Federal Housing Administration (FHA): Section 232 Healthcare Facility Insurance Program-Updating Section 232 Program Regulations for Memory Care Residents
| Published date | 26 June 2020 |
| Citation | 85 FR 38323 |
| Record Number | 2020-13090 |
| Section | Rules and Regulations |
| Court | Housing And Urban Development Department |
38323
Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations
1
HUD also published a September 26, 2019
proposed rule supplement, 84 FR 50805, correcting
certain references in the September 13, 2019
proposed rule publication.
2
See, Background on memory care residents at 84
FR 48321–48322.
3
Federal civil rights statutes and regulations also
contain accessibility and nondiscrimination
requirements that apply, including regulations
under the Fair Housing Act (24 CFR part 100), the
Americans with Disabilities Act (28 CFR parts 35
(Title II) and 36 (Title III)), and Section 504 of the
Rehabilitation Act (24 CFR part 8), as applicable.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 232
[Docket No. FR 6022–F–02]
RIN 2502–AJ46
Federal Housing Administration (FHA):
Section 232 Healthcare Facility
Insurance Program—Updating Section
232 Program Regulations for Memory
Care Residents
AGENCY
: Office of the Assistant
Secretary for Housing, HUD.
ACTION
: Final rule.
SUMMARY
: This final rule updates the
requirements for the location of
bathrooms in board and care and
assisted living facilities insured under
HUD’s Section 232 program, which
insures mortgage loans to facilitate the
construction, substantial rehabilitation,
purchase, and refinancing of nursing
homes, intermediate care facilities,
board and care homes, and assisted-
living facilities. The rule will allow
providers to configure the facilities to
meet the needs of memory care
residents and allow for flexibility of the
bathroom requirement when financing
or refinancing existing facilities. This
final rule follows publication of a
September 13, 2019 proposed rule and
takes into consideration the public
comments received on the proposed
rule.
DATES
: Effective Date: This final rule is
effective July 27, 2020.
FOR FURTHER INFORMATION CONTACT
: John
M. Hartung, Director, Policy, Risk
Analysis & Lender Relations Division,
Office of Residential Care Facilities,
Office of Healthcare Programs, Office of
Housing, Department of Housing and
Urban Development, 1222 Spruce
Street, St. Louis, MO 63103–2836;
telephone number 314–418–5238 (this
is not a toll-free number). Persons with
hearing or speech impairments may
access this number through TTY by
calling the toll-free Federal Relay
Service at 800–877–8339 (this is a toll-
free number).
SUPPLEMENTARY INFORMATION
:
I. Background—HUD’s September 13,
2019 Proposed Rule
Under Section 232, 223(a)(7), and
223(f) of the National Housing Act (12
U.S.C. 1715w 12 U.S.C. 1715n(a)(7), and
12 U.S.C. 1715n (f)(4), respectively),
FHA insures mortgages to finance the
purchase or refinance of nursing homes,
intermediate care facilities, board and
care homes, and assisted living facilities
(collectively, residential healthcare
facilities). On September 13, 2019, HUD
published a proposed rule in the
Federal Register, at 84 FR 48321,
1
to
revise the current regulation governing
the Section 232 program. The proposed
rule sought to amend the bathroom
requirements to meet the needs of
memory care residents. Memory care
residents are those patients in assisted
living or board and care settings that
have cognitive impairments, such as
Alzheimer’s disease and other
dementias who require care in a secure
setting.
As described in the proposed rule,
memory care residents are a significant
and growing proportion of the
residential healthcare facilities
population.
2
Facilities must
accommodate residents’ cognitive and
physical impairments, and appropriate
design enhances the health and safety of
persons with Alzheimer’s disease or
other forms of dementia. For insured
facilities, HUD’s Section 232 regulation
requires a specific number of bathrooms
per residents and specifies the physical
configuration of a board and care home
or an assisted living facility, prohibiting
configurations where the access path
from a bedroom to a bathroom passes
through a public area. HUD’s proposed
rule, therefore, proposed revising the
regulation to add flexibility for
financing existing residential healthcare
facilities where complying with § 232.7
requirements for number or
configuration of bathrooms is not
practicable or would not adequately
serve memory care residents. This
change would enable existing
residential healthcare facilities that
currently serve memory care residents
to obtain Section 232 refinancing.
