Amendments to the Program of Comprehensive Assistance for Family Caregivers, 97404-97457 [2024-28079]
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Administration, Department of Veterans
Affairs, 810 Vermont Ave. NW,
Washington, DC 20420, (202) 461–5649.
(This is not a toll-free telephone
number.)
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 71
RIN 2900–AR96
Amendments to the Program of
Comprehensive Assistance for Family
Caregivers
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) proposes to revise the
regulations that govern VA’s Program of
Comprehensive Assistance for Family
Caregivers (PCAFC). This proposed rule
explains numerous changes VA is
considering making that would
primarily impact PCAFC, including, but
not limited to, removing, adding, and
revising definitions; revising criteria
related to eligibility, revocations, and
discharges; revising certain processes
related to reassessments and the timing
of reassessments; and relaxing in-home
visits during emergencies.
DATES: Comments must be received on
or before February 4, 2025.
ADDRESSES: Comments must be
submitted through www.regulations.gov.
Except as provided below, comments
received before the close of the
comment period will be available at
www.regulations.gov for public viewing,
inspection, or copying, including any
personally identifiable or confidential
business information that is included in
a comment. We post the comments
received before the close of the
comment period on the following
website as soon as possible after they
have been received: https://
www.regulations.gov. VA will not post
on Regulations.gov public comments
that make threats to individuals or
institutions or suggest that the
commenter will take actions to harm an
individual. VA encourages individuals
not to submit duplicative comments;
however, we will post comments from
multiple unique commenters even if the
content is identical or nearly identical
to other comments. Any public
comment received after the comment
period’s closing date is considered late
and will not be considered in the final
rulemaking. In accordance with the
Providing Accountability Through
Transparency Act of 2023, a 100 word
Plain-Language Summary of this
proposed rule is available at
Regulations.gov, under RIN 2900–AR96.
FOR FURTHER INFORMATION CONTACT:
Colleen Richardson, PsyD, Executive
Director, Caregiver Support Program,
Patient Care Services, Veterans Health
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SUMMARY:
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I. Background and Public Input
A. Statutory Authority
Title I of Public Law 111–163, the
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 incurred or aggravated a serious
injury in the line of duty on or after
September 11, 2001, are in need of
personal care services, and meet other
requirements. The Caregivers Act also
required VA to establish a program of
general caregiver support services,
pursuant to 38 U.S.C. 1720G(b), for
caregivers of covered veterans of all eras
of military service. VA implemented
PCAFC and the Program of General
Caregiver Support Services (PGCSS)
through its regulations in 38 CFR part
71.
On June 6, 2018, the John S. McCain
III, Daniel K. Akaka, and Samuel R.
Johnson VA Maintaining Internal
Systems and Strengthening Integrated
Outside Networks Act of 2018
(hereinafter referred to as the ‘‘VA
MISSION Act’’) was signed into law,
which in part amended 38 U.S.C.
1720G. These amendments included
expanding eligibility for PCAFC in a
phased approach to Family Caregivers
(as that term is defined in 38 CFR 71.15)
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 (as that term
is defined in § 71.15) of eligible
veterans, and making other changes
affecting program eligibility and VA’s
evaluation of PCAFC applications.
B. Recent Program Improvements
VA adopted revisions to 38 CFR part
71 in a final rule dated July 31, 2020,
following the enactment of the VA
MISSION Act. 85 FR 46226 (July 31,
2020) (hereinafter the July 31, 2020
Final Rule). The July 31, 2020 Final
Rule included changes to certain PCAFC
eligibility criteria and took effect
October 1, 2020.
In parallel to those regulatory
changes, VA implemented new
processes used within PCAFC. For
example, in late 2020, VA implemented
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the use of Centralized Eligibility and
Appeals Teams (CEATs). CEATs are
composed of a standardized group of
inter-professional, licensed
practitioners, with specific expertise
and training in the eligibility
requirements for PCAFC and the criteria
for the higher stipend level. CEATs
make determinations of PCAFC
eligibility and, if applicable,
determinations on whether the Primary
Family Caregiver is eligible for the
higher stipend level. Since
implementing CEATs, the time required
to evaluate PCAFC eligibility and render
application determinations has been
markedly reduced. At the end of fiscal
year 2021, 62.9 percent of PCAFC
application determinations were
rendered within 90 days of VA receiving
the application. By the end of fiscal year
2023, this percentage increased and 98
percent of PCAFC application
determinations were rendered within 90
days of VA receiving the application.
Additionally, VA continues concerted
efforts to enhance training of staff
involved in the evaluation of PCAFC
eligibility criteria and delivery of
PCAFC. Further, VA continues to
institute standardized quality assurance
measures to monitor and support
accuracy and consistency in decisionmaking. If VA issues a PCAFC
determination that an individual
disagrees with, processes are in place
for individuals to request a review of or
appeal such decision(s). Those
processes are not addressed in this
proposed rule. Information about
options to request review of or appeal a
PCAFC decision is available at https://
www.caregiver.va.gov/support/PCAFC_
Appeals.asp.
Since these regulatory and policy
changes have taken effect, access to
PCAFC has expanded and the number of
eligible veterans and Family Caregivers
participating in PCAFC has continued to
grow. VA has, however, continued to
hear concerns from veterans, caregivers,
and other stakeholders about
inconsistency in VA’s decisions
impacting eligibility for PCAFC, and
concerns that certain PCAFC eligibility
criteria may be too restrictive.
In response to those concerns, in
March 2022, VA initiated a review of
PCAFC to examine areas within PCAFC
for which changes might be considered.
This review included engagements with
veterans, caregivers, Veterans Service
Organizations (VSOs) and others to hear
direct feedback about PCAFC.1 During
1 See Updates on the Family Caregiver program
for legacy participants and applicants, VA press
release, April 20, 2022, available at https://
news.va.gov/102672/updates-on-the-family-
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this review, VA identified further
opportunities for improvement.
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C. Consideration of Regulatory
Amendments and Executive Order
14095, Increasing Access to HighQuality Care and Supporting Caregivers
Based on the activities outlined
above, VA is proposing regulatory
changes to more fully address concerns
raised by stakeholders relating to
PCAFC eligibility criteria and other
program requirements. Furthermore, in
April 2023, the President issued
Executive Order 14095 which, among
other things, directed the Secretary of
Veterans Affairs to consider issuing a
notice of proposed rulemaking to
appropriately modify the eligibility
criteria for PCAFC. In accordance with
this Executive Order and based on
feedback from caregivers, veterans, and
other stakeholders and VA’s internal
evaluation of the program, VA has
considered appropriate modifications to
PCAFC eligibility criteria as well as
other program changes, which are
reflected in this proposed rule. VA
believes the regulatory amendments
proposed below, along with changes VA
has already made to improve its support
of eligible veterans and Family
Caregivers, demonstrates VA’s
unwavering commitment to
administering a program that is fair,
consistent, and transparent in its
decisions.
D. Public Input
VA routinely receives information
and feedback about PCAFC from
stakeholders. For example, on December
5, 2023, VA conducted a virtual
roundtable session with various VSOs
and other caregiver advocacy
organizations. The session provided
these stakeholders an opportunity to
share their views on topics related to
PCAFC. There were 24 representatives
from 15 organizations that attended the
virtual roundtable session with 13
individuals providing feedback during
the session. Representatives provided
information and recommendations on
how best to improve PCAFC eligibility
criteria, evaluation processes, and other
aspects of PCAFC that are governed by
regulation. Proposed modifications to
part 71, as discussed in this proposed
rule, address some of the feedback
received prior to and during the
December 5, 2023, session. A written
transcript of the December 5, 2023,
virtual roundtable session, including a
list of participating organizations, is
publicly available online at
caregiver-program-for-legacy-participants-andapplicants/ (last visited Aug. 8, 2024).
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www.regulations.gov under RIN 2900–
AR96. While VA did not solicit written
statements as part of this event, those
received by VA can also be found online
at www.regulations.gov under RIN
2900–AR96.
VA welcomes comments from the
public on all aspects of its proposed
modifications to VA regulations in part
71. VA also seeks specific feedback
within certain sections of this proposed
rule through targeted questions located
at the end of the applicable sections.
II. Proposed Changes to 38 CFR Part 71
As explained in more detail below,
VA proposes to revise part 71 by adding,
removing, and revising definitions and
eligibility criteria; revising the
regulations governing reassessments;
revising and clarifying certain
provisions regarding the application
process and the evaluation process for
determining eligibility; revising
provisions regarding adjustments to the
stipend payments; revising and
clarifying certain processes regarding
revocation and discharge; extending the
transition period for legacy participants,
legacy applicants, and their Family
Caregivers; and making other changes.
VA proposes these changes to simplify
and clarify certain aspects of VA’s
administration of PCAFC and to support
program integrity. Illustrative examples
are included throughout this proposal to
assist the reader with understanding
VA’s intended application of the
proposed rule.
A. Transition Period for Legacy Cohort
VA is proposing changes to PCAFC
eligibility and stipend level criteria as
part of this rulemaking. Under this
proposal, VA would extend the
transition period for legacy participants
and legacy applicants, and their Family
Caregivers, as those terms are defined in
§ 71.15, to allow time for VA to evaluate
their PCAFC eligibility and stipend
level pursuant to revised regulations
that may result from this rulemaking.
Specifically, VA proposes to extend
their eligibility and the time period for
VA to complete their reassessments,
through a date that is 18 months after
changes from this rulemaking are made
final and effective.
As part of the rulemaking that took
effect October 1, 2020, VA made
changes to the eligibility criteria for
PCAFC in § 71.20 and in doing so, set
forth a transition plan for legacy
participants and legacy applicants, and
their Family Caregivers, collectively
referred to herein as the legacy cohort.
85 FR 46253 (July 31, 2020). As part of
the transition plan, VA established a
one-year transition period wherein the
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legacy cohort would generally continue
to remain eligible for PCAFC while VA
completed reassessments to determine
their eligibility for PCAFC under the
new eligibility criteria. Id.
Subsequently, through publication of
two interim final rules, VA extended the
one-year transition period and timeline
for VA to conduct all reassessments of
the legacy cohort. The first interim final
rule, Extension of Program of
Comprehensive Assistance for Family
Caregivers Eligibility for Legacy
Participants and Legacy Applicants,
referred to herein as the First PCAFC
Extension for Legacy Cohort, was
published and effective on September
22, 2021. 86 FR 52614 (September 22,
2021). The First PCAFC Extension for
Legacy Cohort extended the transition
period by one year. Id. VA then
published a second interim final rule,
Extension of Program of Comprehensive
Assistance for Family Caregivers
Eligibility for Legacy Participants and
Legacy Applicants, referred to herein as
the Second PCAFC Extension for Legacy
Cohort, which became effective on
September 21, 2022, and extended the
transition period for the legacy cohort
and timeline for completing their
reassessments by three additional
years—to September 30, 2025. 87 FR
57602 (September 21, 2022).
1. Proposal To Extend Transition Period
for Legacy Cohort
VA proposes to further extend the
legacy cohort transition period through
a date that is 18 months after the date
this rulemaking, which proposes
changes to PCAFC eligibility and
stipend level criteria, becomes final and
effective to allow members of the legacy
cohort to be reassessed by VA pursuant
to such criteria. Without this extension,
members of the legacy cohort would be
subject to inequitable treatment or
unnecessary burden, depending on
whether changes to PCAFC eligibility
and stipend level criteria resulting from
this rulemaking go into effect before or
after September 30, 2025.
If changes to the PCAFC eligibility
and stipend level criteria are made final
and effective under this rulemaking
before September 30, 2025, VA would
not have sufficient time to complete
reassessments of all members of the
legacy cohort under the revised criteria
before such date. In this scenario, for
reassessments not completed under the
revised criteria before September 30,
2025, VA would have to carry out
discharges and stipend reductions based
on reassessments completed under
outdated criteria; or alternatively, VA
would have to set those determinations
aside and complete new reassessments
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under the new criteria, which, after
September 30, 2025, would result in
inequities among members of the legacy
cohort. This is because members of the
legacy cohort who are reassessed under
the new criteria and found to be no
longer eligible for PCAFC, or eligible but
with a reduced stipend amount, would
be impacted at different times based
only on when they are reassessed.
Neither option would be fair and
equitable to all members of the legacy
cohort.
If changes to the PCAFC eligibility
and stipend level criteria are made final
and effective under this rulemaking
after September 30, 2025, after that date,
VA would have to begin carrying out
discharges and stipend reductions for
members of the legacy cohort pursuant
to criteria VA is proposing to change.
Once the revised criteria are made final
and effective, such individuals would
be required to reapply to be considered
under the new criteria. This could be
perceived as unnecessarily burdensome,
and for those who reapply and are
found eligible, this gap would create
disruption to the supports and services
they receive through PCAFC. Extending
the transition period as proposed in this
rulemaking would avoid these
challenges.
VA proposes a period of 18 months
after the effective date of this
rulemaking to allow sufficient time to
complete reassessments for the legacy
cohort under the new PCAFC eligibility
and stipend level criteria. Prior to
initiating reassessments of PCAFC
eligibility, VA would need to inform
PCAFC participants, including the
legacy cohort, about the changes to
PCAFC eligibility and stipend level
criteria that become effective under this
rulemaking. VA believes 18 months will
allow adequate time to provide such
notification and would ensure VA can
complete these legacy reassessments
while also processing a potential influx
of new applications that VA may receive
following finalization of this
rulemaking. There are over 14,500
legacy applicants and legacy
participants who have not been
determined eligible for PCAFC under
the criteria that went into effect on
October 1, 2020, or who have been
determined eligible under such criteria
but at a lower stipend amount, and who
could most benefit from a reassessment
under revised criteria.
For these reasons, VA proposes to
amend part 71 to extend the transition
period for the legacy cohort and
timeline for VA to complete
reassessments of the legacy cohort to a
date that is 18 months after the effective
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date of a final rule under this
rulemaking.
2. Proposed Changes to 38 CFR 71.15,
71.20, 71.30, and 71.40
To effectuate an additional extension
to the legacy cohort transition period
and timeline for reassessments, VA
proposes several amendments to
§§ 71.15, 71.20, 71.30, and 71.40.
Among other changes, proposed
amendments would remove references
in current regulatory text to the five-year
period beginning on October 1, 2020,
and ending on September 30, 2025. VA
would instead include language that
reflects a period that begins on October
1, 2020, and ends on the date that is 18
months after the effective date of a final
rule adopting changes to eligibility and
stipend level criteria for PCAFC. These
specific proposed changes to the
regulations are discussed in greater
detail later in this rulemaking.
VA solicits comments from the public
on this proposal. In particular, VA
requests comments on the following.
1. Should VA consider a different
legacy cohort extension period other
than the proposed 18-month period after
the effective date of this rulemaking
which would adopt changes to
eligibility and stipend level criteria for
PCAFC? If yes, what time period should
VA consider and why?
2. What alternative approach(es)
should VA consider to reassess the
legacy cohort and ensure only those
individuals who meet eligibility criteria
are participating in PCAFC?
B. 38 CFR 71.10 Purpose and Scope
Current § 71.10 sets forth the purpose
and scope of part 71. Paragraph (b) of
§ 71.10 explains, among other things,
that PCAFC and Program of General
Caregiver Support Services (PGCSS)
benefits are provided only to those
individuals residing in a State as that
term is defined in 38 U.S.C. 101(20). VA
proposes to remove the language ‘‘as
that term is defined in 38 U.S.C.
101(20)’’ from 38 CFR 71.10(b) because
VA proposes to add a definition for the
term State in 38 CFR 71.15, as explained
in the discussion on proposed changes
to § 71.15.
This proposed revision is intended to
provide clarity and reduce the burden
on the reader by including all
definitions in the definitions section
under § 71.15.
VA proposes no other changes to
§ 71.10.
C. 38 CFR 71.15 Definitions
Section 71.15 contains definitions for
terms used throughout part 71. VA
proposes to amend § 71.15 by adding
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definitions for the terms activity of daily
living or activities of daily living (ADL),
State, and typically requires; removing
the terms inability to perform an activity
of daily living (ADL), need for
supervision, protection, or instruction,
and unable to self-sustain in the
community and their definitions; and
revising the definitions of
institutionalization, joint application,
legacy applicant, legacy participant,
and serious injury. These proposed
changes are explained in more detail
below in alphabetical order of the terms
being added, removed, or revised.
1. Activity of Daily Living or Activities
of Daily Living (ADL)
In § 71.15, VA proposes to add a
definition for the term activity of daily
living or activities of daily living (ADL).
In the current definition of inability to
perform an ADL, VA includes the
following ADL as applying to this term:
(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; and (7) mobility (walking,
going up stairs, transferring from bed to
chair, etc.). Since, as discussed further
below, VA proposes to remove the
current definition of inability to perform
an ADL which contains this list of ADL,
VA proposes to add a standalone
definition of ADL to § 71.15 that would
maintain this list of ADL with minor
changes. This separate definition is not
intended to be a new definition that
changes VA’s current implementation
and use of the term ADL. This proposal
does not seek to narrow or expand VA’s
current interpretation of the term ADL
but is intended to improve clarity for
purposes of applying and implementing
the term ADL as it is used throughout
part 71 and in 38 U.S.C. 1720G.
VA proposes to maintain the existing
ADL included in the current definition
of inability to perform an ADL as these
are widely recognized in the health care
context (for example, they are found in
the Katz Basic ADL Scale (see 76 FR
26148 (May 5, 2011)) and have been the
ADL used for the purposes of PCAFC
since the inception of the program.
While VA proposes to maintain the list
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of ADL from the definition of inability
to perform an ADL, this new proposed
definition for ADL revises the language
used to describe several of the ADL as
is discussed below. VA’s proposed
changes would not materially change
the activities included in the definition
of an ADL or how VA evaluates them.
In the ADL of dressing and undressing
oneself, VA proposes to remove the
word ‘‘oneself’’. Similarly, VA proposes
to remove the phrase ‘‘oneself in order
to keep oneself clean and presentable’’
from the description of the ADL of
grooming. VA also proposes to remove
the parenthetical following the ADL of
mobility that includes examples (that is,
walking, going up stairs, transferring
from bed to chair, etc.). These words
and phrases are not needed when listing
the ADL and are commonly understood
to be included in the definitions of the
identified ADLs.
In developing the definition of
inability to perform an ADL, VA
included additional clarifying language
in the descriptions of adjusting any
special prosthetic or orthopedic
appliance and feeding oneself, to further
explain the cause for why an individual
would be unable to perform these two
ADLs. In establishing a standalone
definition of ADL, these additional
clarifications are not needed and if they
were to remain may lead to
misinterpretation of VA’s use of the
term ADL as it is referenced throughout
38 CFR part 71. For the ADL of
adjusting any special prosthetic or
orthopedic appliance, VA proposes to
remove the phrase ‘‘that by reason of the
particular disability, cannot be done
without assistance’’. For the ADL of
feeding oneself, VA proposes to remove
the language ‘‘due to loss of
coordination of upper extremities,
extreme weakness, inability to swallow,
or the need for a non-oral means of
nutrition’’. In addition, to further
simplify and clarify this ADL, VA
proposes to use the more commonly
used term ‘‘eating’’ in place of feeding
oneself.
Before proposing to define ADL in
this proposed rule, VA conducted a
search of title 38 of the CFR to identify
other regulatory definitions of ADL used
by VA. VA identified several definitions
of ADL in title 38 of the CFR, including
in §§ 3.278, 17.62, 17.3210, and 51.2,
that include descriptive language in
addition to identifying specific ADL.
While there are similarities among these
definitions, the definition of ADL used
in § 51.2 uses terminology VA believes
best describes the meaning of ADL for
purposes of part 71. Section 51.2 defines
ADLs to mean ‘‘the functions or tasks
for self-care usually performed in the
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normal course of a day, i.e., mobility,
bathing, dressing, grooming, toileting,
transferring, and eating.’’ Among other
things, this definition is used for
purposes of determining eligibility of a
veteran for payment of per diem to a
State for adult day health care. See 38
CFR 51.52(d)(1) and (3).
Under this proposal, the new
definition of ADL would refer to the
same ADLs as those currently identified
in the definition of inability to perform
an ADL in § 71.15. VA proposes to add
language that is included in the
description of ADL in § 51.2 by
specifying in the proposed new
definition of ADL that ADL means ‘‘any
of the following functions or tasks for
self-care usually performed in the
normal course of a day’’, which is
consistent with how VA applies ADL for
purposes of 38 U.S.C. 1720G and 38
CFR part 71. VA believes this language
would be helpful to include in the
proposed definition of ADL in § 71.15
because it clarifies that, for purposes of
part 71, ADL are the broad categories of
functions and tasks listed and are those
activities usually performed in the
normal course of a day. VA recognizes
that the functions and tasks for self-care
that are ‘‘usually’’ performed in the
‘‘normal’’ course of a day depends on
the unique individual. VA discusses
this in more detail in the context of
proposed changes to §§ 71.20(a)(3) and
71.40(c)(4)(i)(A), which outline how VA
would apply ADL in the context of
those sections. Additionally, the
proposed new text of ‘‘usually
performed in the normal course of a
day’’ does not mandate that each
activity must always be completed daily
for it to be considered an ADL under
this definition. Some ADL may be
performed daily, such as feeding and
toileting. However, others such as
bathing may not always be performed
daily. Such ADL would still be
considered among those functions or
tasks for self-care that are usually
performed in the normal course of a day
even though an individual may not need
to perform such ADL daily in order to
maintain their health and well-being.
This is consistent with how VA
interprets and applies ADL currently
within PCAFC. See 85 FR 46226, at
46233 (July 31, 2020).
This proposed definition of ADL (that
is, functions or tasks for self-care
usually performed in the normal course
of a day) would align with other Federal
definitions for ADL. For example, the
Centers for Medicare & Medicaid
Services’ (CMS) regulations for its Home
and Community-Based Attendant
Services and Supports State Plan Option
define ADL to mean basic personal
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everyday activities including, but not
limited to, tasks such as eating,
toileting, grooming, dressing, bathing,
and transferring. See 42 CFR 441.505.
Additionally, the Department of
Housing and Urban Development’s
regulations for its Congregate Housing
Services Program define ADL to mean,
in part, an activity regularly necessary
for personal care. See 24 CFR 700.105.
VA asserts that the proposed definition
of ADL in this rulemaking would also
align with the plain meaning of the term
activity of daily living as referring to
activities that ‘‘occur with some
regularity’’. See Veteran Warriors, Inc.
v. Sec’y of Veterans Affairs, 29 F.4th
1320, 1339 (Fed. Cir. 2022) (‘‘By using
the word daily, Congress required the
relevant activities to occur with some
regularity. See also 38 CFR 71.15
(promulgating [a] list of activities of
daily living, each of which involves
regular conduct—like eating or
bathing).’’).
Thus, ADL would be defined to mean
any of the following functions or tasks
for self-care usually performed in the
normal course of a day: (1) Dressing or
undressing; (2) Bathing; (3) Grooming;
(4) Adjusting any special prosthetic or
orthopedic appliance (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)
Eating; or (7) Mobility.
As explained below, this proposed
definition of ADL would be applied in
proposed § 71.20(a)(3)(i) and (iii) for
purposes of determining whether a
veteran or servicemember is in need of
personal care services based on the
individual typically requiring hands-on
assistance to complete one or more ADL
or the individual typically requiring
regular or extensive instruction or
supervision to complete one or more
ADL, and in proposed
§ 71.40(c)(4)(i)(A)(2) as part of the
criteria used to determine whether a
Primary Family Caregiver (as that term
is defined in § 71.15) qualifies for the
higher stipend level. VA’s later
discussions not only provide
explanation of its application of the
proposed definition of ADL, but also
include illustrative examples.
2. Inability To Perform an ADL
In § 71.15 VA proposes to remove the
term inability to perform an ADL and its
definition. Inability to perform an ADL
is currently 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)
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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.).
The term inability to perform an ADL
is listed in § 71.20(a)(3)(i) as one of the
bases for determining PCAFC eligibility
consistent with 38 U.S.C.
1720G(a)(2)(C)(i). The term is also
referenced in the definition of unable to
self-sustain in the community, which is
applied in 38 CFR 71.40(c)(4)(i)(A)(2)
for purposes of determining eligibility of
a Primary Family Caregiver for the
higher stipend level. As explained in
more detail below, VA proposes to
implement the statutory criterion in 38
U.S.C. 1720G(a)(2)(C)(i) through
regulation text in proposed 38 CFR
71.20(a)(3)(i) and § 71.40(c)(4)(i)(A)(2)
without referencing the term inability to
perform an ADL in § 71.15. Those
proposed amendments would eliminate
the need for the current definition of
inability to perform an ADL in § 71.15
and reduce the potential for confusion.
Therefore, VA proposes to remove the
term inability to perform an ADL and its
definition from § 71.15.
3. Institutionalization
In § 71.15, VA proposes to revise the
current definition of
institutionalization. This term is used in
§ 71.45 for purposes of discharge from
PCAFC and currently 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. Under this proposal, VA would
remove the language ‘‘assisted living
facility’’ from this definition because
residing in an assisted living facility
should not by itself disqualify an
eligible veteran or Family Caregiver (as
those terms are defined in § 71.15) from
PCAFC. VA would also clarify that
‘‘other similar settings’’ must be
determined by VA.
VA has found that some eligible
veterans residing in assisted living, or
other similarly termed settings such as
senior living, choose to utilize Family
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Caregivers under PCAFC for the
provision of their personal care services
in lieu of other paid services available
from the assisted living facility or other
service providers. Some assisted living
facilities, and similarly termed
environments, may offer room and
board with limited additional support as
part of the cost of residing in such
facility. Other assisted living facilities
may offer a menu of add-on services to
include assistance with the personal
care services that may have been
provided by a Family Caregiver through
PCAFC. However, in lieu of paying for
such personal care services through the
assisted living facility or other personal
care service provider, an eligible veteran
may prefer to receive personal care
services from a Family Caregiver under
PCAFC. In such cases, the assisted
living facility would be considered the
eligible veteran’s home for purposes of
§ 71.20(a)(6) (conditioning PCAFC
eligibility on the individual receiving
care at home).
Additionally, a Family Caregiver
residing in an assisted living facility
should not necessarily be precluded
from being approved and designated as
a Family Caregiver in PCAFC simply
because they reside in an assisted living
facility. Such individual, for example,
may live in the assisted living facility
with the eligible veteran and be able to
provide the personal care services the
eligible veteran requires. The ability of
the Family Caregiver to perform
required personal care services is based
upon the Family Caregiver’s individual
abilities, rather than the environment in
which they reside.
Thus, to ensure eligible veterans
and/or Family Caregivers who reside in
assisted living facilities would not be
excluded from PCAFC based only on the
fact that they reside in an assisted living
facility, VA proposes to revise the term
institutionalization to exclude ‘‘assisted
living facility,’’ such that
institutionalization would instead mean
being institutionalized in a setting
outside the home residence to include a
hospital, rehabilitation facility, jail,
prison, medical foster home, nursing
home, or other similar setting as
determined by VA. However, this
change would not nullify any of the
eligibility criteria otherwise applicable
to the eligible veteran and Family
Caregiver. For example, in instances
when personal care services that had
been provided by the Family Caregiver
are instead provided to the eligible
veteran by or through the assisted living
facility, the veteran would no longer be
eligible for PCAFC pursuant to
§ 71.20(a)(5) (requiring that personal
care services that would be provided by
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the Family Caregiver will not be
simultaneously and regularly provided
by or through another individual or
entity). In such instances, the Family
Caregiver’s designation would be
revoked for noncompliance pursuant to
§ 71.45(a)(1)(ii)(A) (that is, because the
eligible veteran would not meet the
requirements of § 71.20(a)(5)) when the
personal care services that would be
provided by the Family Caregiver to the
eligible veteran are the same personal
care services being provided by or
through the assisted living facility to the
eligible veteran, unless a different basis
of revocation or discharge under § 71.45
applies.
For these reasons, VA proposes to
revise the definition of
institutionalization so as not to exclude
from PCAFC eligible veterans and/or
Family Caregivers who may be living at
an assisted living facility, provided that
the eligible veteran and Family
Caregiver otherwise qualify for PCAFC.
The eligibility criteria in § 71.20(a)(5)
and (6), among other requirements,
would help to ensure that the eligible
veteran and Family Caregiver continue
participating in PCAFC only when
otherwise eligible to do so.
The definition of institutionalization
also references ‘‘other similar setting’’.
VA proposes to add the phrase ‘‘as
determined by VA’’ after ‘‘other similar
setting’’ to clarify that what is
considered a ‘‘similar’’ setting is a VA
determination. This is consistent with
current practice. VA also proposes to
replace the phrase ‘‘refers to’’ with the
word ‘‘means’’ within the definition of
institutionalization. This is a nonsubstantive edit to align with the
formatting of other definitions found
within § 71.15.
4. Joint Application
In § 71.15, VA proposes to revise the
current definition of joint application.
The term joint application is used in the
definitions of legacy applicant and
legacy participant, throughout
§ 71.25(a), in § 71.25(f), in § 71.40(d),
and in § 71.45(b)(4)(iii). The term joint
application is currently defined as 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.
VA proposed this definition as part of
a March 6, 2020 rulemaking proposal.
See 85 FR 13356, at 13362 (March 6,
2020) (hereinafter the March 6, 2020
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Proposed Rule). VA explained in that
rulemaking that an application that does
not have all the mandatory sections
completed would be considered
incomplete, and VA would not be able
to begin the application review process
because the required sections are
necessary for VA to begin that process.
Id. VA further explained that failure to
provide all the required information had
led to delays as VA had to take steps to
obtain the missing information. Id. VA
received one public comment in
response to its proposed definition of
joint application. See 85 FR 46237 (July
31, 2020). The commenter suggested, in
part, that delays could still result as VA
would still need to inform applicants
that their applications were incomplete;
however, VA made no changes and
adopted the definition without change.
Id. at 46237–46238.
Since implementing this definition of
joint application, VA continues to
receive applications that do not have all
the required fields completed. VA has
also experienced challenges with timely
identification of missing required
information which has led to delays in
providing notice to applicants about
required information. Additionally,
while certain minimum information is
needed for VA to begin reviewing and
evaluating applicants’ eligibility for
PCAFC (for example, the name of the
veteran or servicemember and each
Family Caregiver applicant), some
required information (for example, date
of birth or zip code), can be obtained in
the course of evaluating applicants’
PCAFC eligibility.
Instead of requiring specific
information be included in the joint
application in regulation, VA proposes
to define the term joint application to
mean an application for the Program of
Comprehensive Assistance for Family
Caregivers in such form and manner as
the Secretary of Veterans Affairs
considers appropriate. This proposed
change would be consistent with the
statutory text at 38 U.S.C. 1720G(a)(4),
which requires that PCAFC applicants
‘‘jointly submit to the Secretary an
application [for PCAFC] in such form
and in such manner as the Secretary
considers appropriate.’’ This proposed
change to the definition of joint
application would allow VA to begin
evaluating joint applications so long as
they contain the minimum information
needed for VA to begin such review and
evaluation of the applicants’ eligibility
for PCAFC. This would allow efficient
and timely evaluation of joint
applications and avoid subsequent
delays in rendering decisions. In many
cases, if certain information is missing
from the joint application, it may be
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gathered during VA’s evaluations rather
than serving as a precursor to such
evaluations being initiated.
Furthermore, this proposed definition
would permit the Secretary to make
changes to the application form, as
needed, to ensure that the appropriate
information is requested and collected
from PCAFC applicants in the joint
application.
VA would continue to require the use
of VA Form 10–10CG as the joint
application. However, to help alleviate
challenges identified above, if this
proposal is adopted, VA would update
the form to ensure that it does not
require completion of fields that are not
necessary for VA to begin reviewing and
evaluating applicants’ eligibility for
PCAFC.
5. Legacy Applicant and Legacy
Participant
In 38 CFR 71.15, VA proposes to
revise the definitions of legacy
applicant and legacy participant. These
terms are currently used throughout part
71 to describe members of the legacy
cohort. Legacy applicant is currently
defined to mean a veteran or
servicemember who submits a joint
application for PCAFC that is received
by VA before October 1, 2020 and for
whom a Family Caregiver(s) is approved
and designated on or after October 1,
2020 so long as the Primary Family
Caregiver approved and designated for
the veteran or servicemember on or after
October 1, 2020 pursuant to such joint
application (as applicable) continues to
be approved and designated as such.
Legacy participant is defined as an
eligible veteran whose Family
Caregiver(s) was approved and
designated by VA under part 71 as of
the day before October 1, 2020 so long
as the Primary Family Caregiver
approved and designated for the eligible
veteran as of the day before October 1,
2020 (as applicable) continues to be
approved and designated as such. For
both legacy applicants and legacy
participants, the definition also states
that if a new joint application is
received by VA on or after October 1,
2020 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 or legacy
participant, as applicable.
VA proposes to revise the definitions
of legacy applicant and legacy
participant to specify that such
designation would be a temporary
designation. These designations identify
individuals who would be subject to the
transition period and related
requirements VA established for the
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97409
legacy cohort through 2020 rulemaking
and that VA extended under the First
PCAFC Extension for Legacy Cohort and
the Second PCAFC Extension for Legacy
Cohort. See 85 FR 13362, 86 FR 52614,
and 87 FR 57602. VA proposes to state
in regulation that following expiration
of the transition period for the legacy
cohort, which is proposed to conclude
18 months after the effective date of a
final rule that implements this
rulemaking, a veteran or servicemember
will no longer be considered a legacy
applicant or legacy participant. VA
believes that inclusion of this language
would help clarify that following the
conclusion of the transition period for
the legacy cohort, all individuals
applying for and participating in PCAFC
will be subject to the same set of criteria
and requirements.
VA proposes to add a sentence at the
end of the definitions for legacy
applicant and legacy participant,
which, as proposed, would state that
effective [18 months after EFFECTIVE
DATE OF FINAL RULE], a veteran or
servicemember is no longer considered
a legacy applicant or legacy participant,
respectively.
6. Need for Supervision, Protection, or
Instruction
In 38 CFR 71.15, VA proposes to
remove the term need for supervision,
protection, or instruction and its
definition. The term need for
supervision, protection, or instruction is
listed as one of the bases for
determining eligibility under
§ 71.20(a)(3) and is also referenced in
the definition of unable to self-sustain
in the community, which is applied in
§ 71.40(c)(4)(i)(A)(2) for purposes of
determining the amount of the monthly
stipend for which the Primary Family
Caregiver is eligible. The term need for
supervision, protection, or instruction is
currently defined to 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. This term and its
definition were intended to implement,
in a combined manner, two of the
statutory bases upon which a veteran or
servicemember can be determined to be
in need of personal care services—
specifically, 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. 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii).
However, as VA explained in its
Interim Final Rule (IFR) dated
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September 21, 2022, on March 25, 2022,
the U.S. Court of Appeals for the
Federal Circuit issued a decision in
Veteran Warriors, Inc. v. Sec’y of
Veterans Affairs, 29 F.4th 1320 (Fed.
Cir. 2022) that invalidated VA’s
definition of need for supervision,
protection, or instruction in 38 CFR
71.15. See 87 FR 57602–57603
(September 21, 2022). The court
determined that the definition was
inconsistent with the statutory language
in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii).
Veteran Warriors at 1342–43.
Specifically, the court held that VA’s
decision to create a single frequency
requirement for ‘‘supervision’’ under
clauses (ii) and (iii) of section
1720G(a)(2)(C) was inconsistent with
the statutory language. Id. at 1342. The
court also found that clauses (ii) and
(iii) of section 1720G(a)(2)(C) did not
restrict eligibility based on ‘‘personal
safety’’ in all cases, such that the
‘‘personal safety’’ requirement in VA’s
definition was inconsistent with the
statutory text. Id. at 1342–43. As a result
of this ruling, VA has applied clauses
(ii) and (iii) of section 1720G(a)(2)(C) in
place of the regulatory term need for
supervision, protection, or instruction
and its definition in 38 CFR 71.15 when
making determinations under PCAFC
regulations that became effective on
October 1, 2020. Thus, where the term
need for supervision, protection, or
instruction is referenced, VA applies the
statutory language in 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii) instead.
As explained below, at this time, VA
is not proposing a new definition of
need for supervision, protection, or
instruction for purposes of interpreting
clauses (ii) and (iii) of 38 U.S.C.
1720G(a)(2)(C). Instead, VA’s proposed
interpretation of those clauses would be
addressed in proposed 38 CFR
71.20(a)(3)(ii) and (iii) for purposes of
determining PCAFC eligibility and in
proposed § 71.40(c)(4)(i)(A)(2) for
purposes of determining eligibility for
the higher stipend level. Those
amendments, if adopted, would
eliminate the need for a new definition
of need for supervision, protection, or
instruction in § 71.15.
For these reasons, VA proposes to
remove the term need for supervision,
protection, or instruction and its
definition from § 71.15.
7. Unable to Self-Sustain in the
Community
In § 71.15, VA proposes to remove the
term unable to self-sustain in the
community and its definition. Unable to
self-sustain in the community currently
is defined to mean that an eligible
veteran: (1) requires personal care
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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 § 71.15, 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. This
term and its definition are used for
purposes of determining eligibility for
the higher stipend level under
§ 71.40(c)(4)(i)(A)(2). This term and its
definition are also used in § 71.30, as
reassessments under that section
include consideration of whether the
eligible veteran is unable to self-sustain
in the community for purposes of the
monthly stipend level determination
under § 71.40(c)(4)(i)(A).
As explained below, VA proposes to
revise § 71.40(c)(4)(i)(A)(2), which
currently explains that if VA determines
that the eligible veteran is unable to selfsustain in the community, the Primary
Family Caregiver’s monthly stipend is
calculated by multiplying the monthly
stipend rate by 1.00. In proposed
§ 71.40(c)(4)(i)(A)(2), VA would list the
criteria for the higher stipend level
without referencing the term unable to
self-sustain in the community.
Consistent with that change, VA would
also remove the term unable to selfsustain in the community from § 71.30,
as discussed below. As VA would
discontinue use of the term unable to
self-sustain in the community and its
definition in part 71, VA proposes to
remove them from § 71.15.
8. Serious Injury
In § 71.15, VA proposes to revise the
definition of serious injury. The current
definition in § 71.15 states that 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.
This definition is applied by VA when
determining whether an individual
meets the eligibility criteria in
§ 71.20(a)(2), which requires the
individual to have a serious injury
incurred or aggravated in the line of
duty to qualify for PCAFC.
VA proposes to revise the definition
of serious injury in § 71.15 to include a
total disability rating for compensation
based on individual unemployability
(IU) assigned by VA. IU ratings allow
VA to compensate certain veterans at
the 100 percent disability rate even
though their service-connected
disability or disabilities are not rated as
100 percent disabling by reference to
specific rating schedule criteria. Under
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§ 4.16(a), total disability ratings may be
assigned when a veteran’s schedular
rating is less than total (which is to say,
less than 100 percent) but where the
veteran is unable to secure or follow a
substantially gainful occupation due to
service-connected disabilities. In other
words, even though the veteran may not
meet the requirements for a total (or 100
percent) disability rating by reference to
the VA disability rating schedule
criteria, the veteran may be
compensated as if they were 100
percent disabled if their serviceconnected disability or the combination
of their service-connected disabilities
prevents them from engaging in
substantial gainful employment.
The requirements for IU include that
a veteran either (1) has one serviceconnected disability rated at least 60
percent disabling, or (2) has two or more
service-connected disabilities with at
least one rated at least 40 percent
disabling and a combined rating of at
least 70 percent. See § 4.16(a). VA also
allows for extra-schedular consideration
for an IU rating in cases of veterans who
are unemployable by reason of serviceconnected disabilities, but who fail to
meet these percentage standards. See
§ 4.16(b).
In VA’s July 31, 2020 Final Rule, VA
revised the definition of serious injury.
85 FR 46245–46251 (July 31, 2020). In
promulgating this definition, VA
declined to adopt a recommendation
from a commenter who recommended
that VA consider including in the
definition of serious injury serviceconnected veterans who are in receipt of
an IU rating. Id. at 46249–46250. IU may
encompass veterans with serviceconnected disabilities rated less than 70
percent, and VA did not believe it
would be appropriate to use IU as a
substitute for having a single or
combined 70 percent rating for the
purposes of PCAFC. Id. at 46250. VA
explained that not all veterans and
servicemembers applying for or
participating in PCAFC would have
been evaluated by VA for such rating,
and if VA were to create an exception
in the definition of serious injury for
individuals with an IU rating, VA would
also need to consider whether other
exceptions should also satisfy the
definition. Id. Additionally, VA
referenced that IU had proven to be a
very difficult concept to apply
consistently in the context of disability
compensation and had been the source
of considerable dissatisfaction with VA
adjudications and of litigation. Id.
Observing that importing this standard
could introduce potential inconsistency
into PCAFC, VA declined to make any
changes to incorporate IU into the
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definition of serious injury in VA’s July
31, 2020 Final Rule. Id.
Following VA’s implementation of the
revised definition of serious injury,
veterans and other stakeholders
continued to raise concerns regarding
the exclusion of IU from the definition
of serious injury. VA therefore took
another look at this topic and
reexamined the exclusion of IU. Upon
further review and reconsideration, VA
now proposes to include a total
disability rating for compensation based
on IU within the definition of serious
injury for purposes of PCAFC, regardless
of the schedular disability rating
assigned as VA has concluded the
advantages of including IU in the
definition of serious injury outweigh the
concerns VA identified with doing so in
VA’s 2020 final rule.
VA’s Schedule for Rating Disabilities
(VASRD) percentage ratings represent
the average impairment in earning
capacity resulting from serviceconnected disabilities. See § 4.1. When
the VASRD does not adequately account
for the severity of the veteran’s
disability and its impact on the
veteran’s employability, VA may assign
a total disability rating by establishing
IU when the requirements under § 4.16
are met. An IU determination reflects
VA’s assessment that even though the
veteran has a less than total schedular
rating, their service-connected
disability, or the combination of their
service-connected disabilities, precludes
them from engaging in substantial
gainful employment and entitles them
to payment at the 100 percent disability
rate. See § 4.16. VA’s assignment of an
IU rating establishes that the veteran’s
service-connected disability or
disabilities renders them unemployable
and compensable as if they were 100
percent disabled. Therefore, individuals
with IU assigned by VA have the same
level of impairment in earning capacity
as that of an individual with a schedular
100 percent disability rating, regardless
of whether the individual’s disability
picture warrants a 100-percent rating
under the rating schedule(s) for the
service-connected disability or
disabilities.
In proposing this change, VA also
reexamined its prior concerns with
including IU in the definition of serious
injury, and VA no longer believes those
concerns necessitate the same approach.
One such concern was the fact that not
all veterans and servicemembers
applying for or participating in PCAFC
will have been evaluated by VA for IU.
See 85 FR 46250 (July 31, 2020). While
this is still true, VA notes that any
individual who does not currently have
a total disability rating, including those
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that do not meet the definition of
serious injury because their serviceconnected disability rating is less than
70 percent, can file a claim for an
increased rating, which may include a
request for IU if they believe such a
rating is warranted.2 There are existing
processes for individuals to request
consideration for IU, and adding IU to
the definition of serious injury as
proposed would provide an additional
opportunity for veterans to satisfy the
serious injury requirement in
§ 71.20(a)(2).
VA also considered that IU was a
difficult concept to apply consistently
in the context of disability
compensation. Id. While VA knows that
IU may be challenging to apply
consistently and has been the source of
litigation, it does not want to exclude
veterans with IU ratings from meeting
the definition of serious injury based on
these challenges and prevent them from
participating in PCAFC when all other
eligibility requirements are met.
Additionally, VA has examined
whether other criteria should meet the
definition of serious injury (based on
disability rating criteria or otherwise).
Based on this review, the only criterion
VA identified as being equivalent to
having a single or combined 70 percent
service-connected rating or higher, is a
VA rating of IU. However, as indicated
below, VA welcomes input from the
public on any other VA ratings or other
criteria that VA should consider as
potentially meeting the definition of
serious injury for purposes of PCAFC.
Accordingly, VA believes its earlier
concerns about including IU in the
definition of serious injury are now
outweighed by the advantages that
would result for individuals with an IU
rating who satisfy all other PCAFC
eligibility criteria. Thus, when VA
determines that a veteran’s serviceconnected disability or disabilities are
so severe as to render them unable to
secure or follow a substantially gainful
occupation and grants the veteran
entitlement to IU, VA believes such
2 An IU rating under 38 CFR 4.16 would not
ordinarily be awarded as a proposed rating to a
servicemember undergoing medical discharge
through the Integrated Disability Evaluation
System. However, a servicemember undergoing
medical discharge would still be able to meet the
definition of serious injury for purposes of
satisfying the requirement in § 71.20(a)(2), based on
a proposed service-connected disability rating of 70
percent or higher. See 85 FR 13356, at 13369
(March 6, 2020) (explaining that ‘‘[f]or
servicemembers undergoing medical discharge . . .
who apply for PCAFC, we would accept their
proposed VA rating of disability when determining
whether the servicemember has a serious injury’’).
Additionally, VA notes that servicemembers
undergoing medical discharge can be considered for
an IU rating upon discharge.
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disability, or disabilities, should be
considered a serious injury for purposes
of PCAFC. VA believes this is true
regardless of the basis for VA’s IU rating
under § 4.16(a) or (b). Further, VA
reached this conclusion, in part, based
on continued feedback from VSOs and
other stakeholders. VA believes for the
reasons set forth above, the proposed
inclusion of IU in the definition of
serious injury is a reasonable expansion
of the definition for purposes of PCAFC.
Given the above, VA proposes to
revise the definition of serious injury in
§ 71.15 to include a total disability
rating for compensation based on IU
assigned by VA. VA proposes to revise
the definition of serious injury by
reorganizing the introductory text and
paragraphs (1) and (2), including the
current criteria from paragraphs (1) and
(2) in revised paragraphs (1) and (2), and
adding this new basis in a new
paragraph (3). This change, if adopted,
would allow individuals who do not
currently have a single or combined 70
percent disability rating to meet the
definition of serious injury if they have
an IU rating assigned by VA. As
proposed, the definition of serious
injury would state serious injury means
any of the following as assigned by VA:
(1) a service-connected disability rated
at 70 percent or more; (2) any serviceconnected disabilities that result in a
combined rating of 70 percent or more;
or (3) any service-connected disability
or disabilities that result in a total
disability rating for compensation based
on individual unemployability.
9. State
In § 71.15 VA proposes to add a
definition for the term State. As
explained above, current § 71.10(b)
explains, among other things, that
PCAFC and PGCSS benefits are
provided only to those individuals
residing in a State as that term is
defined in 38 U.S.C. 101(20). Currently,
§ 71.10(b) is the only instance in which
part 71 refers to the term State and its
definition in 38 U.S.C. 101(20).
However, this rulemaking proposal, if
adopted, would add the term State in
other sections of part 71 as well.
Specifically, this term would be used in
a new basis for revocation under
proposed revisions to 38 CFR 71.45 and
regarding State-declared emergencies in
proposed § 71.55, as discussed in more
detail below. Thus, as the term is
proposed to be used in multiple sections
in part 71, it would be appropriate to
define it in § 71.15. VA’s proposed
definition would be consistent with
current § 71.10(b), as VA would define
State in proposed § 71.15 to have the
meaning given to that term in 38 U.S.C.
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101(20). In 38 U.S.C. 101(20), State is
defined to mean ‘‘each of the several
States, Territories, and possessions of
the United States, the District of
Columbia, and the Commonwealth of
Puerto Rico. For the purpose of section
2303 and chapters 34 and 35 of [title
38], such term also includes the Canal
Zone.’’
As this is the definition VA currently
uses for this term in 38 CFR 71.10(b),
this change would have no substantive
impact on that section. However, to
provide clarity and consistency
throughout part 71, VA proposes to
include a new definition for the term
State in § 71.15 so that it is easier to
locate, understand, and reference the
definition of this term.
10. Typically Requires
In § 71.15, VA proposes to add a
definition for the term typically
requires. VA proposes to use the term
typically requires in the bases for
PCAFC eligibility in proposed
§ 71.20(a)(3)(i) and (iii) and the monthly
stipend payment criteria in proposed
§ 71.40(c)(4)(i)(A)(2)(i). As this term is
proposed to be used in multiple sections
of part 71, and VA intends for this term
to have the same meaning when
referenced throughout part 71, VA
proposes to add a definition for
typically requires in § 71.15.
VA proposes to add a definition
stating that typically requires means a
clinical determination which refers to
that which is generally necessary.
Cambridge Dictionary defines
‘‘typically’’ as ‘‘in a way that shows all
the characteristics that you would
Occasionally
expect from the stated person, thing, or
group.’’ 3 The Britannica Dictionary
defines ‘‘typically’’ as ‘‘generally or
normally—used to say what normally
happens’’ and ‘‘in the usual way—used
to describe what is normal or expected
of a certain place, person, situation,
etc.’’ 4 VA’s use of ‘‘typically’’ denotes
frequency for purposes of proposed
§ 71.20(a)(3)(i) and (iii) and for proposed
§ 71.40(c)(4)(i)(A)(2)(i) and would be
consistent with these dictionary
definitions. As frequency occurs on a
continuum, to further demonstrate
where on the continuum VA’s proposed
term typically requires would fall in
comparison to other terms of frequency,
VA provides the below graphic. See also
the visual aid published at
www.regulations.gov under RIN 2900–
AR96.
Figure 1—Typically Requires
Typically requires
Often
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Never
Each lime
Additionally, like the definition of in
the best interest in § 71.15, VA’s
proposed definition of typically requires
would make clear that it is a clinical
determination. This definition would
allow VA to consider each individual’s
unique functional needs, abilities, and
usual routines when making the clinical
determination of whether the criteria in
proposed § 71.20(a)(3)(i) and (iii) and
proposed § 71.40(c)(4)(i)(A)(2)(i) are
met. Additional discussion on how VA
proposes to use the term typically
requires is found in VA’s discussion on
proposed changes to §§ 71.20 and 71.40
below.
VA solicits comments from the public
on all aspects of this proposed rule. In
particular, VA asks the following
questions on specific aspects of this
proposal.
1. Please identify any similarly
situated veterans or servicemembers
who may not have an IU rating but
nonetheless should be found to have a
serious injury under the definition of
that term in § 71.15 based on other VA
ratings or other criteria.
2. VA has proposed a definition for
the term typically requires that, in part,
refers to that which is generally
necessary. What other phrasing should
VA consider as an alternative to
generally necessary and why? Are there
other criteria with regard to frequency
that should be considered in defining
typically requires?
3. Is there an alternative term other
than typically requires that would be
better defined to mean that which is
generally necessary? For example,
would the phrasing usually, most of the
time, routinely, or ordinarily requires be
clearer than the phrasing typically
requires?
4. What factors should VA consider
when determining what is generally
necessary?
3 Cambridge University Press & Assessment, 2023,
https://dictionary.cambridge.org/dictionary/
english/typically (last visited Feb. 8, 2024) (also
defining ‘‘typically’’ as ‘‘used when you are giving
an average or usual example of a particular thing’’
and ‘‘in a way that shows the characteristics of a
particular kind of person or thing; or gives a usual
example of a particular thing’’).
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D. 38 CFR 71.20 Eligible Veterans and
Servicemembers
Section 71.20(a) sets forth seven
criteria for veterans and servicemembers
to be determined eligible for a Primary
Family Caregiver or Secondary Family
Caregiver under part 71. In this
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rulemaking proposal, VA proposes to
make substantive revisions to only two
of the current criteria in § 71.20(a): (1)
the individual is in need of personal
care services for a minimum of six
continuous months based on an
inability to perform an activity of daily
living, or a need for supervision,
protection, or instruction (see
§ 71.20(a)(3)); and (2) the individual
receives ongoing care from a primary
care team or will do so if VA designates
a Family Caregiver (see § 71.20(a)(7)).
VA also proposes to make technical
edits to § 71.20(a), as described in more
detail below. VA’s discussions of
proposed changes include illustrative
examples of how a veteran or
servicemember could meet the two
referenced criteria; however, this does
not guarantee eligibility of the veteran
or servicemember or caregiver applicant
for participation in PCAFC, particularly
as all the other criteria in § 71.20(a)
would also have to be met, in addition
to meeting other requirements in part
71.
4 The Britannica Dictionary, 2023, https://
www.britannica.com/dictionary/typically (last
visited Feb. 8, 2024).
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1. Section 71.20(a)(3)—Bases Upon
Which the Individual May Be
Determined To Be in Need of Personal
Care Services for a Minimum of Six
Continuous Months
Current § 71.20(a)(3) requires that the
individual be in need of personal care
services for a minimum of six
continuous months based on (i) an
inability to perform an activity of daily
living; or (ii) a need for supervision,
protection, or instruction. VA
established these criteria based on its
interpretation of 38 U.S.C.
1720G(a)(2)(C)(i) through (iii). 85 FR
13371–13372 (March 6, 2020). However,
VA’s use of the term need for
supervision, protection, or instruction,
including its definition, was invalidated
by the court’s decision in Veteran
Warriors, as explained in the above
discussion on the proposed removal of
such term and definition from 38 CFR
71.15. As such, and to make other
changes to better clarify the three
statutory bases upon which an
individual may be determined to be in
need of personal care services in 38
U.S.C. 1720G(a)(2)(C)(i) through (iii),
VA proposes to amend 38 CFR
71.20(a)(3) by revising the language in
paragraphs (i) and (ii) and adding a new
paragraph (iii).
As proposed, § 71.20(a)(3) would state
the individual is in need of personal
care services for a minimum of six
continuous months based on any one of
the following: (i) the individual
typically requires hands-on assistance to
complete one or more ADL; (ii) the
individual has a frequent need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury; or (iii)
the individual typically requires regular
or extensive instruction or supervision
to complete one or more ADL.
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a. Proposed § 71.20(a)(3)(i)—The
Individual Typically Requires HandsOn Assistance To Complete One or
More ADL
As explained in the discussion of the
definition of the term inability to
perform an ADL, VA proposes to
remove such term and its definition
from § 71.15 and address the statutory
basis under 38 U.S.C. 1720G(a)(2)(C)(i)
(that is, the individual is in need of
personal care services because of an
inability to perform one or more ADL)
in proposed 38 CFR 71.20(a)(3)(i) for
purposes of determining a veteran’s or
servicemember’s eligibility for PCAFC.
Therefore, VA proposes to revise
§ 71.20(a)(3)(i) to remove the current
language of an inability to perform an
activity of daily living and replace it
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with the individual typically requires
hands-on assistance to complete one or
more ADL. An individual who typically
requires hands-on assistance to
complete one or more ADL would have
an inability to perform such ADL
without such assistance, which would
be consistent with the criterion in 38
U.S.C. 1720G(a)(2)(C)(i). This would
include individuals who require
assistance with some, or all of the tasks
associated with an ADL, thus permitting
individuals who are unable to
contribute to the completion of the ADL
to meet this criterion. VA explains
below how this proposed change would
clarify and differ from the current
eligibility criterion in § 71.20(a)(3)(i).
i. Hands-On Assistance
First, in determining whether an
individual is in need of personal care
services under proposed § 71.20(a)(3)(i),
VA would consider whether the
individual typically requires ‘‘handson’’ assistance to complete one or more
ADL. VA would require ‘‘hands-on’’
assistance for purposes of proposed
paragraph (i), as this would be
consistent with how VA has interpreted
and applied the term inability to
perform an ADL, (and remains
consistent with 38 U.S.C.
