Standards Applicable to the Payment of Per Diem for Domiciliary Care

38 C.F.R. Part ..., Subpart E
in effectEffective: 2024-07-01

38 C.F.R. § 51.300 Resident rights and behavior; State home practices; quality of life.

The State home must protect and promote the rights and quality of life of each resident receiving domiciliary care, and otherwise comply with the requirements in § 51.70, except § 51.70(b)(9), (h)(1), and (m); § 51.80, except § 51.80(a)(2) and (4) and (b); § 51.90; and § 51.100, except § 51.100(g)(2), (h), and (i)(5) through (7). The State Home must have a written procedure for admissions, discharges, and transfers. For purposes of this section, the terms “nursing home” and “nursing facility” or “facility” in the applicable provisions of the cited sections apply to a domiciliary. (a) Notice of rights and services—notification of changes. (1) Facility management must immediately inform the resident and consult with the primary care physician when there is (i) An accident involving the resident that results in injury and has the potential for requiring physician intervention; (ii) A significant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life-threatening conditions or clinical complications); (iii) A need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences, or to commence a new form of treatment); or (iv) A decision to transfer or discharge the resident from the facility as specified in paragraph (d) of this section. (2) The facility management must also promptly notify the resident when there is (i) A change in room or roommate assignment as specified in § 51.100(f)(2); or (ii) A change in resident rights under Federal or State law or regulations as specified in § 51.70(b)(1). (3) The facility management must record and periodically update the address and phone number of the resident's legal representative or interested family member, but the resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of changes. (b) Work. The resident must participate, based on his or her ability, in some measure, however slight, in work assignments that support the maintenance and operation of the State home. The State Home management must create a written policy to implement the work requirement. The resident is encouraged to participate in vocational and employment services, which are essential to meeting the psychosocial needs of the resident. The resident must perform work for the facility after the State home has accomplished the following: (1) The facility has documented the resident's need or desire to work in the comprehensive care plan; (2) The comprehensive care plan described in § 51.310 specifies the nature of the work performed and whether the work is unpaid or paid; (3) Compensation for work for which the facility would pay a prevailing wage if done by non-residents is paid at or above prevailing wages for similar work in the area where the facility is located; and (4) The facility consulted with and the resident agrees to the work arrangement described in the comprehensive care plan. (c) Married couples. The resident has the right, if space is available within the existing facility, to share a room with his or her spouse when married residents live in the same facility and both spouses consent to the arrangement. If the State home determines existing space is not available to allow married residents to share rooms, the State home will make accommodations for the privacy of married residents. (d) Transfer and discharge—(1) Definition: Transfer and discharge includes movement of a resident to a bed outside of the facility whether that bed is in the same physical plant or not. Transfer and discharge does not refer to movement of a resident to a bed within the same facility. (2) Transfer and discharge requirements. The facility management must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility unless (i) The transfer or discharge is necessary for the resident's welfare, including because the domiciliary resident's health has improved sufficiently so the resident no longer needs the services provided by the domiciliary; (ii) The resident is in need of a higher level of long term or acute care; (iii) The safety of individuals in the facility is endangered; (iv) The health of individuals in the facility would otherwise be endangered; (v) The resident has failed, after reasonable and appropriate notice, to pay for a stay at the facility; (vi) The domiciliary ceases to operate; or (vii) The resident ceases to meet any of the eligibility criteria of § 51.51. (3) Documentation. When the facility transfers or discharges a resident under any of the circumstances specified in paragraphs (d)(2)(i) through (vii) of this section, the primary care physician must document the transfer and circumstances in the resident's clinical record. (4) Notice before transfer. Before a facility transfers or discharges a resident, the facility must (i) Notify the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner he or she understands. The resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of changes. (ii) Record the reasons in the resident's clinical record; and (iii) Include in the notice the items described in paragraph (d)(6) of this section. (5) Timing of the notice. (i) The notice of transfer or discharge required by paragraph (d)(4) of this section must be made by the facility at least 30 calendar days before the resident is transferred or discharged, except when specified in paragraph (d)(5)(ii) of this section, (ii) Notice may be made as soon as practicable before transfer or discharge when (A) The safety of individuals in the facility would be endangered; (B) The health of individuals in the facility would be otherwise endangered; (C) The resident's health improves sufficiently so the resident no longer needs the services provided by the domiciliary; or (D) The resident's needs cannot be met in the domiciliary. (6) Contents of the notice. The written notice specified in paragraph (d)(4) of this section must include the following: (i) The reason for transfer or discharge; (ii) The effective date of transfer or discharge; (iii) The location to which the resident is transferred or discharged; (iv) A statement that the resident has the right to appeal the action to the State official designated by the State; and (v) The name, address and telephone number of the State long term care ombudsman. (7) Orientation for transfer or discharge. The facility management must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. (e) Notice of bed-hold policy and readmission—notice before transfer. The State home must have a written bed-hold policy, including criteria for return to the facility. The facility management must provide written information to the resident about the State home bed-hold policy upon enrollment, annually thereafter, and before a State home transfers a resident to a hospital. A Resident has the right to decide whether to have the State home notify his or her legal representative or interested family member of transfers. (f) Resident activities. (1) The facility management must provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and the physical, mental, and psychosocial well-being of each resident. (2) The activities program must be directed by a qualified coordinator. (g) Social services. (1) The State home must provide social work services to meet the social and emotional needs of residents to attain or maintain the highest practicable mental and psychosocial well-being of each resident. (2) The State home must have a sufficient number of social workers to meet residents' needs. (3) The State home must have a written policy on how it determines qualifications of social workers. It is highly recommended, but not required, that a qualified social worker is an individual with (i) A bachelor's degree in social work from a school accredited by the Council of Social Work Education (Note: A master's degree social worker with experience in long-term care is preferred), and (ii) A social work license from the State in which the State home is located, if offered by the State, and (iii) A minimum of one year of supervised social work experience in a health care setting working directly with individuals. (4) The facility management must have sufficient support staff to meet patients' social services needs. (5) Facilities for social services must ensure privacy for interviews. (h) Environment. The facility management must provide (1) A safe, clean, comfortable, and homelike environment, allowing the resident to use his or her personal belongings to the extent possible; (2) Housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior; (3) Clean bed and bath linens that are in good condition; and (4) Private closet space in each resident's room, as specified in § 51.200(d)(2)(iv).

