Caregivers Program, 26148-26176 [2011-10962]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Rules and Regulations]
[Pages 26148-26176]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10962]



[[Page 26147]]

Vol. 76

Thursday,

No. 87

May 5, 2011

Part IV





Department of Veterans Affairs





-----------------------------------------------------------------------



38 CFR Parts 17 and 71



 Caregivers Program; Interim Final Rule

Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Rules 
and Regulations

[[Page 26148]]


-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17 and 71

RIN 2900-AN94


Caregivers Program

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: This document promulgates Department of Veterans Affairs (VA) 
interim final regulations concerning a new caregiver benefits program 
provided by VA. This rule implements title I of the Caregivers and 
Veterans Omnibus Health Services Act of 2010, which was signed into law 
on May 5, 2010. The purpose of the new caregiver benefits program is to 
provide certain medical, travel, training, and financial benefits to 
caregivers of certain veterans and servicemembers who were seriously 
injured in the line of duty on or after September 11, 2001.

DATES: Effective Date: This rule is effective on May 5, 2011. Comments 
must be received on or before July 5, 2011.

ADDRESSES: Written comments may be submitted by email through https://www.regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AN94, Caregivers Program.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m. 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. In addition, during the comment period, comments may be 
viewed online through the Federal Docket Management System (FDMS) at 
https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Deborah Amdur, Chief Consultant, 
Veterans Health Administration, 810 Vermont Avenue, NW., Washington, DC 
20420, 202-461-6780. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On May 5, 2010, the President signed into 
law the Caregivers and Veterans Omnibus Health Services Act of 2010, 
Public Law 111-163. Among other things, title I of the law established 
38 U.S.C. 1720G, which requires VA to ``establish a program of 
comprehensive assistance for family caregivers of eligible veterans,'' 
as well as a program of ``general caregiver support services'' for 
caregivers of ``veterans who are enrolled in the health care system 
established under [38 U.S.C. 1705(a)] (including caregivers who do not 
reside with such veterans).'' 38 U.S.C. 1720G(a),(b). This rulemaking 
implements this new statutory authority.
    Veterans and servicemembers may be eligible for the Family 
Caregiver program if they incurred or aggravated a serious injury in 
the line of duty on or after September 11, 2001. We anticipate that 
roughly 3,596 veterans and servicemembers will qualify to receive 
benefits under this rule during the first year, at an estimated cost of 
$69,044,469.40 for FY2011 and $777,060,923.18 over a 5 year period. VA 
distinguishes between three types of caregivers based on the 
requirements of the law: Primary Family Caregivers, Secondary Family 
Caregivers, and General Caregivers. A Primary Family Caregiver is an 
individual designated as a ``primary provider of personal care 
services'' for the eligible veteran under 38 U.S.C. 1720G(a)(7)(A), who 
the veteran specifies on the joint application and is approved by VA as 
the primary provider of personal care services for the veteran. A 
Secondary Family Caregiver is an individual approved as a ``provider of 
personal care services'' for the eligible veteran under 38 U.S.C. 
1720G(a)(6)(B), and generally serves as a back-up to the Primary Family 
Caregiver. General Caregivers are ``caregivers of covered veterans'' 
under the program in 38 U.S.C. 1720G(b), and provide personal care 
services to covered veterans, but do not meet the criteria for 
designation or approval as a Primary or Secondary Family Caregiver.
    In general, caregivers receive the following benefits and services:
     General Caregivers--Education and training on caring for 
an enrolled Veteran; use of telehealth technologies; counseling and 
other services under Sec.  71.50; and respite care.
     Secondary Family Caregivers--All benefits and services 
available to General Caregivers; monitoring; veteran-specific 
instruction and training; beneficiary travel under 38 CFR part 70; 
ongoing technical support; and counseling.
     Primary Family Caregivers--All benefits and services 
available to both General Caregivers and Secondary Family Caregivers; 
monthly caregiver stipend; respite care available for at least 30 days 
per year, and may exceed 30 days per year if clinically appropriate and 
if requested by the Primary Family Caregiver; and health care coverage 
(if they are eligible).
    We refer throughout these rules to the wide array of benefits 
provided to veterans and their caregivers under section 1720G using the 
term ``caregiver benefits.'' Some of these benefits are delivered 
directly to veterans, such as monitoring the quality of the care 
provided by caregivers to ensure that the veteran is able to live in a 
residential setting without unnecessary deterioration of his or her 
disability, and safe from potential abuse or neglect. Other benefits 
are delivered directly to the veteran's caregiver, such as a stipend or 
enrollment in the Civilian Health and Medical Program of the Department 
of Veterans Affairs (CHAMPVA), which provides health coverage for 
certain Primary Family Caregivers. The fact that caregiver benefits are 
offered and delivered to both the veteran and his or her caregiver 
makes the benefits significantly different from virtually all other 
benefits programs offered through the Veterans Health Administration. 
For this reason, we have organized the regulations implementing section 
1720G in a new part 71 of title 38, U.S. Code of Federal Regulations. 
This will make the benefits easy to find, and will emphasize the unique 
nature of the program.
    VA welcomes comments on any aspect of this rule.
    We now discuss the new regulations section by section.

71.10 Purpose and Scope

    Section 71.10 establishes the purpose and scope of the new part 71, 
CFR. The purpose of this part is to implement VA's caregiver benefits 
program. Receipt of ``caregiver benefits'' under 38 CFR part 71 is 
based on an independent eligibility determination for benefits--it is 
not a barrier to, or substitute for, other benefits offered by VA. If 
you are a veteran and a caregiver to another veteran, you will not lose 
eligibility for any of your veteran benefits because you are a 
caregiver.

71.15 Definitions

    Section 71.15 provides definitions for the purposes of part 71.
    We define an ``inability to perform an activity of daily living 
(ADL)'' as inability to perform any of six activities that are widely 
recognized as ADLs by clinicians and are found in the Katz Basic ADL 
Scale. In addition, we include a seventh activity specific to veterans 
who require the use of prosthetics or orthopedic appliance. Inability 
to perform an activity of daily living is one of several alternative 
bases for a determination that an individual is in need of personal 
care services under Sec.  71.20(c)(1), and is one of the

