Program of Comprehensive Assistance for Family Caregivers Improvements and Amendments Under the VA MISSION Act of 2018, 13356-13411 [2020-04464]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 85, Number 45 (Friday, March 6, 2020)]
[Proposed Rules]
[Pages 13356-13411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04464]



[[Page 13355]]

Vol. 85

Friday,

No. 45

March 6, 2020

Part V





 Department of Veterans Affairs





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38 CFR Part 71





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 Program of Comprehensive Assistance for Family Caregivers Improvements 
and Amendments Under the VA MISSION Act of 2018; Proposed Rule

Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Proposed 
Rules

[[Page 13356]]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 71

RIN 2900-AQ48


Program of Comprehensive Assistance for Family Caregivers 
Improvements and Amendments Under the VA MISSION Act of 2018

AGENCY: Department of Veterans Affairs

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to revise its 
regulations that govern VA's Program of Comprehensive Assistance for 
Family Caregivers (PCAFC). This rulemaking would propose improvements 
to PCAFC and would update the regulations to comply with the recent 
enactment of the VA MISSION Act of 2018, which made changes to the 
program's authorizing statute. These proposed changes would allow PCAFC 
to better address the needs of veterans of all eras and standardize the 
program to focus on eligible veterans with moderate and severe needs.

DATES: Written comments must be received on or before May 5, 2020.

ADDRESSES: Written comments may be submitted through https://www.Regulations.gov; by mail or hand-delivery to the Director, Office 
of Regulation Policy and Management (00REG), Department of Veterans 
Affairs, 810 Vermont Avenue NW, Room 1064, Washington, DC 20420; or by 
fax to (202) 273-9026. Comments should indicate that they are submitted 
in response to ``RIN 2900-AQ48, Program of Comprehensive Assistance for 
Family Caregivers Improvements and Amendments under the VA MISSION Act 
of 2018.'' Copies of comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1064, between the hours of 8:00 a.m. and 4:30 p.m. Monday through 
Friday (except holidays). Please call (202) 461-4902 for an 
appointment. (This is not a toll-free number.) In addition, during the 
comment period, comments may be viewed online through the Federal 
Docket Management System at https://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Elyse Kaplan, National Deputy 
Director, Caregiver Support Program, Care Management and Social Work, 
10P4C, Veterans Health Administration, Department of Veterans Affairs, 
810 Vermont Ave. NW, Washington, DC 20420, (202) 461-7337. (This is not 
a toll-free number.)

SUPPLEMENTARY INFORMATION:

Summary of Proposed Regulatory Changes

    We propose to revise VA's regulations that govern PCAFC. This 
rulemaking would make improvements to PCAFC and update the regulations 
to comply with section 161 of Public Law 115-182, the John S. McCain 
III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal 
Systems and Strengthening Integrated Outside Networks Act of 2018 or 
the VA MISSION Act of 2018, which made changes to PCAFC's authorizing 
statute.
    This proposed rule--
     Would expand PCAFC to eligible veterans of all service 
eras, as specified.
     Would define new terms and revise existing terms used 
throughout the regulation. Some of the new and revised terms would have 
a substantial impact on eligibility requirements for PCAFC (e.g., in 
need of personal care services; need for supervision, protection, or 
instruction; and serious injury), and the benefits available under 
PCAFC (e.g., financial planning services, legal services, and monthly 
stipend rate).
     Would establish an annual reassessment to determine 
continued eligibility for PCAFC.
     Would revise the stipend payment calculation for Primary 
Family Caregivers.
     Would establish a transition plan for legacy participants 
and legacy applicants, as those terms would be defined in revised Sec.  
71.15, who may or may not meet the new eligibility criteria and whose 
Primary Family Caregivers could have their stipend amount impacted by 
changes to the stipend payment calculation.
     Would add financial planning and legal services as new 
benefits available to Primary Family Caregivers.
     Would revise the process for revocation and discharge from 
PCAFC.
     Would reference VA's ability to collect overpayments made 
under PCAFC.

Background on Governing Statutes and Public Input

    Title I of Public Law 111-163, Caregivers and Veterans Omnibus 
Health Services Act of 2010 (hereinafter referred to as ``the 
Caregivers Act''), established section 1720G(a) of title 38 of the 
United States Code (U.S.C.), which required VA to establish a program 
of comprehensive assistance for Family Caregivers of eligible veterans 
who have a serious injury incurred or aggravated in the line of duty on 
or after September 11, 2001. The Caregivers Act also required VA to 
establish a program of general caregiver support services, pursuant to 
38 U.S.C. 1720G(b), which is available to caregivers of covered 
veterans of all eras of military service. VA implemented the program of 
comprehensive assistance for Family Caregivers (PCAFC) and the program 
of general caregiver support services (PGCSS) through its regulations 
in part 71 of title 38 of the Code of Federal Regulations (CFR). 
Through PCAFC, VA provides Family Caregivers of eligible veterans (as 
those terms are defined in 38 CFR 71.15) certain benefits, such as 
training, respite care, counseling, technical support, beneficiary 
travel (to attend required caregiver training and for an eligible 
veteran's medical appointments), a monthly stipend payment, and access 
to health care (if qualified) through the Civilian Health and Medical 
Program of the Department of Veterans Affairs (CHAMPVA). 38 U.S.C. 
1720G(a)(3), 38 CFR 71.40. This proposed rule relates primarily to 
PCAFC.
    VA recognizes that improvements to PCAFC are needed to improve 
consistency and transparency in decision making and sought input from 
stakeholders on potential changes. On January 5, 2018, VA published a 
Federal Register Notice (FRN), requesting information and comments from 
the public to help inform VA of any changes needed to PCAFC that would 
increase consistency across the program as well as ensure the program 
supports those Family Caregivers of veterans and servicemembers most in 
need. See 83 FR 701 (January 5, 2018). On February 1, 2018, VA 
published a correction notice to clarify that public comments in 
response to the January 5, 2018 FRN had to be received by VA on or 
February 5, 2018.\1\ See 83 FR 4772 (February 1, 2018).
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    \1\ While the January 5, 2018 FRN also required comments to be 
received by VA on or before February 5, 2018, it mistakenly referred 
to a 45-day (instead of 30-day) comment period, which was corrected 
in the February 1, 2018 FRN.
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    Through these FRNs, we asked the public to comment on whether VA 
should change the definition of serious injury, how a veteran's need 
for supervision or protection should be assessed, how in the best 
interest should be defined, the circumstances under which veterans' 
eligibility should be reassessed after approval for PCAFC, what 
terminology VA should use for those who are no longer eligible for 
PCAFC, whether VA should modify its timeframes for continuation of 
benefits when a caregiver is revoked, how VA should calculate stipend 
rates, and how VA should assess and determine the amount and degree of 
personal care services provided by the Family

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Caregiver. 83 FR 703 (January 5, 2018). In response to the FRNs, VA 
received three hundred and twenty-three (323) comments. Of these, one 
hundred and eighteen comments (118) addressed at least one of the eight 
questions listed in the notice and described above, and we considered 
these comments when developing this proposed rule. Most commenters 
expressed support for expanding PCAFC to include veterans of all eras, 
followed by comments identifying challenges with operational processes 
of the current program including inconsistency with eligibility 
determinations and the completion of home monitoring visits. The 
comments received from this FRN are publicly available online at 
www.regulations.gov. Copies of the comments are also available for 
public inspection in the Office of Regulation Policy and Management, 
Room 1064, between the hours of 8 a.m. and 4:30 p.m., Monday through 
Friday (exception holidays). Please call (202) 461-4902 (this is not a 
toll-free number) for an appointment.
    On June 6, 2018, the VA MISSION Act of 2018 was signed into law. 
Section 161 of the VA MISSION Act of 2018 amended 38 U.S.C. 1720G by 
expanding eligibility for PCAFC to Family Caregivers of eligible 
veterans who incurred or aggravated a serious injury in the line of 
duty before September 11, 2001, establishing new benefits for 
designated Primary Family Caregivers of eligible veterans, and making 
other changes affecting program eligibility and VA's evaluation of 
PCAFC applications. The VA MISSION Act of 2018 established that 
expansion of PCAFC to Family Caregivers of eligible veterans who 
incurred or aggravated a serious injury in the line of duty before 
September 11, 2001, will occur in two phases. The first phase will 
begin when VA certifies to Congress that it has fully implemented a 
required information technology system that fully supports PCAFC and 
allows for data assessment and comprehensive monitoring of PCAFC. 
During the 2-year period beginning on the date of such certification to 
Congress, PCAFC will be expanded to include Family Caregivers of 
eligible veterans who have a serious 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 before May 7, 1975. Two years after the date of 
submission of the certification to Congress, PCAFC will be expanded to 
Family Caregivers of all eligible veterans who have a serious 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, regardless of the period of 
service in which the serious injury was incurred or aggravated in the 
line of duty in the active military, naval, or air service.
    On November 27, 2018, VA again sought public comment through a FRN 
that requested input from the public on certain changes to PCAFC 
required by section 161 of the VA MISSION Act of 2018. 83 FR 60966 
(November 27, 2018). Specifically, we asked how VA should define ``a 
need for regular or extensive instruction or supervision'' in new 38 
U.S.C. 1720G(a)(2)(C)(iii); how ``need for regular or extensive 
instruction or supervision without which the ability of the veteran to 
function in daily life would be seriously impaired'' would differ from 
``a need for supervision or protection based on symptoms of residuals 
of neurological or other impairment or injury;'' how VA should assess 
whether the ability of the veteran to function in daily life would be 
seriously impaired without regular or extensive instruction or 
supervision; and what financial planning and legal services should be 
made available to Primary Family Caregivers, how such services should 
be provided, and what types of entities provide such services. VA 
received two hundred and twenty (220) comments, including comments 
outside the scope of questions posed. Many comments focused on the 
desire for PCAFC to be expanded to veterans of all eras, and to include 
illnesses as covered conditions for which a veteran may be eligible. In 
direct response to the questions posed, some commenters shared opinions 
on the importance of including the veteran's and caregiver's 
perspective in the assessment process and considering the complexity 
and frequency of the care being provided and what would happen to the 
veteran in the absence of such care. Other commenters offered support 
for utilizing the need for long-term care as a criterion for PCAFC. VA 
appreciates the time and attention from commenters who shared their 
opinions on how to improve PCAFC, and we considered these comments when 
developing this proposed rule. The comments received from this FRN are 
publicly available online at www.regulations.gov. Copies of the 
comments are also available for public inspection in the Office of 
Regulation Policy and Management, Room 1064, between the hours of 8 
a.m. and 4:30 p.m., Monday through Friday (exception holidays). Please 
call (202) 461-4902 (this is not a toll-free number) for an 
appointment.
    Additional efforts were made to garner input from stakeholders. On 
February 25 and March 5, 2019, meetings were held with various Veteran 
Service Organizations (VSOs) to discuss PCAFC and the VA MISSION Act of 
2018. Discussion topics included the definitions of serious injury, 
need for supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury, and inability to perform an 
activity of daily living; the tier system related to stipend payments; 
and revocation and transition of participants from PCAFC. Furthermore, 
on April 26, May 16, and May 29, 2019, listening sessions were held 
with representatives from an organization advocating for military 
caregivers, various VSOs, and Caregiver Support Program Peer Mentors, 
consecutively, to discuss legal and financial services needed by 
caregivers. Discussion topics included, but were not limited to: Estate 
planning, end of life planning, advanced directives and living wills, 
designating a power of attorney, guardianship, debt management, 
household budget planning, retirement planning, and insurance review 
and counseling. The notes from these meetings and listening sessions 
can be found as supporting documents at https://www.regulations.gov, 
usually within 48 hours after the rulemaking document is published.

Introduction to Proposed Regulatory Changes

    As explained in more detail below, we propose to revise and update 
38 CFR part 71 to comply with changes made to 38 U.S.C. 1720G by 
section 161 of the VA MISSION Act of 2018, to further improve PCAFC for 
eligible veterans of all eras of service by improving consistency and 
transparency in how the program is administered across VA, and to 
provide a better experience for eligible veterans and their caregivers.
    In this proposed rule, we refer to two implementation dates--one 
related to the first phase of expansion of PCAFC to eligible veterans 
who incurred or aggravated a serious injury in the line of duty before 
September 11, 2001, and another for purposes of our other proposed 
changes to part 71. As we stated above, the first phase of PCAFC 
expansion under the VA MISSION Act of 2018 to Family Caregivers of 
eligible veterans who incurred or aggravated a serious injury in the 
line of duty before September 11, 2001, will begin when VA certifies to 
Congress that it has fully implemented a required information 
technology system. It is VA's intent that such certification be 
provided to

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Congress on the same day that our other proposed regulatory changes 
would go into effect. However, we recognize that the timeline for 
development of an information technology system can be unpredictable. 
Additionally, changes to this proposed approach may be warranted based 
on public comments we receive in response to this proposed rule and 
other factors. Therefore, this proposed rule indicates that the first 
phase of PCAFC expansion would begin on a ``date specified in a future 
Federal Register document,'' and the other proposed changes in this 
proposed rule would go into effect on the effective date of this rule. 
In the proposed regulatory text below, the effective date of the final 
rule is referenced as ``[EFFECTIVE DATE OF FINAL RULE]''.

71.10 Purpose and Scope

    We propose to amend Sec.  71.10(b), which sets forth the scope of 
part 71 to clarify the first sentence and add a new sentence at the 
end. The first sentence of current paragraph (b) states that part 71 
regulates the provision of Family and General Caregiver benefits 
authorized by 38 U.S.C. 1720G. We propose to revise this language to 
better align with the language used in 38 U.S.C. 1720G(a) and (b). We 
propose to revise the language to state, ``[t]his part regulates the 
provision of benefits under the Program of Comprehensive Assistance for 
Family Caregivers and the Program of General Caregiver Support Services 
authorized by 38 U.S.C. 1720G.''
    The second sentence of current paragraph (b) explains that 
individuals eligible for such benefits may also be eligible for other 
VA benefits pursuant to other laws or parts of title 38, CFR, and we 
would make no changes to the current language.
    We also propose to add a sentence at the end of paragraph (b) to 
explain that these benefits are provided only to those individuals 
residing in a State as that term is defined in 38 U.S.C. 101(20). 
Section 101(20) of title 38, U.S.C., defines ``State'' to mean ``each 
of the several States, Territories, and possessions of the United 
States, the District of Columbia, and the Commonwealth of Puerto 
Rico.'' Although it has been VA's practice since the programs started 
in 2011, the regulations in part 71 do not state that these programs 
are provided only to those individuals residing in a State. Therefore, 
we would update our regulations to align with current practice. We note 
that it is not currently feasible for VA to provide benefits under part 
71 outside of a State. The requirements of this part include in-home 
visits such as an initial home-care assessment under current Sec.  
71.25(e) and the provision of certain benefits that can be provided in-
home such as respite care under current Sec.  71.40(a)(4) and (c)(2), 
which would be difficult to conduct and provide in a consistent manner 
outside of a State. Also, ensuring oversight of PCAFC and PGCSS outside 
of a State would be resource-intensive and we do not believe there is 
sufficient demand to warrant the effort that would be required. We note 
that currently there are administrative limitations that prevent VA 
from providing certain benefits under this part in remote areas, even 
within the scope of the term ``State,'' such as in the Commonwealth of 
the Northern Mariana Islands; however, VA will continue to explore the 
potential for expanding VHA services to support PGCSS and PCAFC in 
these remote areas. As revised, Sec.  71.10(b) would state, ``[t]his 
part regulates the provision of benefits under the Program of 
Comprehensive Assistance for Family Caregivers and the Program of 
General Caregiver Support Services authorized by 38 U.S.C. 1720G. 
Persons eligible for such benefits may be eligible for other VA 
benefits based on other laws or other parts of this title. These 
benefits are provided only to those individuals residing in a State as 
that term is defined in 38 U.S.C. 101(20).''

71.15 Definitions

    We propose to amend Sec.  71.15, which contains definitions for 
terms used throughout part 71, by removing the definitions of 
``combined rate,'' and ``need for supervision or protection based on 
symptoms or residuals of neurological or other impairment or injury,'' 
revising the definitions of ``in the best interest,'' ``inability to 
perform an activity of daily living (ADL),'' ``primary care team,'' and 
``serious injury''; and adding new definitions for the terms ``domestic 
violence,'' ``financial planning services,'' ``in need of personal care 
services,'' ``institutionalization,'' ``intimate partner violence,'' 
``joint application,'' ``legacy applicant,'' ``legacy participant,'' 
``legal services,'' ``monthly stipend rate,'' ``need for supervision, 
protection, or instruction,'' ``overpayment,'' and ``unable to self-
sustain in the community.'' These proposed changes are explained in 
more detail below. We emphasize, as stated in the introductory language 
for Sec.  71.15, that these proposed definitions would apply only for 
purposes of part 71.
    In Sec.  71.15, we would remove the current definition of 
``combined rate.'' This term is currently defined to refer to the 
Bureau of Labor Statistics (BLS) hourly wage rate for home health aides 
at the 75th percentile in the eligible veteran's geographic area of 
residence, multiplied by the Consumer Price Index for All Urban 
Consumers (CPI-U). Also, the current definition explains how the rate 
will be determined for the purposes of this program. As further 
explained in this rulemaking regarding our proposed definition of the 
term ``monthly stipend rate'' and proposed Sec.  71.40(c)(4), we are 
proposing to determine monthly stipend payments using data from the 
Office of Personnel Management's (OPM) General Schedule (GS) instead of 
using the combined rate. Although some Primary Family Caregivers would, 
for one year after the effective date of the rule, maintain the stipend 
amount they were eligible to receive as of the day before the effective 
date of this rule, we would no longer make annual adjustments to the 
combined rate, and it would otherwise no longer apply after the 
effective date of this rule. One year after the effective date of this 
rule, all stipend payments would be calculated using the monthly 
stipend rate (as that term would be defined in proposed Sec.  71.15). 
Therefore, the definition of combined rate would no longer be needed or 
applicable in 38 CFR part 71.
    In Sec.  71.15, we would add a new definition for the term 
``domestic violence.'' We would define domestic violence to refer to 
any violence or abuse that occurs within the domestic sphere or at 
home, and may include child abuse, elder abuse, and other types of 
interpersonal violence. We believe other types of interpersonal 
violence would include, but would not be limited to, financial harm and 
threatening behavior. This definition is based on the definition of 
domestic violence used by the Veterans Health Administration's (VHA) 
Intimate Partner Violence Assistance Program. As explained later in 
this rulemaking, we would define this term as it is used in proposed 
Sec.  71.45(b)(3)(iii)(B) concerning a Family Caregiver's request for 
discharge from PCAFC due to domestic violence.
    In proposed Sec.  71.15, we would add a new definition of 
``financial planning services.'' We would define this term to address 
changes made to 38 U.S.C. 1720G by the VA MISSION Act of 2018. 
Specifically, the VA MISSION Act of 2018 added financial planning 
services relating to the needs of injured veterans and their caregivers 
as a benefit for Primary Family Caregivers. See 38 U.S.C. 
1720G(a)(3)(A)(ii)(VI)(aa), as amended by Public Law 115-182, section 
161(a)(3). As explained later in this rulemaking, we propose to add

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``financial planning services'' to the benefits available to Primary 
Family Caregivers under a revised Sec.  71.40(c).
    We propose to define ``financial planning services'' in Sec.  71.15 
to mean services focused on increasing financial capability and 
assisting the Primary Family Caregiver in developing a plan to manage 
the personal finances of the Primary Family Caregiver and the eligible 
veteran, as applicable, to include household budget planning, debt 
management, retirement planning review and education, and insurance 
review and education. We believe ``household budget planning'' would 
include making a budget, learning to balance a checking account, and 
learning to pay bills; ``debt management'' would include assistance 
establishing payment plans and credit counseling; ``retirement 
planning'' would include review and education on personal retirement 
plans, pension planning, and investment options, however it would not 
include specific investment advice; and ``insurance review and 
education'' would include review of current insurance policies, and 
education on alternative insurance options to include health, 
automobile, life, or house insurance. These services would be aimed at 
increasing the financial capability of Primary Family Caregivers and 
assisting Primary Family Caregivers in being able to manage their own 
personal finances and those of the eligible veteran, as applicable. We 
believe this is reasonable under the authorizing statute.
    The VA MISSION Act of 2018 requires that these financial planning 
services relate ``to the needs of injured veterans and their 
caregivers'' and we believe defining these services in this manner 
would meet this requirement as these types of services are relevant and 
applicable to the care and needs of the eligible veteran and the 
caregiver. We believe these would be the type of financial planning 
services that Primary Family Caregivers would need and best support 
Primary Family Caregivers. This definition would also align with the 
feedback we received from the public in response to the November 27, 
2018 FRN as well as additional meetings and listening sessions held to 
garner input from stakeholders. For example, some feedback included a 
desire for assistance with bill paying, balancing a checking account, 
and debt management. Additionally, it was noted that the loss of income 
combined with additional expenses, often unexpected, attributed to 
caring for another, are concerns experienced by veterans and 
caregivers.
    We would limit these services to only those related to the personal 
finances of the eligible veteran and the Primary Family Caregiver. 
PCAFC is designed to support the clinical needs of the eligible veteran 
and the benefits provided to Family Caregivers under PCAFC are the 
direct result of the personal care services they provide to eligible 
veterans. As a result, these services would not be provided to assist a 
Primary Family Caregiver with any business or other professional 
endeavors because these endeavors would not be related to the provision 
of personal care services to an eligible veteran. We also believe 
limiting these services in this manner aligns with feedback received 
since business and professional endeavors were not raised as financial 
planning services that VA should provide to caregivers. We note that 
these services would be provided by entities authorized pursuant to any 
contract entered into between VA and such entities.
    In proposed Sec.  71.15, we would add a new definition of ``In need 
of personal care services.'' We would define this term to mean that the 
eligible veteran requires in-person personal care services from another 
person, and without such personal care services, alternative in-person 
caregiving arrangements (including respite care or assistance of an 
alternative caregiver) would be required to support the eligible 
veteran's safety.
    Current Sec.  71.15 defines personal care services 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.'' This definition is used for purposes of PCAFC and PGCSS; 
however, it does not provide sufficient clarity for purposes of PCAFC, 
which we believe is targeted to a narrower population. Specifically, it 
does not delineate whether such services must be provided in person or 
can be provided remotely, or what it means to be ``in need of'' such 
services under 38 U.S.C. 1720G(a)(2)(C). Because we believe this 
definition is still appropriate for purposes of 38 U.S.C. 1720G(b) with 
respect to PGCSS, we would add a new definition of ``in need of 
personal care services'' for purposes of determining PCAFC eligibility 
under proposed Sec.  71.20(a)(3), discussed further below, and maintain 
our current definition of ``personal care services'' in Sec.  71.15.\2\
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    \2\ The definition of ``personal care services'' in 38 CFR 71.15 
is based on VA's interpretation of the statutory definition of 
``personal care services'' as it existed prior to the enactment of 
the VA MISSION Act of 2018. The statutory definition of ``personal 
care services,'' in 38 U.S.C. 1720G(d)(4), was amended by section 
161(b) of the VA MISSION Act of 2018 by replacing ``independent 
activities of daily living'' with ``activities of daily living,'' 
and to include ``[s]upervision or protection based on symptoms or 
residuals of neurological or other impairment or injury'' and 
``[r]egular or extensive instruction or supervision without which 
the ability of the veteran to function in daily life would be 
seriously impaired.'' However, we are not proposing to revise the 
definition of ``personal care services'' in Sec.  71.15 as we 
believe our current definition encompasses these additional criteria 
and thereby recognizes all the bases upon which an eligible veteran 
can be deemed in need of personal care services under 38 U.S.C. 
1720G(a)(2)(C)(i) through (iii) (i.e., (i) an inability to perform 
one or more activities of daily living; (ii) a need for supervision 
or protection based on symptoms or residuals of neurological or 
other impairment or injury; and (iii) a need for regular or 
extensive instruction or supervision without which the ability of 
the veteran to function in daily life would be seriously impaired), 
which are also encompassed in the eligibility criteria we would 
consider under proposed Sec.  71.20(a)(3)(i) and (ii).
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    Our proposed definition of ``in need of personal care services'' 
would reflect that PCAFC Family Caregivers perform in-person personal 
care services, and without such care, alternative caregiving 
arrangements would be required.
    The statute makes clear the importance of regular support to an 
eligible veteran by allowing more than one Family Caregiver to be 
trained to provide personal care services. 38 U.S.C. 1720G(a)(5) and 
(6). Likewise, eligible veterans are provided protections under the 
statute in the absence of a Family Caregiver such as respite care 
during a family member's initial training if such training would 
interfere with the provision of personal care services for the eligible 
veteran. 38 U.S.C. 1720G(a)(6)(D). Thus, we believe ``in need of 
personal care services'' under section 1720G(a)(2)(C) means that 
without Family Caregiver support, VA would otherwise need to hire a 
professional home health aide or provide other support to the eligible 
veteran such as adult day health care, respite care, or facilitate a 
nursing home or other institutional care placement.
    While regular support is essential, the frequency with which such 
services are required may differ depending on the eligible veteran's 
care needs. Therefore, our proposed definitions of inability to perform 
an activity of daily living (ADL) and need for supervision, protection, 
or instruction, as proposed in this section, would further clarify the 
eligible veteran's frequency of needed care.
    This definition would also clarify that ``in need of personal care 
services''

[[Page 13360]]

means that such services are required in person. While technological 
advances have improved the provision of telehealth and other remote 
clinical interventions for veterans, we believe PCAFC was intended to 
provide assistance to Family Caregivers who are required to be 
physically present to support eligible veterans in their homes. First, 
we note the term ``personal'' is an adjective that is defined to mean 
``done, made, or performed in person'' among other relevant meanings 
such as, ``[o]f or relating to a particular person.'' The American 
Heritage Dictionary of the English Language 1311 (4th ed. 2000). 
Second, 38 U.S.C. 1720G(a) indicates that personal care services are 
provided in the eligible veteran's home. For example, in conducting 
monitoring, the statute authorizes VA to visit the ``eligible veteran 
in the eligible veteran's home to review directly the quality of 
personal care services provided to the eligible veteran.'' 38 U.S.C. 
1720G(a)(9)(C)(i). Moreover, in requiring the personal caregiver 
stipend be not less than the ``amount a commercial home health care 
entity would pay an individual in the geographic area of the eligible 
veteran [or similar area],'' to the extent practicable, the statute 
establishes an expectation that Family Caregivers are providing 
services equivalent to that of a home health aide, which are generally 
furnished in-person and at home. 38 U.S.C. 1720G(a)(3)(C)(ii), (iv). 
For these reasons, we believe our proposed definition of ``in need of 
personal care services'' is a reasonable interpretation of the statute. 
Furthermore, we believe it would reduce clinical subjectivity in PCAFC 
eligibility determinations and thereby improve consistency in the 
program.
    We note that the term ``in need of personal care services'' is used 
in 38 U.S.C. 1720G only for purposes of PCAFC under section 
1720G(a)(2)(C) and would not apply to restrict eligibility under 38 
U.S.C. 1720G(b) with respect to PGCSS. Moreover, this interpretation 
would not apply to other sections in title 38, U.S.C., that use the 
phrase ``in need of'' in reference to other types of VA benefits that 
have separate eligibility criteria. For example, 38 U.S.C. 1114(l), 
(m), (r), and (t) reference veterans ``in need of regular aid and 
attendance'' and ``in need of a higher level of care'' for special 
monthly compensation, and 38 U.S.C. 1710A and 1720C reference veterans 
``in need of'' nursing home care. While veterans eligible for PCAFC may 
also be eligible for these other benefits, there are unique criteria 
applied by VA to establish a veteran's need for ``regular aid and 
attendance'' and ``a higher level of care'' under 38 U.S.C. 1114(l), 
(m), (r) and (t). Similarly, there are unique criteria that apply in 
establishing a veteran's eligibility for nursing home care under 
chapter 17 of title 38, U.S.C. Through this rulemaking, we do not 
purport to modify those criteria or establish eligibility criteria 
applicable under any other VA statute besides section 1720G(a)(2)(C), 
which is the only statute in title 38, U.S.C., that references veterans 
``in need of personal care services.''
    In proposed Sec.  71.15, we would revise the current definition of 
``in the best interest'' which is used to determine whether a veteran 
or servicemember is eligible for PCAFC under current Sec.  71.20(d). 
This revised definition would be used to determine PCAFC eligibility 
under proposed Sec.  71.20(a)(4). We would also move this term before 
``inability to perform an activity of daily living (ADL)'' in Sec.  
71.15 so that the definitions would be listed in alphabetical order.
    This term is currently defined to mean a clinical determination 
that participation in PCAFC is likely to be beneficial to the veteran 
or servicemember; and in making such determination, a clinician will 
consider whether participation in PCAFC significantly enhances the 
veteran or servicemember's ability to live safely in a home setting, 
supports potential rehabilitation progress of the veteran or 
servicemember (if that potential exists), and creates an environment 
supportive of the veteran's or servicemember's health and well-being. 
This current language would generally remain in the proposed definition 
of ``in the best interest.'' However, we would replace the phrase 
``veteran or servicemember's'' with ``veteran's or servicemember's'' 
for clarity. Also, we propose to add language to this definition to 
explain that a clinician would also consider whether participation in 
PCAFC ``increases the veteran's or servicemember's potential 
independence, if such potential exists.'' We propose to add this 
additional consideration because we believe PCAFC is intended to help 
veterans and servicemembers achieve their highest level of health, 
quality of life, and independence. This would also reduce incentive for 
the dependence on a caregiver when there is potential for improvement. 
Considering an individual's level of independence, particularly when 
potential for improvement exists, is an important consideration in 
determining whether participation in PCAFC is in the best interest of 
the eligible veteran.
    In proposed Sec.  71.15, we would also revise the current 
definition of ``inability to perform an activity of daily living 
(ADL)'' which is one of the bases for determining eligibility under 
current Sec.  71.20(c) and proposed Sec.  71.20(a)(3). The ADLs listed 
in such term, numbered as paragraphs (1) through (7), would also be 
applied to determine whether a veteran or servicemember is unable to 
self-sustain in the community for purposes of the monthly stipend (as 
discussed below). ``inability to perform an activity of daily living 
(ADL)'' is currently defined as any one of the following: (1) Inability 
to dress or undress oneself; (2) Inability to bathe; (3) Inability to 
groom oneself in order to keep oneself clean and presentable; (4) 
Frequent need of adjustment any special prosthetic or orthopedic 
appliance that by reason of the particular disability, cannot be done 
without assistance (this does not include the adjustment of appliances 
that nondisabled persons would be unable to adjust without aid, such as 
supports, belts, lacing at the back, etc.); (5) Inability to toilet or 
attend to toileting without assistance; (6) Inability to feed oneself 
due to loss of coordination of upper extremities, extreme weakness, 
inability to swallow, or the need for a non-oral means of nutrition; or 
(7) Difficulty with mobility (walking, going up stairs, transferring 
from bed to chair, etc.). This current list reflects six activities 
that are widely recognized as ADLs by clinicians and are found in the 
Katz Basic ADL Scale, and one activity specific to veterans and 
servicemembers who require the use of a prosthetic or orthopedic 
appliance. 87 FR 26148 (May 5, 2011). We would maintain the current 
activities listed; however, we would revise the language for clarity 
and to delineate the frequency with which an eligible veteran would 
require personal care services to complete an ADL.
    First, we would replace ``any one of the following'' with ``a 
veteran or servicemember requires personal care services each time he 
or she completes one or more of the following.'' This language would 
clarify our interpretation of ``inability'' as it pertains to ADLs, and 
specify the frequency with which such personal care services would be 
needed to qualify for PCAFC. In order to be considered to have an 
``inability to perform an activity of daily living,'' we would require 
that a veteran or servicemember need personal care services each time 
he or she completes any of the ADLs listed in the definition (e.g., 
every time the individual is dressing or undressing,

[[Page 13361]]

bathing, grooming, toileting, etc.). This would exclude veterans and 
servicemembers who need help completing an ADL only some of the time 
the ADL is completed (e.g., the individual needs help with dressing or 
undressing only when wearing certain types of clothing). This change 
would be consistent with our goal of focusing PCAFC on eligible 
veterans with moderate and severe needs, and it would provide more 
objective criteria for clinicians evaluating PCAFC eligibility. This 
distinction is especially important for eligible veterans whose care 
needs may be more complex, particularly as personal care service needs 
related to a physical impairment can evolve over time. For example, 
infrequent assistance may be needed in the immediate time period 
following the onset of a disease (such that the individual needs help 
completing an ADL only some of the time it's completed), but over time 
and as the individual begins to age, the individual's care needs can 
progress. We would thus distinguish between veterans and servicemembers 
needing assistance with an ADL only some of the time from those who 
need assistance every time the ADL is completed, those who we believe 
have an ``inability'' to perform an ADL.
    Unlike in our definition of ``need for supervision, protection, or 
instruction,'' discussed below, we would not require the veteran or 
servicemember qualifying for PCAFC on this basis to need personal care 
services daily. Although the statute refers to an eligible veteran's 
inability to perform one or more activities of daily living as a basis 
upon which he or she can be deemed in need of personal care services 
(38 U.S.C. 1720G(a)(2)(C)(i)), we recognize that not all activities of 
daily living need to be performed every day. For example, bathing is 
included in the current Sec.  71.15 definition of ``[i]nability to 
perform an activity of daily living,'' but bathing may not be required 
every day. A veteran may be able to maintain health and wellness by 
adhering to a less frequent bathing routine.
    Second, for consistency with the introductory language proposed for 
this definition, we would revise the seven ADLs by removing the level 
of impairment and frequency of need referenced for each ADL. Thus, we 
would shift the focus to the activity itself rather than the level of 
impairment (i.e., we would remove the phrase ``[i]nability to'' from 
current paragraphs (1) through (3), (5), and (6); remove ``[f]requent 
need of'' from current paragraph (4); and remove ``[d]ifficultly with'' 
from current paragraph (7)). Despite the phrases ``[f]requent need of'' 
in current paragraph (4) and ``[d]ifficultly with'' in current 
paragraph (7) related to adjustment of a special prosthetic or 
orthopedic appliance and mobility, respectively, we do not believe 
these ADLs should be treated any differently than the other ADLs listed 
or have a lower threshold for purposes of PCAFC eligibility. This is 
because an individual who has difficulty with mobility would generally 
require personal care services every time they move. For example, an 
individual who is designated as a fall risk may require assistance each 
time he or she transfers from the bed to a chair or walks down the 
hall. Similarly, we believe the likelihood an individual may only 
require personal care services intermittently versus every time he or 
she needs to adjust any special prosthetic or orthopedic appliance is 
low. Finally, we would remove the phrase ``without assistance'' from 
current paragraph (5) in reference to toileting or attending to 
toileting as we believe this phrase is redundant because an eligible 
veteran would require assistance from another individual to complete 
any of the ADLs listed in this definition.
    As revised, the term ``inability to perform an activity of daily 
living (ADL)'' would be defined to mean ``a veteran or servicemember 
requires personal care services each time he or she completes one or 
more of the following: (1) Dressing or undressing oneself; (2) Bathing; 
(3) Grooming oneself in order to keep oneself clean and presentable; 
(4) Adjusting any special prosthetic or orthopedic appliance, that by 
reason of the particular disability, cannot be done without assistance 
(this does not include the adjustment of appliances that nondisabled 
persons would be unable to adjust without aid, such as supports, belts, 
lacing at the back, etc.); (5) Toileting or attending to toileting; (6) 
Feeding oneself due to loss of coordination of upper extremities, 
extreme weakness, inability to swallow, or the need for a non-oral 
means of nutrition; or (7) Mobility (walking, going up stairs, 
transferring from bed to chair, etc.).''
    In Sec.  71.15, we also propose to add a definition for the term 
``institutionalization.'' We would define institutionalization to refer 
to being institutionalized in a setting outside of the home residence 
to include a hospital, rehabilitation facility, jail, prison, assisted 
living facility, medical foster home, nursing home, or other similar 
setting. The term ``institutionalization'' is commonly used and 
understood by health care providers and we believe this definition 
generally aligns with the common use and understanding of the term. 
Furthermore, we note that the list in this definition is not meant to 
be exhaustive but rather illustrates the types of settings where an 
eligible veteran or Family Caregiver could reside to be considered 
institutionalized for purposes of discharge pursuant to proposed Sec.  
71.45. We recognize that the inclusion of medical foster homes (MFH) in 
this definition would deviate from the common understanding of MFH as a 
non-institutional long-term care option, and an alternative to 
facility-based institutional long-term care. VA refers veterans for MFH 
placement when they are unable to live independently safely or are in 
need of nursing home level care, but prefer to live in a private home 
setting. See 38 CFR 17.73 and 17.74. Therefore, we would consider MFH 
to be ``institutionalization'' only for purposes of PCAFC and only in 
proposed Sec.  71.45(b)(1) and (2) concerning discharges of the Family 
Caregiver from PCAFC due to the eligible veteran's or Family 
Caregiver's institutionalization. As set forth in current Sec.  
71.20(e) and proposed Sec.  71.20(a)(5), personal care services 
provided by the Family Caregiver under PCAFC cannot be simultaneously 
and regularly provided by or through another individual or entity. 
Therefore, a veteran participating in a MFH program would not qualify 
for PCAFC because his or her caregiver would be compensated through 
other means for the personal care services provided.
    In Sec.  71.15, we propose to add a definition for the term 
``intimate partner violence (IPV).'' We would define intimate partner 
violence as referring to any violent behavior including, but not 
limited to, physical or sexual violence, stalking, or psychological 
aggression (including coercive acts or economic harm) by a current or 
former intimate partner that occurs on a continuum of frequency and 
severity which ranges from one episode that might or might not have 
lasting impact to chronic and severe episodes over a period of years. 
The definition would further explain that IPV can occur in heterosexual 
or same-sex relationships and does not require sexual intimacy or 
cohabitation. This definition is based on the definition used by VHA's 
Intimate Partner Violence Assistance Program. As explained later in 
this rulemaking, we would define this term as it will be used in 
proposed Sec.  71.45(b)(3)(iii)(B) concerning a Family Caregiver's 
request

[[Page 13362]]

for discharge from PCAFC due to intimate partner violence.
    In proposed Sec.  71.15, we would add a new definition for ``joint 
application.'' We would define this term to mean an application that 
has all fields within the application completed, including that the 
application has been signed and dated by all applicants, with the 
following fields exempted: Social security number or tax identification 
number, middle name, sex, email, alternate telephone number, and name 
of facility where the veteran last received medical treatment, or any 
other field specifically indicated as optional. This term would be used 
in the proposed definition of ``legacy applicant'' discussed further 
below, and throughout Sec.  71.25, as we propose to revise such 
section. VA would also rely on this definition when determining the 
date that a joint application is received for the purpose of 
establishing the effective date of benefits for PCAFC in proposed Sec.  
71.40(d). Only an application with all mandatory fields completed 
(i.e., all fields other than those specifically exempted) would be 
considered a ``joint application'' under these sections.
    An application that does not have all of the mandatory sections 
completed (e.g., names, address of veteran's or servicemember's 
residence, dates of birth, certifications, and signatures) would not 
meet the definition of joint application. Such an application would be 
considered incomplete and the application review process would not be 
able to begin. This is because the required sections are necessary for 
VA to begin evaluating the eligibility of veterans and servicemembers 
and their family members for PCAFC (e.g., to validate that the family 
member applicant is at least 18 years of age). VA has found that when 
applicants do not provide all of the required information, this leads 
to delays as VA must take steps to obtain the missing information. 
Fields that would be excluded from the definition of ``joint 
application'' are fields which may not be relevant to all applicants. 
Thus, VA would only consider an application a ``joint application'' 
when all required sections are complete (i.e., all fields other than 
those specifically exempted).
    In proposed Sec.  71.15, we would add a new definition for ``legacy 
applicant.'' We would define this term to mean a veteran or 
servicemember who submits a joint application for PCAFC that is 
received by VA before the effective date of this rule and for whom a 
Family Caregiver(s) is approved and designated on or after the 
effective date of this rule. The definition would further require that 
to be considered a legacy applicant, the Primary Family Caregiver 
approved and designated for the veteran or servicemember pursuant to 
such joint application (as applicable) continues to be approved and 
designated as such. We would also state that if a new joint application 
is received by VA on or after the effective date of the rule that 
results in approval and designation of the same or a new Primary Family 
Caregiver, the veteran or servicemember would no longer be considered a 
legacy applicant.
    In proposed Sec.  71.15, we would also add a new definition of 
``legacy participant.'' We would define this term to mean an eligible 
veteran whose Family Caregiver(s) was approved and designated by VA 
under this part as of the day before the effective date of this rule so 
long as the Primary Family Caregiver approved and designated for the 
eligible veteran as of that date (as applicable) continues to be 
approved and designated as such. We would also state that if a new 
joint application is received by VA on or after the effective date of 
the rule that results in the approval and designation of the same or a 
new Primary Family Caregiver, the veteran or servicemember would no 
longer be considered a legacy participant.
    As explained later in this rulemaking, we are proposing changes to 
PCAFC that could affect the eligibility and benefits of Family 
Caregivers of legacy applicants and legacy participants, as those terms 
would be defined in proposed Sec.  71.15. Therefore, our proposed rule 
would include requirements in proposed Sec. Sec.  71.20, 71.30, and 
71.40, that are intended to minimize disruption to these individuals 
for the one-year period following the effective date of the rule. These 
proposed requirements are addressed in the discussion of those sections 
below.
    In proposed Sec.  71.15, we would add a new definition of ``legal 
services.'' We would define this term to address changes made to 38 
U.S.C. 1720G by the VA MISSION Act of 2018. Specifically, the VA 
MISSION Act of 2018 added ``legal services, including legal advice and 
consultation, relating to the needs of injured veterans and their 
caregivers,'' as a benefit for Primary Family Caregivers. See 38 U.S.C. 
1720G(a)(3)(A)(ii)(VI)(bb), as amended by Public Law 115-182, section 
161(a)(3). As explained later in this rulemaking, we propose to add 
``legal services'' to the benefits available to Primary Family 
Caregivers under a revised Sec.  71.40(c).
    We would define ``legal services'' in Sec.  71.15 to mean 
assistance with advanced directives, power of attorney, simple wills, 
and guardianship; educational opportunities on legal topics relevant to 
caregiving; and referrals to community resources and attorneys for 
legal assistance or representation in other legal matters. We believe 
educational opportunities on topics relevant to caregiving would 
include topics such as advanced directives, simple wills, and estate 
planning. We believe that these types of legal services would support 
Primary Family Caregivers and would be relevant and applicable to the 
needs of eligible veterans and their caregivers.
    As previously discussed, VA sought feedback from the public in a 
FRN published on November 27, 2018, which asked for public comments on 
what legal services should be made available to Primary Family 
Caregivers, how such services should be provided, and what type of 
entities provide such services. Additionally, we held meetings and 
listening sessions to garner input from stakeholders. The responses 
received from these activities varied. Some of the feedback received 
supported a referral system to community providers, while other 
feedback supported the provision of legal services in the most 
expansive way possible. Also, some feedback acknowledged the potential 
for conflict of interests between the eligible veteran and Family 
Caregiver regarding certain legal issues, including divorce or child 
custody. Furthermore, some of the feedback received specified that 
legal services should include the provision of advanced directives, 
power of attorney, wills, and guardianship. VA has considered the 
feedback received and believes an approach inclusive of providing 
assistance with advanced directives, power of attorney, simple wills, 
and guardianship; education on legal topics relevant to caregiving; and 
a referral service for other legal services is most appropriate. This 
definition would allow VA to address certain legal needs among those 
that relate to and support the Primary Family Caregiver's ability to 
provide personal care services to the eligible veteran, while also 
being mindful of VA resources.
    The provision of assistance for certain legal matters, and a 
referral service for other legal matters would provide Primary Family 
Caregivers with access to community resources and a network of 
attorneys who practice in the area of law most appropriate to his or 
her needs. Furthermore, we believe education on legal topics related to 
caregiving would provide Primary Family Caregivers with access to a 
multitude of resources specific to caregiving needs. We believe that

