Federal Register /Vol. 66, No. 123/Tuesday, June 26, 2001 ... · a.m. and 4:30 p.m., Monday through...

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

173.55(a)(3)(ii). We will consider allcomments received during the commentperiod and may change 33 CFR173.55(a)(3) in response to thecomments.

Dated: June 19, 2001.Kenneth T. Venuto,Rear Admiral, U.S. Coast Guard, ActingAssistant Commandant for Operations.

For the reasons set forth in thepreamble, 33 CFR part 173 is amendedas follows:

PART 173—VESSEL NUMBERING ANDCASUALTY AND ACCIDENTREPORTING

1. The authority citation for part 173continues to read as follows:

Authority: 31 U.S.C. 9701; 46 U.S.C. 2110,6101, 12301, 12302; OMB Circular A–25; 49CFR 1.46.

§ 173.55 [Amended]

2. In § 173.55 in paragraph (a)(3), thetext reading ‘‘Damage to vessels andother property totals $2000 or more orthere is a complete loss of any vessel;or’’ is designated as paragraph (a)(3)(i),and the remainder of the paragraph isdesignated as paragraph (a)(3)(ii) andsuspended indefinitely.[FR Doc. 01–15838 Filed 6–25–01; 8:45 am]BILLING CODE 4910–15–U

DEPARTMENT OF VETERANSAFFAIRS

38 CFR Parts 17 and 59

RIN 2900–AJ43

Grants to States for Construction andAcquisition of State Home Facilities

AGENCY: Department of Veterans Affairs.ACTION: Interim final rule.

SUMMARY: This document establishesregulations regarding grants to States forthe construction or acquisition of Statehomes for furnishing domiciliary andnursing home care to veterans, or for theexpansion, remodeling, or alteration ofexisting State homes for furnishingdomiciliary, nursing home, or adult dayhealth care to veterans. This isnecessary to update the regulations andto implement statutory provisions,including provisions of the VeteransMillennium Health Care and BenefitsAct.

DATES: Effective Date: June 26, 2001.Comments must be received by VA onor before August 27, 2001.

The incorporation by reference ofcertain publications in this rule isapproved by the Director of the Office

of the Federal Register as of June 26,2001.ADDRESSES: Mail or hand-deliverwritten comments to: Director, Office ofRegulations Management (02D),Department of Veterans Affairs, 810Vermont Ave., NW., Room 1154,Washington, DC 20420; or fax commentsto (202) 273–9289; or e-mail commentsto [email protected] should indicate that they aresubmitted in response to ‘‘RIN 2900–AJ43.’’ All comments received will beavailable for public inspection in theOffice of Regulations Management,Room 1158, between the hours of 8:00a.m. and 4:30 p.m., Monday throughFriday (except holidays).FOR FURTHER INFORMATION CONTACT:Frank Salvas, Chief, State HomeConstruction Grant Program (114),Veterans Health Administration, 202–273–8534.SUPPLEMENTARY INFORMATION: Thisdocument establishes regulationsregarding grants to States for theconstruction or acquisition of Statehomes for furnishing domiciliary andnursing home care to veterans, or for theexpansion, remodeling, or alteration ofexisting State homes for furnishingdomiciliary, nursing home, or adult dayhealth care to veterans. The rule, whichis set forth in a new 38 CFR part 59,consists of a comprehensive rewrite ofthe regulations set forth in 38 CFR17.210 through 17.222. The substantivedifferences from the previousregulations are discussed below.

Public Law 102–585 changed from 90days to 180 days the time limit forStates receiving a conditionally-approved grant to fully comply with therequirements for a grant. The rulereflects this statutory provision.

Under authority of Public Law 104–262 (enacted on October 9, 1996), therule includes provisions for awardinggrants to States to expand, remodel, oralter existing buildings for furnishingadult day health care.

The rule also includes provisions toimplement statutory provisionsestablished by the Veterans MillenniumHealth Care and Benefits Act (PublicLaw 106–117, enacted on November 30,1999). This Act made the followingchanges that are reflected in the rule:

• The Act requires VA to prescribe foreach State the number of nursing homeand domiciliary beds for which grantsmay be furnished. This is required to bebased on the projected demand fornursing home and domiciliary care onNovember 30, 2009 (10 years after thedate of enactment of the VeteransMillennium Health Care and BenefitsAct (Pub. L. 106–117)), by veterans who

at such time are 65 years of age or olderand who reside in that State. Indetermining the projected demand, VAmust take into account travel distancesfor veterans and their families.

• The Act sets forth new criteria fordetermining the order of priority forgrants for projects, including provisionsregarding whether the need for a bed-producing project is great, significant, orlimited.

• The Act provides that VA may notaccord any priority to projects for theconstruction or acquisition of a hospital.

• The Act provides that a State maynot request a grant for a project forwhich the total cost of construction isnot in excess of $400,000.

• The Act provides that a grant maynot include maintenance and repairwork.

• The Act requires an application fora grant for construction or acquisition ofa nursing home or a domiciliary facilityto include the following in theapplication for a grant:

(1) Documentation that the site of theproject is in reasonable proximity to asufficient concentration and populationof veterans that are 65 years of age andolder and that there is a reasonable basisto conclude that the facility whencomplete will be fully occupied,

(2) A financial plan for the first threeyears of operation of such facility, and

(3) A five-year capital plan for theState home program for that State.

The rule also includes provisions toreflect that, under Public Law 106–419,VA will not recapture amounts for all orportions of a facility that was changedto an outpatient clinic established andoperated by VA.

As noted above, the VeteransMillennium Health Care and BenefitsAct sets forth new criteria fordetermining the order of priority forgrants for projects. We have also creatednew subpriorities for each prioritycategory that reflect the statutorypriority scheme. In addition, furthersubpriorities in ‘‘priority group 1—subpriority 1’’ are established to givehigher priorities to the most urgentlyneeded projects. Further subpriorities in‘‘priority group 1—subpriority 4’’ areestablished to give higher priority toprojects that we have determined aremost needed for care of veterans. As alast resort for ties in subpriorities, therule will give projects priority based onthe earliest dates of receipt by VA ofapplications.

For a State’s application to beincluded in priority group 1, a Statemust have made sufficient fundsavailable for the project for which thegrant is requested so that such projectmay proceed upon approval of the grant

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

without further action required by theState (such as subsequent issuance ofbonds) to make such funds available forsuch purpose. To meet this criteria, theState must provide to VA a letter froman authorized State budget officialcertifying that the State funds are, orwill be, available for the project, so thatif VA awards the grant, the project mayproceed without further State action tomake such funds available. If thecertification is based on an Actauthorizing the project and makingavailable the State’s matching funds forthe project, a copy of the Act must besubmitted with the certification.

Previously, at the time of prioritizingapplications, instead of the wholeamount, a State was merely required toprovide a copy of an Act makingavailable at least one-half of the State’smatching funds for the project. Wepropose to require the full amount forpriority group 1 applications. Thechange to require the full amount isnecessary to help ensure that the Statewill actually have all of the fundsavailable as needed for the projectwithout having to take further actionwhich could delay the construction ofthe State home.

As noted above, the VeteransMillennium Health Care and BenefitsAct requires VA to prescribe for eachState the number of nursing home anddomiciliary beds for which grants maybe furnished. This is required to bebased on the projected demand fornursing home and domiciliary care onNovember 30, 2009 (10 years after thedate of enactment of the Act), byveterans who at such time are 65 yearsof age or older and who reside in thatState. As described below, weestablished the maximum number foreach State in accordance with thatcriteria.