1720G(a)(2)(C)(i)), for purposes of
determining whether a veteran or
servicemember is in need of personal
care services on such basis. See 85 FR
46229, 46233, 46235 (July 31, 2020). In
VA’s July 31, 2020 Final Rule, VA noted
that if an eligible veteran is eligible for
PCAFC because they meet the definition
of inability to perform an ADL, the inperson personal care services required
to perform an ADL would be hands-on
care. Id. at 46229. This is how VA has
implemented this requirement since
that final rule took effect on October 1,
2020. Individuals who do not meet the
‘‘hands-on’’ requirement may still meet
the requirement for being in need of
personal care services under current 38
CFR 71.20(a)(3) based on the statutory
text in 38 U.S.C. 1720G(a)(2)(C)(ii) or
(iii)—even though their needs are
related to ADLs. See 85 FR 46235 (July
31, 2020). To provide further clarity and
remove uncertainty concerning the type
of assistance an individual must
typically require in order to meet the
criterion in proposed 38 CFR
71.20(a)(3)(i), VA proposes to include
the words ‘‘hands-on’’.
By using the phrase ‘‘assistance to
complete’’ in proposed § 71.20(a)(3)(i),
in reference to situations in which
hands-on assistance is typically
required, it is not VA’s intent to require
any minimum amount of contribution
by the veteran or servicemember in
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97413
completing the ADL. If a caregiver
performs an ADL entirely on behalf of
the veteran or servicemember (such as
dressing and undressing or bathing a
veteran or servicemember who is unable
to contribute to the completion of such
ADL because of a physical or cognitive
disability), the veteran or
servicemember could still meet this
proposed criterion.
In addition to being consistent with
current practice, including the words
‘‘hands-on’’ in proposed § 71.20(a)(3)(i)
would also make clear a distinction
between proposed § 71.20(a)(3)(i), and
proposed § 71.20(a)(3)(ii) and (iii), as
proposed paragraph (iii) would set forth
an additional explicit basis upon which
an individual can be determined to be
in need of personal care services related
to an ADL, even without a need for
‘‘hands-on’’ assistance with the
performance of one or more ADL.
ii. Removal of ‘‘Each Time’’
Requirement
Next, VA proposes to change the
requirement that an individual must
require personal care services ‘‘each
time’’ the veteran or servicemember
completes one or more ADL to be
determined eligible for PCAFC under
the basis in § 71.20(a)(3)(i). To do this,
VA proposes to modify the current
language in § 71.20(a)(3)(i) to remove
reference to the term inability to
perform an ADL. In current § 71.15, the
definition of inability to perform an
ADL means a veteran or servicemember
requires personal care services ‘‘each
time’’ they complete one or more ADL.
Since VA proposes to remove the term
inability to perform an ADL and its
definition from § 71.15 and instead
interpret the statutory requirement in 38
U.S.C. 1720G(a)(2)(C)(i) in proposed 38
CFR 71.20(a)(3)(i), VA believes it is
important to acknowledge that VA’s
proposed revisions to § 71.20(a)(3)(i)
would not retain the ‘‘each time’’
requirement for purposes of determining
whether an individual typically requires
hands-on assistance to complete one or
more ADL, as VA has found ‘‘each time’’
to be too restrictive.
In establishing this requirement of
‘‘each time’’, VA believed that
specifying the frequency with which
personal care services would be needed
(that is, ‘‘each time’’ the veteran or
servicemember completes one or more
ADL) would establish a clear, objective
standard that could be consistently
applied throughout PCAFC. See 85 FR
13360–13361 (March 6, 2020); 85 FR
46233 (July 31, 2020). It was also
established to align with VA’s goal of
focusing PCAFC on eligible veterans
with moderate and severe needs. Id.
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However, VA received comments when
it originally proposed the ‘‘each time’’
requirement, which included concerns
that the ‘‘each time’’ requirement would
be too restrictive and may result in
denial of eligibility for some individuals
with moderate and severe needs. Id. at
46232–46234. In the July 31, 2020 Final
Rule, VA explained that if, over time,
VA found that the definition of inability
to perform an ADL was as restrictive as
the commenters asserted it would be,
VA would adjust and revise the
definition accordingly in a future
rulemaking. Id. at 46234.
Since that time, VA has continued to
receive feedback from stakeholders that
the requirement of ‘‘each time’’ in the
current definition of the term inability
to perform an ADL is too restrictive. For
example, this issue was raised by
stakeholders that participated in VA’s
roundtable listening session conducted
on December 5, 2023. (See written
transcript of roundtable discussion
available online at www.regulations.gov
under RIN 2900–AR96). VA agrees
based on VA’s review of denied
applications. Through exchanges with
stakeholders, including veterans,
caregivers, VSOs, and members of
Congress, and reviews of de-identified
PCAFC evaluations that have been
completed, VA identified instances of
veterans with moderate or severe needs
who almost always require assistance
with one or more ADL yet, because of
occasional episodes of independence,
do not meet the current standard of
requiring personal care services ‘‘each
time’’ the veteran completes one or
more ADL. This does not align with
VA’s intent to focus PCAFC on
individuals with moderate and severe
needs. VA provides illustrative
examples below to showcase the
restrictive nature of the ‘‘each time’’
requirement.
For example, a veteran may
experience tremors and weakness due to
their disability and consequently,
require hands-on assistance from
another individual when feeding and
dressing on most occasions. However,
due to waxing and waning of such
symptoms over the course of an
occasional day, this veteran can feed
and dress themselves without assistance
from another individual when they are
experiencing limited symptoms. Such
episodes in which the veteran
experiences limited symptoms are not
common for the veteran’s level of
function, and the reprieve of symptoms
is infrequent. Because this veteran has
occasional episodes of independence to
complete one or more ADL, the veteran
does not meet the current definition of
inability to perform an ADL because
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personal care services are not required
‘‘each time’’ they feed and dress
themselves.
Similarly, as another example, a
veteran who usually requires hands-on
assistance with toileting and mobility
may have occasional days when the
veteran, following a full night of rest,
can perform each of these ADL
independently for a limited period of
time in the morning. However, as the
day progresses, this veteran becomes
fatigued and is unable to sustain the
level of exertion needed to
independently perform these ADL for
the remainder of the day, thus requiring
the assistance of another individual.
This veteran also does not meet the
current definition of inability to perform
an ADL because they do not require
assistance ‘‘each time’’ they perform
these ADL.
In these and similar illustrative
examples, VA has found that the ‘‘each
time’’ standard has excluded
individuals from meeting the
requirement to be in need of personal
care services based on an inability to
perform an ADL despite having what
VA considers to be moderate or severe
needs. Such individuals are determined
to not meet the current definition of
inability to perform an ADL because
they have episodes of independence
that do not result in such individuals
requiring personal care services ‘‘each
time’’ they perform an ADL and they do
not meet the requirement under current
§ 71.20(a)(3)(i). VA has thus determined
that the requirement of ‘‘each time’’ in
the current definition of inability to
perform an ADL is too restrictive.
VA acknowledges that when the
‘‘each time’’ requirement in the
definition of inability to perform an
ADL was established, VA believed that
such an objective and clear frequency
requirement was necessary to create a
consistent standard that could be
operationalized across PCAFC. 85 FR
46233 (July 31, 2020). However, VA no
longer believes this standard is
necessary to create consistency when
evaluating an individual’s inability to
perform an ADL. This is because VA’s
process for evaluating veterans and
servicemembers under § 71.20(a)(3)
includes comprehensive assessments
that are able to identify specific
variability in a veteran’s or
servicemember’s unique functional
needs, abilities, and usual routines. VA
therefore asserts it is reasonable and
appropriate to propose a standard that is
less strict than ‘‘each time’’ in order to
accommodate veterans and
servicemembers with moderate and
severe needs who would otherwise be
excluded from PCAFC.
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As an alternative to this proposal, VA
considered whether to include a specific
frequency requirement other than ‘‘each
time’’, and whether that should be a
quantitative standard. VA recognizes the
importance of ensuring VA’s
interpretation of 38 U.S.C.
1720G(a)(2)(C)(i) in proposed 38 CFR
71.20(a)(3)(i) accounts for the unique
functional needs, abilities, and usual
routines of individual veterans and
servicemembers who require hands-on
assistance to complete one or more ADL
and decided not to propose a
quantitative standard and instead focus
on what a veteran or servicemember
typically requires. As discussed in
regard to proposed changes to § 71.15,
VA proposes to add a definition stating
that typically requires means a clinical
determination which refers to that
which is generally necessary.
As identified by the Federal Circuit in
Veteran Warriors, ‘‘[t]here is a statutory
gap’’ as to how often an individual must
be unable to perform an ADL under 38
U.S.C. 1720G(a)(2)(C)(i). See Veteran
Warriors at 1339. Previously, VA
adopted the ‘‘each time’’ requirement to
fill that gap for purposes of interpreting
and applying 38 U.S.C.
1720G(a)(2)(C)(i), and now, VA proposes
to modify the requirement by replacing
it with typically requires in 38 CFR
71.20(a)(3)(i). Inclusion of the term
typically requires would address such
questions as how often a veteran or
servicemember must be unable to
perform an ADL, how often the inability
must be present, and how pervasive the
inability must be for purposes of
establishing inability to perform an
ADL. Id.
In proposing to revise § 71.20(a)(3)(i)
to focus on what is typically required by
each veteran or servicemember rather
than use another quantitative standard,
VA would avoid setting a specific
quantifiable threshold. VA
acknowledges that in its July 31, 2020
Final Rule VA stated it did not want to
use a non-specific threshold (for
example, most or majority of time) for
purposes of defining inability to perform
an ADL because using such thresholds
would be vague, subjective, arbitrary,
difficult to quantify, and could lead to
inconsistencies. 85 FR 46233–46234
(July 31, 2020). However, VA now
believes using the term typically
requires is appropriate because the
determination of whether a veteran or
servicemember is in need of personal
care services based on an inability to
perform an ADL is a clinical
determination that inherently accounts
for the individual’s unique functional
needs, abilities, and usual routines. A
specific quantifiable threshold that
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applies equally to all individuals could
potentially result in the exclusion of
some veterans and servicemembers with
moderate and severe needs from PCAFC
as was the case with VA’s
implementation of the ‘‘each time’’
requirement. This is because such a
threshold would not provide the
flexibility that would be required to
account for each individual’s unique
functional needs, abilities, and usual
routines in making the determination of
whether they are in need of personal
care services.
iii. Implementation of Proposed
§ 71.20(a)(3)(i)
A determination that a veteran or
servicemember typically requires handson assistance to complete one or more
ADL under proposed § 71.20(a)(3)(i)
would be a clinical determination based
on an assessment of the veteran’s or
servicemember’s unique functional
needs, abilities, and usual routines and
take into consideration the tasks
required to complete the ADL. In
making this clinical determination VA
may consider, for example, the
frequency with which the ADL is
completed, the functions and tasks
performed by the individual to complete
the ADL, and the frequency with which
hands-on assistance from another
individual is needed to complete such
ADL, as each of these can vary from
person to person.
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A. Frequency of the Functions and
Tasks Required To Complete an ADL
VA first must determine what
functions and tasks are performed by an
individual in order to complete an ADL,
as this can vary from person to person.
VA notes that requiring hands-on
assistance only to complete functions or
tasks performed on an occasional basis
that are not part of the individual’s
usual self-care routine would not mean
the veteran or servicemember typically
requires hands-on assistance to
complete an ADL. For example, one
veteran may shave on a daily basis as
part of completing the ADL of grooming,
while a different veteran who chooses to
maintain a full beard does not shave as
part of their grooming routine.
B. Frequency of Need for Hands-On
Assistance
VA would not require assistance
‘‘each time’’ the veteran or
servicemember completes the ADL, as
was explained above. Rather, VA would
assess how frequently hands-on
assistance is needed in conjunction with
how often the ADL is completed. This
would be a more expansive basis than
what VA applies today.
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Failure to meet the proposed criterion
in § 71.20(a)(3)(i) would not preclude
individuals from being determined to be
in need of personal care services under
another basis in § 71.20(a)(3). Veterans
and servicemembers could also be
determined to be in need of personal
care services based on proposed
§ 71.20(a)(3)(ii) or (iii) (that is, the
individual has a frequent need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury; or the
individual typically requires regular or
extensive instruction or supervision to
complete one or more ADL), which are
discussed below.
b. Proposed § 71.20(a)(3)(ii)—The
Individual Has a Frequent Need for
Supervision or Protection Based on
Symptoms or Residuals of Neurological
or Other Impairment or Injury
Under current § 71.20(a)(3)(ii), an
individual may be determined to be in
need of personal care services for a
minimum of six continuous months
based on a need for supervision,
protection, or instruction. As explained
above, this criterion was intended to
implement the statutory criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) in a
combined manner. However, the U.S.
Court of Appeals for the Federal Circuit
invalidated this term and its definition
in the Veteran Warriors decision. Since
the Veteran Warriors decision, in place
of the term need for supervision,
protection, or instruction and its
definition in current § 71.15, VA has
applied the statutory language in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) when
determining whether a veteran or
servicemember is in need of personal
care services under 38 CFR
71.20(a)(3)(ii).
VA proposes to update its regulations
to align with VA’s current practice of
interpreting the statutory criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii)
separately. To do so, VA proposes to
revise 38 CFR 71.20(a)(3)(ii) to align
with how VA has implemented the
statutory criteria for 38 U.S.C.
1720G(a)(2)(C)(ii) (that is, a need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury) as a
result of the Veteran Warriors decision.
For purposes of interpreting 38 U.S.C.
1720G(a)(2)(C)(ii), VA proposes to revise
38 CFR 71.20(a)(3)(ii) by replacing the
language ‘‘[a] need for supervision,
protection, or instruction’’ with the
language ‘‘[t]he individual has a
frequent need for supervision or
protection based on symptoms or
residuals of neurological or other
impairment or injury’’. This would be
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97415
consistent with the statutory language in
38 U.S.C. 1720G(a)(2)(C)(ii). However,
as previously discussed regarding 38
U.S.C. 1720G(a)(2)(C)(i), the statutory
language in section 1720G(a)(2)(C)(ii)
does not include an explicit frequency
requirement; therefore, VA proposes to
include the phrase ‘‘has a frequent
need’’ in proposed 38 CFR 71.20(a)(3)(ii)
to address that gap. Such term would be
reflective of how VA has been applying
this statutory basis since the Veteran
Warriors ruling. Consistent with that,
VA intends to apply common dictionary
definitions of the word ‘‘frequent’’,
which refer to an action occurring
‘‘repeatedly, ‘‘habitually’’, or ‘‘on many
occasions’’, when implementing this
new criterion.5 VA discusses its
proposed implementation of this
language in greater detail further below.
In implementing this proposed
change, VA would continue to apply the
statutory criteria as it relates to the
interpretation of ‘‘supervision or
protection’’ and ‘‘symptoms or residuals
of neurological or other impairment or
injury’’ as VA does in current practice.
VA discusses this interpretation below.
i. Supervision or Protection
The statutory language in 38 U.S.C.
1720G(a)(2)(C)(ii) does not define
supervision or protection. Therefore, VA
has relied on common definitions and
uses of these terms to inform VA’s
interpretation of this statutory
provision. For instance, consistent with
dictionary definitions of the term, VA
considers ‘‘supervision’’ to be critical
watching of an individual to provide
oversight or directing (such as of
activities or actions).6 For the purposes
of proposed 38 CFR 71.20(a)(3)(ii),
supervision would not be limited to or
dependent upon the veteran’s or
servicemember’s needs related to
specific activities or functions, which is
in contrast to VA’s interpretation of
‘‘supervision’’ under proposed
§ 71.20(a)(3)(iii), as discussed in more
detail below. When VA evaluates a
veteran or servicemember on the basis
of whether the individual has a frequent
5 See Merriam-Webster Dictionary, 2023, https://
www.merriam-webster.com/dictionary/frequent
(last visited Jul. 26, 2024); The Britannica
Dictionary, 2023, https://www.britannica.com/
dictionary/frequent (last visited Jul. 26, 2024); and
Oxford English Dictionary, 2023, https://
www.oed.com/search/dictionary/
?scope=Entries&q=frequent (last visited Jul. 26,
2024).
6 See Merriam-Webster Dictionary, 2023, https://
www.merriam-webster.com/dictionary/supervision
(last visited Feb. 8, 2024); The Britannica
Dictionary, 2023, https://www.britannica.com/
dictionary/supervision (last visited Feb. 8, 2024);
and Oxford English Dictionary, 2023, https://
www.oed.com/search/dictionary/?scope=Entries&
q=supervision (last visited Feb. 8, 2024).
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need for supervision based on
symptoms or residuals of neurological
or other impairment or injury, VA
considers their overall need for
supervision in general. VA interprets
the word ‘‘protection’’ to mean keep,
cover, or shield from harm. This is also
consistent with common definitions for
such term.7
VA considers the need for both
supervision and protection when
evaluating the statutory criterion in 38
U.S.C. 1720G(a)(2)(C)(ii). Although VA
recognizes that the terms are distinct,
VA does not believe it is necessary in its
determinations to parse out whether an
individual needs supervision,
protection, or both under proposed 38
CFR 71.20(a)(3)(ii) because either one
would satisfy this regulatory basis.
Additionally, making this distinction
would prove challenging because
individuals who have a need for
protection, generally also have a need
for supervision. Likewise, an individual
who needs supervision may need such
supervision at times as a means of
protection; however, at other times,
supervision may be needed in the
absence of a need for protection. When
a caregiver takes action to protect a
veteran or servicemember from harm,
they may do so in the course of also
overseeing (or supervising) that
individual. For example, a veteran with
a history of hypervigilance and
hallucinations and who acts upon such
hallucinations may need protection to
support their safety during
hallucinations. In such instances, the
caregiver must provide supervision to
identify whether protection is needed.
ii. Symptoms or Residuals of
Neurological or Other Impairment or
Injury
Next, VA describes its interpretation
of the basis for such supervision and
protection, that is, symptoms or
residuals of neurological or other
impairment or injury. Consistent with
VA’s current practice, in evaluating and
determining whether a veteran or
servicemember has a frequent need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury under
proposed § 71.20(a)(3)(ii), VA would not
have a discrete list of symptoms or
residuals of neurological or other
impairment or injury by which a veteran
or servicemember may be determined
eligible under this criterion as these can
vary by individual. As clinical practices
7 See Merriam-Webster Dictionary, 2023, https://
www.merriam-webster.com/dictionary/protect (last
visited Feb. 8, 2024); and The Britannica
Dictionary, 2023, https://www.britannica.com/
dictionary/protection (last visited Feb. 8, 2024).
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evolve over time, VA would not want to
list in regulation specific symptoms or
residuals as doing so could
unnecessarily limit VA’s ability to find
individuals eligible under this criterion.
However, examples of symptoms and
residuals of neurological or other
impairment or injury for which a
veteran or servicemember may require
supervision or protection may include,
but are not limited to, unmanaged
impulse control, command
hallucinations, uncontrolled seizures,
loss of muscular control, or cognitive
impairments.
VA does not currently have a discrete
list of neurological or other impairments
or injuries that would make a veteran or
servicemember eligible under this
criterion. See 85 FR 13363–13364
(March 6, 2020). This is because
individuals with similar impairments or
injuries may experience a wide
variation of symptoms leading to a
variety of functional impacts. While VA
does not propose to maintain a discrete
list of impairments or injuries in regard
to this criterion, examples of
impairments or injuries for which
symptoms or residuals may lead to a
veteran or servicemember typically
requiring supervision or protection may
include, but are not limited to,
traumatic brain injury, mental health
conditions, Parkinson’s disease,
dementia, and neuromuscular disorders
such as muscular dystrophy, multiple
sclerosis, or amyotrophic lateral
sclerosis.
iii. Implementation of Proposed
§ 71.20(a)(3)(ii)
While VA would consider whether an
individual has a frequent need for
supervision or protection when
evaluating whether an individual is in
need of personal care services on this
basis, VA would not set forth a specific
quantitative requirement for the
frequency with which a veteran or
servicemember may require supervision
or protection other than specifying that
the need for supervision or protection is
frequent. VA has found that there is no
uniform frequency of individuals’ need
for supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury. The
frequency of need varies based on each
individual’s unique needs and depends
on severity of their symptomology.
Therefore, when implementing
proposed § 71.20(a)(3)(ii), VA would
consider how frequently a veteran or
servicemember is in need of personal
care services under this basis. VA would
consider how symptoms manifest for
each unique individual, whether their
symptoms are well-controlled, and
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whether the veteran or servicemember
has a past pattern or history of requiring
supervision or protection because of
such symptomology. Although a past
pattern or history of requiring
supervision or protection will be
considered, VA notes that it is not
necessarily determinative of whether an
individual would be determined to meet
proposed § 71.20(a)(3)(ii), as such
individual may not continue to need
supervision or protection on a frequent
basis.
In requiring a ‘‘frequent need’’, VA
can allow for variance in the type of
need and circumstances presented in
each individual case, while still
maintaining a consistent standard. This
approach differs from the frequency
proposed under 38 CFR 71.20(a)(3)(i)
and (iii) (that is, typically requires). This
is because unlike the criteria in
proposed § 71.20(a)(3)(i) and (iii), which
focus on ADLs, the need for supervision
or protection based on symptoms or
residuals of neurological or other
impairment or injury proposed in
§ 71.20(a)(3)(ii) does not have a discrete
list of needs or circumstances. In this
regard, determining what is typically
required for an individual would be
impractical.
To illustrate how the requirement for
a frequent need would be applied, VA
provides the following example. There
may be two veterans with the same
diagnosis of multiple sclerosis who both
have symptoms of muscle weakness that
require a caregiver to stay in close
proximity and intervene if the veteran
stumbles, to minimize or prevent falls.
In this example, one veteran
experiences muscle weakness on a
daily, or near daily, basis and has a
history of multiple falls, resulting in a
daily or near daily need for supervision
and/or protection by a caregiver. The
other veteran experiences occasional
muscle weakness one or two days per
week for limited amounts of time
following completion of recommended
strengthening exercises, resulting in an
occasional need for supervision or
protection by a caregiver on these days.
While these two veterans have the same
diagnosis and both experience the same
symptoms of muscle weakness, the
former veteran may have a frequent
need for supervision and protection
while the latter veteran may only
occasionally have such need. In the case
of the second veteran in this example,
where the need for supervision or
protection only occurs after
participating in their recommended
strengthening exercises, the veteran may
not be considered to have a frequent
need for supervision or protection
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because such need is infrequent and not
generally necessary.
Additionally, under proposed 38 CFR
71.20(a)(3)(ii), VA would consider
whether an individual has a
demonstrated past pattern or history
when determining whether the
individual has a frequent need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury. However,
a past pattern or history of needing
supervision or protection is not
necessarily determinative of whether an
individual would be determined to meet
proposed § 71.20(a)(3)(ii), as such
individual may not continue to have a
frequent need for supervision or
protection.
VA looks forward to receiving public
comments on this proposal.
Additionally, VA notes that if the
changes under proposed § 71.20(a)(3)(ii)
become effective, VA would develop
trainings and guidance materials to
support consistent evaluation of this
standard.
c. Proposed § 71.20(a)(3)(iii)—The
Individual Typically Requires Regular
or Extensive Instruction or Supervision
To Complete One or More ADL
As previously explained, the current
regulatory text in § 71.20(a)(3)(ii) was
intended to implement the statutory
criteria in 38 U.S.C. 1720G(a)(2)(C)(ii)
and (iii) in a combined manner by
establishing that an individual could be
determined to be in need of personal
care services based on a need for
supervision, protection, or instruction.
However, the Veteran Warriors
decision, issued on March 25, 2022,
invalidated VA’s definition of need for
supervision, protection, or instruction.
Since that decision, VA has been
applying the statutory language in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) in
place of the criterion in current 38 CFR
71.20(a)(3)(ii). VA discussed its
proposed interpretation of 38 U.S.C.
1720G(a)(2)(C)(ii) above and proposes to
further interpret 38 U.S.C.
1720G(a)(2)(C)(iii) in proposed
modifications to the regulations as
discussed in more detail below.
For purposes of interpreting 38 U.S.C.
1720G(a)(2)(C)(iii) (that is, 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), VA
proposes to add 38 CFR 71.20(a)(3)(iii)
to state that the individual typically
requires regular or extensive instruction
or supervision to complete one or more
ADL. This proposed interpretation of
the statutory criteria deviates from
current practice in two ways. The first
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is VA’s inclusion of the term typically
requires, which would specify how
often a veteran or servicemember would
be in need of personal care services on
this basis. The second is that VA
identified a need to further define its
interpretation of the statutory phrase
‘‘without which the ability of the
veteran to function in daily life would
be seriously impaired’’. In proposed
§ 71.20(a)(3)(iii), VA would interpret
this statutory phrase to mean ‘‘to
complete one or more ADL’’. VA
discusses its interpretation of the
statutory language and its proposed
criterion in greater detail further below.
i. Typically Requires
Including the term typically requires
in proposed § 71.20(a)(3)(iii) would
specify the frequency with which an
eligible veteran would be in need of
personal care services on this basis and
would align with VA’s use of the term
typically requires in proposed
§ 71.20(a)(3)(i), as discussed above.
Although the words ‘‘regular’’ and
‘‘daily’’ in 38 U.S.C. 1720G(a)(2)(C)(iii)
could be viewed in isolation as referring
to specific frequencies, for the reasons
explained below, VA does not believe
that Congress intended those words to
establish any frequency requirement in
section 1720G(a)(2)(C)(iii). Accordingly,
VA proposes to include the term
typically requires in proposed 38 CFR
71.20(a)(3)(iii) to modify the frequency
requirement previously established in
the definition of supervision, protection,
or instruction that referred to a ‘‘daily
basis’’.8
ii. Regular or Extensive Instruction or
Supervision
In 38 U.S.C. 1720G(a)(2)(C)(iii),
Congress did not define what is meant
by regular or extensive instruction or
supervision. In implementing this
statutory criterion, VA has relied upon
common definitions of the terms
‘‘regular’’, ‘‘extensive’’, ‘‘instruction’’,
and ‘‘supervision’’ to inform VA’s
interpretation. Today, ‘‘regular’’ has
been applied to mean some amount of
supervision or instruction while
‘‘extensive’’ has generally been applied
to mean a large amount of supervision
or instruction. Additionally, to date, VA
has applied common definitions of
8 Even if not viewed as a statutory gap, the
language in 38 U.S.C. 1720G(a)(2)(C)(iii) is at least
ambiguous as to the frequency with which an
individual would need regular or extensive
instruction to be determined in need of personal
care services on this basis. For the reasons
explained below, VA would resolve that ambiguity
by establishing in proposed 38 CFR 71.20(a)(3)(iii),
that the individual typically requires regular or
extensive instruction or supervision to meet this
criterion.
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‘‘instruction’’ and ‘‘supervision’’ when
implementing the statutory criteria
under section 1720G(a)(2)(C)(iii). VA
now seeks to clarify and further define
its interpretation of the statutory
criterion and use of these terms.
The term ‘‘instruction’’ commonly
refers to the provision of guidance or
detailed information to complete or
perform an action. It is defined as
‘‘something that someone tells you to
do,’’ as ‘‘a statement that describes how
to do something; an order or command;
the action or process of teaching’’ and
‘‘that which is taught; knowledge or
authoritative guidance imparted by one
person to another.’’ 9 VA’s use of the
term ‘‘instruction’’ in proposed
§ 71.20(a)(3)(iii) would be consistent
with these definitions, as VA would
consider the need for instruction to
mean the need for detailed information
is necessary to perform an activity as
VA does in current practice.
VA’s interpretation of the meaning of
‘‘supervision’’ is addressed in the
discussion above regarding proposed 38
CFR 71.20(a)(3)(ii) (that is, VA considers
‘‘supervision’’ to be critical watching of
an individual to provide oversight or
directing (such as of activities or
actions)).10 While the term
‘‘supervision’’ has the same meaning in
proposed paragraphs (a)(3)(ii) and (iii),
in proposed paragraph (a)(3)(iii)
supervision would be needed with
respect to the veteran’s or
servicemember’s ability to complete one
or more ADL, in contrast to supervision
under proposed paragraph (a)(3)(ii)
which does not include that same
requirement.
Additionally, VA recognizes that the
terms ‘‘instruction’’ and ‘‘supervision’’
are distinct terms. However, consistent
with VA’s proposed approach with
regard to supervision or protection
under proposed 38 CFR 71.20(a)(3)(ii)
discussed above, VA does not believe it
is necessary in its determinations to
parse out whether an individual
typically requires instruction,
supervision, or both under proposed
9 See Cambridge Dictionary, 2023, https://
dictionary.cambridge.org/us/dictionary/english/
instruction (last visited Feb. 8, 2024); The
Britannica Dictionary, 2023, https://
www.britannica.com/dictionary/instruction (last
visited Feb. 8, 2024); and Oxford English
Dictionary, 2023, https://www.oed.com/search/
dictionary/?scope=Entries&q=instruction (last
visited Feb. 8, 2024).
10 See Merriam-Webster Dictionary, 2023, https://
www.merriam-webster.com/dictionary/supervision
(last visited Sept. 24, 2023); The Britannica
Dictionary, 2023, https://www.britannica.com/
dictionary/supervision (last visited Feb. 8, 2024);
and Oxford English Dictionary, 2023, https://
www.oed.com/search/dictionary/?scope=Entries&
q=supervision (last visited Feb. 8, 2024).
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§ 71.20(a)(3)(iii) because either one
would satisfy this regulatory basis.
Next, VA explains its proposed
interpretations of ‘‘regular’’ instruction
or supervision and ‘‘extensive’’
instruction or supervision and the
distinction between the two. The word
‘‘regular’’ can carry several meanings,
such as ‘‘characterized by evenness,
order, or harmony in physical form,
structure, or organization; arranged in or
constituting a constant or definite
pattern; happening over and over again
at the same time or in the same way;
happening or done very often; normal or
usual.’’ 11 Merriam Webster Dictionary
describes ‘‘regular’’ as meaning,
‘‘recurring, attending, or functioning at
fixed, uniform, or normal intervals;
normal, standard; something of average
or medium size.’’ 12 It is this latter
meaning, that is, that which is
something of average or medium size,
which VA interprets to have the most
applicability for purposes of evaluating
that which is ‘‘regular’’ instruction or
supervision under proposed
§ 71.20(a)(3)(iii). Notably, ‘‘regular’’ is
commonly used to refer to a standard or
indicative of size, such as regular
clothing size versus petite or long,
regular warranty versus extended
warranty, regular display versus
extended display, or an amount, such as
with regular (basic) rates of pay.13 These
common definitions and usages that
align with the term meaning a size or
degree, inform VA’s interpretation of the
statutory language and its use of the
term ‘‘regular’’ in proposed
§ 71.20(a)(3)(iii). This is also consistent
with how VA currently interprets this
term when applying the statutory
criteria today.
VA’s use of the term ‘‘regular’’ in
proposed § 71.20(a)(3)(iii) aligns with
common usage of the term relating to
size or degree, such as a standard
amount. VA considered the use of
‘‘regular’’ in terms of frequency.
However, Congress did not include a
frequency requirement in either of the
criteria found in 38 U.S.C.
11 See Cambridge Dictionary, 2023, https://
dictionary.cambridge.org/us/dictionary/english/
regular (last visited Feb. 8, 2024); The Britannica
Dictionary, 2023, https://www.britannica.com/
dictionary/regular (last visited Feb. 8, 2024); and
Oxford English Dictionary, 2023, https://
www.oed.com/search/dictionary/?scope=Entries&
q=regular (last visited Feb. 8, 2024).
12 See Merriam-Webster Dictionary, 2023, https://
www.merriam-webster.com/dictionary/regular (last
visited Feb. 8, 2024).
13 See for example, Regular Military
Compensation (RMC) Calculator, Department of
Defense, https://militarypay.defense.gov/
calculators/rmc-calculator/ (Describing ‘‘regular
military compensation’’ as a basic level of
compensation that every servicemember receives.)
(last visited Feb. 8, 2024).
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1720G(a)(2)(C)(i) or (ii). Therefore, VA
does not believe that Congress intended
to add a frequency requirement in the
context of only one basis that an
individual could be determined to be in
need of personal care services.14 As
previously discussed, VA is proposing
to establish a consistent frequency
requirement for the two statutory bases
VA proposes would apply to the need
for personal care services to complete
ADLs through VA’s use of the term
typically requires in the proposed
criterion discussed here and the
criterion in proposed 38 CFR
71.20(a)(3)(i) discussed above. As
referenced in VA’s discussion of
proposed § 71.15, typically requires
would be a clinical determination that
would take into consideration an
individual’s unique functional needs,
abilities, and usual routines when
assessing the frequency of the
individual’s need for personal care
services.
Similarly, VA would continue to
interpret the term ‘‘extensive’’ to also
account for size or degree but on a larger
scale than regular. The term ‘‘extensive’’
commonly refers to that which is large
in size or amount, having a wide or
considerable extent, or extending over
or occupying a large surface or space,
covering a large area or being a large
amount.15 Each of these meanings for
extensive refers to a size or degree. VA
therefore equates ‘‘extensive’’ with a
greater size or higher degree of personal
care services requiring instruction or
supervision than that of ‘‘regular’’ as
explained below.
VA interprets the terms regular
(something of average or medium size)
and extensive (that which is large in
size), to reflect different points along a
spectrum. VA interprets this difference
in size or degree to reflect a distinction
in the size or degree of personal care
14 One could argue that use of the word ‘‘daily’’
in section 1720G(a)(2)(C)(iii) refers to a frequency
requirement and could imply that a veteran or
servicemember must experience the need each day.
However, in section 1720G(a)(2)(C)(iii) the word
‘‘daily’’ is used to modify the word ‘‘life’’ and is
better understood to refer to the types of activities
that the veteran or servicemember ordinarily
completes to function in the normal course of a day
(such as ADL). For this reason, VA does not read
the word ‘‘daily’’ in section 1720G(a)(2)(C)(iii) to
contain a frequency requirement. Additional
discussion of VA’s interpretation of the phrase
‘‘ability of the veteran to function in daily life
would be seriously impaired’’ in section
1720G(a)(2)(C)(iii) is below.
15 See Merriam-Webster Dictionary, 2023, https://
www.merriam-webster.com/dictionary/extensive
(last visited Feb. 8, 2024); The Britannica
Dictionary, 2023, https://www.britannica.com/
dictionary/extensive (last visited Feb. 8, 2024); and
Oxford English Dictionary, 2023, https://
www.oed.com/search/dictionary/?scope=Entries&
q=extensive (last visited Feb. 8, 2024).
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services required by the veteran or
servicemember. This means that a
regular need for instruction or
supervision is of a lower size or degree
than an extensive need for instruction or
supervision.
Using this proposed standard, if
adopted as final, when applying the
criterion in proposed 38 CFR
71.20(a)(3)(iii), VA would interpret the
need for extensive instruction or
supervision to mean that such
instruction or supervision is required
throughout the performance of the
activity; hence the personal care
services (that is, instruction or
supervision) required to complete the
activity would be of a large size or
degree. In contrast, VA would interpret
the need for regular instruction or
supervision to mean such personal care
services are only needed to complete a
portion of the activity. Thus, VA would
consider ‘‘regular’’ to refer to a lesser
size or degree of instruction or
supervision than that of ‘‘extensive’’.
Although VA interprets ‘‘regular’’ and
‘‘extensive’’ to reflect different sizes or
degrees of personal care services
required by the veteran or
servicemember, having either a
‘‘regular’’ or ‘‘extensive’’ need for
instruction or supervision to complete
one or more ADL would satisfy the
criterion in proposed § 71.20(a)(3)(iii).
This is consistent with VA’s proposed
approach with regard to supervision or
protection under proposed
§ 71.20(a)(3)(ii) and instruction or
supervision under § 71.20(a)(3)(iii)
discussed above. However, the
distinction between ‘‘regular’’ and
‘‘extensive’’ would be relevant to
determinations under proposed
§ 71.40(c)(4)(A)(2)(i) regarding stipend
level determinations, as discussed
further below.
iii. Ability To Function in Daily Life
Would Be Seriously Impaired
Finally, in proposed 38 CFR
71.20(a)(3)(iii), VA also proposes to
interpret ‘‘without which the ability of
the veteran to function in daily life
would be seriously impaired’’ in 38
U.S.C. 1720G(a)(2)(C)(iii) to mean that
such individual typically requires
regular or extensive instruction or
supervision ‘‘to complete one or more
ADL’’. This is a deviation from current
practice as currently VA may include
other activities or functions in addition
to ADL when applying this statutory
criterion as is explained below. VA
believes it is reasonable to interpret
ADL as the ‘‘ability of the veteran to
function in daily life’’ contemplated in
38 U.S.C. 1720G(a)(2)(C)(iii). Activities
or functions other than ADL for which
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veterans and servicemembers with
moderate or severe needs may be in
need of personal care services could be
captured under the basis proposed in 38
CFR 71.20(a)(3)(ii) (that is, the
individual has a frequent need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury).
Therefore, proposed 38 CFR
71.20(a)(3)(iii) would refer to instruction
or supervision to complete one or more
ADL rather than repeating the verbiage
in 38 U.S.C. 1720G(a)(2)(C)(iii).
As VA explained above regarding the
term ‘‘regular’’ in section
1720G(a)(2)(C)(iii), VA does not believe
Congress intended the term ‘‘daily’’ in
such section to establish a frequency
requirement—especially one more
restrictive than would apply under
clauses (i) and (ii) of section
1720G(a)(2)(C). The statute does not say
that the veteran or servicemember
would have a daily need for regular or
extensive instruction or supervision.
Rather, it says that without such regular
or extensive instruction or supervision,
the ability to ‘‘function in daily life
would be seriously impaired.’’ In this
context, VA interprets ‘‘function in
daily life’’ to align with VA’s proposed
definition of ADL in 38 CFR 71.15. In
proposed § 71.15, ADL would be
defined, in part, as the functions or
tasks for self-care usually performed in
the normal course of a day. VA believes
this is consistent with the language 38
U.S.C. 1720G(a)(2)(C)(iii) concerning
functioning in daily life, as ADL are
typically performed on a daily basis.
However, similar to VA’s discussion on
proposed 38 CFR 71.20(a)(3)(i) and the
proposed definition of ADL in § 71.15,
VA would not require that the ADL with
which the individual requires regular or
extensive instruction or supervision be
performed on a daily basis. ADL often
occur on a daily basis, but not always
(for example, bathing). For purposes of
this criterion, VA would apply the
proposed definition of ADL in 38 CFR
71.15, and the term typically requires
would set forth the applicable frequency
of need. VA explains its rationale for
this interpretation in more detail below.
In determining whether the ability of
the veteran or servicemember to
function in daily life would be seriously
impaired for purposes of 38 U.S.C.
1720G(a)(2)(C)(iii), VA contemplated
what other essential functions or
activities, beyond or instead of ADL,
might be considered functions in daily
life that would be seriously impaired
without regular or extensive instruction
or supervision under proposed 38 CFR
71.20(a)(3)(iii). Specifically, VA
considered activities caregivers
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commonly assist veterans with beyond
ADL. Such activities include but are not
limited to meal preparation, shopping
for essential needs, managing finances,
housework, and coordinating medical
care.16 VA does not believe Congress
intended to capture such activities
under 38 U.S.C. 1720G(a)(2)(C)(iii) for
the reasons discussed below.
First, and most noteworthy, the
phrasing of this criterion in 38 U.S.C.
1720G(a)(2)(C)(iii) implies the veteran or
servicemember is the individual who
performs the activity. To have a need for
regular or extensive instruction or
supervision without which the ability to
function in daily life would be seriously
impaired suggests that the veteran or
servicemember must be capable of
performing some activity to function in
daily life with the provision of such
instruction or supervision. This means
that if a veteran or servicemember is not
capable of performing such activity
because that veteran or servicemember
is physically or cognitively incapable of
doing so, and no amount of instruction
or supervision would enable that
veteran or servicemember to perform
that activity, such veteran or
servicemember would not qualify under
this basis. This means an individual
who may have a greater need, that is,
who requires another person to
complete the activity necessary for
functioning in daily life in its entirely
or on behalf of the veteran, would not
qualify under this basis, while an
individual who can complete the
activity with assistance (instruction or
supervision) could qualify.17
Second, VA does not believe Congress
intended to include activities classified
as instrumental activities of daily living
(IADL) such as meal preparation,
shopping for essential needs, managing
finances, housework, or coordinating
medical care within the criterion in 38
U.S.C. 1720G(a)(2)(C)(iii) because such
activities are those that may be
completed entirely by another
individual without the veteran’s or
servicemember’s presence or
involvement. Therefore, if these
activities are not performed by the
veteran or servicemember either by
choice or inability, and are instead
completed by another individual, the
veteran’s or servicemember’s
16 Rajeev Ramchand, et al., Hidden Heroes:
America’s Military Caregivers. Santa Monica, CA:
RAND Corporation (2014), pages 54–56, available at
https://www.rand.org/pubs/research_reports/
RR499.html.
17 Note that the individual with a greater need
may qualify under a separate criterion under
proposed 38 CFR 71.20(a)(3)(i) or (ii) and the failure
to qualify under this basis in § 71.20(a)(3)(iii) would
not mean that an individual is necessarily ineligible
for PCAFC.
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functioning in daily life would not be
seriously impaired—with or without
instruction or supervision in performing
such activities, as they do not perform
the activity. This would not mean that
individuals who are incapable of
performing or who otherwise need
assistance with these activities would be
excluded from PCAFC. Such
individuals may still be in need of
personal care services based on meeting
the other criteria under proposed
§ 71.20(a)(3).
Therefore, ADL are the only activities
VA identified for which the ability of
the veteran or servicemember to
function in daily life would be seriously
impaired in the absence of regular or
extensive instruction or supervision and
that pursuant to this interpretation, the
criterion in proposed § 71.20(a)(3)(iii)
would not unduly disadvantage one
group over another. Furthermore, in
contrast to the other functions or
activities VA considered, ADL cannot be
done without the veteran’s or
servicemember’s presence or
involvement. The veteran’s or
servicemember’s physical presence is
necessary for the ADL to be completed
because the ADL that is completed is
performed on, or directly impacts, the
veteran’s body. Thus, VA finds it
appropriate to interpret 38 U.S.C.
1720G(a)(2)(C)(iii) to mean the
individual typically requires regular or
extensive instruction or supervision to
complete one or more ADL. While there
are indeed other activities which could
result in a veteran’s or servicemember’s
ability to function in daily life being
seriously impaired that are not related
to ADL, such as but not limited to a
veteran or servicemember who requires
supervision due to frequent falls, or a
veteran or servicemember who requires
instruction or supervision to properly
self-administer medications, such needs
could be captured under proposed 38
CFR 71.20(a)(3)(ii). An illustrative
example is provided below when VA
addresses multiple bases for being
determined to be in need of personal
care services.
Although VA did not identify any
other life activities or functions that
would meet the statutory language
beyond that which are ADL and which
are not already covered under the other
bases (that is, a need for hands-on
assistance or a need for regular or
extensive supervision or instruction to
complete one or more ADL), VA
specifically requests comments on this
topic from the public on whether there
are certain IADL, or other activities or
functions in daily life that VA should
consider for purposes of determining
that an individual is in need of personal
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care services under 38 U.S.C.
1720G(a)(2)(C)(iii) and proposed 38 CFR
71.20(a)(3)(iii).
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iv. Implementation of Proposed
§ 71.20(a)(3)(iii)
Similar to VA’s discussions above
regarding proposed 38 CFR
71.20(a)(3)(i), in evaluating whether the
individual typically requires regular or
extensive instruction or supervision to
complete one or more ADL should this
proposed regulation text become final,
VA would consider the instruction or
supervision that is generally necessary
when the individual is completing one
or more ADL. In determining if an
individual typically requires regular or
extensive instruction or supervision to
complete one or more ADL, VA would
consider for each individual, factors
such as how often the ADL is completed
as well as the frequency with which
instruction or supervision is needed to
complete such ADL. What is typically
required would be a clinical
determination based on an assessment
of the veteran’s or servicemember’s
needs and would take into
consideration things like the individual
veteran’s or servicemember’s unique
functional needs, abilities, usual
routines, and the tasks required to be
able to complete the ADL.
d. Eligibility Under Multiple Proposed
Bases
Under VA’s proposed interpretation
of 38 CFR 71.20(a)(3)(i) through (iii),
some veterans and servicemembers may
be determined to be in need of personal
care services based on more than one
criterion. This means that a veteran or
servicemember may be determined to be
in need of multiple types of personal
care services (that is, hands-on
assistance with ADL, supervision or
protection, and/or instruction or
supervision). For example, while both
proposed § 71.20(a)(3)(i) and (iii) would
require a veteran or servicemember to
typically require personal care services
with respect to one or more ADL, the
type of personal care services that
would be required by the veteran to
satisfy each proposed criterion differ.
Under proposed § 71.20(a)(3)(i), the
individual would typically require
hands-on assistance, and under
proposed § 71.20(a)(3)(iii), the
individual would typically require
regular or extensive instruction or
supervision, which VA would consider
to be something other than hands-on
assistance. For example, a veteran may
typically require hands-on assistance
with bathing and also typically require
regular or extensive instruction for
dressing. In such instance, the veteran
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may meet both proposed § 71.20(a)(3)(i)
and (iii). This is just one example;
however, an individual could be
determined to be in need of personal
care services based on meeting various
combinations of the criteria in proposed
§ 71.20(a)(3) such as meeting the
criterion in proposed § 71.20(a)(3)(i) and
(ii) or meeting all three criteria in
proposed § 71.20(a)(3)(i) through (iii).
2. Section 71.20(a)(7)—Ongoing Care
From a Primary Care Team
Current § 71.20(a)(7) requires that the
individual receives ongoing care from a
primary care team or will do so if VA
designates a Family Caregiver. VA
proposes to revise this paragraph to
require that the individual receives
ongoing care from a primary care team
or will do so within 120 days of the date
VA designates a Family Caregiver. VA
would further propose to state in this
paragraph that if the individual is
unable to receive such care due, at least
in part, to an event or action within
VA’s control, VA may extend this 120day period.
As explained in VA’s 2011 IFR and
2015 Final Rule implementing PCAFC,
the current requirement to receive
ongoing care in § 71.20(a)(7) is
necessary to enable VA to perform
statutorily required functions, including
documenting findings related to the
delivery of personal care services and
ensuring appropriate follow-up. See 76
FR 26151 (May 5, 2011) and 80 FR
1363–1364 (January 9, 2015) (citing 38
U.S.C. 1720G(a)(9)).
As proposed, VA would continue to
require that the individual receives
ongoing care from a primary care team
or will do so if VA designates a Family
Caregiver. However, VA proposes to add
a timeframe, specifically, within 120
days of the date VA designates a Family
Caregiver, within which the individual
must do so. Requiring the individual to
receive ongoing care from a primary
care team within a specified time frame
would enable VA to ensure that it
continues to provide appropriate followup and perform statutorily mandated
functions within a reasonable amount of
time following designation of a Family
Caregiver, as described above. This is
especially important for those
individuals who are not already
receiving ongoing care from a primary
care team, as that could result in
delayed access to necessary care,
including supports and services, which
could lead to potentially unsafe
situations.
VA believes that allowing for 120
days to receive such care is a reasonable
amount of time to schedule and receive
care from a primary care team following
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VA’s designation of a Family Caregiver.
Furthermore, it would align with the
timing within which VA would conduct
the first wellness contact, which is
generally conducted 120 days after
approval. See 38 CFR 71.40(b)(2).
Wellness contacts include but are not
limited to a review of the eligible
veteran’s well-being and allow VA the
opportunity to identify and provide any
additional support, services, or referrals
for services needed by the eligible
veteran or Family Caregiver. See 85 FR
13380 (March 6, 2020). Additionally,
while eligible veterans and Family
Caregivers may request additional
supports and services at any time, such
requests are often made and discussed
during wellness contacts. Ensuring the
eligible veteran is receiving ongoing
care from a primary care team within
120 days of the date VA designates a
Family Caregiver would avoid delay in
the eligible veteran obtaining needed
services.
Pursuant to proposed paragraph (a)(7),
VA would also have the discretion to
extend this time period if the individual
is unable to receive ongoing care from
a primary care team due, at least in part,
to an event or action within VA’s
control. While VA anticipates an
individual who seeks to receive care
from a primary care team will be able
to receive such care within 120 days,
VA recognizes there may be extenuating
circumstances in which receipt of such
care may take longer than 120 days.
This provision, as proposed, would
continue to allow for some flexibility in
such instances.
3. Section 71.20(b) and (c)—Legacy
Applicants and Legacy Participants
Currently, under paragraphs (b) and
(c) of § 71.20, for five years beginning on
October 1, 2020, a veteran or
servicemember is eligible for a Primary
or Secondary Family Caregiver under
part 71 if they are a legacy applicant or
legacy participant. As discussed earlier
in this rulemaking, VA proposes to
extend this transition period for the
legacy cohort. To provide for this
additional period, VA proposes to
amend § 71.20(b) and (c).
First, VA proposes to amend
§ 71.20(b) and (c) by removing the
phrase ‘‘For five years beginning on
October 1, 2020’’ and adding in its
place, the phrase ‘‘Beginning on October
1, 2020 through [18 months after
EFFECTIVE DATE OF FINAL RULE]’’.
Additionally, VA would replace
‘‘Primary or Secondary Family
Caregiver’’ with ‘‘Primary Family
Caregiver or Secondary Family
Caregiver’’ to reference those terms as
they are defined in § 71.15. Finally, VA
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would replace the phrase ‘‘he or she’’
with ‘‘veteran or servicemember’’ to
conform to VA’s goal to ensure its
regulations are gender neutral.
As proposed, paragraph (b) would
state beginning on October 1, 2020
through [18 months after EFFECTIVE
DATE OF FINAL RULE], a veteran or
servicemember is eligible for a Primary
Family Caregiver or Secondary Family
Caregiver under this part if the veteran
or servicemember is a legacy
participant. Proposed paragraph (c)
would state beginning on October 1,
2020 through [18 months after
EFFECTIVE DATE OF FINAL RULE], a
veteran or servicemember is eligible for
a Primary Family Caregiver or
Secondary Family Caregiver under this
part if the veteran or servicemember is
a legacy applicant.
VA solicits comments from the public
on all aspects of this proposed rule. In
particular, VA asks the following
questions on specific aspects of this
proposal.
1. What activities or tasks in addition
to or other than ADL should VA
consider when determining whether a
veteran or servicemember has 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?
2. VA has explained VA’s
interpretation of the words ‘‘regular’’
and ‘‘extensive’’ instruction or
supervision. How else might ‘‘regular’’
be distinguished from ‘‘extensive’’
instruction or supervision?
3. As explained above, VA would not
set forth a specific quantitative
requirement for the frequency with
which a veteran or servicemember may
require supervision or protection other
than specifying that the individual has
a frequent need for supervision or
protection. This is because the need for
supervision or protection is not limited
to a discrete list of activities or
circumstances. VA has found that there
is no uniform frequency of individuals’
need for supervision or protection based
on symptoms or residuals of
neurological or other impairment or
injury. The frequency of need varies
based on each individual’s unique
needs and depends on severity of their
symptomology. Is there a different
frequency standard VA should consider,
and if so, what is that standard?
E. 38 CFR 71.25 Approval and
Designation of Primary Family
Caregivers and Secondary Family
Caregivers
Section 71.25 describes the process
for approval and designation of Primary
Family Caregivers and Secondary
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Family Caregivers. As described below,
VA proposes to amend § 71.25(a) and (b)
by revising certain terminology,
restructuring certain language, and
adding additional language to address
application and eligibility requirements.
1. Section 71.25(a)—Application
Requirement
Current § 71.25(a) explains the
requirement for submission of a joint
application for approval and
designation of a Primary Family
Caregiver or Secondary Family
Caregiver. In current § 71.25(a)(1), VA
requires individuals who wish to be
considered for designation by VA as
Primary Family Caregivers or Secondary
Family Caregivers to 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.
VA proposes to add a paragraph to
§ 71.25(a)(1) to address instances of a
Secondary Family Caregiver seeking
designation as the Primary Family
Caregiver and would reorganize
§ 71.25(a)(1) as a result. As proposed,
§ 71.25(a)(1) would state that
individuals who wish to be considered
for designation by VA as Primary
Family Caregivers or Secondary Family
Caregivers must submit a joint
application, along with the veteran or
servicemember. However, VA would
add two paragraphs to proposed
§ 71.25(a)(1).
Proposed § 71.25(a)(1)(i) would
consist of the second sentence of current
paragraph § 71.25(a)(1) without change.
Proposed § 71.25(a)(1)(ii) would state a
currently approved Secondary Family
Caregiver for the eligible veteran may
apply for designation as the Primary
Family Caregiver by submitting a new
joint application along with the eligible
veteran.
VA proposes to add § 71.25(a)(1)(ii) to
clarify that the joint application
requirement still applies when an
individual who is currently serving as a
Secondary Family Caregiver wishes to
be designated as the Primary Family
Caregiver. If a Primary Family
Caregiver’s designation is revoked, they
are discharged from PCAFC, or if the
Primary Family Caregiver’s revocation
or discharge is pending, then the
eligible veteran and their approved and
designated Secondary Family Caregiver
may want the Secondary Family
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97421
Caregiver to be approved and designated
as the Primary Family Caregiver. VA’s
current practice is to require that the
Secondary Family Caregiver submit a
new joint application, along with the
eligible veteran. VA would continue
with its current practice as it ensures
the statutory requirements in 38 U.S.C.
1720G(a)(7) are met, including the
requirement in section
1720G(a)(7)(B)(iii), that the eligible
veteran consents to VA’s designation of
the individual as the Primary Family
Caregiver for the eligible veteran. By
submitting a new joint application, both
the eligible veteran and the individual
applying as the Primary Family
Caregiver make their intentions known
and it ensures that both parties are
seeking the change in designation.
Therefore, new proposed 38 CFR
71.25(a)(1)(ii) would state a currently
approved Secondary Family Caregiver
for the eligible veteran may apply for
designation as the Primary Family
Caregiver by submitting a new joint
application along with the eligible
veteran.
Although this is not a proposed
change, it is important to note that if the
eligible veteran is a legacy participant or
legacy applicant and a new joint
application is received by VA on or after
October 1, 2020 that results in approval
and designation of the same or a new
Primary Family Caregiver, the eligible
veteran would no longer be considered
a legacy participant or legacy applicant
as those terms are defined in 38 CFR
71.15. See 85 FR 13375–13376 (March 6,
2020).
VA also proposes to amend
§ 71.25(a)(2)(i) to address evaluation
requirements when a current Secondary
Family Caregiver seeks designation as a
Primary Family Caregiver. Pursuant to
current § 71.25(a)(2)(i), upon receiving a
joint 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 part 71, and if eligible,
determine the applicable monthly
stipend amount under § 71.40(c)(4). See
§ 71.25(a)(2)(i). Notwithstanding that,
VA will not evaluate a veteran’s or
servicemember’s eligibility under
§ 71.20 as part of the application process
when a joint application is received
seeking to designate a Secondary Family
Caregiver for an eligible veteran who
has a designated Primary Family
Caregiver. Id.