[[Page 26149]]

alternative bases for such need per section 1720G(a)(2)(C)(i).
    We believe that the seven activities listed in the definition 
sufficiently identify the activities that would be impaired for an 
extended period of 6 months or more as a result of a serious injury, as 
that term is defined in this rulemaking; however, we welcome 
suggestions from the public as to additional activities that should be 
included in this list.
    We define an eligible veteran as ``a veteran, or a servicemember, 
who is found eligible for a caregiver under Sec.  71.20.'' This term is 
established for ease of reference throughout the part 71 regulations. 
The term is also used in section 1720G(a).
    We define ``General Caregiver,'' ``Primary Family Caregiver,'' and 
``Secondary Family Caregiver'' by referencing the sections that set 
forth the eligibility requirements for, and describe how to establish 
eligibility for, benefits as such a caregiver.
    We define ``in the best interest'' to mean, ``for the purpose of 
determining whether it is in the best interest of the eligible veteran 
to participate in the Family Caregiver program under 38 U.S.C. 
1720G(a), a clinical determination that participation in such program 
is likely to be beneficial to the eligible veteran. Such determination 
will include consideration, by a clinician, of whether participation in 
the program significantly enhances the eligible veteran's ability to 
live safely in a home setting, supports the eligible veteran's 
potential progress in rehabilitation, if such potential exists, and 
creates an environment that supports the health and well-being of the 
eligible veteran.''
    Under 38 U.S.C. 1720G(a)(1)(B), VA ``shall only provide support 
under the [Family Caregiver program] to a family caregiver of an 
eligible veteran if the Secretary determines it is in the best interest 
of the eligible veteran to do so.'' Congress has left it to the 
Secretary to define ``in the best interest'' for this purpose. VA 
concludes that determinations of ``in the best interest'' must be 
clinical determinations, guided by VA health professionals' judgment on 
what care will best support the health and well-being of the veteran or 
servicemember--including that which offers the best opportunity for 
recovery and rehabilitation, whenever possible. In some cases a 
clinician may determine that other care and maintenance options would 
better promote the eligible veteran's functional capabilities and 
potential for independence.
    We define the ``[n]eed for supervision or protection based on 
symptoms or residuals of neurological or other impairment or injury'' 
as requiring supervision or assistance based on any one of seven listed 
impairments. We based these impairments on the UK Functional 
Independence Measure and Functional Assessment Measure, and the 
Neuropsychiatric Inventory. Like the definition of activity of daily 
living (ADL), we believe that this definition targets the population 
that section 1720G(a) is clearly intended to benefit. The need for 
supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury is the second alternative 
basis for a determination that an individual is in need of personal 
care services under Sec.  71.20(c)(2), and is one of the alternative 
bases for such need per section 1720G(a)(2)(C)(ii). As with the 
definition of ADL, we welcome suggestions from the public as to 
additional impairments that should be included in this list.
    This regulation provides elaboration upon the statutory definition 
of ``personal care services'' set out in 38 U.S.C. 1720G(d)(4). There, 
personal care services is said to mean ``[a]ssistance with one or more 
independent activities of daily living [and] [a]ny other non-
institutional extended care (as such term is used in section 1701(6)(E) 
of [title 38]).'' The term ``independent activity of daily living'' 
does not have a commonly understood usage or meaning. Consistent with 
the purpose of the statute, we interpret ``independent activity of 
daily living'' to mean personal functions required in everyday living 
to sustain health and well-being and keep oneself safe from hazards or 
dangers incident to one's daily environment.
    Similarly, non-institutional extended care services are not defined 
in 38 U.S.C. 1701(6)(E) in a manner that delineates the types of non-
institutional extended care that constitute ``personal care services'' 
under the statute--rather that section merely authorizes the Secretary 
to provide non-institutional extended care. (See 38 U.S.C. 1701(6)(E) 
explaining that the term ``medical services'' includes 
``noninstitutional extended care services, including alternatives to 
institutional extended care that the Secretary may furnish directly, by 
contract, or through provision of case management by another provider 
or payer.'') VA provides non-institutional care services to enrolled 
veterans (and as provided in 38 CFR 17.36(a)) through VA's medical 
benefits package, which include but are not limited to 
``noninstitutional geriatric evaluation, noninstitutional adult day 
health care, and noninstitutional respite care.'' 38 CFR 
17.38(a)(1)(xi)(B).
    Based on the types of non-institutional care services provided 
under title 38 and our interpretation of the term ``independent 
activities of daily living'' within the context of the statute, we read 
these terms together to mean ``care or assistance of another person 
necessary in order to support the eligible veteran's health and well-
being, and perform personal functions required in everyday living 
ensuring the eligible veteran remains safe from hazards or dangers 
incident to his or her daily environment.'' We welcome public comments 
on our interpretation of this term.
    We define a ``primary care team'' as ``a group of medical 
professionals who care for a patient and who are selected based on the 
clinical needs of the patient. The team must include a primary care 
provider who coordinates the care, and may include clinical specialists 
(e.g., a neurologist, psychiatrist, etc.), resident physicians, nurses, 
physicians' assistants, nurse practitioners, occupational or 
rehabilitation therapists, social workers, etc., as indicated by the 
needs of the particular veteran.'' The term is used throughout the 
regulations to refer to the medical professionals who approve and/or 
monitor caregiver benefits. A team, rather than a single individual, is 
generally necessary due to the complex nature of a serious injury or 
injuries and their impact on the veteran and their caregivers that are 
prerequisites to eligibility and to the ongoing obligation on the part 
of VA to monitor and provide support for the veteran's home-based care.
    Consistent with 38 U.S.C. 1720G(a), we define ``serious injury'' as 
``any injury, including traumatic brain injury, psychological trauma, 
or other mental disorder, incurred or aggravated in the line of duty in 
the active military, naval, or air service on or after September 11, 
2001, that renders the veteran or servicemember in need of personal 
care services.'' See discussion of section 71.20(c) below, which 
explains VA's rationale for establishing a causal relationship between 
the need for personal care services as it relates to the veteran or 
servicemember's serious injury.
    We define ``[u]ndergoing medical discharge'' by requiring ``that 
the servicemember has been found unfit for duty due to a medical 
condition by their Service's Physical Evaluation Board, and a date of 
medical discharge has been issued.'' This term is used to determine 
eligibility for a caregiver for active duty servicemembers. The

[[Page 26150]]

process of disability evaluation and medical discharge in some cases 
can be quite lengthy, and we do not believe that Congress intended to 
authorize prolonged caregiver benefits for active duty servicemembers, 
particularly because they have authorized Department of Defense to 
provide similar benefits to active duty servicemembers. Rather, we 
interpret the inclusion of servicemembers undergoing medical discharge 
in 38 U.S.C. 1720G(a)(2)(A) as an effort to ensure that, upon 
discharge, the individual will have a person identified and prepared to 
provide care. Therefore, this definition will ensure that the 
individual is far enough along in the medical discharge process that 
there will not be extended overlap between the individual's period of 
service and the time that he or she achieves veteran status. This 
definition will however, allow sufficient opportunity for a 
servicemember and caregiver to initiate an application for, and begin 
participation in, the VA program.