To determine the maximum numberof nursing home beds for each State, westarted with the national nursing homeutilization by males 65 and older whichcame from the Medical ExpenditurePanel Survey (MEPS) conducted by theDepartment of Health and HumanServices in 1996. The MEPS includesnursing home utilization by age groupand by level of dependency in activitiesof daily living (ADL). Based on theassumptions that the national nursinghome use rate for males would beapproximately the same for veterans andnon-veterans, and that the projectednumber of female veterans over 65would be very small, we applied thenational rate to the projected male andfemale veteran population 65 years andolder in 2009 in each State. Wemultiplied the resulting number foreach State by 11.5 percent. This

percentage represents the projectednational State nursing home reliancefactor projected for VA for 2009. Wealso project that the VA nationalreliance factor for VA nursing homesand community nursing homes will be11.5 percent for 2009. These percentagesare based upon recent historical andprojected data in VA’s market share inproviding nursing home care forveterans.

To determine the maximum numberof domiciliary beds for each Stateprojected to 2009, we applied thecurrent age-specific utilization rates inexisting State home domiciliaries to theprojected veteran population 65 yearsand older in 2009 by State.

The maximum number of State homebeds by State was then derived byadding the projected number of Statenursing home beds for 2009 to theprojected number of State domiciliarybeds for 2009.

The ‘‘natural break points’’ (large gapsbetween groups of numbers representingmaximum beds needed for States) in thelist of maximum State home beds byState are utilized to define great,significant and limited need for beds. AState with great need is a State with noState home beds or with a need for 2000or more beds; a State with significantneed is a State with a need for 1000–1999 beds; and a State with limitedneed is a State with a need for less than1000 beds.

For purposes of great, significant, andlimited need for beds, the maximumnumber of State home nursing homeand domiciliary beds for each State isthe number in the chart in § 59.40 forthe State, minus the sum of the numberof nursing home and domiciliary bedsalready in operation at State homefacilities, and the number of State homenursing home and domiciliary beds notyet in operation but for which a granthas either been requested or awarded.The numbers for making thesecalculations will be made available tothe public on a VA website at http://www.va.gov/About_VA/Orgs/VHA/VHAProg.htm.

As noted above, the VeteransMillennium Health Care and BenefitsAct requires that in considering thenumber of nursing home anddomiciliary beds for which grants maybe furnished, VA must take into accounttravel distances for veterans and theirfamilies. In this regard, the rule statesthat a State may request a grant for aproject that would increase the totalnumber of State home nursing homeand domiciliary beds beyond themaximum number for that State if theState submits to the Chief Consultant,Geriatrics and Extended Care,

documentation to establish a need for anexception based on travel distances of atleast two hours (by land transportationor any other usual mode oftransportation if land transportation isnot available) between a veteranpopulation center sufficient for theestablishment of a State home and anyexisting State home. We believe this isa reasonable method for meeting thestatutory requirement.

The rule contains constructionrequirements for facilities that wouldfurnish nursing home care, domiciliarycare, and adult day health care(§§ 59.121 through 59.170). Theconstruction requirements for nursinghomes are consistent with theconstruction requirements that wererecently established for per diem fornursing home care of veterans in Statehomes (38 CFR part 51). The proposedconstruction requirements fordomiciliaries are the same as those fornursing homes because the constructionneeds are the same. The constructionrequirements for adult day health careare consistent with the proposedconstruction requirements for per diemfor adult day health care of veterans inState homes (65 FR 39835).

The rule incorporates by reference the2000 edition of the National FireProtection Association Life Safety Codeentitled ‘‘NFPA 101, Life Safety Code’’and the 1999 edition of the NFPA 99,Standard for Health Care Facilities(1999 edition). The regulations aredesigned to ensure that State homesmeet these national standards for fireand safety.

Administrative Procedure ActPursuant to 5 U.S.C. 553, we have

found for this rule that notice andpublic procedure are impracticable,unnecessary, and contrary to the publicinterest and that we have good cause todispense with notice and comment onthis rule and to dispense with a 30-daydelay of its effective date. The Veterans’Millennium Health Care and BenefitsAct provides that the Secretary shallprescribe provisions in this rule to beused for awarding grants for fiscal year2002. Without this rule becomingeffective immediately, States would nothave sufficient time to meet therequirements for inclusion on thepriority list for obtaining a grant forfiscal year 2002.

Regulatory Flexibility ActThe Secretary hereby certifies that the

adoption of this proposed rule wouldnot have a significant economic impacton a substantial number of small entitiesas they are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601–612. All of



the entities that would be subject to thisproposed rule are State governmententities under the control of Stategovernments. Of the 100 State homes,all are operated by State governmentsexcept for 17 that are operated byentities under contract with Stategovernments. These contractors are notsmall entities. Therefore, pursuant to 5U.S.C. 605(b), this proposed rule isexempt from the initial and finalregulatory flexibility analysisrequirement of sections 603 and 604.

Executive Order 12866The Office of Management and Budget

has reviewed this interim final ruleunder Executive Order 12866.

Unfunded MandatesThe Unfunded Mandates Reform Act

requires (in section 202) that agenciesprepare an assessment of anticipatedcosts and benefits before developing anyrule that may result in an expenditureby State, local, or tribal governments, inthe aggregate, or by the private sector of$100 million or more in any given year.This rule would have no consequentialeffect on State, local, or tribalgovernments.

Paperwork Reduction ActThis rule is exempt from the

collections of information requirementsunder the Paperwork Reduction Act (44U.S.C. 3501–3520). The rule onlyapplies to States. Further, in 2000, VAreceived applications for grants fromonly six States and we expect that eachyear fewer than 10 States will submitapplications. If VA expects to receive 10or more applications in any year, wewill seek approval under the PaperworkReduction Act for this collection ofinformation.

List of Subjects

38 CFR Part 17Administrative practice and

procedure, Alcohol abuse, Alcoholism,Claims, Day care, Dental health, Drugabuse, Foreign relations, Governmentcontracts, Grant programs-health,Government programs-veterans, Healthcare, Health facilities, Healthprofessions, Health records, Homeless,Medical and dental schools, Medicaldevices, Medical research, Mentalhealth programs, Nursing home care,Philippines, Reporting andrecordkeeping requirements,Scholarships and fellowships, Traveland transportation expenses, Veterans.

38 CFR Part 59Administrative practice and

procedure, Alcohol abuse, Alcoholism,Claims, Day care, Dental health, Drug

abuse, Foreign relations, Governmentcontracts, Grant programs-health,Government programs-veterans, Healthcare, Health facilities, Healthprofessions, Health records, Homeless,Incorporation by reference, Medical anddental schools, Medical devices,Medical research, Mental healthprograms, Nursing home care,Philippines, Reporting andrecordkeeping requirements,Scholarships and fellowships, Traveland transportation expenses, Veterans.

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

For the reasons set out in thepreamble, 38 CFR Chapter I is amendedas follows:

PART 17—MEDICAL

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

Authority: 38 U.S.C. 501, 1721, unlessotherwise noted.

2. Immediately after § 17.200, removethe undesignated center heading, thenote, and §§ 17.210 through 17.222.

3. A new part 59 is added to read asfollows:

PART 59—GRANTS TO STATES FORCONSTRUCTION OR ACQUISITION OFSTATE HOMES

Sec.59.1 Purpose.59.2 Definitions.59.3 Federal Application Identifier.59.4 Decisionmakers, notifications, and

additional information.59.5 Submissions of information and

documents to VA.59.10 General requirements for a grant.59.20 Initial application requirements.59.30 Documentation.59.40 Maximum number of nursing home

care and domiciliary care beds forveterans by State.

59.50 Priority list.59.60 Additional application requirements.59.70 Award of grants.59.80 Amount of grant.59.90 Line item adjustments to grants.59.100 Payment of grant award.59.110 Recapture provisions.59.120 Hearings.59.121 Amendments to application.59.122 Withdrawal of application.59.123 Conference.59.124 Inspections, audits, and reports.59.130 General requirements for all State

home facilities.59.140 Nursing home care requirements.59.150 Domiciliary care requirements.59.160 Adult day health care requirements.59.170 Forms.