38 C.F.R. § 51.310 Resident admission, assessment, care plan, and discharge.

The State home must conduct accurate, written, medical and comprehensive assessments of each resident's medical and functional capacity upon admission, annually, and as required by a change in the resident's condition. The comprehensive assessment will use information from the medical assessment, and both assessments will inform the comprehensive care plan. The State home must have a written policy to determine how to coordinate and complete the comprehensive assessment process, including how it will review, and revise the comprehensive assessment in implementing the comprehensive care plan. The State home must review comprehensive assessments annually, and promptly after every significant change in the resident's physical, mental, or social condition. (a) Admission orders and medical assessment. At the time each resident is admitted, the State home must have physician orders for the resident's immediate care. A medical assessment, including a medical history and physical examination, must be performed by a physician, or other health care provider qualified under State law, and recorded in the medical record no later than 7 calendar days after admission, unless one was performed no earlier than 5 calendar days before admission and the findings were recorded in the medical record. The medical assessment will be part of the comprehensive assessment. (b) Comprehensive assessments. (1) The state home must complete a comprehensive assessment of each resident no later than 14 calendar days after admission, annually, and as required by a change in the resident's condition. (2) Each comprehensive assessment must be conducted or coordinated by a registered nurse with the participation of appropriate healthcare professionals, including at least one physician, the registered nurse, and one social worker. The registered nurse must sign and certify the assessment. The comprehensive assessment is to determine the care, treatment, and services that will meet the resident's initial and continuing needs. It is an objective evaluation of a resident's health and functional status, describing the resident's capabilities and impairments in performing activities of daily living, strengths, and needs. The assessment gathers information through collection of data, observation, and examination. (c) Comprehensive care plans. (1) The State home must develop a comprehensive care plan for each resident based on the comprehensive assessment, and develop, review, and revise the comprehensive care plan following each comprehensive assessment. The comprehensive care plan must include measurable objectives and timetables to address a resident's emotional, behavioral, social, and physical needs, with emphasis on assisting each patient to achieve and maintain an optimal level of self-care and independence. The comprehensive care plan must describe the following, as appropriate to the resident's circumstances: (i) The services that are to be furnished to support the resident's highest practicable emotional, behavioral, social rehabilitation, and physical well-being; (ii) The specific work the resident agrees to do to share in the maintenance and operation of the State home upon consultation with the interdisciplinary team, and whether that work is paid or unpaid; and (iii) Any services that would otherwise be required under § 51.350 but are not provided due to the resident's exercise of rights under § 51.70, including the right in § 51.70(b)(4) to refuse treatment. (2) A comprehensive care plan must be: (i) Developed no later than 21 calendar days after admission; and (ii) Prepared by an interdisciplinary team of health professionals that may include the primary care physician or a Licensed Independent Practitioner (or designated Physician's Assistant or Nurse Practitioner), a social worker, and a registered nurse who have responsibility for the resident, and other staff in appropriate disciplines as determined by the resident's needs, and, to the extent practicable, the participation of the resident and the resident's family (subject to the consent of the resident) or the resident's legal representative, if appropriate; (iii) Reviewed periodically and revised consistent with the most recent comprehensive assessment by a team of qualified persons no less often than semi-annually; and (iv) Revised promptly after a comprehensive assessment reveals a significant change in the resident's condition. (3) The services provided by the facility must (i) Meet professional standards of quality; and (ii) Be provided by qualified persons in accordance with each resident's written comprehensive care plan. (d) Discharge summary. (1) Prior to discharging a resident, the State home must prepare a discharge summary that includes (i) A summary of the resident's stay, the resident's status at the time of the discharge, and the resident's progress on the comprehensive care plan in paragraph (b)(2) of this section; and (ii) A post-discharge comprehensive care plan that is developed with the participation of the resident. (2) A resident has the right to decide if he or she would like to involve his or her legal representative or interested family member in development of a post-discharge plan.