71.20 Eligible Veterans and Servicemembers

    Section 71.20 sets forth the eligibility criteria for a veteran or 
servicemember seeking a Primary or Secondary Family Caregiver.
    Section 71.20(a) and (b) restate the eligibility criteria from 38 
U.S.C. 1720G(a)(2)(A) and (B) without substantive change. VA's 
interpretation of the terms ``serious injury'' and ``undergoing medical 
discharge'' are addressed earlier in this notice.
    Paragraph (c) implements 38 U.S.C. 1720G(a)(2)(C)(i) through (iii). 
Therein, the law premises eligibility on the individual being in need 
of personal care services because the individual is unable ``to perform 
one or more activities of daily living''; having a ``need for 
supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury''; or ``such other matters 
as the Secretary considers appropriate.'' Although the statute does not 
clearly state that the need for personal care services must relate to 
the ``serious injury'' required under section 1720G(a)(2)(B), such a 
causal relationship is at a minimum strongly implied by the overall 
purpose and language of the law. We believe that it is reasonable to 
interpret the statute, which premises eligibility on a serious injury, 
as requiring that such serious injury is the basis for the individual's 
need for a caregiver. It would not be rational to decouple the concepts 
such that, for example, a veteran with a serious injury incurred during 
service could be eligible for a caregiver based on an injury incurred 
after service and that is unrelated to the veteran's service. We would 
explicitly require such a connection in paragraph (c). We invite public 
comment as to whether another interpretation is possible and consistent 
with Congressional intent.
    We also have included a requirement that the individual need 
personal care services ``for a minimum of 6 continuous months (based on 
a clinical determination).'' We believe it is clear the intent of the 
statute--as far as direct-to-caregiver benefits--was not to invoke 
family caregiver designations for shorter-term periods of recovery, for 
example a recovery from a single surgery that is not connected with a 
long-term condition. We believe throughout the public discussion and 
deliberations the focus is on persons with longer term disabilities. We 
believe that a 6-month minimum requirement of these services, based on 
a clinical determination, is a reasonable way to ensure that caregiver 
benefits are provided to those individuals who are most likely the 
intended beneficiaries of the law. This 6-month period, we believe, is 
a reasonable period on which to distinguish these more temporary 
circumstances. We note that the Family and Medical Leave Act (FMLA) 
uses 26 workweeks (approximately 6 months) as the period to which an 
eligible employee who is the spouse, son, daughter, parent, or next of 
kin of a covered servicemember may be accorded unpaid leave to provide 
care to that covered servicemember. While such leave is unpaid, we 
believe the fact this period was used for the protection of a 
caregiver's employment relationship buttresses the choice of 6 months 
as a reasonable dividing line to distinguish episodic periods of care.
    Paragraph (c)(3) establishes another basis upon which an individual 
can be determined to be ``in need of personal care services''--by 
establishing a basis for eligibility of veterans and servicemembers 
whose serious injury is a psychological trauma or mental disorder, and 
who have received Global Assessment of Functioning (GAF) scores of 30 
or less continuously for a 90-day period immediately preceding VA's 
receipt of the application for a Caregiver. The GAF assessment is a 
well-established mental health examination that uses a score of zero to 
100 to determine an individual's ability to function psychologically 
and socially. The following description from the Diagnostic and 
Statistical Manual of Mental Disorders--Fourth Edition (DSM-IV) of GAF 
scores in the 21-30 range is the minimum impairment standard that VA 
will require to consider a mental health diagnosis a serious injury: 
``Behavior is considerably influenced by delusions or hallucinations OR 
serious impairment, in communication or judgment (e.g., sometimes 
incoherent, acts grossly inappropriately, suicidal preoccupation) OR 
inability to function in almost all areas (e.g., stays in bed all day, 
no job, home, or friends).'' At this assessed level of impairment, the 
supervision or protection of a caregiver is essential to the 
individual. An individual who has been assessed as having a 
psychological trauma or mental disorder scored at 30 GAF or less 
generally requires a higher level of care that would provide constant 
supervision. We require that, during the 90-day period immediately 
preceding the date on which VA receives the Caregiver application, the 
individual was continuously scored at 30 GAF or less. For purposes of 
determining eligibility, we intend that this requirement will eliminate 
consideration of injuries that only consist of temporary psychological 
conditions, periodic exacerbations of such conditions, or conditions 
that have improved with treatment such that a caregiver is not 
required.
    Under paragraph (c)(3), VA will consider a GAF score to be 
``continuous'' if there are at least two scores during the 90-day 
period (one that shows a GAF score of 30 or less at the beginning of 
the 90-day period and one that shows a GAF score of 30 or less at the 
end of the 90-day period) and there are no intervening GAF scores of 
more than 30. We believe that this is sufficient evidence that the 
individual's GAF score has not changed to be more than 30 during that 
90-day period.
    Paragraph (c)(4) establishes another basis upon which a veteran can 
be determined to be ``in need of personal care services''--if the 
veteran was awarded service connection for a serious injury incurred or 
aggravated in the line of duty in the active military, naval, or air 
service on or after September 11, 2001, has been rated 100 percent 
disabled for that serious injury, and has been awarded special monthly 
compensation that includes an aid and attendance allowance. The 
Secretary considers appropriate the inclusion of this category of 
veterans.
    The criteria set forth under paragraph (c)(3) and (c)(4) are 
authorized by 38 U.S.C. 1720G(a)(2)(C)(iii) as alternate bases for the 
need for personal care services required by section 1720G(a)(2)(C).
    Paragraph (d) requires a clinical determination that it is in the 
best interest of the individual to participate in the program. This 
requirement is

[[Page 26151]]

based on 38 U.S.C. 1720G(a)(1)(B), which requires that the Secretary 
only provides support under the program if it is in the best interest 
of the individual to do so.
    Paragraph (e) bars authorization of a Family Caregiver if the 
services that would be provided by the Family Caregiver would be 
simultaneously and regularly provided by or through another individual 
or entity. This is to ensure that caregivers are authorized for those 
who do not simultaneously and regularly use other means to obtain 
personal care services. Our intent is to ensure that the Family 
Caregiver is not depending on VA or another agency to provide the 
personal care services that the Family Caregiver is expected to 
provide.
    Paragraphs (f) and (g) require that the individual, after VA 
designates a Family Caregiver, must agree to ``receive care at home'' 
and ``receive ongoing care from a primary care team.'' Under 38 U.S.C. 
1720G(a)(9)(A), VA must ``monitor the well-being of each eligible 
veteran receiving personal care services'' from a VA-designated 
caregiver. We are also required to document findings ``pertinent to the 
appropriate delivery of personal care services to an eligible veteran 
under the program,'' and ensure appropriate follow up, which may 
include visiting the eligible veteran's home and taking corrective 
action when necessary, including additional training to a Family 
Caregiver. See 38 U.S.C. 1720G(a)(9)(B) and (C). The consent required 
by paragraphs (f) and (g) as a prerequisite to an award of caregiver 
benefits will enable VA to perform these statutorily required functions 
and will help VA ensure that the assignment of a specific caregiver and 
the provision of care in the veteran's home will continue to be in the 
best interest of the individual.