VA proposes to add an additional
exception when it would not evaluate a
veteran’s or servicemember’s eligibility
under § 71.20 as part of the application
process and proposes to reorganize
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§ 71.25(a)(2)(i) as a result. VA proposes
to revise § 71.25(a)(2)(i) by adding the
phrase ‘‘except as provided in
paragraphs (a)(2)(i)(A) and (B) of this
section,’’ in the first sentence and
adding new paragraphs (A) and (B). In
proposed § 71.25(a)(2)(i), VA would
refer to the ‘‘monthly stipend payment’’
instead of the term ‘‘monthly stipend
amount’’ that appears in the first
sentence of current § 71.25(a)(2)(i). This
proposed change would ensure
consistency with terminology used
elsewhere in part 71. VA also proposes
to move part of the last sentence in
current § 71.25(a)(2)(i) regarding when a
joint application is received seeking to
designate a Secondary Family Caregiver
for an eligible veteran who already has
a designated Primary Family Caregiver
to new paragraphs (A) and (A)(1). In
addition to reorganizing that language
into a new paragraph (a)(2)(i)(A) and
paragraph (A)(1), VA would add ‘‘as
part of the application process’’, change
‘‘add’’ to ‘‘designate’’, and add
‘‘already’’. These proposed edits are
intended to be non-substantive
technical changes that would further
clarify this provision. VA proposes no
other changes to that language.
VA also proposes to add new
paragraph § 71.25(a)(2)(i)(A)(2) to
address situations in which a current
Secondary Family Caregiver seeks to
change their designation to a Primary
Family Caregiver. Under proposed
§ 71.25(a)(2)(i)(A)(2), VA would not
reevaluate an eligible veteran under
§ 71.20 when an eligible veteran seeks to
designate a current Secondary Family
Caregiver for the eligible veteran as the
Primary Family Caregiver for that same
eligible veteran so long as the eligible
veteran has already been determined to
meet the eligibility criteria found in
current § 71.20(a) or proposed
§ 71.20(a). In proposing this change, VA
seeks to eliminate unnecessary
evaluations of eligible veterans while
also ensuring that VA approves and
designates a Primary Family Caregiver
only for a veteran or servicemember
who has been determined to meet
PCAFC eligibility criteria in § 71.20(a).
In proposed § 71.25(a)(2)(i)(A)(2), VA
would reference the § 71.20(a) criteria
that would be in effect as of the effective
date of this proposed rulemaking, if
adopted, as well as the current
§ 71.20(a) criteria (which may have
included the statutory criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) in
place of the definition of need for
supervision, protection, or instruction).
This is because, those who have been
determined to meet the eligibility
criteria in current § 71.20(a) would also
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meet the eligibility criteria in proposed
§ 71.20(a). Instead of evaluating
eligibility under § 71.20(a) when a joint
application is received to change the
Secondary Family Caregiver to Primary
Family Caregiver, VA proposes to rely
on its most recent evaluation of the
personal care needs of the eligible
veteran to inform the determination of
the Secondary Family Caregiver’s ability
to serve in the role of Primary Family
Caregiver, and if eligible, the monthly
stipend payment the Primary Family
Caregiver would be eligible to receive as
set forth in proposed revisions to
§ 71.40(c)(4)(i)(A). This most recent
evaluation of the personal care needs of
the eligible veteran would have
included the Family Caregiver’s
assessment of the needs and limitations
of the eligible veteran to the extent
required by 38 U.S.C.
1720G(a)(3)(C)(iii)(I). In this scenario,
re-evaluation of the eligible veteran
would be unnecessary. However, at any
time after the Secondary Family
Caregiver transitions to being approved
and designated as the Primary Family
Caregiver, the eligible veteran or
Primary Family Caregiver may request a
reassessment in writing pursuant to
proposed § 71.30(c), which is discussed
below.
As proposed, § 71.25(a)(2)(i) would
state upon receiving such application,
except as provided in paragraphs
(a)(2)(i)(A) and (B) of § 71.25, 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 part
71, and if eligible, determine the
applicable monthly stipend payment
under § 71.40(c)(4). Proposed
§ 71.25(a)(2)(i)(A) would state VA will
not evaluate a veteran’s or
servicemember’s eligibility under
§ 71.20 as part of the application process
when: (1) A joint application is received
seeking to designate a Secondary Family
Caregiver for an eligible veteran who
already has a designated Primary Family
Caregiver; or (2) A joint application is
received that seeks to change the
designation of a current Secondary
Family Caregiver for an eligible veteran
to designation as the Primary Family
Caregiver for that same eligible veteran
so long as the eligible veteran has
already been determined to meet the
eligibility criteria under proposed
§ 71.20(a) or § 71.20(a) (2021) (which
may have included the statutory criteria
in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii)
in place of the criterion in
§ 71.20(a)(3)(ii)).
Additionally, VA proposes to add
new § 71.25(a)(2)(i)(B) to indicate that
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the required evaluations for Family
Caregiver applicants found in § 71.25
may not all be required when a current
approved Secondary Family Caregiver
applies to be designated as the Primary
Family Caregiver for the same eligible
veteran. Proposed § 71.25(a)(2)(i)(B)
would state upon receipt of a joint
application that seeks to designate a
current Secondary Family Caregiver as
the Primary Family Caregiver for the
same eligible veteran, VA will
determine which evaluations under
§ 71.25 are necessary to assess the
individual’s eligibility as the Primary
Family Caregiver. VA proposes this new
paragraph as VA may not require reevaluation of each eligibility criteria for
such individuals, as those serving as a
Secondary Family Caregiver for an
eligible veteran would have already
been determined to meet the eligibility
requirements found in § 71.25. The
individual designated as a Secondary
Family Caregiver would have already
completed caregiver training and
demonstrated the ability to carry out the
specific personal care services, core
competencies, and additional care
requirements needed by the eligible
veteran. For these reasons, VA believes
that a more limited evaluation may be
warranted to determine eligibility of a
current Secondary Family Caregiver to
serve as the Primary Family Caregiver.
While VA is not proposing to amend
§ 71.40(d) regarding the effective date of
PCAFC benefits, VA notes that new
benefits for Secondary Family
Caregivers who are subsequently
designated as a Primary Family
Caregiver would become effective
pursuant to § 71.40(d). This would mean
that in the event a Secondary Family
Caregiver applies for and is designated
as the Primary Family Caregiver for the
same eligible veteran, additional
benefits exclusive to the role of Primary
Family Caregiver, such as the monthly
stipend, would become effective
pursuant to § 71.40(d) requirements.
Current § 71.25(a)(2)(ii) explains that
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. Current
§ 71.25(a)(2)(ii) further explains that if
such requirements are not completed
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
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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.
VA has had instances in which VA
has extended the 90-day timeline based
on VA’s inability to approve and
designate a Family Caregiver solely
because of actions taken or not taken by
VA. However, VA has found that such
inability is rarely because of one
discrete event where responsibility for
the delay is easily identified and
attributed to VA. More often, VA has
experienced instances when there may
be an initial delay in VA scheduling an
evaluation, for example, and because of
this delay the veteran (or
servicemember) or Family Caregiver
applicant may be delayed in completing
other requirements, or vice versa. VA
proposes to provide flexibility to VA to
extend the 90-day period rather than
deny the application and require the
veteran and Family Caregiver applicant
to re-submit a joint application, which
would further delay access to PCAFC.
Thus, VA proposes to revise this last
sentence of § 71.25(a)(2)(ii) to remove
the word solely and explain that 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, at least in part, due to
VA’s action. This proposal, if adopted,
would give VA greater flexibility to
extend the deadline for completing the
designation process, and VA expects
that this change would reduce burdens
on VA staff as well as PCAFC applicants
who would otherwise be required to resubmit a joint application if the
designation process was not completed
within the 90-day timeline.
VA also proposes to amend
§ 71.25(a)(3) to address how it would
evaluate joint applications if the
proposed revisions to the definition of
joint application under § 71.15 and
other proposed changes to eligibility
criteria discussed in this proposed rule
are made final and effective. Current
§ 71.25(a)(3) explains how VA will
evaluate joint applications received
before, on, and after October 1, 2020,
which is the date that the July 31, 2020
Final Rule became effective. Joint
applications received by VA before
October 1, 2020 were evaluated by VA
based on 38 CFR 71.15, 71.20, and 71.25
(2019) except that the term joint
application as defined in current § 71.15
applied to such applications. Joint
applications received on or after
October 1, 2020 were and are evaluated
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based on the criteria in effect on or after
such date. § 71.25(a)(3)(ii). Paragraphs
(A) and (B) of § 71.25(a)(3)(ii) further
address joint applications submitted by
veterans and servicemembers seeking to
qualify for PCAFC based on the phased
expansion of PCAFC eligibility criteria
in current § 71.20(a)(2)(ii) and (iii)
(codifying the criteria for the phased
expansion of PCAFC to qualifying
veterans and servicemembers who
incurred or aggravated a serious injury
in the line of duty before September 11,
2001). See 85 FR 13376 (March 6, 2020).
As VA has evaluated all joint
applications received by VA before
October 1, 2020, the regulation text
addressing those joint applications in
§ 71.25(a)(3)(i) is no longer necessary.
Similarly, the regulation text found in
paragraphs (A) and (B) of
§ 71.25(a)(3)(ii) is also obsolete as VA
has evaluated all joint applications
referenced in those paragraphs.
Therefore, VA proposes to remove the
current text found in § 71.25(a)(3)(i) and
(a)(3)(ii)(A) and (B) addressing joint
applications received by VA before
October 1, 2020 and to further revise
these paragraphs as discussed below.
The application process for PCAFC
requires evaluation, training, and
assessments that occur over a period of
time. Given this, VA expects there will
be joint applications received by VA
prior to the effective date of this
proposed rule for which eligibility
determinations are still pending on the
effective date of the rule. Consistent
with the approach taken in the July 31,
2020 Final Rule, VA proposes to review
pending joint applications received by
VA before the effective date of the final
rule, if adopted, using the eligibility
criteria in place on the day the joint
application was received, unless
otherwise noted. 85 FR 13375 (March 6,
2020). Since VA proposes to change
certain eligibility criteria, including
certain terms and definitions that would
affect VA’s review of joint applications
received, among other things in this
proposed rule, VA believes it is
reasonable for VA to continue to
evaluate joint applications received
prior to the effective date of any final
rule adopting amendments to eligibility
criteria, under the statutes and
regulations in effect at the time the joint
application was received by VA. This
approach would provide transparency
for applicants and reduce the likelihood
of inconsistencies or delays when
rendering a decision as certain
evaluations may need to be repeated if
VA were to apply the new criteria to
joint applications pending on the date a
final rule becomes effective. While VA
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would seek to mitigate these concerns
through applying the statutes and
regulations in effect at the time VA
received the joint application, VA
proposes certain exceptions as
explained below.
First, VA would not apply the
definition of joint application as it
currently appears in § 71.15 if this rule
is adopted as proposed. Rather VA
would apply the new proposed
definition of joint application discussed
above regarding proposed changes to
§ 71.15. VA discusses the challenges
associated with the current definition of
this term and VA’s rationale for this
proposed definition above. If adopted,
VA would apply the proposed
definition of joint application in
rendering a determination under the
regulations in effect from October 1,
2020, through the effective date of any
rule changes, thereby eliminating any
use of the current definition once rule
changes become final and effective.
Given the challenges associated with the
current definition of joint application,
VA sees no reason to maintain its use
in evaluating joint applications received
prior to the effective date of any rule
changes to the definition of joint
application.
Next, VA proposes to make clear how
VA has addressed the term need for
supervision, protection, or instruction in
part 71 since the term was invalidated
by Veteran Warriors, and how VA
would continue to address it when
evaluating joint applications received
prior to the effective date of any rule
changes to delete the definition of need
for supervision, protection, or
instruction in § 71.15. Specifically, this
proposed change would codify in
regulations the criteria used by VA since
the court’s ruling in Veteran Warriors.
As explained above, the Veteran
Warriors decision, issued on March 25,
2022, invalidated VA’s definition of
need for supervision, protection, or
instruction in § 71.15. Since that
decision, VA no longer applies this term
or its definition when rendering PCAFC
decisions. Instead, VA applies the
statutory criteria found in 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii). As proposed,
38 CFR 71.25(a)(3)(ii) would establish in
VA’s regulations that for PCAFC
applications received between October
1, 2020 and the effective date of a final
rule adopting the amendments to part
71 in this proposed rule, VA would not
apply the term need for supervision,
protection, or instruction and would
apply the statutory criteria under 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii)
instead.
To incorporate these changes into 38
CFR 71.25(a)(3), VA proposes to revise
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§§ 71.25(a)(3)(i)–(ii) and (a)(3)(ii)(A)–(B)
and add new § 71.25(a)(3)(ii)(B)(1)–(2).
As proposed, § 71.25(a)(3)(i) would state
that a joint application under part 71 is
evaluated in accordance with the
statutes and regulations in effect on the
date VA receives such joint application.
Section 71.25(a)(3)(ii) and (a)(3)(ii)(A)–
(B) would state notwithstanding
paragraph (a)(3)(i) of § 71.25, in
rendering a determination under part
71, based on the regulations that were
in effect from October 1, 2020 through
the effective date of the final rule: (A)
the definition of ‘‘joint application’’ in
§ 71.15 that would become effective on
the effective date of the final rule would
apply, and (B) the definition of ‘‘need
for supervision, protection, or
instruction’’ in § 71.15 does not apply.
Proposed § 71.25(a)(3)(ii)(B)(1)–(2)
would explain that in place of the
definition of ‘‘need for supervision,
protection, or instruction’’ in § 71.15,
the following criteria apply: (1) a need
for supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury; or (2) 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.
2. Section 71.25(b)—Eligibility To Serve
as Primary Family Caregiver or
Secondary Family Caregiver
Current § 71.25(b) explains the
requirements to serve as a Primary
Family Caregiver or Secondary Family
Caregiver. This includes being either a
family member or someone who lives
with the eligible veteran full-time or
will do so if designated as a Family
Caregiver. See § 71.25(b)(2)(i) and (ii).
VA proposes to revise § 71.25(b)(2)(ii) to
refer to someone who lives with the
eligible veteran full-time or will do so
within 120 days of the date VA
designates the individual as a Family
Caregiver. This proposed change would
account for Family Caregiver applicants
who are not family members of the
veteran or servicemember and who may
be living apart from the veteran or
servicemember during the application
process but who intend to live with
them once the Family Caregiver is
approved and designated. The personal
care needs of a veteran or
servicemember applying for PCAFC may
be provided by a non-family member
who only intends to live with the
veteran or servicemember if approved
and designated as a Family Caregiver,
since doing so would be a condition of
participation in PCAFC. Upon approval
and designation, VA would not expect
the newly designated Family Caregiver
to be prepared to move in with the
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veteran or servicemember instantly and
without advance notice. Rather a period
of transition may be needed, and
appropriate, so VA proposes to establish
a time period for such transition in
§ 71.25(b)(2)(ii). VA believes a period of
up to 120 days is an adequate amount
of time for a Family Caregiver or the
veteran or servicemember to relocate if
necessary. This 120-day period also
aligns with the time period within
which VA would conduct the first
wellness contact, which is generally
conducted 120 days after approval and
designation. See § 71.40(b)(2). During
this wellness contact, VA would have
the opportunity to confirm the nonfamily member Family Caregiver is
living with the eligible veteran full-time.
Finally, VA proposes to revise the
section heading for § 71.25 by replacing
the word ‘‘Primary’’ with the term
‘‘Primary Family Caregivers’’. As
proposed, the section heading would
state ‘‘Approval and designation of
Primary Family Caregivers and
Secondary Family Caregivers’’. VA
proposes a similar edit to the heading
and introductory sentence for § 71.25(b),
which would state ‘‘Eligibility to serve
as Primary Family Caregiver or
Secondary Family Caregiver. In order to
serve as a Primary Family Caregiver or
Secondary Family Caregiver, the
applicant must meet all of the following
requirements’’. If adopted, these
changes, along with a similar change to
proposed § 71.25(a)(1), discussed above,
would be non-substantive technical
edits to fully reference the term Primary
Family Caregiver as such term is defined
in § 71.15.
F. 38 CFR 71.30 Reassessment of
Eligible Veterans and Family Caregivers
Current § 71.30 describes the process
for reassessments of eligible veterans
and Family Caregivers under PCAFC.
VA proposes to amend § 71.30 to revise
the language regarding the frequency of
VA-initiated reassessments, incorporate
a standard by which eligible veterans
and Primary Family Caregivers can
request a reassessment and to make
other technical and conforming
amendments consistent with other
changes included in this proposed rule.
1. Proposed Changes to the Frequency of
VA-Initiated Reassessments
VA proposes to revise § 71.30 by
removing the language that
reassessments will occur on an annual
basis. Currently, § 71.30(a) requires that,
except as provided in paragraphs (b) or
(c), each eligible veteran and Family
Caregiver will be reassessed by VA (in
collaboration with the primary care
team to the maximum extent
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practicable) on an annual basis to
determine their continued eligibility for
participation in PCAFC. The
reassessment of eligible veterans and
Family Caregivers under § 71.30
includes consideration of PCAFC
eligibility criteria and, if applicable, the
criteria in § 71.40(c)(4)(i)(A) for
purposes of the monthly stipend rate.
See § 71.30(a).
VA believes it is important to conduct
reassessments to monitor an eligible
veteran’s need for personal care services
and the needs and capabilities of the
designated Family Caregiver(s), to
determine if any of these needs have
changed over time. Reassessments also
provide Family Caregivers and eligible
veterans with an opportunity to provide
feedback to VA, which can inform
whether additional instruction,
preparation, training, or technical
support may be warranted. See 85 FR
13379 (March 6, 2020). See also 38
U.S.C. 1720G(a)(3)(D). The reassessment
process may also result in changes to a
Primary Family Caregiver’s monthly
stipend. VA takes the Family Caregiver’s
assessment of the eligible veteran’s
needs and limitations into account
when determining the Primary Family
Caregiver’s monthly stipend payment, if
applicable. See 85 FR 13379 (March 6,
2020). See also 38 U.S.C.
1720G(a)(3)(C)(iii)(I).
Reassessments are necessary to ensure
that individuals participating in PCAFC
continue to meet eligibility
requirements. VA proposes to maintain
reassessments but proposes to remove
the language in § 71.30(a) which states
reassessments will occur on an annual
basis, except as provided under
paragraphs (b) and (c). VA originally
proposed this default frequency for
reassessments under § 71.30(a) because
it recognized that an eligible veteran’s
need for personal care services may
change over time, and the reassessments
provided an opportunity for VA to
consider whether an eligible veteran’s
assessed level of need had increased or
decreased during the year. 85 FR 13378
(March 6, 2020). In addition, VA
believed that requiring annual
reassessments would create consistency
across the program and ensure that
reassessments were generally conducted
on a standard timeline. Id. at 13378–79.
While applying the provision of
annual reassessments provided
standardization in the frequency of
reassessments, VA no longer believes
that annually is the appropriate
standard cadence to assess continued
eligibility for PCAFC. Although VA has
the authority to conduct reassessments
more or less frequently than annually
pursuant to current § 71.30(b) and (c),
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VA believes that this proposal, if
adopted in a final rule, would provide
transparency for the public that VA
intends to no longer maintain a default
threshold of an annual reassessment.
VA would continue to provide notice to
PCAFC participants regarding the
timeline for future reassessments
through issuance of VA policy and
written communication with PCAFC
participants. VA also would continue
monitoring the results of reassessments
over time and use data to inform any
changes to the cadence of reassessments
within policy.
To remove the default frequency of
conducting annual reassessments, VA
proposes to revise the first sentence of
§ 71.30(a) by removing the phrase ‘‘on
an annual basis’’. VA would also
remove the phrase ‘‘[e]xcept as provided
in paragraphs (b) and (c) of this
section,’’ from the first sentence because
the exceptions to the annual
requirement currently set forth in
§ 71.30(b) and (c) would no longer be
necessary. VA is proposing additional
changes to paragraphs (b) and (c), which
are discussed further below.
VA also proposes a technical edit to
clarify that reassessments are completed
for the eligible veteran and all Family
Caregivers of the eligible veteran (in
cases where there is more than one), by
adding the word ‘‘each’’ before ‘‘Family
Caregiver’’ in the first sentence of
proposed § 71.30(a). Thus, as proposed,
the first sentence of § 71.30(a) would
state that the eligible veteran and each
Family Caregiver will be reassessed by
VA (in collaboration with the primary
care team to the maximum extent
practicable) to determine their
continued eligibility for participation in
PCAFC under part 71.
Finally, VA proposes to change the
second sentence of § 71.30(a) which
explains that in the context of
reassessments, VA considers whether
the eligible veteran is unable to selfsustain in the community for purposes
of the monthly stipend rate under
§ 71.40(c)(4)(i)(A). VA proposes to add
the phrase ‘‘if applicable’’ to the end of
the second sentence because
consideration of the monthly stipend
only occurs as part of a reassessment
when the eligible veteran and Primary
Family Caregiver are determined
eligible for PCAFC. Also, in proposed
§ 71.30(a), VA would refer to the
‘‘monthly stipend payment’’ instead of
the term monthly stipend rate that
appears in the second sentence of
current § 71.30(a). The phrase ‘‘monthly
stipend payment’’ would refer to the
applicable stipend amount authorized
under § 71.40(c)(4) and would account
for the term monthly stipend rate and its
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definition in § 71.15. VA also proposes
to remove reference to the term unable
to self-sustain in the community from
§ 71.30(a), consistent with its proposed
removal of such term and its definition
from § 71.15 as discussed above and
further below in the context of proposed
changes to § 71.40(c)(4)(i)(A). As
proposed, the second sentence would
state that reassessments will include
consideration of the monthly stipend
payment under § 71.40(c)(4)(i)(A), if
applicable.
2. Proposed Changes To Reassessing
Eligible Veterans’ Continued Eligibility
Under § 71.20(a)(3)
Current § 71.20(a)(3) sets forth one of
the seven criteria in § 71.20(a) that a
veteran or servicemember must meet to
be determined eligible for a Family
Caregiver under PCAFC, and it requires
the individual to be ‘‘in need of
personal care services for a minimum of
six continuous months’’ based on any
one of multiple enumerated bases. VA
proposes to limit when VA would
reassess an eligible veteran under the
criteria in § 71.20(a)(3) through
proposed revisions to § 71.30(b).
Section 71.30(b) currently states that
reassessments may occur more
frequently than annually if a
determination is made and documented
by VA that more frequent reassessment
is appropriate. VA proposes to remove
the current regulation text found in
§ 71.30(b) as it would no longer be
necessary if proposed changes to
§ 71.30(a) are adopted, as explained
above. For the reasons explained below,
VA proposes to add, in its place, a
standard under which VA would
reassess an eligible veteran’s continued
eligibility under § 71.20(a)(3) not more
frequently than every two years, with
certain exceptions.
VA reviewed findings from
reassessments conducted pursuant to
§ 71.30(a) for participants that joined
PCAFC on or after October 1, 2020.
Since implementing annual
reassessments pursuant to § 71.30(a),
VA has found the majority of
reassessments conducted have
identified minimal changes in an
eligible veteran’s need for personal care
services under § 71.20(a)(3) since their
assessment in the previous year. As
PCAFC is designed for eligible veterans
with moderate and severe needs (85 FR
46228 (July 31, 2020)) who are in need
of personal care services for at least six
continuous months (§ 71.20(a)(3)), VA
believes it is reasonable to expect there
would be limited change in the
functions and needs of the eligible
veterans within a 12-month period.
Additionally, when reassessments
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require the evaluation of § 71.20(a)(3),
the clinical evaluations associated with
§ 71.20(a)(3) criteria may be lengthy and
may be burdensome to veterans and
servicemembers. In proposing a
standard for reassessing an eligible
veteran’s continued eligibility under
§ 71.20(a)(3) of not more frequently than
every two years, VA would extend the
time period between such evaluations
while still providing flexibility for VA
to continue to monitor the outcome of
such reassessments and extend the
cadence beyond every two years, as
appropriate, to ensure that individuals
participating in PCAFC continue to
meet eligibility requirements and have
access to the appropriate level of
supports. VA believes proposed changes
to § 71.30(b) would reduce
reassessments that may be unnecessary
and would do so in a standardized
manner. Given this, VA believes
reassessment of an eligible veteran’s
continued eligibility under § 71.20(a)(3)
not more frequently than every two
years would be reasonable and
appropriate.
Notwithstanding these changes,
certain instances exist when VA would
need to reassess an eligible veteran
under § 71.30(a)(3) on a more frequent
basis than every two years. To address
these situations, VA proposes to include
two exceptions to the ‘‘not more
frequently than every two years’’
provision in proposed § 71.30(b).
The first exception would apply when
an eligible veteran or Primary Family
Caregiver requests a reassessment
pursuant to proposed changes to
§ 71.30(c). To be responsive to the needs
of veterans and Primary Family
Caregivers, VA would conduct
reassessments upon request, even if it
has been less than two years since the
previous evaluation of the eligible
veteran’s eligibility under § 71.30(a)(3).
More details about how reassessments
could be requested under proposed
§ 71.30(c) and how those requests would
be addressed are outlined further below.
The second exception would apply
when a reassessment of an eligible
veteran’s continued eligibility under
§ 71.20(a)(3) is necessary for VA to
evaluate a Family Caregiver’s ability to
carry out specific personal care services,
core competencies, or additional care
requirements. Per 38 U.S.C.
1720G(a)(3)(D), the Secretary is required
to ‘‘periodically evaluate . . . the skills
of the family caregiver of such veteran
to determine if additional instruction,
preparation, training, or technical
support’’ is needed. In these instances,
an evaluation of the needs of the eligible
veteran pursuant to proposed 38 CFR
71.20(a)(3) may be necessary to
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determine whether a Family Caregiver
has the ability to carry out the specific
personal care services, core
competencies, and additional care
requirements described in § 71.25(c)(2).
This second proposed exception in
§ 71.30(b) would provide VA with the
ability to review the quality of personal
care services being provided to an
eligible veteran in the context of a
reassessment and take corrective action
as applicable. See 38 U.S.C.
1720G(a)(9)(C)(i)–(ii).
Thus, as proposed, § 71.30(b) would
state that except as provided in
paragraph (c) of § 71.30, VA will
reassess an eligible veteran’s continued
eligibility under § 71.20(a)(3) not more
frequently than every two years unless
such a reassessment is necessary for VA
to evaluate the Family Caregiver’s
ability to carry out specific personal
care services, core competencies, or
additional care requirements.
3. Proposed Changes To Address
Requests for Reassessments
Currently, § 71.30(c) states 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. As noted
above, VA proposes to remove the
reference to an annual reassessment
frequency under § 71.30(a), and as a
result, VA would also remove the
exception found in § 71.30(c). VA
proposes to further revise § 71.30(c) by
adding a new provision explaining the
option for eligible veterans and Primary
Family Caregivers to request
reassessment at any time through a
written request.
When eligible veterans and Family
Caregivers have specifically requested
reassessments before an annual
reassessment was due, VA has
considered such requests when making
a determination under current § 71.30(b)
that a more frequent than annual
reassessment is appropriate. For
example, a Primary Family Caregiver
may find they are providing physical
assistance with more ADL than they
were at the time they were designated
as the Primary Family Caregiver. In this
case, the Primary Family Caregiver may
request a reassessment, in part, because
they believe they may qualify for a
higher monthly stipend.
To make clear the opportunity for an
eligible Veteran or Primary Family
Caregiver to request a reassessment, VA
proposes to establish procedural
requirements for these types of requests
in proposed § 71.30(c). As proposed,
§ 71.30(c) would state that
reassessments may occur when an
eligible veteran or a Primary Family
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Caregiver of an eligible veteran submits
to VA a written request indicating that
a reassessment is requested, and such
request contains the signature of the
eligible veteran or the Primary Family
Caregiver. In accordance with the
‘‘[e]xcept as provided in paragraph (c)’’
clause in proposed § 71.30(b),
reassessments requested under
proposed § 71.30(c) would include a
reassessment of an eligible veteran’s
continued eligibility under § 71.20(a)(3).
For reassessment requests under
proposed § 71.30(c), VA proposes not to
mandate use of a specific standardized
form because VA would like to provide
flexibility to eligible veterans and
Primary Family Caregivers. However,
VA does propose to require requests be
submitted to VA in writing, indicate the
nature of the request (that is, a request
for reassessment), and contain the
signature of the eligible veteran or the
Primary Family Caregiver of an eligible
veteran. These requirements would
ensure that: (1) the request is from an
individual authorized to make such a
request under proposed § 71.30(c) (that
is, an eligible veteran or Primary Family
Caregiver), (2) VA has enough
information to associate the request
with the correct eligible veteran, and (3)
VA can understand the nature of the
request and intent of the requestor. If
verbal requests for reassessment are
made, VA would inform eligible
veterans and Primary Family Caregivers
of the process for submitting a written
request for reassessment.
Additionally, requiring a written
request for reassessment would provide
VA with documentation of the request
and VA could formally track receipt of
such request. This would be important
because if the requested reassessment
results in an increase in the monthly
stipend payment pursuant to a
determination under proposed
§ 71.40(c)(4)(i)(A)(2), the date the
written request under proposed
§ 71.30(c) is received by VA could be
the effective date of the increase under
proposed § 71.40(c)(4)(ii)(C)(1)(ii). This
is discussed further below regarding
proposed changes to § 71.40 under
heading ‘‘G. 38 CFR 71.40 Caregiver
benefits’’. In implementing this
requirement for a written request in
proposed § 71.30(c), if adopted in a final
rule, VA would provide further written
guidance and instructions to Primary
Family Caregivers and eligible veterans
about how and where such requests
should be submitted.
VA does not propose to include
reassessment requests from Secondary
Family Caregivers in proposed
§ 71.30(c). This is because VA does not
believe individuals other than the
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eligible veteran or Primary Family
Caregiver should be able to initiate a
process that could uniquely impact the
benefits provided to the Primary Family
Caregiver. Although certain PCAFC
benefits are provided to both Primary
Family Caregivers and Secondary
Family Caregivers, others are provided
only to Primary Family Caregivers,
including the monthly stipend.
Additionally, Secondary Family
Caregivers who would like to request
additional supports or services do not
need to request a reassessment under
§ 71.30 to receive such supports or
services. All Family Caregivers who are
seeking additional training, education or
other PCAFC assistance, can do so
without requesting a reassessment. For
example, a Family Caregiver who
wishes to engage with a peer support
mentor under § 71.40(b)(5), can make
this request at any time to the local
Caregiver Support Program (CSP) Team.
Similarly, a Family Caregiver who is
seeking other counseling services under
§ 71.40(b)(5), can make such a request at
any time, including during wellness
contacts. An increase in the monthly
stipend level for Primary Family
Caregivers under § 71.40(c)(4)(i)(A),
however, can only be provided as a
result of a reassessment which includes
consideration of an eligible veteran’s
need for personal care services pursuant
to § 71.20(a)(3). For this reason, a
Primary Family Caregiver may wish to
request a reassessment to be considered
for the higher stipend level. Therefore,
under proposed § 71.30(c), VA would
conduct a requested reassessment only
if submitted in writing by the eligible
veteran or Primary Family Caregiver
(and that meets the other requirements
previously described).
Although Secondary Family
Caregivers would not be included in
proposed § 71.30(c), when a request for
reassessment is received from the
eligible veteran or Primary Family
Caregiver under such paragraph, the
reassessment would apply to the eligible
veteran and all Family Caregivers of the
eligible veteran. This is because
reassessments initiated based on the
request of an eligible veteran or Primary
Family Caregiver, would be carried out
using the same processes in § 71.30 for
reassessments initiated by VA. In
completing reassessments under § 71.30,
VA determines the eligibility of the
eligible veteran and each Family
Caregiver, which necessarily requires
consideration of whether each Family
Caregiver, including Secondary Family
Caregivers, has the ability to carry out
the specific personal care services
required by the eligible veteran.
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4. Proposed Changes to Legacy
Reassessments
Current paragraph (e)(1) of § 71.30
requires VA to conduct reassessments of
members of the legacy cohort within the
five-year period beginning on October 1,
2020 to determine whether the eligible
veteran meets the requirements of
§ 71.20(a). If the eligible veteran meets
the requirements of § 71.20(a), the
reassessment will take into
consideration whether the eligible
veteran is unable to self-sustain in the
community for purposes of the monthly
stipend rate under § 71.40(c)(4)(i)(A).
See § 71.30(e)(1).
For reasons discussed earlier in this
rulemaking, VA proposes to extend the
transition period for continued
eligibility of members of the legacy
cohort and the timeframe for completing
reassessments of this cohort to a date
that is 18 months after the effective date
of a final rule under this rulemaking.
The following conforming amendments
to § 71.30(e) are also proposed to extend
the timeframe for conducting legacy
reassessments.
First, VA proposes to add
introduction text to paragraph (e) that
would describe a legacy reassessment.
Currently, paragraph (e)(1) states the
reassessment will be done in
collaboration with a primary care team
to the maximum extent practicable, may
include a visit to the eligible veteran’s
home, and may include consideration of
the monthly stipend. These provisions
mirror the requirements for the
reassessment under current and
proposed § 71.30(a). To provide clarity,
VA proposes to remove this language
from paragraph (e)(1) and would instead
state in the introduction text for
paragraph (e) that a legacy reassessment
is a reassessment to determine
continued eligibility under § 71.20(a) for
legacy applicants and legacy
participants that is conducted in
accordance with the requirements of
§ 71.30(a).
VA would further revise paragraph
(e)(1) to address the timeframe for
completing legacy reassessments. VA
proposes to remove the phrase ‘‘fiveyear period beginning on October 1,
2020’’ and add in its place, the phrase
‘‘period beginning on October 1, 2020
and ending on [18 months after
EFFECTIVE DATE OF FINAL RULE]’’.
VA would also include the language
currently found in paragraph (e)(2)
regarding exceptions to this rule.
Currently, paragraph (e)(2) states that
notwithstanding paragraph (e)(1), a
reassessment will not be completed
under paragraph (e)(1) if at some point
before a reassessment is completed
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during the five-year period beginning on
October 1, 2020 the individual no longer
meets the requirements of § 71.20(b) or
(c). VA proposes to move this language
to paragraph (e)(1) with minor
conforming changes to remove the cross
reference to paragraph (e)(1) and
reference to the ‘‘five-year’’ period.
As proposed, paragraph (e)(1) would
state if the eligible veteran meets the
requirements of § 71.20(b) or (c) (i.e., is
a legacy participant or a legacy
applicant), VA will conduct a legacy
reassessment for the eligible veteran and
each Family Caregiver within the time
period beginning on October 1, 2020
and ending on [18 months after
EFFECTIVE DATE OF FINAL RULE]. It
would also state that notwithstanding
the previous sentence, a legacy
reassessment will not be completed if at
some point before such reassessment is
completed, the eligible veteran no
longer meets the requirements of
§ 71.20(b) or (c).
Finally, VA proposes to revise
paragraph (e)(2) to address monthly
stipend payments. As part of the legacy
reassessment, for eligible veterans who
meet the requirements of § 71.20(a), VA
considers the monthly stipend payment
under § 71.40(c)(4)(i)(A) and eligibility
for a one-time retroactive monthly
stipend payment under current
§ 71.40(c)(4)(ii)(C)(2)(i). This one-time
retroactive stipend payment is not
currently addressed in § 71.30(e). VA
believes including a reference to the
regulations that govern the one-time
retroactive stipend payment within
§ 71.30(e) would assist the reader in
understanding this facet of the legacy
reassessment. VA proposes to relocate
the provisions currently found in
§ 71.40(c)(4)(ii)(C)(2)(i) to
§ 71.40(c)(4)(iii), therefore, this latter
citation is proposed to be included in
paragraph (e)(2). Accordingly, VA
proposes to revise paragraph (e)(2) to
state, if the eligible veteran meets the
requirements of § 71.20(a), the legacy
reassessment will include consideration
of the monthly stipend payment under
§ 71.40(c)(4)(i)(A) and whether the
Primary Family Caregiver is eligible for
a one-time retroactive stipend payment
pursuant to § 71.40(c)(4)(iii).
5. Proposed Technical Edits To Conform
With Proposed Changes
VA proposes to add paragraph
headings to paragraphs (a) through (e) of
§ 71.30 to assist the reader. If adopted,
the heading for paragraph (a) would
state ‘‘General.’’ The heading for
paragraph (b) would state ‘‘Frequency of
reassessment.’’ The heading for
paragraph (c) would state ‘‘Requests for
reassessment.’’ The heading for
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paragraph (d) would state ‘‘Required
participation’’ and the heading for
paragraph (e) would state ‘‘Legacy
reassessments.’’
VA solicits comments from the public
on all aspects of this proposed rule. In
particular, VA asks the following
questions on specific aspects of this
proposal.
1. Other than the changes proposed,
what changes, if any, to the frequency
of reassessments should VA consider
and why?
2. What models or standards are used
by programs other than PCAFC to
determine continued eligibility and
benefits that could inform the
appropriate frequency for PCAFC
reassessments?
G. 38 CFR 71.40 Caregiver Benefits
Section 71.40 describes the benefits
available to General Caregivers,
Secondary Family Caregivers, and
Primary Family Caregivers. Section
71.40(c) explains the benefits available
to Primary Family Caregivers, which
includes a monthly stipend payment.
See § 71.40(c)(4). VA proposes changes
to the eligibility requirements for the
higher stipend level and provisions
regarding adjustments to monthly
stipend payments.
1. Stipend Level Criteria
Under current § 71.40(c)(4)(i)(A)(1),
the Primary Family Caregiver’s monthly
stipend is calculated by multiplying the
monthly stipend rate (as that term is
defined in § 71.15) by 0.625. However,
if VA determines the eligible veteran is
unable to self-sustain in the community,
the monthly stipend payment is
calculated by multiplying the monthly
stipend rate by 1.00. See
§ 71.40(c)(4)(i)(A)(2). These two levels
for the monthly stipend payment were
intended to align with VA’s aim at
targeting PCAFC to those veterans and
servicemembers with moderate and
severe needs, with the higher stipend
level provided to Primary Family
Caregivers of eligible veterans with
severe needs. See 85 FR 13383 (March
6, 2020). Thus, the Primary Family
Caregiver of an eligible veteran who is
determined to be unable to self-sustain
in the community would be eligible for
the higher stipend level under
§ 71.40(c)(4)(i)(A)(2).
Currently, unable to self-sustain in
the community is defined in § 71.15 to
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 § 71.15, and is fully dependent
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on a caregiver to complete such ADLs;
or (2) has a need for supervision,
protection, or instruction on a
continuous basis. Although the
definition of unable to self-sustain in
the community includes the term need
for supervision, protection, or
instruction, following the Veteran
Warriors decision, VA no longer applies
that term and instead has applied the
statutory language in 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii) in place of
the term need for supervision,
protection, or instruction when
determining whether a veteran is unable
to self-sustain in the community as
explained below.
a. Determining the Monthly Stipend
Payment Following the Veteran
Warriors Decision
As discussed earlier in this
rulemaking regarding VA’s proposed
removal of the term and definition of
need for supervision, protection, or
instruction from § 71.15 and the
proposed changes to § 71.20(a)(3), the
U.S. Court of Appeals for the Federal
Circuit in Veteran Warriors invalidated
VA’s definition of the term need for
supervision, protection, or instruction.
Notably, the court dismissed or denied
the petition for review with respect to
the other regulatory provisions
challenged, including the definition of
unable to self-sustain in the community.
See Veteran Warriors at 1348–51.
However, because the term need for
supervision, protection, or instruction is
included in the definition of unable to
self-sustain in the community, following
the court’s decision, VA has applied the
criteria in 38 U.S.C. 1720G(a)(2)(C)(ii)
and (iii) in place of the term need for
supervision, protection, or instruction,
when making determinations about
whether an eligible veteran is unable to
self-sustain in the community for
purposes of determining the monthly
stipend payment. Following the court’s
decision, a Primary Family Caregiver is
eligible for the higher stipend level if
the eligible veteran has a need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury on a
continuous basis or 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 on a continuous
basis.
b. Proposed Changes to the Higher
Stipend Level Criteria
VA proposes to revise the criteria for
determining the monthly stipend
payment in § 71.40(c)(4)(i)(A)(2). In
proposing to amend
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§ 71.40(c)(4)(i)(A)(2), VA would
maintain the methodology for
calculating the monthly stipend rate,
such that the higher stipend level would
continue to be calculated by multiplying
the monthly stipend rate (as that term is
defined in § 71.15) by 1.00. However,
VA would revise the criteria under
which a Primary Family Caregiver
would qualify for the higher stipend
level. Specifically, VA proposes to
remove the term unable to self-sustain
in the community from
§ 71.40(c)(4)(i)(A)(2) and add multiple
new bases upon which a Primary
Family Caregiver may be eligible for the
higher stipend level. VA’s new
proposed bases for the higher stipend
level would align with the proposed
bases in § 71.20(a)(3) upon which a
veteran or servicemember may be
determined to be in need of personal
care services.
Instead of proposing to update the
current definition of unable to selfsustain in the community in § 71.15 to
reflect VA’s proposed criteria for
determining the higher stipend level,
VA proposes removing the term unable
to self-sustain in the community and its
definition from § 71.15 and adding the
criteria for determining the higher
stipend level in proposed
§ 71.40(c)(4)(i)(A)(2). This approach is
consistent with VA’s proposed changes
to § 71.15 and § 71.20(a)(3), under
which VA would remove the terms
inability to perform an ADL and need
for supervision, protection, or
instruction, and their definitions from
§ 71.15 and add the bases for being in
need of personal care services into
proposed § 71.20(a)(3)(i) through (iii)
rather than referring to criteria
contained mostly in terms and
definitions found in § 71.15.
In proposed § 71.40(c)(4)(i)(A)(2), VA
would explain how Primary Family
Caregivers could be eligible for the
higher stipend level for each basis upon
which an individual may be determined
to be in need of personal care services
consistent with 38 U.S.C. 1720G(a)(2)(C)
and proposed 38 CFR 71.20(a)(3). VA
believes the changes VA proposes to 38
CFR 71.40(c)(4)(i)(A)(2), as explained in
more detail in this section, would
improve clarity and consistency when
determining eligibility for the higher
stipend level. They would also ensure
each basis upon which an eligible
veteran may be determined to be in
need of personal care services under
proposed 38 CFR 71.20(a)(3) includes a
related basis by which a Primary Family
Caregiver may be eligible for the higher
stipend level. If these proposed changes
are adopted, the Primary Family
Caregiver could be eligible for the
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higher stipend level based on any of the
criteria in proposed
§ 71.40(c)(4)(i)(A)(2), just as eligible
veterans could meet more than one of
the bases in proposed § 71.20(a)(3)(i)
through (iii).
Additionally, in contrast to the
current definition of unable to selfsustain in the community, which refers
exclusively to the needs of the eligible
veteran, the criteria in proposed
§ 71.40(c)(4)(i)(A)(2) would be phrased
to reflect both the eligible veteran’s
needs as well as the amount and degree
of personal care services the Primary
Family Caregiver provides to the eligible
veteran. This change would ensure VA’s
regulations are reflective of the statutory
requirement that the stipend be ‘‘based
upon the amount and degree of personal
care services provided.’’ 38 U.S.C.
1720G(a)(3)(C)(i). VA recognizes that the
Primary Family Caregiver may not
provide all the personal care services
required by an eligible veteran, as the
eligible veteran’s care needs may also be
met, in part, by Secondary Family
Caregivers or through other services and
supports. However, because it is the
Primary Family Caregiver who receives
the stipend payment, VA believes it is
reasonable to interpret the phrase
‘‘personal care services provided’’ in 38
U.S.C. 1720G(a)(3)(C)(i) to refer to those
personal care services provided by the
Primary Family Caregiver.
VA does not believe it would be
reasonable to base the monthly stipend
payment for the Primary Family
Caregiver upon the amount and degree
of personal care services provided by
individuals and entities other than the
Primary Family Caregiver. Under 38
U.S.C. 1720G(a)(3)(C)(ii), the Secretary
is required to ensure, to the extent
practicable, that ‘‘the schedule required
by clause (i) specifies that the amount
of the monthly personal caregiver
stipend provided to a primary provider
of personal care services for the
provision of personal care services to an
eligible veteran is not less than the
monthly amount a commercial home
health care entity would pay an
individual in the geographic area of the
eligible veteran to provide equivalent
personal care services to the eligible
veteran.’’ By referring to ‘‘an
individual’’ providing ‘‘equivalent
personal care services to the eligible
veteran’’, this requirement supports
VA’s proposed interpretation that the
monthly stipend payment is based on
the personal care services that only the
Primary Family Caregiver provides to
the eligible veteran and not the personal
care services provided by another
individual or entity. By referring to the
required personal care services that the
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eligible veteran receives from the
Primary Family Caregiver, proposed 38
CFR 71.40(c)(4)(i)(A)(2) would make
clear that the amount of the monthly
stipend is based upon the amount and
degree of personal care services that the
Primary Family Caregiver provides to
the eligible veteran.
In addition, VA proposes to add
language to proposed paragraph
(c)(4)(i)(A)(2) as a technical edit to
clarify that the proposed criteria in
paragraph (c)(4)(i)(A)(2) would apply
notwithstanding paragraph
(c)(4)(i)(A)(1). Currently, and under
VA’s proposed revisions to
§ 71.40(c)(4)(i)(A), a Primary Family
Caregiver’s monthly stipend payment is
calculated under paragraph
(c)(4)(i)(A)(1) (by multiplying the
monthly stipend rate by 0.625) unless
the criteria in paragraph (c)(4)(i)(A)(2)
are met, in which case the Primary
Family Caregiver’s monthly stipend
payment is calculated under paragraph
(c)(4)(i)(A)(2) (by multiplying the
monthly stipend rate by 1.00). VA also
proposes to add a heading to paragraph
§ 71.40(c)(4)(i)(A)(1) which states ‘‘Level
1 Stipend’’ and a heading to paragraph
§ 71.40(c)(4)(i)(A)(2) that states ‘‘Level 2
Stipend’’ to further distinguish the two
different stipend levels described in
these paragraphs.
As proposed, § 71.40(c)(4)(i)(A)(2)
would state that notwithstanding
paragraph (c)(4)(i)(A)(1) of § 71.40, the
Primary Family Caregiver’s monthly
stipend payment is calculated by
multiplying the monthly stipend rate by
1.00 if VA determines that: (i) the
eligible veteran typically requires
personal care services to complete three
or more distinct ADL, and for each
distinct ADL, the eligible veteran either
is substantially dependent on the
Primary Family Caregiver for hands-on
assistance or requires extensive
instruction or supervision from the
Primary Family Caregiver; or (ii) the
eligible veteran has a frequent need for
supervision or protection on a
continuous basis from the Primary
Family Caregiver based on the eligible
veteran’s symptoms or residuals of
neurological or other impairment or
injury.
The meaning of the term typically
requires throughout proposed
§ 71.40(c)(4)(i)(A)(2) would be
consistent with its meaning in proposed
§ 71.20(a)(3)(i) and (iii) based on the
proposed definition in § 71.15 (that is,
typically requires would mean a clinical
determination which refers to that
which is generally necessary). Please see
the discussion of proposed changes to
§§ 71.15 and 71.20(a)(3)(i) and (iii) for
additional information on the term
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typically requires. VA further explains
the multiple bases for eligibility for the
higher stipend level that VA is
proposing under the two criterion in
proposed § 71.40(c)(4)(i)(A)(2)(i) and (ii),
as well as its proposed use of the term
typically requires in
§ 71.40(c)(4)(i)(A)(2)(i), in greater detail
below.
i. First Proposed Basis for the Higher
Stipend Level Payment
Under this proposal,
§ 71.40(c)(4)(i)(A)(2)(i) would set forth
the first proposed basis upon which a
Primary Family Caregiver would be
eligible for the higher stipend level
payment and would refer to a VA
determination that the eligible veteran
typically requires personal care services
to complete three or more distinct ADL,
and for each distinct ADL, the eligible
veteran is substantially dependent on
the Primary Family Caregiver for handson assistance.
If adopted, this would amend the
standard applied under the first basis in
the current definition of unable to selfsustain in the community (that is, an
eligible veteran requires personal care
services each time he or she completes
three or more of the seven ADL listed in
the definition of an inability to perform
an activity of daily living in § 71.15 and
is fully dependent on a caregiver to
complete such ADL). That basis was
intended to establish the higher stipend
level for the Primary Family Caregiver
of an eligible veteran with physical
impairment. 85 FR 13383 (March 6,
2020). In addition, this proposed basis
in § 71.40(c)(4)(i)(A)(2)(i) would align
with the eligibility criteria in proposed
38 CFR 71.20(a)(3)(i) (that is, the
individual typically requires hands-on
assistance to complete one or more
ADL). It would therefore account for
those Primary Family Caregivers of
eligible veterans who are in need of
personal care services based on an
inability to perform an ADL (38 U.S.C.
1720G(a)(2)(C)(i)) and who have severe
needs.
This first proposed basis for the
higher stipend level payment would be
consistent with the requirement in 38
U.S.C. 1720G(a)(3)(C)(i) to base the
monthly stipend payment upon the
amount and degree of personal care
services provided because it would refer
to three or more distinct ADL and it
would include a requirement that the
eligible veteran be substantially
dependent upon the Primary Family
Caregiver. The proposal to require three
or more distinct ADL would address the
amount of personal care services
provided by the Primary Family
Caregiver because a greater amount of
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personal care services would be
provided if an eligible veteran requires
hands-on assistance to complete three or
more distinct ADL versus to complete
fewer than three ADL. Notably, the
eligibility criterion in proposed
§ 71.20(a)(3)(i) refers to the individual
typically requiring hands-on assistance
to complete just one or more ADL. In
addition, the proposed requirement that
the eligible veteran be substantially
dependent on the Primary Family
Caregiver would address the degree of
personal care services provided. As
discussed below, if adopted in a final
rule, VA would apply the term
‘‘substantially dependent’’ in proposed
§ 71.40(c)(4)(i)(A)(2)(i) to mean that the
Primary Family Caregiver puts forth
more than half the effort when
providing hands-on assistance to the
eligible veteran to complete three or
more distinct ADL.
As is the case in the first basis of the
current definition of unable to selfsustain in the community, proposed
§ 71.40(c)(4)(i)(A)(2)(i) would refer to
the eligible veteran requiring personal
care services to complete three or more
ADL, but VA would specify that the
personal care services under this basis
must be required for three distinct ADL
(as that term is proposed to be defined
in § 71.15). VA proposes to use the term
‘‘distinct’’ in front of ‘‘ADL’’ to account
for VA’s proposal in new
§ 71.40(c)(4)(i)(A)(2)(i) to include more
than one basis upon which a Primary
Family Caregiver could be eligible for
the higher stipend level related to an
eligible veteran’s need for personal care
services to complete ADL. As discussed
separately below, proposed
§ 71.40(c)(4)(i)(A)(2)(i) would allow for a
combination of two different types of
personal care services to complete ADL
(that is, if the eligible veteran either is
substantially dependent on the Primary
Family Caregiver for hands-on
assistance or requires extensive
instruction or supervision from the
Primary Family Caregiver), as long as
the criteria are met with respect to the
completion of three or more distinct
ADL. VA’s proposal to refer to ‘‘three or
more distinct ADL’’ would clarify that
an eligible veteran who requires both
types of personal care services to
perform the same ADL, would not be
considered to require personal care
services to complete two ADL. This is
discussed in more detail below under
the heading referring to VA’s third
proposed basis for the higher stipend
level.
Consistent with the discussion of
proposed § 71.20(a)(3)(i), VA would not
require in proposed
§ 71.40(c)(4)(i)(A)(2)(i) that personal
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care services be required ‘‘each time’’
the eligible veteran completes three or
more distinct ADL. While the first basis
of the current definition of unable to
self-sustain in the community requires
personal care services be required ‘‘each
time’’ the eligible veteran completes
three or more ADL, VA proposes not to
include such requirement in proposed
§ 71.40(c)(4)(i)(A)(2)(i). VA’s rationale
for proposing to remove the ‘‘each time’’
requirement is explained in the
discussion on proposed § 71.20(a)(3)(i).
Additionally, while the first basis in
the current definition of unable to selfsustain in the community refers to an
eligible veteran being ‘‘fully dependent’’
on a caregiver to complete three or more
ADL, the first new basis under proposed
§ 71.40(c)(4)(i)(A)(2)(i) would require
that an eligible veteran be ‘‘substantially
dependent’’ on the Primary Family
Caregiver for hands-on assistance. While
this proposed change from ‘‘fully
dependent’’ to ‘‘substantially
dependent’’ would be a change in
terminology, it would be consistent with
how VA has applied the first basis in
the current definition of unable to selfsustain in the community since 2020.
Since that time, VA has not required the
eligible veteran to have complete
dependence on a caregiver to perform
three or more ADL, as the term ‘‘fully
dependent’’ may imply and how VA
described this term in its July 31, 2020
Final Rule.18 This is because after
publication of VA’s July 31, 2020 Final
Rule, and prior to implementation, VA
determined such an approach would
have been unduly restrictive.
Dependence occurs on a spectrum based
on degrees of need. Upon further review
of the requirement to be ‘‘fully
dependent’’ on the Primary Family
Caregiver, VA found that this would
require that an eligible veteran must be
at the very highest end of the spectrum
of a degree of need, such that no greater
degree of need is possible. It is not, and
has never been, the intent of VA to
require such a standard. Rather, since
implementing the first basis in the
definition of unable to self-sustain in
the community, it has been and
continues to be VA’s practice that
individuals who require a degree of
personal care services that is of a lesser
degree than that of the very highest
degree could and do meet the definition.
VA currently applies the meaning of
‘‘substantially’’ in place of ‘‘fully’’ under
the first basis in the definition of unable
18 VA stated ‘‘[t]o be fully dependent means the
eligible veteran requires the assistance of another to
perform each step or task related to completing the
ADL’’ and ‘‘[w]hile dependence is considered along
a spectrum, fully dependent is at the top of the
spectrum.’’ 85 FR 46274 (July 31, 2020).
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to self-sustain in the community as VA
believes ‘‘substantially’’ more accurately
reflects the level of dependence VA
requires for a Primary Family Caregiver
to be eligible for the higher stipend
level. The term ‘‘substantially
dependent’’ is commonly used in the
health care field and is generally
understood to mean an individual
provides more than half the effort, when
used in the context of assessing levels
of assistance provided to an individual
to complete daily activities. For
example, CMS uses the term
‘‘substantial/maximal assistance’’ when
determining the type and level of
assistance required for a patient to
complete an activity in a post-acute care
setting.19 Specifically, CMS and other
organizations define the term
‘‘substantial/maximal assistance’’ to
mean a helper does more than half the
effort.20 VA proposes to interpret the
proposed term ‘‘substantially
dependent’’ in a similar manner such
that, if VA’s proposed changes to
§ 71.40(c)(4)(i)(A)(2)(i) are adopted,
‘‘substantially dependent’’ would be
applied to mean that the Primary Family
Caregiver puts forth more than half the
effort when providing hands-on
assistance to an eligible veteran to
complete three or more distinct ADL.
