Standards Applicable to the Payment of per Diem for Adult Day Health Care

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

38 C.F.R. § 51.400 Participant rights.

The State home must protect and promote the rights of a participant in an adult day health care program, including the rights set forth in § 51.70, except for the right set forth in § 51.70(m). For purposes of this section, the references to resident in the cited section also refer to a participant in this section.

38 C.F.R. § 51.405 Participant and family caregiver responsibilities.

The State home must post a written statement of participant and family caregiver responsibilities in a place where participants in the adult day health care program and their families will see it and must provide a copy to the participant and caregiver at or before the time of the intake screening. The statement of responsibilities must include the following: (a) Treat personnel with respect and courtesy; (b) Communicate with staff to develop a relationship of trust; (c) Make appropriate choices and seek appropriate care; (d) Ask questions and confirm your understanding of instructions; (e) Share opinions, concerns, and complaints with the program director; (f) Communicate any changes in the participant's condition; (g) Communicate to the program director about medications and remedies used by the participant; (h) Let the program director know if the participant decides not to follow any instructions or treatment; and (i) Communicate with the adult day health care staff if the participant is unable to attend adult day health care.

38 C.F.R. § 51.410 Transfer and discharge.

(a) Definition. For purposes of this section, the term “transfer or discharge” includes movement of a participant to a program outside of the adult day health care program whether or not the program of care is in the same facility. (b) Transfer and discharge requirements. At the time of intake screening, the State home must discuss the possible reasons for transfer or discharge with the participant and, to the extent practicable and appropriate, with family members (subject to the consent of the participant) or the participant's legal representatives. In the case of a transfer and discharge to a hospital, the transfer and discharge must be to the hospital closest to the adult day health care facility that can provide the necessary care. The State home must permit each participant to remain in the program of care, and not transfer or discharge the participant from the program of care unless: (1) The transfer and discharge is necessary for the participant's welfare and the participant's needs cannot be met in the adult day health care setting; (2) The transfer and discharge is appropriate because the participant's health has improved sufficiently so that the participant no longer needs the services provided in the adult day health care program; (3) The safety of individuals in the facility is endangered; (4) The health of individuals in the facility would otherwise be endangered; (5) The participant has failed, after reasonable and appropriate notice, to pay for participation in the adult day health care program; or (6) The adult day health care program ceases to operate. (c) Notice before transfer or discharge. Before an adult day health care program undertakes the transfer or discharge of a participant, the State home must: (1) 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; (2) Record the reasons in the participant's clinical record; and (3) Include in the notice the items described in paragraph (e) of this section. (d) Timing of the notice. (1) The notice of transfer or discharge required under paragraph (c) of this section must be made by the State home at least 30 calendar days before the participant is given a transfer or discharge, except when specified in paragraph (d)(2) of this section. (2) Notice may be made as soon as practicable before a transfer or discharge when (i) The safety of individuals in the facility would be endangered; (ii) The health of individuals in the facility would be otherwise endangered; (iii) The participant's health improves sufficiently that the participant no longer needs the services provided by the adult day health care program of care; or (iv) The participant's needs cannot be met in the adult day health care program of care. (e) Contents of the notice. The written notice specified in paragraph (c) of this section must include the following: (1) The reason for the transfer or discharge; (2) The effective date of the transfer or discharge; (3) The location to which the participant is taken in accordance with the transfer or discharge, if any; (4) A statement that the participant has the right to appeal the action to the State official responsible for the oversight of State home programs; and (5) The name, address and telephone number of the first listed of the following that exists in the State: (i) The State long-term care ombudsman, if the long-term care ombudsman serves adult day health care facilities; or (ii) Any State ombudsman or advocate who serves adult day health care participants; or (iii) The State agency responsible for oversight of State adult day care facilities. (f) Orientation for transfer and discharge. The State home must provide sufficient preparation and orientation to participants to ensure safe and orderly transfer or discharge from the State home. (g) Written policy. The State home must have in effect written transfer and discharge procedures that reasonably ensure that: (1) Participants will be given a transfer or discharge from the adult day health care program to the hospital when transfer or discharge is medically appropriate as determined by a physician; and (2) Medical and other information needed for care and treatment of participants will be exchanged between the facility and the hospital.

