Ensuring a Safe Environment for Community Residential Care Residents
Final rule.
CFR Part: "38 CFR Part 17"
RIN Number: "RIN 2900-AP06"
Citation: "82 FR 34408"
Page Number: "34408"
"Rules and Regulations"
SUMMARY: The
DATES: This rule is effective on
FOR FURTHER INFORMATION CONTACT: Dr.
SUPPLEMENTARY INFORMATION:
The comment period for this proposed rule closed on
State-Related Issues
One commenter raised several issues related to actions states may be required to take as a result of the proposed rule. As we discuss in greater detail below, this rulemaking imposes no requirements on states.
The commenter stated that many states will likely face challenges in implementing the new rule, and that
The common thread in this series of comments is the potential impact this rulemaking will have on states. However, states are not mandated to pass any legislation, publish regulations, initiate any IT projects, or take any other action related to this rulemaking. Nor is this rulemaking such that
Standards for Criminal History Checks
One commenter stated that
We agree that a criminal history check based on fingerprints is the gold standard, and that electronic fingerprinting increases the efficiency of a comprehensive criminal history check. However, it is unclear to
One commenter stated that
One commenter stated that
Under SEC 17.63(j)(3)(i)(A)( 2) of the proposed rule, we stated that a CRC provider must not employ an individual who has had a finding entered into an applicable State registry or with the applicable licensing authority concerning abuse, neglect, mistreatment of individuals or misappropriation of property. While we noted examples of applicable State registries in our discussion of this paragraph (80 FR 69909, 69910 (
One commenter stated that
Bar for Certain Crimes, Definition of "Convicted of a Criminal Offense," and Title VII Concerns
In addition to public comments,
In proposed
In addition, EEOC recommended that
Further, EEOC recommended that
We generally agree. In 2012, EEOC issued "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964." One purpose of that guidance is to assist EEOC in coordinating "with other federal departments and agencies with the goal of maximizing federal regulatory consistency with respect to the use of criminal history information in employment decisions." Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. The guidance addresses both disparate treatment (where an employer treats criminal history information differently for different applicants or employees based on race or national origin) and disparate impact (a neutral policy, such as excluding applicants from employment based on certain criminal conduct, that disproportionately impacts some individuals based on race or national origin, where the exclusion is not job related and consistent with business necessity).
An arrest, or mere allegation of misconduct, does not establish that criminal conduct has occurred. A criminal conviction, on the other hand, serves as legally sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
As an initial matter, we note that various federal or state laws effectively bar employment in certain positions if an individual is convicted of certain crimes. For instance, at the federal level, 18 U.S.C. 2381 bans from future federal employment an individual who has been convicted of treason. Similar types of bans are found in state law. The majority of states have laws or regulations governing hiring of individuals applying for positions in long term care, residential care, adult day care, nursing homes, and similar types of care provided to elderly or at risk individuals. Many states establish a permanent bar on employment in one or more of these service sectors for convictions of certain serious crimes, and a ban for a defined number of years for convictions of other types of crimes. The specific criminal offenses listed in the statutes and regulations vary by state, as does the length of the bar on employment following conviction. One example is South Carolina Regulation 61-84, Standards for Licensing Community Residential Care Facilities, which provides that staff members, direct care volunteers, and private sitters of a licensed community residential care facility shall not have a prior conviction or pled no contest (nolo-contendere) to abuse, neglect, or exploitation of a child or a vulnerable adult as defined in state law. Another example is District of
The proposed rule listed classes of crimes that an individual could be convicted of, rather than specific crimes defined in law. Based on comments received,
A finding in a State registry or with the applicable licensing authority concerning abuse, neglect, mistreatment of individuals or misappropriation of property is not equivalent to conviction of a crime, and we do not believe that a 7 year ban on employment based on a State registry or licensing authority is appropriate. However, we do not believe that an adverse finding in a relevant State registry or with an applicable licensing authority should be ignored, because even in the absence of a conviction the allegation of wrongdoing is by an individual or entity authorized to provide such information, and such information is subject to some level of investigation before it is approved for inclusion. We believe imposing a 6 month ban on employment in an approved CRC is appropriate, as this recognizes the adverse finding while also recognizing that there may be a follow-up investigation of the alleged incident during the 6 months following an adverse finding.