[[Page 13363]]

paying for legal advice and consultation for matters other than 
advanced directives, power of attorney, simple wills, and guardianship 
would be cost prohibitive and may limit our ability to provide other 
benefits to Family Caregivers. Providing limited legal assistance, 
education, and referrals would ensure that VA is able to consistently 
provide the same legal services to all Primary Family Caregivers.
    Our proposed definition of ``legal services'' would also limit 
these services to only those provided in relation to the personal legal 
needs of the eligible veteran and Primary Family Caregiver. We believe 
limiting these services is reasonable because PCAFC is designed to 
support the clinical needs of the eligible veteran and the benefits 
provided to Family Caregivers are the direct result of the personal 
care services they provide to eligible veterans. As a result, these 
services would not be provided to assist with any business or other 
professional endeavors of the eligible veteran or Primary Family 
Caregiver because these endeavors would not be directly related to the 
provision of personal care services to an eligible veteran. We also 
believe limiting these services in this manner aligns with feedback we 
received since business and professional endeavors were not raised as 
legal services that VA should provide to caregivers. We note that these 
services would be provided by entities authorized pursuant to any 
contract entered into between VA and such entities.
    Furthermore, we would explicitly exclude from this definition 
assistance with matters in which the eligible veteran or Primary Family 
Caregiver is taking or has taken any adversarial legal action against 
the United States government, and disputes between the eligible veteran 
and Primary Family Caregiver. However, we note that this would not 
exclude educational opportunities and referrals for such matters. We 
believe this is reasonable as VA should not be expected to provide 
legal services in a situation in which an eligible veteran or Primary 
Family Caregiver takes any adversarial legal action against the United 
States government, including VA and other Federal agencies. We believe 
that providing such services may result in conflicts of interest. 
Additionally, we do not believe VA should provide legal services in a 
situation where there is a dispute between the eligible veteran and 
Primary Family Caregiver. Although, PCAFC provides benefits directly to 
caregivers, VA's mission is to care for veterans, and we believe 
providing legal services in a situation where there is a dispute 
between the eligible veteran and Primary Family Caregiver could also 
create a conflict of interest.
    In Sec.  71.15, we propose to add a new definition for the term 
``monthly stipend rate.'' We would define this term to mean the Office 
of Personnel Management (OPM) General Schedule (GS) Annual Rate for 
grade 4, step 1, based on the locality pay area in which the eligible 
veteran resides, divided by 12. We would define ``monthly stipend 
rate'' as it will be used in proposed Sec.  71.40(c)(4) concerning 
stipend payments for Primary Family Caregivers. Our basis for selecting 
this definition and payment rate, how we would address adjustments that 
result from OPM's updates to the GS rate, and periodic assessments of 
and, if applicable, adjustments to the monthly stipend rate are 
discussed below in the context of proposed changes to Sec.  
71.40(c)(4).
    In proposed Sec.  71.15, we would remove the current definition of 
``need for supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury,'' and replace this term 
with a new definition of ``need for supervision, protection, or 
instruction.'' The term ``need for supervision or protection based on 
symptoms or residuals of neurological or other impairment or injury'' 
is one of the bases for determining eligibility under current Sec.  
71.20(c), and it is currently defined to mean requiring supervision or 
assistance for any one of the seven listed reasons: Seizures (blackouts 
or lapses in mental awareness, etc.); difficulty with planning and 
organizing (such as the ability to adhere to medication regimen); 
safety risks (wandering outside the home, danger of falling, using 
electrical appliances, etc.); difficulty with sleep regulation; 
delusions or hallucinations; difficulty with recent memory; or self-
regulation (being able to moderate moods, agitation or aggression, 
etc.). These impairments were based on the United Kingdom Functional 
Independence Measure and Functional Assessment Measure, and the 
Neuropsychiatric Inventory. 87 FR 26149 (May 5, 2011).
    We believe the current definition of ``need for supervision or 
protection based on symptoms or residuals of neurological or other 
impairment or injury'' unduly restricts VA's ability to consider all 
functional impairments that may impact a veteran's or servicemember's 
ability to maintain his or her personal safety on a daily basis. For 
example, an individual with a diagnosis of dysautonomia, which refers 
to a wide range of conditions that affect the autonomic nervous system, 
could experience symptoms such as an inability to stay upright, 
tremors, and concentration, and thus be in need of personal care 
services based on a need for supervision or protection, but would not 
necessarily have one of the seven impairments listed in the current 
definition of ``need for supervision or protection based on symptoms or 
residuals of neurological or other impairment or injury.'' It is VA's 
intent to broaden the current criteria in the definition of ``need for 
supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury'' so as not to limit 
eligibility to veterans and servicemembers with a predetermined list of 
impairments.
    We propose to replace this term with a new term, ``need for 
supervision, protection, or instruction,'' which would be one of the 
bases for determining eligibility under proposed Sec.  71.20(a)(3). 
This term would also be applied to determine whether a veteran or 
servicemember is unable to self-sustain in the community for purposes 
of the monthly stipend (as discussed below). The term ``need for 
supervision, protection, or instruction'' would represent and combine 
two of the statutory bases upon which a veteran or servicemember can be 
deemed in need of personal care services--``a need for supervision or 
protection based on symptoms or residuals of neurological or other 
impairment or injury,'' and ``a need for regular or extensive 
instruction or supervision without which the ability of the veteran to 
function in daily life would be seriously impaired.'' See 38 U.S.C. 
1720G(a)(2)(C)(ii) and (iii), as amended by Public Law 115-182, section 
161(a)(2). We believe these two bases of eligibility capture the 
personal care service needs of veterans and servicemembers with a 
significant cognitive, neurological, or mental health impairment, as 
opposed to an inability to perform an ADL, which captures the personal 
care service needs of veterans and servicemembers with physical 
impairment.
    The term ``need for supervision, protection, or instruction,'' 
would mean an individual has a functional impairment that directly 
impacts the individual's ability to maintain his or her personal safety 
on a daily basis. Examples of conditions that may cause such functional 
impairment include dementia, psychosis, seizures, other disorders of 
mental competence. However, instead of listing specific symptoms and 
diagnoses, which can

[[Page 13364]]

evolve as clinical practice guidelines are updated over time, the 
proposed definition would shift the focus to functional impairment. In 
determining eligibility on this basis, VA would not focus on the 
individual's specific diagnosis or conditions, but rather whether the 
veteran or servicemember has impairment in functioning that directly 
impacts the individual's ability to maintain his or her personal safety 
on a daily basis and thus requires supervision, protection, or 
instruction from another individual. For example, an individual with 
schizophrenia who has active delusional thoughts that lead to unsafe 
behavior (e.g., setting a fire, walking into traffic) may require 
another individual to provide supervision or instruction to ensure his 
or her personal safety on a daily basis. Additionally, an individual 
with dementia may be physically capable of washing their hands or 
taking a bath but may be unable to use the appropriate water 
temperature and may thus require step-by-step instruction or sequencing 
in order to maintain his or her personal safety on a daily basis. 
However, an individual with dementia who is forgetful or misplaces 
items but can adapt and manage successfully without compromising his or 
her personal safety on a daily basis (e.g., by relying on lists and 
visual cues for prompting), may not be in need of supervision, 
protection, or instruction.
    This definition would also recognize that impairment in functioning 
may result from multiple conditions or diagnoses and the impact of the 
functional impairment on the individual's personal safety can change 
over time (e.g., for a veteran or servicemember with a progressive 
disease). Whether a veteran or servicemember would qualify for PCAFC on 
this basis would depend on whether his or her functional impairment 
directly impacts the individual's ability to maintain his or her 
personal safety on a daily basis. For example, a veteran or 
servicemember who is diagnosed with Parkinson's disease may not qualify 
on this basis during the initial onset of symptoms, but over time or 
because of comorbidities, could be determined eligible on this basis.
    We would require that the functional impairment impact the 
individual's ability to maintain personal safety on a daily basis to 
address and clarify the frequency with which a veteran or servicemember 
would need for supervision, protection, or instruction for purposes of 
PCAFC eligibility. This requirement would be consistent with our goal 
of focusing PCAFC on eligible veterans with moderate and severe needs. 
We also believe it is consistent with the statutory criteria it would 
implement, which in part recognize that instruction or supervision are 
needed for the eligible veteran to function in daily life. See 38 
U.S.C. 1720G(a)(2)(C)(iii). A veteran or servicemember meeting this 
criterion may not need supervision, protection, or instruction 
continuously during the day (see our proposed definition of ``unable to 
self-sustain in the community'' discussed further below), but would 
need such personal care services on a daily basis, even if just 
intermittently each day. For example, a veteran or servicemember may 
require supervision or instruction when completing certain daily tasks, 
such as administering daily medication, due to a cognitive impairment 
caused by dementia, but not require a caregiver to be physically 
present the remainder of the day.
    In Sec.  71.15, we propose to add a new definition for the term 
``overpayment.'' We would define this term to mean a payment made by VA 
pursuant to part 71 to an individual in excess of the amount due, to 
which the individual was not eligible, or otherwise made in error. The 
definition would also specify that an overpayment is subject to 
collection action. This definition would clarify the payments that are 
considered overpayments and subject to collection action in accordance 
with the Federal Claims Collection Standards (FCCS) and as discussed 
below in the context of the proposed addition of Sec.  71.47.
    We propose to revise the definition of ``primary care team'' in 
current Sec.  71.15 and the references to that term in various sections 
of part 71. The term ``primary care team'' is currently defined to mean 
``a group of medical professionals who care for a patient and who are 
selected by VA based on the clinical needs of the patient.'' The 
current definition also specifies that ``[t]he 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 patient.'' 
This term is currently used in part 71 in reference to: Authorizations 
made in the context of eligibility determinations under current Sec.  
71.20(c) and (d) and approval and designation under current Sec.  
71.25(f), the eligible veteran's ongoing care in current Sec.  
71.20(g), the initial assessment of the caregiver applicant in current 
Sec.  71.25(c)(1), the caregiver applicant's ability to carry out care 
requirements in current Sec.  71.25(c)(2), and monitoring visits in 
current Sec.  71.40(b)(2). For reasons discussed further below, we 
would remove the references to ``primary care team'' in all but one of 
these contexts (regarding the eligible veteran receiving ongoing care 
from a primary care team), and we would add a reference to ``primary 
care team'' in one other context.
    Instead of referencing the role of the primary care team in various 
paragraphs of Sec. Sec.  71.20 and 71.25, we propose to include one 
reference to the primary care team in proposed Sec.  71.25(a)(2)(i) 
that indicates PCAFC eligibility evaluations would be performed in 
collaboration with the primary care team to the maximum extent 
practicable. The current references to authorizations by the primary 
care team in current Sec.  71.20(c) and (d) and current Sec.  71.25(f) 
are unclear and have not been applied consistently due to variation 
between facilities on how such authorizations are obtained. Also, the 
individual or team best suited to conduct the initial assessment of an 
applicant seeking designation as a Family Caregiver under Sec.  
71.25(c)(1) can vary across VA depending on the individual needs of the 
veteran or servicemember. It may be more appropriate for clinical 
eligibility teams or providers other than the veteran's or 
servicemember's primary care team to perform these evaluations. 
Additionally, in evaluating the caregiver applicant's ability to carry 
out care requirements under current Sec.  71.25(c)(2), it may be 
appropriate to consider care requirements prescribed by providers other 
than the veteran's or servicemember's primary care team, such as a VA 
clinical eligibility team, non-VA provider, or other appropriate 
individual or individuals in VA. These changes would give VA more 
flexibility in how it evaluates PCAFC eligibility and approves and 
designates Family Caregivers while also ensuring that joint 
applications are evaluated in collaboration with the primary care team 
of the veteran or servicemember to the maximum extent practicable.
    Additionally, we would remove the reference to the primary care 
team maintaining the eligible veteran's treatment plan and 
collaborating with clinical staff making home visits for purposes of 
monitoring in current Sec.  71.40(b)(2) (i.e., wellness contacts in 
proposed Sec.  71.40(b)(2)). It may not always be appropriate for the 
clinical staff conducting home visits to collaborate directly with the 
eligible veteran's primary care team. It may be more appropriate for 
the clinical staff

[[Page 13365]]

conducting home visits to collaborate with the Caregiver Support 
Coordinator (CSC) who would then collaborate with the primary care 
team, and would be the liaison between the primary care team and the 
clinical staff conducting home visits. As discussed below in the 
context of proposed Sec.  71.40(b)(2), the primary care team would 
still maintain the eligible veteran's treatment plan and be involved in 
monitoring the well-being of eligible veterans.
    With these changes, the term ``primary care team'' would only be 
referenced in part 71 in proposed Sec.  71.20(a)(7) in reference to the 
eligible veteran receiving ongoing care from a primary care team (based 
on current Sec.  71.20(g)) and proposed Sec.  71.25(a)(2)(i) in 
reference to VA's evaluation of PCAFC applications. In these contexts, 
it is important to revise the current definition of ``primary care 
team'' in Sec.  71.15 to make clear that it refers to one or more VA 
medical professionals, and to recognize the variation in how eligible 
veterans receive care from VA.
    First, we would remove the reference to a group ``selected by VA'' 
and instead refer to ``one or more VA medical professionals.'' The 
current phrase ``selected by VA,'' is ambiguous and can be interpreted 
to mean non-VA medical professionals or VA medical professionals 
selected to serve on the primary care team for an eligible veteran. 
This proposed change would remove this ambiguity by clearly stating 
that the primary care team is one or more VA medical professionals. 
Pursuant to 38 U.S.C. 1720G(a)(9)(A) through (C), VA is required to 
monitor the well-being of eligible veterans receiving personal care 
services from a designated Family Caregiver; document findings 
pertinent to the delivery of personal care services; and ensure 
appropriate follow up. Requiring eligible veterans to receive ongoing 
care from a primary care team that consists of one or more VA medical 
professionals pursuant to proposed Sec.  71.20(a)(7) would ensure that 
VA is able to continue to fulfill these statutory requirements. 
Additionally, section 161(a)(6) of the VA MISSION Act of 2018 requires 
that PCAFC applications be evaluated by VA in collaboration with the 
primary care team for the eligible veteran to the maximum extent 
practicable. See 38 U.S.C. 1720G(a)(5), as amended by Public Law 115-
182, section 161(a)(6). We recognize that veterans or servicemembers 
may receive care from non-VA providers in the community; however, for 
purposes of evaluating joint applications under proposed Sec.  
71.25(a)(2)(i), we would rely on input from the VA medical 
professional(s) who care for the patient. Additionally, we recognize 
that eligible veterans, based on individual needs, may only receive 
care from one VA medical professional or may receive care from multiple 
VA medical professionals; therefore, we would remove reference to 
``group'' and instead refer to ``one or more.'' This revised definition 
would ensure collaboration with the VA medical professional(s) involved 
in the patient's care during the evaluation of the individual's joint 
application. Referencing the phrase ``one or more VA medical 
professionals'' instead of referring to medical professionals 
``selected by VA'' would operationally be the most feasible to 
implement and ensure VA meets its statutory obligations.
    Second, we would remove the phrase ``who coordinates care'' from 
the current definition because that phrase can be misinterpreted to 
mean a care coordinator or a provider who coordinates care with other 
providers. This phrase also does not specify whether the care 
coordinated is specific to care related to PCAFC or all of the care 
coordination needs of the eligible veteran. We have interpreted this 
phrase to mean a provider who coordinates the clinical needs of his or 
her patients which we believe is inherent in the duties of VA medical 
professionals. Thus, we would remove the requirement in the current 
definition that the primary care team must include a ``provider who 
coordinates the care.''
    Third, we would remove the phrase ``must include a primary care 
provider,'' and references to other clinical specialists as indicated 
by the needs of the particular patient. Some eligible veterans 
participating in PCAFC may receive their primary care in the community 
and may only utilize VA for a portion of their care, such as mental 
health or specialty services. Therefore, we would remove the 
requirement that a primary care provider must be part of the primary 
care team. Additionally, because this definition would refer to one or 
more VA medical professionals who care for a patient based on the 
clinical needs of the patient, we do not believe it is necessary to 
specify the types of medical professionals who could serve on the 
primary care team for an eligible veteran.
    As revised the term ``primary care team'' would mean one or more VA 
medical professionals who care for a patient based on the clinical 
needs of the patient. We believe this revision would meet our statutory 
requirements, accommodate veterans and servicemembers who may receive 
care in the community, and ensure that eligible veterans participating 
in PCAFC receive care from one or more VA medical professionals based 
on their needs.
    We would also revise the definition of ``serious injury'' in 
current Sec.  71.15. When Congress enacted the Caregivers Act, it 
limited PCAFC to eligible Veterans with a ``serious 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.'' 38 U.S.C. 1720G(a)(2)(B). Currently, VA's 
regulations define ``serious injury'' at Sec.  71.15 and implement the 
requirement at current Sec.  71.20(b) and (c) mainly by restating the 
statutory language without providing guidance or clarity as to its 
meaning. ``Serious injury'' is currently defined in Sec.  71.15 to mean 
``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.'' This definition has led to implementation challenges, 
among them inconsistent eligibility determinations by VA providers. We 
believe it is critical for VA to revise its definition of ``serious 
injury'' to address these challenges and improve PCAFC administration. 
In addition, we believe a revised definition of ``serious injury'' 
would help ensure that eligible veterans who served both before and 
after September 11, 2001 have equitable access to PCAFC. We propose 
four significant revisions to the current ``serious injury'' definition 
in Sec.  71.15, which are discussed in detail below.
    First, we would define the term ``injury'' to include ``any 
service-connected disability'' regardless of whether it resulted from 
an injury, illness, or disease. Second, we would define ``serious 
injury'' to mean having a singular or combined rating of 70 percent or 
more based on one or more service-connected disabilities. Third, we 
would no longer require a connection between the need for personal care 
services and a specific serious injury. Finally, we would remove the 
phrase ``incurred or aggravated in the line of duty in the active 
military, naval, or air service'' and replace it with ``service-
connected.'' As revised, the term ``serious injury'' would be defined 
to mean any service-connected disability that (1) is rated at 70 
percent or more by VA, or (2) is combined with any other service-
connected disability or disabilities and a combined rating of 70

[[Page 13366]]

percent or more is assigned by VA. In this discussion, we outline the 
issues associated with PCAFC's current definition of ``serious 
injury,'' describe alternative approaches, and propose a new definition 
that would reduce subjectivity and help ensure more equitable 
implementation of PCAFC.
    The lack of clarity on what constitutes an ``injury'' has placed an 
inordinate responsibility on providers assessing PCAFC eligibility and, 
as a result, has contributed to delays in VA's adjudication of PCAFC 
applications. It is generally not necessary for VA to distinguish 
between injuries and diseases in establishing service-connection for 
purposes of disability compensation. See 38 U.S.C. 1110 and 1131 
(referring to both ``injury'' and ``disease''). Therefore, the vast 
majority of VA rating decisions do not indicate whether a disability is 
attributable to an injury as compared to a disease. In addition, the 
terms ``injury'' and ``disease'' for purposes of compensation are not 
defined in title 38, United States Code or Code of Federal Regulations. 
Thus, VA providers evaluating PCAFC eligibility must rely on complex 
assessment, clinical diagnoses, or other credible evidence of injury, 
which may not be available. In the absence of clear guidance on what 
constitutes an injury or how to distinguish an injury from illnesses 
and diseases, providers apply subjective clinical judgement on a case-
by-case basis.
    Providers' interpretations of the ``injury'' requirement vary, 
resulting in inconsistent outcomes for PCAFC applicants between VA 
facilities and VA providers. For example, some VA providers have 
applied the term injury to include illnesses and diseases that have 
resulted from an injury during service while others have not (e.g., one 
VA provider may determine that a veteran's arthritis resulted from an 
injury incurred in the line of duty, whereas another may consider it to 
be a chronic disease that, while incurred in the line of duty, does not 
constitute an injury). Providers may also consider the term injury to 
include exposure to environmental hazards during service, such that 
illnesses and diseases resulting from an environmental exposure could 
be considered injuries (e.g., a veteran may suffer from neurological 
impairments as a result of exposure to burn pits, but providers may 
have differing opinions on whether that type of exposure constitutes an 
injury). Additionally, providers may have differing opinions as to what 
caused a veteran's service-connected disability (e.g., a provider in 
one VA facility may consider a veteran's migraine headaches to be 
caused by a traumatic brain injury (TBI), and therefore a qualifying 
injury, whereas in another the VA provider may attribute the migraine 
headaches to a viral or bacterial infection of the head and neck that 
does not constitute an injury). Furthermore, the inclusion of 
``psychological trauma'' and ``other mental disorder'' in 38 U.S.C. 
1720G(a)(2)(B) has raised questions as to which mental health diagnoses 
are considered an ``injury'' under the law. For example, providers may 
have different interpretations of whether ``injury'' includes a mental 
health diagnosis clearly associated with an illness or disease (e.g., 
where a veteran's disability rating decision documents that the 
veteran's post-traumatic stress disorder (PTSD) or major depressive 
disorder is the result of an illness, like cancer). If VA continues to 
apply the current definition of ``serious injury,'' these challenges 
are likely to be exacerbated as PCAFC is expanded to veterans who 
served before September 11, 2001. Not only will VA be processing more 
applications for PCAFC, but also considering eligibility for veterans 
of earlier eras for whom evidence establishing ``injury'' during 
military service may not be as readily available.
    Outside the context of PCAFC, VA generally only considers whether a 
disability or a death resulted from an injury as compared to a disease 
when a claim is filed alleging that a disability or death was incurred 
during inactive duty training. VA compensation is payable only if, 
during inactive duty training, an individual was disabled or died 
``from an injury incurred or aggravated in line of duty,'' or from an 
``acute myocardial infarction, a cardiac arrest, or a cerebrovascular 
accident occurring during such training.'' 38 U.S.C. 101(24)(C). The VA 
General Counsel has analyzed the distinction between ``injury'' and 
``disease'' for purposes of 38 U.S.C. 101(24) and concluded that the 
term ``injury'' denotes harm from external trauma, as distinguished 
from ``disease'' which refers to a type of internal infection or 
degenerative process. Also, VA's disability compensation regulations 
specify that certain presumptive exposures during service constitute an 
``injury'' for purposes of 38 U.S.C. 101(24). See 38 CFR 3.307(a)(6)(v) 
(regarding presumed exposures on C-123 aircraft) and (a)(7)(iv) 
(regarding presumed exposures to contaminants in the water supply at 
Camp Lejeune).
    VA also administers the Servicemembers' Group Life Insurance 
Traumatic Injury Protection (TSGLI) program under 38 U.S.C. 1980A. 
TSGLI provides short-term financial assistance to servicemembers 
insured by Servicemembers' Group Life Insurance who sustain a traumatic 
injury directly resulting in a scheduled loss. VA's regulations 
governing TSGLI at 38 CFR 9.20(b) and (c)(1) define ``traumatic 
injury'' to mean ``physical damage to a living body'' caused by ``the 
application of external force, violence, chemical, biological, or 
radiological weapons, or accidental ingestion of a contaminated 
substance causing damage to a living being.'' The term ``traumatic 
injury'' specifically excludes ``damage to a living body caused by--(i) 
[a] mental disorder; or (ii) [a] mental or physical illness or disease, 
except if the physical illness or disease is caused by a pyogenic 
infection, biological, chemical, or radiological weapons, or accidental 
ingestion of a contaminated substance.'' 38 CFR 9.20(c)(2).
    While VA's interpretation of ``injury'' for purposes of 38 U.S.C. 
101(24) and the TSGLI definition of ``traumatic injury'' for purposes 
of 38 U.S.C. 1980A are useful as references in defining ``injury'' for 
purposes of PCAFC, they are not dispositive. In many respects, the term 
``serious injury'' in 38 U.S.C. 1720G is distinguishable from 
``injury'' and ``traumatic injury'' under 38 U.S.C. 101(24) and 1980A, 
respectively.
    First, the context in which ``serious injury'' appears in 38 U.S.C. 
1720G(a)(2)(B) diverges significantly from ``injury'' in 38 U.S.C. 
101(24)(C) and ``traumatic injury'' in 38 U.S.C. 1980A. Section 
1720G(a)(2)(B) includes the terms ``psychological trauma'' and ``other 
mental disorder,'' which suggests that, rather than distinguishing 
``injury'' and ``disease,'' the term ``serious injury'' includes 
certain illnesses and diseases. This is in stark contrast to 38 U.S.C. 
101(24)(B) and (C) where ``injury'' is clearly distinguished from the 
term ``disease.'' Compare 38 U.S.C. 101(24)(B) (``any period of active 
duty for training during which the individual concerned was disabled or 
died from a disease or injury''), with section 101(24)(C) (``any period 
of inactive duty training during which the individual concerned was 
disabled or died . . . from an injury''). The inclusion of ``mental 
disorder''--conditions that may otherwise be considered ``diseases''--
also distinguishes ``serious injury'' in section 1720G(a)(2)(B) from 
TSGLI's definition of ``traumatic injury,'' which generally excludes 
coverage for mental disorders (except as specified). In addition, 38 
U.S.C. 1980A prescribes certain ``qualifying losses'' for purposes of 
TSGLI, to include: Total and permanent loss of sight, speech, hearing

[[Page 13367]]

in both ears; loss of hand or foot by severance at or above the wrist 
or ankle; quadriplegia, paraplegia, or hemiplegia; certain burns; and 
coma or the inability to carry out two or more activities of daily 
living resulting from traumatic injury to the brain. Congress was not 
so prescriptive in 38 U.S.C. 1720G, and likely had a broader veteran 
population in mind when referencing ``serious injury'' for purposes of 
PCAFC as opposed to servicemembers with a ``traumatic injury'' under 38 
U.S.C. 1980A. Whereas the term ``trauma'' is frequently defined with 
reference to external force or violence (see 70 FR 75940, at 75941 
(December 22, 2005) (citing VAOPGC 6-86)), the term ``serious'' does 
not carry the same connotations. See Ballentine's Law Dictionary, 3rd 
Ed. (2010), available at LexisNexis (defining ``serious'' as 
``[i]mportant; weighty, momentous and not trifling,'' and in the 
definition of ``serious bodily injury'' explaining ``[t]he word 
`serious,' when used to define the degree of bodily harm or injury 
apprehended, requires or implies as high a degree as the word `great' 
and the latter word means high in degree, as contradistinguished from 
trifling.'')
    Second, there are notable differences in PCAFC under 38 U.S.C. 
1720G and these other title 38 authorities (i.e., 38 U.S.C. 101(24) and 
1980A). Section 101(24)(C) is limited to injuries and other conditions 
occurring during training, which is likely related to the nature of 
inactive-duty training as involving only brief periods of service. For 
example, Congress may have determined that diseases becoming manifest 
during such brief periods of service are less likely to be causally 
related to such service than injuries occurring during such service. 
The same cannot generally be said of veterans eligible for PCAFC. It is 
more likely that Congress limited PCAFC to veterans with a serious 
injury because PCAFC was originally focused on veterans who served on 
or after September 11, 2001, primarily veterans of Operation Enduring 
Freedom, Operation Iraqi Freedom, and Operation New Dawn. TBI and PTSD 
have been referred to as ``invisible injuries'' and as the ``signature 
wounds'' of these conflicts, and it could have been Congress's intent 
to focus PCAFC benefits on veterans who sustained such disabilities and 
other ``visible'' injuries, as opposed to veterans with other service-
connected illnesses or diseases.
    Congress may have had a similar population in mind when 
establishing TSGLI benefits in 2005. Public Law 109-13, section 1032 
(2005). As explained in VA's interim final rule establishing 38 CFR 
9.20:

    TSGLI was designed to provide severely injured service members 
who suffer a loss as a direct result of a serious traumatic injury, 
such as a loss of an arm or leg, with monetary assistance to help 
the member and the member's family through an often long and arduous 
treatment and rehabilitation period. In many instances, the family 
of a member who suffers a traumatic loss in the service of his or 
her country must physically relocate in order to be with the member 
during this period in order to provide the member with emotional 
support. Relocating an entire family is not only disruptive but can 
and does result in economic hardship to the member and the member's 
family brought on by new and/or additional living expenses, and in 
some cases the loss of a job. TSGLI helps to lessen that economic 
burden by providing immediate financial relief.

70 FR 75940 (December 22, 2005). However, unlike PCAFC, TSGLI is 
modeled after commercial Accidental Death and Dismemberment insurance 
coverage, specifically, the ``dismemberment'' portion of the coverage. 
Id. In contrast, PCAFC is a clinical benefit program administered 
through VHA and designed to provide assistance to Family Caregivers 
that provide personal care services to eligible veterans. Unlike TSGLI, 
which is limited to lump-sum monetary assistance, PCAFC provides 
eligible Family Caregivers with training and technical support to 
assist Family Caregivers in their role as a caregiver for an eligible 
veteran. In addition, PCAFC provides eligible Family Caregivers with 
counseling and mental health services, respite care, medical care under 
CHAMPVA, and a monthly personal caregiver stipend. Rather than 
quantifying losses, PCAFC is designed to support the health and well-
being of eligible veterans, enhance their ability to live safely in a 
home setting, and support their potential progress in rehabilitation, 
if such potential exists. 38 CFR 71.15.
    Further, while Congress may have originally intended to focus PCAFC 
on the signature disabilities of veterans who served after September 
11, 2001, the VA MISSION Act of 2018 expanded PCAFC to veterans of 
earlier eras. Veterans who served before September 11, 2001, have high 
incidences of PTSD and other ``visible'' injuries similar to those who 
served after September 11, 2001; however, the signature disabilities of 
earlier conflicts also include other illnesses and diseases, such as 
diseases presumed to be the result of herbicide exposure in Vietnam and 
other places, and chronic multi-symptom illness experienced by Persian 
Gulf Veterans. Other service-connected disabilities that prevail in 
these populations include multiple sclerosis (MS), amyotrophic lateral 
sclerosis (ALS), and hepatitis C--disabilities that are generally 
considered to be diseases, not injuries.
    In establishing a proposed definition of ``injury'' for purposes of 
PCAFC, we considered incorporating elements of VA's interpretation of 
``injury'' under 38 U.S.C. 101(24) and the TSGLI definition of 
``traumatic injury'' for purposes of 38 U.S.C. 1980A, while also 
addressing the implementation challenges outlined above and recognizing 
the disabilities of veterans who served before September 11, 2001. One 
possibility we considered was defining ``injury'' for purposes of PCAFC 
to include not only harm resulting from a violent encounter, such as 
application of chemical, biological, and radiological weapons, but also 
adverse effects on body tissue or systems resulting from: Introduction 
of a foreign substance, such as ingestion of a contaminated substance 
or exposure to a vaccination; exposure to environmental hazards like 
certain herbicides agents, volatile organic compound contaminants, 
radiation, excessive heat or cold, or non-penetrating blast waves; 
detention, internment, or confinement as a prisoner of war; and an 
insect bite or sting, or animal bite. Such a definition would recognize 
as an ``injury'' those service-connected disabilities presumed by VA to 
be the result of exposure during service (including disabilities 
associated with exposure to certain herbicide agents and diseases 
specific to radiation-exposed veterans), as well as any illnesses or 
diseases known to be caused by exposure to environmental hazards based 
on direct evidence (including known exposure to burn pits).
    Although such a definition would be more inclusive and address some 
of the confusion with the current ``serious injury'' definition, we 
believe it would also result in additional inequities. This is because 
not all veterans who experienced such exposures or other injuries 
qualify for statutory or regulatory presumptions of service-connection, 
and credible evidence of such exposures or other injuries is not always 
available. As a result, similarly situated veterans with the same 
debilitating disease could be treated differently for purposes of PCAFC 
eligibility based only on whether the veteran qualifies for a 
presumption of service-connection based on an exposure or other injury 
or has evidence reflecting that the disease was caused by an exposure 
or other injury. For example, a veteran's service-connected Parkinson's 
disease could be considered

[[Page 13368]]

to be an ``injury'' for purposes of PCAFC if the veteran's rating 
decision reflects a presumption of exposure to water supply 
contaminants at Camp Lejeune, but a similarly-situated veteran who does 
not qualify for a presumption of exposure could be determined 
ineligible for PCAFC based solely on a clinical decision that the 
disease did not result from a qualifying injury in the line of duty. 
Similarly, a veteran with type 2 diabetes who qualifies for a 
presumption of exposure to herbicides in the Republic of Vietnam could 
be considered to have an ``injury'' for purposes of PCAFC, but another 
Veteran with service-connected type 2 diabetes who served in a 
different location or era of service could be determined ineligible for 
PCAFC because of a lack of evidence linking the veteran's diabetes to 
an exposure or other injury during service. Likewise, a veteran who 
incurred hepatitis C in the line of duty may believe it to have been 
caused by exposure to an infected vaccine needle, but without evidence 
to establish such a connection or other injury, it would be difficult 
for a provider evaluating PCAFC eligibility to classify the disease as 
an ``injury'' under this definition.
    Moreover, other disabilities presumed by VA to be caused by active 
military, naval, or air service, or compensable based on having 
manifested within a certain time period, are not known to have resulted 
from an identifiable exposure or other injury (such as ALS and certain 
disabilities of Persian Gulf Veterans). For some veterans, establishing 
that their illness or disease resulted from an exposure in the line of 
duty would be challenging. With ALS, for example, ``continuing 
uncertainty regarding specific precipitating factors or events that 
lead to development of the disease would present great difficulty for 
individual claimants seeking to establish service connection by direct 
evidence.'' 73 FR 54692 (September 23, 2008). The same would be true of 
veterans trying to characterize their ALS as an injury for purposes of 
PCAFC. Although VA could propose that veterans with these qualifying 
presumptions would be considered to have an injury for purposes of 
PCAFC, we do not believe there is a rational basis for including 
veterans with these presumptive disabilities while excluding veterans 
whose service-connection was based on direct evidence of other 
illnesses or diseases incurred or aggravated in the line of duty.
    We believe the definition of ``injury'' for purposes of PCAFC 
should be as inclusive as possible, but also recognize that including 
additional categories of specific types of external trauma would result 
in continued inequities and seemingly arbitrary distinctions. Defining 
``injury'' to include diseases resulting from presumed exposures to 
environmental hazards, for example, would result in an expansion of 
PCAFC eligibility to veterans of earlier service eras for whom 
presumptions have been established, but similarly situated veterans of 
later service eras would be excluded because there is not yet 
scientific evidence to establish such presumptions. While we believe it 
would be unreasonable for VA to expand PCAFC benefits to veterans who 
served before September 11, 2001 without also recognizing the 
disabilities prevalent among such veterans, it would also be 
unreasonable to consider the same disabilities to be disqualifying for 
purposes of PCAFC for veterans who served after September 11, 2001.
    Even administrative improvements, like developing detailed clinical 
guidelines, centralizing eligibility decisions, and training providers 
who render PCAFC eligibility decisions, would not eliminate these 
inequities, and could place VA providers in the position of rendering 
adjudicative decisions like those made by VBA claims examiners for 
purposes of VA rating determinations. We do not believe Congress 
intended this result. Accordingly, we believe that, to the extent the 
statutory language allows, the statute should be construed in a manner 
that minimizes the potential for complex and time-consuming eligibility 
determinations and disparate treatment of veterans with similar 
service-connected conditions and similar medical needs arising from 
those conditions.
    Caregivers of veterans with illnesses and diseases incurred or 
aggravated in the line of duty, like those mentioned above, could 
benefit from PCAFC assistance in the same manner as caregivers of 
veterans with injuries, such as TBI and spinal cord injury. The most 
equitable and reasonable approach to resolving these challenges would 
be to recognize any service-connected disability as an ``injury'' for 
purposes of PCAFC.
    Therefore, to address the implementation challenges discussed above 
in a more objective, inclusive, and equitable manner, we propose to 
define ``injury'' in 38 U.S.C. 1720G(a)(2)(B) to include any service-
connected disability, regardless of whether it resulted from an injury 
or an illness or disease.
    We note that this definition would apply only for purposes of PCAFC 
and would not affect other VA statutes, specifically, the application 
of ``injury'' and ``traumatic injury'' under 38 U.S.C. 101(24) and 
1980A, respectively. As we have explained above, PCAFC is 
distinguishable from these other statutes, and the context in which 
``injury'' is used in 38 U.S.C. 1720G, supports a different 
interpretation than has been applied for 38 U.S.C. 101(24) and 1980A.
    The fact that 38 U.S.C. 101(24) and 1980A appear to treat 
``injury'' and ``disease'' as mutually exclusive categories for 
purposes of those statutes does not preclude us from construing the 
term ``injury'' in section 1720G(a)(2)(B) to include diseases and 
illnesses for purposes of that provision. Although ``there is a natural 
presumption that identical words used in different parts of the same 
act are intended to have the same meaning . . . the presumption is not 
rigid and readily yields whenever there is such variation in the 
connection in which the words are used as reasonably to warrant the 
conclusion that they were employed in different parts of the act with 
different intent.'' Atlantic Cleaners & Dyers, Inc. v. United States, 
286 U.S. 427, 433 (1932). Congress has not defined the term ``injury'' 
for purposes of title 38 nor has it otherwise indicated an intent that 
the term be given a single meaning for purposes of all provisions 
within title 38. Cf. Allen v. Brown, 7 Vet. App. 439, 447 (1995) (``The 
absence of a single generally applicable definition in 38 U.S.C. 101, 
which would control the interpretation of that term in other parts of 
title 38, suggests that the term `disability' may reasonably be 
interpreted as having different meaning in different parts of title 
38.'').
    In section 1720G(a)(2)(B), Congress specified that the term 
``serious injury'' includes ``traumatic brain injury, psychological 
trauma, or other mental disorder'' for purposes of that section. The 
most natural reading of that language is that all mental disorders--
including those that could be considered diseases, rather than 
injuries, under other provisions in title 38--may be within the scope 
of the term ``serious injury'' for purposes of section 1720G(a)(2)(B). 
We therefore conclude that Congress did not intend to categorically 
exclude from coverage under section 1720G(a)(2)(B) all conditions that 
likely would be considered ``diseases'' for purposes of other 
provisions in title 38. Further, by using the term ``including'' to 
preface the parenthetical reference to TBI, psychological trauma, and 
other mental disorders, Congress indicated that those examples are not 
exhaustive.

[[Page 13369]]

    Although we believe it is clear that the term ``injury'' as used in 
section 1720G(a)(2)(B) is broader in scope than the similar terms as 
used in other parts of title 38, the statutory text does not indicate 
the full intended scope of section 1720G(a)(2)(B). In resolving that 
ambiguity, we note that ``[s]tatutes should be interpreted to avoid 
untenable distinctions and unreasonable results whenever possible.'' 
Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982). VA's proposed 
interpretation would minimize the risk of disparate treatment based on 
difficult and possibly subjective determinations as to the specific 
causes of a veteran's service-connected condition. It would also 
minimize the need for complex adjudicative determinations separate from 
those governing entitlement to VA disability compensation, which could 
delay administration of PCAFC assistance. Considering all service-
connected disabilities to be injuries for purposes of PCAFC would 
reduce subjective clinical judgement and individual determinations with 
respect to whether a service-connected disability constitutes an 
``injury.'' Instead, VA providers evaluating PCAFC eligibility could 
simply rely on VA rating decisions finding a disability in establishing 
whether a veteran has an ``injury'' for purposes of PCAFC, and thereby 
establish a more objective standard to assess eligibility. We note that 
under this proposed definition, VA would no longer be assessing whether 
a veteran's disability is related to an injury, however it would still 
have to be related to the veteran's military service. Under 38 U.S.C. 
1720G(a)(2)(B), determining a veteran's disability to be ``incurred or 
aggravated in the line of duty in the active military, naval, or air 
service,'' requires evidence of a relationship between a veteran's in-
service disease, injury, symptoms, or event and the veteran's current 
disability. In some cases, this relationship is shown by use of a legal 
presumption that the disability is related to a particular type of 
military service, but in other cases, it is established with direct 
evidence. However, in all cases, a veteran's disability must be 
determined to be related to the veteran's military service, even if the 
specific cause (e.g., an injury or disease) is unknown.
    The second revision to this definition would be to distinguish an 
``injury'' from a ``serious injury'' by requiring that the veteran or 
servicemember have a single disability rated at 70 percent or more by 
VA, or a have a combined rating of 70 percent or more. We believe 
requiring at least a 70 percent rating for a singular service-connected 
disability or combined rating of 70 percent for multiple service-
connected disabilities would demonstrate that a veteran's injuries rise 
to the level of serious. VA provides nursing home care, to include at 
VA Community Living Centers, to eligible veterans with a 70 percent or 
greater service-connected disability rating (see 38 U.S.C. 1710A) based 
on their clinical needs, and PCAFC is designed to assist a similar 
population of veterans and servicemembers to remain in their homes. We 
note that the eligibility criteria for PCAFC and nursing home care are 
not identical and that there may be many instances when nursing home 
care would be more appropriate for a veteran or servicemember than 
PCAFC. However, this definition would help ensure that we are targeting 
a similar group of veterans and servicemembers with moderate and severe 
needs. Also, it would remove the current subjectivity in determining 
whether an injury meets the level of serious injury and would provide a 
transparent and clearly defined standard that can be consistently 
applied throughout VA. It would also help ensure better understanding 
of the term ``serious'' by veterans, servicemembers, and caregivers. 
Additionally, we assessed the service-connected rating of eligible 
veterans currently participating in PCAFC and found that the majority 
have a single or combined rating of 70 percent or more. Furthermore, 
alternatives explored, such as requiring the eligible veteran qualify 
for a higher disability rating, would be too restrictive and would 
result in the majority of the current PCAFC participants no longer 
qualifying for the program.
    For servicemembers undergoing medical discharge (as defined in 
current Sec.  71.15) who apply for PCAFC, we would accept their 
proposed VA rating of disability when determining whether the 
servicemember has a serious injury. When servicemembers are referred to 
a Physical Evaluation Board and file a VA Form 21-0819, VA/DOD Joint 
Disability Evaluation Board Claim, they are issued a proposed VA rating 
decision. A final VA rating decision is not issued until VA verifies a 
member's character of service and date of discharge from active duty, 
but this proposed rating generally does not change from the time the 
member received the proposed rating until the official VA rating is 
provided unless a clear and unmistakable error exists in the proposed 
rating decision, and/or VA receives new evidence after issuing the 
proposed rating decision that justifies changing one or more of the 
decisions set forth in it. While proposed ratings may be adjusted, so 
can the disability ratings of a veteran over time. Thus, any changes to 
the rating, regardless of whether the change is for a servicemember 
undergoing medical discharge or a veteran, that results in a rating of 
less than 70 percent for a single service-connected disability or a 
combined rating of less than 70 percent for multiple service-connected 
disabilities would result in the veteran or servicemember no longer 
being eligible for PCAFC.
    Third, we would no longer require a connection between the 
veteran's or servicemember's need for personal care services and a 
specific serious injury; instead, a veteran or servicemember may 
qualify for this program because they have a need for personal care 
services for another reason, so long as the veteran or servicemember 
also has a singular or combined rating of 70 percent or more based on 
one or more service-connected disabilities (and meets other applicable 
criteria). We believe decoupling serious injury and the need for 
personal care services is necessary, as in most cases, the eligible 
veteran has multiple conditions that may warrant a need for personal 
care services, and it may not necessarily be because of the disability 
that he or she incurred or aggravated during their military service. We 
note that veterans often have complex needs as a result of several 
conditions and find this even more true among the older veteran 
population. Their needs can be so complex that it can be difficult to 
parse out and determine what specific condition out of many causes the 
need for personal care services. For example, an individual may have 
leg pain due to a service-connected spinal cord injury but be able to 
manage his or her symptoms. After a number of years, the individual is 
diagnosed with diabetes unrelated to his or her military service. Over 
time, the individual develops neuropathy in his or her lower 
extremities, which results in the individual being unable to complete 
his or her ADLs independently. The onset of neuropathy could be related 
to either the spinal cord injury or diabetes. This example illustrates 
the difficulty of these clinical decisions because the determination of 
whether the onset of neuropathy is related to the qualifying serious 
injury or the illness unrelated to military service would be a 
subjective clinical determination. Currently there is inconsistency in 
how the term

[[Page 13370]]

``serious injury'' is interpreted due to the complexity of assessing 
the specific medical condition and whether it renders the veteran or 
servicemember in need of personal care services. As a result, we 
believe it is necessary to decouple serious injury from the need for 
personal care services.
    Finally, we propose to simplify the ``serious injury'' definition 
by replacing the phrase ``incurred or aggravated in the line of duty in 
the active military, naval, or air service'' with ``service-
connected.'' As previously explained, the current definition for 
serious injury is based on the language in 38 U.S.C. 1720G(a). However, 
38 U.S.C. 101(16) defines ``service-connected'' as a disability 
incurred or aggravated, or a death that resulted from a disability 
incurred or aggravated, in line of duty in the active military, naval 
or air service. Because the phrase ``incurred or aggravated in the line 
of duty in the active military, naval, or air service'' in 38 U.S.C. 
1720G(a)(2)(B) is generally synonymous with the term ``service-
connected'' in 38 U.S.C. 101(16), we would simplify the ``serious 
injury'' definition accordingly. Thus, we propose to use ``service-
connected'' in the proposed revised definition for serious injury. We 
note that proposed Sec.  71.20(a)(2) would continue to use the phrase 
``incurred or aggravated in the line of duty in the active military, 
naval, or air service'' in reference to the veteran's or 
servicemember's serious injury for purposes of establishing eligibility 
under the dates specified in proposed Sec.  71.20(a)(2)(i) through 
(iii) and 38 U.S.C. 1720G(a)(2)(B)(i) through (iii).
    We believe these proposed changes to the definition of ``serious 
injury'' would establish faster, more consistent PCAFC eligibility 
determinations by VA providers, and help ensure more equitable 
implementation of PCAFC for veterans who served both before and after 
September 11, 2001. Defining serious injury in this manner would create 
more uniformity in eligibility determinations across VA through more 
objective criteria. By recognizing the disabilities prevalent among 
veterans who served before September 11, 2001 through inclusion of 
illnesses and diseases, we would support Congress's goal of remedying 
the ``inequity that currently exists between pre- and post-9/11 
veterans and their caregivers'' and ``recognize the service and 
sacrifice of veteran caregivers of all ages and eras.'' H.R. Rep. No. 
115-671, at 17 (2018) (accompanying H.R. 5674, which contained language 
identical to that enacted in sections 161-163 of the VA MISSION Act of 
2018). Similarly, decoupling serious injury and the need for personal 
care services would also recognize the complex challenges faced by 
veterans whom we believe PCAFC was intended to support, and eliminate 
difficult clinical assignment of personal care service needs to 
specific conditions. Moreover, adopting a 70 percent or more service-
connected disability rating requirement would provide an objective 
clinical standard to establish the appropriate degree of severity of a 
veteran's or servicemember's disability for purposes of PCAFC. Our 
proposed definition of ``serious injury'' would support transparency in 
PCAFC eligibility decisions and improve understanding by veterans, 
servicemembers, and their caregivers. However, we note that ``serious 
injury'' is only one criterion a veteran or servicemember would have to 
meet in proposed Sec.  71.20 to be eligible for PCAFC.
    We believe this approach comports with the statutory language and 
context and provides the most fair and effective means of implementing 
the statutory language by minimizing the potential for complex and 
time-consuming eligibility determinations and disparate treatment of 
veterans with similar service-connected conditions and similar medical 
needs arising from those conditions. We note that some veterans with 
service-connected disabilities resulting from illnesses and diseases 
have already been determined eligible for PCAFC even absent this 
definition as a result of providers' subjective clinical decisions and 
the statute's inclusion of certain illnesses and diseases under the 
terms ``psychological trauma'' and ``other mental disorder.''
    We would add a new definition for the phrase ``unable to self-
sustain in the community,'' which would be applied for purposes of 
determining the monthly stipend level under proposed Sec.  
71.40(c)(4)(i)(A), discussed further below. As further explained in 
this rulemaking, we propose to establish two levels for the monthly 
stipend payments versus the three tiers currently listed in Sec.  
71.40(c)(4)(iv)(A) through (C), and unable to self-sustain in the 
community would be used as the sole criterion to establish eligibility 
for the higher-level. The term ``unable to self-sustain in the 
community'' would mean that an eligible veteran (1) requires personal 
care services each time he or she completes three or more of the seven 
activities of daily living (ADL) listed in the definition of an 
inability to perform an activity of daily living in this section, and 
is fully dependent on a caregiver to complete such ADLs; or (2) has a 
need for supervision, protection, or instruction on a continuous basis. 
The basis for selecting this proposed definition is addressed in the 
discussion of proposed Sec.  71.40(c)(4) below.