38 C.F.R. § 51.411 Program practices.

(a) Equal access to quality care. The State home must establish and maintain identical policies and practices regarding transfer and discharge under § 51.410 and the provision of services for all participants regardless of the source of payment. (b) Admission policy. The State home must not require a third-party guarantee of payment as a condition of admission or expedited admission, or continued admission in the program of care. However, the State home may require a participant or an individual who has legal access to a participant's income or resources to pay for the care from the participant's income or resources, when available. (c) Hours of operation. Each adult day health care program must provide at least 8 hours of operation 5 days a week. The hours of operation must be flexible and responsive to caregiver needs.

38 C.F.R. § 51.415 Restraints, abuse, and staff treatment of participants.

The State home must meet the requirements regarding the use of restraints, abuse, and other matters concerning staff treatment of participants set forth in § 51.90. For purposes of this section, the references in the cited section to resident refer to a participant in this section.

38 C.F.R. § 51.420 Quality of life.

The State home must provide an environment that supports the quality of life of each participant by maximizing the participant's potential strengths and skills. (a) Dignity. The State home must promote care for participants in a manner and in an environment that maintains or enhances each participant's dignity and respect in full recognition of his or her individuality. (b) Self-determination and participation. The State home must ensure that the participant has the right to: (1) Choose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care; (2) Interact with members of the community both inside and outside the facility; and (3) Make choices about aspects of his or her life in the facility that are significant to the participant. (c) Participant and family concerns. The State home must document any concerns submitted to the management of the program by participants or their family members. (1) A participant's family has the right to meet with families of other participants in the program. (2) Staff or visitors may attend meetings of participant or family groups at the group's invitation. (3) The State home must respond to written requests that result from group meetings. (4) The State home must listen to the views of any participant or family group and act upon the concerns of participants and families regarding policy and operational decisions affecting participant care in the program. (d) Participation in other activities. The State home must ensure that a participant has the right to participate in social, religious, and community activities that do not interfere with the rights of other participants in the program. (e) Therapeutic participant activities. (1) The State home 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 participant. (2) The activities program must be directed by a qualified professional who is a qualified therapeutic recreation specialist or an activities professional who: (i) Is licensed, if applicable, by the State in which practicing; and (ii) Is certified as a therapeutic recreation specialist or an activities professional by a recognized certifying body. (3) A critical role of adult day health care is to build relationships and create a culture that supports, involves, and validates the participant. Therapeutic activity refers to that supportive culture and is a significant aspect of the individualized comprehensive care plan. A participant's activity includes everything the individual experiences during the day, not just arranged events. As part of effective therapeutic activity, the adult day health care program must: (i) Provide direction and support for participants, including breaking down activities into small, discrete steps or behaviors, if needed by a participant; (ii) Have alternative programming available for any participant unable or unwilling to take part in group activity; (iii) Design activities that promote personal growth and enhance the self-image and/or improve or maintain the functioning level of participants to the extent possible; (iv) Provide opportunities for a variety of involvements (social, intellectual, cultural, economic, emotional, physical, and spiritual) at different levels, including community activities and events; (v) Emphasize participants' strengths and abilities rather than impairments, and contribute to participants' feelings of competence and accomplishment; and (vi) Provide opportunities to voluntarily perform services for community groups and organizations. (f) Social services. (1) The State home must provide medically-related social services to participants and their families. (2) An adult day health care program must provide a qualified social worker to furnish social services. (3) 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 in social worker with experience in long-term care is preferred); (ii) A social work license from the State in which the State home is located, if that license is 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 State home must have sufficient social workers and support staff to meet participant and family social service needs. The adult day health care program must: (i) Provide counseling to participants and to families/caregivers; (ii) Facilitate the participant's adaptation to the adult day health care program and active involvement in the comprehensive care plan, if appropriate; (iii) Arrange for services not provided by adult day health care, and work with these resources to coordinate services; (iv) Serve as an advocate for participants by asserting and safeguarding the human and civil rights of the participants; (v) Assess signs of mental illness or dementia and make appropriate referrals; (vi) Provide information and referral for persons not appropriate for adult day health care; (vii) Provide family conferences, and serve as liaison between participant, family/caregiver and program staff; (viii) Provide individual or group counseling and support to caregivers and participants; (ix) Conduct support groups or facilitate participant or family/caregiver participation in support groups; (x) Assist program staff in adapting to changes in participants' behavior; and (xi) Provide or arrange for individual, group, or family psychotherapy for participants with significant psychosocial needs. (5) Space for social services must be adequate to ensure privacy for interviews. (g) Environment. The State home must provide: (1) A safe, clean, comfortable, and homelike environment, and support the participants' ability to function as independently as possible and to engage in program activities; (2) Housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior; (3) Private storage space for each participant sufficient for a change of clothes. Upon request of the participant, the State home must offer storage space that can be secured with a lock; (4) Interior signs to facilitate participants' ability to move about the facility independently and safely; (5) A clean bed or reclining chair available for acute illness; (6) A shower for participants; (7) Adequate and comfortable lighting levels in all areas; (8) Comfortable and safe temperature levels; and (9) Comfortable sound levels.