71.25 Approval and Designation of Primary and Secondary Family 
Caregivers

    The rules governing approval and designation of particular 
individuals to serve as Family Caregivers, including the rules 
governing such individuals' eligibility to serve as Primary or 
Secondary Family Caregivers, are set forth in Sec.  71.25. Paragraph 
(a)(1) requires anyone who would serve as a Primary or Secondary Family 
Caregiver to complete and sign a joint application, along with the 
eligible veteran. This implements the joint-application requirement in 
38 U.S.C. 1720G(a)(4).
    Upon receiving the application, Sec.  71.25(a)(2) requires VA to 
determine whether the caregivers, as identified on the joint 
application, are appropriate to serve as caregivers and, if so, whether 
to designate applicants as Primary and Secondary Family Caregivers. 
These determinations require VA to perform all clinical evaluations and 
decide whether the application should be granted and, if so, whether 
each applicant should be designated as identified in the application, 
i.e., whether the identified Primary Family Caregiver should be so 
designated. Section 1720G(a)(7)(A) requires that VA, not the veteran, 
officially make the designation of Primary Family Caregiver, and, 
generally, section 1720G(a) requires VA to make certain evaluations 
prior to approving an application. In Sec.  71.25(a)(3) we recognize 
that veterans and servicemembers may not have a ``continuous'' GAF 
score available at the time of their application. Therefore, in these 
instances, an application may be put on hold for no more than 90 days, 
from the date the application was received. This will enable VA to 
determine whether the GAF score of 30 or less is simply a transient 
condition likely to respond quickly to treatment obviating the need for 
a caregiver.
    We note that section 1720G(a)(7)(A) appears to require that there 
be one Primary Family Caregiver as a prerequisite to receiving 
caregiver benefits under the law. It states that VA ``shall designate 
one family member of such eligible veteran as the primary provider of 
personal care services for such eligible veteran.'' However, we do not 
believe that such a narrow interpretation of the law is consistent with 
the overall intent of the statute. If an eligible veteran does not 
desire a Primary Family Caregiver, and, if VA's clinical assessment 
leads to the determination that one or more Secondary Family Caregivers 
can, collectively, provide sufficient personal care services to enable 
the veteran to remain at home, there is no reason to deny the 
application simply because no individual Family Caregiver wants or 
assumes the responsibilities and benefits that would come with 
designation as the Primary Family Caregiver. Rather, we interpret the 
statutory language concerning ``one family member * * * as the [Primary 
Family Caregiver]'' to indicate that there cannot be more than one 
Primary Family Caregiver.
    Paragraph (b) sets forth the requirements for basic eligibility to 
serve as a Primary or Secondary Family Caregiver. Our authority to 
assess applicants and determine whether we believe that they are 
capable of serving as Primary Family Caregivers derives from 38 U.S.C. 
1720G(a)(7)(B)(iv) (the Primary Family Caregiver must be ``considered 
by [VA] as competent to be the [Primary Family Caregiver]''). We are 
also required, under section 1720G(a)(1)(B), to provide caregiver 
benefits ``only * * * if [VA] determines it is in the best interest of 
the eligible veteran to do so.'' We believe that the criteria specified 
under paragraph (b) are reasonable restrictions that are in the best 
interest of every veteran or servicemember who could be eligible for a 
caregiver under this part. If the public has concerns about these 
criteria, or believes that there should be fewer restrictions or 
greater oversight, we welcome public comments on this issue.
    Paragraph (b)(1) requires that all Primary and Secondary Family 
Caregivers be at least 18 years of age. We do not believe that 
individuals under the age of majority can be relied upon to provide 
personal care services as defined by part 71. It is in the best 
interest of the eligible veteran to ensure that caregiver services are 
provided by individuals who are mature enough to understand the serious 
nature of this responsibility.
    Paragraph (b)(2) requires that the Family Caregiver either be a 
member of the eligible veteran's family, i.e., his or her spouse, son, 
daughter, parent, step-family member, or extended family member; or a 
person who lives full-time with the eligible veteran or will do so if 
designated as a Family Caregiver. These restrictions are directly from 
the definition of family member set forth in 38 U.S.C. 1720G(d)(3).
    Paragraph (b)(3) states that there ``must be no determination by VA 
of abuse or neglect of the eligible veteran by the applicant.'' We 
think it is not in the best interest of the eligible veteran to place 
an eligible veteran with a caregiver who has abused or neglected that 
eligible veteran.
    Paragraph (c) describes how VA assesses and trains applicants prior 
to granting an application and designating the applicants as Primary or 
Secondary Family Caregivers. Under 38 U.S.C. 1720G(a)(5)(B), we are 
required to assess applicants and under section 1720G(a)(6)(A) we are 
required to provide training and instruction to such applicants. Under 
section 1720G(a)(6)(B), VA cannot approve an applicant until such 
training has been completed successfully.
    Assessment for caregiver training is required under paragraph 
(c)(1), and authority is delegated to the eligible veteran's primary 
care team in collaboration with the facility Caregiver Support 
Coordinator, who will be in the best position to determine whether 
specific applicants are able to meet the

[[Page 26152]]