Specifically, HUD proposed an
exemption from the current requirement
for one full bathroom for every four
residents, and from the current
prohibition on bathroom access that
passes through a public corridor or area.
Additional details about the proposed
rule may be found at 84 FR 48321
(September 12, 2019).
II. Final Rule
This final rule adopts the proposed
rule without change. The final rule
provides an exemption from the current
requirement of one full bathroom for
every four residents, and from the
current prohibition on bathroom access
that passes through a public corridor or
area, only for memory care facilities
whose financing is being insured
pursuant to Section 223(f) or 223(a)(7) of
the National Housing Act, and only
when four considerations are satisfied:
(1) Memory care residents must reside
in a separate, secured, and locked area
of the board and care home or assisted
living facility; (2) any bathroom access
from a memory care resident’s bedroom
or sleeping area that passes through a
public corridor or area must be in that
separate, secured, and locked area of the
board and care home or assisted living
facility; (3) memory care residents of
such areas require full assistance or
supervision when bathing; and (4)
wards serving memory care residents
have no more than two beds per unit
and a half-bath in each unit. This
exemption would not apply to new
construction or substantial
rehabilitation insured under Section
232, and those projects must continue to
follow the long-standing bathroom
requirements for board and care home
or assisted living units.
This final rule does not change the
requirement in § 232.2 that all facilities
must still comply with any applicable
Federal, State or local standards and
requirements, including requirements
specific to memory care facilities.
3
III. Discussion of Public Comments
Received on September 13, 2019,
Proposed Rule
The public comment period for the
rule closed on November 12, 2019. HUD
received two public comments in
response to the proposed rule. These
comments were submitted by a private
citizen and an independent living
specialist who works with the
residential healthcare facility industry.
Commenters were generally supportive
of HUD’s rule, but one commenter
recommended the rule be expanded to
address the Section 232 program as it
relates to other Federal and State
programs and requirements, particularly
Medicaid. The commenter requested
that HUD work with the Department of
Health and Human Services, Centers for
Medicare and Medicaid Services (CMS)
and States to implement CMS
requirements for settings that are
eligible for reimbursement for Medicaid
home and community-based services.
The commenter also requested that HUD
clarify whether Medicaid enrollees will
be able to use HUD programs to pay fair
market rent or participate in rental
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Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations
assistance; and that HUD should
address institutional bias related to
Medicaid and housing systems. While
HUD appreciates the comments, this
final rule is limited to removing an
impediment to providing needed
mortgage insurance for existing memory
care facilities.
IV. Findings and Certifications
Regulatory Review—Executive Orders
12866 and 13563
Under Executive Order 12866
(Regulatory Planning and Review), a
determination must be made by the
Office of Management and Budget
regarding whether a regulatory action is
significant and therefore subject to
review in accordance with the
requirements of the order. Executive
Order 13563 (Improving Regulations
and Regulatory Review) directs
executive agencies to analyze
regulations that are ‘‘outmoded,
ineffective, insufficient, or excessively
burdensome, and to modify, streamline,
expand, or repeal them in accordance
with what has been learned.’’ Executive
Order 13563 also directs that, where
relevant, feasible, and consistent with
regulatory objectives, and to the extent
permitted by law, agencies are to
identify and consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public. This rule allows
additional flexibility for the financing of
residential healthcare facilities.
Executive Order 13771
Executive Order 13771, entitled
‘‘Reducing Regulation and Controlling
Regulatory Costs,’’ was issued on
January 30, 2017. This final rule is
expected to be an Executive Order
13771 deregulatory action by providing
additional flexibility for healthcare
facilities, as discussed above.
Environmental Review
A Finding of No Significant Impact
(FONSI) with respect to the
environment was made prior to
publication of the proposed rule, in
accordance with HUD regulations at 24
CFR part 50, which implement Section
102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C.
4332(2)(C)). The FONSI remains
applicable, and is available for public
inspection between the hours of 8 a.m.
and 5 p.m. weekdays in the Regulations
Division, Office of General Counsel,
Department of Housing and Urban
Development, 451 7th Street SW, Room
10276, Washington, DC 20410–0500.