38 C.F.R. § 51.425 Physician orders and participant medical assessment.

The State home must have a written policy to determine how to coordinate and complete the written initial and comprehensive assessment processes upon admission, annually, and as required by a change in the participant's condition. The State home must also outline in its policy how it will complete, implement, review, and revise the assessments. (a) Admission. At the time each participant is admitted, the State home must have physician orders for the participant's immediate care. An initial medical assessment including a medical history and physical examination with documentation of tuberculosis screening must be completed by a physician or other health care provider qualified under State law no earlier than 30 calendar days before admission and no later than 7 calendar days after admission. The findings must be recorded in the participant's medical record. (b) Comprehensive assessments. The State home must complete the comprehensive assessment no later than 14 calendar days after admission. The State home must develop a comprehensive care plan for each participant based on his or her comprehensive assessment. The State home must review comprehensive assessments annually, as well as promptly after every significant change in the participant's physical, mental, or social condition. The State home must immediately change the participant's comprehensive care plan after a significant change is identified. At minimum, the written comprehensive assessment must address the following: (1) Ability to ambulate, (2) Ability to use bathroom facilities, (3) Ability to eat and swallow, (4) Ability to hear, (5) Ability to see, (6) Ability to experience feeling and movement, (7) Ability to communicate, (8) Risk of wandering, (9) Risk of elopement, (10) Risk of suicide, (11) Risk of deficiencies regarding social interactions, and (12) Special needs (such as medication, diet, nutrition, hydration, or prosthetics). (c) Coordination of assessments. (1) Each initial and subsequent comprehensive assessment must be conducted and coordinated with the participation of appropriate health professionals. (2) Each person who completes a portion of an assessment must sign and certify the accuracy of that portion of the assessment. (3) The results of the assessments must be used to develop, review, and revise the participant's individualized comprehensive care plan. (d) Comprehensive care plans. (1) The State home must ensure that each participant has a comprehensive care plan no later than 21 calendar days after admission. A participant's comprehensive care plan must be individualized and must include measurable objectives and timetables to meet all physical, mental, and psychosocial needs identified in the most recent assessment. The comprehensive care plan must describe the following: (i) The services that are to be provided as part of the program of care and by other sources to attain or maintain the participant's highest physical, mental, and psychosocial well-being as required under § 51.430; (ii) Any services that would otherwise be required under § 51.430 but are not provided due to the participant's exercise of rights under § 51.70, including the right to refuse treatment under § 51.70(b)(4); (iii) Type and scope of interventions to be provided in order to reach desired, realistic outcomes; (iv) Roles of participant and family/caregiver; and (v) Discharge or transition plan, including specific criteria for discharge or transfer. (2) The services provided or arranged by the State home must (i) Meet professional standards of quality; and (ii) Be provided by qualified persons in accordance with each participant's comprehensive care plan. (e) Discharge summary. Prior to discharging a participant, the State home must prepare a discharge summary that includes the following: (1) A summary of the participant's care; (2) A summary of the participant's status at the time of the discharge to include items in paragraph (b) of this section; and (3) A discharge/transition plan related to changes in service needs and changes in functional status that prompted transition to another program of care.