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

§ 59.1 Purpose.

This part sets forth the mechanism fora State to obtain a grant:

(a) To construct State home facilities(or to acquire facilities to be used asState home facilities) for furnishingdomiciliary or nursing home care toveterans, and

(b) To expand, remodel, or alterexisting buildings for furnishingdomiciliary, nursing home, adult dayhealth, or hospital care to veterans inState homes.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.2 Definitions.

For the purpose of this part:Acquisition means the purchase of a

facility in which to establish a Statehome for the provision of domiciliaryand/or nursing home care to veterans.

Adult day health care is atherapeutically-oriented outpatient dayprogram, which provides healthmaintenance and rehabilitative servicesto participants. The program mustprovide individualized care deliveredby an interdisciplinary health care teamand support staff, with an emphasis onhelping participants and their caregiversto develop the knowledge and skillsnecessary to manage care requirementsin the home. Adult day health care isprincipally targeted for complexmedical and/or functional needs ofelderly veterans.

Construction means the constructionof new domiciliary or nursing homebuildings, the expansion, remodeling, oralteration of existing buildings for theprovision of domiciliary, nursing home,or adult day health care, or hospital carein State homes, and the provision ofinitial equipment for any suchbuildings.

Domiciliary care means providingshelter, food, and necessary medicalcare on an ambulatory self-care basis(this is more than room and board). Itassists eligible veterans who aresuffering from a disability, disease, ordefect of such a degree thatincapacitates veterans from earning aliving, but who are not in need ofhospitalization or nursing care services.It assists in attaining physical, mental,and social well-being through specialrehabilitative programs to restoreresidents to their highest level offunctioning.

Nursing home care means theaccommodation of convalescents orother persons who are not acutely illand not in need of hospital care, butwho require skilled nursing care andrelated medical services.



Secretary means the Secretary of theUnited States Department of VeteransAffairs.

State means each of the several States,the District of Columbia, the VirginIslands, and the Commonwealth ofPuerto Rico.

State representative means the officialdesignated in accordance with Stateauthority with responsibility for mattersrelating to the request for a grant underthis part.

VA means the United StatesDepartment 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 FederalApplication Identifier Number for aproject, the number must be includedon all subsequent writtencommunications to VA from the State,or its agent, regarding a request for agrant for that project under this part.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.4 Decisionmakers, notifications, andadditional information.

The decisionmaker for decisionsrequired under this part will be theChief Consultant, Geriatrics andExtended Care, unless specified to bethe Secretary or other VA official. TheVA decisionmaker will provide writtennotice to affected States of approvals,denials, or requests for additionalinformation under this part.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.5 Submissions of information anddocuments to VA.

All submissions of information anddocuments required to be presented toVA must be made, unless otherwisespecified under this part, to the ChiefConsultant, Geriatrics and ExtendedCare (114), VA Central Office, 810Vermont Avenue, NW., Washington, DC20420.(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 initialapplication for the grant must beapproved under § 59.20, and the projectmust be ranked sufficiently high on thepriority list for the current fiscal year sothat funding is available for the project.It must meet the additional applicationrequirements in § 59.60, and it mustmeet all other requirements under thispart for obtaining a grant and grantfunds.

(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 § 59.50of this part for the next fiscal year, aState must submit to VA an original andone copy of a completed VA Form 10–0388 and all information,documentation, and other formsspecified by VA form 10–0388 (theseforms are set forth at § 59.170 of thispart).

(b) The Secretary, based on theinformation submitted for a projectpursuant to paragraph (a) of this section,will approve the project for inclusion onthe priority list in § 59.50 of this part ifthe submission includes all of theinformation requested under paragraph(a) of this section and if the submissionrepresents a project that, if furtherdeveloped, could meet the requirementsfor a grant under this part.

(c) The information requested underparagraph (a) of this section should besubmitted to VA by April 15, and mustbe received by VA by August 15, if theState wishes an application to beincluded on the priority list for theaward of grants during the next fiscalyear.

(d) If a State representative believesthat VA may not award a grant to theState for a grant application during thecurrent fiscal year and wants to ensurethat VA includes the application on thepriority list for the next fiscal year, theState representative must, prior toAugust 15 of the current fiscal year,

(1) Request VA to include theapplication in those recommended tothe Secretary for inclusion on thepriority 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 mustsubmit to VA documentation that thesite of the project is in reasonableproximity to a sufficient concentrationand population of veterans that are 65years of age and older and that there isa reasonable basis to conclude that thefacility when complete will be fullyoccupied. This documentation must beincluded in the initial applicationsubmitted to VA under § 59.20.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.40 Maximum number of nursing homecare and domiciliary care beds for veteransby State.

(a) Except as provided in paragraph(b) of this section, a State may not

request a grant for a project to constructor acquire a new State home facility, toincrease the number of beds available ata State home facility, or to replace bedsat a State home facility if the projectwould increase the total number of Statehome nursing home and domiciliarybeds beyond the maximum numberdesignated for that State. The maximumnumber of State home nursing homeand domiciliary beds designated foreach State is (for maximum numbers seeVA website at http://www.va.gov/About_VA/Orgs/VHA/VHAProg.htm).the number in the following chart forthe State, minus the sum of the numberof nursing home and domiciliary bedsalready in operation at State homefacilities, and the number of State homenursing home and domiciliary beds notyet in operation but for which a granthas either been requested or awardedunder this part (the availability of VAand community nursing home beds ineach State will also be considered at thetime of grant application for bed-producing projects):

State

State homenursing home

and domi-ciliary beds

Alabama .................................. 883Alaska ..................................... 79Arizona .................................... 1,068Arkansas ................................. 557California ................................. 5,754Colorado ................................. 717Connecticut ............................. 738Delaware ................................. 165District of Columbia ................ 104Florida ..................................... 4,471Georgia ................................... 1,202Hawaii ..................................... 216Idaho ....................................... 233Illinois ...................................... 2,271Indiana .................................... 1,209Iowa ........................................ 632Kansas .................................... 542Kentucky ................................. 759Louisiana ................................ 785Maine ...................................... 301Maryland ................................. 1,020Massachusetts ........................ 1,348Michigan ................................. 1,896Minnesota ............................... 932Mississippi .............................. 500Missouri .................................. 1,230Montana .................................. 198Nebraska ................................ 355Nevada ................................... 428New Hampshire ...................... 264New Jersey ............................. 1,683New Mexico ............................ 344New York ................................ 3,220North Carolina ........................ 1,454North Dakota .......................... 121Ohio ........................................ 2,530Oklahoma ............................... 747Oregon .................................... 804Pennsylvania .......................... 3,173Puerto Rico ............................. 350Rhode Island .......................... 254



State

State homenursing home

and domi-ciliary beds

South Carolina ........................ 750South Dakota .......................... 155Tennessee .............................. 1,050Texas ...................................... 3,226Utah ........................................ 304Vermont .................................. 124Virginia .................................... 1,312Virgin Islands .......................... 8Washington ............................. 1,215West Virginia .......................... 455Wisconsin ............................... 1,070Wyoming ................................. 93

Note to paragraph (a): The provisions of 38U.S.C. 8134 require VA to prescribe for eachState the number of nursing home anddomiciliary beds for which grants may befurnished. This is required to be based on theprojected demand for nursing home anddomiciliary care on November 30, 2009 (10years after the date of enactment of theVeterans Millennium Health Care andBenefits Act (P.L. 106–117)), by veterans whoat such time are 65 years of age or older andwho reside in that State. In determining theprojected demand, VA must take intoaccount travel distances for veterans andtheir families.