An eligible veteran who is substantially
dependent on the Primary Family
Caregiver for hands-on assistance with
an ADL (that is, who requires a Primary
Family Caregiver to perform more than
half the effort to complete an ADL),
would require a higher degree of
personal care services than an eligible
veteran whose Primary Family Caregiver
provides less than half the effort to
complete ADL. Although ‘‘substantially
dependent’’ would be applied to mean
a lesser degree of dependence than that
of the very highest degree, it could also
19 See Outcome and Assessment Information Set
OASIS–E Manual, effective January 1, 2023, page
126, Centers for Medicare and Medicaid Services,
available at https://www.cms.gov/files/document/
oasis-e-manual-final.pdf (last visited Feb. 8, 2024).
20 Inpatient Rehabilitation Facility—Patient
Assessment Instrument, Version 3.0, effective
October 1, 2019, page 7, Centers for Medicare and
Medicaid Services, available at https://
www.hhs.gov/guidance/sites/default/files/hhsguidance-documents/Proposed_IRFPAI_Version3_
Eff_20191001.pdf (last visited Feb. 8, 2024) (defines
Substantial/maximal assistance as ‘‘Helper does
MORE THAN HALF the effort. Helper lifts or holds
trunk or limbs and provides more than half the
effort.’’ (Emphasis in original.)); Section GG SelfCare (Activities of Daily Living) and Mobility Items,
2022, pages 1–3, American Occupational Therapy
Association, available at https://www.aota.org/-/
media/Corporate/Files/Practice/Manage/
Documentation/Self-Care-Mobility-Section-GGItems-Assessment-Template.pdf (last visited Feb. 8,
2024) (defines Substantial/maximal assistance as
‘‘Helper does MORE THAN HALF the effort. Helper
lifts or holds trunk or limbs and provides more than
half the effort.’’ (Emphasis in original.)).
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encompass eligible veterans whose
dependence on the Primary Family
Caregiver for hands-on assistance with
an ADL is at the very highest degree on
the spectrum (for example, if the eligible
veteran is unable to put forth any effort
to complete the ADL). It is not VA’s
intent for the term ‘‘substantially
dependent’’ in proposed
§ 71.40(c)(4)(i)(A)(2)(i) to exclude
eligible veterans who are fully
dependent or entirely dependent on a
Primary Family Caregiver for hands-on
assistance with an ADL.
For example, an eligible veteran who
typically requires hands-on assistance
with dressing may require the Primary
Family Caregiver to pull a shirt over
their head, position both arms into shirt
sleeves and pull sleeves down, but the
eligible veteran is able to pull the shirt
down over their trunk. Additionally, the
eligible veteran typically requires
hands-on assistance from the Primary
Family Caregiver to lift feet and place
them through undergarments and
pantlegs, pull feet through clothing, and
lift undergarments and pants to knees
but the eligible veteran is able to pull
clothing from knees to waist. The
eligible veteran may be determined
substantially dependent on the Primary
Family Caregiver for dressing. This
would be the case if the Primary Family
Caregiver is determined to perform more
than half the effort to complete the ADL
of dressing while the eligible veteran
provides less than half the effort. In
contrast, an eligible veteran who only
typically requires hands-on assistance
when dressing to lift both arms into
shirtsleeves but is able to independently
perform all other tasks related to the
ADL of dressing, would not be
substantially dependent on the Primary
Family Caregiver for hands-on
assistance when dressing because the
Primary Family Caregiver would not be
performing more than half the effort
required to complete the ADL of
dressing.
An eligible veteran who typically
requires hands-on assistance for the
ADL of eating such that hand over hand
assistance is needed from the Primary
Family Caregiver to place food on a fork,
to place the fork to the eligible veteran’s
mouth, and hold a cup with a straw in
proximity to the eligible veteran’s
mouth so that the veteran can drink,
would be considered substantially
dependent upon the Primary Family
Caregiver for the ADL of eating because
in such case, the Primary Family
Caregiver provides more than half the
effort to complete the ADL. Conversely,
an eligible veteran who typically
requires a Primary Family Caregiver to
place and adjust adaptive utensils in the
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eligible veteran’s grasp, but the veteran
is otherwise able to eat would not be
considered substantially dependent
upon the Primary Family Caregiver for
the ADL of eating because the Primary
Family Caregiver would not be
providing more than half the effort in
order for the eligible veteran to
complete the ADL.
Similarly, an eligible veteran who
typically requires hands-on assistance
with the ADL of adjusting any special
prosthetic or orthopedic appliance, may
be substantially dependent on the
Primary Family Caregiver if the Primary
Family Caregiver provides more than
half the effort. For example, if the
Primary Family Caregiver assists with
putting on the prosthetic limb by
positioning a sock appropriately,
applying a foam liner, and lifting and
placing the eligible veteran’s stump into
the prosthesis, the eligible veteran may
be determined to be substantially
dependent on the Primary Family
Caregiver to complete the ADL. If the
eligible veteran only requires assistance
from the Primary Family Caregiver to
hold the foam lining in place while the
eligible veteran applies the sock, lining,
and positions their stump into the
prosthesis such that the Primary Family
Caregiver does not contribute more than
half the effort required to perform the
ADL, the eligible veteran would not be
determined to be substantially
dependent on the Primary Family
Caregiver to complete the ADL.
An eligible veteran who typically
requires hands-on assistance to
complete each of the three ADL
described in the illustrative examples
above, that is dressing, adjusting a
prosthetic limb, and eating, and for each
such ADL is substantially dependent on
the Primary Family Caregiver for such
hands-on assistance may be determined
to meet this proposed basis such that
the Primary Family Caregiver may be
eligible for the higher stipend level.
ii. Second Proposed Basis for the Higher
Stipend Level Payment
Under proposed new
§ 71.40(c)(4)(i)(A)(2)(i), the second
proposed basis upon which a Primary
Family Caregiver would be eligible for
the higher stipend level payment would
be that the eligible veteran typically
requires personal care services to
complete three or more distinct ADL,
and for each distinct ADL the eligible
veteran requires extensive instruction or
supervision from the Primary Family
Caregiver.
This proposed second basis upon
which a Primary Family Caregiver may
be determined eligible for the higher
stipend level payment would align with
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proposed § 71.20(a)(3)(iii), that is, that a
veteran may be determined in need of
personal care services because the
individual typically requires regular or
extensive instruction or supervision to
complete one or more ADL. A Primary
Family Caregiver of an eligible veteran
who meets such proposed basis may be
eligible for the higher stipend level
payment if such eligible veteran
typically requires personal care services
to complete three or more distinct ADL
and for each distinct ADL, requires
extensive instruction or supervision
from the Primary Family Caregiver. This
second proposed basis would be
consistent with the language in 38
U.S.C. 1720G(a)(3)(C)(i) stating that the
amount of the stipend shall be based
upon the amount and degree of personal
care services provided through the
requirement of ‘‘three or more distinct
ADL’’ and the requirement that the
eligible veteran requires ‘‘extensive’’
instruction or supervision from the
Primary Family Caregiver. As
previously noted, the requirement for
three or more distinct ADL would
address the amount of personal care
services provided by the Primary Family
Caregiver. This is because a Primary
Family Caregiver would provide a
greater amount of personal care services
when providing instruction or
supervision for three or more distinct
ADL than when providing instruction or
supervision for fewer than three distinct
ADL.
Referring to ‘‘extensive’’ instruction or
supervision in proposed 38 CFR
71.40(c)(4)(i)(A)(2)(i) would address the
degree of personal care services
provided by the Primary Family
Caregiver and align with VA’s proposed
interpretation of this term in proposed
§ 71.20(a)(3)(iii). While proposed
§ 71.20(a)(3)(iii) would refer to ‘‘regular
or extensive’’ instruction or supervision,
proposed § 71.40(c)(4)(i)(A)(2)(i) would
refer to ‘‘extensive’’ instruction or
supervision from the Primary Family
Caregiver for purposes of the higher
stipend level payment. This is because
VA considers those who require regular
instruction or supervision to complete
one or more ADL to be indicative of
those with moderate needs while VA
considers those who require extensive
instruction or supervision to complete
three or more distinct ADL to have
severe needs. As explained in, and
consistent with, VA’s earlier discussion
on proposed § 71.20(a)(3)(iii), if this
proposed rule is adopted as final, VA
would consider the need for extensive
instruction or supervision to mean that
the instruction or supervision is
required throughout the completion of
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97431
the ADL. In contrast, VA would
consider regular instruction or
supervision to mean that the instruction
or supervision is required for a portion
of completing the ADL rather than
throughout the completion of the ADL.
Those who require extensive instruction
or supervision therefore would be
considered to have a greater degree of
need than those who require regular
instruction or supervision to complete
an ADL. VA provides the following
illustrative examples to help explain
VA’s interpretation of how an eligible
veteran would meet the requirement of
needing ‘‘extensive’’ instruction or
supervision to complete three or more
distinct ADL. If an eligible veteran
requires supervision when determining
the amount of shampoo necessary,
applying shampoo to head, lathering
hair, and rinsing hair but is otherwise
able to perform the remaining actions of
bathing without assistance, they would
not have an extensive need for
supervision to complete the ADL of
bathing because supervision from the
Primary Family Caregiver is not needed
throughout the act of bathing. Once the
portion of the activity for which
supervision is needed was completed,
the eligible veteran may be able to
function safely and independently for
the remainder of completing the
activity. In contrast, if such an eligible
veteran also required supervision to
adjust water temperature at the
beginning of the activity, identify body
parts to wash, then rinse during the act
of bathing, and towel dry at the end of
the activity, such eligible veteran may
be determined to require extensive
supervision from the Primary Family
Caregiver to complete the ADL of
bathing because assistance would be
required throughout the ADL of bathing.
An eligible veteran who is in need of
extensive instruction to toilet may
require step-by-step instruction
throughout the ADL of toileting, such as
to position self at the toilet, unfasten
clothing, cleanse oneself, and refasten
clothing. Such veteran would require
extensive instruction from a Primary
Family Caregiver because such
instruction is needed throughout the
activity of toileting. In contrast, if such
instruction was only needed to position
self at the toilet and unfasten clothing,
such need may be a regular need,
because instruction is only necessary for
a portion of the activity, which is at the
beginning, and the eligible veteran is
otherwise able to complete the ADL of
toileting in the absence of the Primary
Family Caregiver.
A veteran who requires step-by-step
instruction from a Primary Family
Caregiver when eating, such as
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instruction to select appropriate utensils
to bring food to mouth, chew food prior
to swallowing, and to swallow prior to
bringing additional food to mouth may
be determined to have an extensive
need for instruction from a Primary
Family Caregiver when eating because
such instruction is required throughout
the activity of eating. In contrast, if the
eligible veteran only requires such
instruction for the first two bites of the
meal after which such pattern is
established, and is able to finish eating
independently without further
instruction from a Primary Family
Caregiver to complete the activity of
eating, such veteran may be determined
to be in need of regular instruction for
the ADL of eating.
An eligible veteran who typically
requires extensive instruction or
supervision with each of the three
distinct ADL described in the examples
above, that is bathing, toileting and
eating may be determined to meet this
second proposed basis under 38 CFR
71.40(c)(4)(i)(A)(2)(i) such that the
Primary Family Caregiver may be
eligible for the higher stipend level.
iii. Third Proposed Basis for Higher
Stipend Level Payment
As proposed, §71.40(c)(4)(i)(A)(2)(i).
would state that for each distinct ADL
the eligible veteran either is
substantially dependent on the Primary
Family Caregiver for hands-on
assistance or requires extensive
instruction or supervision from the
Primary Family Caregiver. VA would
consider both types of personal care
services when determining whether the
Primary Family Caregiver is eligible for
the higher stipend level payment on this
basis. Therefore, a combination of both
types of personal care services, if
provided by the Primary Family
Caregiver to complete three or more
distinct ADL, could establish a third
basis for determining eligibility for the
higher stipend level pursuant to
proposed § 71.40(c)(4)(i)(A)(2)(i).
For a Primary Family Caregiver to be
eligible for the higher stipend level
under § 71.40(c)(4)(i)(A)(2)(i), the
eligible veteran would require at least
one of these types of personal care
services (that is, be substantially
dependent on the Primary Family
Caregiver for hands-on assistance, or
require extensive instruction or
supervision from the Primary Family
Caregiver) to complete three or more
distinct ADL. VA would not require the
eligible veteran to need the same type of
personal care services to complete each
of the three or more distinct ADL. For
example, an eligible veteran who
typically requires personal care services
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to complete three or more distinct ADL
would not have to be substantially
dependent on the Primary Family
Caregiver for hands-on assistance to
complete all three distinct ADL or
require extensive instruction or
supervision from the Primary Family
Caregiver to complete all three distinct
ADL. Instead, the Primary Family
Caregiver of such an eligible veteran
could be eligible for the higher stipend
level under § 71.40(c)(4)(i)(A)(2)(i) if, for
example, the eligible veteran is
substantially dependent on the Primary
Family Caregiver for hands-on
assistance to complete two ADL and
requires extensive instruction from the
Primary Family Caregiver to complete
an additional distinct ADL. In this
example, the eligible veteran typically
requires personal care services to
complete three or more distinct ADL,
and for each distinct ADL, the eligible
veteran either is substantially
dependent on the Primary Family
Caregiver for hands-on assistance or
requires extensive instruction or
supervision from the Primary Family
Caregiver; therefore, the Primary Family
Caregiver would be eligible for the
higher stipend level under proposed
§ 71.40(c)(4)(i)(A)(2)(i). In contrast, if an
eligible veteran typically requires
personal care services to complete only
two distinct ADL, the Primary Family
Caregiver would not qualify for the
higher stipend level under this
proposed basis, even if for both such
ADL the eligible veteran is both
substantially dependent on the Primary
Family Caregiver for hands-on
assistance and requires extensive
instruction from the Primary Family
Caregiver.
iv. Fourth Proposed Basis for Higher
Stipend Level Payment
The fourth proposed basis would be
set forth in proposed
§ 71.40(c)(4)(i)(A)(2)(ii), which would
state that the eligible veteran has a
frequent need for supervision or
protection on a continuous basis from
the Primary Family Caregiver based on
the eligible veteran’s symptoms or
residuals of neurological or other
impairment or injury. As VA explained
above, following the Veteran Warriors
decision, a Primary Family Caregiver is
eligible for the higher stipend level if an
eligible veteran has a need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury (38 U.S.C.
1720G(a)(2)(C)(ii)) on a continuous
basis. The proposed fourth basis in 38
CFR 71.40(c)(4)(i)(A)(2)(ii) would
maintain this criterion but with an
added requirement that the eligible
PO 00000
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Sfmt 4702
veteran has a frequent need for
supervision or protection, consistent
with the other proposed bases for the
higher stipend level as discussed earlier
in this rulemaking.
Consistent with VA’s prior and
current interpretation (see 85 FR 46239–
46240 (July 31, 2020)), in making
determinations on whether an eligible
veteran has a need for supervision or
protection based on symptoms or
residuals of neurological or other
impairment or injury on a continuous
basis following the Veteran Warriors
decision, VA considers ‘‘continuous’’ to
refer to the amount and degree of
personal care services provided.
Whether or not the eligible veteran has
a frequent need for supervision or
protection on a continuous basis would
be a clinical determination and would
consider the degree of intervention
required, how frequently the required
intervention is needed, whether such
required personal care services are
limited or expansive in the extent of
assistance required, and whether such
personal care services are provided for
short durations or occur over an
extended period of time.
For example, as these criteria are
applied today, an eligible veteran with
post-traumatic stress disorder with a
demonstrated pattern of severe,
uncontrolled panic attacks, who
requires a Family Caregiver to actively
intervene through verbal and physical
intervention to assist the eligible veteran
in grounding and de-escalating multiple
times during the day may be in need of
supervision or protection on a
continuous basis. Additionally, an
eligible veteran with amyotrophic
lateral sclerosis and that consequently
has muscle weakness who experiences
loss of muscle control throughout the
day may be in need of supervision or
protection throughout the day, and thus
may be determined to have a frequent
need for supervision or protection based
on symptoms or residuals of
neurological or other impairment or
injury on a continuous basis.
The phrase ‘‘on a continuous basis’’
for purposes of this proposed basis
would not mean that the eligible veteran
would require supervision or protection
24 hours per day, seven days per week,
and it is not meant to imply that an
individual requires hospitalization or
nursing home care. Instead, the need for
supervision or protection could be
demonstrated through, but would not be
limited to, a recurring, consistent, and
prevalent need.
This requirement of ‘‘on a continuous
basis’’ in proposed
§ 71.40(c)(4)(i)(A)(2)(ii) would address
the amount and degree of personal care
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services provided, consistent with the
language in 38 U.S.C. 1720G(a)(3)(C)(i),
as the Primary Family Caregiver who
provides supervision or protection on a
continuous basis would provide a
greater amount and degree of personal
care services to the eligible veteran than
a Primary Family Caregiver who
provides supervision or protection on a
less than continuous basis.
For example, an eligible veteran with
an uncontrolled seizure disorder may
experience seizures on a near daily basis
and when such seizures occur, the
eligible veteran frequently needs
protection from the Primary Family
Caregiver to clear the area of hard
objects, support the eligible veteran’s
head, call for medical assistance, if
needed, and help the eligible veteran reorient following the seizure. Such need
for supervision or protection may be
needed on a continuous basis because
such need is recurring, can occur at any
time, and could require the Primary
Family Caregiver to actively intervene to
maintain the safety of the eligible
veteran. Such Primary Family Caregiver
may be determined eligible for the
higher stipend level under proposed
§ 71.40(c)(4)(i)(A)(2)(ii).
VA provides the foregoing examples
as illustrations of its intended
application of the proposed rule should
it be adopted as final, but VA’s
determinations would continue to be
fact-specific and could differ depending
on the facts and circumstances of an
individual eligible veteran and their
Primary Family Caregiver.
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v. Multiple Bases for Eligibility for
Higher Stipend Level Payment
Since implementing changes
following the Veteran Warriors ruling,
there are three bases under which a
Primary Family Caregiver may be
eligible for the higher stipend level. The
proposed changes within this proposed
rulemaking regarding the criteria for the
higher stipend level would provide four
bases. Under VA’s proposed rule, a
Primary Family Caregiver may be
eligible for the higher stipend level
under multiple bases but would only be
required to meet one basis to be eligible
for the higher stipend level.
Meeting one proposed basis for the
higher stipend level does not preclude
a Primary Family Caregiver from
meeting one or more additional
proposed bases that would also allow
them to be eligible for the higher
stipend level. So long as VA determines
that one of the bases under
§ 71.40(c)(4)(i)(A)(2) is satisfied, the
Primary Family Caregiver would be
eligible for the higher stipend level.
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c. Proposed Changes To Extend
Transition Period for Legacy Cohort
To effectuate VA’s proposed
extension of the transition period for the
legacy cohort as discussed earlier in this
rulemaking, VA proposes to revise
several paragraphs of § 71.40(c)(4)(i).
Specifically, VA would amend the first
sentence of the introductory text of
§ 71.40(c)(4)(i)(B) to remove the phrase
‘‘for five-years beginning on October 1,
2020’’ and add in its place, the phrase
‘‘for the time period beginning on
October 1, 2020 and ending on [18
months after EFFECTIVE DATE OF
FINAL RULE]’’. VA would make the
same edit in paragraphs (c)(4)(i)(C) and
(c)(4)(i)(D).
2. Stipend Adjustments
a. Adjustments to Stipend Payments
Based on the Office of Personnel
Management (OPM) Updates to the
General Schedule (GS) Annual Rate
Current § 71.40(c)(4)(ii) explains
adjustments to monthly stipend
payments. Adjustments to monthly
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 take effect prospectively
following the date the update to such
rate is made effective by OPM.
§ 71.40(c)(4)(ii)(A).
VA proposes to revise current
§ 71.40(c)(4)(ii)(A) to further clarify this
provision and confirm through edits to
the regulation text that VA will not
make retroactive pay corrections in
instances when OPM announces
retroactive changes to the General
Schedule (GS) Annual Rate tables later
in the year. See 85 FR at 46267 (July 31,
2020). VA’s proposed changes would
also provide additional clarification in
§ 71.40(c)(4)(ii)(A) that VA believes is
needed to inform Primary Family
Caregivers of the specific month in
which they can expect to receive a pay
adjustment under this paragraph.
Under this proposal, VA would
maintain the requirement in current
paragraph (c)(4)(ii)(A) that VA will
make stipend payment adjustments
based on OPM’s updates to the GS
Annual Rate for grade 4, step 1 for the
locality pay area in which the eligible
veteran resides. To further clarify when
monthly stipend payment adjustments
take effect, VA proposes to revise the
language that currently states that such
adjustments take effect prospectively
following the date the update to such
rate is made effective by OPM. VA
proposes to explain instead that such
adjustments would take effect on the
first of the month that changes to the GS
PO 00000
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97433
Annual Rate are effective. However, if
OPM publishes changes to the GS
Annual Rate and such changes have a
retroactive effective date, VA proposes
to make those adjustments to the
stipend payments effective on the first
of the month following the month that
OPM publishes changes to the GS
Annual Rate.
Thus, VA proposes to revise
§ 71.40(c)(4)(ii)(A) to state that VA will
adjust monthly stipend payments based
on changes to the General Schedule (GS)
Annual Rate for grade 4, step 1 for the
locality pay area in which the eligible
veteran resides. It would also state that
such adjustments will take effect on the
first of the month in which changes to
the GS Annual Rate are effective.
Proposed § 71.40(c)(4)(ii)(A) would
further state that notwithstanding the
previous sentence, adjustments under
this paragraph will take effect on the
first of the month following the month
OPM publishes changes to the GS
Annual Rate if such changes have a
retroactive effective date.
These proposed revisions are
intended to further clarify when
adjustments will be made based on
changes to the GS Annual Rate.
Pursuant to 5 U.S.C. 5303 and 5304, the
GS rates are updated and published on
an annual basis by OPM. Information on
the GS rates can be found at https://
www.opm.gov/policy-data-oversight/
pay-leave/salaries-wages/. Updates to
the GS Annual Rate are typically
effective on the first day of the first
applicable pay period beginning on or
after January 1 of each calendar year. In
the past, OPM has announced and
published the updated rates in
December prior to implementing the
new rates. This has been the case each
year since October 2020 when VA
implemented the term monthly stipend
rate, which is defined in § 71.15 to
mean 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.
The proposed changes to
§ 71.40(c)(4)(ii)(A) would provide
transparency to Primary Family
Caregivers by specifying the month in
which they can expect the adjustment to
the monthly stipend payment based on
changes to the GS Annual Rate to be
effective. VA’s proposed changes would
make clear that if changes to the GS
Annual Rate for the following calendar
year are announced on December 15 and
such changes take effect on January 1 of
that following calendar year, VA would
make adjustments to the monthly
stipend payment based on those
changes to the GS Annual Rate effective
January 1. Similarly, under this
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proposal, if changes to the GS Annual
Rate for the following calendar year are
announced on December 14 and such
changes take effect on January 10 of the
following calendar year, VA would
make adjustments to the monthly
stipend payment based on those
changes to the GS Annual Rate effective
January 1. This is the practice VA has
followed for updates to the GS Annual
Rate that were made effective in 2021,
2022, and 2023. Thus, if adopted as
proposed, this change would not have a
substantive impact upon current PCAFC
participants, would clarify the timing of
adjustments under paragraph
(c)(4)(ii)(A) for Primary Family
Caregivers, and reflect VA’s current
practice. While VA expects OPM will
continue to provide notice of GS Annual
Rate changes in December with an
effective date of the first day of the first
applicable pay period beginning on or
after January 1 of the following calendar
year, updates to and publication of, the
GS Annual Rate may not always follow
this timeline. In some cases, changes to
the GS Annual Rate may be made
retroactively. For example, Congress
could enact legislation in February that
makes adjustments to the GS Annual
Rate with a January effective date. As a
result, OPM may publish the changes to
the GS Annual Rate in March and the
effective date may be retroactive to
January of that same year. This occurred
with the 2019 GS Annual Rate change.
The President issued Executive Order
13866 on March 28, 2019, that provided
a retroactive pay adjustment to January
2019 as required by the Consolidated
Appropriations Act, 2019 (Public Law
116–6).21 On these rare occasions that
OPM publishes changes to the GS
Annual Rate and such changes have a
retroactive effective date, VA proposes
to make adjustments to monthly stipend
payments based on those changes
effective the first of the month following
the month OPM publishes the changes
to the GS Annual Rate.
For example, under this proposal, if
changes to the GS Annual Rate are
published on April 10 and are made
effective retroactive to January 1, VA
would apply the changes to the GS
Annual Rate to the monthly stipend
rate, but they would not take effect until
May 1. VA is not proposing to apply the
21 Executive Order for 2019 Pay Schedules, OPM,
available at https://www.opm.gov/policy-dataoversight/pay-leave/salaries-wages/2019/executiveorder-for-2019-pay-schedules/(last visited Feb. 8,
2024); Executive Order 13866, Adjustments of
Certain Rates of Pay, The White House, March 28,
2019, available at https://www.opm.gov/policydata-oversight/pay-leave/salaries-wages/retroactivepay-executive-order-2019-adjustments-of-certainrates-of-pay.pdf (last visited Feb. 8, 2024).
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rate adjustments retroactively to January
1 because this would not be
administratively feasible under VA’s
current systems. The Caregiver Records
Management Application (CARMA) is
the information technology (IT) system
used by CSP to fully support PCAFC
and it allows for data assessment and
comprehensive monitoring of PCAFC.
CARMA’s ability to support PCAFC
operations includes functionality
related to calculations and issuance of
the monthly stipend payment. The
system, as designed, is not able to apply
systematic retroactive calculations. To
do so would require manual review and
calculation of each Primary Family
Caregiver’s monthly stipend payment
impacted by retroactive payments and
would require manual updates to
system data to ensure accurate tracking
of retroactive payments. Such manual
review would be significantly resourceintensive and would likely result in
delays not only in applying retroactive
adjustments but delays to all monthly
stipend payments. Additionally, manual
processes generally carry risk for errors
and in the case of the monthly stipend
payment could result in administrative
errors such as incorrect payment
calculations. Significant additional
developer resources would be needed to
perform such manual updates,
potentially compromising current and
future work towards additional CARMA
improvements and enhancements.
Retroactive changes to the GS Annual
Rate do not occur often and have not
occurred in the last three years. Given
the administrative burden, risk to
system integrity, and potential for
administrative error in payment
calculations for many Primary Family
Caregivers that would be expected if VA
were to make retroactive stipend pay
adjustments as discussed above, if OPM
publishes changes to the GS Annual
Rate with a retroactive effective date,
VA proposes to make monthly stipend
payment adjustments effective the first
of the month following the month OPM
publishes changes to the GS Annual
Rate.
VA also notes that there also could be
instances in which changes to the GS
Annual Rate do not take effect because
of an intervening event. For example, if
changes to the GS Annual Rate are
announced in November to take effect in
February of the following year, but
superseding legislation or an Executive
Order makes ineffective such changes to
the GS Annual Rate (such as a mandate
in December to freeze the GS Annual
Rate), no changes to the GS Annual Rate
would be made based on the November
announcement. Pursuant to the
proposed changes to paragraph
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(c)(4)(ii)(A), VA would not adjust the
monthly stipend payment based on the
changes to the GS Annual Rate that
were announced in November. In such
cases, there would be no changes to the
GS Annual Rate so VA would have no
basis to adjust monthly stipend
payments pursuant to proposed
paragraph (c)(4)(ii)(A).
b. Stipend Adjustments Resulting From
Reassessments
VA proposes to revise the paragraphs
of § 71.40(c)(4)(ii)(C), which address the
effective date for changes in the Primary
Family Caregiver’s monthly stipend
payment resulting from a reassessment
under § 71.30. VA’s proposed changes to
§ 71.40(c)(4)(ii)(C) would make
substantive revisions, such as VA’s
proposal to authorize a retroactive
increase in the monthly stipend
payment that would become effective as
of the date VA receives a written
reassessment request under proposed
revisions to § 71.30(c), as discussed
above. Other proposed changes to
§ 71.40(c)(4)(ii)(C), such as VA’s
proposed revisions to the regulatory text
regarding the effective date for a
decrease in the monthly stipend
payment based on a reassessment, as
well as relocation of provisions related
to the retroactive stipend payment for
Primary Family Caregivers of certain
legacy participants and legacy
applicants, would primarily maintain
the current regulatory requirements but
reorganize how those requirements are
reflected in VA’s regulations. Each of
these proposed changes are discussed in
more detail below.
i. 38 CFR 71.40(c)(4)(ii)(C)(1) and (2)—
Current Requirements for Monthly
Stipend Payment Increases and
Decreases
Currently, paragraphs (1) and (2) of
§ 71.40(c)(4)(ii)(C) set forth different
requirements for monthly stipend
payment increases and decreases
resulting from reassessments based on
whether the eligible veteran is or is not
a legacy participant or legacy applicant
as those terms are defined in § 71.15. If
the eligible veteran is a legacy
participant or legacy applicant (that is,
the eligible veteran meets the
requirements of § 71.20(b) or (c)),
monthly stipend payment increases and
decreases resulting from reassessments
are governed by current
§ 71.40(c)(4)(ii)(C)(2). For all other
eligible veterans (that is, those
determined eligible for PCAFC under
the § 71.20(a) eligibility criteria that
went into effect on October 1, 2020, and
who are not a legacy participant or
legacy applicant meeting the
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requirements of § 71.20(b) or (c),
respectively), monthly stipend increases
and decreases resulting from
reassessments are governed by current
§ 71.40(c)(4)(ii)(C)(1).
Under current § 71.40(c)(4)(ii)(C)(1), if
the eligible veteran meets the
requirements of § 71.20(a) only and does
not meet the requirements of § 71.20(b)
or (c), and a reassessment results in an
increase in the Primary Family
Caregiver’s monthly stipend payment,
the increase takes effect as of the date
of the reassessment.
§ 71.40(c)(4)(ii)(C)(1)(i). For such an
eligible veteran, in the case of a
reassessment that results in a decrease
in the Primary Family Caregiver’s
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.
§ 71.40(c)(4)(ii)(C)(1)(ii). The effective
date of the decrease is no earlier than 60
days after VA provides advanced notice
of its findings to the eligible veteran and
Primary Family Caregiver. Id.
Currently, paragraphs (i) and (ii) of
§ 71.40(c)(4)(ii)(C)(2) address monthly
stipend payment increases and
decreases, respectively, resulting from
reassessments in the case of legacy
participants and legacy applicants, that
is, eligible veterans who meet the
requirements of § 71.20(b) or (c).
Current paragraph (i) of
§ 71.40(c)(4)(ii)(C)(2) states that 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. In such a
case, the Primary Family Caregiver may
also be eligible for a retroactive
payment. The requirements governing
this retroactive payment are contained
in current § 71.40(c)(4)(ii)(C)(2)(i). VA
provides a detailed description of these
requirements later in this rulemaking in
VA’s discussion of its proposal to
relocate these provisions to a revised
§ 71.40(c)(4)(iii).
Current paragraph (ii) of
§ 71.40(c)(4)(ii)(C)(2) states that in the
case of a reassessment that results in a
decrease in the monthly stipend
payment and the eligible veteran meets
the requirements of § 71.20(a), that is,
the legacy participant or legacy
applicant meets PCAFC eligibility
criteria in § 71.20(a) that became
effective on October 1, 2020, the new
monthly stipend amount for the Primary
Family Caregiver under
§ 71.40(c)(4)(i)(A) 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
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be no earlier than 60 days after October
1, 2025. § 71.40(c)(4)(ii)(C)(2)(ii). On
October 1, 2025, VA will provide
advanced notice of its findings to the
eligible veteran and Primary Family
Caregiver. Id.
ii. Proposed 38 CFR 71.40(c)(4)(ii)(C)(1)
and (2)—Reorganization of Monthly
Stipend Payment Requirements Based
on Reassessment
Proposed § 71.40(c)(4)(ii)(C)(1) and (2)
would continue to address increases
and decreases in the monthly stipend
payment that result from reassessments.
However, to improve clarity and
succinctness, VA proposes to reorganize
paragraphs (1) and (2) to separately
address monthly stipend payment
increases (in revised paragraph (1) with
the heading ‘‘Increases’’) and monthly
stipend payment decreases (in revised
paragraph (2) with the heading
‘‘Decreases’’) that may result from
reassessments conducted by VA. Rather
than separately addressing such
increases and decreases based on
whether an eligible veteran meets the
requirements of § 71.20(a) only or also
meets the requirements of § 71.20(b) or
(c), proposed § 71.40(c)(4)(ii)(C)(1) and
(2) would include provisions regarding
monthly stipend payment increases and
decreases, respectively, with respect to
all eligible veterans and their Primary
Family Caregivers.
A. Proposed 38 CFR
71.40(c)(4)(ii)(C)(1)—Effective Date of
Monthly Stipend Payment Increases
Based on a Reassessment
Proposed § 71.40(c)(4)(ii)(C)(1) would
have the heading ‘‘Increases’’ and would
exclude references to eligibility
requirements and would instead explain
that in the case of a reassessment that
results in an increase in the monthly
stipend payment, the increase takes
effect on the earlier of the dates
described in paragraphs (i) and (ii). This
proposed paragraph would apply to all
eligible veterans and their Primary
Family Caregivers in the case of a
reassessment that results in a monthly
stipend payment increase—not just
those described in current
§ 71.40(c)(4)(ii)(C)(1) (that is, those who
meet the requirements of § 71.20(a) only
and not § 71.20(b) or (c)).
As proposed in paragraph
(c)(4)(ii)(C)(1)(i), the first of these two
dates would be the date VA issues
notice of the decision. This would be
referring to the notice of the decision
regarding the increase in the monthly
stipend payment as a result of the
reassessment. Under current
§ 71.40(c)(4)(ii)(C)(1)(i) and (2)(i), if a
reassessment results in an increase in
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97435
the monthly stipend payment, the
increase takes effect as of the date of the
reassessment. Since implementing this
provision, VA has interpreted ‘‘the date
of the reassessment’’ to mean the date a
reassessment determination is made,
which aligns with ‘‘the date VA issues
notice of the decision’’. A reassessment
can occur over multiple days, but it is
not complete until the reassessment
determination is made, and VA issues
notice of its decision. As the current
reference to ‘‘date of the reassessment’’
could be interpreted differently, such as
the date VA initiates a reassessment or
the date VA completes the final
evaluation required for a reassessment,
VA proposes to revise the current
language to remove ambiguity and
clarify VA’s interpretation. VA proposes
to revise the language to reflect that it
is the date VA issues notice of the
decision, not the date the reassessment
was initiated, or the final evaluation
required for the reassessment was
completed, that serves as the effective
date of the increase in the monthly
stipend payment.
Proposed paragraph (ii) would refer to
the second of the two dates in proposed
§ 71.40(c)(4)(ii)(C)(1) on which the
increase in the monthly stipend
payment may take effect. This would be
the date VA received the written request
for a reassessment pursuant to proposed
§ 71.30(c) from the eligible veteran or
the Primary Family Caregiver of the
eligible veteran. As discussed in the
context of proposed changes to § 71.30,
VA is proposing to amend § 71.30(c) to
provide eligible veterans and Primary
Family Caregivers the opportunity to
submit a written request for a
reassessment. Proposed
§ 71.40(c)(4)(ii)(C)(1)(ii) would allow for
a retroactive increase in the monthly
stipend payment back to the date VA
received the written request for
reassessment pursuant to proposed
§ 71.30(c), if it is the earlier date under
proposed § 71.40(c)(4)(ii)(C)(1). If
adopted as proposed, this effective date
provision would apply only to
reassessment requests under proposed
§ 71.30(c) that are received by VA on or
after the effective date of the final rule
adopting the provision, and VA would
clarify that in proposed paragraph
(c)(4)(ii)(C)(1)(ii). This would mean that
the retroactive effective date back to the
date of receipt of a request for
reassessment for increases in the
monthly stipend payment would not
apply to requests submitted before the
effective date of a final rule adopting
this proposal, even if such a request met
the requirements in proposed § 71.30(c).
Additionally, this proposed paragraph
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would only apply to reassessments that
result in an increase in the monthly
stipend payment. Proposed
§ 71.40(c)(4)(ii)(C)(2), discussed in more
detail below, would provide the
effective date for a decrease in the
monthly stipend payment based on a
reassessment, including a reassessment
requested pursuant to proposed
§ 71.30(c).
Proposed § 71.40(c)(4)(ii)(C)(1)(ii)
would account for the period of time
between the date VA receives a written
request for reassessment under
proposed § 71.30(c) and the date VA
issues notice of its decision regarding
the monthly stipend payment increase
resulting from the reassessment. VA
would strive to conduct reassessments
in a timely manner following a request
for a reassessment under proposed
§ 71.30(c), if adopted in a final rule.
However, if VA experiences any delay
in conducting a reassessment requested
under proposed § 71.30(c), for example,
because VA is responding to a surge of
new applications and/or requests for
reassessment following the effective
date of the final rule, proposed
§ 71.40(c)(4)(ii)(C)(1)(ii) would ensure
any monthly stipend payment increase
resulting from a written request for
reassessment under proposed § 71.30(c)
would become effective no later than
the date VA received such request.
Proposed § 71.40(c)(4)(ii)(C)(1)(ii) would
apply to all PCAFC participants,
regardless of whether the eligible
veteran is or is not a legacy participant
or legacy applicant, and it would help
ensure equity among eligible veterans
and Primary Family Caregivers across
PCAFC when a reassessment requested
under proposed § 71.30(c) results in a
monthly stipend payment increase.
Even if there is variability among VA
facilities in their ability to conduct
reassessments requested under
proposed § 71.30(c) in a timely manner,
under proposed § 71.40(c)(4)(ii)(C)(1)(ii),
the Primary Family Caregiver would
receive any increased monthly stipend
payment based on the reassessment
back to the date VA received the request
under proposed § 71.30(c). For example,
if a final rule adopting this proposal
becomes effective on March 31 and VA
Facility A receives a written request for
reassessment under proposed § 71.30(c)
on April 1, and then on May 1, issues
notice that the reassessment resulted in
an increased monthly stipend payment,
the effective date of the increase would
be April 1. If VA Facility B also receives
a request for reassessment under
proposed § 71.30(c) on April 1, but
because of a surge in such requests for
reassessments, VA Facility B is not able
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to complete such reassessment right
away, and on July 1 issues notice that
the reassessment resulted in an
increased monthly stipend payment, the
effective date of the increase would still
be April 1. As stated above, under
proposed § 71.40(c)(4)(ii)(C)(1), the
increase to the monthly stipend
payment resulting from a reassessment
would take effect on the earlier of either
the date VA issues notice of the decision
or the date VA received the written
request for the reassessment pursuant to
§ 71.30(c) from the eligible veteran or
the Primary Family Caregiver of the
eligible veteran, as would be set forth in
proposed paragraphs (i) and (ii),
respectively.
Because of the changes VA proposes
to make in paragraph (c)(4)(ii)(C)(1), VA
proposes to revise the first sentence in
the note to paragraph (c)(4)(ii)(C)(2)
which refers to increases under
paragraph (c)(4)(ii)(C)(2)(i) of this
section or decreases under paragraph
(c)(4)(ii)(C)(2)(ii) of this section. VA
proposes to remove the referenced
language and in its place, add the
phrase ‘‘adjusted pursuant to
(c)(4)(ii)(C)’’. This would be a technical
and conforming edit to update the note
to paragraph (c)(4)(ii)(C)(2) and provide
the reader with one citation for the
applicable paragraphs governing both
monthly stipend payment increases and
decreases resulting from a reassessment.
In addition, VA proposes to remove
references to October 1, 2025 in the note
to paragraph (c)(4)(ii)(C)(2) and would
add in their place, the date that is 18
months after the effective date of a final
rule implementing this rulemaking. This
change would align with VA’s proposal
to extend the transition period for
members of the legacy cohort as
discussed earlier in this rulemaking.
B. Proposed § 71.40(c)(4)(ii)(C)(2)—
Effective Date of Monthly Stipend
Payment Decrease Based on a
Reassessment
Proposed paragraph (c)(4)(ii)(C)(2)
would address instances in which a
reassessment results in a decrease in the
monthly stipend payment. Proposed
paragraph (c)(4)(ii)(C)(2)(i) would
address the effective date for such
decreases generally, by incorporating
the requirements from current
§ 71.40(c)(4)(ii)(C)(1)(ii) and would have
the heading ‘‘General’’. Proposed
paragraph (c)(4)(ii)(C)(2)(ii) would set
forth the effective date for such
decreases specifically with respect to
eligible veterans who meet the
requirements of § 71.20(a) and (b) or (c)
(that is, those legacy participants and
legacy applicants who meet the
eligibility criteria in proposed
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§ 71.20(a)) by incorporating the
requirements from current
§ 71.40(c)(4)(ii)(C)(2)(ii) and would have
the heading ‘‘Resulting from a legacy
reassessment’’.
Proposed paragraph (c)(4)(ii)(C)(2)(i)
would be almost identical to current
§ 71.40(c)(4)(ii)(C)(1)(ii), except that the
paragraph would include new language
referring to the effective date provision
in proposed paragraph (c)(4)(ii)(C)(2)(ii)
that would be unique to legacy
participants and legacy applicants.
Accordingly, proposed paragraph
(c)(4)(ii)(C)(2)(i) would state that except
as provided in § 71.40(c)(4)(ii)(C)(2)(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. It
would also 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.
There would be no substantive change
in this effective date with respect to
eligible veterans who meet the
requirements of § 71.20(a) only (that is,
eligible veterans who are not legacy
participants or legacy applicants
meeting the requirements of § 71.20(b)
or (c), respectively) as provided in
current paragraph (c)(4)(ii)(C)(1)(ii).
Proposed paragraph (c)(4)(ii)(C)(2)(ii)
would incorporate the language from
current § 71.40(c)(4)(ii)(C)(2)(ii) but VA
would add a reference to § 71.20(b) or
(c) to clarify that this paragraph would
apply with respect to eligible veterans
who are legacy participants and legacy
applicants and to update references to
the transition period for the legacy
cohort to refer to the date that is 18
months after the effective date of a final
rule implementing this rulemaking as
discussed earlier in this rulemaking.
Also, to ensure consistency with
terminology used elsewhere in part 71,
proposed paragraph (c)(4)(ii)(C)(2)(ii)
would refer to the ‘‘monthly stipend
payment’’ instead of the term ‘‘stipend
amount’’ that appears in the first
sentence of current
§ 71.40(c)(4)(ii)(C)(2)(ii). Accordingly,
proposed paragraph (c)(4)(ii)(C)(2)(ii)
would state that with respect to an
eligible veteran who meets the
requirements of § 71.20(a) and (b) or (c),
in the case of a reassessment that results
in a decrease in the Primary Family
Caregiver’s monthly stipend payment,
the new monthly stipend payment
under § 71.40(c)(4)(i)(A) takes effect as
of the effective date provided in VA’s
final notice of such decrease to the
eligible veteran and Primary Family
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Caregiver. It would also state that the
effective date of the decrease will be no
earlier than 60 days after the date that
is 18 months after the effective date of
a final rule under this rulemaking and
that on such effective date, VA will
provide advanced notice of its findings
to the eligible veteran and Primary
Family Caregiver.
As a result of these proposed changes
to the language in proposed paragraphs
(c)(4)(ii)(C)(2)(i) and (ii), VA would also
revise paragraph (c)(4)(ii)(C)(2) to
remove the current language (‘‘If the
eligible veteran meets the requirements
of § 71.20(b) or (c), the Primary Family
Caregiver’s monthly stipend may be
adjusted as follows:’’) as it would no
longer apply. VA would also add a
heading in proposed paragraph
(c)(4)(ii)(C)(2) that states ‘‘Decreases’’ to
further describe the provisions proposed
in § 71.40(c)(4)(ii)(C)(2)(i) and (ii)).
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iii. Proposed Technical Edits to
§ 71.40(c)(4)(ii)
VA proposes to add headings to the
paragraphs of § 71.40(c)(4)(ii) to assist
the reader in identifying provisions. VA
proposes to add the heading ‘‘OPM
updates’’ to § 71.40(c)(4)(ii)(A), the
heading ‘‘Relocation’’ to
§ 71.40(c)(4)(ii)(B), the heading
‘‘Reassessments’’ to § 71.40(c)(4)(ii)(C),
and the heading ‘‘Effective dates’’ to
§ 71.40(c)(4)(ii)(D).
c. Legacy Retroactive Monthly Stipend
Payments
Since October 1, 2020, VA has
provided the retroactive payments
authorized under
§ 71.40(c)(4)(ii)(C)(2)(i) to ensure that
Primary Family Caregivers of legacy
participants and legacy applicants
determined to meet the requirements of
current § 71.20(a) receive the benefit of
any monthly stipend payment increase
resulting from a reassessment as of
October 1, 2020 (the effective date of the
July 31, 2020 Final Rule)—regardless of
when during the five-year period after
October 1, 2020 their reassessment is
completed. See 85 FR 13389 (March 6,
2020). Because it is currently within the
five-year period in which VA intended
to reassess legacy participants, legacy
applicants, and their Family Caregivers,
some reassessments have not yet
occurred while others need to be
repeated as a result of the Veteran
Warriors decision. See 87 FR 57602
(September 21, 2022). This means there
are Primary Family Caregivers of legacy
participants and legacy applicants who
may still qualify for a retroactive
monthly stipend payment. To promote
equity among all Primary Family
Caregivers of legacy participants and
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legacy applicants, VA proposes to
continue providing these retroactive
monthly stipend payments, which are
authorized when a reassessment
described in current
§ 71.40(c)(4)(ii)(C)(2)(i) results in an
increase in the monthly stipend
payment. VA proposes to set forth the
framework for these retroactive monthly
stipend payments in a standalone
paragraph in § 71.40(c)(4)(iii) that is
distinct from the regulatory text in
§ 71.40(c)(4)(ii)(C) governing monthly
stipend payment increases and
decreases resulting from a reassessment.
VA’s proposed revisions seek to
maintain the criteria that VA applies
under current § 71.40(c)(4)(ii)(C)(2)(i) for
retroactive monthly stipend payments,
but also account for proposed changes
to §§ 71.15 and 71.20(a)(3) in this
proposed rule.
VA proposes to redesignate current
paragraphs (c)(4)(iii) and (iv) of § 71.40,
as paragraph (c)(4)(iv) and a new
paragraph (c)(4)(v), respectively. These
paragraphs explain that § 71.40 shall not
be construed to create an employment
relationship between the Secretary and
an individual in receipt of assistance or
support under part 71 and that VA will
periodically assess the monthly stipend
rate to determine whether it meets
certain statutory requirements,
respectively. VA proposes to add a new
paragraph (c)(4)(iii) with the heading
‘‘Legacy retroactive monthly stipend
payment’’ to account for the retroactive
monthly stipend payments authorized
under current § 71.40(c)(4)(ii)(C)(2)(i).
The introduction text of proposed
paragraph (c)(4)(iii) would state that VA
will consider eligibility for a one-time
legacy retroactive monthly stipend
payment in accordance with this
paragraph as part of the legacy
reassessment conducted under
§ 71.30(e) of this part.
This proposed change would
maintain the current requirements
associated with retroactive monthly
stipend payments as set forth in current
§ 71.40(c)(4)(ii)(C)(2)(i). This would
include the eligibility criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) that
VA has applied in place of the term
need for supervision, protection, or
instruction in 38 CFR 71.20(a)(3) and
71.40(c)(4)(i)(A)(2) since Veteran
Warriors. Because these specific
eligibility criteria VA applies under
§§ 71.20(a)(3) and 71.40(c)(4)(i)(A)(2)
would be replaced by new regulations if
this proposed rule were adopted as
final, VA proposes to maintain these
specific eligibility criteria in the
regulation text of proposed paragraphs
(A) and (C)(2) of proposed
§ 71.40(c)(4)(iii) for purposes of
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97437
determining eligibility for the
retroactive monthly stipend payment
under this paragraph. Maintaining the
specific eligibility criteria that are in
place today would ensure that VA
applies the same criteria when
determining eligibility for the
retroactive monthly stipend payment for
all Primary Family Caregivers of legacy
participants and legacy applicants, as
applicable, regardless of whether their
eligibility for a retroactive monthly
stipend payment (and the amount of
such payment) is considered by VA
before or after any regulation changes in
this proposed rule take effect.
Accordingly, proposed
§ 71.40(c)(4)(iii) would set forth the
specific criteria that VA currently
applies to determine whether a legacy
participant or legacy applicant is
eligible under current § 71.20(a)(3), and
whether their Primary Family Caregiver
qualifies for the higher stipend level
payment under current
§ 71.40(c)(4)(i)(A)(2). To be clear, as
proposed, § 71.40(c)(4)(iii) would apply
only for the purpose of determining
eligibility for a one-time retroactive
monthly stipend payment to Primary
Family Caregivers of legacy participants
and legacy applicants.
Proposed paragraph (A) of proposed
§ 71.40(c)(4)(iii) would set forth who
may be eligible for a retroactive monthly
stipend payment. Proposed paragraph
(B) would incorporate the limitations
from current § 71.40(c)(4)(ii)(C)(2)(i) on
when the retroactive monthly stipend
payment applies, with minor technical
changes. Proposed paragraph (C) would
set forth the amount of the retroactive
payment authorized under current
§ 71.40(c)(4)(ii)(C)(2)(i) by incorporating
the criteria VA applies to determine
whether a Primary Family Caregiver
qualifies for the higher stipend level
payment under current
§ 71.40(c)(4)(i)(A). Each of these
proposed paragraphs is addressed in
more detail below.
In proposed § 71.40(c)(4)(iii)(A), VA
would explain that, subject to proposed
§ 71.40(c)(4)(iii)(B), in the case of a
reassessment that results in an increase
in the Primary Family Caregiver’s
monthly stipend payment pursuant to
proposed paragraph
§ 71.40(c)(4)(ii)(C)(1), the Primary
Family Caregiver may be eligible for a
retroactive payment amount described
in proposed paragraph
§ 71.40(c)(4)(iii)(C) if the eligible veteran
is a legacy participant or legacy
applicant and meets the criteria VA
applies to determine eligibility under
current § 71.20(a)(3) (which may
include the criteria in 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii) that VA has
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applied since the definition of need for
supervision, protection, or instruction
was invalidated by Veteran Warriors).
VA proposes to continue to require that
legacy participants and legacy
applicants be determined to meet the
eligibility criteria in current 38 CFR
71.20(a)(3) as a prerequisite for their
Primary Family Caregiver to qualify for
a retroactive monthly stipend
payment.22 Accordingly, proposed
§ 71.40(c)(4)(iii)(A) would set forth the
criteria VA applies to determine
eligibility under current § 71.20(a)(3)
(that is, the criteria VA has applied
since the definition of need for
supervision, protection, or instruction
was invalidated by Veteran Warriors).
To make clear what those criteria are,
proposed paragraph § 71.40(c)(4)(iii)(A)
would refer to the eligible veteran being
in need of personal care services for a
minimum of six continuous months
based on any one of the following: (1)
an inability to perform an activity of
daily living as such term is defined in
current § 71.15; (2) a need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury; or (3) 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. For
additional discussion regarding these
criteria, please see VA’s discussion
above regarding proposed § 71.20(a)(3).
Although VA is proposing to revise
two of the seven eligibility criteria
found in § 71.20 (criteria in paragraph
(a)(3) and (7)), only the criteria that VA
applies to determine eligibility under
current § 71.20(a)(3) (which may
include the statutory criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii)) would
be included in proposed
§ 71.40(c)(4)(iii)(A). That is because
legacy participants and legacy
applicants would already have been
determined to meet criteria set forth in
current and proposed § 71.20(a)(7). By
carrying forward these criteria for
purposes of determining whether a
Primary Family Caregiver of a legacy
participant or legacy applicant qualifies
for the retroactive stipend payment, VA
would ensure the same criteria apply to
such a payment, regardless of whether
22 In the case that a legacy participant or legacy
applicant is not determined to be eligible for
PCAFC under current § 71.20(a)(3), their Primary
Family Caregiver would not be eligible for an
increase in their monthly stipend payment under
current § 71.40(c)(4)(i)(A) and thus would not
qualify for a retroactive monthly stipend payment
under current § 71.40(c)(4)(ii)(C)(2)(i) or proposed
§ 71.40(c)(4)(iii). Instead, such a Primary Family
Caregiver would continue to qualify for a monthly
stipend payment as set forth in paragraphs (B) or
(D) of § 71.40(c)(4)(i).
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the reassessment that results in a
stipend increase occurs before or after
the effective date of any final rule
adopting changes to the regulations. The
other eligibility criteria in § 71.20(a)
would not be amended by this proposed
rule, and thus, would not be included
in proposed § 71.40(c)(4)(iii)(A).
Proposed paragraph
§ 71.40(c)(4)(iii)(B) would be identical to
the last two sentences of current
§ 71.40(c)(4)(ii)(C)(2)(i). However, VA
would make the following technical and
conforming changes. First, proposed
paragraph (B) would cite to the
description of the retroactive payment
in proposed new paragraph
§ 71.40(c)(4)(iii)(A), where applicable.
Second, because VA proposes to add the
criteria that VA has used in place of the
definition of need for supervision,
protection, or instruction in proposed
§ 71.40(c)(4)(iii)(A), VA would exclude
the language that refers to the criteria in
38 U.S.C. 1720G(a)(2)(C)(ii) and (iii), the
definition of need for supervision,
protection, or instruction, and the
Veteran Warriors decision and would
instead refer to the criteria in proposed
38 CFR 71.40(c)(4)(iii)(A). Finally, VA
would remove the language ‘‘was
completed by VA before March 25,
2022, and such reassessment’’, as such
language may inadvertently suggest that
it excludes legacy participants, legacy
applicants, and their Family Caregivers
who did not have a first reassessment
completed by VA before March 25,
2022, which was not VA’s intent. These
changes would maintain current
practice and, as was discussed in VA’s
September 21, 2022 IFR, ensure that the
Primary Family Caregivers of all legacy
participants and legacy applicants
meeting the requirements of current
§ 71.20(a) receive the benefit of any
monthly stipend payment increase as of
October 1, 2020, regardless of when the
reassessment is completed prior to
September 30, 2025. 87 FR 57606
(September 21, 2022). VA would,
however, revise the current text to
account for the proposed extended
transition period for the legacy cohort
and the timeline for completing legacy
reassessments (as discussed earlier in
this rulemaking). VA would replace
references to the five-year period
beginning on October 1, 2020 with
language that reflects a period beginning
on October 1, 2020 and ending on the
date that is 18 months after the effective
date of a final rule under this
rulemaking.
With these changes, proposed
§ 71.40(c)(4)(iii)(B) would state that if
there is more than one reassessment for
an eligible veteran during the period
beginning on October 1, 2020 and
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ending on [18 months after EFFECTIVE
DATE OF FINAL RULE], the retroactive
payment described in proposed
paragraph (c)(4)(iii)(A) applies only if
the first reassessment during the
aforementioned period results in an
increase in the monthly stipend
payment, and only as the result of the
first reassessment during said period.
Proposed § 71.40(c)(4)(iii)(B) would
further state that notwithstanding the
previous sentence, if the first
reassessment during the period
beginning on October 1, 2020 and
ending on [18 months after EFFECTIVE
DATE OF FINAL RULE] did not result
in an increase in the monthly stipend
payment, the retroactive payment
described in proposed paragraph
(c)(4)(iii)(A) applies to the first
reassessment initiated by VA on or after
March 25, 2022 that applies the criteria
in proposed § 71.40(c)(4)(iii)(A), if such
reassessment results in an increase in
the monthly stipend payment, and only
as a result of such reassessment.