38 C.F.R. § 51.430 Quality of care.

Each participant must receive, and the State home must provide, the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and comprehensive care plan. (a) Reporting of sentinel events—(1) Definition. A “sentinel event” is defined in § 51.120(a)(1). (2) Duty to report sentinel events. The State home must comply with the duties to report sentinel events as set forth in § 51.120(a)(3), except that the duty to report applies only to a sentinel event that occurs while the participant is under the care of the State home, including while in State home-provided transportation. (3) Review and prevention of sentinel events. 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 after the event. The purpose of the review and analysis of a sentinel event is to prevent future injuries to participants, visitors, and personnel. (b) Activities of daily living. Based on the comprehensive assessment of a participant, the State home must ensure that: (1) No diminution in activities of daily living. A participant's abilities in activities of daily living do not diminish unless the circumstances of the individual's clinical condition demonstrate that diminution was unavoidable. This includes the participant's ability to (i) Bathe, dress, and groom; (ii) Transfer and ambulate; (iii) Toilet; and (iv) Eat. (2) Appropriate treatment and services given. A participant is given the appropriate treatment and services to maintain or improve his or her abilities specified in paragraph (b)(1) of this section. (3) Necessary services provided to participant unable to carry out activities of daily living. A participant who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, hydration, grooming, personal and oral hygiene, mobility, and bladder and bowel elimination. (c) Mental and psychosocial functioning. The State home must make counseling and related psychosocial services available for improving mental and psychosocial functioning of participants with mental or psychosocial needs. The services available must include counseling and psychosocial services provided by licensed independent mental health professionals. (d) Medication errors. The State home must comply with § 51.120(n) with respect to medication errors.

38 C.F.R. § 51.435 Nursing services.

The State home must provide an organized nursing service with a sufficient number of qualified nursing personnel to meet the total nursing care needs, as determined by participant assessments and individualized comprehensive care plans, of all participants in the program. (a) There must be at least one registered nurse on duty each day of operation of the adult day health care program. This nurse must be currently licensed by the State and must have, in writing, administrative authority, responsibility, and accountability for the functions, activities, and training of the nursing and program assistants. (b) The number and level of nursing staff is determined by the authorized capacity of participants and the nursing care needs of the participants. (c) Nurse staffing must be adequate for meeting the standards of this part.

38 C.F.R. § 51.440 Dietary services.

The State home must comply with the requirements concerning the dietary services set forth in § 51.140, except paragraph 51.140(f). For purposes of this section, the references in the cited section to resident refer to a participant in subpart F of this part. The State home adult day health care program will provide nourishment to participants on the following schedule: (a) At regular times comparable to normal mealtimes in the community, each participant may receive and program management must provide at least two meals daily for those veterans staying more than four hours and at least one meal for those staying less than four hours. (b) The program management must offer snacks and fluids as appropriate to meet the participants' nutritional and fluid needs.

