in Washington, DC, to
8 provide an opportunity for the State and
9 its architects to discuss requirements for
10 a grant with VA officials.

(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.

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(Authority: 38 U.S.C. 101, 501, 511, 1710,
1742, 7101–7298, 8105, 8131–8137).

Recovery
period
(in years)

0–250 ........................................
251–500 ....................................
501–750 ....................................
751–1,000 .................................
1,001–1,250 ..............................
1,251–1,500 ..............................
1,501–1,750 ..............................
1,751–2,000 ..............................
2,001–2,250 ..............................
2,251–2,500 ..............................
2,501–2,750 ..............................
2,751–3,000 ..............................
Over 3,000 ................................

§ 59.120

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.

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.

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(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

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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 ............................................................................................................................................................
Assistant administrator ............................................................................................................................................
Medical officer, director of nursing or equivalent ....................................................................................................
Nurse and dictation area .........................................................................................................................................
General administration (each office/person) ...........................................................................................................
Clerical staff (each) .................................................................................................................................................
Computer area .........................................................................................................................................................
Conference room (consultation area, in-service training) .......................................................................................
Lobby/waiting area. (150 minimum/600 maximum per facility) ...............................................................................
Public/resident toilets (male/female) .......................................................................................................................
Pharmacy 1.
Dietetic service 1.
Dining area ..............................................................................................................................................................
Canteen/retail sales .................................................................................................................................................
Vending machines (450 max. per facility) ...............................................................................................................
Resident toilets (male/female) .................................................................................................................................
Child day care 1.
Medical support (staff offices/exam/treatment room/family counseling, etc.) .........................................................
Barber and/or beauty shops ....................................................................................................................................
Mail room .................................................................................................................................................................
Janitor’s closet .........................................................................................................................................................
Multipurpose room ...................................................................................................................................................
Employee lockers ....................................................................................................................................................
Employee lounge (500 max. per facility) .................................................................................................................
Employee toilets ......................................................................................................................................................
Chapel .....................................................................................................................................................................
Physical therapy ......................................................................................................................................................
Office, if required .....................................................................................................................................................
Occupational therapy ...............................................................................................................................................
Office, if required .....................................................................................................................................................
Library ......................................................................................................................................................................
Building maintenance storage .................................................................................................................................
Resident storage .....................................................................................................................................................
General warehouse storage ....................................................................................................................................
Medical/dietary/pharmacy ........................................................................................................................................
General laundry 1.
II. Bed units:
One ..........................................................................................................................................................................

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200
150
150
120
120
80
40
500 (for each room)
3 (per bed)
25 (per fixture)
20 (per bed)
2 (per bed)
1 (per bed)
25 (per fixture)
140 (for each room)
140
120
40
15 (per bed)
6 (per employee)
120
25 (per fixture)
450
5 (per bed)
120
5 (per bed).
120
1.5 (per bed)
2.5 (per bed)
6 (per bed)
6 (per bed)
7 (per bed)
150

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33855

TABLE TO PARAGRAPH (B)—NURSING HOME—Continued
Two ..........................................................................................................................................................................
Large two-bed per unit ............................................................................................................................................
Four .........................................................................................................................................................................
Lounge areas (resident lounge with storage) .........................................................................................................
Resident quiet room ................................................................................................................................................
Clean utility ..............................................................................................................................................................
Soiled utility .............................................................................................................................................................
Linen storage ...........................................................................................................................................................
General storage .......................................................................................................................................................
Nurses station, ward secretary ................................................................................................................................
Medication room ......................................................................................................................................................
Exam/Treatment room .............................................................................................................................................
Waiting area ............................................................................................................................................................
Unit supply and equipment ......................................................................................................................................
Staff toilet .................................................................................................................................................................
Stretcher/wheelchair storage ...................................................................................................................................
Kitchenette ...............................................................................................................................................................
Janitor’s closet .........................................................................................................................................................
Resident laundry ......................................................................................................................................................
Trash collection .......................................................................................................................................................
III. Bathing and Toilet Facilities:
(A) Private or shared facilities:
Wheelchair facilities ..........................................................................................................................................
Standard facilities .............................................................................................................................................
(B) Full bathroom .....................................................................................................................................................
(C) Congregate bathing facilities:
First tub/shower ................................................................................................................................................
Each additional fixture ......................................................................................................................................