Proposed § 71.40(c)(4)(iii)(C) would
incorporate the requirements from
current § 71.40(c)(4)(ii)(C)(2)(i)
regarding the amount of the retroactive
payment, but with conforming and
clarifying changes. First, because the
effective date of the increase under
proposed paragraph
§ 71.40(c)(4)(ii)(C)(1) could be either of
the dates in proposed paragraphs (i) or
(ii) of that proposed paragraph, instead
of referring to the date of the increase as
the ‘‘date of the reassessment’’, VA
would refer to the date of the increase
as ‘‘the effective date of the increase
under paragraph (c)(4)(ii)(C)(1) of this
section’’. Second, to improve clarity, VA
would specify that the amount of the
retroactive payment is any difference
between the amounts set forth in new
proposed paragraphs (1) and (2) of
proposed paragraph (c)(4)(iii)(C).
Accordingly, in proposed paragraph
§ 71.40(c)(4)(iii)(C), VA would explain
that the retroactive payment amount
described in proposed paragraph
(c)(4)(iii)(A) would be any difference
between the amounts in proposed
paragraphs (1) and (2) of paragraph
(c)(4)(iii)(C) for the time period
beginning on October 1, 2020 up to the
effective date of the increase under
proposed paragraph (c)(4)(ii)(C)(1),
based on the eligible veteran’s address
on record with the Program of
Comprehensive Assistance for Family
Caregivers on the effective date of the
increase under proposed paragraph
(c)(4)(ii)(C)(1) and the monthly stipend
rate on such date.
Proposed paragraph (1) under
§ 71.40(c)(4)(iii)(C) would state the first
amount that would be used to calculate
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the retroactive payment amount—the
amount the Primary Family Caregiver
was eligible to receive under paragraph
(c)(4)(i)(B) or (D) of § 71.40, whichever
the Primary Family Caregiver received.
Primary Family Caregivers eligible for a
retroactive monthly stipend payment
under proposed paragraph
§ 71.40(c)(4)(iii) would, up to that point,
have been receiving a monthly stipend
under § 71.40(c)(4)(i)(B) or (D), so VA
would maintain in proposed paragraph
§ 71.40(c)(4)(iii)(C)(1) this same
language from current paragraph
§ 71.40(c)(4)(ii)(C)(2)(i).
Proposed paragraph (2) under
§ 71.40(c)(4)(iii)(C) would include the
second amount that would be used to
calculate the retroactive payment
amount. Consistent with the calculation
of the monthly stipend payment under
current § 71.40(c)(4)(i)(A), this amount
would be the monthly stipend rate (as
that term is defined in § 71.15)
multiplied by 0.625 or 1.00. Under
current § 71.40(c)(4)(i)(A), the monthly
stipend payment is the monthly stipend
rate multiplied by 0.625 unless the
eligible veteran is unable to self-sustain
in the community, in which case the
monthly stipend rate is multiplied by
1.00. As VA proposes to remove the
term unable to self-sustain in the
community and its definition from
§ 71.15, proposed § 71.40(c)(4)(iii)(C)(2)
would include the criteria from that
definition, as VA has applied that term
and its definition since the definition of
need for supervision, protection, or
instruction was invalidated in Veteran
Warriors. Please see VA’s earlier
discussion on the higher stipend level
criteria in proposed § 71.40(c)(4)(i)(A)(2)
for additional discussion on how VA
interpreted and applied that section and
the basis for a determination that an
eligible veteran is unable to self-sustain
in the community since the Veteran
Warriors decision.
Accordingly, proposed paragraph
§ 71.40(c)(4)(iii)(C)(2) would refer to the
monthly stipend rate multiplied by
0.625, but also specify that if the eligible
veteran meets at least one of the
following criteria, the monthly stipend
rate would be multiplied by 1.00: (i) the
eligible veteran requires personal care
services each time they complete 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’’ as such term is defined in
38 CFR 71.15 (2021), and is fully
dependent on a caregiver to complete
such ADLs; (ii) the eligible veteran has
a need for supervision or protection
based on symptoms or residuals of
neurological or other impairment or
injury on a continuous basis; or (iii) the
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eligible veteran has 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 on a continuous
basis. Including this language in
proposed § 71.40(c)(4)(iii)(C)(2) would
maintain the same criteria that VA
applies when determining the
retroactive monthly stipend payment
under current § 71.40(c)(4)(ii)(C)(2)(i).
Maintaining these requirements would
promote equity in calculating such
payments among all Primary Family
Caregivers who qualify to receive them,
because the same requirements would
apply regardless of whether the
reassessment and retroactive monthly
stipend payment determination occurs
before or after the date that any
regulation changes would take effect, if
adopted as proposed. To be clear,
proposed § 71.40(c)(4)(iii)(C)(2) would
apply only for the purpose of calculating
the retroactive monthly stipend
payment for Primary Family Caregivers
of legacy participants and legacy
applicants when they are eligible to
receive such a payment.
H. 38 CFR 71.45 Revocation and
Discharge of Family Caregivers
In § 71.45, VA describes the bases for
revocation and discharge of a Family
Caregiver from PCAFC, the associated
effective dates, and instances in which
benefits are continued after revocation
or discharge, as applicable. In this
rulemaking, VA proposes several
amendments to § 71.45 to address
additional bases for revocation and
discharge and to make other substantive
and technical edits as explained below.
VA first proposes technical changes to
§ 71.45 to modify certain references to
‘‘days’’ to instead reference ‘‘months’’.
Specifically, VA proposes to make these
changes in VA’s regulations that
authorize the continuation of caregiver
benefits in certain cases of revocation
and discharge. These changes would
ensure VA’s regulations are consistent
with the manner in which VA calculates
the monthly stipend payment during
these continued benefit periods. For
reference, the term monthly stipend rate
is defined in § 71.15 to refer to the
applicable OPM GS Annual Rate
divided by 12. Pursuant to this
definition, each Primary Family
Caregiver’s monthly stipend payment is
the same amount each month, regardless
of the number of days in the month.
Accordingly, the IT system supporting
CSP, CARMA, applies a monthly rate
when VA calculates and issues monthly
stipend payments to Primary Family
Caregivers, including monthly stipend
payments authorized during a period of
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97439
continued benefits following revocation
and discharge under § 71.45. Although
VA’s regulations in § 71.45 currently
refer to continuation of caregiver
benefits for 30, 60, or 90 days,
depending on the basis for revocation or
discharge, VA currently calculates
stipends for those time periods by
equating 30, 60, and 90 days to one,
two, and three months, respectively.
This approach aligns with VA’s current
IT functionality and avoids manual
processes that would be required to
apply a prorated daily rate for 30-,
60-, or 90-day periods of continued
caregiver benefits, which would be
resource intensive and could result in
delays and errors. VA believes that the
costs associated with applying a
prorated daily rate would be significant,
especially when compared to the
nominal differences between applying
the monthly stipend rate as compared to
a prorated daily rate in calculating
stipends during periods of continued
benefits. To ensure VA’s regulations
conform with current practice, VA
proposes to replace references to 30, 60,
and 90 days with one, two, and three
months, respectively, in the context of
§ 71.45 provisions that address the
continuation of caregiver benefits after
revocation or discharge. VA identifies
these specific proposed changes
throughout the discussion below on
proposed changes to § 71.45, where
applicable.
1. Proposed Revisions to § 71.45(a)
Regarding Revocation of a Family
Caregiver
VA proposes to revise § 71.45(a) to
add a basis for revocation of a Family
Caregiver and, in § 71.45(a)(3), to revise
the time period for continuing benefits
and to remove the opt out provision.
a. Proposed Basis for Revocation When
an Eligible Veteran or Family Caregiver
No Longer Resides in a State
Current § 71.45(a)(1) establishes the
bases for revocation of a Family
Caregiver, and paragraphs (i) through
(iii) of § 71.45(a)(1) set forth the bases on
which VA may revoke the designation
of a Family Caregiver—for cause,
noncompliance, and VA error,
respectively. VA proposes to add
another basis for revocation of a Family
Caregiver under a new paragraph (iv) of
§ 71.45(a)(1).
Proposed § 71.45(a)(1)(iv) would state
that VA will revoke the designation of
a Family Caregiver when the eligible
veteran or Family Caregiver no longer
resides in a State. In addition, VA
proposes to include a note that states
that if an eligible veteran no longer
resides in a State, VA will revoke the
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designation of each of the eligible
veteran’s Family Caregivers. As
explained above, VA proposes to define
the term State in § 71.15 (consistent
with the definition of such term in 38
U.S.C. 101(20)). Therefore, the term
State in proposed § 71.45 (that is, in
proposed § 71.45(a)(1)(iv) and in
proposed § 71.45(a)(2)(v), discussed
below) would have the meaning set
forth in proposed § 71.15 and 38 U.S.C.
101(20).
As explained in current 38 CFR
71.10(b), benefits under PCAFC and
PGCSS are provided only to those
individuals residing in a State as that
term is defined in 38 U.S.C. 101(20).
Therefore, an individual residing
outside a State is not eligible for PCAFC
or the benefits associated with PCAFC,
and VA currently revokes the
designation of the Family Caregiver
when the Family Caregiver or the
eligible veteran no longer resides in a
State, consistent with 38 CFR 71.10(b).
Because current § 71.45 does not
contain a specific basis for revocation or
discharge based on the Family Caregiver
or eligible veteran no longer residing in
a State, unless another basis of
revocation or discharge applies
pursuant to § 71.45(f), revocation on this
basis is carried out pursuant to current
§ 71.45(a)(1)(ii)(E), which is a ‘‘catch-all
category’’ for requirements under part
71 that are not otherwise accounted for
in § 71.45(a) or (b). 85 FR 13396 (March
6, 2020). VA explained in its March 6,
2020 Proposed Rule that, if VA found
that ‘‘this basis for revocation is
frequently relied upon, then VA would
consider proposing additional specific
criteria for revocation or discharge
under this section in a future
rulemaking.’’ Id. While the frequency of
cases in which a PCAFC participant has
moved and resided outside of a State
has not been exceedingly high, such
instances have occurred with enough
frequency that VA believes a specific
basis for revocation should apply. This
change, if adopted, would help ensure
transparency regarding revocation when
a PCAFC participant resides outside of
a State and, along with proposed
§ 71.45(a)(2)(v), identify the specific
requirements associated with revocation
on this basis. VA also asserts that this
proposal would improve VA’s ability to
track the frequency of revocation on this
basis. Thus, through this rulemaking,
VA proposes to add a basis for
revocation based on the eligible veteran
or Family Caregiver no longer residing
in a State.
VA proposes to establish this as a
basis for revocation rather than a basis
for discharge. This is because, as
discussed in VA’s March 6, 2020
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Proposed Rule, the term ‘‘discharge’’ is
commonly used in health care 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. See
85 FR 13394 (March 6, 2020). VA
further explained that 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. Id. Because residing outside
of a State is an action taken by an
eligible veteran, Family Caregiver, or
both, VA believes revocation is the
appropriate categorization for this new
basis.
Proposed § 71.45(a)(1)(iv) would
include a note specifying, consistent
with current practice, that in such
instances when the eligible veteran no
longer resides in a State, VA would
revoke the designation of each of the
eligible veteran’s Family Caregivers.
This is because approval and
designation of a Family Caregiver is
conditioned upon the eligible veteran
remaining eligible for PCAFC. See 38
CFR 71.25(f). If the veteran or
servicemember is no longer eligible for
PCAFC, VA would have no basis to
continue providing PCAFC benefits to
their caregiver(s). Consistent with all
other bases for revocation and
discharge, if the eligible veteran no
longer meets PCAFC eligibility criteria,
each of the approved and designated
Family Caregivers of the eligible veteran
are discharged or revoked as
appropriate. However, if a Family
Caregiver no longer resides in a State,
the eligible veteran could remain
eligible for PCAFC if the eligible veteran
and at least one Family Caregiver
continues to reside in a State.
Current § 71.45(a)(2) explains that
benefits available through PCAFC will
continue to be provided to the Family
Caregiver until the date of revocation
and further sets forth the revocation
date for the various revocation bases
under § 71.45(a)(1).
In order to address the additional
basis for revocation VA proposes in
paragraph § 71.45(a)(1)(iv), as described
above, VA also proposes to add a new
paragraph § 71.45(a)(2)(v) to set forth the
revocation date in the case of revocation
on the basis of a PCAFC participant no
longer residing in a State. Proposed
§ 71.45(a)(2)(v)(A) would explain that in
the case of a revocation based on
§ 71.45(a)(1)(iv) (that is, when the
eligible veteran or Family Caregiver no
longer resides in a State), the date of
revocation would be the earlier of the
following dates, as applicable: (1) the
date the eligible veteran no longer
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resides in a State; or (2) the date the
Family Caregiver no longer resides in a
State. VA believes that it is reasonable
to stop benefits as of the earlier of these
two dates because PCAFC is not
available to individuals who reside
outside of a State.
Proposed § 71.45(a)(2)(v)(B) would
explain that if VA cannot identify the
date the eligible veteran or Family
Caregiver, as applicable, no longer
resides in a State, the date of revocation
based on paragraph (a)(1)(iv) of § 71.45
would be the earliest date known by VA
that the eligible veteran or Family
Caregiver, as applicable, no longer
resides in a State, but no later than the
date on which VA identifies the eligible
veteran or Family Caregiver, as
applicable, no longer resides in a State.
VA makes determinations that the
Family Caregiver or eligible veteran no
longer reside in a State based on
information a CSP Team receives
directly from the eligible veteran and/or
Family Caregiver(s), or through
information received indirectly such as
through information available in
medical record documentation. It is
expected, and it has been VA’s
experience, that eligible veterans and/or
their Family Caregiver(s) inform VA of
a relocation out of a State prior to such
move occurring so that VA staff can
assist them with planning to transition
out of PCAFC. VA staff may be able to
offer support or resources regarding
transferring the care of the eligible
veteran, help facilitate medical
appointments prior to an eligible
veteran’s move, or engage in other such
activities to plan for participants to
transition out of PCAFC. However, such
direct notification to VA of an
anticipated move outside of a State may
not always occur. In some cases, CSP
Teams have learned of a planned move
not because the CSP Team was directly
informed but through other means. For
example, the eligible veteran may
update the demographic information
contained in their health record to
reflect a new address which is outside
of a State or may contact their primary
care team to cancel an upcoming
appointment due to their relocation
outside of a State. Similarly, the Family
Caregiver may inform an eligible
veteran’s health care provider after the
relocation out of a State has occurred
such that they have already moved and
no longer reside in a State. This
information is usually identified at the
time the eligible veteran and Family
Caregiver(s) are contacted to schedule a
wellness contact.
Overpayments may result in cases of
revocation based on proposed
§ 71.45(a)(1)(iv) and (a)(2)(v) because
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information about an eligible veteran’s
and/or Family Caregiver’s relocation out
of a State is not always communicated
in advance. An overpayment could
result when there is a delay between the
date an eligible veteran or Family
Caregiver no longer resides in a State
and the date that VA becomes aware of
the relocation and initiates revocation
accordingly. Pursuant to §§ 71.45(d) and
71.47, VA would seek to recover
overpayments of benefits, as applicable,
including in cases of revocation under
proposed § 71.45(a)(1)(iv). This is the
case when overpayments occur as a
result of other bases of revocation or
discharge. To prevent situations such as
this, VA encourages eligible veterans
and Family Caregivers to notify their
CSP Team in advance of any changes
that may impact their ongoing PCAFC
eligibility.
VA would not provide a period of 60day advanced notice or a period of
continued benefits in the case of
revocation under this proposed basis.
This is because, as VA explained in its
July 31, 2020 Final Rule, it is not
feasible to provide PCAFC benefits
outside of a State, and VA incorporates
that discussion by reference here. See 85
FR at 46227 (July 31, 2020). VA believes
that this proposed approach to
effectuate the revocation pursuant to
proposed § 71.45(a)(2)(v) and to recover
any overpayments is reasonable.
Discontinuing benefits as close as
possible to the date the individual no
longer resides in a State, if not on such
date, would minimize the amount of
overpayment subject to recoupment.
b. Proposed Revision to Time Period for
Continuing Benefits and Removal of Opt
Out in § 71.45(a)(3)
Current § 71.45(a)(3) describes the
continuation of benefits in the case of
revocation based on VA error under
§ 71.45(a)(1)(iii). Specifically, current
paragraph (a)(3) states that in the case of
revocation based on VA error under
paragraph (a)(1)(iii) of § 71.45, caregiver
benefits will continue for 60 days after
the date of revocation unless the Family
Caregiver opts out of receiving such
benefits. Paragraph (a)(3) also states that
continuation of benefits under this
paragraph will be considered an
overpayment and VA will seek to
recover overpayment of such benefits as
provided in § 71.47.
VA proposes to revise the first
sentence in paragraph (a)(3) to correct
for challenges VA has experienced
associated with the current regulation
text. As proposed, the first sentence of
paragraph (a)(3) would state that in the
case of revocation based on VA error
under paragraph (a)(1)(iii) of § 71.45,
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caregiver benefits will continue for two
months after the date VA issues notice
of revocation. VA explains proposed
revisions below.
First, VA proposes to replace ‘‘after
the date of revocation’’ with ‘‘after the
date VA issues notice of revocation’’ in
the regulation text. This revision would
change the start date for the period of
continued benefits. VA’s intent with the
current language was to provide
advance notice prior to terminating
benefits, even if such benefits would be
considered an overpayment and subject
to recoupment. As explained in the
March 6, 2020 Proposed Rule, ‘‘[t]his
extended period of benefits would give
the Family Caregiver time to adjust
before benefits are terminated’’, as ‘‘[i]n
such cases, the Family Caregiver may
have come to rely on the benefits that
were authorized as a result of a VA
error.’’ 85 FR 13397 (March 6, 2020).
However, the phrase ‘‘60 days after the
date of revocation’’ does not allow for
the continuation of benefits if the
effective date of revocation is in the
past. For example, if in July, VA learns
of and initiates revocation based upon a
VA error that was made in January, the
revocation date would be in January.
Providing benefits for 60 days beyond
the date of revocation would not allow
for the advanced notice period that VA
intended to authorize in § 71.45(a)(3)
because the 60-day period would
already have passed. By replacing ‘‘60
days after the date of revocation’’ with
‘‘two months after the date VA issues
notice of revocation’’ in proposed
§ 71.45(a)(3), VA believes the proposed
revised text would permit VA to provide
advance notice before PCAFC benefits
are discontinued and resolve this issue
with the current regulation text and any
confusion it has caused.
In the aforementioned example, under
proposed paragraph (a)(3), if VA issues
notice of revocation in July, the date of
revocation would still be in January, but
caregiver benefits would continue to be
provided for two months after the date
in July that VA issues notice of
revocation. All benefits provided
following the date of revocation in
January would still be considered an
overpayment, including the benefits
provided during the two months after
the date in July that VA issues notice of
revocation, and VA seeks to recover
overpayment of such benefits as
provided in § 71.47. As provided in the
last sentence of current § 71.45(a)(3),
which VA does not propose to revise in
this proposed rule, continuation of
benefits under § 71.45(a)(3) will be
considered an overpayment and VA will
seek to recover overpayment of such
benefits as provided in § 71.47.
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Second, VA proposes to remove the
language in § 71.45(a)(3) regarding the
ability of the Family Caregiver to opt out
of receiving continued benefits for 60
days after the date of revocation, in the
case of revocation due to VA error. VA
acknowledges that the number of
revocations on this basis is very small.
However, when they do occur, VA
generally does not receive the Family
Caregiver’s decision to opt out of
receiving continued benefits for the 60day period, specifically the monthly
stipend payment, with sufficient time
for VA to stop the issuance of the
monthly stipend payment. This means
that VA, despite not knowing if the
Primary Family Caregiver intends to opt
out, must either proceed with issuing
the continued monthly stipend payment
or place a hold on issuing the payment
until the Primary Family Caregiver’s opt
out decision is received, the latter of
which effectively pauses the monthly
stipend payment and thereby interferes
with the intended purpose of this
extended benefit period. Because it has
proven to be unworkable, VA proposes
to remove this language concerning the
ability of the Family Caregiver to opt out
of receiving continued benefits for the
60 days after the date of revocation. VA
believes that the number of instances in
which this basis for revocation applies
will continue to be very small, and the
costs associated with providing the
option to opt out outweigh any benefits
of maintaining this provision. The
current manual process in place to
execute the opt out is resource intensive
and unsustainable. If this proposed
change is adopted in a final rule, VA
would ensure the change is
communicated to PCAFC participants at
the time of approval and designation of
a Family Caregiver and periodically
throughout their PCAFC participation.
Again, continuation of benefits under
this paragraph will be considered an
overpayment and VA will seek to
recover overpayment of such benefits as
provided in § 71.47.
Finally, current paragraph (a)(3)
provides for 60 days of continued
benefits in the case of revocation based
on VA error under paragraph (a)(1)(iii).
However, VA proposes to remove the
language ‘‘60 days’’ and in its place, add
the language ‘‘two months’’. VA’s
rationale for this change is explained in
more detail above and is proposed
because of the manner in which VA
calculates monthly stipend payments.
As proposed, paragraph (a)(3) would
state that in the case of revocation based
on VA error under paragraph (a)(1)(iii)
of § 71.45, caregiver benefits will
continue for two months after the date
VA issues the notice of revocation. It
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would also state that continuation of
benefits under this paragraph will be
considered an overpayment and VA will
seek to recover overpayment of such
benefits as provided in § 71.47.
2. Proposed Revisions to § 71.45(b)
Regarding Discharge of a Family
Caregiver
Paragraph (b) of § 71.45 addresses
bases for discharge, dates of discharge,
rescission of certain discharge requests,
and continuation of benefits following
discharge. Under paragraph (b)(1), VA
proposes to make several changes
regarding discharge due to the eligible
veteran, including the addition of new
bases for discharge. VA also proposes to
add an additional basis for discharge
due to the Family Caregiver under
paragraph (b)(2) and to allow for
rescission of a discharge request under
paragraph (b)(3). These and other
proposed changes to § 71.45(b) are
discussed below.
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a. Proposed Revisions to Discharge
Based on Institutionalization of the
Eligible Veteran
Current § 71.45(b)(1) addresses the
bases for discharge due to the eligible
veteran. Under this paragraph, a Family
Caregiver will be discharged when the
eligible veteran does not meet the
requirements of § 71.20(a)(1) through (4)
because of improvement in their
condition or otherwise, or when the
eligible veteran dies or is
institutionalized. See § 71.45(b)(1)(i)(A)
and (B). VA proposes to make several
revisions to paragraph (b)(1) as it relates
to discharge based on death or
institutionalization.
First, VA would remove the last
sentence from current § 71.45(b)(1)(i)(B)
that explains that in the instance of
institutionalization of the eligible
veteran, notification to VA of such
institutionalization must indicate
whether the eligible veteran is expected
to be institutionalized for 90 or more
days from the onset of
institutionalization. VA has found that
it is not necessary for such notice to
indicate whether the eligible veteran is
expected to be institutionalized for 90 or
more days from the onset of
institutionalization as VA has other
means of collecting this information.
What is most critical is that VA receive
notification of institutionalization of the
eligible veteran. At that point, VA can
work with the eligible veteran and/or
Family Caregiver to obtain additional
information that may be necessary for
purposes of determining whether
discharge should be initiated and also
facilitate other appropriate actions, such
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as referrals for additional support, as
applicable.
VA therefore proposes to remove the
requirement to indicate whether the
eligible veteran is expected to be
institutionalized for 90 days or more
from the onset of institutionalization
when providing notice to VA of such
institutionalization as VA has found it
to be unnecessary and potentially
burdensome. VA does not anticipate any
changes to PCAFC administration or the
practical application of this basis of
discharge if this requirement is removed
as proposed.
While VA is proposing to remove the
last sentence of § 71.45(b)(1)(i)(B), VA’s
regulations would still include the
requirement that 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. Failure to provide
timely notification of death or
institutionalization of an eligible
veteran, as required by
§ 71.45(b)(1)(i)(B), could result in
overpayments of benefits to the Family
Caregiver, which are subject to
recoupment pursuant to § 71.47.
VA also proposes to make a clarifying
edit to current § 71.45(b)(1)(ii)(B), which
explains that for discharges based on
paragraph (b)(1)(i)(B) (that is, those
discharges due to the death or
institutionalization of the eligible
veteran), the date of discharge will be
the earliest of the specified dates, as
applicable, which includes under
current paragraph (2), the 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.
VA proposes to revise
§ 71.45(b)(1)(ii)(B)(2) to refer to the date
that the institutionalization begins, if it
is ‘‘known on such date’’ that the
eligible veteran is expected to be
institutionalized for a period of 90 days
or more. VA proposes to revise the
current language from ‘‘if it is
determined’’ to ‘‘if it is known on such
date’’ to make clear that the discharge
would take effect on the date the
institutionalization begins under
paragraph (b)(1)(ii)(B)(2) only when it is
known at the onset of
institutionalization that such
institutionalization will be for 90 days
or more. This aligns with how VA has
implemented paragraph (b)(1)(ii)(B)(2)
since this provision became effective.
Therefore, this proposed change would
not result in a change to VA’s current
practice but would clarify how VA has
implemented the date of discharge.
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b. Proposed Additional Bases for
Discharge of a Family Caregiver Due to
the Eligible Veteran
Under § 71.45(b)(1), VA proposes to
include two new bases for discharging
the Family Caregiver. First, proposed
§ 71.45(b)(1)(i)(C) would include an
existing basis for discharge based on a
Family Caregiver’s request for discharge
due to domestic violence (DV) or
intimate partner violence (IPV)
perpetrated by the eligible veteran
against the Family Caregiver. Current
§ 71.45(b)(3)(iii)(B) accounts for such
basis within the context of discharge
based on the request of the Family
Caregiver. Such paragraph explains that
if the Family Caregiver requests
discharge due to DV or 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 (for example,
physician, dentist, psychologist,
rehabilitation therapist) of the eligible
veteran or Family Caregiver, Intimate
Partner Violence Assistance Program
(IPVAP) Coordinator, therapist or
counselor.
VA would move this basis from
current § 71.45(b)(3)(iii) to new
proposed paragraphs (b)(1)(i)(C),
(b)(1)(ii)(C), and (b)(1)(iii)(B), as this
basis for discharge is due to the eligible
veteran. VA does not propose to make
any substantive changes to the
provisions in current paragraph
(b)(3)(iii)(B). Using language in current
paragraph (b)(3)(iii)(B), proposed
paragraph (b)(1)(i)(C) would state that
the Family Caregiver will be discharged
based on the Family Caregiver
requesting discharge due to DV or IPV
perpetrated by the eligible veteran
against the Family Caregiver. As
discussed below, proposed paragraph
(b)(1)(ii)(C) would provide the date of
discharge on this basis, and proposed
paragraphs (b)(1)(iii)(B)(1) through (3)
would include the language in current
paragraph (b)(3)(iii)(B)(1) through (3)
regarding the documentation that would
be required to be provided to VA for the
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Family Caregiver to receive three
months of continued benefits.
Because VA proposes to add new
paragraph (b)(1)(i)(C), which would not
require a VA determination but rather
would be described as a request from
the Family Caregiver, VA would make
conforming edits to paragraphs (b)(1)(i)
and (b)(1)(i)(A). In paragraph (b)(1)(i),
VA would remove the language ‘‘when
VA determines’’ and replace it with
‘‘based on’’. Thus, as proposed,
paragraph (b)(1)(i) would state that
except as provided in paragraph (f) of
§ 71.45, the Family Caregiver will be
discharged from Program of
Comprehensive Assistance for Family
Caregivers based on any of the
following.
Paragraph (b)(1)(i)(A) currently
addresses situations where the eligible
veteran does not meet the requirements
of § 71.20 because of improvement in
the eligible veteran’s condition or
otherwise. Because of VA’s proposed
changes to paragraph (b)(1)(i), VA
proposes to add language to make clear
that paragraph (b)(1)(i)(A) is a VA
determination. Thus, VA proposes to
revise § 71.45(b)(1)(i)(A) to add ‘‘VA
determines’’. Proposed paragraph
(b)(1)(i)(A) would state that except as
provided in paragraphs (a)(1)(ii)(A) and
(b)(1)(i)(B) of § 71.45, VA determines the
eligible veteran does not meet the
requirements of § 71.20 because of
improvement in the eligible veteran’s
condition or otherwise.
Because proposed paragraph (b)(1)(i)
would set forth additional bases for
discharge due to the eligible veteran
(that is, bases in addition to those set
forth in current paragraph (b)(1)(i)(A)
and (B)), VA also proposes to remove
the ‘‘or’’ at the end of current paragraph
(b)(1)(i)(A) and to replace the period at
the end of current paragraph (b)(1)(i)(B)
with a semicolon. These proposed
changes to paragraphs (b)(1)(i) and
(b)(1)(i)(A), and to the punctuation at
the end of paragraph (b)(1)(i)(B) would
be technical revisions that are not
intended to have a substantive impact.
The second basis VA proposes to add
to § 71.45(b)(1)(i) is for cases where VA
determines that unmitigated personal
safety issues exist for the Family
Caregiver due to DV or IPV by the
eligible veteran against the Family
Caregiver. This would be added in a
new proposed paragraph (b)(1)(i)(D).
This basis of discharge would be
applied by VA to initiate discharge due
to DV or IPV by the eligible veteran
against the Family Caregiver when VA
determines that unmitigated personal
safety issues exist for the Family
Caregiver. Currently in such
circumstances, VA may initiate
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revocation (rather than discharge) of the
Family Caregiver for cause or
noncompliance, in which case extended
benefits would not be available for the
Family Caregiver. VA believes that
including this new basis for discharge
would better support Family Caregivers
who may be determined no longer
eligible for PCAFC because of factors
resulting from DV or IPV, and proposes
to include a provision for extended
benefits as discussed below. The
addition of this basis for discharge
would provide a standard process when
VA determines that unmitigated
personal safety issues exist for the
Family Caregiver due to DV or IPV.
In VA’s experience working with
participants in PCAFC, VA has
identified instances of severe and/or
escalating violence by the eligible
veteran directed at the Family Caregiver,
but the Family Caregiver does not
request discharge and attempts to
continue to provide personal care
services to the eligible veteran. VA also
identified instances where the existence
or threat of violence impacts the Family
Caregiver’s ability to provide required
personal care services, and/or the
eligible veteran’s willingness to receive
personal care services from the Family
Caregiver. VA has also witnessed the
detrimental impacts that DV and IPV
can have on the well-being of both the
Family Caregiver as well as the eligible
veteran, which can negatively impact
the caregiving relationship. This is not
to suggest that any act which may be
considered violent or aggressive
inherently impacts one’s ability to
provide or receive personal care
services. DV and IPV occur on a
spectrum of frequency and severity and
may range from verbal insults to
physical violence. Such acts of
aggression toward the Family Caregiver
may occur when the Family Caregiver is
attempting to provide personal care
services, or at unrelated and isolated
times.
It is not VA’s intent with proposed
§ 71.45(b)(1)(i)(D) to discharge a Family
Caregiver solely due to the presence of
DV or IPV. In fact, VA encourages
identification and disclosure of DV or
IPV and would continue to encourage
such disclosure if this proposed change
is adopted in a final rule so that
additional support and resources can be
made available to the Family Caregiver
during PCAFC participation. The
determination of whether to initiate
discharge under this basis would be a
clinical determination made by VA that
would include consideration of the
frequency and/or severity of the DV or
IPV. VA would rely on clinical
guidelines when making determinations
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as to whether unmitigated personal
safety issues exist for the Family
Caregiver under proposed
§ 71.45(b)(1)(i)(D). These guidelines
would include but are not limited to
consideration of the risk of harm or
lethality to the Family Caregiver, the
impact of DV or IPV on the Family
Caregiver’s ability to provide personal
care services and the quality of such
services. VA also would take into
consideration whether the dynamic
between the eligible veteran and Family
Caregiver poses a safety risk to VA staff
such that home visits as part of this
program could not be safely conducted,
as such a safety risk may be indicative
of the frequency and/or severity of the
DV or IPV.
VA may become aware of DV or IPV
against a Family Caregiver through
various means, including but not
limited to during evaluations of PCAFC
eligibility and wellness contacts,
through disclosure to VA by the eligible
veteran or Family Caregiver; through
observations; through information
provided to VA by family members,
friends, providers, or others; or through
chart reviews. If this proposed basis for
discharge is adopted in a final rule and
VA identifies DV or IPV, VA would
attempt to work with the eligible
veteran and Family Caregiver, as
applicable, to identify supports and
services that may be available to meet
their needs, including potential referral
to the local IPVAP coordinator, and
safety planning.
VA proposes to add this new
discharge basis for instances when DV
or IPV by the eligible veteran against the
Family Caregiver presents personal
safety issues for the Family Caregiver,
which are unmitigated. As in cases
where the Family Caregiver requests
discharge pursuant to proposed
§ 71.45(b)(1)(i)(C), this new proposed
discharge basis under § 71.45(b)(1)(i)(D)
would also be included under
§ 71.45(b)(1) because the reason for
discharge would be due to the eligible
veteran. This would make clear that the
behaviors of the eligible veteran are the
reason for the discharge on this basis.
VA welcomes and request public
comment on this proposed basis for
discharge when VA determines that
unmitigated safety issues exist for the
Family Caregiver due to DV or IPV by
the eligible veteran and what VA should
consider in making these
determinations if this proposed basis is
adopted in a final rule.
Additionally, because VA proposes to
add additional bases for discharge due
to the eligible veteran under new
proposed paragraphs § 71.45(b)(1)(i)(C)
and (D) (that is, when the Family
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Caregiver requests discharge due to DV
or IPV perpetrated by the eligible
veteran against the Family Caregiver
and when VA determines unmitigated
personal safety issues exist for the
Family Caregiver due to DV or IPV by
the eligible veteran against the Family
Caregiver), VA proposes to add
paragraphs (b)(1)(ii)(C) and (D) to
address the dates of discharge
associated with these two new proposed
bases.
VA proposes to add § 71.45(b)(1)(ii)(C)
to state that for discharge based on
paragraph (b)(1)(i)(C) (that is, when the
Family Caregiver requests discharge due
to DV or IPV perpetrated by the eligible
veteran against the Family Caregiver),
the date of discharge would 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. Proposed § 71.45(b)(1)(ii)(C)
would also state that if the request does
not include an identified date of
discharge, VA would contact the Family
Caregiver to request a date, and if
unable to successfully obtain this date,
discharge would be effective as of the
date of the request. This would be
consistent with current paragraph
(b)(3)(ii) which explains the discharge
date in instances when the Family
Caregiver requests discharge, including
due to DV or IPV.
Proposed § 71.45(b)(1)(ii)(D) would
explain that for discharge based on
paragraph (b)(1)(i)(D) (that is, discharge
of the Family Caregiver based on VA
determining that unmitigated personal
safety issues exist for the Family
Caregiver due to DV or IPV by the
eligible veteran against the Family
Caregiver), the date of discharge would
be the date VA issues notice of its
determination. This would refer to the
date VA issues notice of its
determination that unmitigated personal
safety issues exist for the Family
Caregiver due to DV or IPV by the
eligible veteran against the Family
Caregiver, such that VA is discharging
the Family Caregiver. VA proposes to
use the date VA issues notice of its
determination because in these
situations VA would be making this
determination as it sees significant risk
to safety and the well-being of the
Family Caregiver. Once a determination
is made that unmitigated personal safety
issues exist for the Family Caregiver, VA
does not propose to provide a period of
advanced notice prior to discharge.
However, VA does not believe that, in
general, a decision by VA to discharge
on this basis would be unexpected. This
is because, as discussed previously, VA
encourages identification and disclosure
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of DV or IPV at the earliest opportunity
so that support and resources can be
made available. VA would work with
the Family Caregiver, and the eligible
veteran, as applicable, to identify needs
and options, and through these
interactions, would discuss the impact
such DV or IPV within the caregiving
relationship could have on PCAFC
participation. Further, VA would ensure
that this basis for discharge is
communicated to PCAFC participants
upon approval and designation of a
Family Caregiver, and periodically
throughout their participation in
PCAFC, as VA does with all other
discharge and revocation reasons. If this
basis for discharge is adopted in a final
rule, VA would also ensure it is
reviewed with the Family Caregiver and
eligible veteran when DV or IPV is
identified. It is VA’s intent that the
provision of such information would
assist the Family Caregiver in making
informed decisions related to their
caregiving role.
Current § 71.45(b)(1)(iii) explains that
caregiver benefits will continue for 90
days after the date of discharge for those
Family Caregivers discharged pursuant
to the bases in paragraph (b)(1)(i).
Because of the additional bases for
discharge that VA proposes to add to
paragraph (b)(1)(i) (that is, when the
Family Caregiver requests discharge due
to DV or IPV perpetrated by the eligible
veteran against the Family Caregiver
and when VA determines unmitigated
personal safety issues exist for the
Family Caregiver due to DV or IPV by
the eligible veteran against the Family
Caregiver), VA proposes to add new
paragraphs (b)(1)(iii)(A) and (B) to
address the continuation of benefits for
discharges pursuant to proposed
paragraph (b)(1)(i). VA would move the
current language from § 71.45(b)(1)(iii)
into a new proposed paragraph
(b)(1)(iii)(A), which would state that
except as provided in paragraph
(b)(1)(iii)(B) of § 71.45, caregiver
benefits will continue for three months
after the date of discharge. This
proposed text would be consistent with
the current extension of benefits in
paragraph (b)(1)(iii) for current
discharges made pursuant to current
§ 71.45(b)(1)(i)(A) and (B). However, VA
would replace ‘‘90 days’’ with ‘‘three
months’’ to align with VA’s process for
calculating and paying monthly stipend
payments. VA’s rationale for this change
is explained in more detail above.
Because proposed paragraph
(b)(1)(iii)(B) would address continuation
of benefits for discharges only under
proposed paragraph (b)(1)(i)(C), as
discussed below, the language in
proposed paragraph (b)(1)(iii)(A) would
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apply to discharges pursuant to new
proposed § 71.45(b)(1)(i)(D) (that is,
discharges based on VA determining
that unmitigated personal safety issues
exist for the Family Caregiver due to DV
or IPV by the eligible veteran against the
Family Caregiver). Accordingly, Family
Caregivers discharged pursuant to
proposed paragraph (b)(1)(i)(D) would
receive three months of caregiver
benefits after the date of discharge, as
set forth in new proposed paragraph
(b)(1)(iii)(A). VA proposes to provide
caregiver benefits for three months after
the date of discharge on the basis of
proposed § 71.45(b)(1)(i)(D) to align
with the three months of continued
benefits that VA would provide to
Family Caregivers who request
discharge due to DV or IPV pursuant to
proposed § 71.45(b)(1)(i)(C) (so long as
other requirements are met), as
discussed below. This approach would
ensure Family Caregivers are eligible for
the same period of continued benefits
when discharge is due to DV or IPV,
regardless of whether VA initiates the
discharge pursuant to proposed
§ 71.45(b)(1)(i)(D) or it is requested by
the Family Caregiver under proposed
§ 71.45(b)(1)(i)(C).
VA recognizes that the monthly
stipend payment is a benefit Primary
Family Caregivers may rely upon.
However, VA does not want the
monthly stipend payment to serve as an
incentive to remain in an unsafe
caregiving relationship. Like the 90-day
extension of benefits under current
§ 71.45(b)(3)(iii)(B), a three-month
extension of benefits after discharge
under proposed § 71.45(b)(1)(i)(D) may
help to mitigate concerns a Family
Caregiver may have about the loss of the
monthly stipend payment and health
care benefits. See 85 FR 13401 (March
6, 2020). VA believes that three months
is an appropriate period of time to
transition out of receiving PCAFC
benefits in the case of discharge
pursuant to proposed § 71.45(b)(1)(i)(D).
Additionally, access to PCAFC benefits,
such as counseling services, may be
especially useful to support the Family
Caregiver during the three-month period
following discharge on the basis of
proposed § 71.45(b)(1)(i)(D).
Proposed paragraph (b)(1)(iii)(B)
would address continuation of benefits
for discharges under proposed
paragraph (b)(1)(i)(C) (that is, when the
Family Caregiver requests discharge due
to DV or IPV perpetrated by the eligible
veteran against the Family Caregiver).
Consistent with current
§ 71.45(b)(3)(iii), under proposed
paragraph (b)(1)(iii)(B), in the case of
discharge based on new proposed
paragraph (b)(1)(i)(C), caregiver benefits
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would continue for one month after the
date of discharge unless one of the
criteria in proposed paragraph
(b)(1)(iii)(B)(1) through (3) is
established, in which case caregiver
benefits would continue for three
months after the date of discharge. VA
proposes to move to proposed paragraph
(b)(1)(iii)(B) the language regarding
continuation of benefits in instances
when the Family Caregiver requests
discharge due to DV or IPV that is
included in current paragraph
(b)(3)(iii)(B)(1) through (3), which
describes the requirements for the
provision of 90 days of continued
benefits when the discharge is due to
DV or IPV. This language would be
added to proposed paragraphs
(b)(1)(iii)(B)(1) through (3) with minor
modifications. Current paragraphs
(b)(3)(iii)(A) and (B) refer to the
extended benefit time periods as ‘‘30
days’’ and ‘‘90 days’’, respectively.
However, consistent with VA’s previous
explanation, VA proposes to use ‘‘one
month’’ and ‘‘three months’’ to describe
the time periods for the continued
caregiver benefits in new proposed
paragraph (b)(1)(iii)(B).
Thus, proposed paragraph
(b)(1)(iii)(B) would state that in the case
of discharge based on paragraph
(b)(1)(i)(C) of § 71.45, caregiver benefits
will continue for one month after the
date of discharge. Proposed paragraph
(b)(1)(iii)(B) would further state that
notwithstanding the previous sentence,
caregiver benefits will continue for three
months 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.
c. Proposed Additional Basis for
Discharge of a Family Caregiver Due to
the Family Caregiver
Current paragraph § 71.45(b)(2)
describes conditions for discharge of the
Family Caregiver due to the Family
Caregiver. Current paragraph (b)(2)(i)
addresses the only basis for such
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discharge now—death or
institutionalization of the Family
Caregiver. VA proposes to revise
paragraph (b)(2)(i) to add an additional
basis for discharge due to the Family
Caregiver being unable to provide
personal care services, among other
things, and to reorganize the bases for
discharge into separate new paragraphs
(A) and (B) of § 71.45(b)(2)(i).
This new proposed basis for discharge
due to the Family Caregiver would
account for instances in which VA
determines the Family Caregiver is not
able to carry out specific personal care
services, core competencies, or
additional care requirements. To be
approved and designated as a Family
Caregiver, the individual must
demonstrate the ability to carry out the
specific personal care services, core
competencies, and additional care
requirements required by the eligible
veteran under § 71.25(c)(2), so VA
proposes to use the same language in
describing this new basis for discharge
in proposed § 71.45(b)(2)(i)(B). To
clarify, a situation that would qualify for
this new proposed discharge basis, in
which a Family Caregiver is unable to
carry out the enumerated actions, is
intended to be different than a situation
in which a Family Caregiver is
unwilling to do so. A Family Caregiver
who is unwilling to provide personal
care services required by the eligible
veteran would be subject to revocation
pursuant to § 71.45(a)(1)(i)(D)
(authorizing revocation for cause when
VA determines that the Family
Caregiver is unwilling to provide
personal care services to the eligible
veteran).
Additionally, VA does not presume a
Family Caregiver’s inability to carry out
the specific personal care services, core
competencies, or additional care
requirements needed by the eligible
veteran is a matter of noncompliance
under § 71.45(a)(1)(ii)(E). VA considers
noncompliance to be the direct result of
a deliberate action or inaction on the
part of the eligible veteran or Family
Caregiver. See 85 FR 13395 (March 6,
2020). Such inability may not be
deliberate on the part of the Family
Caregiver as such Family Caregiver may
be unable to carry out the specific
personal care services, core
competencies, or additional care
requirements despite making significant
effort to do so. In these circumstances,
for the reasons described below, VA
believes a distinct basis for discharge is
appropriate and should apply.
This new proposed basis for discharge
would not add new criteria or make
changes to how criteria are currently
evaluated during reassessments. This
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97445
proposed change, if made final and
effective, would allow VA to provide
Family Caregivers with a period of
advanced notice and a three-month
period of extended benefits when the
specific eligibility criteria are
determined not to be met. Without this
new basis, there is no standard period
of extended benefits. As VA explained
above, the term ‘‘discharge’’ is
commonly used in health care settings
to describe what happens when a
patient no longer meets criteria for the
level of care being provided. See 85 FR
13394 (March 6, 2020). Discharge may
be appropriate when there is a change
in circumstances, such as when VA
identifies that the Family Caregiver is
unable to carry out personal care
services needed by the eligible veteran,
which may be due to a decline in their
abilities or a change in the eligible
veteran’s needs. In each of these cases,
the basis for the Family Caregiver not
being able to carry out specific personal
care services, core competencies or
additional care requirements is due to
changes in condition (of the eligible
veteran or Family Caregiver). For
example, a Family Caregiver may find
themselves not able to adequately
perform hands-on assistance with one or
more ADL due to the increased amount
of strength required as the eligible
veteran’s conditions progress. In such
instance, VA believes discharge under
proposed § 71.45(b)(2)(i)(B) would be
appropriate.
Because VA proposes to add this new
basis for discharge due to the Family
Caregiver in a new § 71.45(b)(2)(i)(B)
and to include the basis for discharge
based on death or institutionalization
under a new § 71.45(b)(2)(i)(A), VA
proposes to revise the introductory text
in paragraph (b)(2)(i) to provide a
general overview of discharge due to the
Family Caregiver. Accordingly, as
proposed, § 71.45(b)(2)(i) would state
that except as provided in paragraph (f)
of § 71.45, the Family Caregiver will be
discharged from the Program of
Comprehensive Assistance for Family
Caregivers based on any of the bases for
discharge due to the Family Caregiver
which VA would list in proposed new
paragraphs (A) and (B).
Except as explained below, VA
proposes to add the remaining text in
current § 71.45(b)(2)(i) in new paragraph
(b)(2)(i)(A), which would explain that
one basis for discharge under paragraph
(b)(2)(i) is death or institutionalization
of the Family Caregiver. VA would also
include in proposed paragraph
(b)(2)(i)(A) the note from current
paragraph (b)(2)(i), which explains that
VA must receive notification of death or
institutionalization of the Family
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Caregiver as soon as possible but not
later than 30 days from the date of death
or institutionalization. However, VA
proposes to remove the last sentence of
current paragraph (b)(2)(i), which states
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.
Consistent with VA’s rationale for
removing this requirement in proposed
revisions to § 71.45(b)(1)(i)(B), which
addresses institutionalization of an
eligible veteran, VA has found that this
information is not necessary for such
notice to indicate whether the
individual is expected to be
institutionalized for 90 days or more
from the onset of institutionalization of
a Family Caregiver. What is most critical
is that VA receives notification of such
institutionalization. Once VA has been
notified, it can work with the eligible
veteran and/or Family Caregiver to
obtain additional information that may
be necessary for purposes of
determining whether discharge should
be initiated and also facilitate other
appropriate actions, such as referrals for
additional support, as applicable. Thus,
VA would remove the requirement for a
notification of institutionalization to
indicate whether the Family Caregiver is
expected to be institutionalized for 90 or
more days as it would be unnecessary.
Also, while VA is proposing to remove
the last sentence of current
§ 71.45(b)(2)(i), VA’s regulations (at
proposed § 71.45(b)(2)(i)(A)) would still
include the requirement that 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. Failure to
provide timely notification of death or
institutionalization of a Family
Caregiver, as set forth in current
§ 71.45(b)(2)(i) and proposed
§ 71.45(b)(2)(i)(A), or an eligible veteran,
as set forth in § 71.45(b)(1)(i)(B), could
result in overpayments of benefits to the
Family Caregiver, which are subject to
recoupment pursuant to § 71.47.
Proposed new paragraph
§ 71.45(b)(2)(i)(B) would then explain
the new additional basis for discharge.
Proposed paragraph (B) would explain
that a Family Caregiver would be
discharged from PCAFC when VA
determines the Family Caregiver is not
able to carry out specific personal care
services, core competencies, or
additional care requirements. Current
§ 71.45(b)(2)(ii) provides the date of
discharge in cases of discharge based on
death or institutionalization of the
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Family Caregiver. As explained below,
VA proposes to reorganize and revise
the language in current § 71.45(b)(2)(ii)
and to include in this paragraph VA’s
proposed discharge date that would
apply to the additional basis for
discharge in proposed
§ 71.45(b)(2)(i)(B).
First, VA proposes to keep the title of
current paragraph (b)(2)(ii) (that is,
‘‘Discharge date’’), but move the
introductory sentence in current
paragraph (b)(2)(ii) to a new paragraph
(A) and clarify that it applies to
discharges based on proposed paragraph
(b)(2)(i)(A) (that is, discharges due to the
death or institutionalization of the
Family Caregiver). Thus, proposed
(b)(2)(ii)(A) would state that in the case
of discharge based on paragraph
(b)(2)(i)(A) of § 71.45, the date of
discharge will be the earliest of the
following dates, as applicable. In
proposed paragraphs (b)(2)(ii)(A)(1)
through (3), VA would add the existing
discharge date provisions in the case of
death or institutionalization of the
Family Caregiver found in current
paragraphs (b)(2)(ii)(A) through (C). VA
proposes to maintain that language, but
make one change, as explained below.
Current § 71.45(b)(2)(ii)(B) states that
the date of discharge may be 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. As explained
above, VA proposes to move this
language to proposed paragraph
(b)(2)(ii)(A)(2). Consistent with, and for
the same reasons provided in VA’s
discussion above regarding the
proposed changes to similar language in
§ 71.45(b)(1)(ii)(B)(2), VA proposes to
revise this language in its new
paragraph (proposed paragraph
(b)(2)(ii)(A)(2)) to replace ‘‘if it is
determined’’ with ‘‘if it is known on
such date’’.
Second, because VA is proposing to
move language in current paragraph
(b)(2)(ii)(B) to paragraph (b)(2)(ii)(A)(2),
VA would add new proposed paragraph
(b)(2)(ii)(B) to refer to the discharge date
applicable to the additional proposed
discharge basis in proposed paragraph
(b)(2)(i)(B) (that is, discharge based on a
VA determination that the Family
Caregiver is not able to carry out
specific personal care services, core
competencies, or additional care
requirements). Proposed new paragraph
(b)(2)(ii)(B) would state that in the case
of discharge based on proposed
paragraph (b)(2)(i)(B), the date of
discharge would be provided in VA’s
final notice of such discharge to the
eligible veteran and Family Caregiver,
and that such date would be no earlier
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than 60 days after VA provides
advanced notice of its findings to the
eligible veteran and Family Caregiver
that the Family Caregiver is not able to
carry out specific personal care services,
core competencies, or additional care
requirements. If discharged under the
proposed new basis in
§ 71.45(b)(2)(i)(B), Family Caregivers
would have three months of continued
benefits after the date of discharge, as
explained below.
The proposed 60-day advanced notice
period would allow a period of time
between the date VA provides notice of
its findings that the Family Caregiver is
not able to carry out specific personal
care services, core competencies, or
additional care requirements, and the
date of discharge. Such time may allow
for further training or evaluation of the
Family Caregiver’s abilities, as
applicable. If the Family Caregiver is
able to demonstrate the ability to carry
out specific personal care services, core
competencies, or additional care
requirements prior to VA issuing final
notice of discharge, this would obviate
VA’s issuance of a final notice. A 60-day
advanced notice period would also be
consistent with advanced notice periods
provided in cases of revocation for
noncompliance under § 71.45(a)(2)(iii)
and discharge under § 71.45(b)(1)(ii)(A).
Because VA is proposing to move
language in current paragraph
(b)(2)(ii)(C) to proposed paragraph
(b)(2)(ii)(A)(3), VA would remove
paragraph (C) from § 71.45(b)(2)(ii).
Current § 71.45(b)(2)(iii) addresses
continuation of benefits for Family
Caregivers who are discharged pursuant
to paragraph (b)(2) based on
institutionalization of the Family
Caregiver. In such cases, benefits
continue for 90 days after the date of
discharge. VA proposes to revise ‘‘90
days’’ to ‘‘three months’’ in this
paragraph consistent with VA’s
previous explanation about this change.
VA would further revise this paragraph
to address continuation of benefits with
respect to the new basis for discharge in
proposed § 71.45(b)(2)(i)(B) (that is, if
VA determines the Family Caregiver is
not able to carry out specific personal
care services, core competencies, or
additional care requirements), so that
those discharged on such basis would
also have three months of continued
benefits.
Providing three months of continued
benefits after the date of discharge
would be consistent with VA’s current
and proposed regulations regarding
continuation of benefits when VA
initiates discharges. For example, this is
consistent with the continued benefits
for those discharged under current
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paragraph (b)(2)(i) and proposed
§ 71.45(b)(2)(i)(A) based on
institutionalization of the Family
Caregiver. This would also be consistent
with current § 71.45(b)(1)(iii) and
proposed § 71.45(b)(1)(iii)(A) based on
improvements in an eligible veteran’s
condition, among other reasons under
§ 71.45(b)(1)(i)(A). VA believes there are
parallels between a Family Caregiver’s
discharge when there is a change in the
eligible veteran’s functioning under
paragraph (b)(1)(i)(A) (for example, due
to improvement in the eligible veteran’s
condition) and this new proposed
discharge basis due to changes in the
Family Caregiver’s ability to carry out
specific personal care services, core
competencies, or additional care
requirements needed by the eligible
veteran. In both cases, the discharge of
the Family Caregiver is not and would
not be due to any intentional or willful
action but rather a change in an
individual’s functioning. This change
may be due to a change in an eligible
veteran’s care needs, a change in the
abilities of the Family Caregiver, or
both. VA therefore proposes to apply the
same three-month period of continued
benefits for both bases. Thus, in
§ 71.45(b)(2)(iii), VA proposes to replace
‘‘paragraph (b)(2)(ii)(B) or (C)’’ with
‘‘paragraphs (b)(2)(ii)(A)(2) or (3) or
(b)(2)(ii)(B)’’ to refer to discharge based
on institutionalization of the Family
Caregiver and VA’s new proposed basis
of discharge based on a VA
determination that the Family Caregiver
is not able to carry out specific personal
care services, core competencies, or
additional care requirements.
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d. Conforming Revisions to § 71.45(b)(3)
and Proposed Opportunity for Family
Caregiver To Request Rescission
Current § 71.45(b)(3) describes
conditions for discharge of the Family
Caregiver by request of the Family
Caregiver, and current paragraph (i)
addresses requests for discharge by the
Family Caregiver. As VA proposes to
address requests of the Family Caregiver
for discharge due to DV or IPV in
proposed paragraphs (b)(1)(i)(C),
(b)(1)(ii)(C), and (b)(1)(iii)(B), instead of
paragraph (b)(3), VA would add a note
to paragraph (b)(3)(i) to explain that
requests of the Family Caregiver for
discharge due to DV or IPV perpetrated
by the eligible veteran against the
Family Caregiver will be considered
under paragraph (b)(1) of § 71.45. This
would make clear to the public that, if
changes to the regulations are adopted
as proposed, such requests would be
considered under paragraph (b)(1) and
not paragraph (b)(3).