needs of a specific eligible veteran. Paragraphs (c)(1)(A) and (B) 
prescribe basic requirements for any assessment, which concern the 
applicant's ability to communicate and whether the applicant will be 
capable of following without supervision the eligible veteran's 
treatment plan. These two requirements are essential to completion of 
caregiver training, the ability to appropriately care for the eligible 
veteran, and there is no reason to provide such training to individuals 
who cannot meet these two basic requirements.
    Paragraph (c)(2) requires actual completion of caregiver training, 
which is discussed in detail in paragraph (d), and demonstration of 
``the ability to carry out the specific personal care services, core 
competencies, and other additional care requirements prescribed by the 
eligible veteran's primary care team.'' We believe that demonstration 
of the necessary skills is an essential part of ``the successful 
completion * * * of instruction, preparation, and training'' required 
by 38 U.S.C. 1720G(a)(6)(B). Moreover, without such demonstration, we 
cannot be assured that it is in the ``best interest of the eligible 
veteran'' to provide caregiver services through the particular 
applicant. 38 U.S.C. 1720G(a)(1)(B).
    Paragraph (d) concerns the education and training of applicants who 
wish to be Family Caregivers. Under section 1720G(a)(6)(C), ``subject 
to regulations [VA] shall prescribe, [VA shall] provide for necessary 
travel, lodging, and per diem expenses incurred by a family member of 
an eligible veteran in undergoing instruction, preparation, and 
training'' to be a Family Caregiver. The statute does not link this 
benefit to VA's beneficiary travel authority under 38 U.S.C. 111(e); 
however, the requirement to promulgate regulations authorizes VA to 
make such a link in this rulemaking. Moreover, we note that after the 
caregiver education and training is complete, section 
1720G(a)(3)(A)(i)(IV) requires VA to provide Primary and Secondary 
Family Caregivers with ``lodging and subsistence under [38 U.S.C.] 
111(e).'' Rather than establish a different program for travel benefits 
before and after training, we authorize beneficiary travel benefits (as 
implemented in 38 CFR part 70) in Sec.  71.25(d) to support the 
education and training of family members. This means that the provision 
of beneficiary travel is subject to any limitations or exclusions under 
part 70 as well. There is no reason to believe that section 1720G 
extends beneficiary travel benefits to Family Caregivers but does not 
also require the equal application of the limitations that apply to all 
individuals eligible for benefits under part 70.
    Under section 1720G(a)(6)(D), respite care is to be provided to the 
eligible veteran during the initial provision of education and training 
to a Family Caregiver, if the Family Caregiver's participation in 
training ``would interfere with the provision of personal care services 
to the eligible veteran.'' We implement this requirement in paragraph 
(d).
    Paragraph (d) also sets forth the essential components of caregiver 
training. Of course, it is impossible to establish by regulation all 
that will be required for a particular eligible veteran. However, we 
have developed a program of caregiver training that covers the 
essential components of home-based care. These essential components are 
called ``core competencies'' in the regulation. We understand that, in 
a particular case, an eligible veteran might not need much assistance 
in one particular competency, such as skin care or pain control; 
however, we believe that all of these identified competencies are 
present to at least some degree in virtually all situations in which we 
will find a veteran or servicemember eligible for a Family Caregiver. 
If a particular eligible veteran presents complex challenges in any or 
all of these core competencies, we will provide more specific training 
in addition to the minimum training provided to all caregiver 
applicants.
    Under 38 U.S.C. 1720G(a)(9)(C)(i), VA is authorized to visit an 
eligible veteran at home ``to review directly the quality of personal 
care services provided to the eligible veteran.'' Paragraph (e) details 
the at-home assessment that must be conducted within 10 business days 
after the completion of caregiver education and training in order to 
determine whether the Family Caregiver has completed training and is 
competent to provide personal care services to the eligible veteran. 
This assessment is to be performed in the eligible veteran's home. 
Paragraph (e) does not obviate VA's right, or duty, to monitor the 
eligible veteran on an ongoing basis; however, it does establish that 
an assessment will be performed no later than 10 days after completion 
of Caregiver education and training.
    Paragraph (f) authorizes the facility Caregiver Support Coordinator 
or designee to approve or disapprove applications, based on the 
clinical assessment of the primary care team, and designate the 
applicants as Primary and/or Secondary Caregivers. We note that such 
approval is predicated on the veteran or servicemember's and 
caregivers' continuing eligibility under part 71, and we cross-
reference Sec.  71.45, which concerns revocation.

71.30 General Caregivers

    Pursuant to 38 U.S.C. 1720G(b)(1), VA is required to establish a 
program, distinct from the Family Caregiver program, of support 
services for caregivers of veterans who are enrolled in the VA health 
care system and who are in need of personal care services because they 
are either unable to perform an ADL or have a ``need for supervision or 
protection based on symptoms or residuals of neurological care or other 
impairment or injury.'' These caregivers are referred to in our 
regulations as General Caregivers, to distinguish them from Primary or 
Secondary Family Caregivers. Unlike Family Caregivers, a General 
Caregiver need not be a family member of the veteran within the meaning 
of the law, and the veteran to whom service is provided need not have 
had a ``serious injury'' or have served on or after September 11, 2001. 
The benefits provided under section 1720G to General Caregivers are 
significantly less than those provided to Family Caregivers and are 
described in Sec.  71.40(a). Section 71.30(a) and (b) describe these 
General Caregivers using the statutory requirements.
    Paragraph (c) of Sec.  71.30 states that no formal application is 
required to obtain General Caregiver benefits. In most cases, General 
Caregivers are individuals who live with or near a veteran and help 
that veteran with less-critical personal care, such as cooking meals, 
but they may, in some cases, benefit from the caregiver education and 
training that we offer under Sec.  71.40(a), particularly if the 
veteran whom they assist is profoundly disabled. We want to make it 
easy for these types of ``good Samaritans'' to obtain education and 
training. The cost of providing these benefits is negligible in 
comparison to the benefits that veterans derive from having caring 
people voluntarily assisting them at home.

71.40 Caregiver Benefits

    Under section 38 U.S.C. 1720G(b)(3)(A)(i), VA must provide General 
Caregivers with specified ``support services'' including ``(I) 
educational sessions made available both in person and on an Internet 
Web site; (II) use of telehealth and other available technologies; and 
(III) teaching techniques, strategies, and skills for caring for a 
disabled veteran[.]'' We implement all of these services under 
paragraph (a)(1), using virtually the same language as required by the 
statute.

[[Page 26153]]