38 C.F.R. § 51.445 Physician services.

As a condition of enrollment in adult day health care program, a participant must have a written physician order for admission. Each participant's medical record must contain the name of the participant's primary care physician. If a participant's medical needs require that the participant be placed in an adult day health care program that offers medical supervision, the primary care physician must state so in the order for admission. Each participant must remain under the care of a physician. (a) Physician supervision. If the adult day health care program offers medical supervision, the program management must ensure that (1) The medical care of each participant is supervised by a primary care physician; and (2) Another physician is available to supervise the medical care of participants when their primary care physician is unavailable. (b) Frequency of physician reviews. If the adult day health care program offers medical supervision: (1) The participant must be seen by the primary care physician at least annually and as indicated by a change of condition. (2) The program management must have a policy to help ensure that adequate medical services are provided to the participant. (3) At the option of the primary care physician, required reviews in the program after the initial review may alternate between personal physician reviews and reviews by a physician assistant, nurse practitioner, or clinical nurse specialist in accordance with paragraph (e) of this section. (c) Availability of acute care. If the adult day health care program offers medical supervision, the program management must provide or arrange for the provision of acute care when it is indicated. (d) Availability of physicians for emergency care. In case of an emergency, the program management must ensure that participants are able to obtain necessary emergency care. (e) Physician delegation of tasks. (1) A primary care physician may delegate tasks to (i) A certified physician assistant or a certified nurse practitioner, or (ii) A clinical nurse specialist who- (A) Is acting within the scope of practice as defined by State law; and (B) Is under the supervision of the physician. (2) The primary care physician may not delegate a task when the provisions of this part specify that the primary care physician must perform it personally, or when the delegation is prohibited under State law or by the State home's policies.

38 C.F.R. § 51.450 Specialized rehabilitative services.

(a) Provision of services. If specialized rehabilitative services such as, but not limited to, physical therapy, speech therapy, occupational therapy, and mental health services for mental illness are required in the participant's comprehensive care plan, program management must (1) Provide the required services; or (2) Obtain the required services and equipment from an outside resource, in accordance with § 51.210(h), from a provider of specialized rehabilitative services. (b) Written order. Specialized rehabilitative services must be provided under the written order of a physician by qualified personnel.

38 C.F.R. § 51.455 Dental services.

(a) If the adult day health care program offers medical supervision, program management must, if necessary, assist the participant and family/caregiver (1) In making dental appointments; and (2) By arranging for transportation to and from the dental services. (b) If the adult day health care program offers medical supervision, program management must promptly assist and refer participants with lost or damaged dentures to a dentist.

38 C.F.R. § 51.460 Administration of drugs.

If the adult day health care program offers medical supervision, the program management must assist participants with the management of medication and have a system for disseminating drug information to participants and program staff in accordance with this section. (a) Procedures. The State home must (1) Provide reminders or prompts to participants to initiate and follow through with self-administration of medications. (2) Establish a system of records to document the administration of drugs by participants and/or staff. (3) Ensure that drugs and biologicals used by participants are labeled in accordance with currently accepted professional principles, and include the appropriate accessory and cautionary instructions, and the expiration dates when applicable. (4) Store all drugs, biologicals, and controlled schedule II drugs listed in 21 CFR 1308.12 in locked compartments under proper temperature controls, permit only authorized personnel to have access, and otherwise comply with all applicable State and Federal laws. (b) Service consultation. The State home must provide the services of a pharmacist licensed in the State in which the program is located who provides consultation, as needed, on all the provision of drugs.

38 C.F.R. § 51.465 Infection control.

The State home must meet the requirements concerning infection control set forth in § 51.190. For purposes of this section, the references in the cited section to resident refer to a participant in this section.

