38 CFR § 17.63 - Approval of community residential care facilities.
The approving official may approve a community residential care facility, based on the report of a VA inspection and on any findings of necessary interim monitoring of the facility, if that facility meets the following standards:
(a)Health and safety standards. The facility must:
(1) Meet all State and local regulations including construction, maintenance, and sanitation regulations;
(2) Meet the requirements in the applicable provisions of NFPA 101 and NFPA 101A (incorporated by reference, see§ 17.1) and the other publications referenced in those provisions. The institution shall provide sufficient staff to assist patients in the event of fire or other emergency. Any equivalencies or variances to VA requirements must be approved by the appropriate Veterans Health Administration Veterans Integrated Service Network (VISN) Director;
(3) Have safe and functioning systems for heating and/or cooling, as needed (a heating or cooling system is deemed to be needed if VA determines that, in the county, parish, or similar jurisdiction where the facility is located, a majority of community residential care facilities or other extended care facilities have one), hot and cold water, electricity, plumbing, sewage, cooking, laundry, artificial and natural light, and ventilation.
(4) Meet the following additional requirements, if the provisions for One and Two-Family Dwellings, as defined in NFPA 101, are applicable to the facility:
(i) Portable fire extinguishers must be installed, inspected, and maintained in accordance with NFPA 10 (incorporated by reference, see§ 17.1); and
(ii) The facility must meet the requirements in section 33.7 of NFPA 101.
(b)Level of care. The community residential care facility must provide the resident, at a minimum, a base level of care to include room and board; nutrition consisting of three meals per day and two snacks, or as required to meet special dietary needs; laundry services; transportation (either provided or arranged) to VA and healthcare appointments; and accompanying the resident to appointments if needed; 24-hour supervision, if indicated; and care, supervision, and assistance with activities of daily living and instrumental activities of daily living. In those cases where the resident requires more than a base level of care, the medically appropriate level of care must be provided.
(c)Interior plan. The facility must:
(1) Have comfortable dining areas, adequate in size for the number of residents;
(2) Have confortable living room areas, adequate in size to accommodate a reasonable proportion of residents; and
(3) Maintain at least one functional toilet and lavatory, and bathing or shower facility for every six people living in the facility, including provider and staff.
(d)Laundry service. The facility must provide or arrange for laundry service.
(e)Residents' bedrooms. Residents' bedrooms must:
(1) Contain no more than four beds;
(i) Facilities approved before August 24, 2017 may not establish any new resident bedrooms with more than two beds per room;
(ii) Facilities approved after August 24, 2017 may not provide resident bedrooms containing more than two beds per room.
(2) Measure, exclusive of closet space, at least 100 square feet for a single-resident room, or 80 square feet for each resident in a multiresident room; and
(3) Contain a suitable bed for each resident and appropriate furniture and furnishings.
(f)Nutrition. The facility must:
(1) Provide a safe and sanitary food service that meets individual nutritional requirements and residents' preferences;
(2) Plan menus to meet currently recommended dietary allowances;
(g)Activities. The facility must plan and facilitate appropriate recreational and leisure activities to meet individual needs.
(h)Residents' rights. The facility must have written policies and procedures that ensure the following rights for each resident:
(1) Each resident has the right to:
(i) Be informed of the rights described in this section;
(ii) The confidentiality and nondisclosure of information obtained by community residential care facility staff on the residents and the residents' records subject to the requirements of applicable law;
(iii) Be able to inspect the residents' own records kept by the community residential care facility;
(iv) Exercise rights as a citizen; and
(v) Voice grievances and make recommendations concerning the policies and procedures of the facility.
(2)Financial affairs. Residents must be allowed to manage their own personal financial affairs, except when the resident has been restricted in this right by law. If a resident requests assistance from the facility in managing personal financial affairs the request must be documented.
(3)Privacy. Residents must:
(i) Be treated with respect, consideration, and dignity;
(ii) Have access, in reasonable privacy, to a telephone within the facility;
(iii) Be able to send and receive mail unopened and uncensored; and
(iv) Have privacy of self and possessions.
(4)Work. No resident will perform household duties, other than personal housekeeping tasks, unless the resident receives compensation for these duties or is told in advance they are voluntary and the patient agrees to do them.
(5)Freedom of association. Residents have the right to:
(i) Receive visitors and associate freely with persons and groups of their own choosing both within and outside the facility;
(ii) Make contacts in the community and achieve the highest level of independence, autonomy, and interaction in the community of which the resident is capable;
(iii) Leave and return freely to the facility, and
(iv) Practice the religion of their own choosing or choose to abstain from religious practice.
(6)Transfer. Residents have the right to transfer to another facility or to an independent living situation.
(1) The facility must maintain records on each resident in a secure place. Resident records must include a copy of all signed agreements with the resident. Resident records may be disclosed only with the permission of the resident; an authorized agent, fiduciary, or personal representative if the resident is not competent; or when required by law.
The facility must maintain and make available, upon request of the approving VA official, records establishing compliance with paragraphs (j)(1) and (2) of this section; written policies and procedures required under paragraph (j)(3) of this section; and, emergency notification procedures.
(1) Sufficient, qualified staff must be on duty and available to care for the resident and ensure the health and safety of each resident.
(2) The community residential care provider and staff must have the following qualifications: Adequate education, training, or experience to maintain the facility.
(3) The community residential care provider must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.