245
305
460
8 (per bed)
3 (per bed)
120
105
150
100
260
75
140
50
50
25 (per fixture)
100
150
40
125
60
25 (per fixture)
15 (per fixture)
75
80
25

1 The 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:

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(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

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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.

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TABLE TO PARAGRAPH (E)—ADULT DAY HEALTH CARE

I. Support facilities [allowable square feet (or metric equivalent) per facility for VA participation]:
Program Director .....................................................................................................................................................
Assistant administrator ............................................................................................................................................
Medical officer, director of nursing or equivalent ....................................................................................................
Nurse and dictation area .........................................................................................................................................
General administration (each office/person) ...........................................................................................................
Clerical staff (each) .................................................................................................................................................
Computer area .........................................................................................................................................................
Conference room (consultation area, in-service training) .......................................................................................
Lobby/receiving/waiting area (150 minimum) ..........................................................................................................
Public/resident toilets (male/female) .......................................................................................................................
Dining area (may be included in the multipurpose room) .......................................................................................
Vending machines ...................................................................................................................................................
Participant toilets (male/female) ..............................................................................................................................
Medical support (staff offices/family counseling, etc.) ............................................................................................
Janitor’s closet .........................................................................................................................................................
Dividable multipurpose room ...................................................................................................................................
Employee lockers ....................................................................................................................................................
Employee lounge .....................................................................................................................................................
Employee toilets ......................................................................................................................................................
Physical therapy ......................................................................................................................................................
Office, if required .....................................................................................................................................................
Occupational therapy ...............................................................................................................................................
Office, if required .....................................................................................................................................................
Building maintenance storage .................................................................................................................................
Resident storage .....................................................................................................................................................
General warehouse storage ....................................................................................................................................
Medical/dietary .........................................................................................................................................................
General laundry 1 .....................................................................................................................................................
II. Other Areas:
Participant quiet room .............................................................................................................................................
Clean utility ..............................................................................................................................................................
Soiled utility .............................................................................................................................................................
General storage .......................................................................................................................................................
Nurses station, ward secretary ................................................................................................................................
Medication/exam/treatment rooms ..........................................................................................................................
Waiting area ............................................................................................................................................................
Program supply and equipment ..............................................................................................................................
Staff toilet .................................................................................................................................................................
Wheelchair storage ..................................................................................................................................................
Kitchen .....................................................................................................................................................................
Janitor’s closet .........................................................................................................................................................
Resident laundry ......................................................................................................................................................
Trash collection .......................................................................................................................................................
III. Bathing and Toilet Facilities:
(A) Private or shared facilities:
Wheelchair facilities ..........................................................................................................................................
Standard facilities .............................................................................................................................................
(B) Full bathroom .....................................................................................................................................................

200
150
150
120
120
80
40
500 (for each room).
3 (per participant)
25 (per fixture).
20 (per participant).
1 (per participant).
25 (per fixture).
140 (for each room).
40
15 (per participant).
6 (per employee)
120
25 (per fixture).
5 (per participant).
120
5 (per participant).
120
2.5 (per participant).
6 (per participant).
6 (per participant).
7 (per participant).
3 (per participant).
120
105
100
260
75
50
50
25 (per fixture).
100
120
40
125
60
25 (per fixture).
15 (per fixture).
75

1 The 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).

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§ 59.170

Forms.

All forms set forth in this part are
available on the Internet at http://

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www.va.gov/About_VA/Orgs/VHA/
VHAProg.htm.
BILLING CODE 8330–01–P

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

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.
SUMMARY:

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
ADDRESSES:

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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

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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—

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