Sec.  71.20 Eligible Veterans and Servicemembers

    Current 38 CFR 71.20 sets forth the criteria for veterans and 
servicemembers to be determined eligible for a Primary or Secondary 
Family Caregiver under part 71. In this section, we propose to revise 
the current eligibility criteria, but also ensure that legacy 
participants and legacy applicants, as those terms would be defined in 
proposed Sec.  71.15, would remain eligible for PCAFC for a one-year 
transitional period beginning on the effective date of this rule 
(subject to the limitations discussed in this proposed rule) while VA 
completes a reassessment to determine their eligibility under our new 
proposed eligibility requirements. As a result, we propose to 
restructure Sec.  71.20 to also accommodate legacy participants and 
legacy applicants. Proposed paragraphs (a)(1) through (7) would set 
forth proposed eligibility criteria adapted from current paragraphs (a) 
through (g); proposed paragraph (b) would address eligibility of legacy 
participants; and proposed paragraph (c) would address eligibility of 
legacy applicants. We would add a new introductory paragraph to 
establish that a veteran or servicemember would be eligible for a 
Family Caregiver under part 71 if he or she meets the criteria in 
paragraph (a), (b), or (c) of Sec.  71.20, subject to the limitations 
set forth in such paragraphs.
    In proposed Sec.  71.20(a), we would set forth our proposed 
eligibility criteria for PCAFC, which would be adapted from current 
Sec.  71.20(a) through (g). These criteria would be applied to 
determine eligibility pursuant to any joint application received by VA 
on or after the effective date of the rule, as discussed further below 
with regard to proposed Sec.  71.25(a)(3). One year after the effective 
date of the rule, these criteria would apply to all veterans and 
servicemembers participating in PCAFC. We would redesignate the current 
introductory paragraph in Sec.  71.20 as paragraph (a), which would 
provide that a veteran or servicemember is eligible for a Primary or 
Secondary Family Caregiver under part 71 if he or she meets all of the 
requirements in paragraphs (a)(1) through (7). We would make no changes 
to the language that appears in the current introductory paragraph. 
Proposed paragraph (a)(1), and new proposed paragraphs (a)(1)(i) and 
(ii) would state that the individual must be either a veteran, or a 
member of the Armed Forces undergoing a

[[Page 13371]]

medical discharge from the Armed Forces. This is the same language in 
current paragraphs (a) introductory text and (a)(1) and (2).
    Current paragraph (b) of Sec.  71.20 sets forth the requirement 
that the individual must have a serious 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. As explained previously in this 
rulemaking, section 161 of the VA MISSION Act of 2018 amended 38 U.S.C. 
1720G by expanding eligibility for PCAFC to Family Caregivers of 
eligible veterans who incurred or aggravated a serious injury in the 
line of duty before September 11, 2001 in a phased approach.
    We propose to redesignate current paragraph (b) as (a)(2), revise 
proposed paragraph (a)(2), and add paragraphs (a)(2)(i) through (iii) 
to address the phased expansion required by the VA MISSION Act of 2018. 
Current paragraph (b) states that the individual has a serious 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. In proposed paragraph (a)(2), we would 
continue to state that the individual has a serious injury incurred or 
aggravated in the line of duty in the active military, naval, or air 
service. However, we would remove the phrase ``including traumatic 
brain injury, psychological trauma, or other mental disorder'' that 
appears in current Sec.  71.20(b) because such conditions would be 
captured by our proposed definition of ``serious injury.''
    As previously explained, we are proposing to revise the definition 
of ``serious injury'' in Sec.  71.15 to mean any service-connected 
disability that (1) is rated at 70 percent or more by VA, or (2) is 
combined with any other service-connected disability or disabilities, 
and a combined rating of 70 percent or more is assigned by VA. This 
proposed definition of serious injury would include service-connected 
disabilities regardless of whether they are injuries, illnesses, or 
diseases, and thus would encompass traumatic brain injury, 
psychological trauma, or other mental disorder. Although the phrase 
``incurred or aggravated in the line of duty in the active military, 
naval, or air service'' would also be encompassed by our revised 
definition of ``serious injury'' through the term ``service-
connected,'' as previously explained, it would be needed for purposes 
of determining eligibility based on the dates specified in proposed 
paragraphs (a)(2)(i) through (iii).
    We would move the language in current paragraph (b) that requires 
this serious injury have been incurred or aggravated in the line of 
duty in the active military, naval, or air service ``on or after 
September 11, 2001'' to proposed new paragraph (a)(2)(i). In proposed 
new paragraph (a)(2)(ii), we would add language to reflect that a 
veteran or servicemember would be eligible for this program if his or 
her serious injury was incurred or aggravated in the line of duty in 
the active military, naval, or air service ``on or before May 7, 
1975.'' We would include language to state that the expansion of the 
program under proposed paragraph (a)(2)(ii) would become effective on 
the date specified in a future Federal Register document since this 
expansion is contingent upon the Secretary submitting the required 
certification to Congress, as discussed previously.
    Similarly, in proposed new paragraph (a)(2)(iii), we would add 
language to reflect that a veteran or servicemember would be eligible 
for this program if his or her serious injury was incurred or 
aggravated in the line of duty in the active military, naval, or air 
service after May 7, 1975 and before September 11, 2001. Proposed 
paragraph (a)(2)(iii) would cover the final expansion of the program to 
eligible veterans of all eras, as required by the VA MISSION Act of 
2018. We would include language to state that the expansion of the 
program under proposed paragraph (a)(2)(iii) would be effective two 
years after the date of the future Federal Register document specified 
in paragraph (a)(2)(ii) since this expansion is triggered two years 
after we submit the required certification to Congress, as discussed 
previously. We note that pursuant to proposed Sec.  71.25(a)(3)(ii)(A) 
and (B), discussed further below, VA would deny any joint application 
received by VA from a veteran or servicemember before such veteran or 
servicemember becomes eligible under paragraphs (a)(2)(ii) or (iii).
    Current paragraph (c) of Sec.  71.20 requires that the veteran or 
servicemember have a serious injury that renders the individual in need 
of personal care services for a minimum of six continuous months. This 
is based on a clinical determination authorized by the individual's 
primary care team, and is based on whether the veteran or servicemember 
meets one of four specifically listed criteria.
    As part of this rulemaking, we propose to revise current paragraph 
(c) by redesignating it as paragraph (a)(3) and removing the language 
that requires the individual's serious injury to render the individual 
in need of personal care services. We would specifically remove the 
language that ``couples'' the serious injury with the need for personal 
care services, as we previously explained in detail in the discussion 
on the proposed definition of ``serious injury'' in proposed Sec.  
71.15. Our proposed definition of ``in need of personal care services'' 
would apply for purposes of determining eligibility under proposed 
paragraph (a)(3).
    As discussed above regarding our proposed definition of ``primary 
care team'' in proposed Sec.  71.15, we would also remove the current 
language that states the individual's primary care team authorizes the 
clinical determination that the individual has a serious injury that 
renders the individual in need of personal care services for a minimum 
of six continuous months. Collaboration with the primary care team 
would instead be referenced in proposed Sec.  71.25(a)(2)(i). 
Furthermore, the use of the term ``clinical'' is redundant since all 
decisions affecting the furnishing of assistance or support under 38 
U.S.C. 1720G are considered medical determinations. See 38 U.S.C. 
1720G(c)(1). As revised, Sec.  71.20(a)(3) would state that ``[t]he 
individual is in need of personal care services for a minimum of six 
continuous months based on any one of the [criteria listed in proposed 
Sec.  71.20(a)(3)(i) and (ii)].''
    Current 38 CFR 71.20(c)(1) through (4) provides that the veteran or 
servicemember must have: (1) An inability to perform an activity of 
daily living; (2) a need for supervision or protection based on 
symptoms or residuals of neurological or other impairment or injury, 
including traumatic brain injury; (3) psychological trauma or a mental 
disorder that has been scored with Global Assessment of Functioning 
test scores of 30 or less; or (4) a service connected disability rated 
at 100 percent for a serious injury incurred or aggravated in the line 
of duty on or after September 11, 2001, and the veteran or 
servicemember has been awarded special monthly compensation that 
includes an aid and attendance allowance. The former two bases upon 
which the individual can be deemed in need of personal care services 
(i.e., an inability to perform an activity of daily living; and a need 
for supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury, including traumatic brain 
injury), contained in current Sec.  71.20(c)(1) and (2), restate the 
bases in 38 U.S.C. 1720G(a)(2)(C)(i) and

[[Page 13372]]

(ii). The latter two criteria (i.e., the use of Global Assessment 
Functioning (GAF) scores, and the 100 percent service connected 
disability rating that includes an aid and attendance allowance award), 
contained in 38 CFR 71.20(c)(3) and (4), are alternative bases 
authorized pursuant to 38 U.S.C. 1720G(a)(2)(C)(iv) and were 
established by VA when these regulations were first promulgated in 
2011. See 76 FR 26150 (May 5, 2011).
    In proposed Sec.  71.20, we would redesignate current paragraph 
(c)(1) as new paragraph (a)(3)(i). We would revise current paragraph 
(c)(2) and redesignate it as new paragraph (a)(3)(ii). Paragraphs 
(a)(3)(i) and (ii) would provide the bases upon which an individual can 
be deemed in need of personal care services for a minimum of six 
continuous months. The language in current paragraph (c)(1), which 
refers to ``[a]n inability to perform an activity of daily living,'' 
would remain the same and would simply be moved to new paragraph 
(a)(3)(i). The revised definition of inability to perform an ADL in 
proposed Sec.  71.15 would apply to this paragraph.
    In proposed paragraph (a)(3)(ii), we would provide the second basis 
upon which an individual could be deemed in need of personal care 
services for a minimum of six continuous months--based on a need for 
supervision, protection, or instruction. As previously explained 
regarding Sec.  71.15, we are proposing to remove the current 
definition of ``need for supervision or protection based on symptoms or 
residuals of neurological or other impairment or injury'' and add a new 
definition for ``need for supervision, protection, or instruction.'' 
This new definition would broaden the eligibility criteria in current 
paragraph (c)(2) and would combine two of the statutory bases upon 
which a veteran or servicemember can be deemed in need of personal care 
services--``a need for supervision or protection based on symptoms or 
residuals of neurological or other impairment or injury,'' and ``a need 
for regular or extensive instruction or supervision without which the 
ability of the veteran to function in daily life would be seriously 
impaired.'' See 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii), as amended by 
Public Law 115-182, section 161(a)(2). We would add this new criterion 
to newly designated paragraph Sec.  71.20(a)(3)(ii). Additionally, we 
would remove the phrase ``including traumatic brain injury'' that 
appears in current (c)(2). An individual with a traumatic brain injury 
could be deemed in need of personal care services based on a need for 
supervision, protection, or instruction in proposed Sec.  
71.20(a)(3)(ii), but we would not specifically list traumatic brain 
injury or any other specific conditions or diagnoses in that paragraph.
    In this rulemaking, we also propose to remove current Sec.  
71.20(c)(3), which currently states that an individual can be deemed in 
need of personal care services based on psychological trauma or a 
mental disorder that has been scored with GAF test scores of 30 or 
less, continuously during the 90-day period immediately preceding the 
date on which VA initially received the caregiver application. At the 
time these regulations were first promulgated, the GAF assessment was a 
well-established mental health examination. See 76 FR 26150 (May 5, 
2011). However, we now propose to remove this basis because the GAF 
scoring system was removed from the latest edition of the American 
Psychiatric Association's Diagnostic and Statistical Manual of Mental 
Disorders, Fifth Edition (DSM-5), with which a mental disorder 
diagnosis must conform for VA rating purposes, 38 CFR 4.125(a), and is 
no longer widely used. Additionally, we note that no veterans and 
servicemembers have been deemed eligible for PCAFC based solely on 
their GAF score, as these individuals have also qualified under another 
basis in current paragraph (c). We believe that any veteran or 
servicemember who would qualify for PCAFC on this basis would be 
eligible for PCAFC under the other criteria in proposed Sec.  
71.20(a)(3)(i) and (ii). Thus, removing the criterion in current 
paragraph (c)(3) would likely have no impact on current and future 
participants.
    Additionally, we also propose to remove current Sec.  71.20(c)(4) 
which sets forth the basis that the veteran is service-connected for a 
serious injury incurred or aggravated in the line of duty on or after 
September 11, 2001, has been rated 100 percent disabled for that 
injury, and has been awarded special monthly compensation that includes 
an aid and attendance allowance. We believe that any veteran or 
servicemember who would qualify for PCAFC on this basis, even if it 
were expanded to reference eligible veterans who incurred or aggravated 
a serious injury in the line of duty before September 11, 2001, would 
be eligible for PCAFC under the other criteria in proposed Sec.  
71.20(a)(3)(i) and (ii). Thus, we believe it is reasonable to remove 
this basis in current Sec.  71.20(c)(4).
    We also propose to redesignate current Sec.  71.20(d) as paragraph 
(a)(4) and revise the language. Current Sec.  71.20(d) provides that a 
clinical determination (authorized by the individual's primary care 
team) has been made that it is in the best interest of the individual 
to participate in the program. Newly designated paragraph (a)(4), would 
state that it is in the best interest of the individual to participate 
in the program. The revised definition of ``in the best interest'' in 
proposed Sec.  71.15 would apply to this paragraph. As discussed above 
regarding our proposed definition of ``primary care team'' in Sec.  
71.15, we would remove the current language that refers to a clinical 
determination being authorized by the individual's primary care team. 
Collaboration with the primary care team would instead be referenced in 
proposed Sec.  71.25(a)(2)(i). Furthermore, the use of the term 
``clinical'' is redundant since all decisions affecting the furnishing 
of assistance or support under 38 U.S.C. 1720G are considered medical 
determinations. See 38 U.S.C. 1720G(c)(1). Because current paragraph 
(d) would be revised and redesignated as paragraph (a)(4), we would 
remove paragraph (d) from Sec.  71.20.
    We propose to redesignate current paragraphs (e) through (g) as 
paragraphs (a)(5) through (7), respectively. The language in current 
paragraph (e) would remain the same and would simply be moved to new 
paragraph (a)(5). In paragraphs (a)(6) and (7) we would remove the 
phrase ``agrees to,'' replace ``receive'' with ``receives,'' replace 
``after'' with ``or will do so if,'' and keep the remaining language 
the same. Current paragraphs (a)(6) and (7) state that after VA 
designates a Family Caregiver, the individual agrees to receive care at 
home and to receive ongoing care from a primary care team, 
respectively. We believe receiving care at home and receiving ongoing 
care from a primary care team (as such term would be defined in revised 
Sec.  71.15) should be continuous requirements and not just an 
agreement made by the veteran or servicemember at some point prior to 
the Family Caregiver's approval and designation. Therefore, in proposed 
paragraphs (a)(6) and (7) we would remove the phrase ``agrees to,'' and 
replace ``receive'' with ``receives.'' We also intend for these 
requirements to apply throughout the Family Caregiver's approval and 
designation and therefore propose to replace ``after'' with ``or will 
do so if'' in proposed paragraphs (a)(6) and (7), so that these 
paragraphs are not interpreted to apply to any one point following VA's 
designation of the Family Caregiver. The phrase ``or will do so if'' is 
used in current Sec.  71.25(b)(2)(ii) with respect to a caregiver 
applicant who is not a family member but lives with the eligible

[[Page 13373]]

veteran full-time ``or will do so if designated as Family Caregiver.'' 
Including this language would recognize that the veteran or 
servicemember may not be receiving care at home or receiving ongoing 
care from a primary care team at the time of his or her application for 
PCAFC, but would fulfill those requirements if his or her Family 
Caregiver is approved and designated by VA. As explained in VA's 
interim final rule and final rule implementing PCAFC, these 
requirements are needed to enable VA to perform statutorily required 
monitoring and documentation functions. See 76 FR 26151 (May 5, 2011) 
and 80 FR 1363-64 (January 9, 2015) (citing 38 U.S.C. 1720G(a)(9)). The 
remaining language in paragraphs (a)(6) and (7) would remain unchanged.
    As a result of changes, we propose to make to the eligibility 
criteria, we would add a new paragraphs (b) and (c), which would 
establish that legacy participants and legacy applicants, respectively, 
would remain eligible for PCAFC for a one-year transitional period 
(subject to the limitations discussed in this proposed rule). Proposed 
paragraph (b) would state that for one year beginning on the effective 
date of the rule, a veteran or servicemember is eligible for a Primary 
or Secondary Family Caregiver under this part if he or she is a legacy 
participant. We believe that a one-year transition period is reasonable 
because it would allow individuals who are participating in PCAFC as of 
the day before the effective date of the rule to remain in the program 
for a transitional period while VA completes a reassessment to 
determine their eligibility under revised Sec.  71.20(a).
    Similarly, proposed paragraph (c) would state that for one year 
beginning on the effective date of the rule, a veteran or servicemember 
is eligible for a Primary or Secondary Family Caregiver under this part 
if he or she is a legacy applicant. We note that eligibility under 
paragraphs (b) or (c) would not exempt the Family Caregiver of a legacy 
participant or legacy applicant from being revoked or discharged 
pursuant to proposed Sec.  71.45 for reasons other than not meeting the 
eligibility criteria in proposed Sec.  71.20(a) in the one-year period 
beginning on the effective date of the rule. For example, the Family 
Caregiver could be revoked for cause, non-compliance, or VA error, or 
discharged due to death or institutionalization of the eligible veteran 
or Family Caregiver, as discussed in the context of proposed Sec.  
71.45 below. Therefore, in order to be considered a ``legacy 
participant,'' and remain eligible under Sec.  71.20(b), we would 
require the Primary Family Caregiver approved and designated for the 
veteran or servicemember as of the day before the effective date of the 
rule (as applicable) would have to continue to be approved and 
designated as such. Likewise, in order to be considered a ``legacy 
applicant,'' and remain eligible under Sec.  71.20(c), we would require 
that the Primary Family Caregiver approved and designated for the 
veteran or servicemember pursuant to a joint application received by VA 
prior to the effective date of the rule (as applicable), continues to 
be approved and designated as such. Although it is unlikely, we would 
include ``as applicable'' in parentheses to account for any legacy 
participant or legacy applicant who has only a Secondary Family 
Caregiver(s). A veteran or servicemember not meeting these requirements 
generally would no longer be participating in PCAFC, or would have the 
same or a new Primary Family Caregiver approved and designated pursuant 
to a joint application received by VA on or after the effective date of 
the rule, as discussed further below.
    At the end of the one-year period following the effective date of 
the rule, legacy participants and legacy applicants who do not meet the 
new Sec.  71.20(a) eligibility criteria would be discharged from PCAFC 
in accordance with proposed Sec.  71.45, as such section would be 
revised by this rulemaking. However, VA would continue to support such 
individuals through alternative supports and services as desired and 
applicable. PCAFC is just one program through which VA supports 
veterans and their caregivers. Through the PGCSS, caregivers have 
access to training and education, self-care courses, peer support, and 
a Caregiver Support Line. Additional resources to support eligible 
veterans include respite care, home health aides, home based primary 
care, or home telehealth to name a few. Upon determining that a legacy 
participant or legacy applicant and his or her Family Caregiver(s) 
would not meet criteria for ongoing participation in PCAFC after the 
one-year transitional period, the local Caregiver Support Coordinator 
or designated social worker would begin working with the veteran or 
servicemember and his or her Family Caregiver on discharge.

Sec.  71.25 Approval and Designation of Primary and Secondary Family 
Caregivers

    Section 71.25 currently describes the application and designation 
process for Family Caregivers. We propose to amend this section by 
revising certain terminology, revising and restructuring paragraph (a), 
and revising paragraphs (c), (e), and (f). These proposed changes are 
discussed in detail further below.
    Current Sec.  71.25(a) describes the process and requirements to 
apply for designation as a Primary or Secondary Family Caregiver. We 
propose to revise Sec.  71.25(a)(1) by replacing the phrase ``complete 
and sign a joint application'' with ``submit a joint application.'' As 
previously explained, we are proposing a new definition for joint 
application. This definition would describe the requirements for a 
joint application to be considered complete by VA to include signatures 
of all applicants. Thus, the phrase ``complete and sign'' would be 
redundant since it would be encompassed in the proposed definition for 
joint application. We would also add language to the end of the 
paragraph to clarify that no more than two individuals may serve as a 
Secondary Family Caregiver at one time for an eligible veteran. PCAFC 
has generally been implemented by allowing the application and 
designation of one Primary Family Caregiver and up to two Secondary 
Family Caregivers for each eligible veteran, and this language would 
align with current practice. For example, the current VA Form 10-10CG 
has fields for only two Secondary Family Caregivers and we are not 
aware of any instances in which a veteran or servicemember has sought 
to apply with three Secondary Family Caregivers. The remaining text in 
this paragraph would remain unchanged.
    We propose to redesignate current paragraph (a)(2) as paragraph 
(a)(2)(i) and revise the language. Current paragraph (a)(2) states that 
``[u]pon receiving such application, VA will perform the clinical 
evaluations required by this section; determine whether the application 
should be granted; and, if so, whether each applicant should be 
designated as identified in the application.'' In newly designated 
paragraph (a)(2)(i), we would add ``(in collaboration with the primary 
care team to the maximum extent practicable)'' in between ``VA'' and 
``will perform.'' As previously discussed regarding our proposed 
definition of ``primary care team'' in Sec.  71.15, this would ensure 
collaboration with the VA medical professionals involved in the 
patient's care during VA's evaluation of the joint application. For 
example, a clinical eligibility team or other provider(s) responsible 
for evaluating joint applications for PCAFC eligibility would seek 
input from the primary care team to inform their evaluation of joint 
applications received.

[[Page 13374]]

    Additionally, we would remove the term ``clinical'' as this is 
redundant since all decisions affecting the furnishing of assistance or 
support under 38 U.S.C. 1720G are considered medical determinations. 38 
U.S.C. 1720G(c)(1). We would also reword the remaining language for 
clarity and to more precisely describe VA's evaluation of the joint 
application by indicating that VA would ``perform the evaluations 
required to determine the eligibility of the applicants under [part 
71].'' We would also add that if the applicants are determined to be 
eligible, VA would determine ``the applicable monthly stipend amount 
under Sec.  71.40(c)(4).'' Monthly stipend payments are based on the 
amount and degree of personal care services provided to the eligible 
veteran, and the initial eligibility evaluation provides an opportunity 
for the applicants to provide information to VA about the health status 
and care needs of the veteran or servicemember. VA values input from 
caregivers, as well as veterans and servicemembers, and this 
information would be utilized by VA to determine the appropriate 
stipend level for the Primary Family Caregiver. We note that the VA 
MISSION Act of 2018 requires VA to consider, among other things, the 
Family Caregiver's assessment of the needs and limitations of certain 
eligible veterans in determining their Primary Family Caregivers' 
stipend amount. See 38 U.S.C. 1720G(a)(3)(C)(iii)(I), as amended by 
Public Law 115-182, section 161(a)(4). Specifically, the input received 
from the Family Caregiver applicant would be taken into account when 
determining whether a veteran or servicemember is unable to self-
sustain in the community (as such term would be defined in proposed 
Sec.  71.15).
    Furthermore, we would also include language that VA will not 
evaluate a veteran's or servicemember's eligibility under Sec.  71.20 
when a joint application is received to add a Secondary Family 
Caregiver for an eligible veteran who has a designated Primary Family 
Caregiver. This is because an eligible veteran with a designated 
Primary Family Caregiver has already been deemed eligible under Sec.  
71.20 and we do not believe it is necessary to reevaluate an eligible 
veteran each time he or she submits a joint application to add a new or 
replace a former Secondary Family Caregiver because Secondary Family 
Caregivers generally serve as backup support to the Primary Family 
Caregiver. Also, as further discussed in proposed Sec.  71.30, eligible 
veterans would be reassessed for eligibility on an annual basis, unless 
a determination is made and documented by VA that a more or less 
frequent reassessment is appropriate. Therefore, upon receiving a joint 
application to add a new or replace a former Secondary Family Caregiver 
only, VA would only evaluate the eligibility of the Secondary Family 
Caregiver applicant. However, for any joint application received by VA 
requesting the approval and designation of a Primary Family Caregiver, 
VA would consider the eligibility of the veteran or servicemember, as 
well as the Primary Family Caregiver applicant and any Secondary Family 
Caregiver applicants (and if eligible, the applicable monthly stipend 
amount), pursuant to the requirements of part 71. These requirements 
would apply to all joint applications received by VA on or after the 
effective date of the rule, including joint applications submitted by 
legacy participants and legacy applicants.
    We would redesignate current paragraph (a)(3) as paragraph 
(a)(2)(ii) and revise the language. The revised requirements would be 
based on current Sec.  71.40(d)(1), which would be revised to address 
only the effective date of PCAFC benefits, as discussed later in this 
rulemaking. Current paragraph (a)(3) permits an application to be put 
on hold for no more than 90 days, from the date the application was 
received, for a veteran or servicemember seeking to qualify through a 
GAF test score of 30 or less but who does not have a continuous GAF 
score available. Because we are proposing to eliminate use of the GAF 
score as a basis for eligibility under current Sec.  71.20(c)(3), as 
explained in the preceding discussion, we would also remove language in 
this paragraph referencing GAF test scores.
    Also, we would remove language in this paragraph referencing that 
an application may be put on hold for no more than 90 days. Instead of 
placing applications on hold, we would extend the 45-day designation 
timeline in current Sec.  71.40(d)(1) to 90 days.
    Proposed paragraph (a)(2)(ii) would state that ``[i]ndividuals who 
apply to be Family Caregivers must complete all necessary eligibility 
evaluations (along with the veteran or servicemember), education and 
training, and the initial home-care assessment (along with the veteran 
or servicemember) so that VA may complete the designation process no 
later than 90 days after the date the joint application was received by 
VA .'' Further we would state that ``[i]f such requirements are not 
complete within 90 days from the date the joint application is received 
by VA, the joint application will be denied, and a new joint 
application will be required.'' This language is adapted from current 
Sec.  71.40(d)(1), which requires individuals who apply to be Family 
Caregivers to ``complete all necessary education, instruction, and 
training so that VA can complete the designation process no later than 
45 days after the date that the joint application was submitted or . . 
. a new joint application will be required to serve as the date of 
application for payment purposes.'' We would move this requirement to 
Sec.  71.25(a) because it pertains to application requirements. We 
would specify that in addition to education, instruction, and training 
(which we would refer to as ``education and training'' for consistency 
with Sec.  71.25(d)), eligibility evaluations and the initial home-care 
assessment would also have to be completed within 90 days from the date 
joint application is received by VA because those requirements are 
necessary prerequisites to VA's approval and designation of a Family 
Caregiver. We would also apply this timeline to veteran and 
servicemember applicants, as they must also participate in eligibility 
evaluations and the initial home-care assessment before VA can approve 
and designate their Family Caregivers.
    The 45-day timeline in current Sec.  71.40(d)(1) is in many cases 
too brief to allow applicants to complete the requirements for approval 
and designation of a Family Caregiver because eligibility 
determinations are complex and require detailed assessments. We believe 
the accuracy of determinations takes precedence over speed of such 
determinations. Also, we note that in a recent VA Office of Inspector 
General (OIG) report, OIG identified that of 1,822 veterans approved to 
participate in PCAFC, 65 percent did not have their applications 
processed timely and within the 45-day timeframe in current Sec.  
71.40(d)(1). VA OIG Report, Program of Comprehensive Assistance for 
Family Caregivers: Management Improvements Needed, Report No. 17-04003-
222, dated August 16, 2018, p. 8. Due to the complex nature of 
eligibility determinations, as well as new criteria and an expanded 
population of potentially-eligible veterans under the VA MISSION Act of 
2018, we propose to remove the current 45-day timeline in current Sec.  
71.40(d)(1). We would change this to a 90-day timeline and allow VA to 
extend the timeline beyond 90 days if the requisite steps are not 
completed as a result of a delay that is solely due to VA's action. We 
would state that ``VA may extend the 90-day period based on VA's 
inability to complete the eligibility

[[Page 13375]]

evaluations, provide necessary education and training, or conduct the 
initial home-care assessment, when such inability is solely due to VA's 
action.'' We believe 90 days is a reasonable amount of time for VA to 
make accurate and comprehensive determinations, without unduly delaying 
the provision of benefits to those ultimately approved for the program. 
However, we would not penalize an applicant if he or she cannot meet 
the 90-day timeline as a result of VA's delay in completing eligibility 
evaluations, providing necessary education and training, or conducting 
the initial home-care assessment.
    We note that access to care for eligible veterans would not be 
delayed by these proposed changes because clinical interventions and 
contacts with providers and various clinical teams occur throughout the 
application and evaluation process. For example, during evaluation of 
the joint application, VA may make referrals for applicants (including 
those ineligible for PCAFC) for additional support and services that 
are not specific to PCAFC. Additionally, these changes generally would 
not reduce any stipend benefit the Primary Family Caregiver would 
receive, as stipends and certain other benefits for approved and 
designated Family Caregivers would continue to be retroactive to the 
date the application was received or the date on which the eligible 
veteran begins receiving care at home (or other applicable date 
specified in proposed Sec.  71.40(d), as discussed further below). 
While proposed Sec.  71.25(a)(2)(ii) would not impose any specific 
timeline on VA to complete its evaluation of joint applications, we 
would continue to monitor application processing times, establish 
indicators to identify timelines that are not in accordance with any 
established norms, and conduct outreach as necessary to prevent undue 
application processing delays.
    We would exclude from proposed Sec.  71.25(a)(2)(ii) the language 
in current Sec.  71.40(d)(1) that authorizes VA to ``extend the 45-day 
period for up to 90 days after the date the joint application was 
submitted . . . based on training identified under Sec.  71.25(d) that 
is still pending completion, or hospitalization of the eligible 
veteran.'' As previously explained, we would extend the designation 
period from 45 days after the joint application was submitted to 90 
days after the date the joint application was received by VA. 
Therefore, we believe that the current language in Sec.  71.40(d)(1) 
that allows for an extension from 45 days to 90 days would no longer be 
necessary since applicants would have 90 days from the date the joint 
application is received by VA to complete all requirements so that VA 
may complete the designation process. As stated previously, this 90-day 
timeline would also apply to veteran and servicemember applicants as 
they must also participate in eligibility evaluations and the initial 
home-care assessment. Therefore, if a veteran or servicemember is 
hospitalized following the submission of his or her joint application 
for PCAFC, but before a Family Caregiver is approved and designated, 
and this hospitalization prevents VA from completing the approval and 
designation process within 90 days from the date the joint application 
is received, then the joint application would be denied and a new joint 
application would be required.
    We would also exclude from proposed Sec.  71.25(a)(2)(ii) the 
language in current Sec.  71.40(d)(1) that addresses how application 
timelines are impacted when an application has been placed on hold for 
a GAF assessment. Because we propose to remove reference to GAF test 
scores in proposed Sec.  71.20 with respect to PCAFC eligibility, we 
would also remove the language in current Sec.  71.40(d)(1) that refers 
to the GAF assessment.
    As previously explained, we would redesignate current paragraph 
(a)(3) as paragraph (a)(2)(ii). We would then add a new paragraph 
(a)(3) to address how applications will be reviewed once received by VA 
in proposed new paragraphs (a)(3)(i) and (ii). The application process 
for PCAFC requires evaluation, training, and assessment that do not 
occur instantaneously. Thus, we anticipate there will be joint 
applications received by VA prior to the effective date of the rule for 
which eligibility determinations are still pending on the effective 
date of the rule. We propose to review these joint applications against 
the eligibility criteria that existed before the effective date of the 
rule. Since we are proposing to change the eligibility criteria, 
including definitions, that would affect VA's review of joint 
applications received, we believe it is reasonable for VA to continue 
to evaluate joint applications received prior to the effective date of 
the rule under the criteria in Sec. Sec.  71.15, 71.20, and 71.25 as 
they appeared in part 71, and that were in effect, at the time the 
joint application was received by VA. We believe that changing the 
eligibility criteria during the adjudication of a joint application 
would place an undue hardship on applicants who relied on the 
eligibility criteria in effect at the time of submitting the joint 
application to VA. Thus, proposed paragraph (a)(3)(i) would state that, 
except as otherwise provided, joint applications received by VA before 
the effective date of the rule will be evaluated by VA based on 38 CFR 
71.15, 71.20, and 71.25 (2019) (i.e., as they appeared in part 71 on 
the day before the effective date of the rule). The one exception to 
this would be that the term ``joint application'' as we propose to 
define it in Sec.  71.15 would apply such that only those applications 
with all mandatory fields completed (i.e., all fields other than those 
specifically exempted) would be considered ``joint applications'' under 
this paragraph. A veteran or servicemember who submits a joint 
application that is received by VA before the effective date of the 
rule and for whom a Family Caregiver(s) is approved and designated on 
or after the effective date of the rule would be considered a ``legacy 
applicant,'' as such term would be defined in proposed Sec.  71.15.
    Proposed paragraph (a)(3)(ii) would state that joint applications 
received by VA on or after the effective date of the rule will be 
evaluated by VA based on the provisions of this part in effect on or 
after the effective date of the rule. If a veteran or servicemember and 
individuals who apply to be his or her Family Caregivers submit a joint 
application that is received by VA before the effective date of the 
rule, and are determined to be ineligible for PCAFC under Sec. Sec.  
71.15, 71.20, and 71.25 as they existed before the effective date of 
the rule, the veteran or servicemember along with his or her caregivers 
could submit another joint application on or after the effective date 
of the rule in order be considered under the new criteria.
    The proposed changes in Sec. Sec.  71.20 and 71.40 should minimize 
the incentive (at least within part 71) for a legacy participant or 
legacy applicant to submit a new joint application for PCAFC on or 
after the effective date of the rule. However, if a legacy participant 
or legacy applicant submits a new joint application on or after the 
effective date of the rule seeking the approval and designation of a 
Primary Family Caregiver, we note that pursuant to proposed Sec.  
71.25(a)(3)(ii), such application would be evaluated by VA based on the 
provisions of this part in effect on or after the effective date of the 
rule, to include an evaluation of the veteran's or servicemember's 
eligibility under proposed Sec.  71.20(a). As specified in the 
definitions of ``legacy participant'' and ``legacy applicant,'' if a 
Primary Family Caregiver is approved

[[Page 13376]]

and designated pursuant to such application, the eligible veteran would 
no longer be considered a legacy participant or legacy applicant. This 
would include the approval and designation of a new Primary Family 
Caregiver, including a Secondary Family Caregiver seeking to become a 
Primary Family Caregiver, or a current or former Primary Family 
Caregiver who is reapplying. If a Primary Family Caregiver is not 
approved and designated for a legacy participant or legacy applicant 
pursuant to a joint application received by VA on or after the 
effective date of the rule (because the legacy participant or legacy 
applicant does not qualify under proposed Sec.  71.20(a), the joint 
application requests the approval and designation of a Secondary Family 
Caregiver only, or the joint application is withdrawn before approval 
and designation), the veteran or servicemember would continue to be 
designated as a legacy participant or legacy applicant and remain 
eligible for PCAFC under proposed Sec.  71.20(b) or (c), respectively.
    We would add paragraphs (a)(3)(ii)(A) and (B) to address joint 
applications submitted by veterans and servicemembers seeking to 
qualify for PCAFC under proposed Sec.  71.20(a)(2)(ii) and (iii) (i.e., 
veterans and servicemembers who incurred or aggravated a serious injury 
in the line of duty in the active military, naval, or air service 
before September 11, 2001). As previously discussed, the first phase of 
PCAFC expansion under proposed Sec.  71.20(a)(2)(ii) would begin on a 
``date specified in a future Federal Register document.'' The second 
phase of PCAFC expansion under proposed Sec.  71.20(a)(2)(iii) would 
begin two years after the date specified in a future Federal Register 
document as described in Sec.  71.20(a)(2)(ii). Proposed Sec.  
71.25(a)(3)(ii)(A) and (B) would state that joint applications received 
from individuals described in Sec.  71.20(a)(2)(ii) and (iii) prior to 
the date on which such individuals become eligible would be denied and 
that a veteran or servicemember seeking to quality for PCAFC pursuant 
to Sec.  71.20(a)(2)(ii) and (iii) should submit a joint application 
that is received by VA on or after the Federal Register document date 
specified in proposed Sec.  71.20(a)(2)(ii), or two years after such 
date as specified in proposed Sec.  71.20(a)(2)(iii), respectively, as 
applicable. We believe denying applications received prior to the 
effective dates of eligibility expansion specified in proposed Sec.  
71.20(a)(2)(ii) and (iii) is appropriate because it is consistent with 
current practice in that we currently deny applications received from 
veterans or servicemembers with a serious injury incurred or aggravated 
in the line of duty in the active military, naval, or air service 
before September 11, 2001. Moreover, holding applications of applicants 
seeking to qualify for PCAFC pursuant to Sec.  71.20(a)(2)(ii) and 
(iii) would result in burdens on both VA and the applicants. A number 
of factors could change between the time a joint application is 
received by VA and the effective dates of eligibility expansion, such 
that the information on the joint application could be outdated by the 
applicable effective date of eligibility expansion. For example, there 
could be a different individual providing care to the veteran or 
servicemember than originally listed on the joint application, or the 
clinical status of the veteran or servicemember could change. If VA 
were to hold applications of individuals who would not be eligible (or 
potentially eligible) for PCAFC until the applicable effective date of 
eligibility expansion, upon the effective date of eligibility 
expansion, VA would have to contact each applicant to ensure all the 
information provided on the joint application is current before 
evaluating PCAFC eligibility. This would require additional steps in 
VA's evaluation of joint applications and impose delays before approval 
and designation of the Family Caregiver(s).
    Additionally, we would make changes to Sec.  71.25(c). First, we 
propose to remove the reference to primary care team in current 
paragraph (c)(1), as discussed above regarding our proposed definition 
of ``primary care team'' in Sec.  71.15. Current paragraph (c)(1) 
requires that an applicant seeking to be designated as a Family 
Caregiver must be ``initially assessed by a VA primary care team as 
being able to complete caregiver education and training.'' We would 
replace the reference to ``a VA primary care team'' in current 
paragraph (c)(1) with ``VA.'' With this change, the initial assessment 
of the Family Caregiver applicant could be done by a primary care team, 
clinical eligibility team, or other appropriate individual or 
individuals in VA. Collaboration with the primary care team would 
instead be referenced in proposed Sec.  71.25(a)(2)(i).
    Current Sec.  71.25(c)(1)(i) requires that the initial assessment 
of the Family Caregiver applicant consider ``[w]hether the applicant 
can communicate and understand details of the treatment plan and any 
specific instructions related to the care of the eligible veteran.'' We 
propose to revise Sec.  71.25(c)(1)(i) by replacing the phrase 
``details of the treatment plan'' with ``the required personal care 
services.'' We believe the phrase ``required personal care services'' 
more accurately reflects the Family Caregiver's role in the veteran's 
care. We note that treatment plans may be inclusive of clinical needs 
that are outside the scope of the personal care services provided by 
the Family Caregiver. It is critical that the Family Caregiver 
applicant be able to communicate and understand the required personal 
care services of the eligible veteran, but not necessarily the details 
of the treatment plan.
    We propose to revise Sec.  71.25(c)(1)(ii) by updating the language 
to better reflect the responsibilities of Family Caregivers. Current 
paragraph (c)(1)(ii) describes one of the criteria that VA will 
consider when conducting an assessment of caregiver applicants. Under 
this paragraph, assessments consider whether the applicant will be 
capable of following without supervision a treatment plan listing the 
specific care needs of the eligible veteran. We propose to revise this 
paragraph to instead state that assessments would consider whether the 
applicant will be capable of performing the required personal care 
services without supervision, in adherence with the eligible veteran's 
treatment plan in support of the needs of the eligible veteran. We 
believe the phrase ``required personal care services'' more accurately 
reflects the Family Caregiver's role in the eligible veteran's care. We 
note that treatment plans may be inclusive of care needs outside the 
scope of the personal care services provided by the Family Caregiver, 
and our proposed changes would recognize that the Family Caregiver may 
not follow an entire treatment plan without supervision. Furthermore, 
we believe the phrase ``in support of the needs of the eligible 
veteran'' further clarifies the role of the Family Caregiver to provide 
personal care services that are not only specific to the needs of the 
eligible veteran, but support those needs.
    We propose to revise Sec.  71.25(c)(2) which currently states that 
before VA approves an applicant to serve as a Family Caregiver, the 
applicant must ``[c]omplete caregiver training and demonstrate 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 would remove ``other'' for 
clarity and would remove the phrase ``prescribed by the eligible 
veteran's primary care team,'' as discussed above regarding our 
proposed definition of ``primary care team'' in Sec.  71.15, to account 
for care requirements