Where the conviction by a court of law of a crime enumerated in this rule occurred greater than 7 years in the past, or a finding was entered into a State registry or with the applicable licensing authority more than 6 months in the past, the CRC 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: The nature of the job held or sought; the nature and gravity of the offense or offenses; the time that has passed since the conviction and/or completion of the sentence; the facts or circumstances surrounding the offense or conduct; the number of offenses for which the individual was convicted; the employee or applicant's age at the time of conviction, or release from prison; the nexus between the criminal conduct of the person and the job duties of the position; 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; the length and consistency of employment history before and after the offense or conduct; rehabilitation efforts, including education or training; and, employment or character references and any other information regarding fitness for the particular position.
The factors listed above are derived from leading court decisions on what should be included in an individual assessment for Title VII purposes. To ensure that post-conviction suitability for employment is properly assessed for individuals who are 7 years post-conviction,
A conviction of a relevant offense alone greater than 7 years in the past is not a bar to employment; and the listed factors will be considered by the CRC in determining eligibility for employment.
In addition, we are amending the definition of conviction of a criminal offense to exclude an expunged conviction, as an expunged conviction is considered in law to have never occurred.
We do not agree with EEOC that the definition of conviction of a criminal offense should be amended to exclude participation in first offender deferred adjudication, or other arrangements or programs in which a judgment of conviction has not been made. Several federal statutes include these, or similar, types of deferred adjudications in the definition of "conviction." Examples include an immigration statute, 8 U.S.C. 1101(a)(48)(A), and a statute excluding certain individuals and entities from participation in Medicare and State health care programs, 42 U.S.C. 1320a-7(i). Case law reflects that resolution of the issue of whether any particular deferred adjudication qualifies as a conviction under these statutes is wholly dependent on the facts of the case and the relevant underlying state or federal law (see, e.g., Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011) and Travers v. Shalala, 20 F.3d 993 (9th Cir. 1994)). Rather than disregarding deferred adjudication in its entirety,
Appeals
A commenter recommended the inclusion of an appeals process in those instances where an individual is denied employment because of the results of a criminal history check. While it is true that
Reporting and Investigating Alleged Mistreatment, Neglect, Abuse, and Misappropriation of Resident's Property
One commenter supported
We agree. In some instances, approved CRCs are licensed by the state, and therefore must comply with any state requirements for reporting alleged mistreatment, neglect, abuse, and misappropriation of residents' property to the appropriate state agency. However, a CRC that is not required to obtain a license to operate may not have the same reporting requirement. We are amending the rule to require the CRC to immediately report, which means no more than 24 hours after the provider becomes aware of the alleged violation, all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property to the approving official and to other officials in accordance with state law.
One commenter stated that reports of abuse or neglect should include the name of the alleged victim, and contact person (such as a family member). In addition, the commenter stated that any identified caregiver or legal representative should be notified of the allegation, and the record should reflect resolution of the investigation. Further, the CRC should be required to provide copies of the written policy and procedure to residents, caregivers, and representatives.
In proposed
One commenter supported the requirement that the CRC develop and implement written policies and procedures prohibiting mistreatment, abuse and neglect of residents, and misappropriation of resident property. However, the commenter urged
In SEC 17.63(j)(3) we state that the CRC provider must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. In our discussion of this paragraph, we stated that
One commenter stated that
A Medical Foster Home is a type of CRC for care of disabled veterans with the more medically complex conditions, and is generally distinguished from other CRCs by the following factors: The home is owned or rented by the caregiver; the caregiver lives in the Medical Foster Home and provides personal care and supervision; there are no more than three residents receiving care in the Medical Foster Home, including both veterans and non-veterans; and the veteran residents are enrolled in a
Consent to Disclosure of Resident Records
One commenter recommended that the regulation be amended to allow a designated individual other than the resident to authorize disclosure of resident records in those instances where the resident is no longer competent. We agree. Generally, when a person is no longer competent to consent to disclosure of records, someone else, either previously designated by the person or through operation of law, is given authority to consent to disclosures, such as a fiduciary, agent, or personal representative. We are amending this rule to address this circumstance.
Based on the rationale set forth in the proposed rule and in this document,
Effect of Rulemaking
Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that
This final rule imposes information collection requirements in 38 CFR 17.63(i) and (j):
This rulemaking at
In the proposed information collection, we estimated the annual burden related to CRC reporting and investigation of alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property based on an assumption that
As required by the 44 U.S.C. 3507(d),
The collection of information is described here.
Title: Ensuring a Safe Environment for Community Residential Care Residents.