(b) A State may request a grant for aproject that would increase the totalnumber of State nursing home anddomiciliary beds beyond the maximumnumber for that State, if the Statesubmits to VA, documentation toestablish a need for the exception basedon travel distances of at least two hours(by land transportation or any otherusual mode of transportation if landtransportation is not available) betweena veteran population center sufficientfor the establishment of a State homeand any existing State home. Thedetermination regarding a request for anexception 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 werereceived on or before August 15 and thatwere approved under § 59.20 of thispart. Except as provided in paragraphs(b) and (c) of this section, applicationswill be prioritized from the highest tothe lowest in the following order:

(1) Priority group 1. An applicationfrom a State that has made sufficientfunds available for the project for which

the grant is requested so that suchproject may proceed upon approval ofthe grant without further action requiredby the State (such as subsequentissuance of bonds) to make such fundsavailable for the project. To meet thiscriteria, the State must provide to VA aletter from an authorized State budgetofficial certifying that the State fundsare, or will be, available for the project,so that if VA awards the grant, theproject may proceed without furtherState action to make such fundsavailable (such as further action to issuebonds). If the certification is based on anAct authorizing the project and makingavailable the State’s matching funds forthe project, a copy of the Act must besubmitted with the certification.

(i) Priority group 1—subpriority 1. Anapplication for a project to remedy acondition, or conditions, at an existingfacility that have been cited asthreatening to the lives or safety of theresidents in the facility by a VA LifeSafety Engineer, a State or localgovernment agency (including a FireMarshal), or an accrediting institution(including the Joint Commission onAccreditation of HealthcareOrganizations). This priority group doesnot include applications for the additionor replacement of building utilitysystems, such as heating and airconditioning systems or buildingfeatures, such as roof replacements.Projects in this subpriority will befurther prioritized in the followingorder: seismic; building construction;egress; building compartmentalization(e.g., smoke barrier, fire walls); firealarm/detection; asbestos/hazardousmaterials; and all other projects. Projectsin this subpriority will be furtherprioritized based on the date theapplication for the project was receivedin VA (the earlier the application wasreceived, the higher the priority given).

(ii) Priority group 1—subpriority 2. Anapplication from a State that has notpreviously applied for a grant under 38U.S.C. 8131–8137 for construction oracquisition of a State nursing home.Projects in this subpriority will befurther prioritized based on the date theapplication for the project was receivedin VA (the earlier the application wasreceived, the higher the priority given).

(iii) Priority group 1—subpriority 3.An application for construction oracquisition of a nursing home ordomiciliary from a State that has a great

need for the beds that the State, in thatapplication, proposes to establish.Projects in this subpriority will befurther prioritized based on the date theapplication for the project was receivedin VA (the earlier the application wasreceived, the higher the priority given).

(iv) Priority group 1—subpriority 4.An application from a State forrenovations to a State Home facilityother than renovations that would beincluded in subpriority 1 of Prioritygroup 1. Projects will be furtherprioritized in the following order: adultday health care construction; nursinghome construction (e.g., patientprivacy); code compliance under theAmericans with Disabilities Act;building systems and utilities (e.g.,electrical; heating, ventilation, and airconditioning (HVAC); boiler; medicalgasses; roof; elevators); clinical-supportfacilities (e.g., for dietetics, laundry,rehabilitation therapy); and generalrenovation/upgrade (e.g., warehouse,storage, administration/office,multipurpose). Projects in thissubpriority will be further prioritizedbased on the date the application for theproject was received in VA (the earlierthe application was received, the higherthe priority given).

(v) Priority group 1—subpriority 5. Anapplication for construction oracquisition of a nursing home ordomiciliary from a State that has asignificant need for the beds that theState in that application proposes toestablish. Projects in this subprioritywill be further prioritized based on thedate the application for the project wasreceived in VA (the earlier theapplication was received, the higher thepriority given).

(vi) Priority group 1—subpriority 6.An application for construction oracquisition of a nursing home ordomiciliary from a State that has alimited need for the beds that the State,in that application, proposes toestablish. Projects in this subprioritywill be further prioritized based on thedate the application for the project wasreceived in VA (the earlier theapplication was received, the higher thepriority given).

Note to paragraph (a)(1): The followingchart is intended to provide a graphic aid forunderstanding Priority group 1 and itssubpriorities.

BILLING CODE 8320–01–P



BILLING CODE 8320–01–C



(2) Priority group 2. An applicationnot meeting the criteria of paragraph(a)(1) of this section but meeting thecriteria of paragraph (a)(1)(i) of thissection. Projects within this prioritygroup will be further prioritized thesame as in paragraph (a)(1)(i) of thissection.

(3) Priority group 3. An applicationnot meeting the criteria of paragraph(a)(1) of this section but meeting thecriteria of paragraph (a)(1)(ii) of thissection. Projects within this prioritygroup will be further prioritized thesame as in paragraph (a)(1)(ii) of thissection.

(4) Priority group 4. An applicationnot meeting the criteria of paragraph(a)(1) of this section but meeting thecriteria of paragraph (a)(1)(iii) of thissection. Projects within this prioritygroup will be further prioritized thesame as in paragraph (a)(1)(iii) of thissection.

(5) Priority group 5. An applicationnot meeting the criteria of paragraph(a)(1) of this section but meeting thecriteria of paragraph (a)(1)(iv) of thissection. Projects within this prioritygroup will be further prioritized thesame as in paragraph (a)(1)(iv) of thissection.

(6) Priority group 6. An applicationnot meeting the criteria of paragraph(a)(1) of this section but meeting thecriteria of paragraph (a)(1)(v) of thissection. Projects within this prioritygroup will be further prioritized thesame as in paragraph (a)(1)(v) of thissection.

(7) Priority group 7. An applicationnot meeting the criteria of paragraph(a)(1) of this section but meeting thecriteria of paragraph (a)(1)(vi) of thissection. Projects within this prioritygroup will be further prioritized thesame as in paragraph (a)(1)(vi) of thissection.

(b) An application will be givenhighest priority on the priority list forthe next fiscal year within the prioritygroup to which it is assigned inparagraph (a) of this section (withoutconsideration of subpriorities) if:

(1) During the current fiscal year theState accepted a grant for thatapplication that was less than theamount that would have been awardedif VA had sufficient appropriations toaward the full amount of the grantrequested; and

(2) The application was the lowest-ranking application on the priority listfor the current fiscal year for whichgrant funds were available.

(c) An application will be givenpriority on the priority list (afterapplications described in paragraph (b)of this section) for the next fiscal year

ahead of all applications that had notbeen approved under § 59.20 on the datethat the application was approved under§ 59.20, if:

(1) During the current fiscal year VAwould have awarded a grant based onthe application except for the fact thatVA determined that the State did not, byJuly 1, provide evidence that it had itsmatching funds for the project, and

(2) The State was notified prior to July1 that VA had funding available for thisgrant application.

(d) The priority list will not containany project for the construction oracquisition of a hospital or hospitalbeds.

(e) For purposes of establishingpriorities under this section:

(1) A State has a great need fornursing home and domiciliary beds ifthe State:

(i) Has no State homes with nursinghome or domiciliary beds, or

(ii) Has an unmet need of 2,000 ormore nursing home and domiciliarybeds;

(2) A State has a significant need fornursing home and domiciliary beds ifthe State has an unmet need of 1,000 to1,999 nursing home and domiciliarybeds; and

(3) A State has a limited need fornursing home and domiciliary beds ifthe State has an unmet need of 999 orfewer nursing home and domiciliarybeds.

(f) Projects that could be placed inmore than one subpriority will beplaced in the subpriority toward whichthe preponderance of the cost of theproject is allocated. For example, underpriority group 1—subpriority 1, if aproject for which 25 percent of thefunds needed would concern seismicand 75 percent of the funds neededwould concern building construction,the project would be placed in thesubpriority for building construction.