[[Page 13377]]

prescribed by providers other than the veteran's or servicemember's 
primary care team.
    We propose to revise Sec.  71.25(e) which currently states that VA 
will conduct an initial home-care assessment no later than 10 business 
days after VA certifies completion of caregiver education and training, 
or in the instance that an eligible veteran is hospitalized during this 
process, no later than 10 days from the date the eligible veteran 
returns home. It also describes the purpose of such initial home-care 
assessment (i.e., to assess the caregiver's completion of training and 
competence to provide personal care services, and to measure the 
eligible veteran's well-being).
    First, we propose to revise paragraph (e) to remove the 10-day time 
period. VA believes flexibility to coordinate the most appropriate 
clinicians and/or teams to conduct these initial home-care assessments 
is necessary to ensure adequate VA resources, and this may require more 
than 10 days to complete. For example, in an attempt to meet the 10-day 
timeline, VA attempts to schedule visits before a Family Caregiver 
completes training; however, individuals who apply to become Family 
Caregivers complete training at different rates of speed. Because such 
completion dates cannot be predicted at the time training begins, the 
current 10-day timeline does not afford VA the opportunity to 
adequately plan, coordinate, and schedule these initial home-care 
assessments in a manner that would accommodate the needs of the 
applicants.
    Additionally, the 10-day time period is not intended to be 
burdensome to PCAFC applicants, and we believe the removal of this time 
period would allow VA to better accommodate the needs of veterans and 
servicemembers, and individuals who apply to be their Family 
Caregivers. As discussed below regarding our proposed revisions to 
Sec.  71.40(d), upon approval and designation of a Family Caregiver, 
certain benefits, including the stipend, may be provided retroactively 
to the date the joint application is received by VA, if applicable. 
Thus, removing the 10-day timeframe would not negatively impact the 
amount of the stipend and certain other benefits approved Family 
Caregivers will receive if the initial home-care assessment is 
conducted more than 10 business days after completion of the caregiver 
education and training.
    Furthermore, the removal of the 10-day timeline is consistent with 
our proposal to extend the 45-day timeline standard from current Sec.  
71.40(d)(1) to 90 days in proposed Sec.  71.25(a)(2)(ii) because we 
believe focusing on the timeline for the overall application process is 
more important than establishing a specific number of days between each 
stage of the designation process.
    Second, we would remove ``VA clinician or clinical team'' and 
instead reference ``VA.'' As previously discussed, we are removing the 
specific reference to primary care team in paragraph (c)(1) of this 
section and instead referencing ``VA.'' This is because the individual 
or team best suited to conduct initial assessments can vary (e.g., a 
primary care team, clinical eligibility team, or other appropriate 
individual or individuals in VA). We note that the current phrase ``VA 
clinician or clinical team'' is inclusive of a primary care team, 
clinical eligibility team, or other appropriate individual or 
individuals in VA; however, to maintain consistency with other proposed 
changes in this section and to avoid any misinterpretation that ``VA 
clinical or clinical team'' has a separate meaning from ``VA,'' we 
would only reference ``VA'' in paragraph (e).
    Third, we would change the current text in Sec.  71.25(e) that 
states VA will ``measure the eligible veteran's well-being'' to 
``assess the eligible veteran's well-being.'' While the actions 
involved would not change, VA believes the term ``assess'' is used more 
widely than ``measure'' and therefore the intent of the initial home-
care assessment would be clearer to eligible veterans and caregivers.
    Fourth, we would also add new language that we would assess the 
well-being of the caregiver in addition to the eligible veteran. We 
believe an assessment of the caregiver's well-being is appropriate to 
ensure that the caregiver is physically, emotionally, and cognitively 
capable of providing personal care services to the eligible veteran. 
Also, an assessment of the caregiver's well-being would allow VA to 
refer the caregiver to appropriate resources, as necessary.
    Fifth, we would remove reference to the assessment of the 
caregiver's completion of training and only refer to the caregiver's 
competence to provide personal care services. While caregiver education 
and training would still be required and would contribute to the 
caregiver's ability to provide personal care services, the assessment 
would not focus on whether training has been completed but rather the 
competence of the caregiver to provide personal care services.
    Sixth, we would also remove language that the initial home-care 
assessment would occur after VA certifies completion of caregiver 
education and training. Because the needs of the veteran or 
servicemember and individuals applying to be a Family Caregiver may 
vary, we believe flexibility to conduct initial home-care assessments 
prior to the completion of training is necessary. For example, 
individuals who apply to become Family Caregivers complete training at 
different rates of speed, and VA may need to conduct an initial home-
care assessment prior to the completion of training to allow for the 
identification of additional needs and necessary resources. 
Furthermore, an experienced caregiver may be capable of demonstrating 
the ability to provide personal care services prior to the completion 
of required training. In this instance, we believe the flexibility to 
conduct an initial home-care assessment prior to the completion of 
training would be appropriate and allow VA to better accommodate the 
scheduling needs of applicants.
    Seventh, we would remove the reference to the eligible veteran 
being hospitalized. As previously explained, we are proposing to remove 
the 10-day timeline in this paragraph, and we propose to extend the 45-
timeline in current Sec.  71.40(d)(1) to 90 days in proposed Sec.  
71.25(a)(2)(ii). We believe the combination of these two proposed 
changes eliminates the need to retain the reference to the eligible 
veteran being hospitalized because we believe that 90 days is a 
reasonable amount of time for applicants to complete the application 
requirements, including the initial home-care assessment, in order for 
VA to designate the Family Caregiver. Therefore, if the hospitalization 
of an eligible veteran prevents VA from completing the initial home-
care assessment (or complete the eligibility evaluations or provide 
necessary education and training) within 90 days from the date the 
joint application is received, then the joint application would be 
denied, and a new joint application would be required. For the 
aforementioned reasons, proposed paragraph (e) would state that VA will 
visit the eligible veteran's home to assess the eligible veteran's 
well-being and the well-being of the caregiver, as well as the 
caregiver's competence to provide personal care services at the 
eligible veteran's home.
    We propose to revise current paragraph (f) which explains that VA 
will approve and designate Primary and/or Secondary Family Caregivers, 
as appropriate, if the eligible veteran and at least one applicant meet 
the requirements of part 71. It further

[[Page 13378]]

explains that this is a clinical determination authorized by the 
eligible veteran's primary care team, and that approval and designation 
is conditioned on the eligible veteran and Family Caregiver(s) 
remaining eligible for benefits under part 71.
    First, we would revise the first sentence for clarity to state that 
``VA will approve the joint application and designate Primary and/or 
Secondary Family Caregivers, as appropriate, if the applicable 
requirements of part 71 are met.''
    Second, we would remove the second sentence stating, ``approval and 
designation will be a clinical determination authorized by the eligible 
veteran's primary care team.'' As discussed above regarding our 
proposed definition of ``primary care team'' in Sec.  71.15, we would 
remove the current language that refers to a clinical determination 
being authorized by the individual's primary care team. Collaboration 
with the primary care team would instead be referenced in proposed 
Sec.  71.25(a)(2)(i). Also, the term ``clinical'' is redundant since 
all decisions under 38 U.S.C. 1720G affecting the furnishing of 
assistance or support are considered medical determinations. 38 U.S.C. 
1720G(c)(1).
    Third, we would revise the last sentence of current paragraph (f) 
to state that approval and designation is conditioned on the eligible 
veteran's and designated Family Caregiver's continued eligibility for 
Family Caregiver benefits under part 71, the Family Caregiver(s) 
providing the personal care services required by the eligible veteran, 
and the eligible veteran and designated Family Caregiver(s) complying 
with all applicable requirements of this part, including participating 
in reassessments pursuant to Sec.  71.30 and wellness contacts pursuant 
to Sec.  71.40(b)(2), as such sections are proposed to be revised by 
this rulemaking. We would further explain that refusal to comply with 
any applicable requirements of part 71 will result in revocation from 
the program pursuant to Sec.  71.45, Revocation and Discharge of Family 
Caregivers, as such section is proposed to be revised by this 
rulemaking. We would establish an explicit requirement that the Family 
Caregiver provide the eligible veteran with his or her required 
personal care services. Part of the eligibility requirements for 
veterans and servicemembers is that they are in need of personal care 
services; thus, we believe it is reasonable to require that a Family 
Caregiver(s) actually provides personal care services to an eligible 
veteran in order to continue to be approved and designated as such. We 
recognize that there may be instances where the Family Caregiver is 
temporarily absent and unable to personally provide personal care 
services, and we would not apply this requirement to such brief 
absences, such as when respite care is provided.
    As discussed further below, we would also establish an explicit 
requirement for eligible veterans and Family Caregivers to participate 
in reassessments and wellness contacts. As explained in more detail in 
the discussion directly below, VA is required to conduct periodic 
evaluations of Family Caregivers' skills and eligible veterans' needs 
pursuant to 38 U.S.C. 1720G(a)(3)(D), as revised by the VA MISSION Act 
of 2018, and the reassessments and wellness contacts would ensure that 
VA is meeting this requirement and that the needs of PCAFC participants 
are being met. See 38 U.S.C. 1720G(a)(3)(D), as amended by Public Law 
115-182, section 161(a)(5). When either the eligible veteran or Family 
Caregiver refuses to participate in reassessments or wellness contacts, 
VA would revoke the Family Caregiver's designation pursuant to proposed 
Sec.  71.45, which is explained in more detail later in this 
rulemaking.

Sec.  71.30 Reassessment of Eligible Veterans and Family Caregivers

    We would redesignate current Sec.  71.30, which pertains to PGCSS, 
as new Sec.  71.35; and new Sec.  71.30 would establish that VA will 
conduct reassessments of eligible veterans and Family Caregivers to 
determine their continued eligibility for participation in PCAFC under 
part 71. We would include this in proposed Sec.  71.30 as it would 
logically follow the previous sections in 38 CFR part 71 describing 
eligibility for PCAFC.
    Currently, there is no standardized or consistent requirement for 
PCAFC eligibility reassessments across VA; some facilities conduct 
reassessments while others do not. There is also no standard timeline 
for when such reassessments occur. A recent VA OIG report affirmed that 
veterans' health conditions change, and such changes may warrant a 
reassessment of the need for care for the purposes of determining 
continued PCAFC eligibility or the appropriate stipend tier level. VA 
OIG Report, Program of Comprehensive Assistance for Family Caregivers: 
Management Improvements Needed, Report No. 17-04003-222, dated August 
16, 2018, pp. 11-14. OIG also recommended VHA establish assessment 
guidelines for when a veteran's need for care changes. Id. According to 
OIG, without consistent monitoring of PCAFC participants and ``improved 
documentation of changes in the status of veterans' health, VHA cannot 
take timely action when veterans need more or less care. VHA needs to 
take this action to both support the needs of veterans and their 
caregivers and to identify veterans who need less care or no care at 
all.'' Id. at 14. Additionally, regular assessment of PCAFC 
participants would, like with proposed wellness contacts in proposed 
Sec.  71.40(b)(2) (i.e., monitoring visits in current Sec.  
71.40(b)(2)), ensure continued engagement between VA and PCAFC 
participants, and that additional support is provided when an eligible 
veteran's care needs increase. Congress recognized the need for such 
engagement in the VA MISSION Act of 2018 by requiring VA to 
``periodically evaluate the needs of the eligible veteran and the 
skills of the [F]amily [C]aregiver of such veteran to determine if 
additional instruction, preparation, training, or technical support . . 
. is necessary.'' 38 U.S.C. 1720G(a)(3)(D), as amended by Public Law 
115-182, section 161(a)(5). For these reasons, we would add a 
reassessment requirement in proposed Sec.  71.30.
    Proposed Sec.  71.30(a) would state that, except as provided in 
paragraphs (b) and (c) of this section, the eligible veteran and Family 
Caregiver will be reassessed by VA on an annual basis to determine 
their continued eligibility for participation in PCAFC under part 71, 
and that reassessments will include consideration of whether the 
eligible veteran is unable to self-sustain in the community for 
purposes of the monthly stipend rate under proposed Sec.  
71.40(c)(4)(i)(A). Additionally, it would state that such reassessments 
may include a visit to the eligible veteran's home. We believe this is 
reasonable under 38 U.S.C. 1720G, since we do not believe that Congress 
intended for PCAFC participants' eligibility to never be reassessed 
after the initial eligibility determination, particularly as an 
eligible veteran's and Family Caregiver's continued eligibility for the 
program can evolve.
    We propose to conduct these reassessments on an annual basis, as 
eligible veterans' needs for personal care services may change over 
time as may the needs and capabilities of the designated Family 
Caregiver(s). Conducting this reassessment on an annual basis is 
reasonable as it will allow consideration of whether an eligible 
veterans' assessed level of need is sustained or if it has increased or 
decreased during the year. Requiring annual reassessments would also 
create

[[Page 13379]]

consistency across the program and ensure that reassessments are 
generally conducted on a standard timeline. Furthermore, eligibility 
for PCAFC is conditioned upon the eligible veteran receiving care at 
home (pursuant to proposed Sec.  71.20(a)(6)); and an in-home 
assessment may be required as part of the reassessment to adequately 
evaluate the eligible veteran's and Family Caregiver's eligibility, 
including Family Caregiver's continued ability to perform the required 
personal care services.
    Additionally, the reassessment would provide another opportunity 
for Family Caregivers and eligible veterans to give feedback to VA 
about the health status and care needs of the eligible veteran. Such 
information is utilized by VA to provide additional services and 
support, as needed, as well as to ensure the appropriate stipend level 
is assigned. We note that the VA MISSION Act of 2018 requires VA to 
consider, among other things, the Family Caregiver's assessment of the 
needs and limitations of certain eligible veterans in determining the 
Primary Family Caregivers' stipend amount. See 38 U.S.C. 
1720G(a)(3)(C)(iii)(I), as amended by Public Law 115-182, section 
161(a)(4). Specifically, this input from the Family Caregiver would be 
taken into account when determining whether the eligible veteran is 
unable to self-sustain in the community for purposes of proposed Sec.  
71.40(c)(4)(i)(A). Along with considering the input of Family 
Caregivers and eligible veterans during reassessments, we would ensure 
that they are notified in advance of these reassessments.
    Reassessments would ensure that VA is supporting eligible veterans 
and Family Caregivers by offering the most appropriate level of care 
and support needed. Along with wellness contacts in proposed Sec.  
71.40(b)(2) (i.e., monitoring visits in current Sec.  71.40(b)(2)), 
discussed in more detail below, reassessments help identify whether any 
additional instruction, preparation, training, and technical support is 
needed in order for the eligible veteran's needs to be met by the 
Family Caregiver and is consistent with 38 U.S.C. 1720G(a)(3)(D), as 
amended by the VA MISSION Act of 2018. See 38 U.S.C. 1720G(a)(3)(D), as 
amended by Public Law 115-182, section 161(a)(5). Periodically 
reassessing PCAFC participants' needs would help ensure that eligible 
veterans and Family Caregivers have the necessary skills, knowledge, 
and resources for the eligible veteran to continue progressing toward 
improved health, wellness, and independence when such potential exists. 
This annual reassessment would also ensure that VA is being a good 
fiscal steward and maintaining quality oversight over this program.
    Proposed Sec.  71.30(b) and (c) would establish exceptions to the 
requirement in proposed Sec.  71.30(a) that reassessments occur 
annually. In proposed paragraph (b), we would explain that 
reassessments may occur more frequently than annually if a 
determination is made and documented by VA that more frequent 
reassessment is appropriate. Through policy, we would require VA to 
document the clinical factors relied upon in concluding that more 
frequent reassessment is needed. Clinical factors could include known 
improvements in or deterioration of the eligible veteran's condition. 
For example, reassessment may be warranted following a course of 
treatment or other clinical intervention that reduces an eligible 
veteran's level of dependency on his or her Family Caregiver, such as 
increased independence in mobility through the use of adaptive 
equipment that is expected to result in long-term gains, even if a 
previous reassessment had already been completed within the previous 
year. A more frequent than annual reassessment may also be warranted in 
instances in which there is a significant increase in personal care 
services needed by the eligible veteran due to a deterioration of a 
progressive condition or an intervening medical event or condition, 
such as a stroke that results in further clinical impairment.
    In proposed paragraph (c), we would state that reassessments may 
occur on a less than annual basis if a determination is made and 
documented by VA that an annual reassessment is unnecessary. Through 
policy, we would require VA to document the clinical factors relied 
upon in concluding that less frequent reassessment is needed. We have 
found that there are eligible veterans who are not expected to improve 
over the long term and will continue to need the same amount and degree 
of personal care services over time. As a result, we believe it is 
reasonable to exclude such eligible veterans and their Family 
Caregivers from ongoing reassessments entirely or to require 
reassessments on a less than annual basis for such eligible veterans 
and their Family Caregivers. For example, VA may determine that an 
eligible veteran who is bed-bound and ventilator dependent, and 
requires the presence of a Family Caregiver to perform tracheotomy care 
to ensure uninterrupted ventilator support, may not need an annual 
reassessment because the eligible veteran's condition is expected to 
remain unchanged long-term. Even if VA is not conducting an annual 
reassessment (or is conducting reassessments less frequently than 
annually), VA would continue to conduct ongoing wellness contacts 
pursuant to proposed Sec.  71.40(b)(2) (i.e., monitoring as used in 
current Sec.  71.40(b)(2)), as discussed in more detail in the 
following section. We believe it is reasonable under the authorizing 
statute to require more or less frequent than annual reassessments 
given the unique circumstances of each eligible veteran and his or her 
Family Caregiver(s).
    In proposed paragraph (d), we would state that failure of the 
eligible veteran or Family Caregiver to participate in any reassessment 
pursuant to this section will result in revocation pursuant to Sec.  
71.45, Revocation and Discharge of Family Caregivers, as such section 
would be revised by this rulemaking. Proposed Sec.  71.30(d) would also 
be consistent with the language in proposed Sec.  71.25(f) that would 
condition approval and designation of the Family Caregiver on, among 
other things, the eligible veteran and Family Caregiver participating 
in reassessments. These requirements would ensure that eligible 
veterans and Family Caregivers participate in reassessments so that VA 
is able to continue to evaluate the needs of eligible veterans and 
Family Caregivers.
    We propose to conduct reassessments of legacy participants and 
legacy applicants pursuant to proposed Sec.  71.30 within one year of 
the effective date of the rule to determine their continued eligibility 
for PCAFC under the new criteria in proposed Sec.  71.20(a). In 
proposed paragraph (e)(1), we would state that if the eligible veteran 
meets the requirements of Sec.  71.20(b) or (c) (i.e., is a legacy 
participant or a legacy applicant), the eligible veteran and Family 
Caregiver will be reassessed by VA within the one-year period beginning 
on the effective date of the rule to determine whether the eligible 
veteran meets the requirements of Sec.  71.20(a), and that such 
reassessment may include a visit to the eligible veteran's home. For 
example, if the rule becomes effective on April 1, 2020, then the 
eligible veteran and his or her Family Caregiver would be reassessed 
between April 1, 2020 and March 31, 2021. Additionally, proposed 
paragraph (e)(1) would provide that if the eligible veteran meets the 
requirements of Sec.  71.20(a), these reassessments would include 
consideration of whether the eligible veteran is unable to self-sustain 
in the community for purposes of the monthly stipend rate under Sec.  
71.40(c)(4)(i)(A). This reassessment would be consistent with the

[[Page 13380]]

requirements in proposed paragraph (a) of this section except that 
legacy participants and legacy applicants would be reassessed under 
different eligibility criteria than the criteria applied by VA at the 
time their Family Caregivers were approved and designated. Like with 
proposed paragraph (a), reassessments of legacy participants and legacy 
applicants would provide another opportunity to ensure appropriate care 
and support is available to eligible veterans and Family Caregivers, 
but reassessments under proposed paragraph (e)(1) would also be 
necessary since eligibility under proposed Sec.  71.20(b) and (c) would 
only be in effect for the one-year period beginning on the effective 
date of the rule.
    In proposed paragraph (e)(2) we would explain that a reassessment 
will not be completed under paragraph (e)(1) if at some point before a 
reassessment is completed during the one-year period, the individual no 
longer meets the requirements of Sec.  71.20(b) or (c). We believe it 
would be reasonable to forgo completing a reassessment because the 
veteran or servicemember would no longer be a legacy participant or 
legacy applicant. This would arise in instances where the Primary 
Family Caregiver for the legacy participant or legacy applicant is 
revoked or discharged under proposed Sec.  71.45 (e.g., revocation for 
cause or non-compliance; or discharge due to death, 
institutionalization, or request of the eligible veteran or Primary 
Family Caregiver), or where the same or a new Primary Family Caregiver 
is approved and designated for the veteran or servicemember pursuant to 
a joint application received by VA on or after the effective date of 
the rule. If the veteran or servicemember is no longer considered a 
legacy participant or legacy applicant before a reassessment is 
completed, then the Primary Family Caregiver for the legacy participant 
or legacy applicant would not receive any retroactive stipend increase 
that they may have been eligible to receive under proposed Sec.  
71.40(c)(4)(ii)(C)(2)(i), discussed further below, had they not been 
revoked or discharged before the reassessment was completed. In some 
cases, reassessment would not be feasible because of the death or 
institutionalization of the veteran or servicemember or his or her 
caregiver. In other cases, revocation or discharge would be the result 
of actions taken or not taken by the veteran or servicemember or his or 
her caregiver (e.g., discharge at the request of the eligible veteran 
or Family Caregiver, or revocation for cause or noncompliance).

Sec.  71.40 Caregiver Benefits

    Current Sec.  71.40 describes the benefits available to General 
Caregivers, Secondary Family Caregivers, and Primary Family Caregivers. 
This section implements 38 U.S.C. 1720G(a)(3) and (b)(3) which 
establish the benefits available to Family Caregivers and General 
Caregivers, respectively. We propose to revise current paragraph 
(b)(2), restructure and revise current paragraphs (c)(4) and (d), and 
add new paragraphs (c)(5) and (6). These proposed changes are discussed 
in detail further below.
    We would revise current paragraph (b)(2) which states that the 
primary care team will maintain the eligible veteran's treatment plan 
and collaborate with clinical staff making home visits to monitor the 
eligible veteran's well-being, adequacy of care and supervision being 
provided. This monitoring is required to occur at least every 90 days, 
unless otherwise clinically indicated. See Sec.  71.40(b)(2). While 
monitoring is generally intended to be conducted every 90 days, we have 
found some Family Caregivers and eligible veterans find such 
requirements, including home and telephone visits, to be burdensome. We 
also acknowledge that we have experienced difficulty conducting 
monitoring due to limited resources. See VA OIG Report, Program of 
Comprehensive Assistance for Family Caregivers: Management Improvements 
Needed, Report No. 17-04003-222, dated August 16, 2018, pp. 11-13.
    As part of the proposed revisions to paragraph (b)(2), we propose 
to change the 90-day general timeframe to a minimum of once every 180 
days. We believe this frequency would allow VA more than adequate 
opportunity to review the eligible veteran's and Family Caregiver's 
well-being and the adequacy of care and supervision being provided. We 
would conduct this monitoring (which we propose to refer to as 
``wellness contacts'' as explained in the subsequent paragraph) via 
home visits, phone calls, or through other means; however, we would 
require at least one wellness contact to occur in the eligible 
veteran's home on an annual basis. We note that reducing the required 
frequency of these wellness contacts and conducting them through other 
means in addition to home visits, would allow VA to conduct these 
contacts on a semi-annual basis using means individualized to the 
eligible veterans and Family Caregivers while ensuring that the needs 
of eligible veterans and Family Caregivers are met. This would also be 
less burdensome on eligible veterans and their Family Caregivers and 
would allow VA to effectively manage limited resources. We note that 
not all eligible veterans or Family Caregivers participating in PCAFC 
benefit from the current frequency of contacts with VA. For example, an 
eligible veteran whose condition is generally unchanged, who is 
receiving care from a Family Caregiver well-versed in the provision of 
care, and who has established a routine that supports the wellness of 
himself or herself and the Family Caregiver, may experience significant 
disruption in the daily routine when having to make scheduling changes 
to accommodate a home visit or other monitoring contact by VA. Thus, we 
believe it would be appropriate to conduct these wellness contacts via 
home visits at least once a year and allow VA to use other means for 
the other wellness contacts based on the individual needs and 
circumstances of the eligible veteran and Family Caregiver. We note 
that the proposed changes would establish a minimum baseline for the 
frequency of wellness contacts (i.e., every 180 days) and that these 
contacts (including home visits) may occur more frequently, if needed, 
to address the individual needs of the eligible veteran and his or her 
Family Caregiver.
    As mentioned above, we propose to change the terminology from 
``monitoring'' to ``wellness contacts'' as we believe this is a more 
accurate description of the purpose of these visits. We also note that 
in addition to reviewing the eligible veteran's well-being and adequacy 
of care and supervision being provided as we currently do during the 
monitoring visits and which is explained in current paragraph (b)(2), 
these wellness contacts would also include a review of the well-being 
of the Family Caregiver. The review of the Family Caregiver's well-
being is equally as important as the review of the eligible veteran's 
well-being and adequacy of care. Wellness contacts ensure the 
opportunity to provide any additional support, services, or referrals 
for services needed by the eligible veteran or Family Caregiver. We 
would describe the purposes of these wellness contacts in proposed 
paragraph (b)(2), but change ``adequacy of care and supervision being 
provided'' to ``adequacy of personal care services being provided'' for 
consistency with the terminology used elsewhere in part 71 describing 
the role of Family Caregivers. We would also state that failure of the 
eligible veteran and Family Caregiver to participate in any

[[Page 13381]]

wellness contacts pursuant to proposed paragraph (b)(2) will result in 
revocation, pursuant to Sec.  71.45, Revocation and Discharge of Family 
Caregivers. This requirement would also be consistent with the language 
in proposed Sec.  71.25(f) that would condition approval and 
designation of the Family Caregiver on, among other things, the 
eligible veteran and Family Caregiver participating in wellness 
contacts. This requirement would ensure that eligible veterans and 
Family Caregivers participate in any required wellness contacts so that 
VA is able to continue to review the eligible veteran's and Family 
Caregiver's well-being, as well as the adequacy of personal care 
services being provided.
    The VA MISSION Act of 2018 requires VA to periodically evaluate the 
needs of the eligible veteran and the skills of the Family Caregiver to 
determine if additional instruction, preparation, training, and 
technical support is necessary. See 38 U.S.C. 1720G(a)(3)(D), as 
amended by Public Law 115-182, section 161(a)(5). VA believes that this 
``wellness contact'' as described in proposed paragraph (b)(2) and the 
proposed reassessments under proposed Sec.  71.30, would meet this 
periodic evaluation requirement in section 161(a)(5) of the VA MISSION 
Act of 2018. During these wellness contacts and reassessments, VA would 
determine whether any additional instruction, preparation, training, 
and technical support is needed in order for the eligible veteran's 
needs to be met by the Family Caregiver.
    The remaining language in current paragraph (b)(2), that the 
primary care team will maintain the eligible veteran's treatment plan 
and collaborate with clinical staff making home visits, would be 
removed from proposed paragraph (b)(2), as discussed above regarding 
our proposed definition of ``primary care team'' in Sec.  71.15. We 
note that the primary care team would still be involved in monitoring 
the well-being of eligible veterans, including maintaining the 
treatment plan, and home visits and other wellness contacts, based on 
the needs of the eligible veterans (e.g., the primary care team will be 
alerted to the results of visits, order consults, schedule a clinic 
appointment). The language would also be revised to reflect the change 
in terminology from ``home visits'' to ``wellness contacts.''
    Current Sec.  71.40(c) provides that VA will provide to Primary 
Family Caregivers all the benefits listed in paragraphs (c)(1) through 
(4) of this section. As explained later in this rulemaking we propose 
to add two new benefits (i.e., financial planning services and legal 
services) for Primary Family Caregivers. Thus, in proposed Sec.  
71.40(c) we would replace the phrase ``(c)(1) through (4)'' with 
``(c)(1) through (6).''
    Current paragraph (c)(4) provides Primary Family Caregivers will 
receive a monthly stipend for each prior month's participation as a 
Primary Family Caregiver. It also explains how that will be determined. 
We propose to revise and restructure the stipend payment methodology, 
as further explained below. Therefore, in proposed paragraph (c)(4), we 
would remove the second sentence, which introduces the current stipend 
tier determination, and keep only the first sentence.
    Additionally, we would replace the phrase ``each prior month's 
participation'' in the first sentence of paragraph (c)(4) with ``each 
month's participation.'' VA's current practice is to issue monthly 
stipend payments at the end of the month in which services are 
provided. To avoid confusion and allow flexibility depending on 
administrative needs and requirements, we propose to remove ``prior'' 
and simply state that Primary Family Caregivers will receive a monthly 
stipend payment for each month's participation as a Primary Family 
Caregiver. As further explained below, we would revise, redesignate, or 
remove the remaining subparagraphs in paragraph (c)(4). We would revise 
current paragraph (c)(4)(i) to set forth a new methodology for 
determining the amount of monthly stipend payments and paragraph 
(c)(4)(ii) to set forth rules for stipend payment adjustments. Current 
paragraph (c)(4)(vii) would be redesignated as (and replace current) 
paragraph (c)(4)(iii), current paragraph (c)(4)(iv) would be revised to 
establish periodic assessments of and, if applicable, adjustments to 
the monthly stipend rate, and paragraphs (c)(4)(v) through (vii) would 
be deleted.
    The monthly stipend payment is meant to be an acknowledgement of 
the sacrifices that Primary Family Caregivers make to care for eligible 
veterans. 76 FR 26155 (May 5, 2011). These payments are made pursuant 
to 38 U.S.C. 1720G(a)(3)(A)(ii)(V), and 38 U.S.C. 1720G(a)(3)(C)(i) 
requires VA to base the stipend amount on ``the amount and degree of 
personal care services provided.'' The stipend amount is, to the extent 
practicable, not to be ``less than the monthly amount a commercial home 
health care entity would pay an individual in the geographic area of 
the eligible veteran;'' and in the instance that the geographic area of 
the eligible veteran does not have a commercial home health entity, VA 
is required to take 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)(ii), 
(iv), as amended by Public Law 115-182, section 161(a)(4). 
Additionally, in making this determination ``with respect to an 
eligible veteran whose need for personal care services is based in 
whole or in part on a need for supervision or protection . . . or 
regular instruction or supervision,'' VA is required to take into 
account, ``[t]he extent to which the veteran can function safely and 
independently in the absence of such supervision, protection, or 
instruction,'' and ``[t]he amount of time required for the family 
caregiver to provide such supervision, protection, or instruction to 
the veteran.'' See 38 U.S.C. 1720G(a)(3)(C)(iii)(II) and (III), as 
amended by section 161(a)(4)(B) of the VA MISSION Act of 2018.
    Currently, the calculation of the stipend amount is based upon the 
amount and degree of assistance an eligible veteran needs to perform 
one or more activities of daily living (ADL), or the amount and degree 
to which an eligible veteran is in need of supervision or protection 
based on symptoms or residuals of neurological or other impairment or 
injury. See Sec.  71.40(c)(4)(i) and (ii). VA clinically rates and 
scores 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 eligible veteran is in need of supervision or 
protection based on symptoms or residuals of neurological or other 
impairment or injury. See Sec.  71.40(c)(4)(i) through (iii). The 
ratings are added together, and if the sum is 21 or higher, the Primary 
Family Caregiver receives a stipend that is equivalent to 40 hours per 
week of caregiver assistance. 38 CFR 71.40(c)(4)(iv)(A). If the sum is 
13 to 20, the Primary Family Caregiver receives a stipend that is 
equivalent to 25 hours per week of caregiver assistance. Id. at Sec.  
71.40(c)(4)(iv)(B). If the sum is one to 12, the Primary Family 
Caregiver receives a stipend that is equivalent to 10 hours per week of 
caregiver assistance. Id. at Sec.  71.40(c)(4)(iv)(C). Current Sec.  
71.40(c)(4) explains that the monthly stipend payment that Primary 
Family Caregivers receive under the program will be calculated by 
multiplying the combined rate (i.e., the Bureau of Labor Statistics 
(BLS) hourly wage rate for home health aides at the 75th percentile in 
the eligible veteran's

[[Page 13382]]

geographic area of residence, multiplied by the Consumer Price Index 
for All Urban Consumers (CPI-U) as defined in current Sec.  71.15) by 
the number of weekly hours of caregiver assistance determined to be 
required under Sec.  71.40(c)(4)(iv), which is then multiplied by 4.35. 
Id. at Sec.  71.40(c)(4)(v).
    In this rulemaking, we propose several changes to this methodology 
and calculation. We would revise current paragraph (c)(4) to set forth 
a new stipend payment methodology based on the monthly stipend rate (as 
that term would be defined in Sec.  71.15). We would also define two 
levels to distinguish the amount and degree of personal care services 
provided to an eligible veteran based on whether the eligible veteran 
is determined to be unable to self-sustain in the community (as that 
term would be defined in Sec.  71.15). Additionally, we would base 
stipend payments on a percentage of the monthly stipend rate (as that 
term would be defined in Sec.  71.15) instead of presuming that the 
eligible veteran needs a certain number of weekly hours of caregiver 
assistance. Paragraph (c)(4) would also include provisions to ensure 
that the Primary Family Caregivers of legacy participants and legacy 
applicants are not disadvantaged by our proposed changes for the one-
year period beginning on the effective date of the rule. Eventually, as 
described in detail below, all Primary Family Caregivers in the program 
would have their stipend payments calculated using the new proposed 
payment methodology in paragraph (c)(4)(i)(A).
    First, instead of using the combined rate to determine the monthly 
stipend payment, we now propose to use the term monthly stipend rate as 
that term would be defined in proposed Sec.  71.15. We propose to use 
this rate instead of the combined rate because of the combined rate's 
reliance on BLS rates, which have experienced drastic fluctuations 
across the country in both increases and decreases. As explained in 
VA's final rule implementing PCAFC, VA only adjusts the stipend rate 
for a geographic area each year if it results in an hourly wage 
increase, and if changing the stipend rate for a geographic area would 
result in a decrease in the hourly wage rate, the stipend rate remains 
at the rate applied for the previous year. See 80 FR 1370 (January 9, 
2015). We have found that since implementing the combined rate to 
determine stipend amounts, the stipend rates have not always been 
reflective of actual wage rates, and the hourly rate assigned to many 
areas is well above the average hourly rate of a home health aide. 
These inflated rates have been identified in locations such as, College 
Station, TX; Albany, GA; Vineland-Bridgeton, NJ; Clarksville, TN; Santa 
Rose, CA; and Central Utah non-metropolitan area.
    We have also found that there have been increases in the combined 
rate because the geographic areas for this rate continue to be 
redefined. Beginning with the May 2015 estimates, the BLS Occupational 
Employment Statistics (OES) program has implemented redefined 
metropolitan area definitions, as designated by the Office of 
Management and Budget (OMB) and based on the results of the 2010 
census. As of May 2015, OES data is available for 394 metropolitan 
areas, 38 metropolitan divisions that make up 11 of the metropolitan 
areas, and 167 OES-defined nonmetropolitan areas. Prior to implementing 
the new area definitions, OES data was available for 380 metropolitan 
areas, 34 metropolitan divisions, and 172 OES-defined nonmetropolitan 
areas. For purposes of the combined rate, these changes resulted in an 
increase for certain areas that otherwise would have had lower rates. 
This is because a BLS geographic area can only have a single rate; 
thus, when a geographic area with a higher stipend rate is redefined to 
encompass another geographic area that had a lower stipend rate, the 
higher stipend rate applies to the entire new geographic area. If VA 
were to continue to use the combined rate in its calculations of 
stipend amounts, rates would continue to be inflated.
    As noted above, the term ``monthly stipend rate'' would be defined 
in proposed Sec.  71.15 as the OPM GS Annual Rate for grade 4, step 1, 
based on the locality pay area in which the eligible veteran resides, 
divided by 12. OPM's GS scale is an appropriate reference point for 
establishing the PCAFC stipend amounts because GS wage growth has 
historically tracked closely with median wage growth for home health 
aides, and it accounts for variations in cost-of-living across the U.S. 
Additionally, relying on a single GS grade and step across the U.S. 
would ensure more consistent, transparent, and predictable stipend 
payments for Primary Family Caregivers. Moreover, the monthly stipend 
rate would be consistent with 38 U.S.C. 1720G(a)(3)(C)(ii) and (iv), as 
it would, to the extent practicable, not be less than the monthly 
amount a commercial home health care entity would pay an individual to 
provide equivalent personal care services in the eligible veteran's 
geographic area or geographic area with similar costs of living.
    To determine whether GS wage rates track the private sector wages 
for home health aides, we analyzed data from the BLS OES and GS pay 
tables from OPM. Relying on data from 2012 to 2018, we tracked the BLS 
median wages across the U.S. for home health aides and wage growth in 
the GS scale over the same time period. Our findings indicate that BLS 
wage growth for home health aides and GS wage growth have tracked 
closely in the past both at a national level and for GS adjusted 
localities. This leads VA to presume that the GS wage rates, regardless 
of which grade and step, would grow on a similar trajectory to the 
median private wages for home health aides.
    Additionally, relying on the GS scale in VA's stipend payment 
methodology would address some of the challenges VA has experienced 
with the combined rate. First, using the GS rate would allow VA to 
easily account for variations in cost-of-living depending on the 
geographic area of the eligible veteran. Utilizing the GS scale would 
allow for automation of stipend payments and reduce the potential for 
errors associated with the manual calculations required with the 
combined rate. Unlike the hundreds of geographic areas associated with 
the combined rate, for 2020, there are fifty-three locality pay tables 
for designated geographic areas, which include 50 metropolitan locality 
pay areas, the rest of the United States, Alaska, and Hawaii. VA would 
apply the GS-4, step 1 rate applicable to the eligible veteran's 
geographic area of residence using OPM's locality area designations. 
Second, using the GS scale would cause less fluctuation in monthly 
personal caregiver stipends than the combined rate because wages for a 
particular grade and step do not typically decrease. It would also 
ensure there is transparency with eligible veterans and Family 
Caregivers, as the rates are published and updated on an annual basis 
by OPM. OPM's GS rates are published annually and can be found at 
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/.
    In determining the appropriate GS grade and step for stipend 
payments, we assessed the 2018 BLS wage rates for commercial home 
health aides, which was the most current information available from 
BLS. To ensure an accurate comparison with the 2020 GS pay scale, we 
inflated the 2018 BLS home health aide wage rates to 2020 dollars. We 
found that for 2020, the BLS national median wage for home health aides 
is equivalent to the base GS rate at grade 3, step 3 (without a 
locality pay adjustment). Our findings also reflect

[[Page 13383]]

that the 2020 GS rate at grade 3, step 3 is representative of the BLS 
median wage for home health aides in nearly all geographic areas. While 
this is not true for every locality, this would mean that in most U.S. 
geographic areas for 2020, stipend payments based on the GS rate at 
grade 3, step 3 would be equal to or higher than the BLS median wage 
for home health aides in the same geographic areas.
    For those geographic areas where the 2020 GS rate at grade 3, step 
3 was less than the inflation-adjusted BLS median wage for home health 
aides, we considered applying a unique GS grade and step based on the 
median home health aide wage rate in each of those geographic areas. 
However, we determined that would not be appropriate or practicable. As 
noted above, VA has found that historically the BLS rates for home 
health aides have experienced drastic fluctuations across the country 
in both increases and decreases. Additionally, there has been variation 
in the level of growth from year to year across the U.S. and in each GS 
locality pay area, with some year's wages growing faster or slower than 
in the previous years. Therefore, point-in-time comparisons between the 
GS rates and the median home health aide wages in the future may 
reflect the same or other geographic areas where the median wage for 
home health aides is higher or lower than the applicable GS rate. It 
would not be practicable to adjust the GS grade and step for a 
particular geographic area every time there is new data reflecting a 
higher or lower median wage rate relative to the applicable GS rate. 
Moreover, wage data can fluctuate up or down in one year, but not 
indicate a continuing trend.
    Because VA cannot predict over time which localities will have 
higher home health aide wage rates than the GS rate at grade 3, step 3, 
and which GS grade and step will be most equivalent to the median rate 
in those areas, we propose to use the slightly higher GS rate at grade 
4, step 1 for all localities. Although there would still be certain 
areas where the 2020 GS rate at grade 4, step 1 is lower than the 
inflation-adjusted BLS median wage for home health aides, we reiterate 
that our findings are based only on the most current available data and 
could change when updated BLS data becomes available and based on 
changes to GS locality pay adjustments from year to year. Therefore, as 
discussed below regarding proposed Sec.  71.40(c)(4)(iv), VA would 
periodically assess the monthly stipend rate, and if appropriate, VA 
would make adjustments through future rulemaking.
    For these reasons, we believe the GS rate for grade 4, step 1 is, 
to the extent practicable, not less than the annual salary paid to home 
health aides in the commercial sector, particularly after considering 
that the monthly personal caregiver stipend is a nontaxable benefit. To 
illustrate, the 2020 base GS rate for grade 4, step 1 (without a 
locality pay adjustment) is $26,915. The 2018 BLS national median 
annual wage for a home health aide was $24,200, which after accounting 
for inflation, equates to $25,277 as of December 2019.
    Additionally, the GS rate for grade 4 is the mid-range in which VA 
hires and staffs nursing assistant positions (GS-0621). Nursing 
assistants perform similar work to that of a home health aide including 
nonprofessional nursing care work, providing support and observation, 
and monitoring behavioral changes. See OPM's Position Classification 
Standard for Nursing Assistant Series, GS-0621 at https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/standards/0600/gs0621.pdf.
    Second, we propose to establish two levels for the stipend payments 
versus the three tiers that are set forth in current Sec.  
71.40(c)(4)(iv)(A) through (C). VA has found that utilization of the 
three tiers set forth in the current regulations has resulted in 
inconsistent assignment of ``amount and degree of personal care 
services provided.'' Although VA utilizes clinical ratings to assign 
stipend amounts, there can often be little variance in the personal 
care services provided by Primary Family Caregivers between assigned 
tier levels (e.g., between tier 1 and tier 2, and between tier 2 and 
tier 3). The lack of clear thresholds that are easily understood and 
consistently applied has contributed to an emphasis on reassessment to 
ensure appropriate stipend tier assignment. To better focus on 
supporting the health and wellness of eligible veterans and their 
Family Caregivers, VA believes it is necessary to base stipend payments 
on only two levels of need that establish a clear delineation between 
the amount and degree of personal care services provided to the 
eligible veteran.
    The proposed two levels would be set forth in proposed paragraphs 
(c)(4)(i)(A)(1) and (2), and as discussed further below would, subject 
to certain exceptions, apply to Primary Family Caregivers of eligible 
veterans who meet the requirements of proposed Sec.  71.20(a). The two 
levels would align with other proposed changes in this rulemaking, 
which are aimed at targeting PCAFC to those veterans and servicemembers 
with moderate and severe needs, with the higher level paid to Primary 
Family Caregivers of eligible veterans with severe needs. Whether the 
Primary Family Caregiver qualifies for a stipend at the higher level 
would depend on whether the eligible veteran is determined to be 
``unable to self-sustain in the community'' (as that term would be 
defined in Sec.  71.15). The lower stipend level would apply to all 
other Primary Family Caregivers of eligible veterans such that the 
eligibility criteria under proposed Sec.  71.20(a) would establish 
eligibility at the lower level.
    To be determined to be ``unable to self-sustain in the community,'' 
the eligible veteran must either (1) require personal care services 
each time he or she completes three or more of the seven activities of 
daily living (ADL) listed in the definition of an inability to perform 
an activity of daily living, and be fully dependent on a caregiver to 
complete such ADLs; or (2) have a need for supervision, protection, or 
instruction on a continuous basis. The Primary Family Caregiver of an 
eligible veteran meeting both of these criteria would also qualify for 
the higher-level stipend, but we would only require that one of the two 
criteria be met.
    Paragraph (1) of this definition would establish the higher-level 
criteria for an eligible veteran with physical impairment, and address 
both the ``amount'' and ``degree'' of personal care services provided 
by the Family Caregiver. Unlike the eligibility criterion in proposed 
Sec.  71.20(a)(3)(i), which refers to an eligible veteran requiring 
personal care services each time he or she completes one or more ADLs 
(based on the definition of ``inability to perform an activity of daily 
living''), the higher-level criteria would state that the eligible 
veteran requires personal care services each time he or she completes 
three or more ADLs. An eligible veteran needing assistance with three 
or more ADLs would need personal care services on a more frequent 
basis, and the Family Caregiver would thus provide a greater amount of 
personal care services to the eligible veteran. Additionally, to 
qualify for the higher-level stipend on this basis, the eligible 
veteran must be fully dependent on the caregiver in three of the 
specified ADLs. This would mean that the eligible veteran is completely 
reliant on the caregiver to complete the three specified ADLs (i.e., 
those ADLs for which the eligible veteran requires personal care 
services each time he or she completes). As distinguished from a Family 
Caregiver of an eligible veteran who requires a moderate amount of 
assistance to complete an ADL, an eligible veteran at