38 C.F.R. § 51.470 Physical environment.

The State home must ensure that the physical environment is designed, constructed, equipped, and maintained to protect the health and safety of participants, personnel, and the public. (a) Life safety from fire. The State home must meet the applicable requirements of National Fire Protection Association's NFPA 101, Life Safety from fire, as incorporated by reference in § 51.200. (b) Space and equipment. (1) The State home must— (i) Provide sufficient space and equipment in dining, health services, recreation, and program areas to enable staff to provide participants with needed services as required by this subpart F and as identified in each participant's comprehensive care plan; and (ii) Maintain all essential mechanical, electrical, and patient care equipment in safe operating condition. (2) Each adult day health care program, when it is co-located in a nursing home, domiciliary, or other care facility, must have its own separate designated space during operational hours. (3) The indoor space for adult day health care must be at least 100 square feet per participant including office space for staff and must be 60 square feet per participant excluding office space for staff. (4) Each program of care will need to design and partition its space to meet its needs, but the following functional areas must be available: (i) A dividable multipurpose room or area for group activities, including dining, with adequate table-setting space. (ii) Rehabilitation rooms or an area for individual and group treatments for occupational therapy, physical therapy, and other treatment modalities. (iii) A kitchen area for refrigerated food storage, the preparation of meals and/or training participants in activities of daily living. (iv) An examination and/or medication room. (v) A quiet room (with a bed or a reclining chair), which functions to separate participants who become ill or disruptive, or who require rest, privacy, or observation. It should be separate from activity areas, near a restroom, and supervised. (vi) Bathing facilities adequate to facilitate bathing of participants with functional impairments. (vii) Toilet facilities and bathrooms easily accessible to people with mobility problems, including participants in wheelchairs. There must be at least one toilet for every eight participants. The toilets must be equipped for use by persons with limited mobility, easily accessible from all programs areas, i.e., preferably within 40 feet from that area, designed to allow assistance from one or two staff, and barrier-free. (viii) Adequate storage space. There should be space to store arts and crafts materials, wheelchairs, chairs, individual handiwork, and general supplies. Locked cabinets must be provided for files, records, supplies, and medications. (ix) An individual room for counseling and interviewing participants and family members. (x) A reception area. (xi) An outside space that is used for outdoor activities that is safe, accessible to indoor areas, and accessible to those with a disability. This space may include recreational space and garden area. It should be easily supervised by staff. (c) Furnishings. Furnishings must be available for all participants. This must include functional furniture appropriate to the participants' needs. Furnishings must be attractive, comfortable, and homelike, while being sturdy and safe. (d) Participant call system. The coordinator's station must be equipped to receive participant calls through a communication system from: (1) Clinic rooms; and (2) Toilet and bathing facilities. (e) Other environmental conditions. The State home must provide a safe, functional, sanitary, and comfortable environment for the participants, staff and the public. The facility management must (1) Establish procedures to ensure that water is available to essential areas if there is a loss of normal water supply; (2) Have adequate outside ventilation by means of windows, or mechanical ventilation, or a combination of the two; (3) Equip corridors, when available, with firmly-secured handrails on each side; and (4) Maintain an effective pest control program so that the facility is free of pests and rodents.

38 C.F.R. § 51.475 Administration.

For purposes of this section, the references in the cited section to nursing home and nursing home care refer to adult day health care programs and adult day health care. The State home must comply with all administration requirements set forth in § 51.210 except for the following if the adult day health care program does not offer medical supervision: (a) Medical director. State home adult day health care programs are not required to designate a primary care physician to serve as a medical director, and therefore are not required to comply with § 51.210(i). (b) Laboratory services, radiology, and other diagnostic services. State home adult day health care programs are not required to provide the medical services identified in § 51.210(m) and (n). (c) Quality assessment and assurance committee. State home adult day health care programs are not required to comply with § 51.210(p), regarding quality assessment and assurance committees consisting of specified medical providers and staff.

38 C.F.R. § 51.480 Transportation.

Transportation of participants to and from the adult day health care facility must be a component of the overall program of care. (a)(1) Except as provided in paragraph (a)(2) of this section, the State home must provide for transportation to enable participants, including persons with disabilities, to attend the program and to participate in State home-sponsored outings. (2) The veteran or the family of a veteran may decline transportation offered by the adult day health care program and make their own arrangements for transportation. (b) The State home must have a transportation policy that includes procedures for routine and emergency transportation. All transportation (including that provided under contract) must be in compliance with such procedures. (c) The State home must ensure that the transportation it provides is by drivers who have access to a device for two-way communication. (d) All systems and vehicles used by the State home to comply with this section must meet all applicable local, State and Federal regulations. (e) The State home must ensure that the care needs of each participant are addressed during transportation furnished by the home.

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