(g) Once the Secretary prioritizes theapplications in the priority list, VA willnot change the priorities unless achange is necessary as a result of anappeal.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.60 Additional applicationrequirements.

For a project to be eligible for a grantunder this part for the fiscal year forwhich the priority list was made, duringthat fiscal year the State must submit toVA an original and a copy of thefollowing:

(a) Complete, updated StandardForms 424 (mark the box labeledapplication and submit the information

requested for an application), 424C, and424D (the forms are set forth at § 59.170of this part), and

(b) A completed VA Form 10–0388and all information and documentationspecified by VA Form 10–0388 (theform 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 madeunder this part, will:

(1) Award a grant for each applicationthat has been approved under § 59.20,that is sufficiently high on the prioritylist so that funding is available for theapplication, that meets the additionalapplication requirements in § 59.60, andthat meets all other requirements underthis part for obtaining a grant, or

(2) Conditionally approve a grant fora project for which a State hassubmitted an application thatsubstantially meets the requirements ofthis part if the State representativerequests conditional approval andprovides written assurance that theState will meet all requirements for agrant not later than 180 calendar daysafter the date of conditional approval. Ifa State that has obtained conditionalapproval for a project does not meet allof the requirements within 180 calendardays after the date of conditionalapproval, the Secretary will rescind theconditional approval and the projectwill be ineligible for a grant in the fiscalyear in which the State failed to fullycomplete the application. The fundsthat were conditionally obligated for theproject will be deobligated.

(b) As a condition of receiving a grant,a State must make sufficient fundsavailable for the project for which thegrant is requested so that such projectmay proceed upon approval of the grantwithout further action required by theState (such as subsequent issuance ofbonds) to make such funds available forsuch purpose. To meet this criteria, theState must provide to VA a letter froman authorized State budget officialcertifying that the State funds are, orwill be, available for the project, so thatif VA awards the grant, the project mayproceed without further State action tomake such funds available (such asfurther action to issue bonds). If thecertification is based on an Actauthorizing the project and makingavailable the State’s matching funds forthe project, a copy of the Act must besubmitted with the certification. To beeligible for inclusion in priority group 1under this part, a State must make suchfunds available by August 15 of the year



prior to the fiscal year for which thegrant is requested. To otherwise beeligible for a grant and grant fundsbased on inclusion on the priority list inother than priority group 1, a State mustmake such funds available by July 1 ofthe fiscal year for which the grant isrequested.

(c) As a condition of receiving a grant,the State representative and theSecretary will sign three originals of theMemorandum of Agreement documents(one for the State and two for VA). Asample 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 awardedunder this part may not be less than$400,000 and, except as provided inparagraph (i) of this section, the totalcost of a project will not exceed the totalcost of new construction. The amount ofa grant awarded under this part will bethe amount requested by the State andapproved in accordance with this part,not to exceed 65 percent of the total costof the project except that:

(1) The total cost of a project will notinclude the cost of space that exceedsthe maximum allowable space specifiedin this part, and

(2) The amount of the grant may beless than 65 percent of the total cost ofthe project if the State accepts lessbecause VA did not have sufficientfunds to award the full amount of thegrant requested.

(b) The total cost of a project underthis part for acquisition of a facility mayalso include construction costs.

(c) The total cost of a project underthis part will not include any costsincurred before the date VA sent theState written notification that theapplication in § 59.20 was approved.

(d) The total cost of a project underthis part may include administrationand production costs, e.g., architecturaland engineering fees, inspection fees,and printing and advertising costs.

(e) The total cost of a project underthis part may include the cost ofprojects on the grounds of the facility,e.g., parking lots, landscaping,sidewalks, streets, and storm sewers,only if they are inextricably involvedwith the construction of the project.

(f) The total cost of a project underthis part may include the cost ofequipment necessary for the operationof the State home facility. This mayinclude the cost of:

(1) Fixed equipment included in theconstruction or acquisition contract.Fixed equipment must be permanentlyaffixed to the building or connected to

the heating, ventilating, airconditioning, or other servicedistributed through the building viaducts, pipes, wires, or other connectingdevice. Fixed equipment must beinstalled during construction. Examplesof fixed equipment include kitchen andintercommunication equipment, built-incabinets, and cubicle curtain rods; and

(2) Other equipment not included inthe construction contract constitutingno more than 10 percent of the totalconstruction contract cost of the project.Other equipment includes: furniture,furnishings, wheeled equipment,kitchen utensils, linens, draperies,blinds, electric clocks, pictures andtrash cans.

(g) The contingency allowance maynot exceed five percent of the total costof the project for new construction oreight percent for renovation projects.

(h) The total cost of a project underthis 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, medicaldressings, paper, printed forms, andsoap) which are routinely used in aState home.

(i) A grant for expansion, remodeling,or alteration of an existing State home,which is on or eligible for inclusion inthe National Register of Historic Places,for furnishing domiciliary, nursinghome, or adult day health care toveterans may not be awarded for theexpansion, remodeling, or alteration ofsuch building if such action does notcomply with National HistoricPreservation Act procedures or if thetotal cost of remodeling, renovating, oradapting such building or facilityexceeds the cost of comparable newconstruction by more than five percent.If demolition of an existing building orfacility on, or eligible for inclusion in,the National Register of Historic Placesis deemed necessary and suchdemolition action is taken incompliance with National HistoricPreservation Act procedures, anymitigation cost negotiated in thecompliance process and/or the cost toprofessionally record the building orfacility in the Historic AmericanBuildings Survey (HABS), plus the totalcost for demolition and site restoration,shall be included by the State incalculating the total cost of newconstruction.

(j) The cost of demolition of abuilding cannot be included in the totalcost of construction unless the proposedconstruction is in the same location asthe building to be demolished or unlessthe demolition is inextricably linked tothe design of the construction project.

(k) With respect to the final award ofa conditionally-approved grant, theSecretary may not award a grant for anamount that is 10 percent more than theamount 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 424Cwhich is set forth in § 59.170(o) of thispart) of up to 10 percent (increase ordecrease) of the cost of the line item ifthe change would be within the scopeor objective of the project and would notchange 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 theState representative, the State home forwhich such project is being carried out,or any other State agency orinstrumentality. Such amount shall bepaid by way of reimbursement, and insuch installments consistent with theprogress of the project, as the ChiefConsultant, Geriatrics and ExtendedCare, may determine and certify forpayment to the appropriate Federalinstitution. Funds paid under thissection for an approved project shall beused solely for carrying out such projectas so approved. As a condition for thefinal payment, the State must complywith the requirements of this part basedon an architectural and engineeringinspection approved by VA, must obtainVA approval of the final equipment listsubmitted by the State representative,and must submit to VA a completed VAForm 10–0388 (see § 59.170(i)). Theequipment list and the completed VAform 10–0388 must be submitted to theChief Consultant, Geriatrics andExtended 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 Statehome for the purpose for which thegrant was made, the United States shallbe entitled to recover from the Statewhich was the recipient of the grant orfrom the then owner of suchconstruction as follows:

(a) If less than 20 years has lapsedsince the grant was awarded, and VAprovided 65 percent of the estimatedcost to construct, acquire or renovate a



State home facility principally forfurnishing domiciliary care, nursinghome care, adult day health care,hospital care, or non-institutional careto veterans, VA shall be entitled torecover 65 percent of the current valueof such facility (but in no event anamount greater than the amount ofassistance provided for such underthese regulations), as determined byagreement of the parties or by actionbrought in the district court of theUnited States for the district in whichthe facility is situated.