[[Page 13384]]

this higher level would require more intensive care, and the Family 
Caregiver would thus provide a greater degree of personal care services 
to the eligible veteran. For example, an eligible veteran who has no 
use of his or her upper and lower extremities may be determined to be 
unable to self-sustain in the community based on his or her total 
dependence on a caregiver in dressing and undressing, bathing, and 
grooming, such that the eligible veteran can complete no steps of those 
tasks on his or her own. In contrast another eligible veteran may need 
help with multiple ADLs but be fully dependent on a caregiver only in 
regard to one. For example, an eligible veteran may be completely 
reliant on his or her Family Caregiver in regard to his or her 
mobility, such that he or she is fully dependent on the Family 
Caregiver every time the eligible veteran walks, transfers, stands, and 
sits. Because of his or her physical impairment, the eligible veteran 
may also require a moderate amount of personal care services from his 
or her Family Caregiver in bathing and toileting, (e.g., needs 
assistance with washing lower extremities but is independent with upper 
body washing, and needs assistance with perineal care after bowel 
movements). Because the eligible veteran can otherwise complete bathing 
and toileting without assistance (e.g., dress and undress, operate the 
faucet, and wash and clean himself or herself), the eligible veteran 
would only require a moderate amount of personal care services for 
bathing and toileting, such that he or she would be considered fully 
dependent in only one ADL, and thus not considered unable to self-
sustain in the community.
    Paragraph (2) of the ``unable to self-sustain in the community'' 
definition would establish the higher-level criteria for an eligible 
veteran with a significant cognitive, neurological, or mental health 
impairment. We would address the ``amount'' and ``degree'' of personal 
care services provided only by reference to the frequency with which 
such services are provided by the Family Caregiver. Given the varying 
types of functional impairment that can give rise to a need for 
supervision, protection, or instruction, we would not enumerate the 
specific nature or intensity of personal care services provided. 
Instead, to qualify for the higher-level stipend on this basis, the 
eligible veteran must have a need for supervision, protection, or 
instruction on a ``continuous basis.'' As distinguished from a Family 
Caregiver of an eligible veteran who requires intermittent supervision, 
protection, or instruction to maintain their personal safety on a daily 
basis (who may qualify under proposed Sec.  71.20(a)(3)(ii) based on 
the definition of ``need for supervision, protection, or 
instruction''), an eligible veteran at this higher level would require 
more frequent and possibly more intensive care on a continuous basis, 
and the Family Caregiver would thus provide a greater amount and degree 
of personal care services to the eligible veteran. In determining 
whether an eligible veteran is in need of supervision, protection or 
instruction on a continuous basis, VA would consider the extent to 
which the eligible veteran can function safely and independently in the 
absence of such personal care services, and the amount of time required 
for the Family Caregiver to provide such services to the eligible 
veteran consistent with 38 U.S.C. 1720G(a)(3)(C)(iii)(II) and (III), as 
amended by section 161(a)(4)(B) of the VA MISSION Act of 2018. For 
example, an individual with dementia who wanders, is unable to re-
orient, or engages in dangerous behaviors, may be determined to be 
unable to function safely and independently in the absence of 
continuous supervision, protection, or instruction; thus, he or she may 
be determined to be unable to self-sustain in the community. In 
contrast, an individual with dementia who only experiences changes in 
memory or behavior at certain times of the day, such as individuals who 
experience sundowning or sleep disturbances, may not be determined to 
have a need for supervision, protection, or instruction on a continuous 
basis.
    We believe these requirements would provide a clear distinction 
between eligible veterans with moderate and severe needs.
    Third, instead of basing the stipend payment on a presumed number 
of hours of caregiver assistance required by the eligible veteran, we 
propose to apply a specified percentage of the monthly stipend rate (as 
that term would be defined in Sec.  71.15). VA has found that 
calculating stipends based on a set number of hours per week of 
caregiver assistance as described in current Sec.  71.40(c)(4)(iv)(A) 
through (C) creates significant confusion and discord among Family 
Caregivers. These categories of hours were never intended to be equal 
to the number of hours of caregiving being provided but rather were 
based on a presumed level of need of the eligible veteran. See 76 FR 
26155 (May 5, 2011). Additionally, the stipend is meant to be an 
acknowledgement of the sacrifices that Primary Family Caregivers make 
to care for eligible veterans. Id. It is not and never has been VA's 
intent that the stipend amount directly correlate with a specific 
number of caregiving hours. See 80 FR 1369 (January 9, 2015). VA 
recognizes that the reference to a number of hours in the current 
regulations has caused confusion and is therefore seeking to change the 
stipend calculation to instead use a percentage of the monthly stipend 
rate.
    The percentages proposed in this rulemaking for purposes of 
paragraphs (c)(4)(i)(A) and (B), discussed further below, have been 
developed based on the hours set forth in current paragraphs 
(c)(4)(iv)(A) through (C) relative to a 40-hour total (i.e., 40 of 40 
hours, 25 of 40 hours, and 10 of 40 hours), such that proposed 
paragraphs (c)(4)(i)(B)(1) through (3) reference 100 percent, 62.5 
percent and 25 percent of the monthly stipend rate, respectively. 
Proposed paragraphs (c)(4)(i)(A)(1) and (2) reference 62.5 percent and 
100 percent of the monthly stipend rate, respectively, for consistency 
with the higher percentages in proposed paragraph (c)(4)(i)(B). Based 
on program experience, we believe these proposed percentages are 
consistent with the time and level of personal care services needed by 
an eligible veteran from a Family Caregiver. Also, as previously 
discussed, we are proposing to shift the focus of the program to those 
with moderate and severe needs and we believe 62.5 and 100 percent 
correspond to these thresholds. However, as we implement the proposed 
new stipend payment methodology, and in particular, the two-level 
stipend methodology in proposed paragraph (c)(4)(i)(A), we would 
evaluate whether the percentages should be adjusted to better and more 
accurately reflect the amount and degree of personal care services 
provided by Primary Family Caregivers of eligible veterans.
    While the changes we are proposing to the PCAFC stipend methodology 
and levels would result in an increase in stipend payments for many 
Primary Family Caregivers of legacy participants, for others, these 
changes may result in a reduction in the stipend amount that they were 
eligible to receive before the effective date of the rule. To help 
minimize the impact of such changes, we would make accommodations for 
Primary Family Caregivers of eligible veterans who meet the 
requirements of proposed Sec.  71.20(b) and (c) (i.e., legacy 
participants and legacy applicants) to ensure their stipend is not 
reduced for one year beginning on the effective date of the rule, 
except in cases where the reduction is the result of the eligible 
veteran relocating to a new address. To accomplish this, we would 
restructure paragraph (c)(4)(i), which we would title

[[Page 13385]]

``Stipend amount,'' to accommodate and describe the stipend amount for 
three cohorts of Primary Family Caregivers based on whether the 
eligible veteran meets the requirements of proposed Sec.  71.20(a); 
Sec.  71.20(b) or (c); or Sec.  71.20(a) and (b) or (c). These three 
cohorts would be described in paragraphs (c)(4)(i)(A) through (C), and 
paragraph (c)(4)(i)(D) would provide an additional special rule for 
Primary Family Caregivers of legacy participants subject to a stipend 
decrease because of our proposed changes.
    Paragraph (c)(4)(i)(A) would set forth a stipend amount for Primary 
Family Caregivers of eligible veterans who meet the requirements of 
proposed Sec.  71.20(a), that is the new PCAFC eligibility criteria for 
veterans and servicemembers proposed above. Unless eligible for a 
higher amount under another subparagraph of paragraph (c)(4)(i), such 
Primary Family Caregivers would receive a stipend equivalent to 62.5 
percent or 100 percent of the monthly stipend rate (i.e., the OPM GS 
Annual Rate for grade 4, step 1, based on the locality pay area in 
which the eligible veteran resides, divided by 12). This would 
represent the two stipend levels discussed above. The higher stipend 
level (i.e., 100 percent of the monthly stipend rate) would be applied 
if the eligible veteran is determined to be unable to self-sustain in 
the community (as that term would be defined in Sec.  71.15), and the 
lower stipend level (i.e., 62.5 percent of the monthly stipend rate) 
would apply for all other Primary Family Caregivers of eligible 
veterans. The lower level would be described in paragraph 
(c)(4)(i)(A)(1), and the higher level would be described in paragraph 
(c)(4)(i)(A)(2). Veterans and servicemembers who apply for PCAFC on or 
after the effective date of the rule who are determined to be eligible 
for PCAFC under proposed Sec.  71.20(a) would be assigned a monthly 
stipend amount pursuant to paragraphs (c)(4)(i)(A)(1) or (2).
    Paragraph (c)(4)(i)(B) would set forth a stipend amount for Primary 
Family Caregivers of eligible veterans who meet the requirements of 
proposed Sec.  71.20(b) or (c) (i.e., legacy participants and legacy 
applicants). The payment rate in paragraph (c)(4)(i)(B) would apply for 
one year beginning on the effective date of the rule and only if the 
Primary Family Caregiver is not eligible for a higher amount under 
another subparagraph of paragraph (c)(4)(i). In proposed paragraphs 
(c)(4)(i)(B)(1) through (3) we would maintain the current dependency 
determination in current paragraphs (c)(4)(i) through (iii) and the 
three-tier clinical rating in current paragraphs (c)(4)(iv)(A) through 
(C) for the Primary Family Caregivers of eligible veterans who meet the 
requirements of proposed Sec.  71.20(b) or (c) by referencing the 
clinical rating in 38 CFR 71.40(c)(4)(i) through (iii) (2019) and the 
definitions applicable to such section under 38 CFR 71.15 (2019) (i.e., 
the clinical rating and applicable definitions that were in effect on 
the day before the effective date of this rule); however, instead of 
referencing the number of hours per week of caregiver assistance in 
current paragraphs (c)(4)(iv)(A) through (C) used to calculate the 
stipend payment, we would apply a percentage of the monthly stipend 
rate (as that term would be defined in proposed Sec.  71.15). Stipends 
calculated under proposed paragraphs (c)(4)(i)(B)(1) through (3) would 
equate to 100 percent, 62.5 percent, and 25 percent of the monthly 
stipend rate, respectively, depending on the clinical rating total set 
forth in current paragraphs (c)(4)(iv)(A) through (C). Under proposed 
paragraphs (c)(4)(i)(B)(1) through (3), a clinical rating of 21 or 
higher would correspond with 100 percent of the monthly stipend rate; a 
clinical rating of 13 to 20 would correspond with 62.5 percent of the 
monthly stipend rate; and a clinical rating of 1 to 12 would correspond 
with 25 percent of the monthly stipend rate.
    Recognizing that legacy participants and legacy applicants may also 
meet the requirements of proposed Sec.  71.20(a), proposed paragraph 
(c)(4)(i)(C), would set forth the stipend amount for Primary Family 
Caregivers of eligible veterans who meet the requirements of proposed 
Sec.  71.20(a) and Sec.  71.20(b) or (c). Like with proposed paragraph 
(c)(4)(i)(B), proposed paragraph (c)(4)(i)(C) would apply for one year 
beginning on the effective date of the rule. Under proposed paragraph 
(c)(4)(i)(C), if the eligible veteran meets the requirements of 
proposed Sec.  71.20(a) and Sec.  71.20(b) or (c), the Primary Family 
Caregiver's monthly stipend would be the amount the Primary Family 
Caregiver is eligible to receive under proposed paragraph (c)(4)(i)(A) 
or (B) of this section, whichever is higher. This paragraph would also 
reference proposed Sec.  71.40(c)(4)(ii)(C)(2)(i), which as discussed 
further below, would describe the adjustment of the monthly stipend 
payments in cases where the amount under proposed paragraph 
(c)(4)(i)(A) is higher.
    In proposed paragraph (c)(4)(i)(D), which we would title ``Special 
rule for Primary Family Caregivers subject to decrease because of 
monthly stipend rate,'' we would establish a special rule for Primary 
Family Caregivers of legacy participants subject to decrease as a 
result of VA's transition from the combined rate to the new monthly 
stipend rate. This special rule would state that, notwithstanding the 
other subparagraphs of paragraph (c)(4)(i), for one year beginning on 
the effective date of the rule, if the eligible veteran meets the 
requirements of proposed Sec.  71.20(b) (i.e., legacy participants), 
the Primary Family Caregiver's monthly stipend would be not less than 
the amount the Primary Family Caregiver was eligible to receive as of 
the day before the effective date of the rule (based on the eligible 
veteran's address on record with PCAFC on such date) so long as the 
eligible veteran resides at the same address on record with PCAFC as of 
the day before the effective date of the rule. This paragraph would 
also reference proposed Sec.  71.40(c)(4)(ii)(B), which as discussed 
further below, would describe the adjustment of the monthly stipend 
payments in cases where the eligible veteran relocates to a new 
address. VA is proposing this special rule to provide legacy 
participants and their Primary Family Caregivers time to adjust to the 
proposed changes in PCAFC eligibility and the stipend payment 
methodology. If a legacy participant chooses to relocate, however, VA 
believes it is reasonable to no longer apply this special rule. This 
would include all instances in which a legacy participant relocates, no 
matter the distance between the old and new addresses and regardless of 
the potential increase or decrease in the combined rate that would 
result based on the relocation, even if only a few cents or a few 
dollars. This is because we do not want to set an arbitrary threshold 
for when a relocation would result in the ability to maintain the 
combined rate or transition to the monthly stipend rate. In some 
metropolitan areas, an eligible veteran may experience a decrease or 
increase in the combined rate by simply relocating across the street 
because the new address is in a different geographic area. To maintain 
consistency for all legacy participants who are subject to the special 
rule, any relocation would result in a transition to the monthly 
stipend rate under proposed paragraph (c)(4)(i)(A), (B), or (C). The 
special rule would be applied based on circumstances on the day before 
the effective date of the rule and a change to those circumstances 
would nullify the basis upon which the special rule would be applied. 
We note that proposed paragraph (c)(4)(i)(D) would apply only to 
Primary Family Caregivers of legacy participants, not legacy 
applicants. We believe this is reasonable

[[Page 13386]]

as the Primary Family Caregivers of legacy applicants would not be 
approved until after the effective date of the rule and would not have 
come to rely on a monthly stipend based on the combined rate.
    In the subsequent discussion, we explain how these rules would be 
applied for purposes of determining the applicable stipend amount for 
Primary Family Caregivers of legacy participants and legacy applicants. 
We emphasize that proposed paragraphs (c)(4)(i)(B) through (D)--
applicable to the Primary Family Caregivers of legacy participants and 
legacy applicants--would apply only for the one-year period beginning 
on the effective date of the rule, after which time all PCAFC stipends 
would be determined in accordance with proposed paragraph (c)(4)(i)(A). 
As explained above, we are providing a one-year transition period 
because it would allow individuals participating in PCAFC as of the day 
before the effective date of the rule to remain in the program while VA 
completes a reassessment to determine their eligibility under revised 
Sec.  71.20(a). We also emphasize, as discussed above, that legacy 
participants and legacy applicants could be revoked or discharged 
pursuant to proposed Sec.  71.45 (for reasons other than not meeting 
the proposed Sec.  71.20(a) eligibility criteria), as discussed 
elsewhere in this rulemaking, in the one-year period beginning on the 
effective date of the rule, in which case stipend payments and other 
Family Caregiver benefits would terminate as set forth in proposed 
Sec.  71.45.
    Upon the effective date of the rule, VA would calculate the monthly 
stipend rate under proposed paragraph (c)(4)(i)(B) for all legacy 
participants based on their tier as assigned under current paragraphs 
(c)(4)(iv)(A) through (C) before the effective date of the rule. It is 
not VA's intent to reevaluate the clinical ratings of legacy 
participants based on the dependency determination in current 
paragraphs (c)(4)(i) through (iii), but rather continue to apply the 
rating and tier level that applied to each legacy participant as of the 
day before the effective date of the rule. Thus, VA would apply 
proposed paragraph (c)(4)(i)(B) to mean that the three-tier clinical 
rating in current paragraphs (c)(4)(iv)(A) through (C) assigned for the 
legacy participant on the day before the effective date of the rule 
would continue to be applied for purposes of determining his or her 
Primary Family Caregiver's stipend amount under proposed paragraphs 
(c)(4)(i)(B)(1) through (3). As calculated, the stipend amount for 
Primary Family Caregivers of legacy participants would correspond to a 
percentage of the monthly stipend rate (100 percent, 62.5 percent, or 
25 percent).
    VA would then compare the monthly stipend amount calculated under 
proposed paragraph (c)(4)(i)(B) to the amount the Primary Family 
Caregiver was eligible to receive on the day before the effective date 
of the rule (based on the eligible veteran's address on record with 
PCAFC on such date). If the amount the Primary Family Caregiver was 
eligible to receive on the day before the effective date of the rule is 
higher, then pursuant to proposed paragraph (c)(4)(i)(D), the Primary 
Family Caregiver would continue to receive that amount so long as the 
eligible veteran resides at the same address on record with PCAFC as of 
the day before the effective date of the rule. If the monthly stipend 
payment under proposed paragraph (c)(4)(i)(B) is not less than the 
amount the Primary Family Caregiver was eligible to receive on the day 
before the effective date of the rule, the Primary Family Caregiver 
would be transitioned to a monthly stipend payment under proposed 
paragraph (c)(4)(i)(B) effective as of the date of the rule.
    For example, if on the day before the effective date of the rule a 
Primary Family Caregiver is eligible to receive a monthly stipend for a 
legacy participant who has a clinical rating of 21 or higher under 
current Sec.  71.40(c)(4)(iv)(A) and lives in locality A, VA would 
compare that amount to the monthly stipend rate in proposed Sec.  
71.40(c)(4)(i)(B)(1) for locality A (i.e., 100 percent of the GS rate 
for grade 4, step 1 in the locality pay area of locality A). If the 
monthly stipend rate in proposed Sec.  71.40(c)(4)(i)(B)(1) is lower, 
then the Primary Family Caregiver would continue to receive the same 
monthly stipend payment he or she was eligible to receive on the day 
before the effective date of the rule, as long as the legacy 
participant does not relocate to a new address. If the legacy 
participant relocates to a different address during the one-year period 
beginning on the effective date of the rule, the proposed special rule 
would no longer apply, and the Primary Family Caregiver would 
transition to a monthly stipend payment determined in accordance with 
proposed paragraph (c)(4)(i)(A) or (B), as discussed further below.
    For legacy applicants, VA would conduct the dependency 
determination in current paragraphs (c)(4)(i) through (iii) and 
calculate the three-tier clinical rating in current paragraphs 
(c)(4)(iv)(A) through (C) at the time of evaluating the joint 
application. However, the clinical ratings would correspond to a 
percent of the monthly stipend rate as set forth in proposed paragraph 
(c)(4)(i)(B) and a stipend amount would be assigned accordingly. After 
the stipend amount is calculated for legacy applicants during VA's 
evaluation of the joint application, it is not VA's intent to 
subsequently recalculate the clinical ratings of legacy participants 
based on the dependency determination in current paragraphs (c)(4)(i) 
through (iii) in the one-year period following the effective date of 
the rule. This means that the three-tier clinical rating in current 
paragraphs (c)(4)(iv)(A) through (C) assigned for a legacy applicant 
during VA's evaluation of the joint application would continue to apply 
for purposes of determining his or her Primary Family Caregiver's 
stipend amount under new paragraphs (c)(4)(i)(B)(1) through (3) for the 
one-year period following the effective date of the rule.
    Accordingly, upon the effective date of the rule, legacy 
participants would be assigned a stipend amount under proposed 
paragraph (c)(4)(i)(B) or (D); and on the effective date of the rule or 
shortly thereafter, legacy applicants would be assigned a stipend 
amount under proposed paragraph (c)(4)(i)(B). However, we recognize 
that legacy participants and legacy applicants may also qualify under 
the proposed eligibility criteria in proposed Sec.  71.20(a), which 
would trigger a new stipend payment determination under proposed 
paragraph (c)(4)(i)(A). The two-level stipend payment methodology in 
proposed paragraph (c)(4)(i)(A) would be based on whether the eligible 
veteran is determined to be unable to self-sustain in the community (as 
such term would be defined in Sec.  71.15) whereas the stipend amounts 
set forth in proposed paragraphs (c)(4)(i)(B) and (D) would be based on 
the three-tier clinical ratings in current paragraphs (c)(4)(i) through 
(iv). Therefore, the new two-level assignment may not directly align 
with three-tier assignment, and for legacy participants and legacy 
applicants meeting the new criteria in proposed Sec.  71.20(a), the new 
two-level assignment may result in a higher or lower stipend payment. 
For example, a legacy participant whose assigned stipend amount is 62.5 
percent of the monthly stipend rate under proposed paragraph 
(c)(4)(i)(B)(2) (because the legacy participant's clinical rating 
presumes he or she requires 25 hours of caregiver assistance per week), 
may qualify for the higher 100 percent of the monthly stipend rate in 
proposed paragraph (c)(4)(i)(A)(2) (because he or she is determined to 
be unable to self-

[[Page 13387]]

sustain in the community). Alternatively, a legacy participant whose 
assigned stipend amount is 100 percent of the monthly stipend rate 
under proposed paragraph (c)(4)(i)(B)(1) (because his or her clinical 
rating presumes he or she requires 40 hours of caregiver assistance per 
week), may only qualify for the lower 62.5 percent of the monthly 
stipend rate in proposed paragraph (c)(4)(i)(A)(1) (because the legacy 
participant is not determined to be unable to self-sustain in the 
community). Determination of the applicable stipend amount under 
proposed paragraph (c)(4)(i)(A) for legacy participants and legacy 
applicants meeting the requirements of proposed Sec.  71.20(a) would be 
adjudicated during VA's reassessment of legacy participants and legacy 
applicants under proposed Sec.  71.30(e)(1).
    As discussed above with respect to proposed Sec.  71.30(e)(1), 
legacy participants and legacy applicants would be reassessed by VA 
within the one-year period beginning on the effective date of the rule 
to determine whether they meet the requirements of proposed Sec.  
71.20(a). If a legacy participant or legacy applicant is found to meet 
the requirements of proposed Sec.  71.20(a), VA would determine the 
applicable stipend amount under proposed paragraph (c)(4)(i)(A). If the 
stipend amount under proposed paragraph (c)(4)(i)(A) (i.e., the two-
level stipend) is less than the amount the Primary Family Caregiver was 
eligible to receive under proposed paragraph (c)(4)(i)(B) or (D) (i.e., 
the three-tier stipend), under proposed paragraphs (c)(4)(i)(C) and 
(D), the Primary Family Caregiver would continue to receive the higher 
stipend under proposed paragraph (c)(4)(i)(B) or (D). If the stipend 
amount under proposed paragraph (c)(4)(i)(A) is not less than the 
amount the Primary Family Caregiver was eligible to receive under 
proposed paragraph (c)(4)(i)(B) or (D), the Primary Family Caregiver 
would transition to the higher rate in proposed paragraph (c)(4)(i)(A). 
If the legacy participant or legacy applicant is determined to not meet 
the requirements of proposed Sec.  71.20(a) pursuant to the 
reassessment under proposed Sec.  71.30(e)(1), the Primary Family 
Caregiver of the legacy participant or legacy applicant would continue 
to receive a stipend pursuant to the rate in proposed paragraph 
(c)(4)(i)(B) or (D).
    As illustrated in this discussion, paragraphs (c)(4)(i)(A) through 
(D) can apply to the same legacy participant or legacy applicant at 
different points during the one-year period beginning on the effective 
date of the rule, and VA would apply the rules of each paragraph 
depending on the applicable circumstances. For example, the special 
rule in proposed paragraph (c)(4)(i)(D) would no longer apply if the 
legacy participant relocates to a new address during the one-year 
period, but the legacy participant could move before or after a 
reassessment is conducted under proposed Sec.  71.30. In the scenario 
where a Primary Family Caregiver is continuing to receive the same 
monthly stipend payment he or she was eligible to receive on the day 
before the effective date of the rule pursuant to proposed paragraph 
(c)(4)(i)(D), and the legacy participant relocates to a new location 
prior to being reassessed under proposed Sec.  71.30(e), then the 
Primary Family Caregiver would be transitioned to the monthly stipend 
rate under proposed paragraph (c)(4)(i)(B) based on the legacy 
participant's new geographic location. Upon reassessment, if the legacy 
participant is determined to meet the requirements of proposed Sec.  
71.20(a), VA would compare and apply the higher of the monthly stipend 
rates in proposed paragraphs (c)(4)(i)(A) and (B) based on the legacy 
participant's new geographic area of residence. If instead the 
reassessment is performed before the legacy participant relocates to a 
new address, and upon reassessment, the legacy participant is 
determined to meet the requirements of proposed Sec.  71.20(a), VA 
would compare and apply the higher of the stipend rates in proposed 
paragraphs (c)(4)(i)(A) and (D). If the stipend rate in proposed 
paragraph (c)(4)(i)(D) is higher, the Primary Family Caregiver of the 
legacy applicant would continue to receive that rate until the legacy 
applicant relocates to a new address. Upon relocating to the new 
address, the stipend rate in proposed paragraph (c)(4)(i)(D) would no 
longer apply, and VA would compare and apply the higher of the monthly 
stipend rates in proposed paragraphs (c)(4)(i)(A) and (B) in accordance 
with proposed paragraph (c)(4)(i)(C).
    Circumstances beyond the reassessments or relocating could also 
affect monthly stipend payments under these proposed requirements. For 
example, if the GS rate for grade 4, step 1 is adjusted in January 
following the effective date of the rule, for Primary Family Caregivers 
continuing to receive stipend payments pursuant to proposed paragraph 
(c)(4)(i)(D), VA would again calculate the monthly stipend amount that 
the Primary Family Caregivers would be eligible to receive under 
proposed paragraph (c)(4)(i)(A) or (B) (depending on whether the 
proposed Sec.  71.30(e) reassessment had been completed), and compare 
that amount to the amount the Primary Family Caregiver was eligible to 
receive on the day before the effective date of the rule (based on the 
eligible veteran's address on record with PCAFC on such date). (As 
noted in one of the examples above, the new comparison between the 
rates in proposed paragraphs (c)(4)(i)(A) and (D) would occur if the 
reassessment resulted in a determination that the legacy participant 
meets the requirements of proposed Sec.  71.20(a) but the Primary 
Family Caregiver's stipend under proposed paragraph (c)(4)(i)(A) would 
have been less than what he or she was eligible to receive under 
proposed paragraph (c)(4)(i)(D).) If the amount the Primary Family 
Caregiver was eligible to receive on the day before the effective date 
of the rule is still higher than the new amount calculated under 
proposed paragraph (c)(4)(i)(A) or (B), as appropriate, then pursuant 
to proposed paragraph (c)(4)(i)(D), the Primary Family Caregiver would 
continue to receive that amount so long as the eligible veteran resides 
at the same address on record with PCAFC as of the day before the 
effective date of the rule. If the monthly stipend payment under 
proposed paragraph (c)(4)(i)(A) or (B) is determined to be not less 
than the Primary Family Caregiver was eligible to receive on the day 
before the effective date of the rule, the Primary Family Caregiver 
would be transitioned to a monthly stipend payment under proposed 
paragraph (c)(4)(i)(A) or (B), as applicable.
    Also, we note that once the stipend amount for a Primary Family 
Caregiver is transitioned from proposed paragraph (c)(4)(i)(D) to 
another stipend amount under proposed paragraph (c)(4)(i)(A) or (B), 
the Primary Family Caregiver's monthly stipend payment would not revert 
back to the amount in proposed paragraph (c)(4)(i)(D).
    In short, it is our intent that the stipend amount for the Primary 
Family Caregivers of legacy participants and legacy applicants 
generally remain unchanged during the one-year period beginning on the 
effective date of the rule, unless it is to their benefit, and so long 
as they do not relocate to a new address. We believe this is fair and 
reasonable to ensure a transition period for Primary Family Caregivers 
of eligible veterans who meet the requirements of proposed Sec.  
71.20(b) or (c). Primary Family Caregivers of legacy participants in 
particular have come to rely on the monthly stipend payments based on 
the combined rate authorized under current paragraph (c)(4). Our 
proposed changes would allow time for VA to communicate potential 
changes to

[[Page 13388]]

affected individuals and assist them in preparing for any potential 
reduction in their stipend payment before such changes take effect.
    As previously mentioned, we propose to revise current paragraph 
(c)(4)(ii) to address adjustments to stipend payments and would title 
it ``Adjustments to stipend payments.'' Specifically, this paragraph 
would address adjustments resulting from OPM's updates to the GS annual 
rate at grade 4, step 1, the eligible veteran relocating to a new 
address, and reassessments under proposed Sec.  71.30.
    Paragraph (c)(4)(ii)(A) would state that adjustments to stipend 
payments that result from OPM's updates to the GS annual rate for grade 
4, step 1 for the locality pay area in which the eligible veteran 
resides, would take effect as of the date the update to such rate is 
made effective by OPM. This would ensure VA adjusts PCAFC stipend 
amounts consistent with how the Federal Government makes changes to 
these salary rates for its employees. The GS pay schedule is usually 
adjusted annually each January based on nationwide changes in the cost 
of wages and salaries of private industry workers. See OPM General 
Schedule Overview, General Schedule Classification and Pay, https://www.opm.gov/policy-data-oversight/pay-leave/pay-systems/general-schedule/. Notification of any increase in the GS rates occurs once the 
President signs an Executive Order confirming the GS rates. This 
Executive Order is usually signed in December of every year, and any 
changes in the GS rates are effective the following January.
    Paragraph (c)(4)(ii)(B) would state that adjustments to stipend 
payments that result from the eligible veteran relocating to a new 
address are effective the first of the month following the month in 
which VA is notified that the eligible veteran has relocated to a new 
address. For example, if an eligible veteran notifies VA on August 15th 
that they have relocated, the effective date for any resulting changes 
to the stipend amount would take effect on September 1st. Paragraph 
(c)(4)(ii)(B) would also state that VA must receive notification within 
30 days from the date of relocation. For example, if an eligible 
veteran relocates on June 15th, VA must be notified by July 15th of 
their relocation. Furthermore, paragraph (c)(4)(ii)(B) would state that 
if VA does not receive notification within 30 days from the date of 
relocation, VA would seek to recover overpayments of benefits under 
paragraph (c)(4) of this section back to the latest date on which the 
adjustment would have been effective if VA had been notified within 30 
days from the date of relocation, as provided in proposed Sec.  71.47, 
which is discussed further below. For example, if an eligible veteran 
relocates to a geographic area with a lower monthly stipend rate (based 
on the GS rate for grade 4, step 1 in the new locality) on January 15th 
but does not notify VA until June 15th, VA may seek to recover 
overpayments of benefits back to March 1st. In this example, VA should 
have been notified by February 14th such that March 1st would be the 
latest date on which the adjustment would have been effective, assuming 
that VA had been notified within 30 days from the date of relocation. 
We note that VA would not make retroactive payments to account for 
stipend increases as a result of an eligible veteran's relocation. For 
example, if an eligible veteran relocates to a geographic area with a 
higher monthly stipend rate (based on the GS rate for grade 4, step 1 
in the new locality) on January 15th but does not notify VA until June 
15th, the Primary Family Caregiver's monthly stipend adjustment would 
take effect on July 1st. We believe it is fair and reasonable to 
request that VA be notified within 30 days of relocation and would not 
provide retroactive payments in these circumstances. If relocating to a 
geographic area with a higher monthly stipend rate (based on the GS 
rate for grade 4, step 1 in the new locality), it would behoove the 
eligible veteran or Family Caregiver to notify VA as soon as possible 
to start receiving the increased stipend payment. Recovery of 
overpayments would be consistent with the Federal Claims Collection 
Standards. We note that proposed paragraph (c)(4)(ii)(B) would not 
modify or expand VA's legal authority to initiate collections, but 
would help ensure that PCAFC participants are on notice of the 
potential for collections actions by VA under this paragraph.
    Proposed paragraph (c)(4)(ii)(C) would establish how monthly 
stipends may be adjusted pursuant to reassessments conducted by VA 
under proposed Sec.  71.30. Proposed paragraph (c)(4)(ii)(C)(1) would 
focus on eligible veterans who meet the requirements of proposed Sec.  
71.20(a) only (i.e., eligible veterans in PCAFC who applied on or after 
the effective date of the rule). In paragraph (c)(4)(ii)(C)(1)(i), we 
propose that if a reassessment conducted pursuant to proposed Sec.  
71.30 results in an increase in the monthly stipend, then the increase 
would take effect as of the date of the reassessment. This would arise 
if, upon reassessment, an eligible veteran is determined to be unable 
to self-sustain in the community (as that term would be defined in 
Sec.  71.15), but had not previously been determined to be unable to 
self-sustain in the community. In paragraph (c)(4)(ii)(C)(1)(ii), we 
propose that in the case of a reassessment that results in a decrease 
in the monthly stipend payment, the decrease would take effect as of 
the effective date provided in VA's final notice of such decrease to 
the eligible veteran and Primary Family Caregiver. This would arise if 
an eligible veteran who had previously been determined to be unable to 
self-sustain in the community (as that term would be defined in Sec.  
71.15), was, upon reassessment, determined to not meet that threshold. 
We would additionally state that the effective date of the decrease 
will be no earlier than 60 days after VA provides advanced notice of 
its findings to the eligible veteran and Primary Family Caregiver. 
Advanced notice of findings would include the basis upon which VA has 
made the determination to decrease the monthly stipend payment. 
Additional discussion of VA's proposed advanced notice requirements is 
below in the context of proposed changes to Sec.  71.45.
    In proposed paragraph (c)(4)(ii)(C)(2), we would focus on 
adjustments to monthly stipends pursuant to reassessments conducted by 
VA under proposed Sec.  71.30(e) for eligible veterans who meet the 
requirements of proposed Sec.  71.20(b) or (c) (i.e., legacy 
participants and legacy applicants receiving monthly stipends pursuant 
to proposed Sec.  71.40(c)(4)(i)(B) or (D)). As discussed above, for 
legacy participants and legacy applicants meeting the new criteria in 
proposed Sec.  71.20(a), their two-level assignment (based on whether 
the eligible veteran is determined to be unable to self-sustain in the 
community (as that term would be defined in Sec.  71.15)) may not 
directly align with their three-tier assignment (based on the eligible 
veteran's clinical rating in current Sec.  71.40(c)(4)(iv)(A) through 
(C)) and therefore may result in a higher or lower stipend payment upon 
reassessment. In paragraph (c)(4)(ii)(C)(2)(i), we propose that if the 
reassessment results in an increase in the monthly stipend, then the 
increase would take effect as of the date of the reassessment. 
Additionally, the Primary Family Caregiver would be paid the difference 
between the amount the Primary Family Caregiver is eligible to receive 
under paragraph (c)(4)(i)(A) of this section and the amount under 
paragraph (c)(4)(i)(B) or (D) of this section, whichever the Primary 
Family Caregiver received for the time period beginning on the 
effective date of the

[[Page 13389]]

rule up to the date of the reassessment, based on the eligible 
veteran's address on record with PCAFC on the date of the reassessment 
and the monthly stipend rate on such date. For example, if the 
effective date of the rule is April 1, 2020, and a legacy participant 
or legacy applicant is reassessed on August 1, 2020, and determined to 
meet the requirements of proposed Sec.  71.20(a), and the reassessment 
results in an increase in the monthly stipend payment, the increase 
would become effective on August 1, 2020, and the Primary Family 
Caregiver would receive retroactive payment for the increase back to 
April 1, 2020, based on the address of the eligible veteran as of 
August 1, 2020. The purpose of providing retroactive payments back to 
the effective date of the rule would be to recognize that not all 
legacy participants and legacy applicants would be reassessed at one 
time, and therefore would be reassessed at different points during the 
first year following the effective date of the rule. Retroactive 
payments would ensure that the Primary Family Caregivers of all legacy 
participants and legacy applicants meeting the requirements of proposed 
Sec.  71.20(a) receive the benefit of any stipend increase as of the 
effective date of the rule--regardless of when the reassessment is 
completed during the one-year period following the effective date of 
the rule.
    The retroactive payment would consist of the difference between the 
new stipend amount authorized under proposed paragraph (c)(4)(i)(A) and 
the amount under proposed paragraph (c)(4)(i)(B) or (D), whichever the 
Primary Family Caregiver received beginning on the effective date of 
the rule up to the date of the reassessment, except that the amount 
under paragraph (c)(4)(i)(B) or (D), as applicable, would be based on 
the address of the eligible veteran and the monthly stipend rate on the 
date of the reassessment. We believe using the address on record with 
PCAFC on the date of the reassessment is reasonable because of the 
significant administrative complexity that would be required to track 
the relocation of legacy participants and legacy applicants for 
purposes of these retroactive payments. We have found that eligible 
veterans and their Family Caregivers frequently relocate, and tracking 
every address on record with PCAFC in order to calculate prorated 
retroactive stipend payments based upon differing localities would be 
overly burdensome. Similarly, we believe using the monthly stipend rate 
on the date of the reassessment would be reasonable. While we recognize 
that OPM may adjust the GS rate at some point during the one-year 
transition period, which could impact the amount of the retroactive 
payment under proposed paragraph (c)(4)(ii)(C)(2)(i), we would not 
delay reassessments in anticipation of an adjustment to the GS rate or 
undertake an administratively complex process of reconciling 
previously-made retroactive payments against a new GS rate.
    Furthermore, we would state that if more than one reassessment is 
completed during the one-year period beginning on the effective date of 
the rule, the retroactive payment would only apply if the first 
reassessment during the one-year period beginning on the effective date 
of the rule results in an increase in the monthly stipend payment, and 
that retroactive payments only apply as a result of the first 
assessment. Any subsequent reassessment completed after the initial 
reassessment of a legacy participant or legacy applicant during the 
first year following the effective date of the rule would likely be 
based on changes in the circumstances of the legacy participant or 
legacy applicant, such that retroactive payments back to a date before 
a previous reassessment would not be warranted.
    Furthermore, as previously explained with respect to proposed Sec.  
71.30(e)(2), if an individual no longer meets the requirements of 
proposed Sec.  71.20(b) or (c) before a reassessment is completed, the 
provisions of proposed Sec.  71.40(c)(4)(ii)(C)(2)(i) would no longer 
apply. This means that any retroactive increase that would have been 
applied had the discharge or revocation not occurred before the 
reassessment would not be applied.
    In proposed paragraph (c)(4)(ii)(C)(2)(ii), we propose that in the 
case of a reassessment that results in a decrease in the monthly 
stipend payment for a legacy participant or legacy applicant who meets 
the requirements of proposed Sec.  71.20(a), the decreased stipend 
amount would take effect as of the effective date provided in VA's 
final notice of such decrease to the eligible veteran and Primary 
Family Caregiver. We would also state that the effective date of the 
decrease will be no earlier than 60 days after the date that is one 
year after the effective date of the rule. Additionally, we would state 
that on the date that is one year after the effective date of the rule, 
VA will provide advanced notice of its findings to the eligible veteran 
and Primary Family Caregiver. Advanced notice of findings would include 
the basis upon which VA has made the determination to decrease the 
monthly stipend payment. Additional discussion of VA's proposed 
advanced notice requirements is below in the context of proposed 
changes to Sec.  71.45. We recognize that changes to the PCAFC 
eligibility criteria and stipend determinations would mean that some 
Primary Family Caregivers of legacy participants and legacy applicants 
would have their stipends reduced after the one-year transition period. 
To help minimize the negative impact of such changes, we would not 
apply the decrease until the end of the one-year period and after a 60-
day notice period. For example, if the effective date of the rule is 
April 1, 2020, and a legacy participant or legacy applicant is 
reassessed on August 1, 2020, and determined to meet the requirements 
of proposed Sec.  71.20(a), but the reassessment results in a decrease 
in the monthly stipend payment, an advanced notice of VA's findings 
would be provided on April 1, 2021, and the decreased stipend payment 
would become effective no earlier than May 30, 2021. This paragraph 
would also apply to any decreases resulting from any additional 
reassessment(s) that may occur following the initial reassessment of 
the legacy participant or legacy applicant during the one-year period 
beginning on the effective date of the rule. We note VA would 
communicate the results of the reassessment with eligible veterans and 
Family Caregivers at the time of the reassessments to ensure that the 
eligible veterans and Family Caregivers receive as much notice as 
possible in advance of the advanced notice described in proposed 
paragraph (c)(4)(ii)(C)(2)(ii).
    We would also add a note to proposed paragraph (c)(4)(ii)(C)(2) 
explaining that if an eligible veteran who meets the requirements of 
proposed Sec.  71.20(b) or (c) is determined, pursuant to a 
reassessment conducted by VA under proposed Sec.  71.30, to not meet 
the requirements of proposed Sec.  71.20(a), the monthly stipend would 
not be increased or decreased pursuant to proposed paragraph 
(c)(4)(ii)(C)(2)(i) or (ii). The effective date for discharge would be 
no earlier than the date that is 60 days after the date that is one 
year after the effective date of rule, unless the Family Caregiver is 
revoked or discharged pursuant to Sec.  71.45 before then. The eligible 
veteran and Family Caregiver would receive advanced notice of VA's 
findings one year after the effective date of the rule. We note that VA 
would communicate the results of the reassessment to eligible veterans 
and Family Caregivers at the time of the reassessments to ensure that 
the eligible veterans and Family Caregivers receive

[[Page 13390]]

as much notice as possible in advance of the advanced notice described 
in the proposed note to paragraph (c)(4)(ii)(C)(2). Additional 
discussion of VA's proposed advanced notice requirements is below in 
the context of proposed changes to Sec.  71.45.
    As previously explained elsewhere in this rulemaking, if a legacy 
participant or legacy applicant is revoked or discharged pursuant to 
proposed Sec.  71.45 (for reasons other than not meeting proposed Sec.  
71.20(a) eligibility criteria) prior to a reassessment or otherwise in 
the one-year period beginning on the effective date of the rule, or 
before the end of the 60-day notice period that would be provided in 
paragraph (c)(4)(ii)(C)(2)(ii), stipends and other Family Caregiver 
benefits would terminate as set forth in proposed Sec.  71.45.
    The following examples illustrate how the requirements in proposed 
paragraph (c)(4)(ii)(C)(2) would be implemented. We anticipate that 
most legacy participants and legacy applicants would be reassessed only 
once during the transition year, but for illustrative purposes below, 
our examples include multiple reassessments during the transition year. 
In these examples, we refer to percentages of the ``GS rate for grade 
4, step 1'' for clarity, but as noted in the proposed definition of 
``monthly stipend rate,'' the monthly stipend would be calculated by 
dividing the GS annual rate for grade 4, step 1 (for the locality pay 
area in which the eligible veteran resides) by 12.
    Example 1: A Primary Family Caregiver for a legacy applicant who 
has a clinical rating of 1 to 12 under current Sec.  71.40(c)(4)(iv)(C) 
would receive a monthly stipend rate in proposed Sec.  
71.40(c)(4)(i)(B)(3) (i.e., 25 percent of the GS rate for grade 4, step 
1 in the applicable locality pay area). If the effective date of the 
rule is April 1, 2020 and the legacy applicant is reassessed on August 
1, 2020 and determined to meet the requirements of proposed Sec.  
71.20(a) but not determined to be unable to self-sustain in the 
community, then the Primary Family Caregiver would transition to the 
monthly stipend rate under proposed Sec.  71.40(c)(4)(i)(A)(1) (i.e., 
62.5 percent of the GS rate for grade 4, step 1 in the applicable 
locality pay area) effective on August 1, 2020, and receive retroactive 
payments for the difference between 62.5 percent of the GS rate for 
grade 4, step 1 and 25 percent of the GS rate for grade 4, step 1 for 
four months (April-July) based on the legacy applicant's address on 
record with PCAFC as of August 1, 2020. If a determination is made and 
documented by VA pursuant to proposed Sec.  71.30(b), that the legacy 
applicant be reassessed on a more than annual basis, and another 
reassessment is completed on November 1, 2020 that results in another 
increase in the monthly stipend amount (i.e., because the eligible 
veteran is determined to be unable to self-sustain in the community), 
then the Primary Family Caregiver would transition to the monthly 
stipend rate under proposed Sec.  71.40(c)(4)(i)(A)(2) (i.e., 100 
percent of the GS rate for grade 4, step 1 in the applicable locality 
pay area) effective on November 1, 2020, but would not receive any 
additional retroactive payment for the difference between 100 percent 
of the GS rate for grade 4, step 1 and 62.5 percent of the GS rate for 
grade 4, step 1 for August through October.
    Example 2: A Primary Family Caregiver for a legacy applicant who 
has a clinical rating of 1 to 12 under current Sec.  71.40(c)(4)(iv)(C) 
would receive a monthly stipend rate in proposed Sec.  
71.40(c)(4)(i)(B)(3) (i.e., 25 percent of the GS rate for grade 4, step 
1 in the applicable locality pay area). If the effective date of the 
rule is April 1, 2020 and the legacy applicant is reassessed on August 
1, 2020 and determined to meet the requirements of proposed Sec.  
71.20(a) and is determined to be unable to self-sustain in the 
community, then the Primary Family Caregiver would transition to the 
monthly stipend rate under proposed Sec.  71.40(c)(4)(i)(A)(2) (i.e., 
100 percent of the GS rate for grade 4, step 1 in the applicable 
locality pay area) effective August 1, 2020, and receive retroactive 
payments for the difference between 100 percent of the GS rate for 
grade 4, step 1 and 25 percent of the GS rate for grade 4, step 1 for 
four months (April-July) based on the legacy applicant's address on 
record with PCAFC as of August 1, 2020. If a determination is made and 
documented by VA pursuant to proposed Sec.  71.30(b), that the legacy 
applicant be reassessed on a more than annual basis, and another 
reassessment is completed on November 1, 2020, that results in a 
decrease in the monthly stipend amount (i.e., the eligible veteran is 
no longer determined to be unable to self-sustain in the community), 
then the Primary Family Caregiver would continue to receive his or her 
monthly stipend rate under proposed Sec.  71.40(c)(4)(i)(A)(2) (i.e., 
100 percent of the GS rate for grade 4, step 1 in the applicable 
locality pay area). On April 1, 2021 (one year after the effective date 
of the rule), VA would provide advanced notice of the decrease to the 
eligible veteran and Primary Family Caregiver. The new monthly stipend 
rate in Sec.  71.40(c)(4)(i)(A)(1) (i.e., 62.5 percent of the GS rate 
for grade 4, step 1 in the applicable locality pay area) would go into 
effect no earlier than May 30, 2021 (60 days from April 1, 2021--the 
date the advanced notice is provided). The effective date of the 
decrease would be provided in VA's final notice of such decrease.
    Example 3: A Primary Family Caregiver for a legacy participant who 
has a clinical rating of 13 to 20 under current Sec.  
71.40(c)(4)(iv)(B) would be eligible to receive a monthly stipend rate 
in proposed Sec.  71.40(c)(4)(i)(B)(2) (i.e., 62.5 percent of the GS 
rate for grade 4, step 1 in the applicable locality pay area); however, 
if that rate is lower than the amount the Primary Family Caregiver was 
eligible to receive on the day before the effective date of the rule 
based on the combined rate, then pursuant to proposed Sec.  
71.40(c)(4)(i)(D), the Primary Family Caregiver would continue to 
receive the same monthly stipend payment he or she was eligible to 
receive on the day before the effective date of the rule. If the 
effective date of the rule is April 1, 2020, and the legacy participant 
is reassessed on August 1, 2020, and determined to meet the 
requirements of proposed Sec.  71.20(a), but not determined to be 
unable to self-sustain in the community, then the Primary Family 
Caregiver would be eligible to receive the monthly stipend rate under 
proposed Sec.  71.40(c)(4)(i)(A)(1) (i.e., 62.5 percent of the GS rate 
for grade 4, step 1 in the applicable locality pay area). However, if 
62.5 percent of the GS rate for grade 4, step 1 in the applicable 
locality pay area is lower than the monthly stipend payment he or she 
was eligible to receive on the day before the effective date of the 
rule, the Primary Family Caregiver would continue to receive a monthly 
stipend based on the combined rate. If a determination is made and 
documented by VA pursuant to proposed Sec.  71.30(b), that the legacy 
applicant be reassessed on a more than annual basis, and another 
reassessment is completed on November 1, 2020, that results in an 
increase in the monthly stipend amount (i.e., the eligible veteran is 
determined to be unable to self-sustain in the community) and the new 
monthly stipend rate is higher than the monthly stipend based on the 
combined rate, then the Primary Family Caregiver would transition to 
the monthly stipend rate under proposed Sec.  71.40(c)(4)(i)(A)(2) 
(i.e., 100 percent of the GS rate for grade 4, step 1 in the applicable 
locality pay area) effective