    Section 1720G(b)(3)(A)(ii) requires that VA provide General 
Caregivers with ``[c]ounseling and other services'' under 38 U.S.C. 
1782. We define the scope of these benefits in this rulemaking under 
Sec.  71.50.
    Under 38 U.S.C. 1720G(b)(3)(A)(iii), VA must provide veterans 
serviced by General Caregivers with ``[r]espite care under [38 U.S.C. 
1720B] that is medically and age appropriate for the veteran (including 
24-hour per day in-home care).'' VA currently provides respite care 
under section 1720B, but we have not needed separate respite care 
regulations to do so. From this current practice, we know that VA is 
capable of providing such respite care.
    Paragraph 71.40(b) implements the benefits to be provided to 
Secondary Family Caregivers under 38 U.S.C. 1720G(a)(3)(A). Secondary 
Family Caregivers are generally eligible for all of the benefits 
authorized for General Caregivers, based on our interpretation and 
application of section 1720G(a)(3)(A) and (B), in addition to the 
Secondary Family Caregiver benefits discussed further, below. 
Similarly, Primary Family Caregivers are authorized by section 
1720G(a)(3)(A)(ii)(I) to receive all of the benefits that VA provides 
to Secondary Family Caregivers--in addition to a higher level of 
benefits authorized only for Primary Family Caregivers. Thus, we 
discuss the benefits provided to Secondary Family Caregivers under 
Sec.  71.40(b) in terms of providing those benefits to both types of 
Family Caregivers, despite the fact that the paragraph's title only 
refers to Secondary Family Caregivers. The paragraph title is for ease 
of readability: A Secondary Family Caregiver can tell, based on the 
paragraph title, that all of his or her benefits will be described in 
Sec.  71.40(b).
    Under section 1720G(a)(9), VA must ``monitor the well-being of each 
eligible veteran receiving personal care services,'' maintain a record 
regarding the delivery of personal care services to the eligible 
veteran, and establish ``appropriate follow-up'' regarding information 
in the record. Follow-up procedures may include home visits by VA to 
review the quality of personal care services being provided to the 
eligible veteran, and ``corrective action'' including additional 
training or revocation of the Caregiver's approval. Although we 
interpret these monitoring requirements as a condition for continued 
participation as a Family Caregiver, we believe that it is accurate to 
classify these requirements as ``benefits'' because they provide the 
Family Caregiver with support. VA's monitoring procedures will include 
evaluation of the eligible veteran's and caregiver's physical and 
emotional states, observing for signs of abuse or neglect, adequacy of 
care and supervision being provided by the Primary and Secondary Family 
Caregivers, the eligible veteran's and Family Caregivers' overall 
adjustment to care at home, identifying any additional training or 
equipment needs, and assessing the Family Caregivers' level of stress. 
Monitoring will occur no less often than every 90 days, unless 
otherwise clinically indicated.
    Section 1720G(a)(3)(A)(i)(I) requires that VA provide to Primary 
and Secondary Family Caregivers ``such instruction, preparation, and 
training'' as appropriate to provide personal care services to the 
eligible veteran. In paragraph 17.40(b)(3), VA will provide these 
``continuing'' services to Primary and Secondary Family Caregivers. We 
note that preliminary instruction, preparation, and training are 
required before VA designates family members as Primary or Secondary 
Family Caregivers. Those services offered by VA under this section 
refer to those services that follow after the Primary or Secondary 
Family Caregiver has begun providing personal care services to the 
eligible veteran. Depending on the eligible veteran's treatment plan, 
the caregiver may require additional training to improve the services 
already being provided to the eligible veteran, learn how to use new 
technology that will improve the provision of care, or meet changing 
clinical needs of the eligible veteran.
    Section 1720G(a)(3)(A)(i)(II) requires VA to provide ``ongoing 
technical support consisting of information and assistance to address, 
in a timely manner, the routine, emergency, and specialized caregiving 
needs of the [Secondary F]amily [C]aregiver in providing personal care 
services to the eligible veteran.'' We interpret this sentence to 
require that VA maintain regular contact with the Primary and Secondary 
Family Caregiver and be available as a resource for questions about 
providing personal care services to the eligible veteran for routine, 
emergency, and specialized matters that pertain to the unique needs of 
the eligible veteran. Under paragraph (b)(4), VA will provide 
``[o]ngoing technical support, consisting of information and assistance 
to address, in a timely manner, the routine, emergency, and specialized 
needs of the Caregiver in providing personal care services to the 
eligible veteran.''
    Under section 1720G(a)(3)(A)(i)(III), VA must provide Primary and 
Secondary Family Caregivers with ``counseling.'' Similarly, under 
section 1720G(a)(3)(A)(ii)(II), VA must provide Primary Family 
Caregivers with ``such mental health services as the Secretary 
determines appropriate.'' We understand that the stresses of caregiving 
can lead to depression, anger, interpersonal conflict, anxiety, 
substance use, sleep disturbances, social isolation, and other personal 
and social issues. We also believe that these concerns are not unique 
to Primary Family Caregivers and intend to provide Secondary Family 
Caregivers with the same mental health services. We therefore interpret 
``counseling'' for the purposes of the benefits offered to Primary and 
Secondary Family Caregivers to include individual and group therapy, 
counseling and peer support groups. We do not interpret the provision 
to include medication, inpatient psychiatric care, or other medical 
procedures related to mental health treatment. We also note that these 
services are broader than the ``[c]ounseling and other services'' 
provided to General Caregivers under Sec.  71.40(a)(3) because the 
services under that authority, derived from 38 U.S.C. 1782, require 
that the services provided to the caregiver be connected to the 
treatment plan of the veteran. No such limitation exists under the 
section 1720G(a)(3)(A)(i)(III) or 1720G(a)(3)(A)(ii)(II) authorities. 
The counseling provided to Family Caregivers is intended to treat those 
Family Caregivers, independent of whether that treatment is likely to 
support the clinical objectives of the eligible veteran's treatment 
plan.
    Under section 1720G(a)(3)(A)(i)(IV), VA must provide Primary and 
Secondary Family Caregivers with ``lodging and subsistence under [38 
U.S.C.] 111(e).'' In addition, section 104 of Public Law 111-163 
amended 38 U.S.C. 111(e) to authorize VA to provide to family 
caregivers the ``expenses of travel (including lodging and 
subsistence)'' during the period of time in which the veteran is 
traveling to and from a VA facility for the purpose of medical 
examination, treatment, or care, and the duration of the medical 
examination, treatment, or care episode for the veteran. VA implements 
38 U.S.C. 111(e) through regulation under 38 CFR part 70. In Sec.  
71.40(b)(6), we state that Family Caregivers ``are to be considered 
eligible for beneficiary travel under 38 CFR part 70.'' This means that 
the provision of beneficiary travel is subject to any limitations or 
exclusions under part 70 as well. There is no reason to believe that 
section 1720G extends beneficiary travel benefits to

[[Page 26154]]