38 C.F.R. § 51.320 Quality of care.

The State home must provide each resident with the care described in this subpart in accordance with the assessment and comprehensive care plan. (a) Reporting of sentinel events. (1) A sentinel event is an adverse event that results in the loss of life or limb or permanent loss of function. (2) Examples of sentinel events are as follows: (i) Any resident death, paralysis, coma or other major permanent loss of function associated with a medication error; (ii) Any suicide of a resident; (iii) Assault, homicide or other crime resulting in resident death or major permanent loss of function; or (iv) A resident fall that results in death or major permanent loss of function as a direct result of the injuries sustained in the fall. (3) The State home must report sentinel events to the Director no later than 24 hours after identification. The VA medical center of jurisdiction must report sentinel events by notifying the VA Network Director (10N1-10N22) and the Director, Office of Geriatrics and Extended Care—Operations (10NC4) no later than 24 hours after notification. (4) The State home must establish a mechanism to review and analyze a sentinel event resulting in a written report to be submitted to the VA Medical Center of jurisdiction no later than 10 working days following the event. The purpose of the review and analysis of a sentinel event is to prevent injuries to residents, visitors, and personnel, and to manage those injuries that do occur and to minimize the negative consequences to the injured individuals and the State home. (b) Activities of daily living. Based on the comprehensive assessment of a resident, the State home must ensure that a resident's abilities in activities of daily living do not diminish unless circumstances of the individual's clinical condition demonstrate that diminution was unavoidable, and the resident is given appropriate treatment and services to maintain or improve his activities of daily living. This includes the resident's ability to: (1) Bathe, dress, and groom; (2) Transfer and ambulate; (3) Toilet; (4) Eat; and (5) Talk or otherwise communicate. (c) Vision and hearing. To ensure that residents receive proper treatment and assistive devices to maintain vision and hearing, the State home must, if necessary, assist the resident: (1) In making appointments; and (2) By arranging for transportation to and from the office of a practitioner specializing in the treatment of vision or hearing impairment or the office of a professional specializing in the provision of vision or hearing assistive devices. (d) Mental and psychosocial functioning. Based on the comprehensive assessment of a resident, the State home must assist a resident who displays mental or psychosocial adjustment difficulty obtain appropriate treatment and services to correct the assessed problem. (e) Accidents. The State home must ensure that: (1) The resident environment remains as free of accident hazards as possible; and (2) Each resident receives adequate supervision and assistive devices to prevent accidents. (f) Nutrition. The State home must follow § 51.120(j) regarding nutrition in providing domiciliary care. (g) Special needs. The State home must provide residents with the following services, if needed: (1) Injections; (2) Colostomy, ureterostomy, or ileostomy care; (3) Respiratory care; (4) Foot care; and (5) Non-customized or non-individualized prosthetic devices. (h) Unnecessary drugs. The State home must ensure that the standards set forth in § 51.120(m) regarding unnecessary drugs are followed in providing domiciliary care. (i) Medication errors. The State home must ensure that the standards set forth in § 51.120(n) regarding medication errors are followed in providing domiciliary care.