[[Page 13391]]

November 1, 2020, but would not receive retroactive payments for the 
difference between 100 percent of the GS rate for grade 4, step 1 and 
the stipend the Primary Family Caregiver received based on the combined 
rate (for three months (August-October) or for seven months (April-
October)).
    Example 4: A Primary Family Caregiver for a legacy participant who 
has a clinical rating of 1 to 12 under current Sec.  71.40(c)(4)(iv)(C) 
would be eligible to receive a monthly stipend rate in proposed Sec.  
71.40(c)(4)(i)(B)(3) (i.e., 25 percent of the GS rate for grade 4, step 
1 in the applicable locality pay area); however, because that rate is 
lower than the amount the Primary Family Caregiver was eligible to 
receive on the day before the effective date of the rule based on the 
combined rate, then pursuant to proposed Sec.  71.40(c)(4)(i)(D), the 
Primary Family Caregiver would continue to receive the same monthly 
stipend payment he or she was eligible to receive on the day before the 
effective date of the rule. If the effective date of the rule is April 
1, 2020, and the legacy participant lives in locality A on such date, 
but relocates to a new address in locality B on May 1, 2020, the 
Primary Family Caregiver of the legacy participant would, pursuant to 
proposed Sec.  71.40(c)(4)(i)(D), no longer be eligible to receive the 
stipend he or she was eligible to receive on the day before the 
effective date of the rule. If VA is notified of the legacy participant 
relocating on May 15, 2020, then effective June 1, 2020, the Primary 
Family Caregiver's stipend would be paid in accordance with proposed 
Sec.  71.40(c)(4)(i)(B)(3) in locality B (i.e., 25 percent of the GS 
rate for grade 4, step 1 in locality B). If the legacy participant 
relocates to a new address in locality C on July 1, 2020 and notifies 
VA on July 15, 2020, then effective August 1, 2020, the Primary Family 
Caregiver's stipend would be paid in accordance with proposed Sec.  
71.40(c)(4)(i)(B)(3) in locality C (i.e., 25 percent of the GS rate for 
grade 4, step 1 in locality C). If the legacy participant is reassessed 
on September 1, 2020, and determined to meet the requirements of 
proposed Sec.  71.20(a), but not determined to be unable to self-
sustain in the community, then the Primary Family Caregiver would 
transition to the monthly stipend rate under proposed Sec.  
71.40(c)(4)(i)(A)(1) in locality C (i.e., 62.5 percent of the GS rate 
for grade 4, step 1 in locality C) effective September 1, 2020, and 
receive retroactive payments for the difference between 62.5 percent of 
the GS rate for grade 4, step 1 and 25 percent of the GS rate for grade 
4, step 1 in locality C for five months (April-August) because the 
legacy participant's address on record with PCAFC as of September 1, 
2020 is in locality C. If a determination is made and documented by VA 
pursuant to proposed Sec.  71.30(b), that the legacy participant be 
reassessed on a more than annual basis, and another reassessment is 
completed on November 1, 2020 that results in a determination that the 
legacy participant no longer meets the requirements of proposed Sec.  
71.20(a), then the Primary Family Caregiver would continue to receive 
his or her monthly stipend rate under proposed Sec.  
71.40(c)(4)(i)(A)(1) (i.e., 62.5 percent of the GS rate for grade 4, 
step 1 in the applicable locality pay area). Unless another basis for 
revocation or discharge applies under proposed Sec.  71.45, the Family 
Caregiver would be discharged under proposed Sec.  71.45(b)(1)(i)(A), 
discussed further below. In the case of discharge under Sec.  
71.45(b)(1)(i)(A), VA would provide advanced notice of its eligibility 
findings to the eligible veteran and Family Caregiver on April 1, 2021 
(one year after the effective date of the rule). Discharge would be 
effective no earlier than May 30, 2021 (60 days from April 1, 2021--the 
date the advanced notice is provided). The effective date of discharge 
would be provided in VA's final notice, and as discussed further below, 
caregiver benefits would continue for 90 days after the date of 
discharge in cases of discharge under proposed Sec.  71.45(b)(1).
    In proposed paragraph (c)(4)(ii)(D), we would state that 
adjustments to stipend payments for the first month would take effect 
on the date specified in proposed Sec.  71.40(d) and that stipend 
payments for the last month would end on the date specified in Sec.  
71.45, as such section would be revised as proposed in this rulemaking. 
This is similar to language in current paragraph (c)(4)(vi), which 
address adjustments to stipend payments for the first month and in 
cases where a Primary Family Caregiver's status is revoked or a new 
Primary Family Caregiver is designated before the end of a month; 
however, we would revise the language for clarity and remove the 
language regarding replacement Primary Family Caregivers. Proposed 
paragraphs (d)(4) and (5), discussed later in this rulemaking, would 
address the effective dates of benefits when a Family Caregiver is 
replaced by a new Family Caregiver.
    Current paragraph (c)(4)(vii) states that ``[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 part.'' As previously mentioned, we propose to move this 
language to paragraph (c)(4)(iii) and would make no edits to the 
language.
    As previously discussed, current paragraph (c)(4)(iv) sets forth 
three tiers for stipend payments based on a presumed number of hours 
per week of caregiver assistance, and we propose to replace the current 
three tiers with two levels for the stipend payments in proposed 
paragraphs (c)(4)(i)(A)(1) and (2). Therefore, the current language in 
paragraph (c)(4)(iv) would no longer be needed and we propose to 
replace it with a requirement for periodic assessment of the monthly 
stipend payment.
    As discussed above, while VA believes that the monthly stipend rate 
(i.e., the OPM GS Annual Rate for grade 4, step 1, based on the 
locality pay area in which the eligible veteran resides, divided by 12) 
is generally not less than the annual salary paid to home health aides 
in the commercial sector, we recognize that may not always be the case. 
We note that over time, factors such as changes in the health care 
industry and workforce, the demand for long-term care, and the overall 
U.S. economy could impact the amount that commercial home health care 
entities pay individuals to provide services equivalent to those 
provided by Primary Family Caregivers. Moreover, additional measures of 
home health aide pay may become available that could help inform VA's 
analysis of applicable commercial rates. Therefore, VA proposes to 
revise current (c)(4)(iv) to require that VA, in consultation with 
other appropriate agencies of the Federal government, periodically 
assess whether the monthly stipend rate meets the requirements of 38 
U.S.C. 1720G(a)(3)(C)(ii) and (iv) (i.e., that to the extent 
practicable, the stipend rate is not less than the monthly amount a 
commercial home health care entity would pay an individual to provide 
equivalent personal care services in the eligible veteran's geographic 
area or geographic area with similar costs of living). If VA determines 
that adjustments to the stipend amount are necessary due to a 
continuing trend, VA would be required to make such adjustments through 
future rulemaking.
    Section 161(a)(3) of the VA MISSION Act of 2018 amended 38 U.S.C. 
1720G(a)(3)(A)(ii) to provide additional benefits to Primary Family 
Caregivers. These expanded benefits consist of: (1) Financial planning 
services relating to the needs of injured veterans and their 
caregivers, and (2) legal services, including legal advice and 
consultation, relating to the needs of injured veterans and their 
caregivers. See 38 U.S.C. 1720G(a)(3)(A)(ii)(VI)(aa) and (bb), as

[[Page 13392]]

amended by Public Law 115-182, section 161(a)(3). To comply with the VA 
MISSION Act of 2018, we would amend Sec.  71.40(c) by adding new 
paragraphs (c)(5) and (6) to include these financial planning services 
and legal services.
    In proposed paragraph (c)(5), we would state that Primary Family 
Caregivers are eligible for financial planning services as that term is 
defined in proposed Sec.  71.15. As explained in the discussion of our 
proposed definition for financial planning services, these services 
would be provided by entities authorized pursuant to any contract 
entered into between VA and such entities. In this proposed rule, we 
are not proposing to place a limitation on the number of issues or 
sessions relating to this benefit for which a Primary Family Caregiver 
would be eligible, as the amount of financial planning services needed 
will vary depending on the complexity of the issues being addressed and 
the needs of the Primary Family Caregiver.
    In proposed paragraph (c)(6), we would state that Primary Family 
Caregivers are eligible for legal services as that term would be 
defined in proposed Sec.  71.15. As explained in the discussion of our 
proposed definition of legal services, these services would be provided 
by entities authorized pursuant to any contract entered into between VA 
and such entities. In this proposed rule, we are not proposing to place 
a limitation on the number of issues or referrals relating to this 
benefit for which a Primary Family Caregiver would be eligible, as the 
amount of legal services needed will vary depending on the complexity 
of the issues being addressed and the needs of the Primary Family 
Caregiver.
    We would revise current Sec.  71.40(d) introductory text and (d)(1) 
and (2) to clarify and revise the effective date of benefits under 
PCAFC. Current paragraph (d)(1) explains that caregiver benefits are 
effective as of the date VA receives the signed joint application or on 
the date on which the eligible veteran begins receiving care at home, 
whichever date is later; but caregiver benefits are not provided until 
the Family Caregiver is designated as such. This paragraph further 
addresses the timeline for designation of a Family Caregiver following 
VA's receipt of a joint application. As discussed previously, we would 
revise these requirements and address them in proposed Sec.  71.25, 
among other requirements pertaining to the PCAFC application process.
    Current paragraph (d)(2) states that the stipend is paid for 
personal care services the Primary Family Caregiver provided in the 
prior month, and like in current paragraph (d)(1) states that benefits 
due prior to the Family Caregiver's designation are paid retroactive to 
the date the joint application is received by VA or the date on which 
the eligible veteran begins receiving care at home, whichever is later. 
As previously explained with respect to paragraph (c)(4), we also 
propose to remove the reference to ``prior month'' in current paragraph 
(d)(2) in order to allow flexibility depending on administrative needs 
and requirements. As stated above, VA's current practice is to issue 
monthly stipends at the end of the month in which services are 
provided. Therefore, the first sentence of current paragraph (d)(2) 
would no longer be needed and would be removed. The remaining 
provisions of current paragraph (d)(2) would be revised and addressed 
in revised paragraph (d).
    We propose to revise paragraph (d) by focusing only on the 
effective date of benefits under PCAFC and titling it ``Effective date 
of benefits under the Program of Comprehensive Assistance for Family 
Caregivers.'' Proposed paragraph (d) would state that except for 
benefits listed in paragraphs (b)(6) and (c)(3) and (4) of this section 
(related to beneficiary travel, CHAMPVA, and stipends, respectively), 
caregiver benefits under paragraphs (b) and (c) of Sec.  71.40 would be 
effective upon approval and designation under Sec.  71.25(f). We would 
make this change because it is generally not feasible or practicable to 
provide certain benefits offered to Primary and Secondary Family 
Caregivers retroactively. For example, respite care in current Sec.  
71.40(b)(1) and (c)(1) and (2) is generally limited in duration, 
furnished on an intermittent basis, and furnished for the purpose of 
helping a veteran continue to reside at home. See 38 U.S.C. 1720B. We 
note, that we do provide respite care if needed during the application 
process under Sec.  71.25(d); however, it is limited to the period of 
initial caregiver instruction, preparation and training if 
participation would interfere with the provision of personal care 
services to the eligible veteran. Additionally, VA arranges and pays 
for respite care directly rather than reimbursing an applicant under 
Sec.  71.25(d), or Family Caregiver under Sec.  71.40(b)(1) and (c)(1) 
and (2). Furthermore, respite care is generally available to enrolled 
veterans under 38 U.S.C. 1720B. Similarly, it is not feasible to 
provide benefits under current paragraphs (b)(2) through (5) 
retroactively. Monitoring (i.e., wellness contacts as proposed earlier 
in this rulemaking) under paragraph (b)(2) does not begin until the 
Family Caregiver is approved and designated. Continuing instruction, 
preparation and training, and ongoing technical support does not begin 
until the Family Caregiver has completed their initial training under 
Sec.  71.25 and is approved and designated. We note, that the Caregiver 
Support Line is a service available to any caregiver, provided without 
charge, and provides caregivers with support such as information on 
assistance available from VA and local Caregiver Support Coordinators. 
Finally, counseling does not begin until the Family Caregiver is 
approved and designated because it is arranged by VA using the consult 
process (i.e., referral to a provider) and not through a reimbursement 
model. We note that although counseling under Sec.  71.40(b)(5) is 
provided upon the approval and designation of a Family Caregiver, Sec.  
71.50 provides certain counseling, training, and mental health services 
to certain family members of and caregivers veterans pursuant to 38 
U.S.C. 1782. These benefits include consultation, professional 
counseling, marriage and family counseling, training, and mental health 
services when necessary in connection with the treatment of a 
disability for which a veteran is receiving treatment through VA; and a 
referral to an appropriate community provider when such need is not 
necessary in the connection with the treatment of a veteran.
    Family Caregiver benefits such as beneficiary travel in current 
Sec.  71.40(b)(6), enrollment in CHAMPVA in current Sec.  71.40(c)(3), 
and a monthly stipend in current Sec.  71.40(c)(4), can be provided 
retroactively based on the effective date of benefits specified in 
proposed paragraphs (d)(1) through (7) based on already-established 
payment and reimbursement processes. We note that beneficiary travel 
and CHAMPVA benefits would still be subject to the requirements in 38 
CFR part 70 and 38 CFR 17.270 through 17.278, respectively, including 
application timelines. Proposed Sec.  71.40(d) would state that 
caregiver benefits under paragraphs (b)(6) and (c)(3) and (4) are 
effective on the latest of the following dates: The date the joint 
application that resulted in approval and designation of the Family 
Caregiver is received by VA; the date the eligible veteran begins 
receiving care at home; the date the Family Caregiver begins providing 
personal care services to the eligible veteran at home; in the case of 
a new Family Caregiver applying to be the

[[Page 13393]]

Primary Family Caregiver for an eligible veteran, the day after the 
effective date of revocation or discharge of the previous Primary 
Family Caregiver for the eligible veteran (such that there is only one 
Primary Family Caregiver designated for an eligible veteran at one 
time); in the case of a new Family Caregiver applying to be a Secondary 
Family Caregiver for an eligible veteran who already has two Secondary 
Family Caregivers approved and designated by VA, the day after the 
effective date of revocation or discharge of a previous Secondary 
Family Caregiver for the eligible veteran (such that there are no more 
than two Secondary Family Caregivers designated for an eligible veteran 
at one time); in the case of a current or previous Family Caregiver 
reapplying with the same eligible veteran, the day after the date of 
revocation or discharge under proposed Sec.  71.45, or in the case of 
extended benefits under proposed Sec.  71.45(b)(1)(iii), (b)(2)(iii), 
(b)(3)(iii)(A) or (B), and (b)(4)(iv), the day after the last date on 
which such Family Caregiver received caregiver benefits; and the day 
after the date a joint application is denied. These would be listed in 
proposed paragraphs (d)(1) through (7).
    Proposed paragraphs (d)(1) and (2) would be similar to the first 
sentence in current paragraph (d)(1) and the second sentence in current 
paragraph (d)(2) that caregiver benefits are effective as of and 
retroactive to the date VA receives the signed joint application or on 
the date on which the eligible veteran begins receiving care at home, 
whichever date is later; but caregiver benefits are not provided until 
the Family Caregiver is designated as such. Additionally, as previously 
explained, we are proposing a new definition for joint application in 
Sec.  71.15. This definition would describe the requirements for a 
joint application to be considered complete by VA to include all 
signatures. Therefore, the phrase ``signed joint application'' in 
current paragraph (d)(1) would be redundant since it would be 
encompassed in the proposed definition for joint application. Thus, we 
would use the phrase ``joint application'' in paragraph (d)(1). 
Furthermore, we would add new language to clarify that benefits would 
be based on the date the joint application ``that resulted in approval 
and designation of the Family Caregiver'' is received by VA. For 
example, if a joint application is received by VA on July 1st, that 
results in a denial on August 31st, and another joint application is 
received by VA on September 30th from the same applicants that results 
in approval and designation of the Family Caregiver, then the earliest 
benefits would be effective is September 30th. This is consistent with 
current practice and would prevent VA from providing benefits at an 
earlier date based on a previous joint application that did not result 
in the approval and designation of a Family Caregiver.
    Proposed paragraph (d)(3) would address situations where the Family 
Caregiver may be institutionalized during the application process and 
does not begin providing personal care services to the eligible veteran 
until a later date. This would ensure that benefits are provided no 
earlier than the date that the Family Caregiver actually begins 
providing personal care services to the eligible veteran at home. This 
would also be consistent with the requirement that would be established 
in proposed Sec.  71.25(f), which would condition approval and 
designation on the Family Caregiver providing the personal care 
services required by the eligible veteran.
    Proposed paragraphs (d)(4) and (5) would address situations where 
an eligible veteran submits a new joint application with a different 
caregiver. In this situation, if approved, the replacement Family 
Caregiver would not begin to receive caregiver benefits until the day 
after the date of revocation or discharge of the replaced Family 
Caregiver. The effective date of benefits for the replacement Family 
Caregiver under these paragraphs would not be affected by a previous 
Family Caregiver's receipt of extended benefits. Accordingly, we 
propose to remove current Sec.  71.45(b)(4)(ii) and (iii), which 
currently ensure there is no overlap in caregiver benefits in cases of 
replacement caregivers. Current paragraph (b)(4)(ii) explains that 
benefits for a Primary Family Caregiver who is revoked will terminate 
the day before the date a new Primary Family Caregiver is designated in 
the instance that the new Primary Family Caregiver is designated within 
30 days after the date of revocation. Current paragraph (b)(4)(iii) 
further explains that if another individual is designated to be a 
Family Caregiver within 30 days after the date of revocation, such that 
there are three Family Caregivers, the benefits for the revoked Family 
Caregiver will terminate the day before the date the new Family 
Caregiver is designated. We would remove these paragraphs and instead 
allow for some benefit overlap in the case of extended benefit periods 
for Family Caregivers who have been revoked or discharged and a new 
Family Caregiver is designated. However, we still want to ensure that 
on any given day, no more than three Family Caregivers are designated 
for an eligible veteran, with no more than one Family Caregiver 
designated as a Primary Family Caregiver and no more than two Family 
Caregivers designated as a Secondary Family Caregiver for an eligible 
veteran for consistency with the proposed changes to Sec.  71.25(a)(1) 
(which would require that ``no more than three individuals may serve as 
Family Caregivers at one time for an eligible veteran, with no more 
than one serving as the Primary Family Caregiver and no more than two 
serving as Secondary Family Caregivers''). Proposed paragraph (d)(4) 
would provide that in the case of a new Family Caregiver applying to be 
the Primary Family Caregiver for an eligible veteran, the specified 
benefits would be effective for the new Primary Family Caregiver no 
earlier than the day after the effective date of revocation or 
discharge of the previous Primary Family Caregiver for the eligible 
veteran. For example, if a Primary Family Caregiver requests discharge 
from PCAFC as of July 1st under proposed Sec.  71.45(b)(3), discussed 
further below, and receives a 30-day continuation of benefits pursuant 
to proposed Sec.  71.45(b)(3)(iii)(A), discussed further below, the 
Primary Family Caregiver would receive 30 additional days of stipend 
benefits and other PCAFC benefits such as CHAMPVA, if applicable, 
through July 31st. If a new Family Caregiver applies and is designated 
as the new Primary Family Caregiver, the earliest possible effective 
date for benefits for the new Primary Family Caregiver would be July 
2nd. Should the new Primary Family Caregiver be designated as the 
Primary Family Caregiver on July 2nd, the previous Primary Family 
Caregiver would still receive a stipend payment and other PCAFC 
benefits through July 31st. Similarly, proposed paragraph (d)(5) would 
provide that in the case of a new Family Caregiver applying to be a 
Secondary Family Caregiver for an eligible veteran who already has two 
Secondary Family Caregivers approved and designated by VA, benefits 
would be effective for the new Secondary Family Caregiver no earlier 
than the day after the effective date of revocation or discharge of a 
previous Secondary Family Caregiver for the eligible veteran. See the 
discussion in proposed Sec.  71.45 regarding those instances in which 
we would provide extended benefits following revocation or discharge.
    Proposed paragraph (d)(6) would address the situation where a 
current or

[[Page 13394]]

previous Family Caregiver reapplies and is approved and designated to 
be a Family Caregiver again for the same eligible veteran. Because we 
would provide 30- or 90-day extended benefit periods to Family 
Caregivers who are discharged for specified reasons (under proposed 
Sec.  71.45(b)(1)(iii), (b)(2)(iii), (b)(3)(iii)(A) or (B), and 
(b)(4)(iv)), if a previous Family Caregiver reapplies, they may already 
be receiving caregiver benefits for 30 or 90 days, and may have already 
received a lump sum stipend payment to cover such extended benefit 
period. Current Family Caregivers who are reapplying would also still 
be receiving caregiver benefits. In these situations, benefits 
resulting from the new joint application would begin the day after the 
date of revocation or discharge under Sec.  71.45, or in the case of 
extended benefits under proposed Sec.  71.45(b)(1)(iii), (b)(2)(iii), 
(b)(3)(iii)(A) or (B), and (b)(4)(iv), the day after the last date on 
which the Family Caregiver received caregiver benefits. For example, if 
a Primary Family Caregiver requests to be discharged as of September 30 
under proposed Sec.  71.45(b)(3) and receives 30-day continuation of 
benefits pursuant to proposed Sec.  71.45(b)(3)(iii)(A), the Primary 
Family Caregiver would receive 30 additional days of stipend benefits 
and other PCAFC benefits such as CHAMPVA, if applicable, through 
October 30. If the Primary Family Caregiver submits a new joint 
application with the same eligible veteran, the earliest the Primary 
Family Caregiver may begin to receive benefits would be October 31 
(i.e., the day after the last date on which the Family Caregiver 
received caregiver benefits, which in this case would be 30 days from 
September 30).
    Proposed paragraph (d)(7) would address the situation where more 
than one joint application is received by VA from the same veteran or 
servicemember. In this situation, the specified benefits would be 
effective no earlier than the day after the date of the denied joint 
application. We have found that the submission of multiple joint 
applications from the same veteran or servicemember results in a 
significant loss of efficiency through unnecessary duplication of 
resources and we believe this requirement would reduce the incentive 
for a veteran or servicemember, and individuals who apply to be his or 
her Family Caregiver, from submitting multiple joint applications 
before the first joint application received by VA is adjudicated.

Sec.  71.45 Revocation and Discharge of Family Caregivers

    We would amend Sec.  71.45 by restructuring and revising current 
paragraphs (a), (b), and (c), and adding new paragraphs (d), (e), and 
(f). These proposed changes are discussed in detail below.
    The process for revocation and the extension of benefits to 
caregivers after revocation are described in current Sec.  71.45. 
Current Sec.  71.45 delineates between whether the revocation is 
initiated by the Family Caregiver, the eligible veteran or his or her 
surrogate, or VA. We propose to revise current Sec.  71.45 to 
distinguish between revocation and discharge from PCAFC and would thus 
revise the title of this section to reflect that this section concerns 
``Revocation and Discharge of Family Caregivers.''
    As explained in each of the proposed paragraphs of Sec.  71.45 
below, we propose to distinguish between revocation and discharge. The 
term ``revocation'' is used in current Sec.  71.45 in reference to all 
cases of removal from PCAFC, and is consistent with the terminology 
used in the governing statute (see 38 U.S.C. 1720G(a)(9)(C)(ii)(II), 
which refers to VA ``suspending or revoking'' a Family Caregiver's 
approval and designation). By referring to this process as 
``revocation,'' it can be perceived by eligible veterans and Family 
Caregivers as punitive or corrective in nature. While some removals are 
the result of fraud or safety concerns, in most situations, revocation 
is based on improvement in the eligible veteran's condition such that 
the Family Caregiver is no longer needed, or is requested by the Family 
Caregiver or eligible veteran. In these and other situations, we 
believe it is appropriate to use term ``discharge,'' rather than 
``revocation.'' The term ``discharge'' is commonly used in healthcare 
settings to describe the process that occurs when a patient no longer 
meets the criteria for the level of care being provided or when a 
patient is transferred to another facility or program to receive care. 
We believe this term is appropriate in situations where a Family 
Caregiver is removed from PCAFC due to the eligible veteran no longer 
meeting the eligibility requirements of the program (e.g., based on 
improvement in the eligible veteran's condition), the death of the 
eligible veteran or Family Caregiver, institutionalization of the 
eligible veteran or Family Caregiver, or by the request of either the 
Family Caregiver or the eligible veteran, and we would revise Sec.  
71.45 accordingly. We would continue to use the term ``revocation'' in 
instances in which a Family Caregiver is removed from PCAFC ``for 
cause'' (to include instances of fraud, abuse, or safety concerns), 
noncompliance with program requirements, and certain cases of VA error. 
Revocation would apply to removals based on a VA error or a deliberate 
action or inaction on the part of the eligible veteran or Family 
Caregiver.
    Additionally, with certain exceptions, we propose to add 
requirements for VA to provide a 60-day advanced notice in cases of 
revocation or discharge under this section. As discussed above in the 
context of proposed Sec.  71.40, 60-day advanced notice requirements 
would also apply before a stipend payment is decreased as a result of a 
reassessment. While current Sec.  71.45 provides a period of extended 
benefits in certain cases of revocation, it does not set forth measures 
to ensure advanced notice and an opportunity to contest VA's findings 
before a stipend decrease or revocation are effective. We believe 
providing advanced notice and opportunity to contest VA's findings 
before benefits are reduced or terminated would benefit both VA and 
eligible veterans and Family Caregivers. Although eligible veterans and 
Family Caregivers have the opportunity to dispute decisions made under 
PCAFC through the VHA clinical appeals process, we have heard concerns 
from former PCAFC participants who feel like they unfairly had their 
stipend decreased, were wrongly revoked from PCAFC, or lacked an 
opportunity to provide input into VA's clinical determinations 
surrounding stipend payments and revocation. By adding a requirement 
for advanced notice before stipend payment decreases and certain 
revocations and discharges, it is our hope that communication between 
VA and eligible veterans and their Family Caregivers would improve, and 
that PCAFC participants would have a better understanding of VA's 
decision-making process. The 60-day time frame would also provide the 
eligible veteran and Family Caregiver time to adapt and plan for a 
lower stipend payment or removal from PCAFC, as well as the opportunity 
to provide additional information to VA regarding its findings prior to 
VA issuing a final notice of its decision. We believe 60 days before a 
stipend is decreased or a Family Caregiver is revoked or discharged is 
an appropriate period of time for providing notice, as it would give 
eligible veterans and Family Caregivers a sufficient opportunity to 
dispute VA's findings, as appropriate, but would also ensure that 
benefits are not provided by VA for an

[[Page 13395]]

extended period of time when the participants are determined to be 
eligible at a lower stipend amount or no longer eligible for PCAFC. We 
would deviate from providing a 60-day advance notice in certain 
situations in proposed Sec.  71.45, to include instances in which 
revocation is initiated by VA for cause (in proposed paragraph 
(a)(1)(i)), discharge based on death or institutionalization of the 
eligible veteran or Family Caregiver (in proposed paragraphs 
(b)(1)(i)(B) and (b)(2)), and discharge based on the request of the 
Family Caregiver or eligible veteran (in proposed paragraphs (b)(3) and 
(4)). We emphasize here that adding such advanced notice requirements 
would not affect the clinical nature of PCAFC or the benefits provided 
thereunder. PCAFC is a clinical benefit program and decisions under 38 
U.S.C. 1720G are considered medical determinations (38 U.S.C. 
1720G(c)(1)), and thus not appealable to the Board of Veterans' Appeals 
(38 CFR 20.104(b)). As such, 38 U.S.C. 1720G(c)(1) makes clear that all 
decisions made by VA under 38 U.S.C. 1720G affecting the furnishing of 
assistance or support are considered medical determinations and are 
thus only appealable through the VHA clinical appeals process.
    We propose to revise current paragraph (a), which describes the 
process for revocation requested by a Family Caregiver, to instead 
address all instances of revocation under revised Sec.  71.45. We would 
thus revise paragraph (a) by titling it ``Revocation of the Family 
Caregiver'' and adding new paragraphs (a)(1)(i)(A) through (D), 
(a)(1)(ii)(A) through (E), (a)(1)(iii), (a)(2)(i) through (iv), and 
(a)(3). As discussed further below, we propose to address discharge 
requested by a Family Caregiver in proposed paragraph (b)(3) of this 
section, and our discussion of that proposed paragraph outlines how we 
would revise the language in current Sec.  71.45(a).
    Proposed paragraph (a)(1), which we would title ``Bases for 
revocation of the Family Caregiver,'' would describe the bases for 
revocation of the Family Caregiver. In new paragraph (a)(1)(i), which 
we would title ``For Cause,'' we would explain that VA would revoke the 
designation of a Family Caregiver for cause when VA determines any of 
the following: The Family Caregiver or eligible veteran committed fraud 
under this part; the Family Caregiver neglected, abused, or exploited 
the eligible veteran; personal safety issues exist for the eligible 
veteran that the Family Caregiver is unwilling to mitigate; or the 
Family Caregiver is unwilling to provide personal care services to the 
eligible veteran or, in the case of the Family Caregiver's temporary 
absence or incapacitation, fails to ensure (if able to) the provision 
of personal care services to the eligible veteran. These would be 
listed in new paragraphs (a)(1)(i)(A) through (D). We believe it is 
appropriate to revoke a Family Caregiver's designation when it is based 
on fraud committed by the eligible veteran or Family Caregiver in order 
to maintain the integrity of PCAFC and ensure benefits are provided 
only to individuals who qualify for them. The other bases of revocation 
in paragraph (a)(1)(i) would list instances in which we believe 
revocation of the Family Caregiver's designation is warranted because 
the eligible veteran may be harmed or in an unsafe situation. As 
discussed further below, and in current Sec.  71.45(b)(3) and (c), if 
the eligible veteran's safety is suspected to be at risk, VA will also 
take action to ensure his or her welfare. We note that the bases for 
revocation in proposed paragraph (a)(1)(i) are already covered by 
current Sec.  71.45(b)(4)(i), which addresses fraud committed by the 
Family Caregiver and abuse and neglect of the eligible veteran by the 
Family Caregiver; Sec.  71.45(b)(4)(iv), which addresses a Family 
Caregiver abandoning or terminating his or her relationship with the 
eligible veteran; and (c), which addresses other instances in which the 
eligible veteran or Family Caregiver no longer meet the requirements of 
part 71. In this rulemaking we propose to delineate and better 
distinguish these bases of revocation from other bases of revocation 
and discharge under revised Sec.  71.45. For example, instead of 
referring just to a Family Caregiver's fraud, we would also reference 
fraud by the eligible veteran because both the eligible veteran and 
Family Caregiver must meet the requirements of 38 CFR part 71 to 
participate in PCAFC and receive benefits; thus, we believe it was an 
oversight to hold only Family Caregivers to this standard. We believe 
the addition of the eligible veteran would ensure that VA continues to 
be a good financial steward of the taxpayer's dollar by only providing 
benefits to individuals who are eligible for PCAFC. For example, if an 
eligible veteran performs a fraudulent action such as misrepresenting 
his or her need for personal care services, we believe it would be 
appropriate to revoke participation in PCAFC. Furthermore, the joint 
application is signed by both the eligible veteran and Family Caregiver 
and we believe that both parties are jointly responsible for being 
truthful with regard to their participation in PCAFC, and that fraud on 
the part of either the eligible veteran and Family Caregiver should not 
be tolerated. In addition to a Family Caregiver's abuse or neglect of 
an eligible veteran, we would also reference exploitation of the 
eligible veteran because abuse, neglect, and exploitation are commonly 
used together in the health care industry and by Federal and State 
agencies charged with protecting vulnerable populations. We note that 
these terms overlap such that neglect and exploitation may be 
considered types of abuse; however, because exploitation is so commonly 
tied to vulnerable populations, we propose to update our terminology in 
acknowledgement that the population being served by PCAFC is a 
vulnerable population. We also believe it is important to distinguish 
for purposes of revocation for cause those Family Caregivers who are 
unwilling to or fail (if able) to mitigate personal safety issues for 
the eligible veteran or provide personal care services to the eligible 
veteran. Unlike Family Caregivers described in other proposed 
paragraphs of this section, who are subject to revocation and discharge 
for other reasons, Family Caregivers meeting the criteria in proposed 
paragraphs (a)(1)(i)(C) and (D) pose a significant risk to the well-
being of eligible veterans.
    In new paragraph (a)(1)(ii), which we would title 
``Noncompliance,'' we would state that except as provided in proposed 
Sec.  71.45(f), VA would revoke the designation of a Family Caregiver 
when the Family Caregiver or eligible veteran are noncompliant with the 
requirements of part 71. Under this paragraph, noncompliance would 
mean: The eligible veteran does not meet the requirements of proposed 
Sec.  71.20(a)(5), (6), or (7); the Family Caregiver does not meet the 
requirements of Sec.  71.25(b)(2); failure of the eligible veteran or 
Family Caregiver to participate in any reassessment pursuant to Sec.  
71.30; failure of the eligible veteran or Family Caregiver to 
participate in any wellness contact pursuant to Sec.  71.40(b)(2); or 
failure to meet any other requirement of this part except as provided 
in paragraph (b)(1) or (2) of this section. These would be listed in 
new paragraphs (a)(1)(ii)(A) through (E). We believe it is appropriate 
to revoke the Family Caregiver's designation in these instances because 
noncompliance with the requirements of part 71 would be the direct 
result of a deliberate action or inaction on the part of the eligible 
veteran or Family Caregiver.

[[Page 13396]]

Terminating benefits in these instances would ensure that VA continues 
to be a good financial steward of the taxpayer's dollar by only 
providing benefits to individuals who are eligible for PCAFC. These 
provisions would also help ensure compliance with statutory and 
regulatory requirements, such as preventing duplicative personal care 
services (pursuant to current Sec.  71.20(e) and proposed Sec.  
71.20(a)(5)), the eligible veteran receiving care at home (pursuant to 
current Sec.  71.20(f) and proposed Sec.  71.20(a)(6)), the eligible 
veteran receiving ongoing care from a primary care team (pursuant to 
current Sec.  71.20(g) and proposed Sec.  71.20(a)(7)), the Family 
Caregiver being a family member (as defined in 38 U.S.C. 1720G(d)(3) 
and pursuant to Sec.  71.25(b)(2)), and participation in reassessments 
and wellness contacts in proposed Sec.  71.30 and revised Sec.  
71.40(b)(2), respectively. With the exception of proposed paragraphs 
(a)(1)(ii)(C) and (D), these bases of revocation are already covered by 
current Sec.  71.45(b)(4)(iv) and (c), but in this rulemaking we 
propose to delineate and better distinguish them from other bases of 
revocation and discharge under this section. Failure to meet the 
requirements of proposed Sec.  71.20(a)(5), (6), and (7), and Sec.  
71.25(b)(2) would require deliberate non-compliance or other willful 
action or inaction that would result in either the eligible veteran or 
Family Caregiver no longer meeting the requirements of part 71. For 
example, this would include instances where the personal care services 
that would be provided by the Family Caregiver are provided to the 
eligible veteran by or through another person or entity, the eligible 
veteran refuses to receive care at home or ongoing care from a primary 
care team, or the Family Caregiver is no longer a family member or 
someone who lives with the eligible veteran. As previously discussed 
regarding proposed Sec. Sec.  71.30 and 71.40(b)(2), we propose for 
participation in reassessments and wellness contacts to be mandatory, 
so we would add additional bases of revocation based on an eligible 
veteran's or Family Caregiver's failure to participate in either 
because such failure would result from deliberate action or inaction. 
Proposed paragraph (a)(1)(ii)(E) would authorize revocation in 
instances that the eligible veteran or Family Caregiver fail to meet 
any other requirement of part 71, except as set forth in proposed 
paragraphs (b)(1) and (2). We believe the other paragraphs of revised 
Sec.  71.45, as proposed here, would account for all bases of 
revocation or discharge; however, we included this catch-all category 
in case there is a requirement under part 71 that is not otherwise 
accounted for to ensure that we have a clear basis to revoke a Family 
Caregiver's designation if the eligible veteran or Family Caregiver are 
found to be out of compliance with the requirements of part 71. We 
believe revocation on this basis would be appropriate to ensure that 
PCAFC is provided only to eligible veterans and Family Caregivers who 
meet the requirements of part 71. If we find that this basis for 
revocation is frequently relied upon, then we would consider proposing 
additional specific criteria for revocation or discharge under this 
section in a future rulemaking. For the aforementioned reasons, we 
believe revocation is reasonable if any of the requirements of proposed 
paragraphs (a)(1)(ii)(A) through (E) are met. We note that legacy 
participants and legacy applicants meeting the requirements of proposed 
Sec.  71.20(b) and (c), respectively, would not be subject to proposed 
Sec.  71.20(a), and their Family Caregivers therefore would not be 
revoked under proposed paragraph (a)(1)(ii)(A), but could be revoked 
based on paragraphs (a)(1)(ii)(B) through (E) during the one-year 
period beginning on the effective date of the rule. The Family 
Caregivers of legacy participants and legacy applicants could also have 
their designation revoked pursuant to proposed paragraphs (a)(1)(i) and 
(iii).
    In proposed paragraph (a)(1)(iii), which we would title ``VA 
error,'' we would explain that except as provided in proposed Sec.  
71.45(f), VA will revoke the designation of the Family Caregiver if the 
Family Caregiver's approval and designation under part 71 was 
authorized because of an erroneous eligibility determination by VA. An 
example of such an error would be the mistaken designation of a Family 
Caregiver who is not a family member of the eligible veteran and who 
does not reside with the eligible veteran, when such error was an 
oversight by VA and not due to fraud or dishonesty on the part of the 
veteran or caregiver. It is VA's current practice to revoke the 
designation of a Family Caregiver when VA discovers that caregiver 
benefits were provided under part 71 as a result of an erroneous VA 
eligibility determination. These revocations are initiated by VA under 
current Sec.  71.45(c) on the basis that the eligible veteran or Family 
Caregiver no longer meet the requirements of part 71. The current 
regulatory language does not explicitly capture revocations based on VA 
error (because the eligible veteran or Family Caregiver may have never 
met the requirements of part 71), so we would make this basis of 
revocation explicit in proposed paragraph (a)(1)(iii). We believe 
revocation on this basis would be appropriate to ensure that VA 
continues to be a good financial steward of the taxpayer's dollar by 
only providing benefits to individuals who are eligible for PCAFC.
    We propose to add a new paragraph (a)(2), which we would title 
``Revocation Date,'' to provide the effective dates for revocation for 
cause, non-compliance, and VA error. In proposed new paragraph 
(a)(2)(i), we would explain that if VA determines that the Family 
Caregiver or eligible veteran committed fraud under this part, the date 
of revocation will be the date the fraud began. If VA cannot identify 
when the fraud began, the date of revocation would be the earliest date 
that fraud is known by VA to have been committed, and no later than the 
date on which VA identifies that fraud was committed. For example, if 
VA determines that an eligible veteran or Family Caregiver committed 
fraud on the joint application when it was submitted, then the date of 
revocation would be the date of the joint application since the fraud 
was identified as having commenced during the application process prior 
to approval. If VA determines that the Family Caregiver or eligible 
veteran committed fraud at some later point following the approval and 
designation of the Family Caregiver, VA may determine the date of 
revocation to be the date on which the fraud is identified as having 
commenced. VA already makes fraud determinations and terminates 
benefits immediately in instances of fraud pursuant to current Sec.  
71.45(b)(4)(i) and (c). However, this has not been done consistently, 
with some facilities seeking to terminate benefits on the date the 
fraud commenced, and others seeking to terminate benefits when the 
fraud is discovered by VA. This proposed new paragraph would clarify 
the date of revocation when fraud is identified as having commenced 
sometime before it was actually discovered (e.g., during the 
application process or at a later point before VA actually learns of 
it). Making the revocation effective retroactively would, as discussed 
further below, create an overpayment, allowing VA to initiate 
collections for benefits provided after the fraud commenced. We believe 
this is reasonable because fraud generally involves willful action 
taken to misrepresent facts and had such facts been accurately 
reported, benefits

[[Page 13397]]

would not have been provided in the first place. VA believes it is 
appropriate to remove a Family Caregiver's designation retroactively, 
if applicable, and recover overpayments because it adheres to fiscal 
stewardship. Additionally, VA has the authority to revoke a Family 
Caregiver's designation retroactively and recover overpayments to the 
date of revocation but has not consistently sought to apply this 
authority, and this proposed rule would clarify VA's authority. 
Furthermore, VA OIG has identified fraud as a program risk because of 
inaccurate program eligibility determinations and we are seeking to 
mitigate this risk by making explicit VA's authority to revoke a Family 
Caregiver's designation retroactively. VA OIG Report, Program of 
Comprehensive Assistance for Family Caregivers: Management Improvements 
Needed, Report No. 17-04003-222, dated August 16, 2018, p. 11.
    Proposed new paragraph (a)(2)(ii) would set forth the effective 
date of revocation for all of the other ``for cause'' bases in proposed 
paragraphs (a)(1)(i)(B) through (D). In proposed new paragraph 
(a)(2)(ii), we would state that the date of revocation will be the date 
VA determines any of the criteria in proposed paragraphs (a)(1)(i)(B) 
through (D) has been met. In these instances, VA will revoke the Family 
Caregiver's approval and designation immediately upon such a 
determination. We believe this is appropriate as such knowing or 
willful actions clearly do not support the health and well-being of 
PCAFC participants. This would be generally consistent with the current 
regulation, which provides that ``VA may immediately revoke the 
designation of a Family caregiver if the eligible veteran or individual 
designated as a Family Caregiver no longer meets the requirements of 
[part 71].'' 38 CFR 71.45(c). Additionally, where VA determines that 
the Family Caregiver abused or neglected the eligible veteran, benefits 
also terminate immediately. Id. at Sec.  71.45(b)(4)(i). Under proposed 
paragraphs (a)(2)(i) and (ii), VA would not provide advanced notice 
prior to the revocation or any extension of benefits. Because of the 
egregious nature of the actions that would support revocation for 
cause, we believe benefits should be terminated immediately. However, 
if the eligible veteran or Family Caregiver disagrees with VA's 
revocation for cause under this section, he or she would still have the 
opportunity to appeal the revocation through VHA's clinical appeals 
process.
    In proposed paragraph (a)(2)(iii), we would state that in the case 
of revocation based on noncompliance under proposed paragraph 
(a)(1)(ii), revocation takes effect as of the effective date provided 
in VA's final notice. We would state that the effective date of 
revocation will be no earlier than 60 days after the date VA provides 
advanced notice of its findings to the eligible veteran and Family 
Caregiver. Advanced notice of findings would include the specific 
program requirements with which the eligible veteran or Family 
Caregiver are out of compliance. The 60-day advanced notice would 
provide the Family Caregiver or eligible veteran the opportunity to 
redress noncompliance prior to VA's issuance of a final notice of 
revocation, to the extent possible. Therefore, we would not provide a 
period of extended benefits in cases of revocation for noncompliance. 
If the Family Caregiver or eligible veteran does not come into 
compliance prior to VA's issuance of a final notice, then the Family 
Caregiver would forgo continued participation in PCAFC. Like with 
revocation for cause, if the eligible veteran or Family Caregiver 
disagrees with VA's revocation for noncompliance under this section, he 
or she could appeal the revocation through VHA's clinical appeals 
process.
    In proposed paragraph (a)(2)(iv), we would explain that if VA 
determines the approval and designation of a Family Caregiver under 
this part was the result of VA error, the date of revocation would be 
the date of the error. If VA cannot identify when the error was made, 
the date of revocation would be the earliest date that the error is 
known by VA to have occurred, and no later than the date on which the 
error is identified. For example, if VA determines that an error was 
made on the date the joint application was received by VA, then the 
date of revocation would be the date the joint application was received 
since the error was identified as having occurred on that date. If VA 
determines that the error occurred at some later point following the 
approval and designation of the Family Caregiver, but cannot determine 
when it occurred, the date of revocation would be no later than the 
date on which the error is identified. We believe this would be 
reasonable to prevent VA from providing any more benefits to a Family 
Caregiver who is not eligible for PCAFC. As previously discussed with 
revocation due to fraud, VA has the authority to revoke a Family 
Caregiver's designation retroactively, if applicable, and recover 
overpayments. Like with other bases of revocation discussed above, if 
the eligible veteran or Family Caregiver disagrees with VA's 
determination regarding VA error, he or she could appeal the revocation 
through VHA's clinical appeals process.
    In proposed paragraph (a)(3), which we would title ``Continuation 
of Benefits,'' we explain that caregiver benefits would continue for 60 
days after the date of revocation in the case of VA error under 
proposed paragraph (a)(1)(iii) and that such benefits would be 
considered an overpayment. Paragraph (a)(3) would also state that VA 
will seek to recover overpayment of benefits under this paragraph as 
provided in Sec.  71.47. This extended period of benefits would give 
the Family Caregiver time to adjust before benefits are terminated. In 
such cases, the Family Caregiver may have come to rely on the benefits 
that were authorized as a result of a VA error. However, this 
continuation of benefits would be an overpayment and thus subject to 
collection so we would allow a Family Caregiver to opt out of receiving 
the 60-day extension of benefits. As discussed below with respect to 
proposed Sec.  71.47, collection of overpayments made under PCAFC 
occurs under existing procedures and authorities. Therefore, in the 
case of an overpayment under proposed paragraph (a)(3), the Family 
Caregivers would receive a notice of rights and obligations pursuant to 
a collection.
    We propose to address all instances of Family Caregiver discharge 
in a revised paragraph (b) and would title it ``Discharge of the Family 
Caregiver.'' Therefore, the language in current paragraph (b) would be 
addressed in other paragraphs of this section or removed altogether. 
Current paragraphs (b)(1) and (2) would be addressed in proposed 
paragraph (b)(4)(i), current paragraph (b)(3) would be addressed in 
proposed paragraphs (b)(4)(iii) and (c), current paragraph (b)(4) would 
be addressed in proposed paragraphs (b)(4)(iv), (e), and (f), and 
current paragraphs (b)(4)(i) and (iv) would be addressed in proposed 
paragraphs (a)(1)(i) and (ii) and (a)(2). We would remove current 
paragraphs (b)(4)(ii) and (iii) and address the effective date of 
benefits for newly designated Family Caregivers in proposed Sec.  
71.40(d)(4) and (5), as discussed above.
    We propose to revise paragraph (b) to establish all bases under 
which a Family Caregiver may be discharged due to: the eligible veteran 
no longer meeting the requirements of Sec.  71.20 (except as specified 
elsewhere), and the eligible veteran's death or institutionalization; 
the death or institutionalization of the Family Caregiver; the request 
of the Family Caregiver; and the request of the eligible veteran or 
surrogate. These