Family Caregivers but does not also require the equal application of 
the limitations that apply to all individuals eligible for benefits 
under part 70.
    The benefits available to Primary Family Caregivers are described 
in Sec.  71.40(c).
    Under section 1720G(a)(3)(A)(ii)(III), VA must provide Primary 
Family Caregivers with ``respite care of not less than 30 days 
annually, including 24-hour-per day care of the veteran commensurate 
with the care provided by the family caregiver to permit extended 
respite.'' We believe that the 30-day provision was intended to 
emphasize that Primary Family Caregiver respite cannot be limited by VA 
to less than 30 days per year. Paragraph (c)(2) authorizes respite care 
that ``may exceed 30 days per year if clinically appropriate and if 
requested by the Primary Family Caregiver.''
    Under section 1720G(a)(3)(A)(ii)(IV), VA must provide certain 
Primary Family Caregivers with medical care under 38 U.S.C. 1781. VA 
administers the section 1781 authority through the CHAMPVA program and 
its implementing regulations. As we did with beneficiary travel, we 
interpret this as a provision establishing eligibility, and such 
eligibility is subject to the same limitations to which all CHAMPVA 
beneficiaries are subjected. However, section 1720G does not authorize 
CHAMPVA coverage to Primary Family Caregivers who are covered by other 
health insurance. Section 102 of Public Law 111-163 amended subsection 
(a) of section 1781 of title 38 by including Primary Family Caregivers 
as a category of individuals eligible for medical care under 38 U.S.C. 
1781. 38 U.S.C. 1781(a)(4), as amended, defines the new beneficiaries 
as ``an individual designated as a primary provider of personal care 
services under section 1720G(a)(7)(A) of [title 38] * * * who is not 
entitled to care or services under a health-plan contract (as defined 
in section 1725(f) of [title 38]).'' We believe that the benefit 
provided by 38 U.S.C. 1720G(a)(3)(A)(ii)(IV), as added by section 101, 
should be read together with the amendment to 38 U.S.C. 1781(a) in 
section 102, and that a Primary Family Caregiver would only be eligible 
for medical care under 38 U.S.C. 1781 if he or she was not entitled to 
care or services under a health-plan contract (as defined in section 
1725(f) of title 38).
    As a matter of policy, we want to discourage Primary Family 
Caregivers from opting out of other health insurance to which they may 
be entitled. The facility Caregiver Support Coordinator or other 
designated case manager will review coverage options with the Primary 
Family Caregiver. VA is only authorized to provide CHAMPVA for the 
family member's duration as a Primary Family Caregiver. Therefore, if 
the individual's Primary Family Caregiver status ends for any reason, 
including the health of that Family Caregiver, improved condition of 
the eligible veteran, death of the eligible veteran, or for cause, the 
CHAMPVA coverage would terminate as well. We do not intend to interrupt 
enrollment in other health insurance that could persist despite the 
termination of one's status as a Family Caregiver. Doing so would raise 
serious issues of continuity of care, and could negatively impact 
eligible veterans who continue to live with a family member whose 
CHAMPVA coverage terminates as a result of that family member no longer 
serving as a Primary Family Caregiver.
    Under section 1720G(a)(3)(A)(ii)(V), VA must provide a monthly 
stipend to the eligible veteran's designated Primary Family Caregiver. 
Under section 1720G(a)(3)(C)(i), VA must base the stipend amount on 
``the amount and degree of personal care services provided.'' VA must 
also, ``to the extent practicable,'' ensure that the stipend amount 
``is not less than the monthly amount a commercial home health care 
entity would pay an individual in the geographic area of the eligible 
veteran to provide equivalent personal care services to the eligible 
veteran.'' 38 U.S.C. 1720G(a)(3)(C)(ii). If that geographic area does 
not have a commercial home health entity, then VA must ``tak[e] into 
consideration the costs of commercial providers of personal care 
services in providing personal care services in geographic areas other 
than the geographic area of the eligible veteran with similar costs of 
living.'' 38 U.S.C. 1720G(a)(3)(C)(iii). The stipend amount will be 
based on the United States Department of Labor's Bureau of Labor 
Statistics (BLS) weekly wage rate for a Home Health Aide, multiplied by 
4.35. The multiplier of 4.35 is based on the number of weeks per month 
for which care is provided and, therefore, the monthly stipend is 
payable. There are 365 days in a year, divided by 12 months, which 
equals 30.42. Thus, there are an average of 30.42 days per month. We 
then divided that number by 7, the number of days in a week, to reach 
4.35, the average number of weeks per month. If 40 hours of care are 
provided per week, then the monthly stipend would be 40 hours 
multiplied by 4.35 to determine a flat, average cost--rather than make 
each monthly payment based on the days in that specific month. The BLS 
website (https://www.bls.gov) provides the geographic average pay rates 
for a Home Health Aide. The direct stipend payment is calculated based 
on the BLS wage rate for a Home Health Aide using the 75th percentile 
of the hourly wage rate in the geographic area of residence of the 
eligible veteran. We determined that the 75th percentile most 
accurately reflects the national hourly wage rate for the competencies 
to be performed. There is a large standard deviation on wage rates for 
home health aides depending on their experience and education as well 
as the economic factors in the geographic area (mainly supply and 
demand). Given the wide range in wage rates, the seventy-fifth 
percentile most accurately meets the intent of the statute that 
Caregivers not be paid less than home health aides in a geographic 
area. Currently, BLS provides 2009 wage rates therefore VA will factor 
in a cost of living adjustment based on the Consumer Price Index to 
calculate the current year's hourly wage rate. The foregoing explains 
the formula in paragraph (c)(4)(v), which is that the stipend amount 
``will be calculated by multiplying the Bureau of Labor Statistics 
hourly wage for home health aides in the geographic area by the 
Consumer Price Index and then multiplying that total by the number of 
weekly hours of Caregiver assistance required under paragraph 
(c)(4)(iv) of this section. This product will then be multiplied by 
4.35.'' We will now address how we will determine the numbers that will 
be applied to this formula.
    First, in paragraph (c)(4), we explain that ``[t]o determine the 
stipend amount, VA first will determine the eligible veteran's level of 
dependency based on the degree to which the eligible veteran is unable 
to perform one or more ADLs, or the degree to which the veteran is in 
need of supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury.'' The ADLs and supervision/
protection needs will be the 14 ADLs and needs (which we will call 
categories for the purposes of this discussion) that are listed in the 
definitions of those terms in Sec.  71.15 (i.e., the seven ADLs and the 
seven ``needs'' or impairments).
    In paragraph (c)(4)(iii) we explain that each of 14 categories will 
be assigned a clinical rating of zero to four, with zero meaning that 
no caregiver assistance is required by the eligible veteran in that 
category and a four meaning that the eligible veteran requires total 
assistance in that category, which is parenthetically defined as being 
able to

[[Page 26155]]

complete less than 25 percent of the specific task or function. These 
percentages, and the zero-to-four scale used in the regulation, are 
based on three widely accepted clinical tools for measuring ADLs and 
functional dependence, as applicable: The Katz Basic Activities of 
Daily Living Scale; the UK Functional Independence Measure and 
Functional Assessment Measure; and the Neuropsychiatric Inventory.
    Pursuant to paragraph (c)(4)(iv), the sum of the zero-to-four 
scores assigned to each of the 14 categories is then used to assign a 
presumed number of hours required of the Caregiver. This sum total is 
then applied to a presumptive level of need: Eligible veterans who 
score 21 or higher, which can be achieved by having the need for 
assistance in at least six of the 14 categories, are presumed to need a 
full-time Caregiver (i.e., one who provides 40 hours of care per week). 
Under paragraph (c)(4)(iv)(B), a eligible veteran who scores 13 to 20 
total in all categories will be presumed to require 25 hours per week 
of Caregiver assistance. Under paragraph (c)(4)(iv)(C), an eligible 
veteran who scores 1 to 12 will be presumed to require 10 hours per 
week of Caregiver assistance.
    We believe it is not realistically possible for a veteran or 
servicemember who meets the other requirements of these regulations to 
score a zero based on the above formula. However, if a veteran or 
servicemember were theoretically able to score a zero, we do not 
believe that that veteran or servicemember's Caregiver would be 
entitled to a stipend because that veteran would not require any hours 
of care per week. Hence, the rule would not provide a stipend based on 
a zero sum score.
    We also note that these scoring criteria are based on the 
definitions of ADL and need of supervision or protection based on 
symptoms or residuals of neurological or other impairment or injury, 
but under Sec.  71.20(c)(4), Caregiver eligibility extends to a veteran 
who is service connected for a serious injury that was incurred or 
aggravated in the line of duty in the active military, naval, or air 
service on or after September 11, 2001, and has been rated 100 percent 
disabled for that serious injury, and has been awarded special monthly 
compensation that includes an aid and attendance allowance. Such a 
veteran will also have impairment in the categories used for this 
formula, and therefore it is reasonable to calculate the stipend for 
such a veteran using this formula. Likewise veterans and servicemembers 
who establish eligibility under Sec.  71.20(c)(3) will also have an 
impairment in the categories used for this formula.
    In paragraph (c)(4)(v), we explain the stipend-calculation formula 
described above. Paragraph (c)(4)(vi) explains the circumstances under 
which stipend payments will be prorated/adjusted.
    The stipend is an acknowledgement of the sacrifices that Primary 
Family Caregivers are making to care for seriously injured eligible 
veterans. The law states that nothing in 38 U.S.C. 1720G, as added by 
section 101 of Public Law 111-163, shall be construed to create any 
entitlement of any assistance or support provided, nor to create an 
employment relationship between VA and an individual in receipt of 
assistance or support, which includes Primary Family Caregivers. 38 
U.S.C. 1720G(c)(2). The stipend payments to Primary Family Caregivers 
under 38 U.S.C. 1720G(a)(3)(A)(ii)(V) constitute ``payments [of 
benefits] made to, or on account of, a beneficiary'' that are exempt 
from taxation under 38 U.S.C. 5301(a)(1). VA does not intend that the 
stipend replace career earnings. 38 U.S.C. 1720G(c)(2)(A) (``[n]othing 
in this section shall be construed to create * * * an employment 
relationship between the Secretary and an individual in receipt of 
assistance or support under this section''). This principle is set 
forth in paragraph (c)(4)(vii).
    Paragraph (d) provides effective-date and payment-date rules that 
are consistent with VA practice and policy regarding the effective and 
payment dates of other VA benefits.