(i) Have been convicted within 7 years by a court of law of any of the following offenses or their equivalent in a state or territory:
(A) Murder, attempted murder, or manslaughter;
(C) Assault, battery, assault and battery, assault with a dangerous weapon, mayhem or threats to do bodily harm;
(G) Theft, fraud, forgery, extortion or blackmail;
(H) Illegal use or possession of a firearm;
(I) Rape, sexual assault, sexual battery, or sexual abuse;
(J) Child or elder abuse, or cruelty to children or elders; or
(K) Unlawful distribution or possession with intent to distribute a controlled substance; or
(ii) Have had a finding entered within 6 months into an applicable State registry or with the applicable licensing authority concerning abuse, neglect, mistreatment of individuals or misappropriation of property.
(i) If the conviction by a court of law of a crime enumerated in paragraph (j)(4)(i) of this section occurred greater than 7 years in the past, or a finding was entered into an applicable State registry as specified in paragraph (j)(4)(ii) of this section more than 6 months in the past, the community residential care provider must perform an individual assessment of the applicant or employee to determine suitability for employment. The individual assessment must include consideration of the following factors:
(A) The nature of the job held or sought;
(B) The nature and gravity of the offense or offenses;
(C) The time that has passed since the conviction and/or completion of the sentence;
(D) The facts or circumstances surrounding the offense or conduct;
(E) The number of offenses for which the individual was convicted;
(F) The employee or applicant's age at the time of conviction, or release from prison;
(G) The nexus between the criminal conduct of the person and the job duties of the position;
(H) Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
(I) The length and consistency of employment history before and after the offense or conduct; rehabilitation efforts, including education or training; and,
(J) Employment or character references and any other information regarding fitness for the particular position.
(ii) An individual assessment must be performed to determine suitability for employment for any conviction defined in paragraph (j)(8)(iv), regardless of the age of the conviction.
(i) The community residential care provider must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported to the approving official immediately, which means no more than 24 hours after the provider becomes aware of the alleged violation; and to other officials in accordance with State law. The report, at a minimum, must include -
(A) The facility name, address, telephone number, and owner;
(B) The date and time of the alleged violation;
(C) A summary of the alleged violation;
(D) The name of any public or private officials or VHA program offices that have been notified of the alleged violations, if any;
(E) Whether additional investigation is necessary to provide VHA with more information about the alleged violation;
(F) The name of the alleged victim;
(G) Contact information for the resident's next of kin or other designated family member, agent, personal representative, or fiduciary; and
(H) Contact information for a person who can provide additional details at the community residential care provider, including a name, position, location, and phone number.
(ii) The community residential care provider must notify the resident's next of kin, caregiver, other designated family member, agent, personal representative, or fiduciary of the alleged incident concurrently with submission of the incident report to the approving official.
(iii) The community residential care provider must have evidence that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are documented and thoroughly investigated, and must prevent further abuse while the investigation is in progress. The results of all investigations must be reported to the approving official within 5 working days of the incident and to other officials in accordance with all other applicable law, and appropriate corrective action must be taken if the alleged violation is verified. Any corrective action taken by the community residential care provider as a result of such investigation must be reported to the approving official, and to other officials as required under all other applicable law.
(iv) The community residential care provider must remove all duties requiring direct resident contact with veteran residents from any employee alleged to have violated this paragraph (j) during the investigation of such employee.
(7) For purposes of this paragraph (j), the term “employee” includes a:
(iii) Person with direct resident access. The term “person with direct resident access” means an individual living in the facility who is not receiving services from the facility, who may have access to a resident or a resident's property, or may have one-on-one contact with a resident.
(8) For purposes of this paragraph (j), an employee is considered “convicted” of a criminal offense -
(i) When a judgment of conviction has been entered against the individual by a Federal, State, or local court, regardless of whether there is an appeal pending;
(ii) When there has been a finding of guilt against the individual by a Federal, State, or local court;
(iii) When a plea of guilty or nolo contendere by the individual has been accepted by a Federal, State, or local court; or
(iv) When the individual has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.
(9) For purposes of this paragraph (j), the terms “abuse” and “neglect” have the same meaning set forth in 38 CFR 51.90(b).
(k)Cost of community residential care.
(3) The resident or an authorized personal representative and a representative of the community residential care facility must agree upon the charge and payment procedures for community residential care. Any agreement between the resident or an authorized personal representative and the community residential care facility must be approved by the approving official. The charge for care in a community residential care facility must be reviewed annually by the facility and VA, or as required due to changes in care needs.
(4) The charges for community residential care must be reasonable and comparable to the current average rate for residential care in the State or Region for the same level of care provided to the resident. Notwithstanding, any year to year increase in the charge for care in a community residential care facility for the same level of care may not exceed the annual percentage increase in the National Consumer Price Index (CPI) for that year. In establishing an individual residential rate, consideration should be given to the level of care required and the individual needs of the resident. The approving official may approve a rate:
(i) Lower than the current average rate for residential care in the State or Region for the same level of care if the community residential care facility and the resident or authorized personal representative agreed to such rate, provided such lower rate does not result in a lower level of care than the resident requires;
(ii) Higher than the current average rate for residential care in the State or Region for the same level of care if the community residential care facility and the resident or authorized personal representative agreed to such rate, and the higher rate is related to the individual needs of the resident which exceed the base level of care as defined in paragraph (b) of this section. Examples of services which exceed the base level of care include, but are not limited to, handling disbursement of funds solely at the request of the resident; fulfilling special dietary requests by the resident or family member; accompanying the resident to an activity center; assisting in or providing scheduled socialization activities; supervision of an unsafe smoker; bowel and bladder care; intervention related to behavioral issues; and transportation other than for VA and healthcare appointments.
(5) The approving official may approve a deviation from the requirements of paragraph (k)(4) of this section if the resident chooses to pay more for care at a facility which exceeds the base level of care as defined in paragraph (b) of this section notwithstanding the resident's needs.