38 C.F.R. § 51.330 Nursing care.

The State home must provide an organized nursing service with a sufficient number of qualified nursing personnel to meet the total nursing care needs of all residents within the facility, 24 hours a day, 7 days a week, as determined by their comprehensive assessments and their comprehensive care plans. The nursing service must be under the direction of a full-time registered nurse who is currently licensed by the State and has, in writing, administrative authority, responsibility, and accountability for the functions, activities, and training of the nursing service's staff.

38 C.F.R. § 51.340 Physician and other licensed medical practitioner services.

The State home must provide its residents the primary care necessary to enable them to attain or maintain the highest practicable physical, mental, and psychosocial well-being. When a resident needs care other than the State home is required to provide under this subpart, the State home is responsible to assist the resident to obtain that care. The State home must ensure that a physician personally approves in writing a recommendation that an individual be admitted to a domiciliary. Each resident must remain at all times under the care of a licensed medical practitioner assigned by the State home. The name of the practitioner will be listed in the resident's medical record. The State home must ensure that all of the following conditions in paragraphs (a) through (e) of this section are met: (a) Supervision of medical practitioners. Any licensed medical practitioner who is not a physician may provide medical care to a resident within the practitioner's scope of practice without physician supervision when permitted by State law. (b) Availability of medical practitioners. If the resident's assigned licensed medical practitioner is unavailable, another licensed medical practitioner must be available to provide care for that resident. (c) Visits. The primary care physician or other licensed medical practitioner, for each visit required by paragraph (d) of this section, must (1) Review the resident's total program of care, including medications and treatments; (2) Write, sign, and date progress notes; and (3) Sign and date all orders. (d) Frequency of visits. The primary care physician or other licensed medical practitioner must conduct an in-person medical assessment of the resident at least once a calendar year, or more frequently based on the resident's condition. (e) Availability of emergency care. The State home must assist residents in obtaining emergency care.

38 C.F.R. § 51.350 Provision of certain specialized services and environmental requirements.

The State home domiciliary care programs must comply with the requirements of § 51.140, except § 51.140(f)(2) through (4) concerning dietary services; § 51.170 concerning dental services; § 51.180, except § 51.180(c) concerning pharmacy services; § 51.190 concerning infection control; and § 51.200, except § 51.200(a), (b), (d)(1)(ii) through (x), (f), and (h)(3) concerning the physical environment. For purposes of this section, the references to “facility” in the cited sections also refer to a domiciliary. (a) Dietary services. (1) There must be no more than 14 hours between a substantial evening meal and the availability of breakfast the following day, except as provided in (a)(3) of this section. (2) The facility staff must offer snacks at bedtime daily. (3) Sixteen hours may elapse between a substantial evening meal and breakfast the following day when a nourishing snack is offered at bedtime. (b) Pharmacy services. (1) The drug regimen of each resident must be reviewed at least once every six months by a licensed pharmacist. (2) The pharmacist must report any irregularities to the primary care physician and the director of nursing, and these reports must be acted upon. (c) Life safety from fire. The facility must meet the applicable requirements of the National Fire Protection Association's NFPA 101, Life Safety Code, as incorporated by reference in § 51.200. (d) Privacy. The facility must provide the means for visual privacy for each resident.

38 C.F.R. § 51.390 Administration.

The State home must follow § 51.210 regarding administration in providing domiciliary care. For purposes of this section, the references in the cited section to nursing home and nursing home care refer to a domiciliary and domiciliary care.

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