71.45 Revocation

    Section 71.45 concerns revocation of the Family Caregiver 
designation. It is important that we allow revocation by the eligible 
veteran, by the Family Caregiver him- or herself, and by VA; however, 
the bases for such revocation will differ based on who initiates the 
revocation proceeding.
    Under paragraph (a), we allow a Family Caregiver to revoke his or 
her caregiver status, and to provide a ``present or future date'' of 
such revocation. Many revocations will be requested immediately, but in 
some cases a Family Caregiver may wish to inform VA in advance that he 
or she will no longer be able to serve as a Family Caregiver at a 
specific, future date. The individual need not state a basis for 
revocation, as participation in the caregiver program is purely 
voluntary; however, we do require written revocation because the 
benefits provided to Family Caregivers are not insubstantial, and we 
want to ensure that there is formality to this process. We also will 
assist the Family Caregiver, if requested and applicable, in 
transitioning to alternative health care coverage and mental health 
services in order to help avoid to the maximum extent possible problems 
with continuity of medical care provided to that caregiver.
    Under 38 U.S.C. 1720G(a)(7)(C), the eligible veteran may revoke the 
status of a Primary Family Caregiver. We implement this authority in 
Sec.  71.45(b) and apply it to Secondary Family Caregivers as well. We 
establish straightforward procedures for such revocation, and we allow 
for a maximum 30-day period during which VA will review the request for 
revocation and determine whether there is a possibility for 
remediation. We allow up to 30 days because in some cases it may be 
necessary to allow for a ``cooling off,'' during which time the 
eligible veteran may reconsider his or her request.
    We also allow for up to 30 days continuing caregiver benefits, in 
order to assist the revoked individual in transitioning to other health 
care. Unlike the situation in paragraph (a), where the Family Caregiver 
is personally revoking his or her own status, in this situation, the 
Family Caregiver may not have had time to prepare for a transition from 
caregiver to non-caregiver status. There may be serious financial 
issues if the Family Caregiver has come to rely on the stipend, and 
there may be serious continuity of care issues if the Family Caregiver 
has been obtaining health care as a result of his or her caregiver 
status.
    But this 30-day extension, which is not specifically authorized by 
statute, is not without limitation. First, if VA determines that the 
revoked individual committed fraud or abused or neglected the eligible 
veteran, we will not continue the benefits after the date of 
revocation. Second, we will terminate caregiver benefits immediately if 
the revoked individual was the Primary Family Caregiver, and another 
Primary Family Caregiver is assigned within 30 days after the date of 
revocation because the law allows for there to be only one individual 
receiving benefits as the Primary Family Caregiver. Similarly, 
caregiver benefits will terminate if another individual becomes a 
Family Caregiver during the 30-day period, because our regulations will 
only allow for three Family Caregivers at any one time. Finally, if the 
revoked individual stops living with the eligible veteran or dissolves 
his or her relationship with the eligible veteran, we do not believe 
that it is appropriate to continue to

[[Page 26156]]

provide support to that individual. We recognize that neither the 30-
day post-revocation period during which benefits may continue, nor the 
limitations on that period, are clearly contemplated by statute. 
However, we believe that these rules are consistent with the 
legislation's purpose. We would like to consider public comment on this 
issue.
    Finally, under paragraph (c), VA is authorized to revoke 
immediately the designation of a Family Caregiver ``if the eligible 
veteran or individual designated as a Family Caregiver no longer meets 
the requirements of this part, or if VA makes the clinical 
determination that having the Family Caregiver is no longer in the best 
interest of the eligible veteran.'' However, if revocation is due to 
improvement in the eligible veteran's condition, death, or permanent 
institutionalization, the Family Caregiver will continue to receive 
caregiver benefits for 90 days, unless any of the conditions described 
in paragraph (b)(4)(i) through (iv) of this section apply. As above, 
this continuing period of eligibility for benefits is not contemplated 
by 38 U.S.C. 1720G, but we believe that it is an appropriate and 
compassionate way to interpret and enforce the law.

71.50 Provision of Certain Counseling, Training, and Mental Health 
Services to Certain Family Members of Veterans

    Under 38 U.S.C. 1782(a), VA is required to provide specified 
benefits to eligible individuals in connection with the treatment of 
veterans with certain service-connected disabilities, and under Sec.  
1782(b), VA may provide the same benefits to eligible individuals in 
connection with the treatment of veterans with certain nonservice-
connected disabilities. In the Veterans' Mental Health and Other Care 
Improvements Act of 2008, Public Law 110-387, Sec.  301(a), Congress 
expanded the benefits that VA is authorized to provide to family 
members by adding ``marriage and family counseling'' to a list of 
benefits that already included consultation, professional counseling, 
training, and mental health services. Those benefits are listed in 38 
CFR 17.38(a)(1)(vii) as part of the medical benefits package, as a 
result of a recent amendment to that section. 75 FR 54028 (Sep. 3, 
2010).
    The 2010 regulatory amendment to Sec.  17.38 did not explain or 
clarify the scope of the benefits offered under 38 U.S.C. 1782. Many 
benefits listed in Sec.  17.38 cross-reference sections that explain 
the benefit in more detail when the meaning or scope of the listed 
benefit is not entirely clear on its face, when the benefit is 
specifically limited by law, or when other regulations govern the 
actual provision of the benefit. See, e.g., 38 CFR 17.38(a)(1)(v) 
(bereavement counseling), (a)(1)(viii) (certain durable medical 
equipment), (a)(1)(xii) (beneficiary travel). We believe that such a 
clarifying regulation would be helpful to explain the scope of the 
benefits provided under section 1782 as well, notwithstanding that 
these benefits have been authorized and provided by VA for several 
years without regulation.
    Moreover, the Caregivers and Veterans Omnibus Health Services Act 
of 2010 amended section 1782 t