Due to security measures at the HUD
Headquarters building, please schedule
an appointment to review the FONSI by
calling the Regulations Division at 202–
708–3055 (this is not a toll-free
number). Individuals with speech or
hearing impairments may access this
number via TTY by calling the Federal
Relay Service at 800–877–8339.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA) (2 U.S.C. 1531–1538)
establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on state, local, and
tribal governments and on the private
sector. This final rule does not impose
any Federal mandate on any state, local,
or tribal government, or on the private
sector, within the meaning of UMRA.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.) generally requires
an agency to conduct a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements, unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities.
HUD believes that this final rule
imposes no additional requirements on
small businesses. Currently, HUD has a
total of 3,738 residential healthcare
facilities in its portfolio and completes
approximately 300 firm commitments
each year for 223(f) and 223(a)(7)
refinances. HUD is providing waivers on
3 percent of those applications and
waiver requests continue to increase. As
noted in the preamble of the final rule,
applicants have advised that the
requirement regarding the number and
location of bathrooms presented barriers
to properly serving memory care
residents, who need specialized
support. HUD believes this final rule
will resolve the inadequacy of the
current bathroom requirements, thus,
easing the existing burden on those
entities seeking to accommodate
memory care residents and entities
seeking to finance or refinance facilities.
Additionally, both owners, small and
large, and memory care residents will
benefit from the opportunity to finance
their facility in compliance with this
new framework.
Accordingly, the undersigned certifies
that this final rule will not have a
significant economic impact on a
substantial number of small entities.
Executive Order 13132, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits to the extent
practicable and permitted by law, an
agency from publishing any rule that
has federalism implications if the rule
either imposes substantial direct
compliance costs on state and local
governments and is not required by
statute, or preempts state law, unless the
relevant requirements of Section 6 of the
Executive Order are met. This rule does
not have federalism implications and
does not impose substantial direct
compliance costs on state and local
governments or preempt state law
within the meaning of the Executive
Order.
Congressional Review of Final Rules
The Office of Information and
Regulatory Affairs has determined that
this final rule is not a major rule, as
defined by 5 U.S.C. 804, for purposes of
congressional review of agency
rulemaking pursuant to the
Congressional Review Act, Public Law
104–121, sec. 251, 110 Stat. 868, 873
(codified at 5 U.S.C. 804). This rule will
not result in an annual effect on the
economy of $100 million or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based companies to compete
with foreign-based companies in
domestic and export markets.
Catalogue of Federal Domestic
Assistance
The Catalogue of Federal Domestic
Assistance Number for the Mortgage
Insurance Nursing Homes, Intermediate
Care Facilities, Board and Care Homes
and Assisted Living Facilities is 14.129.
List of Subjects in 24 CFR Part 232
Fire prevention, Health facilities,
Loan programs—health, Loan
programs—housing and community
development, Mortgage insurance,
Nursing homes, Reporting and
recordkeeping requirements.
Accordingly, for the reasons stated
above, HUD amends 24 CFR part 232 as
follows:
PART 232—MORTGAGE INSURANCE
FOR NURSING HOMES,
INTERMEDIATE CARE FACILITIES,
BOARD AND CARE HOMES, AND
ASSISTED LIVING FACILITIES
■1. The authority citation for 24 CFR
part 232 continues to read as follows:
Authority: 12 U.S.C. 1715b; 1715w; 1735d,
and 1735f-19; 42 U.S.C. 3535(d).
■2. Revise § 232.7 to read as follows:
§ 232.7 Bathroom.
(a) General requirement. For a board
and care home or assisted living facility
to be eligible for insurance under this
part:
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Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations
(1) The board and care home or
assisted living facility must have no less
than one full bathroom provided for
every four residents; and
(2) Bathroom access from any
bedroom or sleeping area must not pass
through a public corridor or area.
(b) Exemption for existing projects
providing memory care. The following
applies to a board and care home or
assisted living facility that provides
housing for residents in need of memory
care, i.e., care for residents who have
cognitive impairments, such as
Alzheimer’s disease or other dementias:
(1) Subject to paragraph (b)(2) of this
section, a project seeking insurance
under subpart E, pursuant to section
223(f) or 223(a)(7) of the National
Housing Act, may be eligible for
insurance without meeting the general
requirement in paragraph (a) of this
section, if the project meets the
following four requirements:
(i) Memory care residents are in a
separate, secured, and locked area of the
board and care home or assisted living
facility;
(ii) Any bathroom access from a
memory care resident’s bedroom or
sleeping area that passes through a
public corridor or area is in a separate,
secured, and locked area of the board
and care home or assisted living facility
prescribed in (b)(1)(i) of this section;
(iii) Memory care residents receive
full assistance or supervision while
bathing; and
(iv) Memory care residents reside in
wards that contain no more than two
beds per unit and have a half-bath in
each unit.