(b) Based on the time periods for grantamounts set forth below, if VA providedbetween 50 and 65 percent of theestimated cost of expansion,remodeling, or alteration of an existingState home facility, VA shall be entitledto recover the amount of the grant asdetermined by agreement of the partiesor by action brought in the district courtof the United States for the district inwhich the facility is situated:

Grant amount(dollars in thousands)

Recoveryperiod

(in years)

0–250 ........................................ 7251–500 .................................... 8501–750 .................................... 9751–1,000 ................................. 101,001–1,250 .............................. 111,251–1,500 .............................. 121,501–1,750 .............................. 131,751–2,000 .............................. 142,001–2,250 .............................. 152,251–2,500 .............................. 162,501–2,750 .............................. 172,751–3,000 .............................. 18Over 3,000 ................................ 20

(c ) If the magnitude of the VAcontribution is below 50 percent of theestimated cost of the expansion,remodeling, or alteration of an existingState home facility recognized by theDepartment of Veterans Affairs, theUnder Secretary for Health mayauthorize a recovery period between 7and 20 years depending on the grantamount involved and the magnitude ofthe project.

(d) This section does not apply to anyportion of a State home in which VAhas established and operates anoutpatient clinic.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.120 Hearings.If the Secretary determines that a

submission from a State does not meetthe requirements of this part, theSecretary will advise the State by letterthat a grant is tentatively denied,explain the reasons for the tentativedenial, and inform the State of theopportunity to appeal to the Board of

Veterans’ Appeals pursuant to 38 U.S.C.7105. Decisions under this part are notsubject to the provisions of § 17.133 ofthis order.(Authority: 38 U.S.C. 101, 501, 511, 1710,1742, 7101–7298, 8105, 8131–8137).

§ 59.121 Amendments to application.Any amendment of an application

that changes the scope of theapplication or changes the costestimates by 10 percent or more shall besubject to approval in the same manneras 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 awritten document requestingwithdrawal.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.123 Conference.At any time, VA may recommend that

a conference (such as a designdevelopment conference) be held in VACentral Office in Washington, DC, toprovide an opportunity for the State andits architects to discuss requirements fora grant with VA officials.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.124 Inspections, audits, and reports.(a) A State will allow VA inspectors

and auditors to conduct inspections andaudits as necessary to ensurecompliance with the provisions of thispart. The State will provide evidencethat it has met its responsibility underthe Single Audit Act of 1984 (see part41 of this chapter) and submit thatevidence to VA.

(b) A State will make such reports insuch form and containing suchinformation as the Chief Consultant,Geriatrics and Extended Care, may fromtime to time reasonably require and givethe Chief Consultant, Geriatrics andExtended Care, upon demand, access tothe records upon which suchinformation is based.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.130 General requirements for all Statehome facilities.

As a condition for receiving a grantand grant funds under this part, Statesmust comply with the requirements ofthis section.

(a) The physical environment of aState home must be designed,constructed, equipped, and maintainedto protect the health and safety ofparticipants, personnel and the public.

(b) A State home must meet thegeneral conditions of the AmericanInstitute of Architects, or other generalconditions required by the State, forawarding contracts for State home grantprojects. Facilities must meet allFederal, State, and local requirements,including the Uniform FederalAccessibility Standards (UFAS) (24 CFRpart 40, appendix A), during the designand construction of projects subject tothis part. If the State or localrequirements are different from theFederal requirements, compliance withthe most stringent provisions isrequired. A State must design andconstruct the project to providesufficient space and equipment indining, health services, recreation, andprogram areas to enable staff to provideresidents with needed services asrequired by this part and as identifiedin each resident’s plan of care.

(c) State homes should be planned toapproximate the home atmosphere asclosely as possible. The interior andexterior should provide an attractiveand home-like environment for elderlyresidents. The site will be located in asafe, secure, residential-type area that isaccessible to acute medical carefacilities, community activities andamenities, and transportation facilitiestypical of the area.

(d)(1) State homes must meet theapplicable provisions of the NationalFire Protection Association’s NFPA 101,Life Safety Code (2000 edition) and theNFPA 99, Standard for Health CareFacilities (1999 edition). Incorporationby reference of these materials wasapproved by the Director of the FederalRegister in accordance with 5 U.S.C.552(a) and 1 CFR part 51. Thesematerials, incorporated by reference, areavailable for inspection at the Office ofthe Federal Register, Suite 700, 800North Capitol Street, NW, Washington,DC, and the Department of VeteransAffairs, Office of RegulationsManagement (02D), Room 1154, 810Vermont Avenue, NW, Washington, DC20420. Copies may be obtained from theNational Fire Protection Association, 1Batterymarch Park, P.O. Box 9101,Quincy, MA 02269–9101. (For orderinginformation, call toll free 1–800–344–3555.)

(2) Facilities must also meet the Stateand local fire codes.

(e) State homes must have anemergency electrical power system tosupply power adequate to operate allexit signs and lighting for means ofegress, fire and medical gas alarms, andemergency communication systems. Thesource of power must be an on-siteemergency standby generator of



sufficient size to serve the connectedload or other approved sources.

(f) The nurse’s station must beequipped to receive resident callsthrough a communication system fromresident rooms, toilet and bathingfacilities, dining areas, and activityareas.

(g) The State home must have one ormore rooms designated for residentdining and activities. These rooms mustbe:

(1) Well lighted;(2) Well ventilated; and(3) Adequately furnished.(h) The facility management must

provide a safe, functional, sanitary, andcomfortable environment for theresidents, staff and the public. Thefacility must:

(1) Ensure that water is available toessential areas when there is a loss ofnormal water supply;

(2) Have adequate outside ventilationby means of windows, or mechanicalventilation, or a combination of the two;

(3) Equip corridors with firmlysecured handrails on each side; and

(4) Maintain an effective pest controlprogram so that the facility is free ofpests 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 grantand grant funds for a nursing homefacility under this part, States mustcomply with the requirements of thissection.

(a) Resident rooms must be designedand equipped for adequate nursing care,comfort, and privacy of residents.Resident rooms must:

(1) Accommodate no more than fourresidents;

(2) Have direct access to an exitcorridor;

(3) Have at least one window to theoutside;

(4) Be equipped with, or located near,toilet and bathing facilities (VArecommends that public toilet facilitiesalso be located near the residents diningand 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 curtainsthat extend around the bed to provide

total visual privacy in combination withadjacent walls and curtains;

(8) Have a separate bed for eachresident of proper size and height forthe safety of the resident;

(9) Have a clean, comfortablemattress;

(10) Have bedding appropriate to theweather and climate;

(11) Have functional furnitureappropriate to the resident’s needs, and

(12) Have individual closet space withclothes racks and shelves accessible tothe resident.