[[Page 13398]]

would be provided in revised paragraphs (b)(1) through (4), 
respectively, as discussed further in this rulemaking.
    In revised paragraph (b)(1), which we would title ``Discharge due 
to the eligible veteran,'' we would explain that except as provided in 
proposed Sec.  71.45(f), the Family Caregiver will be discharged from 
PCAFC on the bases set forth in proposed paragraphs (b)(1)(i)(A) and 
(B). Paragraph (b)(1)(i)(A) would address discharge in cases where the 
eligible veteran is no longer eligible under proposed Sec.  71.20 
because of improvement in the eligible veteran's condition or 
otherwise. We would add an exception in this paragraph for those 
sections in proposed Sec.  71.20 that would result in revocation of the 
eligible veteran's Family Caregiver due to noncompliance with proposed 
Sec.  71.20(a)(5), (6), or (7), and for the circumstances described in 
proposed paragraph (b)(1)(i)(B). Other reasons that an eligible veteran 
would no longer be eligible under proposed Sec.  71.20 would include, a 
change in the eligible veteran's service connection rating such that 
the eligible veteran no longer meets the criteria for a serious injury 
(as such term would be defined in proposed Sec.  71.15), it would no 
longer be in the best interest of the individual to participate in 
PCAFC, or the eligible veteran no longer meets the requirements of 
proposed Sec.  71.20(b) or (c) (e.g., based on a change in the Primary 
Family Caregiver). We note that legacy participants and legacy 
applicants would be considered to meet the requirements of proposed 
Sec.  71.20 for one year beginning on the effective date of the rule, 
and therefore their Family Caregivers would not be discharged under 
proposed paragraph (b)(1)(i)(A) within the one-year period beginning on 
the effective date of the rule, so long as they continue to meet the 
definitions of legacy participant and legacy applicant in proposed 
Sec.  71.15. The Family Caregivers of legacy participants and legacy 
applicants could, however, be discharged based on other bases of 
discharge under proposed Sec.  71.45(b) during the one-year period 
beginning on the effective date of the rule. Discharges by VA under 
proposed paragraph (b)(1)(i)(A) are already covered in current Sec.  
71.45(c) when an eligible veteran ``no longer meets the requirements of 
[part 71],'' including instances in which ``having the Family Caregiver 
is no longer in the best interest of the eligible veteran'' and when 
``revocation is due to improvement in the eligible veteran's 
condition.'' We propose to characterize these removals as 
``discharges,'' as discussed above, to more accurately characterize 
them in the context of PCAFC as a clinical benefit program. We believe 
this term is more appropriate in situations where a Family Caregiver is 
removed from PCAFC due to the eligible veteran no longer meeting the 
eligibility requirements of the program (e.g., based on improvement in 
the eligible veteran's condition).
    Additionally, a Family Caregiver would be discharged upon the death 
or institutionalization of the eligible veteran. These bases of 
discharge would be listed in proposed paragraph (b)(1)(i)(B). We note 
that discharge due to the eligible veteran in proposed paragraph 
(b)(1)(i)(A) would be based on a VA determination; however, discharge 
due to the death or institutionalization of the eligible veteran in 
proposed paragraph (b)(1)(i)(B) would primarily be based on VA 
receiving notification of the death or institutionalization of the 
eligible veteran. This is because, in the absence of notification, VA 
may not become aware of the death or institutionalization of an 
eligible veteran until a reassessment or monitoring (i.e., wellness 
contact in proposed Sec.  71.40(b)(2)) is conducted, which could be up 
to 180 days later. The frequency of reassessments in proposed Sec.  
71.30 would be annually, unless there is a clinical determination to 
conduct reassessments on a more or less frequent basis, and monitoring 
(i.e., wellness contacts) in proposed Sec.  71.40(b)(2) would be a 
minimum of once every 180 days. Thus, we would add a note to proposed 
paragraph (b)(1)(i)(B) stating that VA must receive notification of the 
death or institutionalization of an eligible veteran as soon as 
possible but not later than 30 days from the date of death or 
institutionalization of the eligible veteran. Furthermore, we would add 
that notification of institutionalization must indicate whether the 
eligible veteran is expected to be institutionalized for 90 or more 
days from the onset of institutionalization. This information would be 
relevant for purposes of establishing the discharge date in proposed 
paragraph (b)(1)(ii)(B), discussed further below. Notification to VA is 
essential to avoiding overpayments of benefits to the Family Caregiver 
that would subsequently be collected by VA.
    Discharges by VA under proposed paragraph (b)(1)(i)(B) are already 
covered in current Sec.  71.45(c), which specifically accounts for 
cases of ``death, or permanent institutionalization.'' As previously 
explained regarding proposed Sec.  71.15, we would define 
institutionalization, and the bases of institutionalization set forth 
in VA's proposed definition of that term in proposed Sec.  71.15 would 
be applied for purposes of discharge under proposed paragraph 
(b)(1)(i)(B). Because those bases are consistent with our current 
understanding of ``institutionalization'' under current Sec.  71.45(c), 
discharge based on institutionalization under proposed paragraph 
(b)(1)(i)(B) would be generally consistent with our current practices. 
However, as discussed above in the context of proposed paragraph 
(b)(1)(i)(A), we propose to characterize these removals as 
``discharges,'' to more accurately characterize them in the context of 
PCAFC as a clinical benefit program.
    Proposed paragraph (b)(1)(ii), which we would title ``Discharge 
Date,'' would describe the discharge date for a Family Caregiver 
discharged due to the eligible veteran. In proposed paragraph 
(b)(1)(ii)(A), we would explain that in the case of discharge pursuant 
to proposed paragraph (b)(1)(i)(A), the discharge would take effect as 
of the effective date provided in VA's final notice. The effective date 
of the discharge would be no earlier than 60 days after VA provided 
advanced notice of its findings to the eligible veteran and Family 
Caregiver that the eligible veteran does not meet the requirements of 
Sec.  71.20. Advanced notice of findings would include the basis upon 
which VA has made its determination that the individual is no longer 
eligible. The 60-day time frame prior to the effective date for 
discharge coupled with a 90-day timeframe for continued caregiver 
benefits after the date of discharge proposed in paragraph (b)(1)(iii), 
would permit the eligible veteran and Family Caregiver a reasonable 
adjustment time to adapt and plan for discharge from the program. The 
60-day time frame would also give the eligible veteran and Family 
Caregiver the opportunity to provide additional information prior to VA 
issuing a final notice.
    In proposed paragraph (b)(1)(ii)(B), we would explain that 
discharge pursuant to proposed paragraph (b)(1)(i)(B) would be 
effective the earliest of the following dates, as applicable: Date of 
death of the eligible veteran; date that institutionalization begins, 
if it is determined that the eligible veteran is expected to be 
institutionalized for a period of 90 days or more; or the date of the 
90th day of institutionalization. These would be listed in proposed 
paragraphs (b)(1)(ii)(B)(1) through (3). In the case of an eligible 
veteran's death that is not preceded by institutionalization, the date 
of discharge would be the date of the

[[Page 13399]]

eligible veteran's death. We would explain that when it is determined 
that an eligible veteran is expected to be institutionalized for a 
period of 90 days or more, the eligible veteran and Family Caregiver 
will be discharged as of the date that institutionalization begins. 
Otherwise, we would explain that the Family Caregiver would be 
discharged on the 90th day of the eligible veteran being 
institutionalized. However, if the eligible veteran dies before the 
90th day of institutionalization, the discharge would be effective on 
the date of the eligible veteran's death. We recognize that proposed 
paragraphs (b)(1)(ii)(B)(2) and (3) may appear to create an incentive 
for individuals to not notify VA if it is known at the time 
institutionalization begins that the eligible veteran is expected to be 
institutionalized for a period of 90 days or more; however, we note 
that there would be separate provisions for revocation due to fraud and 
associated retroactive revocation, as appropriate. Additionally, we 
believe that such notification (as would be required in proposed 
paragraph (b)(1)(i)(B)) is nonetheless important to ensure the well-
being of eligible veterans. For instance, in a situation where it is 
known in advance that an eligible veteran will be institutionalized at 
a future date, notification would allow VA to take appropriate steps to 
ensure that the eligible veteran continues to receive appropriate care 
until the date of institutionalization. VA would not provide 60-day 
advance notice prior to discharge as a result of the death or 
institutionalization of the eligible veteran. We believe that death or 
institutionalization is a fact rather than a VA determination that 
would warrant an advanced 60-day notice. Thus, the date of discharge 
would be based on the applicable date in proposed paragraph 
(b)(1)(ii)(B). Additionally, VA would proactively provide notification 
to all PCAFC participants through an initial notification upon approval 
and designation of a Family Caregiver and regular notifications 
outlining the date of discharge should the eligible veteran die or be 
institutionalized. Furthermore, to the extent the eligible veteran or 
Family Caregiver disagrees with a discharge by VA pursuant to 
paragraphs (b)(1)(i)(B) and (b)(1)(ii)(B), the eligible veteran or 
Family Caregiver, as applicable, would still have the opportunity to 
appeal the discharge pursuant to VHA's clinical appeals process.
    In new paragraph (b)(1)(iii), which we would title ``Continuation 
of Benefits,'' we would explain that caregiver benefits will continue 
for 90 days after the date of discharge in cases of discharge based on 
paragraph (b)(1)(i). While continuing benefits for 90 days after 
discharge is not contemplated under the authorizing statute, we have 
provided a 90-day extension of benefits under current Sec.  71.45(c) in 
cases of revocation ``due to improvement in the eligible veteran's 
condition, death, or permanent institutionalization,'' as we believe it 
is an appropriate and compassionate way to interpret and enforce the 
law. 76 FR 26156 (May 5, 2011). We believe that this extended period of 
benefits supports Family Caregivers during their transition out of 
PCAFC. Particularly in the case of an unexpected death of an eligible 
veteran, the extended benefits period provides for a period of 
adjustment following their discharge from PCAFC and is generally 
consistent with current Sec.  71.45(c).
    In new paragraph (b)(2), which we would title ``Discharge due to 
the Family Caregiver,'' we would describe discharge due to the death or 
institutionalization of the Family Caregiver. Proposed paragraph 
(b)(2)(i) would state that, except as provided in Sec.  71.45(f), a 
Family Caregiver will be discharged due to the death or 
institutionalization of the Family Caregiver. The term 
``institutionalization'' in this paragraph would be defined in proposed 
Sec.  71.15 and applied accordingly. Similar to the death or 
institutionalization of the eligible veteran, VA would primarily rely 
on receiving notification of the death or institutionalization of the 
Family Caregiver. This is because, in the absence of notification, VA 
may not become aware of the death or institutionalization of a Family 
Caregiver until a reassessment or monitoring visit (i.e., wellness 
contact) is conducted, which could be up to 180 days later. The 
frequency of reassessments in proposed Sec.  71.30 would be annually, 
unless there is a clinical determination to conduct reassessments on a 
more or less frequent basis, and monitoring visits (i.e., wellness 
contacts) in proposed Sec.  71.40(b)(2) would be a minimum of once 
every 180 days. Thus, we would add a note that VA must receive 
notification of the death or institutionalization of the Family 
Caregiver as soon as possible but not later than 30 days from the date 
of death or institutionalization of the Family Caregiver. Furthermore, 
we would add that notification of institutionalization must indicate 
whether the Family Caregiver is expected to be institutionalized for 90 
or more days from the onset of institutionalization. This information 
would be relevant for purposes of establishing the discharge date in 
proposed paragraph (b)(2)(ii), discussed further below. This would be 
similar to the proposed note in proposed paragraph (b)(1)(i)(B). 
Notification to VA is essential to avoiding overpayments of benefits to 
the Family Caregiver that would subsequently be collected by VA. 
Additionally, notification would allow VA to take appropriate steps to 
ensure that the eligible veteran is safe and continues to receive 
appropriate care in the absence of the Family Caregiver.
    In proposed paragraph (b)(2)(ii), which we would title ``Discharge 
Date,'' we would explain that the Family Caregiver would be discharged 
from PCAFC as of the earliest of the following dates: The date of death 
of the Family Caregiver; the date that the institutionalization begins, 
if it is determined that the Family Caregiver is expected to be 
institutionalized for a period of 90 days or more; or the date of the 
90th day of institutionalization. These would be listed in proposed 
paragraphs (b)(2)(ii)(A) through (C) and applied in the same manner as 
described above regarding proposed paragraph (b)(1)(ii)(B). Again, we 
recognize that proposed paragraphs (b)(2)(ii)(B) and (C) may appear to 
create an incentive for individuals to not notify VA if it is known at 
the time institutionalization begins that the Family Caregiver is 
expected to be institutionalized for a period of 90 days or more; 
however, separate provisions for revocation due to fraud and 
retroactive revocation may be applied in such cases, as appropriate. VA 
would not provide a 60-day advanced notice of discharge as a result of 
the death or institutionalization of the Family Caregiver. We believe 
that death or institutionalization is a fact rather than a VA 
determination that would warrant an advanced 60-day notice. Thus, the 
date of discharge would be based on the applicable date in proposed 
paragraph (b)(2)(ii). Additionally, VA would proactively provide 
notification to all PCAFC participants through an initial notification 
upon approval and designation of a Family Caregiver and regular 
notifications outlining the date of discharge should the Family 
Caregiver die or be institutionalized. Furthermore, as noted above with 
respect to discharges under proposed paragraph (b)(1)(i)(B), to the 
extent the eligible veteran or Family Caregiver disagrees with a 
discharge by VA pursuant to paragraphs (b)(2)(i) and (ii), the eligible 
veteran or Family Caregiver,

[[Page 13400]]

as applicable, can appeal pursuant to VHA's clinical appeals process.
    Current Sec.  71.45(c) provides an extended period of benefits for 
90 days in cases where ``revocation is due to improvement in the 
eligible veteran's condition, death, or permanent 
institutionalization'' (with certain exceptions). While the references 
to ``death'' and ``permanent institutionalization'' are not specific to 
the eligible veteran, that is how VA has applied the current 
regulations, such that there is currently no extended period of 
benefits in cases of a Family Caregiver's death or 
institutionalization. In paragraph (b)(2)(iii), which we would title 
``Continuation of Benefits,'' we would continue with current practice 
in cases of a Family Caregiver's death, but continue caregiver benefits 
for 90 days after the date of discharge in paragraph (b)(2)(ii)(B) or 
(C) as a result of the Family Caregiver's institutionalization. 
Providing 90 days of extended benefits in cases of the Family 
Caregiver's institutionalization would support the Family Caregiver 
during their transition out of PCAFC at a time when they may be 
particularly vulnerable as a result of the institutionalization, 
especially if it is unexpected. As previously explained, while 
continuing benefits for this period of time is not contemplated under 
the authorizing statute, we have provided these benefits for an 
extended period of time under the current regulations pursuant to other 
bases of revocation, as we believe it is an appropriate and 
compassionate way to interpret and enforce the law. 76 FR 26156 (May 5, 
2011). However, we would not provide a continuation of benefits when 
discharge is due to the death of the Family Caregiver. We believe it is 
reasonable to discontinue benefits and discharge a Family Caregiver as 
of the date of the Family Caregiver's death. We note that any benefits 
owed to the Family Caregiver prior to his or her death would continue 
to be provided as is our current practice (e.g., the monthly stipend 
for Primary Family Caregivers provided in the current or previous 
month). The same rationale that supports an extended period of benefits 
in other instances of discharge (e.g., to support the Family Caregiver 
as he or she transitions out of PCAFC) does not apply in cases of the 
Family Caregiver's death.
    In new paragraph (b)(3), which we would title ``Discharge of the 
Family Caregiver by request of the Family Caregiver,'' we would 
describe discharge of the Family Caregiver by request of the Family 
Caregiver and in paragraph (b)(3)(i) we would explain that except as 
provided in proposed Sec.  71.45(f), a Family Caregiver would be 
discharged at the request of the Family Caregiver for discharge of his 
or her caregiver designation. Paragraph (b)(3)(i) would further provide 
that the request may be made verbally or in writing and must provide 
the present or future date of discharge. We would also explain that if 
the discharge request is received verbally, VA will provide to the 
Family Caregiver written confirmation of receipt of the verbal 
discharge request and the effective date of discharge. We would also 
state that VA will notify the eligible veteran verbally and in writing 
of the request for discharge and the effective date of discharge. In 
proposed paragraph (b)(3)(ii), which we would title ``Discharge Date,'' 
we would state the date of discharge will be the present or future date 
of discharge provided by the Family Caregiver. Such paragraph would 
further provide that if the request does not include an identified date 
of discharge, VA would contact the Family Caregiver to request a date. 
If unable to successfully obtain this date, discharge would be 
effective as of the date of the request. We believe this is reasonable 
as in such circumstances VA would be unable to know if the Family 
Caregiver is continuing to provide personal care services to the 
eligible veteran after the request for discharge is received. We note 
that if VA's efforts to contact the Family Caregiver to obtain a date 
of requested discharge are subsequently successful, VA would correct 
the date of discharge to reflect the past or future date the Family 
Caregiver identifies as the date the caregiver did or will cease to 
provide personal care services to the eligible veteran. However, in the 
case that VA in unable to successfully obtain a date of requested 
discharge, using the date of the request for discharge rather than a 
future date would prevent VA from having to recover an overpayment if 
the Family Caregiver stops providing personal care services prior to a 
future date assumed by VA.
    Most of the language in proposed paragraphs (b)(3)(i) and (ii) 
would be generally consistent with current Sec.  71.45(a) and our 
current practices. However, we would allow caregivers to make a 
discharge request verbally as well as in writing, because we often 
receive verbal revocation requests from Family Caregivers, and the 
current regulation does not address whether the Family Caregiver is 
able to request revocation verbally. It currently states that the 
Family Caregiver may request revocation in writing but does not require 
it be in writing and does not explicitly prohibit a verbal request. 38 
CFR 71.45(a). We now propose to clarify that we will accept a request 
for revocation in writing or verbally. We have found that written 
requests sent via mail can be time consuming for Family Caregivers and 
there is potential for such requests to get lost in transit. Requiring 
written notification can be burdensome on the Family Caregiver and can 
result in delays in VA receiving such requests, creating the potential 
for overpayment of caregiver benefits. Allowing the Family Caregiver to 
request discharge verbally would improve efficiency and result in less 
burden on Family Caregivers. In proposed paragraph (b)(3)(i), we would 
clarify that in instances when we receive a verbal revocation request 
from the Family Caregiver, we would provide to the Family Caregiver 
written confirmation of receipt of the verbal revocation request, as we 
would want to document receipt of the verbal request. The current 
language in Sec.  71.45(a) states that VA will notify the eligible 
veteran verbally and in writing of the request for revocation, and that 
would also be included in new paragraph (b)(3)(i).
    Other language in current Sec.  71.45(a) would either be removed or 
addressed in other sections of revised Sec.  71.45. In particular, the 
current language in Sec.  71.45(a) concerning the Family Caregiver's 
transition to alternative health care coverage and mental health 
services would be addressed in proposed paragraph (e). Additionally, 
the current language that ``[a]ll caregiver benefits will continue to 
be provided to the Family Caregiver until the date of revocation,'' 
would be addressed in proposed paragraph (a)(2). We note that this 
language would not be provided in proposed paragraph (b) which 
addresses discharge of the Family Caregiver (to include a Family 
Caregiver's request for discharge) because as discussed below, Family 
Caregivers generally would receive continuation of benefits after the 
date of discharge.
    Additionally, current Sec.  71.45(a) states that the date of 
revocation is the present or future date provided by the Family 
Caregiver. It does not, however, specify the applicable revocation date 
when the Family Caregiver does not provide one. Therefore, for the 
reasons outlined above, in proposed paragraphs (b)(3)(i) and (ii), we 
would clarify that in these cases, VA would contact the Family 
Caregiver to request that a date be provided, and specify that if the 
Family Caregiver does not provide a date, discharge would be effective 
as of the date of the request by the Family Caregiver.
    In proposed paragraph (b)(3)(iii), which we would title 
``Continuation of Benefits,'' we would set forth periods

[[Page 13401]]

for extended benefits in cases of discharge requested by the Family 
Caregiver. Proposed paragraph (b)(3)(iii)(A) would explain that, except 
as provided for in paragraph (b)(3)(iii)(B) of this section, caregiver 
benefits will continue for 30 days after the date of discharge. We 
believe 30 days is a reasonable period of time for a Family Caregiver 
to receive extended benefits following discharge. This is the same 
period of extended caregiver benefits under current Sec.  71.45(b)(4) 
in cases where an eligible veteran or surrogate requests revocation of 
the Family Caregiver. Current Sec.  71.45(a) does not provide a period 
of extended benefits for a Family Caregiver requesting revocation, but 
we believe that adding one would support Family Caregivers as they 
transition out of PCAFC and would remedy the current inequity between 
current Sec.  71.45(a) and (b)(4). Currently, if a Family Caregiver and 
eligible veteran both desire for the Family Caregiver's designation to 
be revoked, the Family Caregiver may or may not receive a 30-day period 
of extended benefits, depending only on which of them--the Family 
Caregiver or eligible veteran--makes the revocation request. We have 
found that in many cases, it is a mutual decision for the Family 
Caregiver's designation to be revoked. We would remedy this inequity 
and promote consistency by adding a 30-day period of extended benefits 
for the Family Caregiver in instances of both a Family Caregiver's and 
eligible veteran's or surrogate's request for discharge.
    In proposed paragraph (b)(3)(iii)(B), we would describe the process 
for continuing benefits for a Family Caregiver requesting discharge due 
to DV or IPV, as those terms would be defined in proposed Sec.  71.15. 
In proposed paragraph (b)(3)(iii)(B), we would explain that benefits 
would continue for 90 days after the date of discharge in instances 
where the Family Caregiver requests discharge due to DV or IPV 
perpetrated by the eligible veteran against the Family Caregiver when 
any of the following can be established: The issuance of a protective 
order, to include interim, temporary and/or final protective orders, to 
protect the Family Caregiver from DV or IPV perpetrated by the eligible 
veteran; a police report indicating DV or IPV perpetrated by the 
eligible veteran against the Family Caregiver or a record of an arrest 
related to DV or IPV perpetrated by the eligible veteran against the 
Family Caregiver; or documentation of disclosure of DV or IPV 
perpetrated by the eligible veteran against the Family Caregiver to a 
treating provider (e.g., physician, dentist, psychologist, 
rehabilitation therapist) of the eligible veteran or Family Caregiver, 
Intimate Partner Violence Assistance Program (IPVAP) Coordinator, 
therapist, or counselor. We have found that oftentimes, a caregiver may 
remain in a DV or IPV situation due to financial concerns. They may 
choose to not leave such a situation because doing so would result in 
financial insecurity, including loss of caregiver benefits such as the 
stipend payment and health care benefits. We propose to extend 
caregiver benefits for a period of 90 days after discharge in such 
instances where there is DV or IPV perpetrated by the eligible veteran 
against the Family Caregiver and the designated Family Caregiver 
requests removal from the Program. We do not want to encourage 
caregivers to remain in such situations and we believe that continuing 
to provide caregiver benefits for a period of 90 days is reasonable as 
this would help to mitigate concerns about the loss of the monthly 
caregiver stipend and health care benefits after the caregiver 
transitions away from his or her caregiver responsibilities. The 90-day 
period of extended benefits would also give the caregiver time to seek 
alternative health care coverage and mental health services, as needed, 
before caregiver benefits are discontinued. We believe 90 days is 
reasonable, as it is consistent with the extension of caregiver 
benefits that we provide to caregivers in other circumstances under 
current Sec.  71.45(c). In order to provide this extended benefit 
period, we would require that at least one of the following be provided 
as documentation that the request for discharge is due to DV or IPV 
perpetrated by the eligible veteran against the Family Caregiver: 
Issuance of a protective order, to include interim, temporary and/or 
final protective orders; police report indicating DV or IPV or a record 
of an arrest related to DV or IPV; or documentation of disclosure of DV 
or IPV to a treating provider (e.g., physician, dentist, psychologist, 
rehabilitation therapist) of the eligible veteran or Family Caregiver, 
IPVAP Coordinator, therapist, or counselor. These would be listed in 
new paragraphs (b)(3)(iii)(B)(1) through (3). We would require this 
documentation to ensure that individuals do not take advantage of these 
continued benefits and that we are being good stewards of the 
taxpayers' dollars. We note that the disclosure of DV or IPV can be to 
clinical staff through counseling, routine care, or otherwise. 
Additionally, we note that the terminology used for protective orders 
may vary by state (e.g., order of protection, restraining order, 
injunction for protection), and we intend for this proposed paragraph 
to include any such order issued pursuant to state law for the 
protection of a victim of DV or IPV.
    In revised paragraph (b)(4), which we would title ``Discharge of 
the Family Caregiver by request of the eligible veteran or eligible 
veteran's surrogate,'' we would describe discharge of a Family 
Caregiver by request of the eligible veteran or eligible veteran's 
surrogate. Current paragraph (b) describes revocation in instances in 
which the eligible veteran or eligible veteran's surrogate requests 
revocation of a Family Caregiver's designation. Currently, such 
requests must be made in writing, and VA will notify the Family 
Caregiver of such request and review the request within 30 days. Family 
Caregiver benefits currently continue for 30 days after the date of 
revocation unless an exemption applies such as fraud, abuse, neglect, 
abandonment, and certain replacement caregivers. See current Sec.  
71.45(b)(1) through (4). In revised paragraph (b)(4), we would use some 
of the language from current paragraphs (b)(1) through (3) of Sec.  
71.45 but further update it. We would also incorporate portions of 
current paragraph (b)(4) of Sec.  71.45, but other provisions of 
current paragraph (b)(4), including (b)(4)(i) through (iv) would be 
addressed elsewhere in Sec.  71.45 or removed as discussed further 
above.
    In proposed paragraph (b)(4)(i), we would state that except as 
provided in Sec.  71.45(f), the Family Caregiver will be discharged 
from PCAFC by request of the eligible veteran or the eligible veteran's 
surrogate, and that the discharge request may be made verbally or in 
writing and must express an intent to remove the Family Caregiver's 
approval and designation. We would further state that if the discharge 
request is received verbally, VA will provide to the eligible veteran 
written confirmation of receipt of the verbal discharge request and 
effective date of discharge. VA would also notify the Family Caregiver 
verbally and in writing of the request for discharge and the effective 
date of discharge. We believe allowing discharge requests to be made 
verbally or in writing is necessary because we often receive verbal 
revocation requests from individuals, including the eligible veteran or 
eligible veteran's surrogate. For example, there have been instances 
when the veteran or surrogate informs us of a request to remove the 
designation of the eligible veteran's

[[Page 13402]]

designated Primary Family Caregiver and apply with a different Family 
Caregiver. Under the current regulations, we are unable to process or 
confirm this request for discharge until the veteran or surrogate 
provides the request in writing. We have found that written requests 
sent via mail can be time consuming for eligible veterans and eligible 
veterans' surrogates, and there is potential for such requests to get 
lost in transit. Requiring written notification can be burdensome on 
the eligible veteran or eligible veteran's surrogate and can result in 
delays in VA receiving such requests, creating the potential for 
overpayments of benefits. Allowing eligible veterans and eligible 
veterans' surrogates to verbally request discharge would improve 
efficiency and result in less burden on eligible veterans and eligible 
veterans' surrogates.
    In proposed paragraph (b)(4)(ii), which we would title ``Discharge 
Date,'' we would state that the date of discharge will be the present 
or future date of discharge provided by the eligible veteran or 
eligible veteran's surrogate. Such paragraph would further provide that 
if the request does not provide a present or future date of discharge, 
VA will ask the eligible veteran or eligible veteran's surrogate to 
provide one, and if VA is unable to successfully obtain this date, 
discharge would be effective as of the date of the request. As stated 
above with respect to proposed paragraphs (b)(3)(i) and (ii), we 
believe that making discharge effective the date of the request is 
reasonable because VA would be unable to know if the Family Caregiver 
is continuing to provide personal care services to the eligible veteran 
after a request for discharge is received. We note that if VA's efforts 
to contact the eligible veteran or eligible veteran's surrogate to 
obtain a date of requested discharge is subsequently successful, VA 
would correct the date of discharge to reflect the past or future date 
the eligible veteran or eligible veteran's surrogate identifies as the 
date the Family Caregiver did or will cease to provide personal care 
services to the eligible veteran. However, in the case that VA is 
unable to successfully obtain a date of requested discharge, using the 
date of the request rather than a future date would prevent VA from 
having to recover an overpayment if the Family Caregiver stops 
providing personal care services prior to a future date assumed by VA.
    In revised paragraph (b)(4)(iii), which we would title 
``Rescission,'' VA would allow the eligible veteran or eligible 
veteran's surrogate to rescind the discharge request and have the 
Family Caregiver reinstated if the rescission is made within 30 days of 
the date of discharge. This would be generally consistent with language 
in current paragraph (b)(3). However, we would remove the language 
stating that VA will review the request for revocation and that the 
review will take no longer than 30 days. VA has found that it is not 
uncommon for an eligible veteran to request discharge of his or her 
Family Caregiver as a result of an argument followed by a request to 
rescind the request a few days later. Therefore, VA believes it may not 
always be necessary or appropriate to conduct a review as a result of a 
request by an eligible veteran or his or her surrogate. Instead of 
referring to a formal review, proposed paragraph (b)(4)(iii) would 
refer to a 30-day period for an eligible veteran or eligible veteran's 
surrogate to rescind the discharge request. Additionally, to the extent 
VA believes a formal review or other intervention is required, VA could 
conduct a wellness contact under proposed Sec.  71.40(b)(2) or 
reassessment under proposed Sec.  71.30, as appropriate. Additionally, 
we would add that if the eligible veteran or eligible veteran's 
surrogate expresses a desire to reinstate the Family Caregiver more 
than 30 days from the date of discharge, a new joint application would 
be required. This is consistent with current practice.
    In revised paragraph (b)(4)(iv), which we would title 
``Continuation of Benefits,'' we would provide for 30 days of continued 
caregiver benefits after the date of discharge as we believe this is 
fair, reasonable, and compassionate, and allows for a period of 
transition out of the PCAFC for the caregiver. Additionally, providing 
caregiver benefits for 30 days after the date of discharge would be 
consistent with the current transition period following revocation 
initiated by the eligible veteran or eligible veteran's surrogate. See 
current Sec.  71.45(b)(4) which provides for 30 days of caregiver 
benefits after the date of revocation except in limited circumstances 
as set forth in current Sec.  71.45(b)(4)(i) through (iv).
    As discussed above, other provisions of current Sec.  71.45(b) not 
addressed in proposed paragraph (b)(4) would be addressed in other 
paragraphs of this section. For example, proposed paragraph (f) would 
address situations where there are multiple bases of revocation or 
discharge like in current Sec.  71.45(b)(4), proposed paragraph (c) 
would address the safety and welfare of eligible veterans like in 
current Sec.  71.45(b)(3), assistance regarding the Family Caregiver's 
transition to alternative health care coverage and mental health 
services addressed in current Sec.  71.45(b)(4) would be addressed in 
proposed paragraph (e), and current Sec.  71.45(b)(4)(i) and (iv) would 
be addressed in proposed paragraphs (a)(1)(i) and (ii) and (a)(2) in 
the context of revocation.
    We propose to revise paragraph (c), which currently describes the 
process for revocation by VA and extension of benefits in limited 
circumstances. Current paragraph (c) explains that VA may revoke a 
Family Caregiver's designation immediately if the eligible veteran or 
Family Caregiver no longer meets the requirements of part 71 or if VA 
makes the clinical determination that having the Family Caregiver is no 
longer in the best interest of the eligible veteran. Additionally, 
current paragraph (c) explains that VA will, if requested by the Family 
Caregiver, assist him or her in transitioning to alternative health 
care coverage and mental health services. Current paragraph (c) also 
explains that if VA revokes the Family Caregiver's designation due to 
improvement in the eligible veteran's condition, death, or permanent 
institutionalization, VA will provide the Family Caregiver with 
continued benefits for 90 days unless any of the conditions in current 
paragraphs (b)(4)(i) through (iv) of this section are met, and that 
bereavement counseling may be available pursuant to 38 U.S.C. 1783. 
Further, current Sec.  71.45(c) provides that if VA suspects the 
eligible veteran's safety is at risk, VA may suspend the caregiver's 
responsibilities and remove the eligible veteran from the home or take 
any other appropriate action, prior to making a formal revocation.
    We would revise paragraph (c) to state that if VA suspects the 
eligible veteran's safety is at risk, VA may suspend the caregiver's 
responsibilities and facilitate appropriate referrals to protective 
agencies or emergency services if needed, to ensure the welfare of the 
eligible veteran, prior to initiating discharge or revocation. This 
would be similar to the language in the last sentence of current 
paragraph (c) and the last sentence of current paragraph (b)(3); 
however, we would replace the phrase ``remove the eligible veteran from 
the home if requested by the eligible veteran or take other appropriate 
action'' with ``facilitate appropriate referrals to protective agencies 
or emergency services if needed,'' and we would replace the phrase 
``prior to making a formal revocation'' with ``prior to discharge or 
revocation.'' We believe the language in proposed paragraph (c) better 
describes the appropriate protocol and response when VA suspects the 
eligible veteran's

[[Page 13403]]

safety and welfare is at risk because VA does not have the authority to 
remove an eligible veteran from the home. Rather, VA refers to local or 
state protective service agencies and emergency services with authority 
to remove and place an eligible veteran in a safe setting. Also, we 
would maintain consistency with the proposed changes in this section by 
replacing ``prior to making a formal revocation'' with ``prior to 
discharge or revocation.''
    Other portions of current Sec.  71.45(c) are addressed in other 
proposed paragraphs of this section. For example, the determination 
that the eligible veteran no longer meets the requirements of part 71, 
and the improvement in the veteran's condition, death, or 
institutionalization are addressed in proposed paragraphs (a)(1) and 
(b)(1). The language in current paragraph (c) regarding VA revocation 
when the Family Caregiver no longer meets the requirements of part 71 
would be addressed in proposed paragraphs (a)(1) and (b)(2). 
Additionally, the current language in paragraph (c) relating to 
revocation in the instance that having the Family Caregiver is no 
longer in the best interest of the eligible veteran would be addressed 
in proposed paragraph (b)(1)(i). Furthermore, the language in current 
paragraph (c) relating to bereavement counseling and assistance with 
transitioning to alternative health care coverage and mental health 
services would be addressed in proposed in new paragraph (e).
    In new paragraph (d), we would state that VA will seek to recover 
overpayments of benefits provided under this section, as provided in 
proposed Sec.  71.47. We believe recovery of overpayments of benefits 
would be reasonable, is within VA's authority, and would ensure we are 
being a good steward of the taxpayer's dollar. Overpayments may result 
in cases of revocation for fraud pursuant to the revocation date in 
proposed paragraph (a)(2)(i) if fraud is determined to have commenced 
sometime before VA actually learned of it. Overpayments may also result 
pursuant to the discharge dates in proposed paragraphs (b)(1)(ii)(B) 
and (b)(2)(ii) if VA is not informed of an eligible veteran's or Family 
Caregiver's death or institutionalization in a timely manner. 
Additionally, overpayment may result due to VA error under proposed 
paragraph (a)(2)(iv), including after a Family Caregiver has already 
been revoked or discharged under proposed paragraph (a)(3). For 
example, if a Primary Family Caregiver is revoked on July 1st, but due 
to a VA error, stipend payments continue to be provided to the Primary 
Family Caregiver for an additional 60 days, VA would recover the 
overpayments back to the date of revocation (July 1st) as well as back 
to any previous date on which the error is known to have been made. In 
addition to overpayments that result in a caregiver being erroneously 
approved and designated as a Family Caregiver under proposed paragraph 
(a)(1)(iii), overpayments can also result from other VA errors. For 
example, if a Primary Family Caregiver is discharged pursuant to 
proposed paragraph (b)(1)(i)(B) and receives an additional 90 days of 
benefits, but as the result of a VA error, the Primary Family Caregiver 
continues to receive a monthly stipend payment beyond the 90 days, VA 
would recover the overpayments that should not have been made. We note 
that proposed paragraph (d) would not modify or expand VA's legal 
authority to initiate collections but would help ensure that PCAFC 
participants are on notice of the potential for collections actions by 
VA under this section.
    In new paragraph (e), we would state that VA will, if requested and 
applicable, assist the Family Caregiver in transitioning to alternative 
health care coverage and mental health services. This would be 
consistent with similar language in current Sec.  71.45(b)(4) and (c). 
Also, new paragraph (e) would state that in cases of death of the 
eligible veteran, bereavement counseling may be available under 38 
U.S.C. 1783. This would be consistent with similar language in current 
Sec.  71.45(c).
    In new paragraph (f), which we would title ``Multiple bases for 
revocation or discharge,'' we would explain that in the instance that a 
Family Caregiver may be both discharged pursuant to any of the criteria 
in paragraph (b) of this section and have his or her designation 
revoked pursuant to any of the criteria in paragraph (a) of this 
section, the Family Caregiver's designation would be revoked pursuant 
to paragraph (a). If VA finds that a situation warrants revocation of a 
Family Caregiver's designation, VA would revoke the Family Caregiver's 
designation and discontinue benefits as set forth in proposed paragraph 
(a) regardless of whether there may be another reason to discharge the 
Family Caregiver under proposed paragraph (b). For example, if an 
eligible veteran or Family Caregiver is requesting discharge under 
proposed paragraphs (b)(3) or (4) in order to avoid being revoked for 
fraud under proposed paragraph (a)(1)(i)(A), VA would revoke the Family 
Caregiver designation pursuant to proposed paragraph (a)(1)(i)(A) and 
the revocation would be effective on the date set forth in proposed 
paragraph (a)(2)(i), not the discharge date specified by the eligible 
veteran or Family Caregiver in their request for discharge. Similarly, 
if a Family Caregiver requests discharge from PCAFC or an eligible 
veteran requests that a Family Caregiver be discharged from PCAFC, but 
VA also determines the Family Caregiver ceased to provide personal 
services because of the Family Caregiver's unwillingness to provide 
personal care services prior to the requested discharge date, VA would 
revoke the Family Caregiver's designation pursuant to proposed 
paragraph (a)(1)(i)(D) and the revocation would be effective on the 
date set forth in proposed paragraph (a)(2)(ii), not the discharge date 
specified by the eligible veteran or Family Caregiver in their request 
for discharge. In these situations, the Family Caregiver would receive 
benefits only until the date of revocation. Another example is the 
determination of whether the institutionalization of a Family Caregiver 
would result in discharge under paragraph (b)(2) or revocation under 
paragraph (a)(1)(i)(D). The determining factor would be if the Family 
Caregiver, if able to, has taken measures to ensure the personal care 
services of the eligible veteran are adequately addressed through 
alternative means (referenced in proposed paragraph (a)(1)(i)(D)). We 
note that depending on the circumstances, the Family Caregiver may not 
be able to take such measures such as in the case of emergency 
hospitalization in which the Family Caregiver is incapacitated, in 
which case VA would discharge the Family Caregiver in accordance with 
proposed paragraph (b)(2), as appropriate.
    Additionally, we would also explain in proposed paragraph (f) what 
basis of revocation would apply in the instance that there are multiple 
bases of revocation. If the designation of a Family Caregiver may be 
revoked pursuant to proposed paragraph (a)(1)(i) and proposed paragraph 
(a)(1)(ii) or (iii), the designation of the Family Caregiver would be 
revoked pursuant to proposed paragraph (a)(1)(i). For example, if VA 
can revoke the Family Caregiver's designation because of noncompliance, 
but the Family Caregiver is also found to have committed fraud in his 
or her application for benefits under this part, VA would revoke the 
Family Caregiver's designation pursuant to proposed paragraph 
(a)(1)(i)(A) instead of proposed paragraph (a)(1)(ii). In such 
circumstances, the revocation would be effective on the date of the 
Family

[[Page 13404]]

Caregiver's application pursuant to proposed paragraph (a)(2)(i), not 
after a period of 60 days advanced notice as would be the case for 
revocation based on noncompliance pursuant to proposed paragraph 
(a)(2)(iii). We believe this is fair and equitable and ensures VA 
continues to be a good steward of the taxpayer's dollar. In the 
instance that the designation of a Family Caregiver may be revoked 
under proposed paragraphs (a)(1)(ii) and (iii) of this section, the 
designation of the Family Caregiver would be revoked pursuant to 
proposed paragraph (a)(1)(iii). For example, if the eligible veteran or 
Family Caregiver fail to participate in reassessments or monitoring 
visits (i.e., wellness contacts), but VA also discovers an error in the 
initial eligibility determination, such that the individuals were never 
eligible for PCAFC, VA would revoke the Family Caregiver's designation 
based on proposed paragraph (a)(1)(iii) and benefits would be 
terminated retroactively back to the date of the initial eligibility 
determination.
    Moreover, we would also explain in proposed paragraph (f) what 
basis of discharge would apply in the instance that there are multiple 
bases of discharge. While VA may receive simultaneous requests or 
notifications for discharge for more than one discharge reason; we do 
not think this will happen frequently. Nonetheless, under such 
circumstances, we would apply whichever discharge reason is more 
favorable to the Family Caregiver because we believe this is the most 
supportive to the Family Caregiver. For example, if the eligible 
veteran notifies VA that he or she wants to have the Family Caregiver 
discharged on July 7th pursuant to proposed paragraph (b)(4) of this 
section which would result in 30-day extension of benefits to the 
Family Caregiver, but the Family Caregiver also notifies VA that he or 
she wants to be discharged from PCAFC on July 7th due to DV or IPV 
pursuant to proposed paragraph (b)(3)(iii)(B), then VA would discharge 
the Family Caregiver pursuant to proposed paragraph (b)(3)(iii)(B) so 
long as DV or IPV is established, and the Family Caregiver would 
receive a 90-day extension of benefits.

Sec.  71.47 Collection of Overpayment

    In Sec.  71.47, we propose a new section to address VA's collection 
of overpayments made under PCAFC and the authority relied upon by VA 
for collection activity. Overpayments are most likely to occur based on 
the requirements of current and proposed Sec. Sec.  71.40 and 71.45. 
However, because it is difficult to identify all possible scenarios 
under which an overpayment may be issued, Sec.  71.47 will serve as a 
``catch-all'' to ensure VA does not inadvertently preclude itself from 
taking collection activity against other overpayments not otherwise 
explicitly provided for in part 71. Under proposed Sec.  71.47, any 
collection activity would be conducted in accordance with the FCCS. VA 
follows FCCS in its collection activities. Proposed Sec.  71.47 would 
ensure PCAFC collection is consistent with existing procedures and 
authorities. FCCS also authorizes VA to analyze its collection 
activities and make case-by-case determinations on individual debts as 
appropriate. By way of example, FCCS authorizes VA to terminate 
collection of a debt for which the costs of recovery will exceed 
collections. Additionally, FCCS authorizes VA to forego collection 
action for de minimis debts. We anticipate certain overpayments may be 
nominal, and FCCS permits VA the flexibility to make determinations on 
collection activities in accordance with applicable law, rule, and 
policy.