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Current § 71.45(b)(3)(iii) sets forth
requirements for the continuation of
caregiver benefits for discharges under
paragraph (b)(3). More specifically,
current § 71.45(b)(3)(iii)(A) explains that
except as provided in current paragraph
(b)(3)(iii)(B) of § 71.45, caregiver
benefits will continue for 30 days after
the date of discharge, while current
paragraph (b)(3)(iii)(B) addresses the
continuation of caregiver benefits in
instances of a Family Caregiver’s request
for discharge due to DV or IPV when
certain documentation is established. As
discussed above, VA is proposing to
move the language in current
§ 71.45(b)(3)(iii)(B)(1) through (3) to
proposed paragraphs (b)(1)(iii)(B)(1)
through (3). Therefore, VA proposes to
remove paragraphs (A) and (B) of
§ 71.45(b)(3)(iii) and revise paragraph
(b)(3)(iii) to state that if the Family
Caregiver requests discharge under this
paragraph, caregiver benefits would
continue for one month after the date of
discharge. This would not be expected
to be a substantive change because
Family Caregivers discharged pursuant
to § 71.45(b)(3) would continue to
receive the same period of continued
benefits—whether under proposed
paragraph (b)(3)(iii) or proposed
paragraphs (b)(1)(iii)(B). In addition, VA
proposes to change ‘‘30 days’’ to ‘‘one
month’’ consistent with VA’s other
proposed changes discussed above.
VA proposes to add new paragraph
(iv) to paragraph (b)(3) entitled,
‘‘Recission’’, to explain that VA will
allow the Family Caregiver to rescind
their request for discharge and be
reinstated if the rescission is made
within 30 days of the date of discharge.
Proposed paragraph (b)(3)(iv) would
further state that if the Family Caregiver
expresses a desire to be reinstated more
than 30 days from the date of discharge,
a new joint application would be
required, and that this ability to rescind
requests for discharge would not apply
to requests for discharge under
paragraph (b)(1)(i)(C) of § 71.45. If
adopted as proposed, this provision
would be consistent with how VA
handles and allows rescission of
discharge requests from eligible veterans
or their surrogates pursuant to current
§ 71.45(b)(4)(iii).
VA has found that it is not uncommon
for an eligible veteran to request
discharge of their Family Caregiver as a
result of a disagreement or argument.
Additionally, it is not uncommon for
the eligible veteran to rescind such
request a few days later. See 85 FR
13402 (March 6, 2020). The same
situation could also result when the
Family Caregiver requests discharge and
then rescinds the request. VA proposes
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97447
to provide the same 30-day period that
is given to eligible veterans to Family
Caregivers to allow for rescission of
such a request.
However, VA would also include
language in proposed § 71.45(b)(3)(iv) to
state that this paragraph would not
apply to requests for discharge under
proposed paragraph (b)(1)(i)(C). As
explained above, proposed paragraph
(b)(1)(i)(C) would address Family
Caregiver requests for discharge due to
DV or IPV perpetrated by the eligible
veteran against the Family Caregiver.
VA would not allow rescission of such
requests under proposed paragraph
(b)(3)(iv). This is because a request for
discharge by the Family Caregiver due
to DV or IPV would be considered an
acknowledgement by the Family
Caregiver that a safety concern exists,
and such safety concern could impact
the Family Caregiver’s ability and/or
willingness to provide the required
personal care services to the eligible
veteran, as well as the eligible veteran’s
willingness to receive personal care
services from the Family Caregiver.
Allowing the recission of such request
could perpetuate a situation where
either or both the eligible veteran and
Family Caregiver is at risk of harm.
Additionally, in some cases when DV or
IPV is known to exist, recission of such
request could be due to coercion or
other forms of control of the Family
Caregiver by the eligible veteran.
Although proposed § 71.45(b)(3)(iv)
would not allow a Family Caregiver to
rescind a discharge request made under
proposed paragraph (b)(1)(i)(C), the
eligible veteran and Family Caregiver
could re-apply for PCAFC by submitting
a new joint application, at which point
VA would consider their eligibility for
PCAFC.
e. Proposed Revisions to Discharge of
the Family Caregiver by Request of the
Eligible Veteran or Eligible Veteran’s
Surrogate
Current § 71.45(b)(4) addresses
discharge of the Family Caregiver if an
eligible veteran or their surrogate
requests discharge of the Family
Caregiver. Current § 71.45(b)(4)(iv)
explains that caregiver benefits will
continue for 30 days after the date of
discharge, which is the present or future
date of discharge provided by the
eligible veteran or eligible veteran’s
surrogate according to § 71.45(b)(4)(ii).
VA proposes to replace the reference
to ‘‘30 days’’ with ‘‘one month’’ in
§ 71.45(b)(4)(iv) consistent with other
proposed changes in § 71.45. VA’s
rationale for this change is explained in
more detail above. VA also proposes to
add language to § 71.45(b)(4)(iv) to
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allow for three months of continued
benefits when DV or IPV perpetrated by
the eligible veteran against the Family
Caregiver can be established based on
the requirements in proposed paragraph
(b)(1)(iii)(B)(1) through (3).
In the instance that DV or IPV is being
perpetrated against the Family Caregiver
by the eligible veteran and either one
requests discharge, VA believes the
same period of continued caregiver
benefits should apply—regardless of
whether the discharge is requested by
the Family Caregiver under proposed
paragraph (b)(1)(i)(C) or by the eligible
veteran under paragraph (b)(4). If any of
the requirements in proposed paragraph
(b)(1)(iii)(B)(1) through (3) can be
established, VA believes there should be
a three-month period of extended
benefits for the Family Caregiver after
the date of discharge when the eligible
veteran requests the discharge. VA
believes this change would provide
consistency across discharge bases.
To maintain consistency with
proposed § 71.45(b)(1)(iii)(B), VA
proposes to require the same
information as is required under such
proposed paragraph to establish that DV
or IPV has occurred, when determining
whether three months of continued
caregiver benefits after the date of
discharge should be provided to the
Family Caregiver pursuant to proposed
§ 71.45(b)(4)(iv) when the eligible
veteran or their surrogate requests
discharge of the Family Caregiver. Thus,
this would include by reference, (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.
This proposed change to reference the
requirements in proposed
§ 71.45(b)(1)(iii)(B)(1) through (3) under
proposed § 71.45(b)(4)(iv) would ensure
that a Family Caregiver that is
discharged due to DV or IPV perpetrated
by an eligible veteran against the Family
Caregiver is given the same access to
continued benefits when necessary
documentation/requirements are met
whether it is the Family Caregiver or the
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eligible veteran (or their surrogate) that
requests discharge from PCAFC.
Thus, as proposed, § 71.45(b)(4)(iv)
would state that caregiver benefits will
continue for one month after the date of
discharge. It would also state that
notwithstanding the previous sentence,
caregiver benefits will continue for three
months after the date of discharge when
any of the requirements in paragraph
(b)(1)(iii)(B)(1) through (3) can be
established.
3. Multiple Bases for Revocation or
Discharge
Paragraph (f) of § 71.45 describes how
VA addresses instances in which there
are multiple bases for revocation or
discharge. Current § 71.45(f) states that
in the instance that a Family Caregiver
may be both discharged pursuant to any
of the criteria in paragraph (b) of § 71.45
and have his or her designation revoked
pursuant to any of the criteria in
paragraph (a) of § 71.45, the Family
Caregiver’s designation will be revoked
pursuant to paragraph (a). Further, it
states that 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 § 71.45, the
designation of the Family Caregiver will
be revoked pursuant to paragraph
(a)(1)(i), and that in the instance that the
designation of a Family Caregiver may
be revoked under paragraphs (a)(1)(ii)
and (iii) of § 71.45, the designation of
the Family Caregiver will be revoked
pursuant to paragraph (a)(1)(iii). Finally,
paragraph (f) states that in the instance
that a Family Caregiver may be
discharged under paragraph (b)(1), (2),
(3), or (4) of § 71.45, the Family
Caregiver will be discharged pursuant to
the paragraph most favorable to the
Family Caregiver.
VA proposes to revise § 71.45(f) to
require that in instances where multiple
bases exist, VA would apply the basis of
revocation or discharge with the earliest
effective date. VA would no longer
necessarily effectuate a revocation over
a discharge and would always apply the
basis with the earliest effective date,
whether the basis falls under discharge
or revocation. As proposed, § 71.45(f)
would state that in the instance a
Family Caregiver may have their
designation revoked or be discharged
pursuant to one or more of the criteria
in paragraphs (a) or (b) of § 71.45,
respectively, the Family Caregiver’s
designation will be revoked or the
Family Caregiver will be discharged, as
applicable, pursuant to the basis that
would result in the earliest date of
revocation or discharge.
VA proposes this change for several
reasons. First, once a basis for discharge
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or revocation exists, VA does not
believe it is practical or appropriate to
delay the discharge or revocation of a
Family Caregiver’s designation simply
because an additional basis exists. For
example, in the event a Family
Caregiver submits a request for
discharge on July 1 that is to take effect
July 21, and the eligible veteran dies on
July 15, under proposed § 71.45(f), the
date of discharge would be July 15. VA
does not believe it would be reasonable
to maintain the Family Caregiver’s
designation after the death of the
eligible veteran. Second, it would
simplify the existing language in
§ 71.45(f) as it relates to revocation and
discharge by creating a consistent rule
that applies to all situations where
multiple bases exist thereby accounting
for existing and newly proposed bases
for revocation and discharge, including
those proposed in this rulemaking.
Finally, VA’s proposal would remove
the standard of ‘‘most favorable to the
Family Caregiver’’, which could be
subjective and difficult to apply, and
would replace it with a more
straightforward rule that requires VA to
apply the ‘‘basis that would result in the
earliest date of revocation or discharge’’,
leaving less discretion to VA.
VA acknowledges that its proposed
changes to paragraph (f) would change
VA’s current practice as it relates to
discharges. The last sentence of current
paragraph (f) states that 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. In proposing this
language, VA explained that it would
address the infrequent instances where
multiple requests for discharge are
received by VA, and one basis is more
favorable to the Family Caregiver. 85 FR
13404 (March 6, 2020). VA proposes to
modify this provision and to no longer
apply this rule because there are limited
instances in which multiple discharge
bases exist. When these instances have
occurred, they have generally involved
a discharge that is requested due to DV
or IPV. To address these specific
scenarios, VA has proposed changes to
§ 71.45(b)(4)(iv) and (b)(1)(iii)(B), as
discussed above, to allow Family
Caregivers to receive three months of
continued benefits if DV or IPV is
established (and the applicable
requirements are met) regardless of
whether discharge is requested by the
eligible veteran or their surrogate under
§ 71.45(b)(4)(i) or by the Family
Caregiver under proposed
§ 71.45(b)(1)(i)(C). With these
amendments, if the eligible veteran and
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Family Caregiver both submit requests
to VA for the Family Caregiver to be
discharged on July 7, the same period of
continued benefits would apply on the
basis of either discharge request, such
that VA would no longer be faced with
determining which discharge basis is
‘‘most favorable to the Family
Caregiver’’ and thereby limiting the
impact of removing this subjective
standard, if proposed changes to
§ 71.45(f) are adopted in a final rule. VA
expects the proposed revisions to
§ 71.45(f) would provide clarity about
which basis for revocation or discharge
applies when weighing multiple bases.
VA solicits comments from the public
on all aspects of this proposed rule. In
particular, VA asks the following
question on specific aspects of this
proposal.
1. Among other changes to § 71.45,
VA has proposed adding as a new basis
for discharge, a VA determination that
unmitigated personal safety issues exist
for the Family Caregiver due to DV or
IPV by the eligible veteran against the
Family Caregiver. What models or
standards could VA use to determine
whether discharge from PCAFC may be
appropriate due to DV or IPV?
I. 38 CFR 71.55 Home Visits and
Emergency Declarations
Through an IFR published in the FR
on June 5, 2020, VA added a new rule
under § 71.60 to provide flexibility in
the modality by which VA conducted
PCAFC home visits for the duration of
the National Emergency related to
Coronavirus Disease-2019 (COVID–19)
declared by the President on March 13,
2020 (COVID–19 National Emergency).
85 FR 34522 (June 5, 2020). Section
71.60 states that notwithstanding the
requirements in part 71, for the duration
of the National Emergency related to
COVID–19 declared by the President on
March 13, 2020, VA may complete visits
to the eligible veteran’s home under part
71 through videoconference or other
available telehealth modalities. This
change was intended to help reduce the
risk of exposure to and transmission of
COVID–19 to individuals involved in
PCAFC, as well as members of their
households and others with whom they
came into contact. 85 FR 34523 (June 5,
2020). This was especially important
given the vulnerable population of
veterans served by PCAFC. Id. As the
COVID–19 National Emergency has
come to an end, § 71.60 is no longer
operable.
The COVID–19 National Emergency
demonstrated the importance of
mitigating and reducing vulnerabilities
for those applying for or participating in
PCAFC as well as VA staff in the event
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of future emergencies. In the case of inperson home visits, the need for these
alternative measures is not limited to
emergencies involving public health
risks, like the COVID–19 National
Emergency. Natural disasters and other
weather-related emergencies can also
have a direct impact on VA’s ability to
safely conduct in-home visits. When
emergency conditions are such that
travel and/or entry into a person’s home
would expose individuals to avoidable
safety or public health risks, having
alternative options to complete a home
visit is vital.
VA therefore proposes to provide
flexibility for VA to complete home
visits under part 71 through telehealth
in cases where a Federal, State, or local
authority has declared an emergency
involving certain safety or public health
risks. In these situations, VA would
utilize this flexibility to complete home
visits required under part 71 when
needed to help protect the health and
safety of VA staff and individuals
applying for or participating in a
program under part 71. This would
include home visits required under
§§ 71.25(e), 71.30, and 71.40(b)(2).
VA proposes to add § 71.55 to part 71
with the heading, ‘‘Home visits and
emergency declarations.’’ Proposed
§ 71.55 would state that
notwithstanding the requirements in
part 71, for the duration of and in the
locations covered by an emergency
declaration, VA may complete home
visits under part 71 through telehealth
as defined in 38 CFR 17.417(a)(4). It
would also state that for purposes of this
new proposed section, emergency
declaration would refer to any
emergency, declared by a Federal, State,
or local authority, involving a safety or
public health risk that impacts inperson interaction between VA staff and
individuals applying for or participating
in a program under part 71, including
but not limited to: (a) natural disasters
and weather-related emergencies when
travel to, from, or within, or time spent
in the affected area would pose a safety
risk; and (b) emergencies related to
influenza, coronavirus, respiratory
illness, or other contagions that pose a
public health risk.
As proposed, § 71.55 would align
with the text in § 71.60 with some
changes and additions. First, § 71.60
refers to ‘‘videoconference or other
available telehealth modalities.’’
However, in proposed § 71.55 VA would
refer to telehealth as that term is defined
in 38 CFR 17.417(a)(4). Per
§ 17.417(a)(4), the term telehealth means
‘‘the use of electronic information or
telecommunications technologies to
support clinical health care, patient and
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97449
professional health-related education,
public health, and health
administration.’’ The phrase ‘‘telehealth
modalities’’, as used in § 71.60, could be
interpreted as applying only to
traditional telehealth modalities, such
as video, store-and-forward, and remote
patient monitoring. So as not to suggest
that § 71.55 would authorize use of only
those specific modalities, proposed
§ 71.55 would not use that term and
would instead reference the broader
definition of telehealth as it is defined
in § 17.417(a)(4). Although proposed
§ 71.55 would not specifically reference
‘‘videoconference’’ as § 71.60 does, VA
believes that through policy, it could
establish an expectation that
videoconference be the primary mode of
telehealth used for completing home
visits if this proposal is adopted in a
final rule. However, in cases where
videoconference is not possible,
proposed § 71.55 would provide VA
with flexibility to use other means of
telehealth, such as telephone, to
complete home visits under this section.
Under proposed § 71.55, VA would
also define the term emergency
declaration for purposes of this section.
As proposed, emergency declaration
would refer, in part, to any emergency
declared by a Federal, State, or local
authority. This differs from § 71.60
which only applied to the COVID–19
National Emergency even though State
and local authorities also issued
emergency declarations related to
COVID–19.23 When VA published the
IFR that established § 71.60, the COVID–
19 National Emergency was applicable
nationwide, such that there was no need
to reference other emergency
declarations and orders related to
COVID–19. However, as VA seeks to
provide flexibility in the case of
emergency declarations that may be
more limited in scope than at a national
level, VA believes it is prudent for
proposed § 71.55 to encompass any
Federal, State, or local emergency
declaration, so long as it involves a
safety or public health risk as described
in this proposal. VA also includes the
phrase ‘‘in the locations covered by an
emergency declaration’’ in the first
sentence of proposed § 71.55 to account
for emergencies with localized impacts
23 See, for example, Executive Order 2023–01
(COVID–19 Executive Order No. 116), State of
Illinois (Jan. 6, 2023), available at https://
www.illinois.gov/government/executive-orders/
executive-order.executive-order-number01.2023.html (last visited Feb. 8, 2024) and Orange
County, Florida Emergency Executive Order No.
2021–36 Regarding COVID–19, Orange County,
Florida (Oct. 20, 2021), available at https://
www.orangecountyfl.net/portals/0/library/
Emergency-Safety/docs/coronavirus/202136%20EEO-CMcert.pdf (last visited Feb. 8, 2024).
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(for instance, State-wide, or in one or
two counties) as well as those on a
larger scale (for example, nationwide).
This language would make clear that the
flexibility under proposed § 71.55
would apply only to those locations
covered by the emergency declaration.
Additionally, proposed § 71.55 would
state that the flexibility would be
authorized ‘‘for the duration of’’ the
emergency declaration, phrasing which
in § 71.60 describes the extent of the
flexibility authorized.
Although proposed § 71.55 uses the
term emergency declaration, the
terminology used within emergency
declarations may vary. For example,
Locality A may ‘‘promulgate’’ or
‘‘declare’’ a state of emergency while
Locality B may ‘‘order’’ actions in
response to an emergency.24
Additionally, Locality C may use the
phrase ‘‘state of emergency’’ while
Locality D may use ‘‘public
emergency’’.25 To be inclusive of the
various terms used in emergency
declarations of Federal, State, and local
authorities involving specified safety or
public health risks, if proposed § 71.55
were adopted in a final rule, VA would
expect to interpret and apply the term
emergency declaration to encompass
terms such as public health emergency,
health emergency, and disaster
emergency, and VA would expect to
interpret and apply the term declared to
encompass terms such as orders,
announcements, proclamations, and
pronouncements.
If adopted, VA intends to leverage the
flexibilities proposed in § 71.55
specifically during emergencies
involving a safety or public health risk
that impacts in-person interaction
24 Compare, for example, State of Florida, Office
of the Governor, Executive Order No. 23–171,
Emergency Management—Invest 93L (Aug. 26,
2023), available at https://www.flgov.com/wpcontent/uploads/2023/08/EO-23-171-1.pdf (last
visited Feb. 8, 2024) (in which a ‘‘state of
emergency’’ was ‘‘declared’’) with The State of
Georgia, Executive Order 06.22.21.01 (June 22,
2021), available at https://gov.georgia.gov/
document/2021-executive-order/06222101/
download (last visited Feb. 8, 2024) (listing various
matters as ‘‘ordered’’ and referring to a ‘‘Public
Health State of Emergency’’).
25 Compare, for example, State of Maine,
Proclamation to Renew the State of Civil Emergency
(June 11, 2021), available at https://www.maine.gov/
governor/mills/sites/maine.gov.governor.mills/files/
inline-files/Proclamation
%20to%20Renew%20the%20State%20of
%20Civil%20Emergency%20-%20
June%2011%202021.pdf (last visited Feb. 8, 2024)
(declaring a ‘‘state of civil emergency’’); with
Government of the District of Columbia, Mayor’s
Order No. 2022–043 (Mar. 17, 2022), available at
https://coronavirus.dc.gov/sites/default/files/dc/
sites/coronavirus/page_content/attachments/
2022043-Extension-of-Public-Emergency-forCOVID19.pdf (last visited Feb. 8, 2024) (extending
a ‘‘public emergency’’).
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between VA staff and individuals
participating in a program under part
71. In proposed paragraphs (a) and (b)
of § 71.55, VA would provide examples
of emergencies that involve the types of
safety and public health risks that may
warrant use of the flexibility afforded by
proposed § 71.55, such as natural
disasters and weather-related
emergencies, and emergencies related to
contagions such as the coronavirus or
other respiratory illness. However,
under proposed § 71.55, the safety or
public health risk must also impact inperson interaction between VA staff and
individuals applying for or participating
in a program under part 71. In this
regard, an emergency declaration by the
Federal government related to a national
supply chain shortage for baby food, for
example, would not alone authorize VA
to complete part 71 home visits through
telehealth under proposed § 71.55, as
the risks associated with such an
emergency would not impact in-person
interaction between VA staff and
individuals applying for or participating
in a program under part 71 who
participate in in-person home visits. On
the contrary, an emergency declaration
issued by a State or locality because of
a hurricane that impacts roadways and
the ability to travel safely could involve
a safety or public health risk that
impacts in-person interaction between
VA staff and individuals applying for or
participating in a program under part 71
who engage in in-person home visits.
For the duration of and in the locations
covered by such an emergency
declaration, proposed § 71.55 would
allow VA to complete home visits
through telehealth.
J. Other Technical Edits
VA proposes to make several
technical edits to remove and replace
gender specific language throughout
part 71 with gender-neutral language.
These proposed revisions have no
substantive impact as they are
grammatical and technical corrections
that would conform to VA’s goal to
ensure its regulations are gender neutral
in alignment with Executive Order
13988 of January 20, 2021, Preventing
and Combating Discrimination on the
Basis of Gender Identity or Sexual
Orientation. See 86 FR 7023 (January 25,
2021).
In § 71.15 VA proposes to revise the
definition of personal care services to
replace the language ‘‘his or her’’ with
the word ‘‘their’’. In § 71.20
introductory text, and paragraphs (a),
(b), and (c), VA proposes to remove the
language ‘‘he or she’’ and add in its
place, the language ‘‘the veteran or
servicemember’’. In § 71.45(b)(3)(i), VA
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Sfmt 4702
proposes to remove the language ‘‘his or
her’’ and add, in its place, the word
‘‘their’’.
Other technical edits include a
proposed amendment to § 71.20(a)(2), to
add the word ‘‘space’’ to the list of the
branches of the U.S. Armed Forces to
account for inclusion of the Space Force
and proposed amendment to § 71.25 to
add the associated information
collection control number to the end of
the section. The Office of Management
and Budget (OMB) previously approved
the information collection associated
with § 71.25 under control number
2900–0768 (Program of Comprehensive
Assistance for Family Caregivers
(PCAFC), VA Form 10–10CG).
III. Executive Orders 12866, 13563 and
14094
Executive Order 12866 (Regulatory
Planning and Review) directs agencies
to assess the costs and benefits of
available regulatory alternatives and,
when regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety effects, and other advantages;
distributive impacts; and equity).
Executive Order 13563 (Improving
Regulation and Regulatory Review)
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility. Executive Order
14094 (Executive Order on Modernizing
Regulatory Review) supplements and
reaffirms the principles, structures, and
definitions governing contemporary
regulatory review established in
Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review),
and Executive Order 13563 of January
18, 2011 (Improving Regulation and
Regulatory Review). The Office of
Information and Regulatory Affairs has
determined that this rule is a significant
regulatory action under Executive Order
12866, Section 3(f)(1), as amended by
Executive Order 14094. The Regulatory
Impact Analysis associated with this
rulemaking can be found as a
supporting document at
www.regulations.gov.
IV. 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 (5 U.S.C. 601–612). The
factual basis for this certification is
because this rule proposes changes to
eligibility requirements in and other
updates to 38 CFR part 71, under which
VA provides assistance and support
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services through PCAFC and PGCSS for
certain caregivers of eligible veterans
and covered veterans. The beneficiaries
of PCAFC and PGCSS are not small
entities, and small entities would not be
impacted by this proposed rule.
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.
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V. 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.
VI. Paperwork Reduction Act
This proposed rule includes
provisions constituting a revision to a
current/valid collection of information
under the Paperwork Reduction Act
(PRA) of 1995 (44 U.S.C. 3501–3521)
that requires approval by OMB.
Accordingly, under 44 U.S.C. 3507(d),
VA has submitted a copy of this
rulemaking action to OMB for review
and approval.
OMB assigns control numbers to
collections of information it approves.
VA may not conduct or sponsor, and a
person is not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number. If OMB does not approve the
collection of information as requested,
VA will immediately remove the
provisions containing the collection of
information or take such other action as
is directed by OMB.
Comments on the revised collection of
information contained in this
rulemaking should be submitted
through www.regulations.gov.
Comments should be sent within 60
days of publication of this rulemaking.
The collection of information associated
with this rulemaking can be viewed at:
www.reginfo.gov/public/do/PRAMain.
OMB is required to make a decision
concerning the collection of information
contained in this rulemaking between
30 and 60 days after publication of this
rulemaking in the Federal Register.
Therefore, a comment to OMB is best
assured of having its full effect if OMB
receives it within 30 days of
publication. This does not affect the
deadline for the public to comment on
the provisions of this rulemaking.
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The Department considers comments
by the public on a new collection of
information in—
• Evaluating whether the revised
collection of information is necessary
for the proper performance of the
functions of VA, including whether the
information will have practical utility;
• Evaluating the accuracy of VA’s
estimate of the burden of the revised
collection of information, including the
validity of the methodology and
assumptions used;
• Enhancing the quality, usefulness,
and clarity of the information to be
collected; and
• Minimizing the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology
(for example, permitting electronic
submission of responses).
The collections of information
associated with this rulemaking
contained in 38 CFR 71.25(a), 71.30(c),
and 71.45 are described immediately
following this paragraph, under their
respective titles. This revised
information collection has a current
PRA clearance under OMB control
number 2900–0768.
Title: Program of Comprehensive
Assistance for Family Caregivers
(PCAFC) (VA Form 10–10CG).
OMB Control No: 2900–0768.
CFR Provision: 38 CFR 71.25(a).
• Summary of collection of
information: The revised collection of
information in proposed 38 CFR
71.25(a) would require veterans,
servicemembers and caregivers to
submit a new joint application to
participate in PCAFC and receive
benefits. VA is proposing changes to
PCAFC eligibility requirements. These
changes are expected to result in an
influx of new applications in the initial
year of implementation, including from
applicants who have previously applied
and been denied. The number of
applications submitted to VA is
expected to fall back to more typical
numbers after the initial influx.
• Description of need for information
and proposed use of information: VA
will use the information collected to
conduct an assessment of program
eligibility for applicants.
• Description of likely respondents:
Veterans, servicemembers, and
caregivers.
• Estimated number of respondents:
140,671 annually.
• Estimated frequency of responses:
Once per year.
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97451
• Estimated average burden per
response: 15 minutes.
• Estimated total annual reporting
and recordkeeping burden: 35,168
hours.
Title: Program of Comprehensive
Assistance for Family Caregivers
(PCAFC) (Requests for Reassessment).
OMB Control No: 2900–0768.
CFR Provision: 38 CFR 71.30(c).
• Summary of collection of
information: The revised collection of
information in proposed 38 CFR
71.30(c) would set forth a process for
eligible veterans and Primary Family
Caregivers to request reassessment for
continued eligibility.
• Description of need for information
and proposed use of information: VA
will use the information collected to
initiate a reassessment under 38 CFR
71.30 on behalf of the requester. While
a written request is not required, if a
written request is received, such written
request may support an earlier effective
date for any increased benefits for
which the Family Caregiver may be
eligible based on the reassessment.
• Description of likely respondents:
Veterans, servicemembers, and
caregivers.
• Estimated number of respondents:
2,800 annually.
• Estimated frequency of responses:
Once per year.
• Estimated average burden per
response: 3 minutes.
• Estimated total annual reporting
and recordkeeping burden: 140 hours.
Title: Program of Comprehensive
Assistance for Family Caregivers
(PCAFC) (Requests for Discharge).
OMB Control No: 2900–0768.
CFR Provision: 38 CFR 71.45.
• Summary of collection of
information: The revised collection of
information in proposed 38 CFR 71.45
requires veterans, servicemembers and
caregivers to submit requests for
discharge verbally or in writing to
PCAFC. If such request for discharge is
due to cases of DV or IPV by the eligible
veteran against the Family Caregiver,
the provision of a protective order,
police report, or documentation by a
treating provider of disclosure of DV or
IPV may be provided to support the
provision of extended benefits to the
Family Caregiver upon the discharge.
• Description of need for information
and proposed use of information: VA
will use the information collected to
determine the date of discharge for a
caregiver.
• Description of likely respondents:
Veterans, servicemembers, and
caregivers.
• Estimated number of respondents:
1,710 annually.
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• Estimated frequency of responses:
Once per year.
• Estimated average burden per
response: 5 minutes.
• Estimated total annual reporting
and recordkeeping burden: 143 hours.
Total Estimated cost to respondents
per year: VA estimates the total annual
cost to respondents to be $1,115,997.48
(35,451 burden hours × $31.48 per
hour).
*To estimate the total information
collection burden cost, VA used the
May 2023 Bureau of Labor Statistics
(BLS) mean hourly wage code—‘‘00–
0000 All Occupations,’’ available at
https://www.bls.gov/oes/2023/may/oes_
nat.htm.
The time estimate for the Federal
Government to process VA Form 10–
10CG is 15 minutes. The time estimate
for the Federal Government to process
requests for reassessment is 3 minutes
and requests for discharge is 5 minutes.
This equates to a time estimate of 35,451
hours. The annual cost to the Federal
Government is estimated at
$1,769,004.90 (35,451 hours × $49.90
per hour, based on the Atlanta 2024
hourly rate table for a grade 12, step 5
employee).
The annual total cost to the public
and the government is expected to be
$2,885,002.38.
List of Subjects in 38 CFR Part 71
Administrative practice and
procedure, Claims, Health care, Health
facilities, Health professions, Mental
health programs, Public assistance
programs, Travel and transportation
expenses, Veterans.
Signing Authority
Denis McDonough, Secretary of
Veterans Affairs, signed and approved
this document on November 15, 2024,
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.
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Consuela Benjamin,
Regulation Development Coordinator Office
of Regulation Policy & Management, Office
of General Counsel Department of Veterans
Affairs.
For the reasons stated in the
preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part
71 as set forth below:
PART 71—CAREGIVERS BENEFITS
AND CERTAIN MEDICAL BENEFITS
OFFERED TO FAMILY MEMBERS OF
VETERANS
1. The authority citation for part 71
continues to read as follows:
■
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Authority: 38 U.S.C. 501, 1720G, unless
otherwise noted.
*
*
§ 71.10
*
*
*
[Amended]
2. In § 71.10, amend paragraph (b) by
removing the language ‘‘as that term is
defined in 38 U.S.C. 101(20)’’.
■ 3. Amend § 71.15 by:
■ a. Adding definitions for ‘‘Activity of
daily living or activities of daily living
(ADL)’’, ‘‘State’’, and ‘‘Typically
requires’’ in alphabetical order.
■ b. Removing the definitions of
‘‘Inability to perform an activity of daily
living (ADL)’’, ‘‘Need for supervision,
protection, or instruction’’, and ‘‘Unable
to self-sustain in the community’’.
■ c. Revising the definitions of
‘‘Institutionalization’’, ‘‘Joint
application’’, ‘‘Legacy applicant’’,
‘‘Legacy participant’’, and ‘‘Serious
injury’’.
■ d. In the definition of ‘‘Personal care
services’’, removing the language ‘‘his or
her’’ and adding, in its place, the
language ‘‘their’’.
The revisions and additions read as
follows:
■
§ 71.15
Definitions.
Activity of daily living or activities of
daily living (ADL) means any of the
following functions or tasks for self-care
usually performed in the normal course
of a day:
(1) Dressing or undressing;
(2) Bathing;
(3) Grooming;
(4) Adjusting any special prosthetic or
orthopedic appliance (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) Eating; or
(7) Mobility.
*
*
*
*
*
Institutionalization means being
institutionalized in a setting outside the
home residence to include a hospital,
rehabilitation facility, jail, prison,
medical foster home, nursing home, or
other similar setting as determined by
VA.
*
*
*
*
*
Joint application means an
application for the Program of
Comprehensive Assistance for Family
Caregivers in such form and manner as
the Secretary of Veterans Affairs
considers appropriate.
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
October 1, 2020 and for whom a Family
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Caregiver(s) is approved and designated
on or after October 1, 2020 so long as
the Primary Family Caregiver approved
and designated for the veteran or
servicemember on or after October 1,
2020 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
October 1, 2020 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. Effective
[18 months after EFFECTIVE DATE OF
FINAL RULE], the veteran or
servicemember is no longer 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 October 1,
2020 so long as the Primary Family
Caregiver approved and designated for
the eligible veteran as of the day before
October 1, 2020 (as applicable)
continues to be approved and
designated as such. If a new joint
application is received by VA on or after
October 1, 2020 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.
Effective [18 months after EFFECTIVE
DATE OF FINAL RULE], the veteran or
servicemember is no longer considered
a legacy participant.
*
*
*
*
*
Serious injury means any of the
following as assigned by VA:
(1) A service-connected disability
rated at 70 percent or more;
(2) Any service-connected disabilities
that result in a combined rating of 70
percent or more; or
(3) Any service-connected disability
or disabilities that result in a total
disability rating for compensation based
on individual unemployability.
State has the meaning given that term
in 38 U.S.C. 101(20).
Typically requires means a clinical
determination which refers to that
which is generally necessary.
*
*
*
*
*
■ 4. Amend § 71.20 by:
■ a. In the introductory text and
paragraph (a) introductory text,
removing the language ‘‘he or she’’ and
in its place, adding the language ‘‘the
veteran or servicemember’’.
■ b. In paragraph (a)(2), removing the
language ‘‘or air’’ and in its place,
adding the language ‘‘air, or space’’.
■ c. Revising paragraphs (a)(3)(i) and
(ii), (a)(7), (b), and (c).
■ d. Adding new paragraph (a)(3)(iii).
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The revisions and additions read as
follows:
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§ 71.20 Eligible veterans and
servicemembers.
(a) * * *
(3) * * *
(i) The individual typically requires
hands-on assistance to complete one or
more ADL;
(ii) The individual has a frequent
need for supervision or protection based
on symptoms or residuals of
neurological or other impairment or
injury; or
(iii) The individual typically requires
regular or extensive instruction or
supervision to complete one or more
ADL.
*
*
*
*
*
(7) The individual receives ongoing
care from a primary care team or will do
so within 120 days of the date VA
designates a Family Caregiver. If the
individual is unable to receive such care
due, at least in part, to an event or
action within VA’s control, VA may
extend this 120-day period.
(b) Beginning on October 1, 2020
through [18 months after EFFECTIVE
DATE OF FINAL RULE], a veteran or
servicemember is eligible for a Primary
Family Caregiver or Secondary Family
Caregiver under this part if the veteran
or servicemember is a legacy
participant.
(c) Beginning on October 1, 2020
through [18 months after EFFECTIVE
DATE OF FINAL RULE], a veteran or
servicemember is eligible for a Primary
Family Caregiver or Secondary Family
Caregiver under this part if the veteran
or servicemember is a legacy applicant.
*
*
*
*
*
■ 5. Amend § 71.25 by:
■ a. Revising the section heading.
■ b. Adding the words ‘‘Family
Caregivers’’ after the word ‘‘Primary’’ in
the first sentence of paragraph (a)(1).
■ c. Removing the last sentence of
paragraph (a)(1).
■ d. Adding paragraphs (a)(1)(i) and (ii).
■ e. Revising paragraph (a)(2)(i).
■ f. Revising the last sentence of
paragraph (a)(2)(ii).
■ g. Revising paragraphs (a)(3)(i) and
(ii).
■ h. Revising paragraph (b) introductory
text.
■ i. Revising paragraph (b)(2)(ii).
■ j. Adding the information collection
control number to the end of the
section.
The revisions and additions read as
follows:
§ 71.25 Approval and designation of
Primary Family Caregivers and Secondary
Family Caregivers.
(a) * * *
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(1) * * *
(i) 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.
(ii) A currently approved Secondary
Family Caregiver for the eligible veteran
may apply for designation as the
Primary Family Caregiver by submitting
a new joint application along with the
eligible veteran.
(2) * * *
(i) Upon receiving such application,
except as provided in paragraphs
(a)(2)(i)(A) and (B) of this section, 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 payment
under § 71.40(c)(4).
(A) VA will not evaluate a veteran’s
or servicemember’s eligibility under
§ 71.20 as part of the application process
when:
(1) A joint application is received to
designate a Secondary Family Caregiver
for an eligible veteran who already has
a designated Primary Family Caregiver;
or
(2) A joint application is received that
seeks to change the designation of a
current Secondary Family Caregiver for
an eligible veteran to designation as the
Primary Family Caregiver for that same
eligible veteran so long as the eligible
veteran has been determined to meet the
eligibility criteria under § 71.20(a) or
§ 71.20(a) (2021) (which may have
applied the statutory criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) in
place of the criterion in § 71.20(a)(3)(ii)).
(B) Upon receipt of a joint application
that seeks to designate a current
Secondary Family Caregiver as the
Primary Family Caregiver for the same
eligible veteran, VA will determine
which evaluations under this section are
necessary to assess the individual’s
eligibility as the Primary Family
Caregiver.
(ii) * * * 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 homecare assessment, when such inability is,
at least in part, due to VA’s action.
(3) * * *
(i) A joint application under this part
is evaluated in accordance with the
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97453
statutes and regulations in effect on the
date VA receives such joint application.
(ii) Notwithstanding paragraph
(a)(3)(i) of this section, in rendering a
determination under this part, based on
the regulations that were in effect from
October 1, 2020 through [EFFECTIVE
DATE OF FINAL RULE]:
(A) The definition of ‘‘joint
application’’ in § 71.15 that became
effective [EFFECTIVE DATE OF FINAL
RULE] applies.
(B) The definition of ‘‘need for
supervision, protection, or instruction’’
in § 71.15 does not apply. In its place,
the following criteria apply:
(1) A need for supervision or
protection based on symptoms or
residuals of neurological or other
impairment or injury; or
(2) 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.
(b) Eligibility to serve as Primary
Family Caregiver or Secondary Family
Caregiver. In order to serve as a Primary
Family Caregiver or Secondary Family
Caregiver, the applicant must meet all of
the following requirements:
*
*
*
*
*
(2) * * *
(ii) Someone who lives with the
eligible veteran full-time or will do so
within 120 days of the date VA
designates the individual as a Family
Caregiver.
*
*
*
*
*
(The Office of Management and
Budget has approved the information
collection requirement in this section
under control number 2900–0768)
■ 6. Amend § 71.30 by:
■ a. Revising paragraphs (a), (b), and (c).
■ b. Adding a heading to paragraph (d).
■ c. Revising paragraph (e).
The revisions and additions read as
follows:
§ 71.30 Reassessment of Eligible Veterans
and Family Caregivers.
(a) General. The eligible veteran and
each Family Caregiver will be
reassessed by VA (in collaboration with
the primary care team to the maximum
extent practicable) to determine their
continued eligibility for participation in
PCAFC under this part. Reassessments
will include consideration of the
monthly stipend payment under
§ 71.40(c)(4)(i)(A), if applicable.
Reassessments may include a visit to the
eligible veteran’s home.
(b) Frequency of reassessment. Except
as provided in paragraph (c) of this
section, VA will reassess an eligible
veteran’s continued eligibility under
§ 71.20(a)(3) not more frequently than
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every two years unless such a
reassessment is necessary for VA to
evaluate the Family Caregiver’s ability
to carry out specific personal care
services, core competencies, or
additional care requirements.
(c) Requests for reassessment.
Reassessments may occur when an
eligible veteran or a Primary Family
Caregiver of an eligible veteran submits
to VA a written request indicating that
a reassessment is requested, and such
request contains the signature of the
eligible veteran or the Primary Family
Caregiver.
(d) Required participation. * * *
(e) Legacy reassessments. For
purposes of this paragraph, a legacy
reassessment is a reassessment of an
eligible veteran who meets the
requirements of § 71.20(b) or (c) (i.e., is
a legacy participant or a legacy
applicant) that is conducted to
determine whether such individual
meets the requirements of § 71.20(a) for
purposes of continued eligibility.
Legacy reassessments are conducted in
accordance with the requirements
outlined in paragraph (a) of this section.
(1) If the eligible veteran meets the
requirements of § 71.20(b) or (c) (i.e., is
a legacy participant or a legacy
applicant), VA will conduct a legacy
reassessment for the eligible veteran and
each Family Caregiver within the time
period beginning on October 1, 2020
and ending on [18 months after
EFFECTIVE DATE OF FINAL RULE].
Notwithstanding the previous sentence,
a legacy reassessment will not be
completed if at some point before such
reassessment is completed the eligible
veteran no longer meets the
requirements of § 71.20(b) or (c).
(2) If the eligible veteran meets the
requirements of § 71.20(a), the legacy
reassessment will include consideration
of the monthly stipend payment under
§ 71.40(c)(4)(i)(A) and whether the
Primary Family Caregiver is eligible for
a one-time retroactive stipend payment
pursuant to § 71.40(c)(4)(iii).
■ 7. Amend § 71.40 by:
■ a. Adding a heading to paragraph
(c)(4)(i)(A)(1).
■ b. Revising paragraph (c)(4)(i)(A)(2).
■ c. Revising the first sentence of
paragraphs (c)(4)(i)(B) introductory text,
(c)(4)(i)(C), and (c)(4)(i)(D).
■ d. Revising paragraph (c)(4)(ii)(A).
■ e. Adding headings to paragraphs
(c)(4)(ii)(B) and (C) introductory text.
■ f. Revising paragraphs (c)(4)(ii)(C)(1)
and (2), and the note to paragraph
(c)(4)(ii)(C)(2).
■ g. Adding a heading to paragraph
(c)(4)(ii)(D).
■ h. Redesignating paragraphs (c)(4)(iii)
and (iv) as paragraphs (c)(4)(iv) and (v).
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i. Adding new paragraph (c)(4)(iii).
The revisions and additions read as
follows:
■
§ 71.40
Caregiver benefits.
*
*
*
*
*
(c) * * *
(4) * * *
(i) * * *
(A) * * *
(1) Level 1 Stipend. * * *
(2) Level 2 Stipend. Notwithstanding
paragraph (c)(4)(i)(A)(1) of this section,
the Primary Family Caregiver’s monthly
stipend is calculated by multiplying the
monthly stipend rate by 1.00 if VA
determines that:
(i) The eligible veteran typically
requires personal care services to
complete three or more distinct ADL,
and for each distinct ADL, the eligible
veteran either is substantially
dependent on the Primary Family
Caregiver for hands-on assistance or
requires extensive instruction or
supervision from the Primary Family
Caregiver; or
(ii) The eligible veteran has a frequent
need for supervision or protection on a
continuous basis from the Primary
Family Caregiver based on the eligible
veteran’s symptoms or residuals of
neurological or other impairment or
injury.
(B) Except as provided in paragraph
(c)(4)(i)(C) of this section, for the time
period beginning on October 1, 2020
and ending on [18 months after
EFFECTIVE DATE OF FINAL RULE], if
the eligible veteran meets the
requirements of § 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).
* * *
*
*
*
*
*
(C) For the time period beginning on
October 1, 2020 and ending on [18
months after EFFECTIVE DATE OF
FINAL RULE], if the eligible veteran
meets the requirements of § 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.
* * *
(D) Notwithstanding paragraphs
(c)(4)(i)(A) through (C) of this section,
for the time period beginning on
October 1, 2020 and ending on [18
months after EFFECTIVE DATE OF
FINAL RULE], if the eligible veteran
meets the requirements of § 71.20(b), the
Primary Family Caregiver’s monthly
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stipend is not less than the amount the
Primary Family Caregiver was eligible to
receive as of the day before October 1,
2020 (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 October
1, 2020. * * *
(ii) * * *
(A) OPM updates. VA will adjust
monthly stipend payments based on
changes to the General Schedule (GS)
Annual Rate for grade 4, step 1 for the
locality pay area in which the eligible
veteran resides. Such adjustments will
take effect on the first of the month in
which changes to the GS Annual Rate
are effective. Notwithstanding the
previous sentence, adjustments under
this paragraph will take effect on the
first of the month following the month
OPM publishes changes to the GS
Annual Rate if such changes have a
retroactive effective date.
(B) Relocation. * * *
(C) Reassessments. * * *
(1) Increases. In the case of a
reassessment that results in an increase
in the monthly stipend payment based
on paragraph (c)(4)(i)(A) of this section,
the effective date of the increase is the
earlier of the following dates:
(i) The date VA issues notice of the
decision.
(ii) In the case of a written request for
reassessment pursuant to § 71.30(c) that
is received by VA on or after
[EFFECTIVE DATE OF FINAL RULE],
the date VA received such request from
the eligible veteran or the Primary
Family Caregiver of the eligible veteran.
(2) Decreases—(i) General. Except as
provided in paragraph (c)(4)(ii)(C)(2)(ii)
of this section, 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.
(ii) Resulting from a legacy
reassessment. With respect to an eligible
veteran who meets the requirements of
§ 71.20(a) and (b) or (c), in the case of
a reassessment that results in a decrease
in the Primary Family Caregiver’s
monthly stipend payment, the new
stipend amount under paragraph
(c)(4)(i)(A) of this section takes effect as
of the effective date provided in VA’s
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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 [18 months after EFFECTIVE DATE
OF FINAL RULE]. On [18 months after
EFFECTIVE DATE OF FINAL RULE],
VA will provide advanced notice of its
findings to the eligible veteran and
Primary Family Caregiver.
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Note 1 to paragraph (c)(4)(ii)(C)(2): If an
eligible veteran who meets the requirements
of § 71.20(b) or (c) is determined, pursuant to
a reassessment conducted by VA under
§ 71.30, to not meet the requirements of
§ 71.20(a), the monthly stipend payment will
not be adjusted under paragraph (c)(4)(ii)(C)
of this section. Unless the Family Caregiver
is revoked or discharged under § 71.45 before
the date that is 60 days after [18 months after
EFFECTIVE DATE OF FINAL RULE], the
effective date for discharge of the Family
Caregiver of a legacy participant or legacy
applicant under § 71.45(b)(1)(ii) will be no
earlier than 60 days after [18 months after
EFFECTIVE DATE OF FINAL RULE]. On [18
months after EFFECTIVE DATE OF FINAL
RULE], VA will provide advanced notice of
its findings to the eligible veteran and Family
Caregiver.
(D) Effective dates. * * *
(iii) Legacy retroactive monthly
stipend payment. VA will consider
eligibility for a one-time legacy
retroactive monthly stipend payment in
accordance with this paragraph as part
of the legacy reassessment conducted
under § 71.30(e) of this part.
(A) Subject to paragraph (c)(4)(iii)(B)
of this section, in the case of a
reassessment that results in an increase
in the Primary Family Caregiver’s
monthly stipend payment pursuant to
paragraph (c)(4)(ii)(C)(1) of this section,
the Primary Family Caregiver may be
eligible for a retroactive payment
amount described in paragraph
(c)(4)(iii)(C) of this section if the eligible
veteran is a legacy participant or legacy
applicant and is in need of personal care
services for a minimum of six
continuous months based on any one of
the following:
(1) An inability to perform an activity
of daily living as such term is defined
in 38 CFR 71.15 (2021).
(2) A need for supervision or
protection based on symptoms or
residuals of neurological or other
impairment or injury.
(3) 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.
(B) If there is more than one
reassessment for an eligible veteran
during period beginning on October 1,
2020 and ending on [18 months after
EFFECTIVE DATE OF FINAL RULE],
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the retroactive payment described in
paragraph (c)(4)(iii)(A) applies only if
the first reassessment during the
aforementioned period results in an
increase in the monthly stipend
payment, and only as the result of the
first reassessment during said period.
Notwithstanding the previous sentence,
if the first reassessment during the
period beginning on October 1, 2020
and ending on [18 months after
EFFECTIVE DATE OF FINAL RULE] did
not result in an increase in the monthly
stipend payment, the retroactive
payment described in paragraph
(c)(4)(iii)(A) of this section applies to
the first reassessment initiated by VA on
or after March 25, 2022 that applies the
criteria in paragraph (c)(4)(iii)(A) of this
section, if such reassessment results in
an increase in the monthly stipend
payment, and only as a result of such
reassessment.
(C) The retroactive payment amount
described in paragraph (c)(4)(iii)(A) of
this section is any difference between
the amounts in paragraphs (1) and (2) of
this paragraph (c)(4)(iii)(C) of this
section for the time period beginning on
October 1, 2020 up to the effective date
of the increase under paragraph
(c)(4)(ii)(C)(1) of this section, based on
the eligible veteran’s address on record
with the Program of Comprehensive
Assistance for Family Caregivers on the
effective date of the increase under
paragraph (c)(4)(ii)(C)(1) of this section
and the monthly stipend rate on such
date.
(1) 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; and
(2) The monthly stipend rate
multiplied by 0.625. Notwithstanding
the previous sentence, if the eligible
veteran meets at least one of the
following criteria, the monthly stipend
rate is multiplied by 1.00:
(i) The eligible veteran requires
personal care services each time they
complete 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’’ as such term
is defined in 38 CFR 71.15 (2021), and
is fully dependent on a caregiver to
complete such ADLs.
(ii) The eligible veteran has a need for
supervision or protection based on
symptoms or residuals of neurological
or other impairment or injury on a
continuous basis.
(iii) The eligible veteran has a need for
regular or extensive instruction or
supervision without which the ability of
the veteran to function in daily life
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97455
would be seriously impaired on a
continuous basis.
*
*
*
*
*
■ 8. Amend § 71.45 by:
■ a. Adding paragraphs (a)(1)(iv) and
(a)(2)(v).
■ b. Revising the first sentence in
paragraph (a)(3).
■ c. Revising paragraphs (b)(1)(i).
■ d. Revising paragraph (b)(1)(ii)(B)(2).
■ e. Adding paragraphs (b)(1)(ii)(C) and
(D).
■ f. Revising paragraph (b)(1)(iii).
■ g. Revising paragraphs (b)(2)(i)
through (iii).
■ h. In paragraph (b)(3)(i), removing the
language ‘‘his or her’’ and adding in its
place the language ‘‘their’’.
■ i. Adding a note to paragraph (b)(3)(i).
■ j. Revising paragraph (b)(3)(iii).
■ k. Adding paragraph (b)(3)(iv).
■ l. Revising paragraphs (b)(4)(iv), and
(f).
The revisions and additions read as
follows:
§ 71.45 Revocation and discharge of
Family Caregivers.
(a) * * *
(1) * * *
(iv) Residing outside a State. VA will
revoke the designation of a Family
Caregiver when the eligible veteran or
Family Caregiver no longer resides in a
State. Note: If an eligible veteran no
longer resides in a State, VA will revoke
the designation of each of the eligible
veteran’s Family Caregivers.
(2) * * *
(v)(A) In the case of a revocation
based on paragraph (a)(1)(iv) of this
section, the date of revocation will be
the earlier of the following dates, as
applicable:
(1) The date the eligible veteran no
longer resides in a State.
(2) The date the Family Caregiver no
longer resides in a State.
(B) If VA cannot identify the date the
eligible veteran or Family Caregiver, as
applicable, no longer resides in a State,
the date of revocation based on
paragraph (a)(1)(iv) of this section will
be the earliest date known by VA that
the eligible veteran or Family Caregiver,
as applicable, no longer resides in a
State, but no later than the date on
which VA identifies the eligible veteran
or Family Caregiver, as applicable, no
longer resides in a State.
(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 two months after the date VA issues
the notice of revocation. * * *
(b) * * *
(1) * * *
(i) Bases for discharge. Except as
provided in paragraph (f) of this section,
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the Family Caregiver will be discharged
from the Program of Comprehensive
Assistance for Family Caregivers based
on any of the following:
(A) Except as provided in paragraphs
(a)(1)(ii)(A) and (b)(1)(i)(B) of this
section, VA determines the eligible
veteran does not meet the requirements
of § 71.20 because of improvement in
the eligible veteran’s condition or
otherwise;
(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;
(C) The Family Caregiver requests
discharge due to domestic violence (DV)
or intimate partner violence (IPV)
perpetrated by the eligible veteran
against the Family Caregiver; or
(D) VA determines unmitigated
personal safety issues exist for the
Family Caregiver due to DV or IPV by
the eligible veteran against the Family
Caregiver.
(ii) * * *
(B) * * *
(2) Date that the institutionalization
begins, if it is known on such date that
the eligible veteran is expected to be
institutionalized for a period of 90 days
or more.
*
*
*
*
*
(C) For discharge based on paragraph
(b)(1)(i)(C) of this section, 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.
(D) For discharge based on paragraph
(b)(1)(i)(D) of this section, the date of
discharge will be the date VA issues
notice of its determination.
(iii) Continuation of benefits. (A)
Except as provided in paragraph
(b)(1)(iii)(B) of this section, caregiver
benefits will continue for three months
after the date of discharge.
(B) In the case of discharge based on
paragraph (b)(1)(i)(C) of this section,
caregiver benefits will continue for one
month after the date of discharge.
Notwithstanding the previous sentence,
caregiver benefits will continue for three
months 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
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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.
(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.
(2) * * *
(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 based
on any of the following:
(A) 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.
(B) VA determines the Family
Caregiver is not able to carry out
specific personal care services, core
competencies, or additional care
requirements.
(ii) Discharge date. (A) In the case of
discharge based on paragraph
(b)(2)(i)(A) of this section, the date of
discharge will be the earliest of the
following dates, as applicable:
(1) Date of death of the Family
Caregiver.
(2) Date that the institutionalization
begins, if it is known on such date that
the Family Caregiver is expected to be
institutionalized for a period of 90 days
or more.
(3) Date of the 90th day of
institutionalization.
(B) In the case of discharge based on
paragraph (b)(2)(i)(B) of this section, the
date of discharge will be provided in
VA’s final notice of such discharge to
the eligible veteran and Family
Caregiver, and such date will be no
earlier than 60 days after VA provides
advanced notice of its findings to the
eligible veteran and Family Caregiver
that the Family Caregiver is not able to
carry out specific personal care services,
core competencies, or additional care
requirements.
(iii) Continuation of benefits.
Caregiver benefits will continue for
three months after date of discharge in
paragraph (b)(2)(ii)(A)(2) or (3) or
(b)(2)(ii)(B) of this section.
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(3) * * *
(i) * * *
Note to paragraph (b)(3)(i): Requests of the
Family Caregiver for discharge due to DV or
IPV perpetrated by the eligible veteran
against the Family Caregiver will be
considered under paragraph (b)(1) of this
section.
*
*
*
*
*
(iii) Continuation of benefits.
Caregiver benefits will continue for one
month after the date of discharge.
(iv) Rescission. VA will allow the
Family Caregiver to rescind their
request for discharge and be reinstated
if the rescission is made within 30 days
of the date of discharge. If the Family
Caregiver expresses a desire to be
reinstated more than 30 days from the
date of discharge, a new joint
application is required. This ability to
rescind requests for discharge does not
apply to requests for discharge under
paragraph (b)(1)(i)(C) of this section.
(4) * * *
(iv) Continuation of benefits.
Caregiver benefits will continue for one
month after the date of discharge.
Notwithstanding the previous sentence,
caregiver benefits will continue for three
months after the date of discharge when
any of the requirements in paragraph
(b)(1)(iii)(B)(1) through (3) can be
established.