(b) Unless determined by VA asnecessary to accommodate an increasedquality of care for patients, a nursinghome project may propose a deviationof no more than 10 percent (more orless) from the following net squarefootage for the State to be eligible for agrant of 65 percent of the total estimatedcost of the project. If the projectproposes building more than thefollowing net square footage and VAmakes a determination that it is notneeded, the cost of the additional netsquare footage will not be included inthe 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 ............................................................................................................................................................ 200Assistant administrator ............................................................................................................................................ 150Medical officer, director of nursing or equivalent .................................................................................................... 150Nurse and dictation area ......................................................................................................................................... 120General administration (each office/person) ........................................................................................................... 120Clerical staff (each) ................................................................................................................................................. 80Computer area ......................................................................................................................................................... 40Conference room (consultation area, in-service training) ....................................................................................... 500 (for each room)Lobby/waiting area. (150 minimum/600 maximum per facility) ............................................................................... 3 (per bed)Public/resident toilets (male/female) ....................................................................................................................... 25 (per fixture)Pharmacy 1.Dietetic service 1.Dining area .............................................................................................................................................................. 20 (per bed)Canteen/retail sales ................................................................................................................................................. 2 (per bed)Vending machines (450 max. per facility) ............................................................................................................... 1 (per bed)Resident toilets (male/female) ................................................................................................................................. 25 (per fixture)Child day care 1.Medical support (staff offices/exam/treatment room/family counseling, etc.) ......................................................... 140 (for each room)Barber and/or beauty shops .................................................................................................................................... 140Mail room ................................................................................................................................................................. 120Janitor’s closet ......................................................................................................................................................... 40Multipurpose room ................................................................................................................................................... 15 (per bed)Employee lockers .................................................................................................................................................... 6 (per employee)Employee lounge (500 max. per facility) ................................................................................................................. 120Employee toilets ...................................................................................................................................................... 25 (per fixture)Chapel ..................................................................................................................................................................... 450Physical therapy ...................................................................................................................................................... 5 (per bed)Office, if required ..................................................................................................................................................... 120Occupational therapy ............................................................................................................................................... 5 (per bed).Office, if required ..................................................................................................................................................... 120Library ...................................................................................................................................................................... 1.5 (per bed)Building maintenance storage ................................................................................................................................. 2.5 (per bed)Resident storage ..................................................................................................................................................... 6 (per bed)General warehouse storage .................................................................................................................................... 6 (per bed)Medical/dietary/pharmacy ........................................................................................................................................ 7 (per bed)General laundry 1.

II. Bed units:One .......................................................................................................................................................................... 150



TABLE TO PARAGRAPH (B)—NURSING HOME—Continued

Two .......................................................................................................................................................................... 245Large two-bed per unit ............................................................................................................................................ 305Four ......................................................................................................................................................................... 460Lounge areas (resident lounge with storage) ......................................................................................................... 8 (per bed)Resident quiet room ................................................................................................................................................ 3 (per bed)Clean utility .............................................................................................................................................................. 120Soiled utility ............................................................................................................................................................. 105Linen storage ........................................................................................................................................................... 150General storage ....................................................................................................................................................... 100Nurses station, ward secretary ................................................................................................................................ 260Medication room ...................................................................................................................................................... 75Exam/Treatment room ............................................................................................................................................. 140Waiting area ............................................................................................................................................................ 50Unit supply and equipment ...................................................................................................................................... 50Staff toilet ................................................................................................................................................................. 25 (per fixture)Stretcher/wheelchair storage ................................................................................................................................... 100Kitchenette ............................................................................................................................................................... 150Janitor’s closet ......................................................................................................................................................... 40Resident laundry ...................................................................................................................................................... 125Trash collection ....................................................................................................................................................... 60

III. Bathing and Toilet Facilities:(A) Private or shared facilities:

Wheelchair facilities .......................................................................................................................................... 25 (per fixture)Standard facilities ............................................................................................................................................. 15 (per fixture)

(B) Full bathroom ..................................................................................................................................................... 75(C) Congregate bathing facilities:

First tub/shower ................................................................................................................................................ 80Each additional fixture ...................................................................................................................................... 25

1 The size to be determined by the Chief Consultant, Geriatrics and Extended Care, as necessary to accommodate projected patient careneeds (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 ofthe Architectural Barriers Act of 1968, asamended, 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 underthis part, the domiciliary must meet therequirements for a nursing homespecified in § 59.140 of this part.(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137).

§ 59.160 Adult day health carerequirements.

As a condition for receiving a grantand grant funds under this part for anadult day health care facility, Statesmust meet the requirements of thissection.

(a) Each adult day health careprogram, when it is co-located in anursing home, domiciliary, or other carefacility, must have its own separatedesignated space during operationalhours.

(b) The indoor space for an adult dayhealth care program must be at least 100square feet per participant includingoffice space for staff, and must be 60square feet per participant excludingoffice space for staff.

(c) Each program will need to designand partition its space to meet its ownneeds, but the following functionalareas must be available:

(1) A dividable multipurpose room orarea for group activities, includingdining, with adequate table settingspace.

(2) Rehabilitation rooms or an area forindividual and group treatments foroccupational therapy, physical therapy,and other treatment modalities.

(3) A kitchen area for refrigerated foodstorage, the preparation of meals and/ortraining participants in activities ofdaily living.

(4) An examination and/or medicationroom.

(5) A quiet room (with at least onebed), which functions to isolateparticipants who become ill ordisruptive, or who require rest, privacy,or observation. It should be separatefrom activity areas, near a restroom, andsupervised.

(6) Bathing facilities adequate tofacilitate bathing of participants withfunctional impairments.

(7) Toilet facilities and bathroomseasily accessible to people with mobilityproblems, including participants inwheelchairs. There must be at least onetoilet for every eight participants. Thetoilets must be equipped for use bypersons with limited mobility, easilyaccessible from all programs areas, i.e.preferably within 40 feet from that area,designed to allow assistance from one ortwo staff, and barrier free.

(8) Adequate storage space. Thereshould be space to store arts and crafts

materials, personal clothing andbelongings, wheelchairs, chairs,individual handiwork, and generalsupplies. Locked cabinets must beprovided for files, records, supplies, andmedications.

(9) An individual room for counselingand interviewing participants andfamily members.

(10) A reception area.(11) An outside space that is used for

outdoor activities that is safe, accessibleto indoor areas, and accessible to thosewith a disability. This space mayinclude recreational space and a gardenarea. It should be easily supervised bystaff.

(d) Furnishings must be available forall participants. This must includefunctional furniture appropriate to theparticipants’ needs.

(e) Unless determined by VA asnecessary to accommodate an increasedquality of care for patients, an adult dayhealth care facility project may proposea deviation of no more than 10 percent(more or less) from the following netsquare footage for the State to be eligiblefor a grant of 65 percent of the totalestimated cost of the project. If theproject proposes building more than thefollowing net square footage and VAmakes a determination that it is notneeded, the cost of the additional netsquare footage will not be included inthe estimated total cost of construction.



TABLE TO PARAGRAPH (E)—ADULT DAY HEALTH CARE

I. Support facilities [allowable square feet (or metric equivalent) per facility for VA participation]:Program Director ..................................................................................................................................................... 200Assistant administrator ............................................................................................................................................ 150Medical officer, director of nursing or equivalent .................................................................................................... 150Nurse and dictation area ......................................................................................................................................... 120General administration (each office/person) ........................................................................................................... 120Clerical staff (each) ................................................................................................................................................. 80Computer area ......................................................................................................................................................... 40Conference room (consultation area, in-service training) ....................................................................................... 500 (for each room).Lobby/receiving/waiting area (150 minimum) .......................................................................................................... 3 (per participant)Public/resident toilets (male/female) ....................................................................................................................... 25 (per fixture).Dining area (may be included in the multipurpose room) ....................................................................................... 20 (per participant).Vending machines ................................................................................................................................................... 1 (per participant).Participant toilets (male/female) .............................................................................................................................. 25 (per fixture).Medical support (staff offices/family counseling, etc.) ............................................................................................ 140 (for each room).Janitor’s closet ......................................................................................................................................................... 40Dividable multipurpose room ................................................................................................................................... 15 (per participant).Employee lockers .................................................................................................................................................... 6 (per employee)Employee lounge ..................................................................................................................................................... 120Employee toilets ...................................................................................................................................................... 25 (per fixture).Physical therapy ...................................................................................................................................................... 5 (per participant).Office, if required ..................................................................................................................................................... 120Occupational therapy ............................................................................................................................................... 5 (per participant).Office, if required ..................................................................................................................................................... 120Building maintenance storage ................................................................................................................................. 2.5 (per participant).Resident storage ..................................................................................................................................................... 6 (per participant).General warehouse storage .................................................................................................................................... 6 (per participant).Medical/dietary ......................................................................................................................................................... 7 (per participant).General laundry 1 .....................................................................................................................................................