Technical Edits

    We would make a technical edit to Sec. Sec.  71.10 through 71.40, 
and 71.50. We would remove the statutory authority citations at the end 
of each of these sections and amend the introductory ``Authority'' 
section of part 71 to include the statutory citations listed in these 
sections that are not already provided in the ``Authority'' section of 
part 71 to conform with publishing guidelines established by the Office 
of the Federal Register. We note that current Sec. Sec.  71.20 and 
71.30 include a citation to 38 U.S.C. 1720G(a)(2) and 1720G(b)(1), (2), 
respectively. However, we would reference 38 U.S.C. 1720G, not specific 
subsections and paragraphs. We would also add a reference to 31 U.S.C. 
3711, which pertains to collections; 38 U.S.C. 5302, which pertains to 
waiver of benefits overpayments; and 38 U.S.C. 5314, which pertains to 
the offset of benefits overpayments. These references would be added 
for purposes of proposed Sec.  71.47, Collection of Overpayment.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires 
that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an 
agency may not conduct or sponsor the collection of information, unless 
it displays a currently valid control number from the Office of 
Management and Budget (OMB). This proposed rule contains provisions 
that would constitute a revised collection of information under 38 CFR 
71.25, which is currently approved under OMB Control #2900-0768. The 
revised collections of information will be submitted to OMB for 
approval and also made available to the public for comment through a 
separate Federal Register (FR) document that will be published in the 
Federal Register. The FR document will provide the public with an 
opportunity to comment on the revised information collections 
associated with this proposed rulemaking. A final FR document will also 
be published in the Federal Register if and when the revised 
collections of information are approved by OMB.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (RFA), 5 
U.S.C. 601-612. We note that caregivers are not small entities. 
However, this proposed rule may directly affect small entities that we 
would contract with to provide financial planning services and legal 
services to Primary Family Caregivers; however, matters relating to 
contracts are exempt from the RFA requirements. We do not anticipate 
this proposed rule would have a significant economic impact on a 
substantial number of small entities. Any effects on small entities 
would be indirect. Therefore, pursuant to 5 U.S.C. 605(b), the initial 
and final regulatory flexibility analysis requirements of 5 U.S.C. 603 
and 604 do not apply.

Executive Order 12866, 13563 and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this rule is an economically significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at https://www.regulations.gov, usually within 48

[[Page 13405]]

hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's website 
at https://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published.''
    This rulemaking is likely to be considered an E.O. 13771 regulatory 
action if finalized. VA has determined that the net costs are $755.5 
million over a five-year period (FY2020-FY2024) and $146 million per 
year on an ongoing basis discounted at 7 percent relative to year 2016, 
over a perpetual time horizon.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.009, Veterans Medical 
Care Benefits.

List of Subjects in 38 CFR Part 71

    Administrative practice and procedure, Caregivers program, Claims, 
Health care, Health facilities, Health professions, Mental health 
programs, Travel and transportation expenses, Veterans.

Signing Authority

    The Secretary of Veterans Affairs approved this document and 
authorized the undersigned to sign and submit the document to the 
Office of the Federal Register for publication electronically as an 
official document of the Department of Veterans Affairs. Pamela Powers, 
Chief of Staff, Department of Veterans Affairs, approved this document 
on February 28, 2020, for publication.

Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs proposes to amend 38 CFR part 71 as follows:

PART 71--CAREGIVERS BENEFITS AND CERTAIN MEDICAL BENEFITS OFFERED 
TO FAMILY MEMBERS OF VETERANS

0
1. The authority citation for part 71 is revised to read as follows:

    Authority:  38 U.S.C. 501, 1720G, unless otherwise noted.
    Section 71.40 also issued under 38 U.S.C. 111(e), 1720B, 1782.
    Section 71.47 also issued under 31 U.S.C. 3711; 38 U.S.C. 5302, 
5314.
    Section 71.50 also issued under 38 U.S.C. 1782.

0
2. Amend Sec.  71.10 by revising paragraph (b) and removing the 
authority citation at the end of the section.
    The revision reads as follows:


Sec.  71.10   Purpose and scope.

* * * * *
    (b) Scope. This part regulates the provision of benefits under the 
Program of Comprehensive Assistance for Family Caregivers and the 
Program of General Caregiver Support Services authorized by 38 U.S.C. 
1720G. Persons eligible for such benefits may be eligible for other VA 
benefits based on other laws or other parts of this title. These 
benefits are provided only to those individuals residing in a State as 
that term is defined in 38 U.S.C. 101(20).
0
3. Amend Sec.  71.15 by:
0
a. Removing the definition of ``Combined rate'';
0
b. Adding in alphabetical order definitions for ``Domestic violence 
(DV)'', ``Financial planning services'', and ``In need of personal care 
services'';
0
c. Redesignating in proper alphabetical order the definition of ``In 
the best interest'' and revising it;
0
d. Revising the definition of ``Inability to perform an activity of 
daily living (ADL)'';
0
e. Adding in alphabetical order definitions for 
``Institutionalization'', ``Intimate partner violence (IPV)'', ``Joint 
application'', ``Legacy applicant'', ``Legacy participant'', ``Legal 
services'', and ``Monthly stipend rate'';
0
f. Removing the definition of ``Need for supervision or protection 
based on symptoms or residuals of neurological or other impairment or 
injury'';
0
g. Adding in alphabetical order definitions for ``Need for supervision, 
protection, or instruction'' and ``Overpayment'';
0
h. Revising the definitions of ``Primary care team'' and ``Serious 
injury'';
0
i. Adding in alphabetical order a new definition of ``Unable to self-
sustain in the community''; and
0
j. Removing the authority citation at the end of the section.
    The revisions and additions read as follows:


Sec.  71.15  Definitions.

* * * * *
    Domestic violence (DV) refers to any violence or abuse that occurs 
within the domestic sphere or at home, and may include child abuse, 
elder abuse, and other types of interpersonal violence.
* * * * *
    Financial planning services means services focused on increasing 
financial capability and assisting the Primary Family Caregiver in 
developing a plan to manage the personal finances of the Primary Family 
Caregiver and the eligible veteran, as applicable, to include household 
budget planning, debt management, retirement planning review and 
education, and insurance review and education.
* * * * *
    In need of personal care services means that the eligible veteran 
requires in-person personal care services from another person, and 
without such personal care services, alternative in-person caregiving 
arrangements (including respite care or assistance of an alternative 
caregiver) would be required to support the eligible veteran's safety.
    In the best interest means, for the purpose of determining whether 
it is in the best interest of the veteran or servicemember to 
participate in the Program of Comprehensive Assistance for Family 
Caregivers under 38 U.S.C. 1720G(a), a clinical determination that 
participation in such program is likely to be beneficial to the veteran 
or servicemember. Such determination will include consideration, by a 
clinician, of whether participation in the program significantly 
enhances the veteran's or servicemember's ability to live safely in a 
home setting, supports the veteran's or servicemember's potential 
progress in rehabilitation, if such potential exists, increases the 
veteran's or servicemember's potential independence, if such potential 
exists, and creates an environment that supports the health and well-
being of the veteran or servicemember.
    Inability to perform an activity of daily living (ADL) means a 
veteran or servicemember requires personal care services each time he 
or she completes one or more of the following:
    (1) Dressing or undressing oneself;
    (2) Bathing;
    (3) Grooming oneself in order to keep oneself clean and 
presentable;
    (4) Adjusting any special prosthetic or orthopedic appliance, that 
by reason of the particular disability, cannot be done

[[Page 13406]]

without assistance (this does not include the adjustment of appliances 
that nondisabled persons would be unable to adjust without aid, such as 
supports, belts, lacing at the back, etc.);
    (5) Toileting or attending to toileting;
    (6) Feeding oneself due to loss of coordination of upper 
extremities, extreme weakness, inability to swallow, or the need for a 
non-oral means of nutrition; or
    (7) Mobility (walking, going up stairs, transferring from bed to 
chair, etc.).
    Institutionalization refers to being institutionalized in a setting 
outside the home residence to include a hospital, rehabilitation 
facility, jail, prison, assisted living facility, medical foster home, 
nursing home, or other similar setting.
    Intimate partner violence (IPV) refers to any violent behavior 
including, but not limited to, physical or sexual violence, stalking, 
or psychological aggression (including coercive acts or economic harm) 
by a current or former intimate partner that occurs on a continuum of 
frequency and severity which ranges from one episode that might or 
might not have lasting impact to chronic and severe episodes over a 
period of years. IPV can occur in heterosexual or same-sex 
relationships and does not require sexual intimacy or cohabitation.
    Joint application means an application that has all fields within 
the application completed, including signature and date by all 
applicants, with the following exceptions: Social security number or 
tax identification number, middle name, sex, email, alternate telephone 
number, and name of facility where the veteran last received medical 
treatment, or any other field specifically indicated as optional.
    Legacy applicant means a veteran or servicemember who submits a 
joint application for the Program of Comprehensive Assistance for 
Family Caregivers that is received by VA before [EFFECTIVE DATE OF 
FINAL RULE] and for whom a Family Caregiver(s) is approved and 
designated on or after [EFFECTIVE DATE OF FINAL RULE] so long as the 
Primary Family Caregiver approved and designated for the veteran or 
servicemember on or after [EFFECTIVE DATE OF FINAL RULE] pursuant to 
such joint application (as applicable) continues to be approved and 
designated as such. If a new joint application is received by VA on or 
after [EFFECTIVE DATE OF FINAL RULE] that results in approval and 
designation of the same or a new Primary Family Caregiver, the veteran 
or servicemember would no longer be considered a legacy applicant.
    Legacy participant means an eligible veteran whose Family 
Caregiver(s) was approved and designated by VA under this part as of 
the day before [EFFECTIVE DATE OF FINAL RULE] so long as the Primary 
Family Caregiver approved and designated for the eligible veteran as of 
the day before [EFFECTIVE DATE OF FINAL RULE] (as applicable) continues 
to be approved and designated as such. If a new joint application is 
received by VA on or after [EFFECTIVE DATE OF FINAL RULE] that results 
in approval and designation of the same or a new Primary Family 
Caregiver, the veteran or servicemember would no longer be considered a 
legacy participant.
    Legal services means assistance with advanced directives, power of 
attorney, simple wills, and guardianship; educational opportunities on 
legal topics relevant to caregiving; and referrals to community 
resources and attorneys for legal assistance or representation in other 
legal matters. These services would be provided only in relation to the 
personal legal needs of the eligible veteran and the Primary Family 
Caregiver. This definition excludes assistance with matters in which 
the eligible veteran or Primary Family Caregiver is taking or has taken 
any adversarial legal action against the United States government, and 
disputes between the eligible veteran and Primary Family Caregiver.
    Monthly stipend rate means the Office of Personnel Management (OPM) 
General Schedule (GS) Annual Rate for grade 4, step 1, based on the 
locality pay area in which the eligible veteran resides, divided by 12.
    Need for supervision, protection, or instruction means an 
individual has a functional impairment that directly impacts the 
individual's ability to maintain his or her personal safety on a daily 
basis.
    Overpayment means a payment made by VA pursuant to this part to an 
individual in excess of the amount due, to which the individual was not 
eligible, or otherwise made in error. An overpayment is subject to 
collection action.
* * * * *
    Primary care team means one or more VA medical professionals who 
care for a patient based on the clinical needs of the patient.
* * * * *
    Serious injury means any service-connected disability that:
    (1) Is rated at 70 percent or more by VA; or
    (2) Is combined with any other service-connected disability or 
disabilities, and a combined rating of 70 percent or more is assigned 
by VA.
    Unable to self-sustain in the community means that an eligible 
veteran:
    (1) Requires personal care services each time he or she completes 
three or more of the seven activities of daily living (ADL) listed in 
the definition of an inability to perform an activity of daily living 
in this section, and is fully dependent on a caregiver to complete such 
ADLs; or
    (2) Has a need for supervision, protection, or instruction on a 
continuous basis.
* * * * *
0
4. Revise Sec.  71.20 to read as follows:


Sec.  71.20   Eligible veterans and servicemembers.

    A veteran or servicemember is eligible for a Family Caregiver under 
this part if he or she meets the criteria in paragraph (a), (b), or (c) 
of this section, subject to the limitations set forth in such 
paragraphs.
    (a) A veteran or servicemember is eligible for a Primary or 
Secondary Family Caregiver under this part if he or she meets all of 
the following requirements:
    (1) The individual is either:
    (i) A veteran; or
    (ii) A member of the Armed Forces undergoing a medical discharge 
from the Armed Forces.
    (2) The individual has a serious injury incurred or aggravated in 
the line of duty in the active military, naval, or air service:
    (i) On or after September 11, 2001;
    (ii) Effective on the date specified in a future Federal Register 
document, on or before May 7, 1975; or
    (iii) Effective two years after the date specified in a future 
Federal Register document as described in paragraph (a)(2)(ii) of this 
section, after May 7, 1975 and before September 11, 2001.
    (3) The individual is in need of personal care services for a 
minimum of six continuous months based on any one of the following:
    (i) An inability to perform an activity of daily living; or
    (ii) A need for supervision, protection, or instruction.
    (4) It is in the best interest of the individual to participate in 
the program.
    (5) Personal care services that would be provided by the Family 
Caregiver will not be simultaneously and regularly provided by or 
through another individual or entity.
    (6) The individual receives care at home or will do so if VA 
designates a Family Caregiver.

[[Page 13407]]

    (7) The individual receives ongoing care from a primary care team 
or will do so if VA designates a Family Caregiver.
    (b) For one year beginning on [EFFECTIVE DATE OF FINAL RULE], a 
veteran or servicemember is eligible for a Primary or Secondary Family 
Caregiver under this part if he or she is a legacy participant.
    (c) For one year beginning on [EFFECTIVE DATE OF FINAL RULE], a 
veteran or servicemember is eligible for a Primary or Secondary Family 
Caregiver under this part if he or she is a legacy applicant.
0
5. Amend Sec.  71.25:
0
a. By revising paragraph (a);
0
b. In paragraph (c)(1) introductory text, by removing the phrase ``a VA 
primary care team'' and adding in its place ``VA''; and
0
c. By revising paragraphs (c)(1)(i) and (ii), (c)(2), (e), and (f); and
0
d. By removing the authority citation at the end of the section.
    The revisions read as follows:


Sec.  71.25  Approval and designation of Primary and Secondary Family 
Caregivers.

    (a) Application requirement. (1) Individuals who wish to be 
considered for designation by VA as Primary or Secondary Family 
Caregivers must submit a joint application, along with the veteran or 
servicemember. Individuals interested in serving as Family Caregivers 
must be identified as such on the joint application, and no more than 
three individuals may serve as Family Caregivers at one time for an 
eligible veteran, with no more than one serving as the Primary Family 
Caregiver and no more than two serving as Secondary Family Caregivers.
    (2)(i) Upon receiving such application, VA (in collaboration with 
the primary care team to the maximum extent practicable) will perform 
the evaluations required to determine the eligibility of the applicants 
under this part, and if eligible, determine the applicable monthly 
stipend amount under Sec.  71.40(c)(4). Notwithstanding the first 
sentence, VA will not evaluate a veteran's or servicemember's 
eligibility under Sec.  71.20 when a joint application is received to 
add a Secondary Family Caregiver for an eligible veteran who has a 
designated Primary Family Caregiver.
    (ii) Individuals who apply to be Family Caregivers must complete 
all necessary eligibility evaluations (along with the veteran or 
servicemember), education and training, and the initial home-care 
assessment (along with the veteran or servicemember) so that VA may 
complete the designation process no later than 90 days after the date 
the joint application was received by VA. If such requirements are not 
complete within 90 days from the date the joint application is received 
by VA, the joint application will be denied, and a new joint 
application will be required. VA may extend the 90-day period based on 
VA's inability to complete the eligibility evaluations, provide 
necessary education and training, or conduct the initial home-care 
assessment, when such inability is solely due to VA's action.
    (3)(i) Except as provided in this paragraph, joint applications 
received by VA before [EFFECTIVE DATE OF FINAL RULE] will be evaluated 
by VA based on 38 CFR 71.15, 71.20, and 71.25 (2019). Notwithstanding 
the previous sentence, the term ``joint application'' as defined in 
Sec.  71.15 applies to applications described in this paragraph.
    (ii) Joint applications received by VA on or after [EFFECTIVE DATE 
OF FINAL RULE] will be evaluated by VA based on the provisions of this 
part in effect on or after [EFFECTIVE DATE OF FINAL RULE].
    (A) VA will deny any joint application of an individual described 
in Sec.  71.20(a)(2)(ii), if such joint application is received by VA 
before the date published in a future Federal Register document that is 
specified in such section. A veteran or servicemember seeking to 
qualify for the Program of Comprehensive Assistance for Family 
Caregivers pursuant to Sec.  71.20(a)(2)(ii) should submit a joint 
application that is received by VA on or after the date published in a 
future Federal Register document that is specified in Sec.  
71.20(a)(2)(ii).
    (B) VA will deny any joint application of an individual described 
in Sec.  71.20(a)(2)(iii), if such joint application is received by VA 
before the date that is two years after the date published in a future 
Federal Register document that is specified in Sec.  71.20(a)(2)(ii). A 
veteran or servicemember seeking to qualify for the Program of 
Comprehensive Assistance for Family Caregivers pursuant to Sec.  
71.20(a)(2)(iii) should submit a joint application that is received by 
VA on or after the date that is two years after the date published in a 
future Federal Register document that is specified in Sec.  
71.20(a)(2)(ii).
* * * * *
    (c) * * *
    (1) * * *
    (i) Whether the applicant can communicate and understand the 
required personal care services and any specific instructions related 
to the care of the eligible veteran (accommodation for language or 
hearing impairment will be made to the extent possible and as 
appropriate); and
    (ii) Whether the applicant will be capable of performing the 
required personal care services without supervision, in adherence with 
the eligible veteran's treatment plan in support of the needs of the 
eligible veteran.
    (2) Complete caregiver training and demonstrate the ability to 
carry out the specific personal care services, core competencies, and 
additional care requirements.
* * * * *
    (e) Initial home-care assessment. VA will visit the eligible 
veteran's home to assess the eligible veteran's well-being and the 
well-being of the caregiver, as well as the caregiver's competence to 
provide personal care services at the eligible veteran's home.
    (f) Approval and designation. VA will approve the joint application 
and designate Primary and/or Secondary Family Caregivers, as 
appropriate, if the applicable requirements of this part are met. 
Approval and designation is conditioned on the eligible veteran and 
designated Family Caregiver(s) remaining eligible for Family Caregiver 
benefits under this part, the Family Caregiver(s) providing the 
personal care services required by the eligible veteran, and the 
eligible veteran and designated Family Caregiver(s) complying with all 
applicable requirements of this part, including participating in 
reassessments pursuant to Sec.  71.30 and wellness contacts pursuant to 
Sec.  71.40(b)(2). Refusal to comply with any applicable requirements 
of this part will result in revocation from the program pursuant to 
Sec.  71.45, Revocation and Discharge of Family Caregivers.


Sec.  71.30  [Redesignated as Sec.  71.35 and Amended]

0
6. Redesignate Sec.  71.30 as Sec.  71.35 and remove the authority 
citation at the end of the section.
0
7. Add a new Sec.  71.30 to read as follows:


Sec.  71.30  Reassessment of Eligible Veterans and Family Caregivers.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
the eligible veteran and Family Caregiver will be reassessed by VA on 
an annual basis to determine their continued eligibility for 
participation in PCAFC under this part. Reassessments will include 
consideration of whether the eligible veteran is unable to self-sustain 
in the community for purposes of the monthly stipend rate under Sec.  
71.40(c)(4)(i)(A).

[[Page 13408]]

Reassessment may include a visit to the eligible veteran's home.
    (b) Reassessments may occur more frequently than annually if a 
determination is made and documented by VA that more frequent 
reassessment is appropriate.
    (c) Reassessments may occur on a less than annual basis if a 
determination is made and documented by VA that an annual reassessment 
is unnecessary.
    (d) Failure of the eligible veteran or Family Caregiver to 
participate in any reassessment pursuant to this section will result in 
revocation pursuant to Sec.  71.45, Revocation and Discharge of Family 
Caregivers.
    (e)(1) If the eligible veteran meets the requirements of Sec.  
71.20(b) or (c) (i.e., is a legacy participant or a legacy applicant), 
the eligible veteran and Family Caregiver will be reassessed by VA 
within the one-year period beginning on [EFFECTIVE DATE OF FINAL RULE] 
to determine whether the eligible veteran meets the requirements of 
Sec.  71.20(a). This reassessment may include a visit to the eligible 
veteran's home. If the eligible veteran meets the requirements of Sec.  
71.20(a), the reassessment will consider whether the eligible veteran 
is unable to self-sustain in the community for purposes of the monthly 
stipend rate under Sec.  71.40(c)(4)(i)(A).
    (2) Notwithstanding paragraph (e)(1) of this section, a 
reassessment will not be completed under paragraph (e)(1) if at some 
point before a reassessment is completed during the one-year period 
beginning on [EFFECTIVE DATE OF FINAL RULE] the individual no longer 
meets the requirements of Sec.  71.20(b) or (c).
0
8. Amend Sec.  71.40 by revising paragraphs (b)(2), (c) introductory 
text, and (c)(4), adding paragraphs (c)(5) and (6), revising paragraph 
(d), and removing the authority citation at the end of the section.
    The revisions and additions read as follows:


Sec.  71.40  Caregiver benefits.

* * * * *
    (b) * * *
    (2) Wellness contacts to review the eligible veteran's well-being, 
adequacy of personal care services being provided by the Family 
Caregiver(s), and the well-being of the Family Caregiver(s). This 
wellness contact will occur at a minimum of once every 180 days, and at 
least one visit must occur in the eligible veteran's home on an annual 
basis. Failure of the eligible veteran and Family Caregiver to 
participate in any wellness contacts pursuant to this paragraph will 
result in revocation pursuant to Sec.  71.45, Revocation and Discharge 
of Family Caregivers.
* * * * *
    (c) Primary Family Caregiver benefits. VA will provide to Primary 
Family Caregivers all of the benefits listed in paragraphs (c)(1) 
through (6) of this section.
* * * * *
    (4) Primary Family Caregivers will receive a monthly stipend for 
each month's participation as a Primary Family Caregiver.
    (i) Stipend amount. (A) Except as provided in paragraph 
(c)(4)(i)(C) of this section, if the eligible veteran meets the 
requirements of Sec.  71.20(a), the Primary Family Caregiver's monthly 
stipend is the amount set forth in paragraph (c)(4)(i)(A)(1) or (2) of 
this section.
    (1) The Primary Family Caregiver's monthly stipend is calculated by 
multiplying the monthly stipend rate by 0.625.
    (2) If VA determines that the eligible veteran is unable to self-
sustain in the community, the Primary Family Caregiver's monthly 
stipend is calculated by multiplying the monthly stipend rate by 1.00.
    (B) Except as provided in paragraph (c)(4)(i)(C) of this section, 
for one year beginning on [EFFECTIVE DATE OF FINAL RULE], if the 
eligible veteran meets the requirements of Sec.  71.20(b) or (c), 
(i.e., is a legacy participant or a legacy applicant), the Primary 
Family Caregiver's monthly stipend is calculated based on the clinical 
rating in 38 CFR 71.40(c)(4)(i) through (iii) (2019) and the 
definitions applicable to such paragraphs under 38 CFR 71.15 (2019). If 
the sum of all of the ratings assigned is:
    (1) 21 or higher, then the Primary Family Caregiver's monthly 
stipend is calculated by multiplying the monthly stipend rate by 1.00.
    (2) 13 to 20, then the Primary Family Caregiver's monthly stipend 
is calculated by multiplying the monthly stipend rate by 0.625.
    (3) 1 to 12, then the Primary Family Caregiver's monthly stipend is 
calculated by multiplying the monthly stipend rate by 0.25.
    (C) For one year beginning on [EFFECTIVE DATE OF FINAL RULE], if 
the eligible veteran meets the requirements of Sec.  71.20(a) and (b) 
or (c), the Primary Family Caregiver's monthly stipend is the amount 
the Primary Family Caregiver is eligible to receive under paragraph 
(c)(4)(i)(A) or (B) of this section, whichever is higher. If the higher 
monthly stipend rate is the amount the Primary Family Caregiver is 
eligible to receive under paragraph (c)(4)(i)(A) of this section, the 
stipend rate will be adjusted and paid in accordance with paragraph 
(c)(4)(ii)(C)(2)(i) of this section.
    (D) Special rule for Primary Family Caregivers subject to decrease 
because of monthly stipend rate. Notwithstanding paragraphs 
(c)(4)(i)(A) through (C) of this section, for one year beginning on 
[EFFECTIVE DATE OF FINAL RULE], if the eligible veteran meets the 
requirements of Sec.  71.20(b), the Primary Family Caregiver's monthly 
stipend is not less than the amount the Primary Family Caregiver was 
eligible to receive as of the day before [EFFECTIVE DATE OF FINAL RULE] 
(based on the eligible veteran's address on record with the Program of 
Comprehensive Assistance for Family Caregivers on such date) so long as 
the eligible veteran resides at the same address on record with the 
Program of Comprehensive Assistance for Family Caregivers as of the day 
before [EFFECTIVE DATE OF FINAL RULE]. If the eligible veteran 
relocates to a different address, the stipend amount thereafter is 
determined pursuant to paragraph (c)(4)(i)(A), (B), or (C) of this 
section and adjusted in accordance with paragraph (c)(4)(ii)(B) of this 
section.
    (ii) Adjustments to stipend payments.
    (A) Adjustments to stipend payments that result from OPM's updates 
to the General Schedule (GS) Annual Rate for grade 4, step 1 for the 
locality pay area in which the eligible veteran resides take effect as 
of the date the update to such rate is made effective by OPM.
    (B) Adjustments to stipend payments that result from the eligible 
veteran relocating to a new address are effective the first of the 
month following the month in which VA is notified that the eligible 
veteran has relocated to a new address. VA must receive notification 
within 30 days from the date of relocation. If VA does not receive 
notification within 30 days from the date of relocation, VA will seek 
to recover overpayments of benefits under this paragraph (c)(4) back to 
the latest date on which the adjustment would have been effective if VA 
had been notified within 30 days from the date of relocation, as 
provided in Sec.  71.47.
    (C) The Primary Family Caregiver's monthly stipend may be adjusted 
pursuant to the reassessment conducted by VA under Sec.  71.30.
    (1) If the eligible veteran meets the requirements of Sec.  
71.20(a) only (and does not meet the requirements of Sec.  71.20(b) or 
(c)), the Primary Family Caregiver's monthly stipend is adjusted as 
follows:
    (i) In the case of a reassessment that results in an increase in 
the monthly

[[Page 13409]]

stipend payment, the increase takes effect as of the date of the 
reassessment.
    (ii) In the case of a reassessment that results in a decrease in 
the monthly stipend payment, the decrease takes effect as of the 
effective date provided in VA's final notice of such decrease to the 
eligible veteran and Primary Family Caregiver. The effective date of 
the decrease will be no earlier than 60 days after VA provides advanced 
notice of its findings to the eligible veteran and Primary Family 
Caregiver.
    (2) If the eligible veteran meets the requirements of Sec.  
71.20(b) or (c), the Primary Family Caregiver's monthly stipend may be 
adjusted as follows:
    (i) In the case of a reassessment that results in an increase in 
the monthly stipend payment, the increase takes effect as of the date 
of the reassessment. The Primary Family Caregiver will also be paid the 
difference between the amount under paragraph (c)(4)(i)(A) of this 
section that the Primary Family Caregiver is eligible to receive and 
the amount the Primary Family Caregiver was eligible to receive under 
paragraph (c)(4)(i)(B) or (D) of this section, whichever the Primary 
Family Caregiver received for the time period beginning on [EFFECTIVE 
DATE OF FINAL RULE] up to the date of the reassessment, based on the 
eligible veteran's address on record with the Program of Comprehensive 
Assistance for Family Caregivers on the date of the reassessment and 
the monthly stipend rate on such date. If there is more than one 
reassessment for an eligible veteran during the one-year period 
beginning on [EFFECTIVE DATE OF FINAL RULE], the retroactive payment 
described in the previous sentence applies only if the first 
reassessment during the one-year period beginning on [EFFECTIVE DATE OF 
FINAL RULE] results in an increase in the monthly stipend payment, and 
only as the result of the first reassessment during the one-year 
period.
    (ii) In the case of a reassessment that results in a decrease in 
the monthly stipend payment and the eligible veteran meets the 
requirements of Sec.  71.20(a), the new stipend amount under paragraph 
(c)(4)(i)(A) of this section takes effect as of the effective date 
provided in VA's final notice of such decrease to the eligible veteran 
and Primary Family Caregiver. The effective date of the decrease will 
be no earlier than 60 days after the date that is one year after 
[EFFECTIVE DATE OF FINAL RULE]. On the date that is one year after 
[EFFECTIVE DATE OF FINAL RULE], VA will provide advanced notice of its 
findings to the eligible veteran and Primary Family Caregiver.
    Note to paragraph (c)(4)(ii)(C)(2): If an eligible veteran who 
meets the requirements of Sec.  71.20(b) or (c) is determined, pursuant 
to a reassessment conducted by VA under Sec.  71.30, to not meet the 
requirements of Sec.  71.20(a), the monthly stipend payment will not be 
increased under paragraph (c)(4)(ii)(C)(2)(i) of this section or 
decreased under paragraph (c)(4)(ii)(C)(2)(ii) of this section. Unless 
the Family Caregiver is revoked or discharged under Sec.  71.45 before 
the date that is 60 days after the date that is one year after 
[EFFECTIVE DATE OF FINAL RULE], the effective date for discharge of the 
Family Caregiver of a legacy participant or legacy applicant under 
Sec.  71.45(b)(1)(ii) will be no earlier than 60 days after the date 
that is one year after [EFFECTIVE DATE OF FINAL RULE]. On the date that 
is one year after [EFFECTIVE DATE OF FINAL RULE], VA will provide 
advanced notice of its findings to the eligible veteran and Family 
Caregiver.
    (D) Adjustments to stipend payments for the first month will take 
effect on the date specified in paragraph (d) of this section. Stipend 
payments for the last month will end on the date specified in Sec.  
71.45.
    (iii) No employment relationship. Nothing 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 part.
    (iv) Periodic assessment. In consultation with other appropriate 
agencies of the Federal government, VA shall periodically assess 
whether the monthly stipend rate meets the requirements of 38 U.S.C. 
1720G(a)(3)(C)(ii) and (iv). If VA determines that adjustments to the 
monthly stipend rate are necessary, VA shall make such adjustments 
through future rulemaking.
    (5) Primary Family Caregivers are eligible for financial planning 
services as that term is defined in Sec.  71.15. Such services will be 
provided by entities authorized pursuant to any contract entered into 
between VA and such entities.
    (6) Primary Family Caregivers are eligible for legal services as 
that term is defined in Sec.  71.15. Such services will be provided by 
entities authorized pursuant to any contract entered into between VA 
and such entities.
    (d) Effective date of benefits under the Program of Comprehensive 
Assistance for Family Caregivers. Except for paragraphs (b)(6) and 
(c)(3) and (4) of this section, caregiver benefits under paragraphs (b) 
and (c) of this section are effective upon approval and designation 
under Sec.  71.25(f). Caregiver benefits under paragraphs (b)(6) and 
(c)(3) and (4) are effective on the latest of the following dates:
    (1) The date the joint application that resulted in approval and 
designation of the Family Caregiver is received by VA.
    (2) The date the eligible veteran begins receiving care at home.
    (3) The date the Family Caregiver begins providing personal care 
services to the eligible veteran at home.
    (4) In the case of a new Family Caregiver applying to be the 
Primary Family Caregiver for an eligible veteran, the day after the 
effective date of revocation or discharge of the previous Primary 
Family Caregiver for the eligible veteran (such that there is only one 
Primary Family Caregiver designated for an eligible veteran at one 
time).
    (5) In the case of a new Family Caregiver applying to be a 
Secondary Family Caregiver for an eligible veteran who already has two 
Secondary Family Caregivers approved and designated by VA, the day 
after the effective date of revocation or discharge of a previous 
Secondary Family Caregiver for the eligible veteran (such that there 
are no more than two Secondary Family Caregivers designated for an 
eligible veteran at one time).
    (6) In the case of a current or previous Family Caregiver 
reapplying with the same eligible veteran, the day after the date of 
revocation or discharge under Sec.  71.45, or in the case of extended 
benefits under Sec.  71.45(b)(1)(iii), (b)(2)(iii), (b)(3)(iii)(A) or 
(B), and (b)(4)(iv), the day after the last date on which such Family 
Caregiver received caregiver benefits.
    (7) The day after the date a joint application is denied.
0
 9. Revise Sec.  71.45 to read as follows:


Sec.  71.45  Revocation and Discharge of Family Caregivers.

    (a) Revocation of the Family Caregiver--(1) Bases for revocation of 
the Family Caregiver--(i) For Cause. VA will revoke the designation of 
a Family Caregiver for cause when VA determines any of the following:
    (A) The Family Caregiver or eligible veteran committed fraud under 
this part;
    (B) The Family Caregiver neglected, abused, or exploited the 
eligible veteran;
    (C) Personal safety issues exist for the eligible veteran that the 
Family Caregiver is unwilling to mitigate;
    (D) The Family Caregiver is unwilling to provide personal care 
services to the eligible veteran or, in the case of the Family 
Caregiver's temporary absence or incapacitation, fails to ensure (if 
able to)

[[Page 13410]]

the provision of personal care services to the eligible veteran.
    (ii) Noncompliance. Except as provided in paragraph (f) of this 
section, VA will revoke the designation of a Family Caregiver when the 
Family Caregiver or eligible veteran is noncompliant with the 
requirements of this part. Noncompliance means:
    (A) The eligible veteran does not meet the requirements of Sec.  
71.20(a)(5), (6), or (7);
    (B) The Family Caregiver does not meet the requirements of Sec.  
71.25(b)(2);
    (C) Failure of the eligible veteran or Family Caregiver to 
participate in any reassessment pursuant to Sec.  71.30;
    (D) Failure of the eligible veteran or Family Caregiver to 
participate in any wellness contact pursuant to Sec.  71.40(b)(2); or
    (E) Failure to meet any other requirement of this part except as 
provided in paragraph (b)(1) or (2) of this section.
    (iii) VA error. Except as provided in Sec.  71.45(f), VA will 
revoke the designation of a Family Caregiver if the Family Caregiver's 
approval and designation under this part was authorized as a result of 
an erroneous eligibility determination by VA.
    (2) Revocation date. All caregiver benefits will continue to be 
provided to the Family Caregiver until the date of revocation.
    (i) In the case of revocation based on fraud committed by the 
Family Caregiver or eligible veteran under paragraph (a)(1)(i)(A) of 
this section, the date of revocation will be the date the fraud began. 
If VA cannot identify when the fraud began, the date of revocation will 
be the earliest date that the fraud is known by VA to have been 
committed, and no later than the date on which VA identifies that fraud 
was committed.
    (ii) In the case of revocation based on paragraphs (a)(1)(i)(B) 
through (D) of this section, the date of revocation will be the date VA 
determines the criteria in any such paragraph has been met.
    (iii) In the case of revocation based on noncompliance under 
paragraph (a)(1)(ii) of this section, revocation takes effect as of the 
effective date provided in VA's final notice of such revocation to the 
eligible veteran and Family Caregiver. The effective date of revocation 
will be no earlier than 60 days after VA provides advanced notice of 
its findings to the eligible veteran and Family Caregiver.
    (iv) In the case of revocation based on VA error under paragraph 
(a)(1)(iii) of this section, the date of revocation will be the date 
the error was made. If VA cannot identify when the error was made, the 
date of revocation will be the earliest date that the error is known by 
VA to have occurred, and no later than the date on which VA identifies 
that the error occurred.
    (3) Continuation of benefits. In the case of revocation based on VA 
error under paragraph (a)(1)(iii) of this section, caregiver benefits 
will continue for 60 days after the date of revocation unless the 
Family Caregiver opts out of receiving such benefits. Continuation of 
benefits under this paragraph will be considered an overpayment and VA 
will seek to recover overpayment of such benefits as provided in Sec.  
71.47.
    (b) Discharge of the Family Caregiver--(1) Discharge due to the 
eligible veteran--(i) Bases for discharge. Except as provided in 
paragraph (f) of this section, the Family Caregiver will be discharged 
from the Program of Comprehensive Assistance for Family Caregivers when 
VA determines any of the following:
    (A) Except as provided in paragraphs (a)(1)(ii)(A) and (b)(1)(i)(B) 
of this section, the eligible veteran does not meet the requirements of 
Sec.  71.20 because of improvement in the eligible veteran's condition 
or otherwise; or
    (B) Death or institutionalization of the eligible veteran. Note: VA 
must receive notification of death or institutionalization of the 
eligible veteran as soon as possible but not later than 30 days from 
the date of death or institutionalization. Notification of 
institutionalization must indicate whether the eligible veteran is 
expected to be institutionalized for 90 or more days from the onset of 
institutionalization.
    (ii) Discharge date. (A) In the case of discharge based on 
paragraph (b)(1)(i)(A) of this section, the discharge takes effect as 
of the effective date provided in VA's final notice of such discharge 
to the eligible veteran and Family Caregiver. The effective date of 
discharge will be no earlier than 60 days after VA provides advanced 
notice of its findings to the eligible veteran and Family Caregiver 
that the eligible veteran does not meet the requirements of Sec.  
71.20.
    (B) For discharge based on paragraph (b)(1)(i)(B) of this section, 
the date of discharge will be the earliest of the following dates, as 
applicable:
    (1) Date of death of the eligible veteran.
    (2) Date that institutionalization begins, if it is determined that 
the eligible veteran is expected to be institutionalized for a period 
of 90 days or more.
    (3) Date of the 90th day of institutionalization.
    (iii) Continuation of benefits. Caregiver benefits will continue 
for 90 days after the date of discharge.
    (2) Discharge due to the Family Caregiver--(i) Bases for discharge. 
Except as provided in paragraph (f) of this section, the Family 
Caregiver will be discharged from the Program of Comprehensive 
Assistance for Family Caregivers due to the death or 
institutionalization of the Family Caregiver. Note: VA must receive 
notification of death or institutionalization of the Family Caregiver 
as soon as possible but not later than 30 days from the date of death 
or institutionalization. Notification of institutionalization must 
indicate whether Family Caregiver is expected to be institutionalized 
for 90 or more days from the onset of institutionalization.
    (ii) Discharge date. The date of discharge will be the earliest of 
the following dates, as applicable:
    (A) Date of death of the Family Caregiver.
    (B) Date that the institutionalization begins, if it is determined 
that the Family Caregiver is expected to be institutionalized for a 
period of 90 days or more.
    (C) Date of the 90th day of institutionalization.
    (iii) Continuation of benefits. Caregiver benefits will continue 
for 90 days after date of discharge in paragraph (b)(2)(ii)(B) or (C) 
of this section.
    (3) Discharge of the Family Caregiver by request of the Family 
Caregiver--(i) Request for discharge. Except as provided in paragraph 
(f) of this section, the Family Caregiver will be discharged from the 
Program of Comprehensive Assistance for Family Caregivers if a Family 
Caregiver requests discharge of his or her caregiver designation. The 
request may be made verbally or in writing and must provide the present 
or future date of discharge. If the discharge request is received 
verbally, VA will provide the Family Caregiver written confirmation of 
receipt of the verbal discharge request and the effective date of 
discharge. VA will notify the eligible veteran verbally and in writing 
of the request for discharge and the effective date of discharge.
    (ii) Discharge date. The date of discharge will be the present or 
future date provided by the Family Caregiver or the date of the Family 
Caregiver's request for discharge if the Family Caregiver does not 
provide a date. If the request does not include an identified date of 
discharge, VA will contact the Family Caregiver to request a date. If 
unable to successfully obtain this date, discharge will be effective as 
of the date of the request.

[[Page 13411]]

    (iii) Continuation of benefits. (A) Except as provided in paragraph 
(b)(3)(iii)(B) of this section, caregiver benefits will continue for 30 
days after the date of discharge.
    (B) If the Family Caregiver requests discharge due to domestic 
violence (DV) or intimate partner violence (IPV) perpetrated by the 
eligible veteran against the Family Caregiver, caregiver benefits will 
continue for 90 days after the date of discharge when any of the 
following can be established:
    (1) The issuance of a protective order, to include interim, 
temporary and/or final protective orders, to protect the Family 
Caregiver from DV or IPV perpetrated by the eligible veteran.
    (2) A police report indicating DV or IPV perpetrated by the 
eligible veteran against the Family Caregiver or a record of an arrest 
related to DV or IPV perpetrated by the eligible veteran against the 
Family Caregiver; or
    (3) Documentation of disclosure of DV or IPV perpetrated by the 
eligible veteran against the Family Caregiver to a treating provider 
(e.g., physician, dentist, psychologist, rehabilitation therapist) of 
the eligible veteran or Family Caregiver, Intimate Partner Violence 
Assistance Program (IPVAP) Coordinator, therapist or counselor.
    (4) Discharge of the Family Caregiver by request of the eligible 
veteran or eligible veteran's surrogate--(i) Request for discharge. 
Except as provided in paragraph (f) of this section, the Family 
Caregiver will be discharged from the Program of Comprehensive 
Assistance for Caregivers if an eligible veteran or the eligible 
veteran's surrogate requests discharge of the Family Caregiver. The 
discharge request may be made verbally or in writing and must express 
an intent to remove the Family Caregiver's approval and designation. If 
the discharge request is received verbally, VA will provide the 
eligible veteran written confirmation of receipt of the verbal 
discharge request and effective date of discharge. VA will notify the 
Family Caregiver verbally and in writing of the request for discharge 
and effective date of discharge.
    (ii) Discharge date. The date of discharge will be the present or 
future date of discharge provided by the eligible veteran or eligible 
veteran's surrogate. If the request does not provide a present or 
future date of discharge, VA will ask the eligible veteran or eligible 
veteran's surrogate to provide one. If unable to successfully obtain 
this date, discharge will be effective as of the date of the request.
    (iii) Rescission. VA will allow the eligible veteran or eligible 
veteran's surrogate to rescind the discharge request and have the 
Family Caregiver reinstated if the rescission is made within 30 days of 
the date of discharge. If the eligible veteran or eligible veteran's 
surrogate expresses a desire to reinstate the Family Caregiver more 
than 30 days from the date of discharge, a new joint application is 
required.
    (iv) Continuation of benefits. Caregiver benefits will continue for 
30 days after the date of discharge.
    (c) Safety and welfare. If VA suspects that the safety of the 
eligible veteran is at risk, then VA may suspend the caregiver's 
responsibilities, and facilitate appropriate referrals to protective 
agencies or emergency services if needed, to ensure the welfare of the 
eligible veteran, prior to discharge or revocation.
    (d) Overpayments. VA will seek to recover overpayments of benefits 
provided under this section as provided in Sec.  71.47.
    (e) Transition and bereavement counseling. VA will, if requested 
and applicable, assist the Family Caregiver in transitioning to 
alternative health care coverage and mental health services. In 
addition, in cases of death of the eligible veteran, bereavement 
counseling may be available under 38 U.S.C. 1783.
    (f) Multiple bases for revocation or discharge. In the instance 
that a Family Caregiver may be both discharged pursuant to any of the 
criteria in paragraph (b) of this section and have his or her 
designation revoked pursuant to any of the criteria in paragraph (a) of 
this section, the Family Caregiver's designation will be revoked 
pursuant to paragraph (a). In the instance that the designation of a 
Family Caregiver may be revoked under paragraph (a)(1)(i) and paragraph 
(a)(1)(ii) or (iii) of this section, the designation of the Family 
Caregiver will be revoked pursuant to paragraph (a)(1)(i). In the 
instance that the designation of a Family Caregiver may be revoked 
under paragraphs (a)(1)(ii) and (iii) of this section, the designation 
of the Family Caregiver will be revoked pursuant to paragraph 
(a)(1)(iii). In the instance that a Family Caregiver may be discharged 
under paragraph (b)(1), (2), (3), or (4) of this section, the Family 
Caregiver will be discharged pursuant to the paragraph most favorable 
to the Family Caregiver.
0
 10. Add Sec.  71.47 to read as follows:


Sec.  71.47  Collection of overpayment.

    VA will collect overpayments as defined in Sec.  71.15 pursuant to 
the Federal Claims Collection Standards.


Sec.  71.50  [Amended]

0
11. Amend Sec.  71.50 by removing the statutory authority citation at 
the end of each section.

[FR Doc. 2020-04464 Filed 3-4-20; 8:45 am]
 BILLING CODE 8320-01-P