Summary of Collection of Information
Paragraph (j)(6) requires CRCs to immediately, meaning no more than 24 hours after the provider becomes aware of the alleged violation, report all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property to the approving official. We require that the report, at a minimum, must include the facility name, address, telephone number, and owner; the date and time of the alleged violation; a summary of the alleged violation; the name of any public or private officials or VHA program offices that have been notified of the alleged violations, if any; whether additional investigation is necessary to provide VHA with more information about the alleged violation; and contact information for a person who can provide additional details at the community residential care provider, including a name, position, location, and phone number.
We require the CRCs to document and thoroughly investigate evidence of an alleged violation. 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 State law. It would also require facilities to develop and implement written policies and procedures to prohibit the mistreatment, neglect, and abuse of residents and misappropriation of resident property.
The most current data available to
CRCs are required to report information under this rule when the facility: (1) Has an alleged violation involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property; or, (2) is reporting the results of an investigation into that alleged violation. CRCs are also required to document and investigate evidence of any alleged violation. We view the reporting, documenting, and investigating of an alleged incident and the subsequent report of the results of the investigation to be one collection of information, as it focuses on one set of alleged facts and the facility's investigation of those facts.
This rule formalizes the reporting and investigation requirement and we believe this would more likely than not result in an increase in the number of reports of alleged abuse mistreatment, neglect, or abuse, including injuries of unknown source, or misappropriation of resident property per year. However, for purposes of this estimate, we will assume that a maximum of one fourth of approved CRCs will have one incident per year related to an alleged violation involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property; or, reporting the results of an investigation into that alleged violation. The estimated average burden for an alleged violation response is three hours.
Description of need for information and proposed use of information:
Description of likely respondents: One fourth of approved CRCs currently listed or that request future listing on
Estimated number of respondents per year: 182 operators of CRCs.
Estimated frequency of responses: Once in a 12-month period.
Estimated average burden per response: 3 hours.
Estimated total annual reporting and recordkeeping burden: 546 hours.
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 be small business neutral as it applies only to those CRCs seeking inclusion on
A CRC may elect to order background checks on employees from commercial sources or local law enforcement agencies. The cost of an individual background check varies dependent on the vendor, but
The remaining 25 percent of CRCs (91) will more likely than not opt to obtain criminal background checks on CRC staff in order to be approved by
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 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
The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866.
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
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program numbers and titles affected by this document are 64.009, Veterans Medical Care Benefits; 64.010, Veterans
Signing Authority
The Secretary of
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Government contracts, Grant programs--health, Government programs--veterans, Health care, Health facilities, Health professions, Health records, Homeless, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Veterans.
Dated:
Office Program Manager,
For the reasons stated in the preamble,
PART 17--MEDICAL
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
Section 17.38 also issued under 38 U.S.C. 101, 501, 1701, 1705, 1710, 1710A, 1721, 1722, 1782, and 1786.
Section 17.169 also issued under 38 U.S.C. 1712C.
Sections 17.380 and 17.412 are also issued under sec. 260, Public Law 114-223, 130 Stat. 857.
Section 17.410 is also issued under 38 U.S.C. 1787.
Section 17.415 is also issued under 38 U.S.C. 7301, 7304, 7402, and 7403.
Sections 17.640 and 17.647 are also issued under sec. 4, Public Law 114-2, 129 Stat. 30.
Sections 17.641 through 17.646 are also issued under 38 U.S.C. 501(a) and sec. 4, Public Law 114-2, 129 Stat. 30.
2. Amend
a. Adding paragraphs (e)(1)(i) and (ii);
b. Revising paragraph (i);
c. Adding paragraphs (j)(3) through (9); and
d. Adding an OMB approval parenthetical to the end of the section.
The additions and revision read as follows:
* * * * *
(e) * * *
(1) * * *
(i) Facilities approved before
(ii) Facilities approved after
* * * * *
(i) Records. (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.
(2) The facility must maintain and make available, upon request of the approving
(j) * * *
(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.
(4) Except as provided in paragraph (j)(5)(ii) of this section, the community residential care provider must not employ individuals who--
(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;
(B) Arson;
(C) Assault, battery, assault and battery, assault with a dangerous weapon, mayhem or threats to do bodily harm;
(D) Burglary;
(E) Robbery;
(F) Kidnapping;
(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.
(5)(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.
(6)(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:
(i) Non-VA health care provider at the community residential care facility;
(ii) Staff member of the community residential care facility who is not a health care provider, including a contractor; and
(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).
* * * * *
(The information collection requirements in this section have been approved by the
[FR Doc. 2017-15519 Filed 7-24-17;
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