[Federal Register Volume 76, Number 37 (Thursday, February 24, 2011)]
[Rules and Regulations]
[Pages 10246-10249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3887]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 17 and 59
RIN 2900-AN57
Updating Fire Safety Standards
AGENCY: Department of Veterans Affairs.
ACTION: Final rule with request for comments.
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SUMMARY: This document adopts as a final rule, with changes, the
proposed rule to amend the Department of Veterans Affairs (VA)
regulations concerning community residential care facilities, contract
facilities for certain outpatient and residential services, and State
home facilities. The final rule will clarify current regulations and
update the standards for VA approval of such facilities, including
standards for fire safety and heating and cooling systems. The final
rule will help ensure the safety of veterans in the affected
facilities. This document also implements and seeks comments regarding
a new interim final sprinkler system requirement for certain
facilities.
DATES: Effective Date: This final rule is effective March 28, 2011.
Comment Date: Comments on the interim final amendments to 38 CFR
59.130 only must be received on or before April 25, 2011.
The Director of the Federal Register approved the incorporation by
reference of certain publications listed in this rule as of March 28,
2011.
ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand-delivery to the Director,
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to
(202) 273-9026. Comments should indicate that they are submitted in
response to ``RIN 2900-AN57--Updating Fire Safety
[[Page 10247]]
Standards.'' Copies of comments received will be available for public
inspection in the Office of Regulation Policy and Management, Room
1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through Friday
(except holidays). Please call (202) 461-4902 for an appointment. (This
is not a toll-free number.) In addition, during the comment period,
comments may be viewed online through the Federal Docket Management
System (FDMS) at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Brian McCarthy, Office of Patient Care
Services, Veterans Health Administration, Department of Veterans
Affairs, 810 Vermont Ave., NW., Washington, DC 20420, 202-461-6759.
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on April 7, 2010 (75 FR 17641), VA proposed to amend its
regulations concerning the codes and standards applicable to community
residential care facilities, contract facilities for outpatient and
residential treatment services for veterans with alcohol or drug
dependence or abuse disabilities, and State homes. We proposed to amend
38 CFR 17.63, 17.81(a)(1), 17.82(a)(1), and 59.130(d)(1) to require
facilities to meet the requirements in the applicable provisions of
current editions of publications produced by the National Fire
Protection Association (NFPA). These publications are: NFPA 10,
Standard for Portable Fire Extinguishers; NFPA 99, Standard for Health
Care Facilities; NFPA 101, Life Safety Code; and NFPA 101A, Guide on
Alternative Approaches to Life Safety.
We provided a 60-day comment period and received three comments.
All three comments were entirely supportive. Two comments from the
public noted the importance of requiring facilities to meet up-to-date
safety standards. The third comment, from the NFPA, described in detail
the improvements in the current editions of the codes that are
referenced in this final rule. Although we noted in the proposed rule
that we were not aware of any significant changes from the 2000 edition
of NFPA 101 referenced in current Sec. 59.130 to the 2009 edition of
NFPA 101, as the NFPA commented, a substantive revision in the 2009
edition of NFPA 101 is the requirement that all existing nursing homes
have automatic sprinklers. We are aware that not all existing State
home facilities currently meet this requirement. Therefore, to give
certain facilities that are not currently in compliance ample time to
come into compliance with the sprinkler requirement, we are requiring
certain existing nursing home facilities to comply with the automatic
sprinkler requirement of the 2009 edition of NFPA 101 by February 24,
2016.
The Centers for Medicare & Medicaid Services (CMS) has determined
that, after considering fire safety concerns and feasibility, 5 years
is a reasonable amount of time to install sprinkler systems in existing
nursing home facilities, see 73 FR 47081, as required by paragraph
19.3.5.1 in the 2009 edition of NFPA 101, which specifically states
that ``[b]uildings containing nursing homes shall be protected
throughout by an approved, supervised automatic sprinkler system in
accordance with Section 9.7, unless otherwise permitted by 19.3.5.5.''
We agree, and therefore based on the NFPA's comment we have included
such a requirement in the final rule. The extended compliance date of 5
years from the date of publication of this final rule does not apply to
buildings with nursing home facilities that were newly constructed and
in operation after June 25, 2001, because the 2000 edition of NFPA 101,
which was incorporated by reference into 38 CFR 59.130 in 66 FR 33845
as of June 26, 2001, required installment of automatic sprinklers in
all newly constructed buildings with nursing home facilities. Thus, the
extended compliance date applies only to ``existing buildings'' with
nursing home facilities as of June 25, 2001, and is not intended to
postpone enforcement of the existing requirement for sprinkler
protection in all other buildings with nursing home facilities. See
paragraph 3.3.32.5 in the 2009 edition of NFPA 101 (defining an
``[e]xisting [b]uilding'' as ``[a] building erected or officially
authorized prior to the effective date of the adoption of this edition
of the Code by the agency or jurisdiction''). Accordingly, we have made
interim final revisions to 38 CFR 59.130 to reflect this change. The
public is invited to comment on the 5-year extended compliance period
for existing buildings with nursing home facilities as of June 25,
2001.