(2) If a facility serving memory care
residents also serves residents who are
not in a separate, secured, and locked
area of the board and care home or
assisted living facility, this exemption
applies only to the separate, secured,
and locked area in which solely memory
care residents reside.
Dated: June 11, 2020.
Brian D. Montgomery,
Deputy Secretary.
[FR Doc. 2020–13090 Filed 6–25–20; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT of EDUCATION
34 CFR Part 600
Institutional Eligibility Under the
Higher Education Act of 1964, as
Amended
CFR Correction
■In Title 34 of the Code of Federal
Regulations, Parts 400 to 679, revised as
of July 1, 2019, on page 87, in § 600.9,
paragraph (d) is reinstated to read as
follows:
§ 600.9 State authorization.
* * * * *
(d) An additional location or branch
campus of an institution that meets the
requirements under paragraph (a)(1) of
this section and that is located in a
foreign country, i.e., not in a State, must
comply with §§ 600.8, 600.10, 600.20,
and 600.32, and the following
requirements:
(1) For any additional location at
which 50 percent or more of an
educational program (as defined in
§ 600.2) is offered, or will be offered, or
at a branch campus—
(i) The additional location or branch
campus must be legally authorized by
an appropriate government authority to
operate in the country where the
additional location or branch campus is
physically located, unless the additional
location or branch campus is physically
located on a U.S. military base, facility,
or area that the foreign country has
granted the U.S. military to use and the
institution can demonstrate that it is
exempt from obtaining such
authorization from the foreign country;
(ii) The institution must provide to
the Secretary, upon request,
documentation of such legal
authorization to operate in the foreign
country, demonstrating that the foreign
governmental authority is aware that the
additional location or branch campus
provides postsecondary education and
that the government authority does not
object to those activities;
(iii) The additional location or branch
campus must be approved by the
institution’s recognized accrediting
agency in accordance with §§ 602.24(a)
and 602.22(a)(2)(viii), as applicable;
(iv) The additional location or branch
campus must meet any additional
requirements for legal authorization in
that foreign country as the foreign
country may establish;
(v) The institution must report to the
State in which the main campus of the
institution is located at least annually,
or more frequently if required by the
State, the establishment or operation of
each foreign additional location or
branch campus; and
(vi) The institution must comply with
any limitations the State places on the
establishment or operation of the foreign
additional location or branch campus.
(2) An additional location at which
less than 50 percent of an educational
program (as defined in § 600.2) is
offered or will be offered must meet the
requirements for legal authorization in
that foreign country as the foreign
country may establish.
(3) In accordance with the
requirements of 34 CFR 668.41, the
institution must disclose to enrolled and
prospective students at foreign
additional locations and foreign branch
campuses the information regarding the
student complaint process described in
34 CFR 668.43(b), of the State in which
the main campus of the institution is
located.
(4) If the State in which the main
campus of the institution is located
limits the authorization of the
institution to exclude the foreign
additional location or branch campus,
the foreign additional location or branch
campus is not considered to be legally
authorized by the State.
[FR Doc. 2020–13899 Filed 6–25–20; 8:45 am]
BILLING CODE 1301–00–D
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2019–0623; FRL–10010–
53–Region 8]
Approval and Promulgation of
Implementation Plans; Wyoming;
Regional Haze 5-Year Progress Report
State Implementation Plan
AGENCY
: Environmental Protection
Agency (EPA).
ACTION
: Final rule.
SUMMARY
: The Environmental Protection
Agency (EPA) is approving a regional
haze progress report State
Implementation Plan (SIP) revision
submitted by the State of Wyoming on
November 28, 2017. The revision
addresses the requirements for states to
submit periodic reports describing
progress toward reasonable progress
goals established for regional haze and
a determination of adequacy of the
State’s existing regional haze SIP and
federal implementation plan (FIP). The
EPA is taking this action pursuant to
section 110 of the Clean Air Act (CAA).
DATES
: This rule is effective on July 27,
2020.
ADDRESSES
: The EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2019–0623. All
documents in the docket are listed on
the http://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
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