*
*
*
*
*
(f) Multiple bases for revocation or
discharge. In the instance that a Family
Caregiver may have their designation
revoked or be discharged pursuant to
one or more of the criteria in paragraphs
(a) or (b) of this section, respectively,
the Family Caregiver’s designation will
be revoked or the Family Caregiver will
be discharged, as applicable, pursuant
to the basis that would result in the
earliest date of revocation or discharge.
■ 9. Add § 71.55 to read as follows:
§ 71.55 Home visits and emergency
declarations.
Notwithstanding the requirements in
this part, for the duration of and in the
locations covered by an emergency
declaration, VA may complete home
visits under this part through telehealth
as defined in 38 CFR 17.417(a)(4). For
purposes of this section, emergency
declaration refers to any emergency,
declared by a Federal, State, or local
authority, involving a safety or public
health risk that impacts in-person
interaction between VA staff and
individuals applying for or participating
in a program under this part, including
but not limited to:
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(a) Natural disasters and weatherrelated emergencies when travel to,
from, or within, or time spent in the
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affected area would pose a safety risk;
and
(b) Emergencies related to influenza,
coronavirus, respiratory illness, or other
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contagions that pose a public health
risk.
[FR Doc. 2024–28079 Filed 12–5–24; 8:45 am]
BILLING CODE 8320–01–P
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Agencies
[Federal Register Volume 89, Number 235 (Friday, December 6, 2024)]
[Proposed Rules]
[Pages 97404-97457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28079]
[[Page 97403]]
Vol. 89
Friday,
No. 235
December 6, 2024
Part IV
Department of Veterans Affairs
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38 CFR Part 71
Amendments to the Program of Comprehensive Assistance for Family
Caregivers; Proposed Rule
Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 /
Proposed Rules
[[Page 97404]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 71
RIN 2900-AR96
Amendments to the Program of Comprehensive Assistance for Family
Caregivers
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) proposes to revise the
regulations that govern VA's Program of Comprehensive Assistance for
Family Caregivers (PCAFC). This proposed rule explains numerous changes
VA is considering making that would primarily impact PCAFC, including,
but not limited to, removing, adding, and revising definitions;
revising criteria related to eligibility, revocations, and discharges;
revising certain processes related to reassessments and the timing of
reassessments; and relaxing in-home visits during emergencies.
DATES: Comments must be received on or before February 4, 2025.
ADDRESSES: Comments must be submitted through www.regulations.gov.
Except as provided below, comments received before the close of the
comment period will be available at www.regulations.gov for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
the following website as soon as possible after they have been
received: https://www.regulations.gov. VA will not post on
Regulations.gov public comments that make threats to individuals or
institutions or suggest that the commenter will take actions to harm an
individual. VA encourages individuals not to submit duplicative
comments; however, we will post comments from multiple unique
commenters even if the content is identical or nearly identical to
other comments. Any public comment received after the comment period's
closing date is considered late and will not be considered in the final
rulemaking. In accordance with the Providing Accountability Through
Transparency Act of 2023, a 100 word Plain-Language Summary of this
proposed rule is available at Regulations.gov, under RIN 2900-AR96.
FOR FURTHER INFORMATION CONTACT: Colleen Richardson, PsyD, Executive
Director, Caregiver Support Program, Patient Care Services, Veterans
Health Administration, Department of Veterans Affairs, 810 Vermont Ave.
NW, Washington, DC 20420, (202) 461-5649. (This is not a toll-free
telephone number.)
SUPPLEMENTARY INFORMATION:
I. Background and Public Input
A. Statutory Authority
Title I of Public Law 111-163, the 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 incurred or aggravated a serious injury in the line of duty on or
after September 11, 2001, are in need of personal care services, and
meet other requirements. The Caregivers Act also required VA to
establish a program of general caregiver support services, pursuant to
38 U.S.C. 1720G(b), for caregivers of covered veterans of all eras of
military service. VA implemented PCAFC and the Program of General
Caregiver Support Services (PGCSS) through its regulations in 38 CFR
part 71.
On June 6, 2018, the John S. McCain III, Daniel K. Akaka, and
Samuel R. Johnson VA Maintaining Internal Systems and Strengthening
Integrated Outside Networks Act of 2018 (hereinafter referred to as the
``VA MISSION Act'') was signed into law, which in part amended 38
U.S.C. 1720G. These amendments included expanding eligibility for PCAFC
in a phased approach to Family Caregivers (as that term is defined in
38 CFR 71.15) 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 (as that term is
defined in Sec. 71.15) of eligible veterans, and making other changes
affecting program eligibility and VA's evaluation of PCAFC
applications.
B. Recent Program Improvements
VA adopted revisions to 38 CFR part 71 in a final rule dated July
31, 2020, following the enactment of the VA MISSION Act. 85 FR 46226
(July 31, 2020) (hereinafter the July 31, 2020 Final Rule). The July
31, 2020 Final Rule included changes to certain PCAFC eligibility
criteria and took effect October 1, 2020.
In parallel to those regulatory changes, VA implemented new
processes used within PCAFC. For example, in late 2020, VA implemented
the use of Centralized Eligibility and Appeals Teams (CEATs). CEATs are
composed of a standardized group of inter-professional, licensed
practitioners, with specific expertise and training in the eligibility
requirements for PCAFC and the criteria for the higher stipend level.
CEATs make determinations of PCAFC eligibility and, if applicable,
determinations on whether the Primary Family Caregiver is eligible for
the higher stipend level. Since implementing CEATs, the time required
to evaluate PCAFC eligibility and render application determinations has
been markedly reduced. At the end of fiscal year 2021, 62.9 percent of
PCAFC application determinations were rendered within 90 days of VA
receiving the application. By the end of fiscal year 2023, this
percentage increased and 98 percent of PCAFC application determinations
were rendered within 90 days of VA receiving the application.
Additionally, VA continues concerted efforts to enhance training of
staff involved in the evaluation of PCAFC eligibility criteria and
delivery of PCAFC. Further, VA continues to institute standardized
quality assurance measures to monitor and support accuracy and
consistency in decision-making. If VA issues a PCAFC determination that
an individual disagrees with, processes are in place for individuals to
request a review of or appeal such decision(s). Those processes are not
addressed in this proposed rule. Information about options to request
review of or appeal a PCAFC decision is available at https://www.caregiver.va.gov/support/PCAFC_Appeals.asp.
Since these regulatory and policy changes have taken effect, access
to PCAFC has expanded and the number of eligible veterans and Family
Caregivers participating in PCAFC has continued to grow. VA has,
however, continued to hear concerns from veterans, caregivers, and
other stakeholders about inconsistency in VA's decisions impacting
eligibility for PCAFC, and concerns that certain PCAFC eligibility
criteria may be too restrictive.
In response to those concerns, in March 2022, VA initiated a review
of PCAFC to examine areas within PCAFC for which changes might be
considered. This review included engagements with veterans, caregivers,
Veterans Service Organizations (VSOs) and others to hear direct
feedback about PCAFC.\1\ During
[[Page 97405]]
this review, VA identified further opportunities for improvement.
---------------------------------------------------------------------------
\1\ See Updates on the Family Caregiver program for legacy
participants and applicants, VA press release, April 20, 2022,
available at https://news.va.gov/102672/updates-on-the-family-caregiver-program-for-legacy-participants-and-applicants/ (last
visited Aug. 8, 2024).
---------------------------------------------------------------------------
C. Consideration of Regulatory Amendments and Executive Order 14095,
Increasing Access to High-Quality Care and Supporting Caregivers
Based on the activities outlined above, VA is proposing regulatory
changes to more fully address concerns raised by stakeholders relating
to PCAFC eligibility criteria and other program requirements.
Furthermore, in April 2023, the President issued Executive Order 14095
which, among other things, directed the Secretary of Veterans Affairs
to consider issuing a notice of proposed rulemaking to appropriately
modify the eligibility criteria for PCAFC. In accordance with this
Executive Order and based on feedback from caregivers, veterans, and
other stakeholders and VA's internal evaluation of the program, VA has
considered appropriate modifications to PCAFC eligibility criteria as
well as other program changes, which are reflected in this proposed
rule. VA believes the regulatory amendments proposed below, along with
changes VA has already made to improve its support of eligible veterans
and Family Caregivers, demonstrates VA's unwavering commitment to
administering a program that is fair, consistent, and transparent in
its decisions.
D. Public Input
VA routinely receives information and feedback about PCAFC from
stakeholders. For example, on December 5, 2023, VA conducted a virtual
roundtable session with various VSOs and other caregiver advocacy
organizations. The session provided these stakeholders an opportunity
to share their views on topics related to PCAFC. There were 24
representatives from 15 organizations that attended the virtual
roundtable session with 13 individuals providing feedback during the
session. Representatives provided information and recommendations on
how best to improve PCAFC eligibility criteria, evaluation processes,
and other aspects of PCAFC that are governed by regulation. Proposed
modifications to part 71, as discussed in this proposed rule, address
some of the feedback received prior to and during the December 5, 2023,
session. A written transcript of the December 5, 2023, virtual
roundtable session, including a list of participating organizations, is
publicly available online at www.regulations.gov under RIN 2900-AR96.
While VA did not solicit written statements as part of this event,
those received by VA can also be found online at www.regulations.gov
under RIN 2900-AR96.
VA welcomes comments from the public on all aspects of its proposed
modifications to VA regulations in part 71. VA also seeks specific
feedback within certain sections of this proposed rule through targeted
questions located at the end of the applicable sections.
II. Proposed Changes to 38 CFR Part 71
As explained in more detail below, VA proposes to revise part 71 by
adding, removing, and revising definitions and eligibility criteria;
revising the regulations governing reassessments; revising and
clarifying certain provisions regarding the application process and the
evaluation process for determining eligibility; revising provisions
regarding adjustments to the stipend payments; revising and clarifying
certain processes regarding revocation and discharge; extending the
transition period for legacy participants, legacy applicants, and their
Family Caregivers; and making other changes. VA proposes these changes
to simplify and clarify certain aspects of VA's administration of PCAFC
and to support program integrity. Illustrative examples are included
throughout this proposal to assist the reader with understanding VA's
intended application of the proposed rule.
A. Transition Period for Legacy Cohort
VA is proposing changes to PCAFC eligibility and stipend level
criteria as part of this rulemaking. Under this proposal, VA would
extend the transition period for legacy participants and legacy
applicants, and their Family Caregivers, as those terms are defined in
Sec. 71.15, to allow time for VA to evaluate their PCAFC eligibility
and stipend level pursuant to revised regulations that may result from
this rulemaking. Specifically, VA proposes to extend their eligibility
and the time period for VA to complete their reassessments, through a
date that is 18 months after changes from this rulemaking are made
final and effective.
As part of the rulemaking that took effect October 1, 2020, VA made
changes to the eligibility criteria for PCAFC in Sec. 71.20 and in
doing so, set forth a transition plan for legacy participants and
legacy applicants, and their Family Caregivers, collectively referred
to herein as the legacy cohort. 85 FR 46253 (July 31, 2020). As part of
the transition plan, VA established a one-year transition period
wherein the legacy cohort would generally continue to remain eligible
for PCAFC while VA completed reassessments to determine their
eligibility for PCAFC under the new eligibility criteria. Id.
Subsequently, through publication of two interim final rules, VA
extended the one-year transition period and timeline for VA to conduct
all reassessments of the legacy cohort. The first interim final rule,
Extension of Program of Comprehensive Assistance for Family Caregivers
Eligibility for Legacy Participants and Legacy Applicants, referred to
herein as the First PCAFC Extension for Legacy Cohort, was published
and effective on September 22, 2021. 86 FR 52614 (September 22, 2021).
The First PCAFC Extension for Legacy Cohort extended the transition
period by one year. Id. VA then published a second interim final rule,
Extension of Program of Comprehensive Assistance for Family Caregivers
Eligibility for Legacy Participants and Legacy Applicants, referred to
herein as the Second PCAFC Extension for Legacy Cohort, which became
effective on September 21, 2022, and extended the transition period for
the legacy cohort and timeline for completing their reassessments by
three additional years--to September 30, 2025. 87 FR 57602 (September
21, 2022).
1. Proposal To Extend Transition Period for Legacy Cohort
VA proposes to further extend the legacy cohort transition period
through a date that is 18 months after the date this rulemaking, which
proposes changes to PCAFC eligibility and stipend level criteria,
becomes final and effective to allow members of the legacy cohort to be
reassessed by VA pursuant to such criteria. Without this extension,
members of the legacy cohort would be subject to inequitable treatment
or unnecessary burden, depending on whether changes to PCAFC
eligibility and stipend level criteria resulting from this rulemaking
go into effect before or after September 30, 2025.
If changes to the PCAFC eligibility and stipend level criteria are
made final and effective under this rulemaking before September 30,
2025, VA would not have sufficient time to complete reassessments of
all members of the legacy cohort under the revised criteria before such
date. In this scenario, for reassessments not completed under the
revised criteria before September 30, 2025, VA would have to carry out
discharges and stipend reductions based on reassessments completed
under outdated criteria; or alternatively, VA would have to set those
determinations aside and complete new reassessments
[[Page 97406]]
under the new criteria, which, after September 30, 2025, would result
in inequities among members of the legacy cohort. This is because
members of the legacy cohort who are reassessed under the new criteria
and found to be no longer eligible for PCAFC, or eligible but with a
reduced stipend amount, would be impacted at different times based only
on when they are reassessed. Neither option would be fair and equitable
to all members of the legacy cohort.
If changes to the PCAFC eligibility and stipend level criteria are
made final and effective under this rulemaking after September 30,
2025, after that date, VA would have to begin carrying out discharges
and stipend reductions for members of the legacy cohort pursuant to
criteria VA is proposing to change. Once the revised criteria are made
final and effective, such individuals would be required to reapply to
be considered under the new criteria. This could be perceived as
unnecessarily burdensome, and for those who reapply and are found
eligible, this gap would create disruption to the supports and services
they receive through PCAFC. Extending the transition period as proposed
in this rulemaking would avoid these challenges.
VA proposes a period of 18 months after the effective date of this
rulemaking to allow sufficient time to complete reassessments for the
legacy cohort under the new PCAFC eligibility and stipend level
criteria. Prior to initiating reassessments of PCAFC eligibility, VA
would need to inform PCAFC participants, including the legacy cohort,
about the changes to PCAFC eligibility and stipend level criteria that
become effective under this rulemaking. VA believes 18 months will
allow adequate time to provide such notification and would ensure VA
can complete these legacy reassessments while also processing a
potential influx of new applications that VA may receive following
finalization of this rulemaking. There are over 14,500 legacy
applicants and legacy participants who have not been determined
eligible for PCAFC under the criteria that went into effect on October
1, 2020, or who have been determined eligible under such criteria but
at a lower stipend amount, and who could most benefit from a
reassessment under revised criteria.
For these reasons, VA proposes to amend part 71 to extend the
transition period for the legacy cohort and timeline for VA to complete
reassessments of the legacy cohort to a date that is 18 months after
the effective date of a final rule under this rulemaking.
2. Proposed Changes to 38 CFR 71.15, 71.20, 71.30, and 71.40
To effectuate an additional extension to the legacy cohort
transition period and timeline for reassessments, VA proposes several
amendments to Sec. Sec. 71.15, 71.20, 71.30, and 71.40. Among other
changes, proposed amendments would remove references in current
regulatory text to the five-year period beginning on October 1, 2020,
and ending on September 30, 2025. VA would instead include language
that reflects a period that begins on October 1, 2020, and ends on the
date that is 18 months after the effective date of a final rule
adopting changes to eligibility and stipend level criteria for PCAFC.
These specific proposed changes to the regulations are discussed in
greater detail later in this rulemaking.
VA solicits comments from the public on this proposal. In
particular, VA requests comments on the following.
1. Should VA consider a different legacy cohort extension period
other than the proposed 18-month period after the effective date of
this rulemaking which would adopt changes to eligibility and stipend
level criteria for PCAFC? If yes, what time period should VA consider
and why?
2. What alternative approach(es) should VA consider to reassess the
legacy cohort and ensure only those individuals who meet eligibility
criteria are participating in PCAFC?
B. 38 CFR 71.10 Purpose and Scope
Current Sec. 71.10 sets forth the purpose and scope of part 71.
Paragraph (b) of Sec. 71.10 explains, among other things, that PCAFC
and Program of General Caregiver Support Services (PGCSS) benefits are
provided only to those individuals residing in a State as that term is
defined in 38 U.S.C. 101(20). VA proposes to remove the language ``as
that term is defined in 38 U.S.C. 101(20)'' from 38 CFR 71.10(b)
because VA proposes to add a definition for the term State in 38 CFR
71.15, as explained in the discussion on proposed changes to Sec.
71.15.
This proposed revision is intended to provide clarity and reduce
the burden on the reader by including all definitions in the
definitions section under Sec. 71.15.
VA proposes no other changes to Sec. 71.10.
C. 38 CFR 71.15 Definitions
Section 71.15 contains definitions for terms used throughout part
71. VA proposes to amend Sec. 71.15 by adding definitions for the
terms activity of daily living or activities of daily living (ADL),
State, and typically requires; removing the terms inability to perform
an activity of daily living (ADL), need for supervision, protection, or
instruction, and unable to self-sustain in the community and their
definitions; and revising the definitions of institutionalization,
joint application, legacy applicant, legacy participant, and serious
injury. These proposed changes are explained in more detail below in
alphabetical order of the terms being added, removed, or revised.
1. Activity of Daily Living or Activities of Daily Living (ADL)
In Sec. 71.15, VA proposes to add a definition for the term
activity of daily living or activities of daily living (ADL). In the
current definition of inability to perform an ADL, VA includes the
following ADL as applying to this term: (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; and (7)
mobility (walking, going up stairs, transferring from bed to chair,
etc.). Since, as discussed further below, VA proposes to remove the
current definition of inability to perform an ADL which contains this
list of ADL, VA proposes to add a standalone definition of ADL to Sec.
71.15 that would maintain this list of ADL with minor changes. This
separate definition is not intended to be a new definition that changes
VA's current implementation and use of the term ADL. This proposal does
not seek to narrow or expand VA's current interpretation of the term
ADL but is intended to improve clarity for purposes of applying and
implementing the term ADL as it is used throughout part 71 and in 38
U.S.C. 1720G.
VA proposes to maintain the existing ADL included in the current
definition of inability to perform an ADL as these are widely
recognized in the health care context (for example, they are found in
the Katz Basic ADL Scale (see 76 FR 26148 (May 5, 2011)) and have been
the ADL used for the purposes of PCAFC since the inception of the
program. While VA proposes to maintain the list
[[Page 97407]]
of ADL from the definition of inability to perform an ADL, this new
proposed definition for ADL revises the language used to describe
several of the ADL as is discussed below. VA's proposed changes would
not materially change the activities included in the definition of an
ADL or how VA evaluates them.
In the ADL of dressing and undressing oneself, VA proposes to
remove the word ``oneself''. Similarly, VA proposes to remove the
phrase ``oneself in order to keep oneself clean and presentable'' from
the description of the ADL of grooming. VA also proposes to remove the
parenthetical following the ADL of mobility that includes examples
(that is, walking, going up stairs, transferring from bed to chair,
etc.). These words and phrases are not needed when listing the ADL and
are commonly understood to be included in the definitions of the
identified ADLs.
In developing the definition of inability to perform an ADL, VA
included additional clarifying language in the descriptions of
adjusting any special prosthetic or orthopedic appliance and feeding
oneself, to further explain the cause for why an individual would be
unable to perform these two ADLs. In establishing a standalone
definition of ADL, these additional clarifications are not needed and
if they were to remain may lead to misinterpretation of VA's use of the
term ADL as it is referenced throughout 38 CFR part 71. For the ADL of
adjusting any special prosthetic or orthopedic appliance, VA proposes
to remove the phrase ``that by reason of the particular disability,
cannot be done without assistance''. For the ADL of feeding oneself, VA
proposes to remove the language ``due to loss of coordination of upper
extremities, extreme weakness, inability to swallow, or the need for a
non-oral means of nutrition''. In addition, to further simplify and
clarify this ADL, VA proposes to use the more commonly used term
``eating'' in place of feeding oneself.
Before proposing to define ADL in this proposed rule, VA conducted
a search of title 38 of the CFR to identify other regulatory
definitions of ADL used by VA. VA identified several definitions of ADL
in title 38 of the CFR, including in Sec. Sec. 3.278, 17.62, 17.3210,
and 51.2, that include descriptive language in addition to identifying
specific ADL. While there are similarities among these definitions, the
definition of ADL used in Sec. 51.2 uses terminology VA believes best
describes the meaning of ADL for purposes of part 71. Section 51.2
defines ADLs to mean ``the functions or tasks for self-care usually
performed in the normal course of a day, i.e., mobility, bathing,
dressing, grooming, toileting, transferring, and eating.'' Among other
things, this definition is used for purposes of determining eligibility
of a veteran for payment of per diem to a State for adult day health
care. See 38 CFR 51.52(d)(1) and (3).
Under this proposal, the new definition of ADL would refer to the
same ADLs as those currently identified in the definition of inability
to perform an ADL in Sec. 71.15. VA proposes to add language that is
included in the description of ADL in Sec. 51.2 by specifying in the
proposed new definition of ADL that ADL means ``any of the following
functions or tasks for self-care usually performed in the normal course
of a day'', which is consistent with how VA applies ADL for purposes of
38 U.S.C. 1720G and 38 CFR part 71. VA believes this language would be
helpful to include in the proposed definition of ADL in Sec. 71.15
because it clarifies that, for purposes of part 71, ADL are the broad
categories of functions and tasks listed and are those activities
usually performed in the normal course of a day. VA recognizes that the
functions and tasks for self-care that are ``usually'' performed in the
``normal'' course of a day depends on the unique individual. VA
discusses this in more detail in the context of proposed changes to
Sec. Sec. 71.20(a)(3) and 71.40(c)(4)(i)(A), which outline how VA
would apply ADL in the context of those sections. Additionally, the
proposed new text of ``usually performed in the normal course of a
day'' does not mandate that each activity must always be completed
daily for it to be considered an ADL under this definition. Some ADL
may be performed daily, such as feeding and toileting. However, others
such as bathing may not always be performed daily. Such ADL would still
be considered among those functions or tasks for self-care that are
usually performed in the normal course of a day even though an
individual may not need to perform such ADL daily in order to maintain
their health and well-being. This is consistent with how VA interprets
and applies ADL currently within PCAFC. See 85 FR 46226, at 46233 (July
31, 2020).
This proposed definition of ADL (that is, functions or tasks for
self-care usually performed in the normal course of a day) would align
with other Federal definitions for ADL. For example, the Centers for
Medicare & Medicaid Services' (CMS) regulations for its Home and
Community-Based Attendant Services and Supports State Plan Option
define ADL to mean basic personal everyday activities including, but
not limited to, tasks such as eating, toileting, grooming, dressing,
bathing, and transferring. See 42 CFR 441.505. Additionally, the
Department of Housing and Urban Development's regulations for its
Congregate Housing Services Program define ADL to mean, in part, an
activity regularly necessary for personal care. See 24 CFR 700.105. VA
asserts that the proposed definition of ADL in this rulemaking would
also align with the plain meaning of the term activity of daily living
as referring to activities that ``occur with some regularity''. See
Veteran Warriors, Inc. v. Sec'y of Veterans Affairs, 29 F.4th 1320,
1339 (Fed. Cir. 2022) (``By using the word daily, Congress required the
relevant activities to occur with some regularity. See also 38 CFR
71.15 (promulgating [a] list of activities of daily living, each of
which involves regular conduct--like eating or bathing).'').
Thus, ADL would be defined to mean any of the following functions
or tasks for self-care usually performed in the normal course of a day:
(1) Dressing or undressing; (2) Bathing; (3) Grooming; (4) Adjusting
any special prosthetic or orthopedic appliance (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) Eating; or (7)
Mobility.
As explained below, this proposed definition of ADL would be
applied in proposed Sec. 71.20(a)(3)(i) and (iii) for purposes of
determining whether a veteran or servicemember is in need of personal
care services based on the individual typically requiring hands-on
assistance to complete one or more ADL or the individual typically
requiring regular or extensive instruction or supervision to complete
one or more ADL, and in proposed Sec. 71.40(c)(4)(i)(A)(2) as part of
the criteria used to determine whether a Primary Family Caregiver (as
that term is defined in Sec. 71.15) qualifies for the higher stipend
level. VA's later discussions not only provide explanation of its
application of the proposed definition of ADL, but also include
illustrative examples.
2. Inability To Perform an ADL
In Sec. 71.15 VA proposes to remove the term inability to perform
an ADL and its definition. Inability to perform an ADL is currently
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)
[[Page 97408]]
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.).
The term inability to perform an ADL is listed in Sec.
71.20(a)(3)(i) as one of the bases for determining PCAFC eligibility
consistent with 38 U.S.C. 1720G(a)(2)(C)(i). The term is also
referenced in the definition of unable to self-sustain in the
community, which is applied in 38 CFR 71.40(c)(4)(i)(A)(2) for purposes
of determining eligibility of a Primary Family Caregiver for the higher
stipend level. As explained in more detail below, VA proposes to
implement the statutory criterion in 38 U.S.C. 1720G(a)(2)(C)(i)
through regulation text in proposed 38 CFR 71.20(a)(3)(i) and Sec.
71.40(c)(4)(i)(A)(2) without referencing the term inability to perform
an ADL in Sec. 71.15. Those proposed amendments would eliminate the
need for the current definition of inability to perform an ADL in Sec.
71.15 and reduce the potential for confusion. Therefore, VA proposes to
remove the term inability to perform an ADL and its definition from
Sec. 71.15.
3. Institutionalization
In Sec. 71.15, VA proposes to revise the current definition of
institutionalization. This term is used in Sec. 71.45 for purposes of
discharge from PCAFC and currently 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. Under this
proposal, VA would remove the language ``assisted living facility''
from this definition because residing in an assisted living facility
should not by itself disqualify an eligible veteran or Family Caregiver
(as those terms are defined in Sec. 71.15) from PCAFC. VA would also
clarify that ``other similar settings'' must be determined by VA.
VA has found that some eligible veterans residing in assisted
living, or other similarly termed settings such as senior living,
choose to utilize Family Caregivers under PCAFC for the provision of
their personal care services in lieu of other paid services available
from the assisted living facility or other service providers. Some
assisted living facilities, and similarly termed environments, may
offer room and board with limited additional support as part of the
cost of residing in such facility. Other assisted living facilities may
offer a menu of add-on services to include assistance with the personal
care services that may have been provided by a Family Caregiver through
PCAFC. However, in lieu of paying for such personal care services
through the assisted living facility or other personal care service
provider, an eligible veteran may prefer to receive personal care
services from a Family Caregiver under PCAFC. In such cases, the
assisted living facility would be considered the eligible veteran's
home for purposes of Sec. 71.20(a)(6) (conditioning PCAFC eligibility
on the individual receiving care at home).
Additionally, a Family Caregiver residing in an assisted living
facility should not necessarily be precluded from being approved and
designated as a Family Caregiver in PCAFC simply because they reside in
an assisted living facility. Such individual, for example, may live in
the assisted living facility with the eligible veteran and be able to
provide the personal care services the eligible veteran requires. The
ability of the Family Caregiver to perform required personal care
services is based upon the Family Caregiver's individual abilities,
rather than the environment in which they reside.
Thus, to ensure eligible veterans and/or Family Caregivers who
reside in assisted living facilities would not be excluded from PCAFC
based only on the fact that they reside in an assisted living facility,
VA proposes to revise the term institutionalization to exclude
``assisted living facility,'' such that institutionalization would
instead mean being institutionalized in a setting outside the home
residence to include a hospital, rehabilitation facility, jail, prison,
medical foster home, nursing home, or other similar setting as
determined by VA. However, this change would not nullify any of the
eligibility criteria otherwise applicable to the eligible veteran and
Family Caregiver. For example, in instances when personal care services
that had been provided by the Family Caregiver are instead provided to
the eligible veteran by or through the assisted living facility, the
veteran would no longer be eligible for PCAFC pursuant to Sec.
71.20(a)(5) (requiring that 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). In such
instances, the Family Caregiver's designation would be revoked for
noncompliance pursuant to Sec. 71.45(a)(1)(ii)(A) (that is, because
the eligible veteran would not meet the requirements of Sec.
71.20(a)(5)) when the personal care services that would be provided by
the Family Caregiver to the eligible veteran are the same personal care
services being provided by or through the assisted living facility to
the eligible veteran, unless a different basis of revocation or
discharge under Sec. 71.45 applies.
For these reasons, VA proposes to revise the definition of
institutionalization so as not to exclude from PCAFC eligible veterans
and/or Family Caregivers who may be living at an assisted living
facility, provided that the eligible veteran and Family Caregiver
otherwise qualify for PCAFC. The eligibility criteria in Sec.
71.20(a)(5) and (6), among other requirements, would help to ensure
that the eligible veteran and Family Caregiver continue participating
in PCAFC only when otherwise eligible to do so.
The definition of institutionalization also references ``other
similar setting''. VA proposes to add the phrase ``as determined by
VA'' after ``other similar setting'' to clarify that what is considered
a ``similar'' setting is a VA determination. This is consistent with
current practice. VA also proposes to replace the phrase ``refers to''
with the word ``means'' within the definition of institutionalization.
This is a non-substantive edit to align with the formatting of other
definitions found within Sec. 71.15.
4. Joint Application
In Sec. 71.15, VA proposes to revise the current definition of
joint application. The term joint application is used in the
definitions of legacy applicant and legacy participant, throughout
Sec. 71.25(a), in Sec. 71.25(f), in Sec. 71.40(d), and in Sec.
71.45(b)(4)(iii). The term joint application is currently defined as 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.
VA proposed this definition as part of a March 6, 2020 rulemaking
proposal. See 85 FR 13356, at 13362 (March 6, 2020) (hereinafter the
March 6, 2020
[[Page 97409]]
Proposed Rule). VA explained in that rulemaking that an application
that does not have all the mandatory sections completed would be
considered incomplete, and VA would not be able to begin the
application review process because the required sections are necessary
for VA to begin that process. Id. VA further explained that failure to
provide all the required information had led to delays as VA had to
take steps to obtain the missing information. Id. VA received one
public comment in response to its proposed definition of joint
application. See 85 FR 46237 (July 31, 2020). The commenter suggested,
in part, that delays could still result as VA would still need to
inform applicants that their applications were incomplete; however, VA
made no changes and adopted the definition without change. Id. at
46237-46238.
Since implementing this definition of joint application, VA
continues to receive applications that do not have all the required
fields completed. VA has also experienced challenges with timely
identification of missing required information which has led to delays
in providing notice to applicants about required information.
Additionally, while certain minimum information is needed for VA to
begin reviewing and evaluating applicants' eligibility for PCAFC (for
example, the name of the veteran or servicemember and each Family
Caregiver applicant), some required information (for example, date of
birth or zip code), can be obtained in the course of evaluating
applicants' PCAFC eligibility.
Instead of requiring specific information be included in the joint
application in regulation, VA proposes to define the term joint
application to mean an application for the Program of Comprehensive
Assistance for Family Caregivers in such form and manner as the
Secretary of Veterans Affairs considers appropriate. This proposed
change would be consistent with the statutory text at 38 U.S.C.
1720G(a)(4), which requires that PCAFC applicants ``jointly submit to
the Secretary an application [for PCAFC] in such form and in such
manner as the Secretary considers appropriate.'' This proposed change
to the definition of joint application would allow VA to begin
evaluating joint applications so long as they contain the minimum
information needed for VA to begin such review and evaluation of the
applicants' eligibility for PCAFC. This would allow efficient and
timely evaluation of joint applications and avoid subsequent delays in
rendering decisions. In many cases, if certain information is missing
from the joint application, it may be gathered during VA's evaluations
rather than serving as a precursor to such evaluations being initiated.
Furthermore, this proposed definition would permit the Secretary to
make changes to the application form, as needed, to ensure that the
appropriate information is requested and collected from PCAFC
applicants in the joint application.
VA would continue to require the use of VA Form 10-10CG as the
joint application. However, to help alleviate challenges identified
above, if this proposal is adopted, VA would update the form to ensure
that it does not require completion of fields that are not necessary
for VA to begin reviewing and evaluating applicants' eligibility for
PCAFC.
5. Legacy Applicant and Legacy Participant
In 38 CFR 71.15, VA proposes to revise the definitions of legacy
applicant and legacy participant. These terms are currently used
throughout part 71 to describe members of the legacy cohort. Legacy
applicant is currently defined to mean a veteran or servicemember who
submits a joint application for PCAFC that is received by VA before
October 1, 2020 and for whom a Family Caregiver(s) is approved and
designated on or after October 1, 2020 so long as the Primary Family
Caregiver approved and designated for the veteran or servicemember on
or after October 1, 2020 pursuant to such joint application (as
applicable) continues to be approved and designated as such. Legacy
participant is defined as an eligible veteran whose Family Caregiver(s)
was approved and designated by VA under part 71 as of the day before
October 1, 2020 so long as the Primary Family Caregiver approved and
designated for the eligible veteran as of the day before October 1,
2020 (as applicable) continues to be approved and designated as such.
For both legacy applicants and legacy participants, the definition also
states that if a new joint application is received by VA on or after
October 1, 2020 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 or legacy participant, as
applicable.
VA proposes to revise the definitions of legacy applicant and
legacy participant to specify that such designation would be a
temporary designation. These designations identify individuals who
would be subject to the transition period and related requirements VA
established for the legacy cohort through 2020 rulemaking and that VA
extended under the First PCAFC Extension for Legacy Cohort and the
Second PCAFC Extension for Legacy Cohort. See 85 FR 13362, 86 FR 52614,
and 87 FR 57602. VA proposes to state in regulation that following
expiration of the transition period for the legacy cohort, which is
proposed to conclude 18 months after the effective date of a final rule
that implements this rulemaking, a veteran or servicemember will no
longer be considered a legacy applicant or legacy participant. VA
believes that inclusion of this language would help clarify that
following the conclusion of the transition period for the legacy
cohort, all individuals applying for and participating in PCAFC will be
subject to the same set of criteria and requirements.
VA proposes to add a sentence at the end of the definitions for
legacy applicant and legacy participant, which, as proposed, would
state that effective [18 months after EFFECTIVE DATE OF FINAL RULE], a
veteran or servicemember is no longer considered a legacy applicant or
legacy participant, respectively.
6. Need for Supervision, Protection, or Instruction
In 38 CFR 71.15, VA proposes to remove the term need for
supervision, protection, or instruction and its definition. The term
need for supervision, protection, or instruction is listed as one of
the bases for determining eligibility under Sec. 71.20(a)(3) and is
also referenced in the definition of unable to self-sustain in the
community, which is applied in Sec. 71.40(c)(4)(i)(A)(2) for purposes
of determining the amount of the monthly stipend for which the Primary
Family Caregiver is eligible. The term need for supervision,
protection, or instruction is currently defined to 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. This
term and its definition were intended to implement, in a combined
manner, two of the statutory bases upon which a veteran or
servicemember can be determined to be in need of personal care
services--specifically, 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. 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii).
However, as VA explained in its Interim Final Rule (IFR) dated
[[Page 97410]]
September 21, 2022, on March 25, 2022, the U.S. Court of Appeals for
the Federal Circuit issued a decision in Veteran Warriors, Inc. v.
Sec'y of Veterans Affairs, 29 F.4th 1320 (Fed. Cir. 2022) that
invalidated VA's definition of need for supervision, protection, or
instruction in 38 CFR 71.15. See 87 FR 57602-57603 (September 21,
2022). The court determined that the definition was inconsistent with
the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii).
Veteran Warriors at 1342-43. Specifically, the court held that VA's
decision to create a single frequency requirement for ``supervision''
under clauses (ii) and (iii) of section 1720G(a)(2)(C) was inconsistent
with the statutory language. Id. at 1342. The court also found that
clauses (ii) and (iii) of section 1720G(a)(2)(C) did not restrict
eligibility based on ``personal safety'' in all cases, such that the
``personal safety'' requirement in VA's definition was inconsistent
with the statutory text. Id. at 1342-43. As a result of this ruling, VA
has applied clauses (ii) and (iii) of section 1720G(a)(2)(C) in place
of the regulatory term need for supervision, protection, or instruction
and its definition in 38 CFR 71.15 when making determinations under
PCAFC regulations that became effective on October 1, 2020. Thus, where
the term need for supervision, protection, or instruction is
referenced, VA applies the statutory language in 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii) instead.
As explained below, at this time, VA is not proposing a new
definition of need for supervision, protection, or instruction for
purposes of interpreting clauses (ii) and (iii) of 38 U.S.C.
1720G(a)(2)(C). Instead, VA's proposed interpretation of those clauses
would be addressed in proposed 38 CFR 71.20(a)(3)(ii) and (iii) for
purposes of determining PCAFC eligibility and in proposed Sec.
71.40(c)(4)(i)(A)(2) for purposes of determining eligibility for the
higher stipend level. Those amendments, if adopted, would eliminate the
need for a new definition of need for supervision, protection, or
instruction in Sec. 71.15.
For these reasons, VA proposes to remove the term need for
supervision, protection, or instruction and its definition from Sec.
71.15.
7. Unable to Self-Sustain in the Community
In Sec. 71.15, VA proposes to remove the term unable to self-
sustain in the community and its definition. Unable to self-sustain in
the community currently is defined to 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
Sec. 71.15, 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. This term and its definition are used for purposes
of determining eligibility for the higher stipend level under Sec.
71.40(c)(4)(i)(A)(2). This term and its definition are also used in
Sec. 71.30, as reassessments under that section include consideration
of whether the eligible veteran is unable to self-sustain in the
community for purposes of the monthly stipend level determination under
Sec. 71.40(c)(4)(i)(A).
As explained below, VA proposes to revise Sec.
71.40(c)(4)(i)(A)(2), which currently explains that 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. In proposed Sec.
71.40(c)(4)(i)(A)(2), VA would list the criteria for the higher stipend
level without referencing the term unable to self-sustain in the
community. Consistent with that change, VA would also remove the term
unable to self-sustain in the community from Sec. 71.30, as discussed
below. As VA would discontinue use of the term unable to self-sustain
in the community and its definition in part 71, VA proposes to remove
them from Sec. 71.15.
8. Serious Injury
In Sec. 71.15, VA proposes to revise the definition of serious
injury. The current definition in Sec. 71.15 states that 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. This definition is applied by VA
when determining whether an individual meets the eligibility criteria
in Sec. 71.20(a)(2), which requires the individual to have a serious
injury incurred or aggravated in the line of duty to qualify for PCAFC.
VA proposes to revise the definition of serious injury in Sec.
71.15 to include a total disability rating for compensation based on
individual unemployability (IU) assigned by VA. IU ratings allow VA to
compensate certain veterans at the 100 percent disability rate even
though their service-connected disability or disabilities are not rated
as 100 percent disabling by reference to specific rating schedule
criteria. Under Sec. 4.16(a), total disability ratings may be assigned
when a veteran's schedular rating is less than total (which is to say,
less than 100 percent) but where the veteran is unable to secure or
follow a substantially gainful occupation due to service-connected
disabilities. In other words, even though the veteran may not meet the
requirements for a total (or 100 percent) disability rating by
reference to the VA disability rating schedule criteria, the veteran
may be compensated as if they were 100 percent disabled if their
service-connected disability or the combination of their service-
connected disabilities prevents them from engaging in substantial
gainful employment.
The requirements for IU include that a veteran either (1) has one
service-connected disability rated at least 60 percent disabling, or
(2) has two or more service-connected disabilities with at least one
rated at least 40 percent disabling and a combined rating of at least
70 percent. See Sec. 4.16(a). VA also allows for extra-schedular
consideration for an IU rating in cases of veterans who are
unemployable by reason of service-connected disabilities, but who fail
to meet these percentage standards. See Sec. 4.16(b).
In VA's July 31, 2020 Final Rule, VA revised the definition of
serious injury. 85 FR 46245-46251 (July 31, 2020). In promulgating this
definition, VA declined to adopt a recommendation from a commenter who
recommended that VA consider including in the definition of serious
injury service-connected veterans who are in receipt of an IU rating.
Id. at 46249-46250. IU may encompass veterans with service-connected
disabilities rated less than 70 percent, and VA did not believe it
would be appropriate to use IU as a substitute for having a single or
combined 70 percent rating for the purposes of PCAFC. Id. at 46250. VA
explained that not all veterans and servicemembers applying for or
participating in PCAFC would have been evaluated by VA for such rating,
and if VA were to create an exception in the definition of serious
injury for individuals with an IU rating, VA would also need to
consider whether other exceptions should also satisfy the definition.
Id. Additionally, VA referenced that IU had proven to be a very
difficult concept to apply consistently in the context of disability
compensation and had been the source of considerable dissatisfaction
with VA adjudications and of litigation. Id. Observing that importing
this standard could introduce potential inconsistency into PCAFC, VA
declined to make any changes to incorporate IU into the
[[Page 97411]]
definition of serious injury in VA's July 31, 2020 Final Rule. Id.
Following VA's implementation of the revised definition of serious
injury, veterans and other stakeholders continued to raise concerns
regarding the exclusion of IU from the definition of serious injury. VA
therefore took another look at this topic and reexamined the exclusion
of IU. Upon further review and reconsideration, VA now proposes to
include a total disability rating for compensation based on IU within
the definition of serious injury for purposes of PCAFC, regardless of
the schedular disability rating assigned as VA has concluded the
advantages of including IU in the definition of serious injury outweigh
the concerns VA identified with doing so in VA's 2020 final rule.
VA's Schedule for Rating Disabilities (VASRD) percentage ratings
represent the average impairment in earning capacity resulting from
service-connected disabilities. See Sec. 4.1. When the VASRD does not
adequately account for the severity of the veteran's disability and its
impact on the veteran's employability, VA may assign a total disability
rating by establishing IU when the requirements under Sec. 4.16 are
met. An IU determination reflects VA's assessment that even though the
veteran has a less than total schedular rating, their service-connected
disability, or the combination of their service-connected disabilities,
precludes them from engaging in substantial gainful employment and
entitles them to payment at the 100 percent disability rate. See Sec.
4.16. VA's assignment of an IU rating establishes that the veteran's
service-connected disability or disabilities renders them unemployable
and compensable as if they were 100 percent disabled. Therefore,
individuals with IU assigned by VA have the same level of impairment in
earning capacity as that of an individual with a schedular 100 percent
disability rating, regardless of whether the individual's disability
picture warrants a 100-percent rating under the rating schedule(s) for
the service-connected disability or disabilities.
In proposing this change, VA also reexamined its prior concerns
with including IU in the definition of serious injury, and VA no longer
believes those concerns necessitate the same approach. One such concern
was the fact that not all veterans and servicemembers applying for or
participating in PCAFC will have been evaluated by VA for IU. See 85 FR
46250 (July 31, 2020). While this is still true, VA notes that any
individual who does not currently have a total disability rating,
including those that do not meet the definition of serious injury
because their service-connected disability rating is less than 70
percent, can file a claim for an increased rating, which may include a
request for IU if they believe such a rating is warranted.\2\ There are
existing processes for individuals to request consideration for IU, and
adding IU to the definition of serious injury as proposed would provide
an additional opportunity for veterans to satisfy the serious injury
requirement in Sec. 71.20(a)(2).
---------------------------------------------------------------------------
\2\ An IU rating under 38 CFR 4.16 would not ordinarily be
awarded as a proposed rating to a servicemember undergoing medical
discharge through the Integrated Disability Evaluation System.
However, a servicemember undergoing medical discharge would still be
able to meet the definition of serious injury for purposes of
satisfying the requirement in Sec. 71.20(a)(2), based on a proposed
service-connected disability rating of 70 percent or higher. See 85
FR 13356, at 13369 (March 6, 2020) (explaining that ``[f]or
servicemembers undergoing medical discharge . . . who apply for
PCAFC, we would accept their proposed VA rating of disability when
determining whether the servicemember has a serious injury'').
Additionally, VA notes that servicemembers undergoing medical
discharge can be considered for an IU rating upon discharge.
---------------------------------------------------------------------------
VA also considered that IU was a difficult concept to apply
consistently in the context of disability compensation. Id. While VA
knows that IU may be challenging to apply consistently and has been the
source of litigation, it does not want to exclude veterans with IU
ratings from meeting the definition of serious injury based on these
challenges and prevent them from participating in PCAFC when all other
eligibility requirements are met.
Additionally, VA has examined whether other criteria should meet
the definition of serious injury (based on disability rating criteria
or otherwise). Based on this review, the only criterion VA identified
as being equivalent to having a single or combined 70 percent service-
connected rating or higher, is a VA rating of IU. However, as indicated
below, VA welcomes input from the public on any other VA ratings or
other criteria that VA should consider as potentially meeting the
definition of serious injury for purposes of PCAFC.
Accordingly, VA believes its earlier concerns about including IU in
the definition of serious injury are now outweighed by the advantages
that would result for individuals with an IU rating who satisfy all
other PCAFC eligibility criteria. Thus, when VA determines that a
veteran's service-connected disability or disabilities are so severe as
to render them unable to secure or follow a substantially gainful
occupation and grants the veteran entitlement to IU, VA believes such
disability, or disabilities, should be considered a serious injury for
purposes of PCAFC. VA believes this is true regardless of the basis for
VA's IU rating under Sec. 4.16(a) or (b). Further, VA reached this
conclusion, in part, based on continued feedback from VSOs and other
stakeholders. VA believes for the reasons set forth above, the proposed
inclusion of IU in the definition of serious injury is a reasonable
expansion of the definition for purposes of PCAFC.
Given the above, VA proposes to revise the definition of serious
injury in Sec. 71.15 to include a total disability rating for
compensation based on IU assigned by VA. VA proposes to revise the
definition of serious injury by reorganizing the introductory text and
paragraphs (1) and (2), including the current criteria from paragraphs
(1) and (2) in revised paragraphs (1) and (2), and adding this new
basis in a new paragraph (3). This change, if adopted, would allow
individuals who do not currently have a single or combined 70 percent
disability rating to meet the definition of serious injury if they have
an IU rating assigned by VA. As proposed, the definition of serious
injury would state serious injury means any of the following as
assigned by VA: (1) a service-connected disability rated at 70 percent
or more; (2) any service-connected disabilities that result in a
combined rating of 70 percent or more; or (3) any service-connected
disability or disabilities that result in a total disability rating for
compensation based on individual unemployability.
9. State
In Sec. 71.15 VA proposes to add a definition for the term State.
As explained above, current Sec. 71.10(b) explains, among other
things, that PCAFC and PGCSS benefits are provided only to those
individuals residing in a State as that term is defined in 38 U.S.C.
101(20). Currently, Sec. 71.10(b) is the only instance in which part
71 refers to the term State and its definition in 38 U.S.C. 101(20).
However, this rulemaking proposal, if adopted, would add the term State
in other sections of part 71 as well. Specifically, this term would be
used in a new basis for revocation under proposed revisions to 38 CFR
71.45 and regarding State-declared emergencies in proposed Sec. 71.55,
as discussed in more detail below. Thus, as the term is proposed to be
used in multiple sections in part 71, it would be appropriate to define
it in Sec. 71.15. VA's proposed definition would be consistent with
current Sec. 71.10(b), as VA would define State in proposed Sec.
71.15 to have the meaning given to that term in 38 U.S.C.
[[Page 97412]]
101(20). In 38 U.S.C. 101(20), State is defined to mean ``each of the
several States, Territories, and possessions of the United States, the
District of Columbia, and the Commonwealth of Puerto Rico. For the
purpose of section 2303 and chapters 34 and 35 of [title 38], such term
also includes the Canal Zone.''
As this is the definition VA currently uses for this term in 38 CFR
71.10(b), this change would have no substantive impact on that section.
However, to provide clarity and consistency throughout part 71, VA
proposes to include a new definition for the term State in Sec. 71.15
so that it is easier to locate, understand, and reference the
definition of this term.
10. Typically Requires
In Sec. 71.15, VA proposes to add a definition for the term
typically requires. VA proposes to use the term typically requires in
the bases for PCAFC eligibility in proposed Sec. 71.20(a)(3)(i) and
(iii) and the monthly stipend payment criteria in proposed Sec.
71.40(c)(4)(i)(A)(2)(i). As this term is proposed to be used in
multiple sections of part 71, and VA intends for this term to have the
same meaning when referenced throughout part 71, VA proposes to add a
definition for typically requires in Sec. 71.15.
VA proposes to add a definition stating that typically requires
means a clinical determination which refers to that which is generally
necessary. Cambridge Dictionary defines ``typically'' as ``in a way
that shows all the characteristics that you would expect from the
stated person, thing, or group.'' \3\ The Britannica Dictionary defines
``typically'' as ``generally or normally--used to say what normally
happens'' and ``in the usual way--used to describe what is normal or
expected of a certain place, person, situation, etc.'' \4\ VA's use of
``typically'' denotes frequency for purposes of proposed Sec.
71.20(a)(3)(i) and (iii) and for proposed Sec. 71.40(c)(4)(i)(A)(2)(i)
and would be consistent with these dictionary definitions. As frequency
occurs on a continuum, to further demonstrate where on the continuum
VA's proposed term typically requires would fall in comparison to other
terms of frequency, VA provides the below graphic. See also the visual
aid published at www.regulations.gov under RIN 2900-AR96.
---------------------------------------------------------------------------
\3\ Cambridge University Press & Assessment, 2023, https://dictionary.cambridge.org/dictionary/english/typically (last visited
Feb. 8, 2024) (also defining ``typically'' as ``used when you are
giving an average or usual example of a particular thing'' and ``in
a way that shows the characteristics of a particular kind of person
or thing; or gives a usual example of a particular thing'').
\4\ The Britannica Dictionary, 2023, https://www.britannica.com/dictionary/typically (last visited Feb. 8, 2024).
---------------------------------------------------------------------------
Figure 1--Typically Requires
[GRAPHIC] [TIFF OMITTED] TP06DE24.004
Additionally, like the definition of in the best interest in Sec.
71.15, VA's proposed definition of typically requires would make clear
that it is a clinical determination. This definition would allow VA to
consider each individual's unique functional needs, abilities, and
usual routines when making the clinical determination of whether the
criteria in proposed Sec. 71.20(a)(3)(i) and (iii) and proposed Sec.
71.40(c)(4)(i)(A)(2)(i) are met. Additional discussion on how VA
proposes to use the term typically requires is found in VA's discussion
on proposed changes to Sec. Sec. 71.20 and 71.40 below.
VA solicits comments from the public on all aspects of this
proposed rule. In particular, VA asks the following questions on
specific aspects of this proposal.
1. Please identify any similarly situated veterans or
servicemembers who may not have an IU rating but nonetheless should be
found to have a serious injury under the definition of that term in
Sec. 71.15 based on other VA ratings or other criteria.
2. VA has proposed a definition for the term typically requires
that, in part, refers to that which is generally necessary. What other
phrasing should VA consider as an alternative to generally necessary
and why? Are there other criteria with regard to frequency that should
be considered in defining typically requires?
3. Is there an alternative term other than typically requires that
would be better defined to mean that which is generally necessary? For
example, would the phrasing usually, most of the time, routinely, or
ordinarily requires be clearer than the phrasing typically requires?
4. What factors should VA consider when determining what is
generally necessary?
D. 38 CFR 71.20 Eligible Veterans and Servicemembers
Section 71.20(a) sets forth seven criteria for veterans and
servicemembers to be determined eligible for a Primary Family Caregiver
or Secondary Family Caregiver under part 71. In this rulemaking
proposal, VA proposes to make substantive revisions to only two of the
current criteria in Sec. 71.20(a): (1) the individual is in need of
personal care services for a minimum of six continuous months based on
an inability to perform an activity of daily living, or a need for
supervision, protection, or instruction (see Sec. 71.20(a)(3)); and
(2) the individual receives ongoing care from a primary care team or
will do so if VA designates a Family Caregiver (see Sec. 71.20(a)(7)).
VA also proposes to make technical edits to Sec. 71.20(a), as
described in more detail below. VA's discussions of proposed changes
include illustrative examples of how a veteran or servicemember could
meet the two referenced criteria; however, this does not guarantee
eligibility of the veteran or servicemember or caregiver applicant for
participation in PCAFC, particularly as all the other criteria in Sec.
71.20(a) would also have to be met, in addition to meeting other
requirements in part 71.
[[Page 97413]]
1. Section 71.20(a)(3)--Bases Upon Which the Individual May Be
Determined To Be in Need of Personal Care Services for a Minimum of Six
Continuous Months
Current Sec. 71.20(a)(3) requires that the individual be in need
of personal care services for a minimum of six continuous months based
on (i) an inability to perform an activity of daily living; or (ii) a
need for supervision, protection, or instruction. VA established these
criteria based on its interpretation of 38 U.S.C. 1720G(a)(2)(C)(i)
through (iii). 85 FR 13371-13372 (March 6, 2020). However, VA's use of
the term need for supervision, protection, or instruction, including
its definition, was invalidated by the court's decision in Veteran
Warriors, as explained in the above discussion on the proposed removal
of such term and definition from 38 CFR 71.15. As such, and to make
other changes to better clarify the three statutory bases upon which an
individual may be determined to be in need of personal care services in
38 U.S.C. 1720G(a)(2)(C)(i) through (iii), VA proposes to amend 38 CFR
71.20(a)(3) by revising the language in paragraphs (i) and (ii) and
adding a new paragraph (iii).
As proposed, Sec. 71.20(a)(3) would state the individual is in
need of personal care services for a minimum of six continuous months
based on any one of the following: (i) the individual typically
requires hands-on assistance to complete one or more ADL; (ii) the
individual has a frequent need for supervision or protection based on
symptoms or residuals of neurological or other impairment or injury; or
(iii) the individual typically requires regular or extensive
instruction or supervision to complete one or more ADL.
a. Proposed Sec. 71.20(a)(3)(i)--The Individual Typically Requires
Hands-On Assistance To Complete One or More ADL
As explained in the discussion of the definition of the term
inability to perform an ADL, VA proposes to remove such term and its
definition from Sec. 71.15 and address the statutory basis under 38
U.S.C. 1720G(a)(2)(C)(i) (that is, the individual is in need of
personal care services because of an inability to perform one or more
ADL) in proposed 38 CFR 71.20(a)(3)(i) for purposes of determining a
veteran's or servicemember's eligibility for PCAFC.