We are also clarifying the second sentence in proposed 38 CFR
17.1(a) to state the following: ``To enforce an edition of a
publication other than that specified in this section, VA will provide
notice of the change in a notice of proposed rulemaking in the Federal
Register and the material will be made available to the public.'' We
will thus provide notice of the adoption of an updated edition of a
publication specified in Sec. 17.1 through the public notice-and-
comment process.
This final rule amends parts 17 and 59 and incorporates by
reference, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, the
following publications: NFPA 10, Standard for Portable Fire
Extinguishers (2010 edition); NFPA 99, Standard for Health Care
Facilities (2005 edition); NFPA 101, Life Safety Code (2009 edition);
and NFPA 101A, Guide on Alternative Approaches to Life Safety (2010
edition). In the proposed rule, we noted that facilities had to meet
the requirements in certain provisions of specific editions of these
NFPA publications. Regarding the NFPA 10 requirements, we proposed to
require facilities to meet the standard for portable fire
extinguishers. However, we did not propose to separately incorporate by
reference NFPA 10 because we believed the applicable requirements in
the updated version of that standard were subsumed in NFPA 101. The
Office of the Federal Register recently informed us that we need to
incorporate by reference NFPA 10 because our regulations refer to it
directly and require its use. Accordingly, we are correcting the final
rule to separately incorporate by reference NFPA 10. This correction is
consistent with our proposal regarding compliance with the portable
fire extinguisher standard.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This final rule will have no such effect on
State, local, and Tribal governments, or on the private sector.
Paperwork Reduction Act of 1995
This document contains no collections of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a ``significant regulatory action,'' requiring review
by the Office of Management and Budget (OMB) unless OMB waives such
review,
[[Page 10248]]
as any regulatory action that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more, or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this final rule and has concluded that it does
not constitute a significant regulatory action under the Executive
Order.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. In addition to having an effect on individuals (veterans), the
final rule will have an insignificant economic impact on a few small
entities.
The changes to Sec. 17.63 will likely affect fewer than 100 of the
2,800 community residential care facilities approved for referral of
veterans under the regulations. Also, any additional costs for
compliance with the final rule will constitute an inconsequential
amount of the operational costs of such facilities.
The changes to Sec. Sec. 17.81 and 17.82 will affect only small
entities; however, most, if not all, of these entities are already in
compliance with the current NFPA codes and therefore should not be
significantly impacted by this rule.
The changes to part 59 will affect State homes. The State homes
that will be subject to this rulemaking are State government entities
under the control of State governments. All State homes are owned,
operated and managed by State governments except for a small number
operated by entities under contract with State governments. These
contractors are not small entities.
Accordingly, pursuant to 5 U.S.C. 605(b), this rule will be exempt
from the initial and final regulatory flexibility analysis requirements
of sections 603 and 604.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.005, Grants to States for
Construction of State Home Facilities; 64.007, Blind Rehabilitation
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical
Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans
Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans
Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015,
Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care;
64.018, Sharing Specialized Medical Resources; 64.019, Veterans
Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based
Primary Care.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, approved this document on December 10, 2010
for publication.
List of Subjects
38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs--health, Grant programs--veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Incorporation by reference, Medical and dental schools,
Medical devices, Medical research, Mental health programs, Nursing
homes, Philippines, Reporting and recordkeeping requirements,
Scholarships and fellowships, Travel and transportation expenses,
Veterans.
38 CFR Part 59
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs--health, Grant programs--veterans,
Health care, Health facilities, Health professions, Health records,
Homeless, Incorporation by reference, Medical and dental schools,
Medical devices, Medical research, Mental health programs, Nursing
homes, Reporting and recordkeeping requirements, Travel and
transportation expenses, Veterans.
Dated: February 16, 2010.
Robert C. McFetridge,
Director, Regulations Policy and Management, Department of Veterans
Affairs.
For the reasons stated above, VA amends 38 CFR parts 17 and 59 as
follows:
PART 17--MEDICAL
0
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, 1721, and as noted in specific
sections.
0
2. Add Sec. 17.1 to part 17 to read as follows:
Sec. 17.1 Incorporation by reference.
(a) Certain materials are incorporated by reference into this part
with the approval of the Director of the Federal Register under 5
U.S.C. 552(a) and 1 CFR part 51. To enforce an edition of a publication
other than that specified in this section, VA will provide notice of
the change in a notice of proposed rulemaking in the Federal Register
and the material will be made available to the public. All approved
materials are available for inspection at the Department of Veterans
Affairs, Office of Regulation Policy and Management (02REG), 810
Vermont Avenue, NW., Room 1068, Washington, DC 20420, or at the
National Archives and Records Administration (NARA). For information on
the availability of approved materials at NARA, call (202) 741-6030, or
go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Copies may be obtained from the
National Fire Protection Association, 1 Batterymarch Park, Quincy, MA
02269. (For ordering information, call toll-free 1-800-344-3555.)