II. Other Areas:Participant quiet room ............................................................................................................................................. 3 (per participant).Clean utility .............................................................................................................................................................. 120Soiled utility ............................................................................................................................................................. 105General storage ....................................................................................................................................................... 100Nurses station, ward secretary ................................................................................................................................ 260Medication/exam/treatment rooms .......................................................................................................................... 75Waiting area ............................................................................................................................................................ 50Program supply and equipment .............................................................................................................................. 50Staff toilet ................................................................................................................................................................. 25 (per fixture).Wheelchair storage .................................................................................................................................................. 100Kitchen ..................................................................................................................................................................... 120Janitor’s closet ......................................................................................................................................................... 40Resident laundry ...................................................................................................................................................... 125Trash collection ....................................................................................................................................................... 60

III. Bathing and Toilet Facilities:(A) Private or shared facilities:

Wheelchair facilities .......................................................................................................................................... 25 (per fixture).Standard facilities ............................................................................................................................................. 15 (per fixture).

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

1 The size to be determined by the Chief Consultant, Geriatrics and Extended Care, as necessary to accommodate projected patient careneeds (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 ofthe Architectural Barriers Act of 1968, asamended, Public Law 90–480, 42 U.S.C.4151–4157).

§ 59.170 Forms.

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

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



(Authority: 38 U.S.C. 101, 501, 1710, 1742,8105, 8131–8137; Sections 2, 3, 4, and 4a ofthe Architectural Barriers Act of 1968, asamended, 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 PROTECTIONAGENCY

40 CFR Part 268

[FRL–7002–3]

Land Disposal Restrictions: Grantingof a Site-Specific Treatment Varianceto Dupont Environmental Treatment—Chambers Works WastewaterTreatment Plant, Deepwater, NJ

AGENCY: Environmental ProtectionAgency.ACTION: Final rule.

SUMMARY: The Environmental ProtectionAgency (EPA or Agency) ispromulgating a site-specific treatmentvariance from the Land DisposalRestrictions (LDR) standards forwastewater treatment sludge generatedat the Dupont Environmental Treatment(DET)—Chambers Works WastewaterTreatment Plant located in Deepwater,New Jersey. This sludge is derived fromthe treatment of multiple listed wastes,including K088, and characteristichazardous waste, and differssignificantly from the waste used toestablish the LDR treatment standard forarsenic in K088 nonwastewaters.Accordingly, we are finalizing analternate treatment standard of 5.0 mg/L Toxicity Characteristic LeachingProcedure (TCLP) for the arsenic in thewastewater treatment sludge generatedat this facility.

This treatment variance requires DETto dispose of their wastewater treatmentsludge in their on-site RCRA Subtitle Clandfill provided the sludge complieswith the specified alternate treatmentstandard for arsenic in K088nonwastewaters and meets all otherapplicable LDR treatment standards.DATES: This rule is effective June 26,2001.

ADDRESSES: The official record for thisrulemaking is identified as DocketNumber F–2001–DPVF–FFFFF and islocated in the RCRA Docket InformationCenter (RIC), Crystal Gateway One, 1235Jefferson Davis Highway, First Floor,Arlington, VA 22202. The RIC is openfrom 9 am to 4 pm Monday throughFriday, excluding federal holidays. Toreview docket materials, we recommendthat you make an appointment by

calling 703–603–9230. You may copyup to 100 pages from any regulatorydocument at no charge. Additionalcopies cost $0.15 per page. (The indexis available electronically. See the‘‘Supplementary Information’’ sectionfor information on accessing them).FOR FURTHER INFORMATION CONTACT: Forgeneral information, call the RCRA CallCenter at 1–800–424–9346 or TDD 1–800–553–7672 (hearing impaired). TheRCRA Call Center operates Monday-Friday, 9 am to 6 pm, Eastern StandardTime. For more detailed information onspecific aspects of this rule, contactElaine Eby at 703–308–8449,[email protected], or write her at theOffice of Solid Waste, 5302W, U.S.Environmental Protection Agency, ArielRios Building, 1200 PennsylvaniaAvenue, NW, Washington, DC 20460–0002.SUPPLEMENTARY INFORMATION:

Availability of Rule on InternetPlease follow these instructions to

access the rule: From the World WideWeb (WWW), type http://www.epa.gov/epaoswer/hazwaste/ldr.

The official record for this action willbe kept in paper form. Accordingly, EPAhas transferred any comments receivedelectronically into paper form andplaced them in the official record whichalso includes comments submitteddirectly in writing. The official record isthe paper record maintained at the RIClisted in the ADDRESSES section at thebeginning of this document.

Table of ContentsI. Why and How Are Treatment Variances

Granted?I. Summary of the Proposed RuleII. Comment Summary and Final RuleIII. Administrative Requirements

A. Regulatory Impact Analysis Pursuant toExecutive Order 12866

B. Regulatory Flexibility Act (RFA), asamended by the Small BusinessRegulatory Enforcement Fairness Act of1996 (SBREFA), 5 U.S.C. 601 et seq.

C. Unfunded Mandates Reform ActD. Executive Order 13045: Protection of

Children from Environmental HealthRisks and Safety Risks

E. Environmental Justice Executive Order12898

F. Paperwork Reduction ActG. National Technology Transfer and

Advancement ActH. Consultation with Tribal GovernmentsI. Executive Order 13132 (Federalism)J. Congressional Review Act

I. Why and How Are TreatmentVariances Granted?

Under Section 3004(m) of theResource Conservation and RecoveryAct (RCRA) as amended by theHazardous and Solid Waste

Amendments of 1984, EPA is requiredto set ‘‘levels or methods of treatment,if any, which substantially diminish thetoxicity of the waste or substantiallyreduce the likelihood of migration ofhazardous constituents from the wasteso that short-term and long-term threatsto human health and the environmentare minimized.’’ We have interpretedthis language to authorize treatmentstandards based on the performance ofbest demonstrated available technology(BDAT). This interpretation wassustained by the court in HazardousWaste Treatment Council vs. EPA, 886F. 2d 355 (D.C.Cir.1989).

We recognize that there may bewastes that cannot be treated to levelsspecified in the regulation (see 40 CFR268.40) (51 FR 40576, November 7,1986). For such wastes, a treatmentvariance exists (40 CFR 268.44) that, ifgranted, becomes the treatment standardfor the waste at issue.

Treatment variances may be genericor site-specific. A generic variance canresult in the establishment of a newtreatability group and a correspondingtreatment standard that applies to allwastes that meet the criteria of the newwaste treatability group (55 FR 22526,June 1, 1990). A site-specific varianceapplies only to a specific waste from aspecific facility. Under 40 CFR268.44(h), a generator or treatmentfacility may apply to the Administrator,or EPA’s delegated representative, for asite-specific variance in cases where awaste that is generated under conditionsspecific to only one site and cannot orshould not be treated to the specifiedlevel(s). The applicant for a site-specificvariance must demonstrate that becausethe physical or chemical properties ofthe waste differ significantly from thewaste analyzed in development of thetreatment standard, the waste cannot betreated by BDAT to the specified levelsor by the specified method(s). Althoughthere are other grounds for obtainingtreatment variances, we will not discussthose in this notice because this is theonly provision relevant to the presentpetition.

Dupont Environmental Treatment—Chambers Works submitted theirrequest for a treatment variance inFebruary 2000. All information and dataused in the development of this finalrule can be found in the RCRA docketsupporting this rule.

II. Summary of the Proposed RuleOn December 4, 2000 (65 FR 75651),

we published a proposed rule detailingour intent to grant a site-specificvariance from the K088 treatmentstandard for arsenic in nonwastewatersto Dupont Environmental Treatment—


Federal Register /Vol. 66, No. 123/Tuesday, June 26, 2001 ... · a.m. and 4:30 p.m., Monday through...

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