[Federal Register Volume 79, Number 5 (Wednesday, January 8, 2014)]
[Rules and Regulations]
[Pages 1330-1332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00099]



38 CFR Part 17

RIN 2900-AO62

Community Residential Care

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: This rule adopts as final, without change, an interim final 
rule amending the Department of Veterans Affairs (VA) regulations 
concerning approval of non-VA community residential care (CRC) 
facilities to allow VA to waive such facilities' compliance with 
standards that do not jeopardize the health or safety of residents. As 
amended, the regulation allows VA to grant a waiver of a CRC standard 
in those limited circumstances where the deficiency cannot be corrected 
to meet a standard provided for in VA regulation. This rulemaking also 
makes a certain necessary technical amendment to correct a reference to 
the section addressing requests for a hearing.

DATES: Effective Date: This final rule is effective January 8, 2014.

FOR FURTHER INFORMATION CONTACT: Nancy Quest, Director, Home and 
Community Based Services (10P4G), Veterans Health Administration, 810 
Vermont Avenue NW., Washington, DC 20420, (202) 461-6064. (This is not 
a toll-free number.)

SUPPLEMENTARY INFORMATION: In an interim final rule published in the 
Federal Register on May 29, 2013, at 78 FR 32124, VA amended 38 CFR 
17.65, which contains VA's regulations governing approvals and 
provisional approvals of CRC facilities. The interim final rule allowed 
VA to waive one or more of the standards in 38 CFR 17.63 for the 
approval of a particular CRC facility, provided that a VA safety expert 
certifies that the deficiency does not endanger the life or safety of 
the residents; the deficiency cannot be corrected; and granting the 
waiver is in the best interests of the veteran in the facility and VA's 
CRC program. The rulemaking also made a certain necessary technical 
amendment to Sec.  17.66. The interim final rule was effective 
immediately upon publication and provided a 60-day comment period, 
which ended on July 29, 2013. VA received no public comments and 
therefore makes no changes to the regulation.
    Based on the rationale set forth in the interim final rule, VA is 
adopting the

[[Page 1331]]

interim final rule as a final rule with no changes.

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary of 
Veterans Affairs concluded that there was good cause to publish the 
interim final rule without prior opportunity for public comment and to 
publish the rule with an immediate effective date. The Secretary found 
that it was contrary to the public interest to delay this rule for the 
purpose of soliciting advance public comment or to have a delayed 
effective date. The interim final rule was necessary to address an 
immediate need to provide a mechanism that will allow VA to grant a 
waiver to a CRC facility that cannot obtain full approval because of a 
minor deviation from regulatory standards that cannot be corrected and 
does not endanger the lives or safety of the veteran residents. 
Although approval would be rescinded because of a minor and 
uncorrectable deviation from standards unrelated to health or safety, 
veterans may be dissuaded from maintaining their residence in such a 
facility. Providing a waiver in that circumstance will preclude the 
need to terminate a CRC facility's approval based on an uncorrectable 
minor deviation from non-safety related standards. This eliminates the 
potential that resident veterans will needlessly choose to leave an 
otherwise healthy, safe, and suitable living arrangement. Regulations 
in place prior to the effective date of the interim final rule did not 
provide for any waiver of standards. It is in the public interest for a 
veteran not to be removed from a stable living situation based solely 
on a minor deviation from standards that does not threaten life or 
    To prevent veterans from needlessly choosing to leave affected CRC 
facilities because the facilities are no longer on the approved list, 
and in order to ensure timely implementation of the program established 
by this rule, and for the reasons stated above, the Secretary also 
found, in accordance with 5 U.S.C. 553(d)(3), good cause for the 
interim final rule to be effective on the date of publication.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, represents VA's implementation of its legal authority 
on this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 
3501-3521). Documentation that a VA safety expert may request from a 
CRC facility to support a waiver determination, as provided under 38 
CFR 17.65(d)(1), would not qualify as ``information'' under the PRA 
because collection of this information would be conducted on an 
individual case-by-case basis and would require individualized 
information pertaining to the specific deficiency identified by the VA 
safety expert. We believe that this collection is therefore exempt from 
the PRA requirements, as provided under 5 CFR 1320.3(h)(6) (excluding 
from PRA requirements a ``request for facts or opinions addressed to a 
single person).''

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. This final rule will have little, if any, economic impact on a few 
small entities. VA may waive a standard under this rulemaking provided 
a VA safety expert certifies that the deficiency does not endanger the 
life or safety of the residents, the deficiency cannot be corrected, 
and granting the waiver is in the best interests of the veteran in the 
facility and VA's CRC program.
    In order to reach the above determinations, the VA safety expert 
may request supporting documentation from the CRC facility. VA believes 
supplying this information will constitute an inconsequential amount of 
the operational cost for those CRC facilities. VA believes that, at 
most, only a few CRC facilities would qualify for a waiver. On this 
basis, the Secretary certifies that the adoption of 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. 
Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from 
the initial and final regulatory flexibility analysis requirements of 
sections 603 and 604.

Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' requiring review by the Office of 
Management and Budget (OMB) unless OMB waives such review, 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 this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's Web 
site at http://www1.va.gov/orpm/, by following the link for ``VA 
Regulations Published.''

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 the 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 1 year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

[[Page 1332]]

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 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; and 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. Jose D. 
Riojas, Chief of Staff, Department of Veterans Affairs, approved this 
document on December 6, 2013, for publication.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs-health, Government programs-
veterans, Health care, Health facilities, Health professions, Health 
records, Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Reporting and 
recordkeeping requirements, Scholarships and fellowships, Travel and 
transportation expenses, Veterans.

    Dated: January 3, 2014.
Robert C. McFetridge,
Director, Office of Regulation Policy and Management, Office of the 
General Counsel, Department of Veterans Affairs.

    Based on the rationale set forth in the Federal Register at 78 FR 
32124 on May 29, 2013, VA is adopting the interim final rule as a final 
rule with no changes.

[FR Doc. 2014-00099 Filed 1-7-14; 8:45 am]