(b) The following materials are incorporated by reference into this
part.
(1) NFPA 10, Standard for Portable Fire Extinguishers (2010
edition), Incorporation by Reference (IBR) approved for Sec. Sec.
17.63 and 17.81.
(2) NFPA 101, Life Safety Code (2009 edition), IBR approved for
Sec. Sec. 17.63, 17.81, 17.82.
(3) NFPA 101A, Guide on Alternative Approaches to Life Safety (2010
edition), IBR approved for Sec. 17.63.
(Authority: 5 U.S.C. 552(a), 38 U.S.C. 501, 1721.)
0
3. Amend Sec. 17.63 as follows:
0
a. Revise paragraph (a)(2); and
0
b. Add a new paragraph (a)(4).
The revision and addition read as follows:
[[Page 10249]]
Sec. 17.63 Approval of community residential care facilities.
* * * * *
(a) * * *
(2) Meet the requirements in the applicable provisions of NFPA 101
and NFPA 101A (incorporated by reference, see Sec. 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;
* * * * *
(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
Sec. 17.1); and
(ii) The facility must meet the requirements in section 33.7 of
NFPA 101.
* * * * *
0
4. Amend Sec. 17.81(a)(1) as follows:
0
a. Revise paragraph (a)(1)(i);
0
b. Remove paragraphs (a)(1)(v) through (a)(1)(viii);
0
c. Add a new paragraph (a)(1)(v); and
0
d. Redesignate paragraph (a)(1)(ix) as paragraph (a)(1)(vi).
The revision and addition read as follows:
Sec. 17.81 Contracts for residential treatment services for veterans
with alcohol or drug dependence or abuse disabilities.
(a) * * *
(1) * * *
(i) The building must meet the requirements in the applicable
provisions of NFPA 101 (incorporated by reference, see Sec. 17.1) and
the other publications referenced in those provisions. Any
equivalencies or variances to VA requirements must be approved by the
appropriate Veterans Health Administration Veterans Integrated Service
Network (VISN) Director.
* * * * *
(v) The facility must meet the following additional requirements,
if the provisions for One and Two-Family Dwellings, as defined in NFPA
101, are applicable to the facility:
(A) Portable fire extinguishers shall be installed, inspected, and
maintained in accordance with NFPA 10 (incorporated by reference, see
Sec. 17.1).
(B) The facility shall meet the requirements in section 33.7 of
NFPA 101.
* * * * *
0
5. Amend Sec. 17.82(a)(1) as follows:
0
a. Revise paragraphs (a)(1)(i) and (iv);
0
b. Remove paragraphs (a)(1)(v) and (a)(1)(vi); and
0
c. Redesignate paragraph (a)(1)(vii) as (a)(1)(v).
The revisions read as follows:
Sec. 17.82 Contracts for outpatient services for veterans with
alcohol or drug dependence or abuse disabilities.
(a) * * *
(1) * * *
(i) The building must meet the requirements in the applicable
provisions of the NFPA 101 (incorporated by reference, see Sec. 17.1)
and the other publications referenced in those provisions. Any
equivalencies or variances to VA requirements must be approved by the
appropriate Veterans Health Administration Veterans Integrated Service
Network (VISN) Director.
* * * * *
(iv) As a minimum, fire exit drills must be held at least
quarterly, and a written plan for evacuation in the event of fire shall
be developed and reviewed annually. The plan shall outline the duties,
responsibilities and actions to be taken by the staff in the event of a
fire emergency. This plan shall be implemented during fire exit drills.
* * * * *
PART 59--GRANTS TO STATES FOR CONSTRUCTION OR ACQUISITION OF STATE
HOMES
0
6. The authority citation for part 59 continues to read as follows:
Authority: 38 U.S.C. 101, 501, 1710, 1742, 8105, 8131-8137.
0
7. Amend Sec. 59.130(d)(1) as follows:
0
a. Remove the phrase ``(2000 edition)'' and add, in its place, ``(2009
edition), except that the NFPA requirement in paragraph 19.3.5.1 for
all buildings containing nursing homes to have an automatic sprinkler
system is not applicable until February 24, 2016 for ``existing
buildings'' with nursing home facilities as of June 25, 2001 (paragraph
3.3.32.5 in the NFPA 101 defines an ``[e]xisting [b]uilding'' as ``[a]
building erected or officially authorized prior to the effective date
of the adoption of this edition of the Code by the agency or
jurisdiction''),''; and
0
b. Remove the phrase ``(1999 edition)'' and add, in its place, ``(2005
edition)''.
0
c. Remove ``Office of Regulations Management (02D), Room 1154'' and
add, in its place, ``Office of Regulation Policy and Management
(02REG), Room 1068''.
[FR Doc. 2011-3887 Filed 2-23-11; 8:45 am]
BILLING CODE 8320-01-P