Therefore, VA proposes to revise Sec. 71.20(a)(3)(i) to remove the
current language of an inability to perform an activity of daily living
and replace it with the individual typically requires hands-on
assistance to complete one or more ADL. An individual who typically
requires hands-on assistance to complete one or more ADL would have an
inability to perform such ADL without such assistance, which would be
consistent with the criterion in 38 U.S.C. 1720G(a)(2)(C)(i). This
would include individuals who require assistance with some, or all of
the tasks associated with an ADL, thus permitting individuals who are
unable to contribute to the completion of the ADL to meet this
criterion. VA explains below how this proposed change would clarify and
differ from the current eligibility criterion in Sec. 71.20(a)(3)(i).
i. Hands-On Assistance
First, in determining whether an individual is in need of personal
care services under proposed Sec. 71.20(a)(3)(i), VA would consider
whether the individual typically requires ``hands-on'' assistance to
complete one or more ADL. VA would require ``hands-on'' assistance for
purposes of proposed paragraph (i), as this would be consistent with
how VA has interpreted and applied the term inability to perform an
ADL, (and remains consistent with 38 U.S.C. 1720G(a)(2)(C)(i)), for
purposes of determining whether a veteran or servicemember is in need
of personal care services on such basis. See 85 FR 46229, 46233, 46235
(July 31, 2020). In VA's July 31, 2020 Final Rule, VA noted that if an
eligible veteran is eligible for PCAFC because they meet the definition
of inability to perform an ADL, the in-person personal care services
required to perform an ADL would be hands-on care. Id. at 46229. This
is how VA has implemented this requirement since that final rule took
effect on October 1, 2020. Individuals who do not meet the ``hands-on''
requirement may still meet the requirement for being in need of
personal care services under current 38 CFR 71.20(a)(3) based on the
statutory text in 38 U.S.C. 1720G(a)(2)(C)(ii) or (iii)--even though
their needs are related to ADLs. See 85 FR 46235 (July 31, 2020). To
provide further clarity and remove uncertainty concerning the type of
assistance an individual must typically require in order to meet the
criterion in proposed 38 CFR 71.20(a)(3)(i), VA proposes to include the
words ``hands-on''.
By using the phrase ``assistance to complete'' in proposed Sec.
71.20(a)(3)(i), in reference to situations in which hands-on assistance
is typically required, it is not VA's intent to require any minimum
amount of contribution by the veteran or servicemember in completing
the ADL. If a caregiver performs an ADL entirely on behalf of the
veteran or servicemember (such as dressing and undressing or bathing a
veteran or servicemember who is unable to contribute to the completion
of such ADL because of a physical or cognitive disability), the veteran
or servicemember could still meet this proposed criterion.
In addition to being consistent with current practice, including
the words ``hands-on'' in proposed Sec. 71.20(a)(3)(i) would also make
clear a distinction between proposed Sec. 71.20(a)(3)(i), and proposed
Sec. 71.20(a)(3)(ii) and (iii), as proposed paragraph (iii) would set
forth an additional explicit basis upon which an individual can be
determined to be in need of personal care services related to an ADL,
even without a need for ``hands-on'' assistance with the performance of
one or more ADL.
ii. Removal of ``Each Time'' Requirement
Next, VA proposes to change the requirement that an individual must
require personal care services ``each time'' the veteran or
servicemember completes one or more ADL to be determined eligible for
PCAFC under the basis in Sec. 71.20(a)(3)(i). To do this, VA proposes
to modify the current language in Sec. 71.20(a)(3)(i) to remove
reference to the term inability to perform an ADL. In current Sec.
71.15, the definition of inability to perform an ADL means a veteran or
servicemember requires personal care services ``each time'' they
complete one or more ADL. Since VA proposes to remove the term
inability to perform an ADL and its definition from Sec. 71.15 and
instead interpret the statutory requirement in 38 U.S.C.
1720G(a)(2)(C)(i) in proposed 38 CFR 71.20(a)(3)(i), VA believes it is
important to acknowledge that VA's proposed revisions to Sec.
71.20(a)(3)(i) would not retain the ``each time'' requirement for
purposes of determining whether an individual typically requires hands-
on assistance to complete one or more ADL, as VA has found ``each
time'' to be too restrictive.
In establishing this requirement of ``each time'', VA believed that
specifying the frequency with which personal care services would be
needed (that is, ``each time'' the veteran or servicemember completes
one or more ADL) would establish a clear, objective standard that could
be consistently applied throughout PCAFC. See 85 FR 13360-13361 (March
6, 2020); 85 FR 46233 (July 31, 2020). It was also established to align
with VA's goal of focusing PCAFC on eligible veterans with moderate and
severe needs. Id.
[[Page 97414]]
However, VA received comments when it originally proposed the ``each
time'' requirement, which included concerns that the ``each time''
requirement would be too restrictive and may result in denial of
eligibility for some individuals with moderate and severe needs. Id. at
46232-46234. In the July 31, 2020 Final Rule, VA explained that if,
over time, VA found that the definition of inability to perform an ADL
was as restrictive as the commenters asserted it would be, VA would
adjust and revise the definition accordingly in a future rulemaking.
Id. at 46234.
Since that time, VA has continued to receive feedback from
stakeholders that the requirement of ``each time'' in the current
definition of the term inability to perform an ADL is too restrictive.
For example, this issue was raised by stakeholders that participated in
VA's roundtable listening session conducted on December 5, 2023. (See
written transcript of roundtable discussion available online at
www.regulations.gov under RIN 2900-AR96). VA agrees based on VA's
review of denied applications. Through exchanges with stakeholders,
including veterans, caregivers, VSOs, and members of Congress, and
reviews of de-identified PCAFC evaluations that have been completed, VA
identified instances of veterans with moderate or severe needs who
almost always require assistance with one or more ADL yet, because of
occasional episodes of independence, do not meet the current standard
of requiring personal care services ``each time'' the veteran completes
one or more ADL. This does not align with VA's intent to focus PCAFC on
individuals with moderate and severe needs. VA provides illustrative
examples below to showcase the restrictive nature of the ``each time''
requirement.
For example, a veteran may experience tremors and weakness due to
their disability and consequently, require hands-on assistance from
another individual when feeding and dressing on most occasions.
However, due to waxing and waning of such symptoms over the course of
an occasional day, this veteran can feed and dress themselves without
assistance from another individual when they are experiencing limited
symptoms. Such episodes in which the veteran experiences limited
symptoms are not common for the veteran's level of function, and the
reprieve of symptoms is infrequent. Because this veteran has occasional
episodes of independence to complete one or more ADL, the veteran does
not meet the current definition of inability to perform an ADL because
personal care services are not required ``each time'' they feed and
dress themselves.
Similarly, as another example, a veteran who usually requires
hands-on assistance with toileting and mobility may have occasional
days when the veteran, following a full night of rest, can perform each
of these ADL independently for a limited period of time in the morning.
However, as the day progresses, this veteran becomes fatigued and is
unable to sustain the level of exertion needed to independently perform
these ADL for the remainder of the day, thus requiring the assistance
of another individual. This veteran also does not meet the current
definition of inability to perform an ADL because they do not require
assistance ``each time'' they perform these ADL.
In these and similar illustrative examples, VA has found that the
``each time'' standard has excluded individuals from meeting the
requirement to be in need of personal care services based on an
inability to perform an ADL despite having what VA considers to be
moderate or severe needs. Such individuals are determined to not meet
the current definition of inability to perform an ADL because they have
episodes of independence that do not result in such individuals
requiring personal care services ``each time'' they perform an ADL and
they do not meet the requirement under current Sec. 71.20(a)(3)(i). VA
has thus determined that the requirement of ``each time'' in the
current definition of inability to perform an ADL is too restrictive.
VA acknowledges that when the ``each time'' requirement in the
definition of inability to perform an ADL was established, VA believed
that such an objective and clear frequency requirement was necessary to
create a consistent standard that could be operationalized across
PCAFC. 85 FR 46233 (July 31, 2020). However, VA no longer believes this
standard is necessary to create consistency when evaluating an
individual's inability to perform an ADL. This is because VA's process
for evaluating veterans and servicemembers under Sec. 71.20(a)(3)
includes comprehensive assessments that are able to identify specific
variability in a veteran's or servicemember's unique functional needs,
abilities, and usual routines. VA therefore asserts it is reasonable
and appropriate to propose a standard that is less strict than ``each
time'' in order to accommodate veterans and servicemembers with
moderate and severe needs who would otherwise be excluded from PCAFC.
As an alternative to this proposal, VA considered whether to
include a specific frequency requirement other than ``each time'', and
whether that should be a quantitative standard. VA recognizes the
importance of ensuring VA's interpretation of 38 U.S.C.
1720G(a)(2)(C)(i) in proposed 38 CFR 71.20(a)(3)(i) accounts for the
unique functional needs, abilities, and usual routines of individual
veterans and servicemembers who require hands-on assistance to complete
one or more ADL and decided not to propose a quantitative standard and
instead focus on what a veteran or servicemember typically requires. As
discussed in regard to proposed changes to Sec. 71.15, VA proposes to
add a definition stating that typically requires means a clinical
determination which refers to that which is generally necessary.
As identified by the Federal Circuit in Veteran Warriors, ``[t]here
is a statutory gap'' as to how often an individual must be unable to
perform an ADL under 38 U.S.C. 1720G(a)(2)(C)(i). See Veteran Warriors
at 1339. Previously, VA adopted the ``each time'' requirement to fill
that gap for purposes of interpreting and applying 38 U.S.C.
1720G(a)(2)(C)(i), and now, VA proposes to modify the requirement by
replacing it with typically requires in 38 CFR 71.20(a)(3)(i).
Inclusion of the term typically requires would address such questions
as how often a veteran or servicemember must be unable to perform an
ADL, how often the inability must be present, and how pervasive the
inability must be for purposes of establishing inability to perform an
ADL. Id.
In proposing to revise Sec. 71.20(a)(3)(i) to focus on what is
typically required by each veteran or servicemember rather than use
another quantitative standard, VA would avoid setting a specific
quantifiable threshold. VA acknowledges that in its July 31, 2020 Final
Rule VA stated it did not want to use a non-specific threshold (for
example, most or majority of time) for purposes of defining inability
to perform an ADL because using such thresholds would be vague,
subjective, arbitrary, difficult to quantify, and could lead to
inconsistencies. 85 FR 46233-46234 (July 31, 2020). However, VA now
believes using the term typically requires is appropriate because the
determination of whether a veteran or servicemember is in need of
personal care services based on an inability to perform an ADL is a
clinical determination that inherently accounts for the individual's
unique functional needs, abilities, and usual routines. A specific
quantifiable threshold that
[[Page 97415]]
applies equally to all individuals could potentially result in the
exclusion of some veterans and servicemembers with moderate and severe
needs from PCAFC as was the case with VA's implementation of the ``each
time'' requirement. This is because such a threshold would not provide
the flexibility that would be required to account for each individual's
unique functional needs, abilities, and usual routines in making the
determination of whether they are in need of personal care services.
iii. Implementation of Proposed Sec. 71.20(a)(3)(i)
A determination that a veteran or servicemember typically requires
hands-on assistance to complete one or more ADL under proposed Sec.
71.20(a)(3)(i) would be a clinical determination based on an assessment
of the veteran's or servicemember's unique functional needs, abilities,
and usual routines and take into consideration the tasks required to
complete the ADL. In making this clinical determination VA may
consider, for example, the frequency with which the ADL is completed,
the functions and tasks performed by the individual to complete the
ADL, and the frequency with which hands-on assistance from another
individual is needed to complete such ADL, as each of these can vary
from person to person.
A. Frequency of the Functions and Tasks Required To Complete an ADL
VA first must determine what functions and tasks are performed by
an individual in order to complete an ADL, as this can vary from person
to person. VA notes that requiring hands-on assistance only to complete
functions or tasks performed on an occasional basis that are not part
of the individual's usual self-care routine would not mean the veteran
or servicemember typically requires hands-on assistance to complete an
ADL. For example, one veteran may shave on a daily basis as part of
completing the ADL of grooming, while a different veteran who chooses
to maintain a full beard does not shave as part of their grooming
routine.
B. Frequency of Need for Hands-On Assistance
VA would not require assistance ``each time'' the veteran or
servicemember completes the ADL, as was explained above. Rather, VA
would assess how frequently hands-on assistance is needed in
conjunction with how often the ADL is completed. This would be a more
expansive basis than what VA applies today.
Failure to meet the proposed criterion in Sec. 71.20(a)(3)(i)
would not preclude individuals from being determined to be in need of
personal care services under another basis in Sec. 71.20(a)(3).
Veterans and servicemembers could also be determined to be in need of
personal care services based on proposed Sec. 71.20(a)(3)(ii) or (iii)
(that is, the individual has a frequent need for supervision or
protection based on symptoms or residuals of neurological or other
impairment or injury; or the individual typically requires regular or
extensive instruction or supervision to complete one or more ADL),
which are discussed below.
b. Proposed Sec. 71.20(a)(3)(ii)--The Individual Has a Frequent Need
for Supervision or Protection Based on Symptoms or Residuals of
Neurological or Other Impairment or Injury
Under current Sec. 71.20(a)(3)(ii), an individual may be
determined to be in need of personal care services for a minimum of six
continuous months based on a need for supervision, protection, or
instruction. As explained above, this criterion was intended to
implement the statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and
(iii) in a combined manner. However, the U.S. Court of Appeals for the
Federal Circuit invalidated this term and its definition in the Veteran
Warriors decision. Since the Veteran Warriors decision, in place of the
term need for supervision, protection, or instruction and its
definition in current Sec. 71.15, VA has applied the statutory
language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) when determining
whether a veteran or servicemember is in need of personal care services
under 38 CFR 71.20(a)(3)(ii).
VA proposes to update its regulations to align with VA's current
practice of interpreting the statutory criteria in 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii) separately. To do so, VA proposes to
revise 38 CFR 71.20(a)(3)(ii) to align with how VA has implemented the
statutory criteria for 38 U.S.C. 1720G(a)(2)(C)(ii) (that is, a need
for supervision or protection based on symptoms or residuals of
neurological or other impairment or injury) as a result of the Veteran
Warriors decision. For purposes of interpreting 38 U.S.C.
1720G(a)(2)(C)(ii), VA proposes to revise 38 CFR 71.20(a)(3)(ii) by
replacing the language ``[a] need for supervision, protection, or
instruction'' with the language ``[t]he individual has a frequent need
for supervision or protection based on symptoms or residuals of
neurological or other impairment or injury''. This would be consistent
with the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii). However,
as previously discussed regarding 38 U.S.C. 1720G(a)(2)(C)(i), the
statutory language in section 1720G(a)(2)(C)(ii) does not include an
explicit frequency requirement; therefore, VA proposes to include the
phrase ``has a frequent need'' in proposed 38 CFR 71.20(a)(3)(ii) to
address that gap. Such term would be reflective of how VA has been
applying this statutory basis since the Veteran Warriors ruling.
Consistent with that, VA intends to apply common dictionary definitions
of the word ``frequent'', which refer to an action occurring
``repeatedly, ``habitually'', or ``on many occasions'', when
implementing this new criterion.\5\ VA discusses its proposed
implementation of this language in greater detail further below.
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\5\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/frequent (last visited Jul. 26, 2024); The
Britannica Dictionary, 2023, https://www.britannica.com/dictionary/frequent (last visited Jul. 26, 2024); and Oxford English
Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=frequent (last visited Jul. 26, 2024).
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In implementing this proposed change, VA would continue to apply
the statutory criteria as it relates to the interpretation of
``supervision or protection'' and ``symptoms or residuals of
neurological or other impairment or injury'' as VA does in current
practice. VA discusses this interpretation below.
i. Supervision or Protection
The statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) does not
define supervision or protection. Therefore, VA has relied on common
definitions and uses of these terms to inform VA's interpretation of
this statutory provision. For instance, consistent with dictionary
definitions of the term, VA considers ``supervision'' to be critical
watching of an individual to provide oversight or directing (such as of
activities or actions).\6\ For the purposes of proposed 38 CFR
71.20(a)(3)(ii), supervision would not be limited to or dependent upon
the veteran's or servicemember's needs related to specific activities
or functions, which is in contrast to VA's interpretation of
``supervision'' under proposed Sec. 71.20(a)(3)(iii), as discussed in
more detail below. When VA evaluates a veteran or servicemember on the
basis of whether the individual has a frequent
[[Page 97416]]
need for supervision based on symptoms or residuals of neurological or
other impairment or injury, VA considers their overall need for
supervision in general. VA interprets the word ``protection'' to mean
keep, cover, or shield from harm. This is also consistent with common
definitions for such term.\7\
---------------------------------------------------------------------------
\6\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/supervision (last visited Feb. 8, 2024); The
Britannica Dictionary, 2023, https://www.britannica.com/dictionary/supervision (last visited Feb. 8, 2024); and Oxford English
Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=supervision (last visited Feb. 8, 2024).
\7\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/protect (last visited Feb. 8, 2024); and The
Britannica Dictionary, 2023, https://www.britannica.com/dictionary/protection (last visited Feb. 8, 2024).
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VA considers the need for both supervision and protection when
evaluating the statutory criterion in 38 U.S.C. 1720G(a)(2)(C)(ii).
Although VA recognizes that the terms are distinct, VA does not believe
it is necessary in its determinations to parse out whether an
individual needs supervision, protection, or both under proposed 38 CFR
71.20(a)(3)(ii) because either one would satisfy this regulatory basis.
Additionally, making this distinction would prove challenging because
individuals who have a need for protection, generally also have a need
for supervision. Likewise, an individual who needs supervision may need
such supervision at times as a means of protection; however, at other
times, supervision may be needed in the absence of a need for
protection. When a caregiver takes action to protect a veteran or
servicemember from harm, they may do so in the course of also
overseeing (or supervising) that individual. For example, a veteran
with a history of hypervigilance and hallucinations and who acts upon
such hallucinations may need protection to support their safety during
hallucinations. In such instances, the caregiver must provide
supervision to identify whether protection is needed.
ii. Symptoms or Residuals of Neurological or Other Impairment or Injury
Next, VA describes its interpretation of the basis for such
supervision and protection, that is, symptoms or residuals of
neurological or other impairment or injury. Consistent with VA's
current practice, in evaluating and determining whether a veteran or
servicemember has a frequent need for supervision or protection based
on symptoms or residuals of neurological or other impairment or injury
under proposed Sec. 71.20(a)(3)(ii), VA would not have a discrete list
of symptoms or residuals of neurological or other impairment or injury
by which a veteran or servicemember may be determined eligible under
this criterion as these can vary by individual. As clinical practices
evolve over time, VA would not want to list in regulation specific
symptoms or residuals as doing so could unnecessarily limit VA's
ability to find individuals eligible under this criterion. However,
examples of symptoms and residuals of neurological or other impairment
or injury for which a veteran or servicemember may require supervision
or protection may include, but are not limited to, unmanaged impulse
control, command hallucinations, uncontrolled seizures, loss of
muscular control, or cognitive impairments.
VA does not currently have a discrete list of neurological or other
impairments or injuries that would make a veteran or servicemember
eligible under this criterion. See 85 FR 13363-13364 (March 6, 2020).
This is because individuals with similar impairments or injuries may
experience a wide variation of symptoms leading to a variety of
functional impacts. While VA does not propose to maintain a discrete
list of impairments or injuries in regard to this criterion, examples
of impairments or injuries for which symptoms or residuals may lead to
a veteran or servicemember typically requiring supervision or
protection may include, but are not limited to, traumatic brain injury,
mental health conditions, Parkinson's disease, dementia, and
neuromuscular disorders such as muscular dystrophy, multiple sclerosis,
or amyotrophic lateral sclerosis.
iii. Implementation of Proposed Sec. 71.20(a)(3)(ii)
While VA would consider whether an individual has a frequent need
for supervision or protection when evaluating whether an individual is
in need of personal care services on this basis, VA would not set forth
a specific quantitative requirement for the frequency with which a
veteran or servicemember may require supervision or protection other
than specifying that the need for supervision or protection is
frequent. VA has found that there is no uniform frequency of
individuals' need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury. The frequency
of need varies based on each individual's unique needs and depends on
severity of their symptomology.
Therefore, when implementing proposed Sec. 71.20(a)(3)(ii), VA
would consider how frequently a veteran or servicemember is in need of
personal care services under this basis. VA would consider how symptoms
manifest for each unique individual, whether their symptoms are well-
controlled, and whether the veteran or servicemember has a past pattern
or history of requiring supervision or protection because of such
symptomology. Although a past pattern or history of requiring
supervision or protection will be considered, VA notes that it is not
necessarily determinative of whether an individual would be determined
to meet proposed Sec. 71.20(a)(3)(ii), as such individual may not
continue to need supervision or protection on a frequent basis.
In requiring a ``frequent need'', VA can allow for variance in the
type of need and circumstances presented in each individual case, while
still maintaining a consistent standard. This approach differs from the
frequency proposed under 38 CFR 71.20(a)(3)(i) and (iii) (that is,
typically requires). This is because unlike the criteria in proposed
Sec. 71.20(a)(3)(i) and (iii), which focus on ADLs, the need for
supervision or protection based on symptoms or residuals of
neurological or other impairment or injury proposed in Sec.
71.20(a)(3)(ii) does not have a discrete list of needs or
circumstances. In this regard, determining what is typically required
for an individual would be impractical.
To illustrate how the requirement for a frequent need would be
applied, VA provides the following example. There may be two veterans
with the same diagnosis of multiple sclerosis who both have symptoms of
muscle weakness that require a caregiver to stay in close proximity and
intervene if the veteran stumbles, to minimize or prevent falls. In
this example, one veteran experiences muscle weakness on a daily, or
near daily, basis and has a history of multiple falls, resulting in a
daily or near daily need for supervision and/or protection by a
caregiver. The other veteran experiences occasional muscle weakness one
or two days per week for limited amounts of time following completion
of recommended strengthening exercises, resulting in an occasional need
for supervision or protection by a caregiver on these days. While these
two veterans have the same diagnosis and both experience the same
symptoms of muscle weakness, the former veteran may have a frequent
need for supervision and protection while the latter veteran may only
occasionally have such need. In the case of the second veteran in this
example, where the need for supervision or protection only occurs after
participating in their recommended strengthening exercises, the veteran
may not be considered to have a frequent need for supervision or
protection
[[Page 97417]]
because such need is infrequent and not generally necessary.
Additionally, under proposed 38 CFR 71.20(a)(3)(ii), VA would
consider whether an individual has a demonstrated past pattern or
history when determining whether the individual has a frequent need for
supervision or protection based on symptoms or residuals of
neurological or other impairment or injury. However, a past pattern or
history of needing supervision or protection is not necessarily
determinative of whether an individual would be determined to meet
proposed Sec. 71.20(a)(3)(ii), as such individual may not continue to
have a frequent need for supervision or protection.
VA looks forward to receiving public comments on this proposal.
Additionally, VA notes that if the changes under proposed Sec.
71.20(a)(3)(ii) become effective, VA would develop trainings and
guidance materials to support consistent evaluation of this standard.
c. Proposed Sec. 71.20(a)(3)(iii)--The Individual Typically Requires
Regular or Extensive Instruction or Supervision To Complete One or More
ADL
As previously explained, the current regulatory text in Sec.
71.20(a)(3)(ii) was intended to implement the statutory criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) in a combined manner by
establishing that an individual could be determined to be in need of
personal care services based on a need for supervision, protection, or
instruction. However, the Veteran Warriors decision, issued on March
25, 2022, invalidated VA's definition of need for supervision,
protection, or instruction. Since that decision, VA has been applying
the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in
place of the criterion in current 38 CFR 71.20(a)(3)(ii). VA discussed
its proposed interpretation of 38 U.S.C. 1720G(a)(2)(C)(ii) above and
proposes to further interpret 38 U.S.C. 1720G(a)(2)(C)(iii) in proposed
modifications to the regulations as discussed in more detail below.
For purposes of interpreting 38 U.S.C. 1720G(a)(2)(C)(iii) (that
is, 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), VA proposes to add 38 CFR 71.20(a)(3)(iii) to
state that the individual typically requires regular or extensive
instruction or supervision to complete one or more ADL. This proposed
interpretation of the statutory criteria deviates from current practice
in two ways. The first is VA's inclusion of the term typically
requires, which would specify how often a veteran or servicemember
would be in need of personal care services on this basis. The second is
that VA identified a need to further define its interpretation of the
statutory phrase ``without which the ability of the veteran to function
in daily life would be seriously impaired''. In proposed Sec.
71.20(a)(3)(iii), VA would interpret this statutory phrase to mean ``to
complete one or more ADL''. VA discusses its interpretation of the
statutory language and its proposed criterion in greater detail further
below.
i. Typically Requires
Including the term typically requires in proposed Sec.
71.20(a)(3)(iii) would specify the frequency with which an eligible
veteran would be in need of personal care services on this basis and
would align with VA's use of the term typically requires in proposed
Sec. 71.20(a)(3)(i), as discussed above. Although the words
``regular'' and ``daily'' in 38 U.S.C. 1720G(a)(2)(C)(iii) could be
viewed in isolation as referring to specific frequencies, for the
reasons explained below, VA does not believe that Congress intended
those words to establish any frequency requirement in section
1720G(a)(2)(C)(iii). Accordingly, VA proposes to include the term
typically requires in proposed 38 CFR 71.20(a)(3)(iii) to modify the
frequency requirement previously established in the definition of
supervision, protection, or instruction that referred to a ``daily
basis''.\8\
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\8\ Even if not viewed as a statutory gap, the language in 38
U.S.C. 1720G(a)(2)(C)(iii) is at least ambiguous as to the frequency
with which an individual would need regular or extensive instruction
to be determined in need of personal care services on this basis.
For the reasons explained below, VA would resolve that ambiguity by
establishing in proposed 38 CFR 71.20(a)(3)(iii), that the
individual typically requires regular or extensive instruction or
supervision to meet this criterion.
---------------------------------------------------------------------------
ii. Regular or Extensive Instruction or Supervision
In 38 U.S.C. 1720G(a)(2)(C)(iii), Congress did not define what is
meant by regular or extensive instruction or supervision. In
implementing this statutory criterion, VA has relied upon common
definitions of the terms ``regular'', ``extensive'', ``instruction'',
and ``supervision'' to inform VA's interpretation. Today, ``regular''
has been applied to mean some amount of supervision or instruction
while ``extensive'' has generally been applied to mean a large amount
of supervision or instruction. Additionally, to date, VA has applied
common definitions of ``instruction'' and ``supervision'' when
implementing the statutory criteria under section 1720G(a)(2)(C)(iii).
VA now seeks to clarify and further define its interpretation of the
statutory criterion and use of these terms.
The term ``instruction'' commonly refers to the provision of
guidance or detailed information to complete or perform an action. It
is defined as ``something that someone tells you to do,'' as ``a
statement that describes how to do something; an order or command; the
action or process of teaching'' and ``that which is taught; knowledge
or authoritative guidance imparted by one person to another.'' \9\ VA's
use of the term ``instruction'' in proposed Sec. 71.20(a)(3)(iii)
would be consistent with these definitions, as VA would consider the
need for instruction to mean the need for detailed information is
necessary to perform an activity as VA does in current practice.
---------------------------------------------------------------------------
\9\ See Cambridge Dictionary, 2023, https://dictionary.cambridge.org/us/dictionary/english/instruction (last
visited Feb. 8, 2024); The Britannica Dictionary, 2023, https://www.britannica.com/dictionary/instruction (last visited Feb. 8,
2024); and Oxford English Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=instruction (last visited Feb. 8,
2024).
---------------------------------------------------------------------------
VA's interpretation of the meaning of ``supervision'' is addressed
in the discussion above regarding proposed 38 CFR 71.20(a)(3)(ii) (that
is, VA considers ``supervision'' to be critical watching of an
individual to provide oversight or directing (such as of activities or
actions)).\10\ While the term ``supervision'' has the same meaning in
proposed paragraphs (a)(3)(ii) and (iii), in proposed paragraph
(a)(3)(iii) supervision would be needed with respect to the veteran's
or servicemember's ability to complete one or more ADL, in contrast to
supervision under proposed paragraph (a)(3)(ii) which does not include
that same requirement.
---------------------------------------------------------------------------
\10\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/supervision (last visited Sept. 24, 2023);
The Britannica Dictionary, 2023, https://www.britannica.com/dictionary/supervision (last visited Feb. 8, 2024); and Oxford
English Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=supervision (last visited Feb. 8, 2024).
---------------------------------------------------------------------------
Additionally, VA recognizes that the terms ``instruction'' and
``supervision'' are distinct terms. However, consistent with VA's
proposed approach with regard to supervision or protection under
proposed 38 CFR 71.20(a)(3)(ii) discussed above, VA does not believe it
is necessary in its determinations to parse out whether an individual
typically requires instruction, supervision, or both under proposed
[[Page 97418]]
Sec. 71.20(a)(3)(iii) because either one would satisfy this regulatory
basis.
Next, VA explains its proposed interpretations of ``regular''
instruction or supervision and ``extensive'' instruction or supervision
and the distinction between the two. The word ``regular'' can carry
several meanings, such as ``characterized by evenness, order, or
harmony in physical form, structure, or organization; arranged in or
constituting a constant or definite pattern; happening over and over
again at the same time or in the same way; happening or done very
often; normal or usual.'' \11\ Merriam Webster Dictionary describes
``regular'' as meaning, ``recurring, attending, or functioning at
fixed, uniform, or normal intervals; normal, standard; something of
average or medium size.'' \12\ It is this latter meaning, that is, that
which is something of average or medium size, which VA interprets to
have the most applicability for purposes of evaluating that which is
``regular'' instruction or supervision under proposed Sec.
71.20(a)(3)(iii). Notably, ``regular'' is commonly used to refer to a
standard or indicative of size, such as regular clothing size versus
petite or long, regular warranty versus extended warranty, regular
display versus extended display, or an amount, such as with regular
(basic) rates of pay.\13\ These common definitions and usages that
align with the term meaning a size or degree, inform VA's
interpretation of the statutory language and its use of the term
``regular'' in proposed Sec. 71.20(a)(3)(iii). This is also consistent
with how VA currently interprets this term when applying the statutory
criteria today.
---------------------------------------------------------------------------
\11\ See Cambridge Dictionary, 2023, https://dictionary.cambridge.org/us/dictionary/english/regular (last visited
Feb. 8, 2024); The Britannica Dictionary, 2023, https://www.britannica.com/dictionary/regular (last visited Feb. 8, 2024);
and Oxford English Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=regular (last visited Feb. 8, 2024).
\12\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/regular (last visited Feb. 8, 2024).
\13\ See for example, Regular Military Compensation (RMC)
Calculator, Department of Defense, https://militarypay.defense.gov/calculators/rmc-calculator/ (Describing ``regular military
compensation'' as a basic level of compensation that every
servicemember receives.) (last visited Feb. 8, 2024).
---------------------------------------------------------------------------
VA's use of the term ``regular'' in proposed Sec. 71.20(a)(3)(iii)
aligns with common usage of the term relating to size or degree, such
as a standard amount. VA considered the use of ``regular'' in terms of
frequency. However, Congress did not include a frequency requirement in
either of the criteria found in 38 U.S.C. 1720G(a)(2)(C)(i) or (ii).
Therefore, VA does not believe that Congress intended to add a
frequency requirement in the context of only one basis that an
individual could be determined to be in need of personal care
services.\14\ As previously discussed, VA is proposing to establish a
consistent frequency requirement for the two statutory bases VA
proposes would apply to the need for personal care services to complete
ADLs through VA's use of the term typically requires in the proposed
criterion discussed here and the criterion in proposed 38 CFR
71.20(a)(3)(i) discussed above. As referenced in VA's discussion of
proposed Sec. 71.15, typically requires would be a clinical
determination that would take into consideration an individual's unique
functional needs, abilities, and usual routines when assessing the
frequency of the individual's need for personal care services.
---------------------------------------------------------------------------
\14\ One could argue that use of the word ``daily'' in section
1720G(a)(2)(C)(iii) refers to a frequency requirement and could
imply that a veteran or servicemember must experience the need each
day. However, in section 1720G(a)(2)(C)(iii) the word ``daily'' is
used to modify the word ``life'' and is better understood to refer
to the types of activities that the veteran or servicemember
ordinarily completes to function in the normal course of a day (such
as ADL). For this reason, VA does not read the word ``daily'' in
section 1720G(a)(2)(C)(iii) to contain a frequency requirement.
Additional discussion of VA's interpretation of the phrase ``ability
of the veteran to function in daily life would be seriously
impaired'' in section 1720G(a)(2)(C)(iii) is below.
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Similarly, VA would continue to interpret the term ``extensive'' to
also account for size or degree but on a larger scale than regular. The
term ``extensive'' commonly refers to that which is large in size or
amount, having a wide or considerable extent, or extending over or
occupying a large surface or space, covering a large area or being a
large amount.\15\ Each of these meanings for extensive refers to a size
or degree. VA therefore equates ``extensive'' with a greater size or
higher degree of personal care services requiring instruction or
supervision than that of ``regular'' as explained below.
---------------------------------------------------------------------------
\15\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/extensive (last visited Feb. 8, 2024); The
Britannica Dictionary, 2023, https://www.britannica.com/dictionary/extensive (last visited Feb. 8, 2024); and Oxford English
Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=extensive (last visited Feb. 8, 2024).
---------------------------------------------------------------------------
VA interprets the terms regular (something of average or medium
size) and extensive (that which is large in size), to reflect different
points along a spectrum. VA interprets this difference in size or
degree to reflect a distinction in the size or degree of personal care
services required by the veteran or servicemember. This means that a
regular need for instruction or supervision is of a lower size or
degree than an extensive need for instruction or supervision.
Using this proposed standard, if adopted as final, when applying
the criterion in proposed 38 CFR 71.20(a)(3)(iii), VA would interpret
the need for extensive instruction or supervision to mean that such
instruction or supervision is required throughout the performance of
the activity; hence the personal care services (that is, instruction or
supervision) required to complete the activity would be of a large size
or degree. In contrast, VA would interpret the need for regular
instruction or supervision to mean such personal care services are only
needed to complete a portion of the activity. Thus, VA would consider
``regular'' to refer to a lesser size or degree of instruction or
supervision than that of ``extensive''.
Although VA interprets ``regular'' and ``extensive'' to reflect
different sizes or degrees of personal care services required by the
veteran or servicemember, having either a ``regular'' or ``extensive''
need for instruction or supervision to complete one or more ADL would
satisfy the criterion in proposed Sec. 71.20(a)(3)(iii). This is
consistent with VA's proposed approach with regard to supervision or
protection under proposed Sec. 71.20(a)(3)(ii) and instruction or
supervision under Sec. 71.20(a)(3)(iii) discussed above. However, the
distinction between ``regular'' and ``extensive'' would be relevant to
determinations under proposed Sec. 71.40(c)(4)(A)(2)(i) regarding
stipend level determinations, as discussed further below.
iii. Ability To Function in Daily Life Would Be Seriously Impaired
Finally, in proposed 38 CFR 71.20(a)(3)(iii), VA also proposes to
interpret ``without which the ability of the veteran to function in
daily life would be seriously impaired'' in 38 U.S.C.
1720G(a)(2)(C)(iii) to mean that such individual typically requires
regular or extensive instruction or supervision ``to complete one or
more ADL''. This is a deviation from current practice as currently VA
may include other activities or functions in addition to ADL when
applying this statutory criterion as is explained below. VA believes it
is reasonable to interpret ADL as the ``ability of the veteran to
function in daily life'' contemplated in 38 U.S.C. 1720G(a)(2)(C)(iii).
Activities or functions other than ADL for which
[[Page 97419]]
veterans and servicemembers with moderate or severe needs may be in
need of personal care services could be captured under the basis
proposed in 38 CFR 71.20(a)(3)(ii) (that is, the individual has a
frequent need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury). Therefore,
proposed 38 CFR 71.20(a)(3)(iii) would refer to instruction or
supervision to complete one or more ADL rather than repeating the
verbiage in 38 U.S.C. 1720G(a)(2)(C)(iii).
As VA explained above regarding the term ``regular'' in section
1720G(a)(2)(C)(iii), VA does not believe Congress intended the term
``daily'' in such section to establish a frequency requirement--
especially one more restrictive than would apply under clauses (i) and
(ii) of section 1720G(a)(2)(C). The statute does not say that the
veteran or servicemember would have a daily need for regular or
extensive instruction or supervision. Rather, it says that without such
regular or extensive instruction or supervision, the ability to
``function in daily life would be seriously impaired.'' In this
context, VA interprets ``function in daily life'' to align with VA's
proposed definition of ADL in 38 CFR 71.15. In proposed Sec. 71.15,
ADL would be defined, in part, as the functions or tasks for self-care
usually performed in the normal course of a day. VA believes this is
consistent with the language 38 U.S.C. 1720G(a)(2)(C)(iii) concerning
functioning in daily life, as ADL are typically performed on a daily
basis. However, similar to VA's discussion on proposed 38 CFR
71.20(a)(3)(i) and the proposed definition of ADL in Sec. 71.15, VA
would not require that the ADL with which the individual requires
regular or extensive instruction or supervision be performed on a daily
basis. ADL often occur on a daily basis, but not always (for example,
bathing). For purposes of this criterion, VA would apply the proposed
definition of ADL in 38 CFR 71.15, and the term typically requires
would set forth the applicable frequency of need. VA explains its
rationale for this interpretation in more detail below.
In determining whether the ability of the veteran or servicemember
to function in daily life would be seriously impaired for purposes of
38 U.S.C. 1720G(a)(2)(C)(iii), VA contemplated what other essential
functions or activities, beyond or instead of ADL, might be considered
functions in daily life that would be seriously impaired without
regular or extensive instruction or supervision under proposed 38 CFR
71.20(a)(3)(iii). Specifically, VA considered activities caregivers
commonly assist veterans with beyond ADL. Such activities include but
are not limited to meal preparation, shopping for essential needs,
managing finances, housework, and coordinating medical care.\16\ VA
does not believe Congress intended to capture such activities under 38
U.S.C. 1720G(a)(2)(C)(iii) for the reasons discussed below.
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\16\ Rajeev Ramchand, et al., Hidden Heroes: America's Military
Caregivers. Santa Monica, CA: RAND Corporation (2014), pages 54-56,
available at https://www.rand.org/pubs/research_reports/RR499.html.
---------------------------------------------------------------------------
First, and most noteworthy, the phrasing of this criterion in 38
U.S.C. 1720G(a)(2)(C)(iii) implies the veteran or servicemember is the
individual who performs the activity. To have a need for regular or
extensive instruction or supervision without which the ability to
function in daily life would be seriously impaired suggests that the
veteran or servicemember must be capable of performing some activity to
function in daily life with the provision of such instruction or
supervision. This means that if a veteran or servicemember is not
capable of performing such activity because that veteran or
servicemember is physically or cognitively incapable of doing so, and
no amount of instruction or supervision would enable that veteran or
servicemember to perform that activity, such veteran or servicemember
would not qualify under this basis. This means an individual who may
have a greater need, that is, who requires another person to complete
the activity necessary for functioning in daily life in its entirely or
on behalf of the veteran, would not qualify under this basis, while an
individual who can complete the activity with assistance (instruction
or supervision) could qualify.\17\
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\17\ Note that the individual with a greater need may qualify
under a separate criterion under proposed 38 CFR 71.20(a)(3)(i) or
(ii) and the failure to qualify under this basis in Sec.
71.20(a)(3)(iii) would not mean that an individual is necessarily
ineligible for PCAFC.
---------------------------------------------------------------------------
Second, VA does not believe Congress intended to include activities
classified as instrumental activities of daily living (IADL) such as
meal preparation, shopping for essential needs, managing finances,
housework, or coordinating medical care within the criterion in 38
U.S.C. 1720G(a)(2)(C)(iii) because such activities are those that may
be completed entirely by another individual without the veteran's or
servicemember's presence or involvement. Therefore, if these activities
are not performed by the veteran or servicemember either by choice or
inability, and are instead completed by another individual, the
veteran's or servicemember's functioning in daily life would not be
seriously impaired--with or without instruction or supervision in
performing such activities, as they do not perform the activity. This
would not mean that individuals who are incapable of performing or who
otherwise need assistance with these activities would be excluded from
PCAFC. Such individuals may still be in need of personal care services
based on meeting the other criteria under proposed Sec. 71.20(a)(3).
Therefore, ADL are the only activities VA identified for which the
ability of the veteran or servicemember to function in daily life would
be seriously impaired in the absence of regular or extensive
instruction or supervision and that pursuant to this interpretation,
the criterion in proposed Sec. 71.20(a)(3)(iii) would not unduly
disadvantage one group over another. Furthermore, in contrast to the
other functions or activities VA considered, ADL cannot be done without
the veteran's or servicemember's presence or involvement. The veteran's
or servicemember's physical presence is necessary for the ADL to be
completed because the ADL that is completed is performed on, or
directly impacts, the veteran's body. Thus, VA finds it appropriate to
interpret 38 U.S.C. 1720G(a)(2)(C)(iii) to mean the individual
typically requires regular or extensive instruction or supervision to
complete one or more ADL. While there are indeed other activities which
could result in a veteran's or servicemember's ability to function in
daily life being seriously impaired that are not related to ADL, such
as but not limited to a veteran or servicemember who requires
supervision due to frequent falls, or a veteran or servicemember who
requires instruction or supervision to properly self-administer
medications, such needs could be captured under proposed 38 CFR
71.20(a)(3)(ii). An illustrative example is provided below when VA
addresses multiple bases for being determined to be in need of personal
care services.
Although VA did not identify any other life activities or functions
that would meet the statutory language beyond that which are ADL and
which are not already covered under the other bases (that is, a need
for hands-on assistance or a need for regular or extensive supervision
or instruction to complete one or more ADL), VA specifically requests
comments on this topic from the public on whether there are certain
IADL, or other activities or functions in daily life that VA should
consider for purposes of determining that an individual is in need of
personal
[[Page 97420]]
care services under 38 U.S.C. 1720G(a)(2)(C)(iii) and proposed 38 CFR
71.20(a)(3)(iii).
iv. Implementation of Proposed Sec. 71.20(a)(3)(iii)
Similar to VA's discussions above regarding proposed 38 CFR
71.20(a)(3)(i), in evaluating whether the individual typically requires
regular or extensive instruction or supervision to complete one or more
ADL should this proposed regulation text become final, VA would
consider the instruction or supervision that is generally necessary
when the individual is completing one or more ADL. In determining if an
individual typically requires regular or extensive instruction or
supervision to complete one or more ADL, VA would consider for each
individual, factors such as how often the ADL is completed as well as
the frequency with which instruction or supervision is needed to
complete such ADL. What is typically required would be a clinical
determination based on an assessment of the veteran's or
servicemember's needs and would take into consideration things like the
individual veteran's or servicemember's unique functional needs,
abilities, usual routines, and the tasks required to be able to
complete the ADL.
d. Eligibility Under Multiple Proposed Bases
Under VA's proposed interpretation of 38 CFR 71.20(a)(3)(i) through
(iii), some veterans and servicemembers may be determined to be in need
of personal care services based on more than one criterion. This means
that a veteran or servicemember may be determined to be in need of
multiple types of personal care services (that is, hands-on assistance
with ADL, supervision or protection, and/or instruction or
supervision). For example, while both proposed Sec. 71.20(a)(3)(i) and
(iii) would require a veteran or servicemember to typically require
personal care services with respect to one or more ADL, the type of
personal care services that would be required by the veteran to satisfy
each proposed criterion differ. Under proposed Sec. 71.20(a)(3)(i),
the individual would typically require hands-on assistance, and under
proposed Sec. 71.20(a)(3)(iii), the individual would typically require
regular or extensive instruction or supervision, which VA would
consider to be something other than hands-on assistance. For example, a
veteran may typically require hands-on assistance with bathing and also
typically require regular or extensive instruction for dressing. In
such instance, the veteran may meet both proposed Sec. 71.20(a)(3)(i)
and (iii). This is just one example; however, an individual could be
determined to be in need of personal care services based on meeting
various combinations of the criteria in proposed Sec. 71.20(a)(3) such
as meeting the criterion in proposed Sec. 71.20(a)(3)(i) and (ii) or
meeting all three criteria in proposed Sec. 71.20(a)(3)(i) through
(iii).
2. Section 71.20(a)(7)--Ongoing Care From a Primary Care Team
Current Sec. 71.20(a)(7) requires that the individual receives
ongoing care from a primary care team or will do so if VA designates a
Family Caregiver. VA proposes to revise this paragraph to require that
the individual receives ongoing care from a primary care team or will
do so within 120 days of the date VA designates a Family Caregiver. VA
would further propose to state in this paragraph that if the individual
is unable to receive such care due, at least in part, to an event or
action within VA's control, VA may extend this 120-day period.
As explained in VA's 2011 IFR and 2015 Final Rule implementing
PCAFC, the current requirement to receive ongoing care in Sec.
71.20(a)(7) is necessary to enable VA to perform statutorily required
functions, including documenting findings related to the delivery of
personal care services and ensuring appropriate follow-up. See 76 FR
26151 (May 5, 2011) and 80 FR 1363-1364 (January 9, 2015) (citing 38
U.S.C. 1720G(a)(9)).
As proposed, VA would continue to require that the individual
receives ongoing care from a primary care team or will do so if VA
designates a Family Caregiver. However, VA proposes to add a timeframe,
specifically, within 120 days of the date VA designates a Family
Caregiver, within which the individual must do so. Requiring the
individual to receive ongoing care from a primary care team within a
specified time frame would enable VA to ensure that it continues to
provide appropriate follow-up and perform statutorily mandated
functions within a reasonable amount of time following designation of a
Family Caregiver, as described above. This is especially important for
those individuals who are not already receiving ongoing care from a
primary care team, as that could result in delayed access to necessary
care, including supports and services, which could lead to potentially
unsafe situations.
VA believes that allowing for 120 days to receive such care is a
reasonable amount of time to schedule and receive care from a primary
care team following VA's designation of a Family Caregiver.
Furthermore, it would align with the timing within which VA would
conduct the first wellness contact, which is generally conducted 120
days after approval. See 38 CFR 71.40(b)(2). Wellness contacts include
but are not limited to a review of the eligible veteran's well-being
and allow VA the opportunity to identify and provide any additional
support, services, or referrals for services needed by the eligible
veteran or Family Caregiver. See 85 FR 13380 (March 6, 2020).
Additionally, while eligible veterans and Family Caregivers may request
additional supports and services at any time, such requests are often
made and discussed during wellness contacts. Ensuring the eligible
veteran is receiving ongoing care from a primary care team within 120
days of the date VA designates a Family Caregiver would avoid delay in
the eligible veteran obtaining needed services.
Pursuant to proposed paragraph (a)(7), VA would also have the
discretion to extend this time period if the individual is unable to
receive ongoing care from a primary care team due, at least in part, to
an event or action within VA's control. While VA anticipates an
individual who seeks to receive care from a primary care team will be
able to receive such care within 120 days, VA recognizes there may be
extenuating circumstances in which receipt of such care may take longer
than 120 days. This provision, as proposed, would continue to allow for
some flexibility in such instances.
3. Section 71.20(b) and (c)--Legacy Applicants and Legacy Participants
Currently, under paragraphs (b) and (c) of Sec. 71.20, for five
years beginning on October 1, 2020, a veteran or servicemember is
eligible for a Primary or Secondary Family Caregiver under part 71 if
they are a legacy applicant or legacy participant. As discussed earlier
in this rulemaking, VA proposes to extend this transition period for
the legacy cohort. To provide for this additional period, VA proposes
to amend Sec. 71.20(b) and (c).
First, VA proposes to amend Sec. 71.20(b) and (c) by removing the
phrase ``For five years beginning on October 1, 2020'' and adding in
its place, the phrase ``Beginning on October 1, 2020 through [18 months
after EFFECTIVE DATE OF FINAL RULE]''. Additionally, VA would replace
``Primary or Secondary Family Caregiver'' with ``Primary Family
Caregiver or Secondary Family Caregiver'' to reference those terms as
they are defined in Sec. 71.15. Finally, VA
[[Page 97421]]
would replace the phrase ``he or she'' with ``veteran or
servicemember'' to conform to VA's goal to ensure its regulations are
gender neutral.
As proposed, paragraph (b) would state beginning on October 1, 2020
through [18 months after EFFECTIVE DATE OF FINAL RULE], a veteran or
servicemember is eligible for a Primary Family Caregiver or Secondary
Family Caregiver under this part if the veteran or servicemember is a
legacy participant. Proposed paragraph (c) would state beginning on
October 1, 2020 through [18 months after EFFECTIVE DATE OF FINAL RULE],
a veteran or servicemember is eligible for a Primary Family Caregiver
or Secondary Family Caregiver under this part if the veteran or
servicemember is a legacy applicant.
VA solicits comments from the public on all aspects of this
proposed rule. In particular, VA asks the following questions on
specific aspects of this proposal.
1. What activities or tasks in addition to or other than ADL should
VA consider when determining whether a veteran or servicemember has 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?
2. VA has explained VA's interpretation of the words ``regular''
and ``extensive'' instruction or supervision. How else might
``regular'' be distinguished from ``extensive'' instruction or
supervision?
3. As explained above, VA would not set forth a specific
quantitative requirement for the frequency with which a veteran or
servicemember may require supervision or protection other than
specifying that the individual has a frequent need for supervision or
protection. This is because the need for supervision or protection is
not limited to a discrete list of activities or circumstances. VA has
found that there is no uniform frequency of individuals' need for
supervision or protection based on symptoms or residuals of
neurological or other impairment or injury. The frequency of need
varies based on each individual's unique needs and depends on severity
of their symptomology. Is there a different frequency standard VA
should consider, and if so, what is that standard?
E. 38 CFR 71.25 Approval and Designation of Primary Family Caregivers
and Secondary Family Caregivers
Section 71.25 describes the process for approval and designation of
Primary Family Caregivers and Secondary Family Caregivers. As described
below, VA proposes to amend Sec. 71.25(a) and (b) by revising certain
terminology, restructuring certain language, and adding additional
language to address application and eligibility requirements.
1. Section 71.25(a)--Application Requirement
Current Sec. 71.25(a) explains the requirement for submission of a
joint application for approval and designation of a Primary Family
Caregiver or Secondary Family Caregiver. In current Sec. 71.25(a)(1),
VA requires individuals who wish to be considered for designation by VA
as Primary Family Caregivers or Secondary Family Caregivers to 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.
VA proposes to add a paragraph to Sec. 71.25(a)(1) to address
instances of a Secondary Family Caregiver seeking designation as the
Primary Family Caregiver and would reorganize Sec. 71.25(a)(1) as a
result. As proposed, Sec. 71.25(a)(1) would state that individuals who
wish to be considered for designation by VA as Primary Family
Caregivers or Secondary Family Caregivers must submit a joint
application, along with the veteran or servicemember. However, VA would
add two paragraphs to proposed Sec. 71.25(a)(1).
Proposed Sec. 71.25(a)(1)(i) would consist of the second sentence
of current paragraph Sec. 71.25(a)(1) without change. Proposed Sec.
71.25(a)(1)(ii) would state a currently approved Secondary Family
Caregiver for the eligible veteran may apply for designation as the
Primary Family Caregiver by submitting a new joint application along
with the eligible veteran.
VA proposes to add Sec. 71.25(a)(1)(ii) to clarify that the joint
application requirement still applies when an individual who is
currently serving as a Secondary Family Caregiver wishes to be
designated as the Primary Family Caregiver. If a Primary Family
Caregiver's designation is revoked, they are discharged from PCAFC, or
if the Primary Family Caregiver's revocation or discharge is pending,
then the eligible veteran and their approved and designated Secondary
Family Caregiver may want the Secondary Family Caregiver to be approved
and designated as the Primary Family Caregiver. VA's current practice
is to require that the Secondary Family Caregiver submit a new joint
application, along with the eligible veteran. VA would continue with
its current practice as it ensures the statutory requirements in 38
U.S.C. 1720G(a)(7) are met, including the requirement in section
1720G(a)(7)(B)(iii), that the eligible veteran consents to VA's
designation of the individual as the Primary Family Caregiver for the
eligible veteran. By submitting a new joint application, both the
eligible veteran and the individual applying as the Primary Family
Caregiver make their intentions known and it ensures that both parties
are seeking the change in designation. Therefore, new proposed 38 CFR
71.25(a)(1)(ii) would state a currently approved Secondary Family
Caregiver for the eligible veteran may apply for designation as the
Primary Family Caregiver by submitting a new joint application along
with the eligible veteran.
Although this is not a proposed change, it is important to note
that if the eligible veteran is a legacy participant or legacy
applicant and a new joint application is received by VA on or after
October 1, 2020 that results in approval and designation of the same or
a new Primary Family Caregiver, the eligible veteran would no longer be
considered a legacy participant or legacy applicant as those terms are
defined in 38 CFR 71.15. See 85 FR 13375-13376 (March 6, 2020).
VA also proposes to amend Sec. 71.25(a)(2)(i) to address
evaluation requirements when a current Secondary Family Caregiver seeks
designation as a Primary Family Caregiver. Pursuant to current Sec.
71.25(a)(2)(i), upon receiving a joint 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 part 71, and if eligible, determine
the applicable monthly stipend amount under Sec. 71.40(c)(4). See
Sec. 71.25(a)(2)(i). Notwithstanding that, VA will not evaluate a
veteran's or servicemember's eligibility under Sec. 71.20 as part of
the application process when a joint application is received seeking to
designate a Secondary Family Caregiver for an eligible veteran who has
a designated Primary Family Caregiver. Id.
VA proposes to add an additional exception when it would not
evaluate a veteran's or servicemember's eligibility under Sec. 71.20
as part of the application process and proposes to reorganize
[[Page 97422]]
Sec. 71.25(a)(2)(i) as a result. VA proposes to revise Sec.
71.25(a)(2)(i) by adding the phrase ``except as provided in paragraphs
(a)(2)(i)(A) and (B) of this section,'' in the first sentence and
adding new paragraphs (A) and (B). In proposed Sec. 71.25(a)(2)(i), VA
would refer to the ``monthly stipend payment'' instead of the term
``monthly stipend amount'' that appears in the first sentence of
current Sec. 71.25(a)(2)(i). This proposed change would ensure
consistency with terminology used elsewhere in part 71. VA also
proposes to move part of the last sentence in current Sec.
71.25(a)(2)(i) regarding when a joint application is received seeking
to designate a Secondary Family Caregiver for an eligible veteran who
already has a designated Primary Family Caregiver to new paragraphs (A)
and (A)(1). In addition to reorganizing that language into a new
paragraph (a)(2)(i)(A) and paragraph (A)(1), VA would add ``as part of
the application process'', change ``add'' to ``designate'', and add
``already''. These proposed edits are intended to be non-substantive
technical changes that would further clarify this provision. VA
proposes no other changes to that language.
VA also proposes to add new paragraph Sec. 71.25(a)(2)(i)(A)(2) to
address situations in which a current Secondary Family Caregiver seeks
to change their designation to a Primary Family Caregiver. Under
proposed Sec. 71.25(a)(2)(i)(A)(2), VA would not reevaluate an
eligible veteran under Sec. 71.20 when an eligible veteran seeks to
designate a current Secondary Family Caregiver for the eligible veteran
as the Primary Family Caregiver for that same eligible veteran so long
as the eligible veteran has already been determined to meet the
eligibility criteria found in current Sec. 71.20(a) or proposed Sec.
71.20(a). In proposing this change, VA seeks to eliminate unnecessary
evaluations of eligible veterans while also ensuring that VA approves
and designates a Primary Family Caregiver only for a veteran or
servicemember who has been determined to meet PCAFC eligibility
criteria in Sec. 71.20(a). In proposed Sec. 71.25(a)(2)(i)(A)(2), VA
would reference the Sec. 71.20(a) criteria that would be in effect as
of the effective date of this proposed rulemaking, if adopted, as well
as the current Sec. 71.20(a) criteria (which may have included the
statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place
of the definition of need for supervision, protection, or instruction).
This is because, those who have been determined to meet the eligibility
criteria in current Sec. 71.20(a) would also meet the eligibility
criteria in proposed Sec. 71.20(a). Instead of evaluating eligibility
under Sec. 71.20(a) when a joint application is received to change the
Secondary Family Caregiver to Primary Family Caregiver, VA proposes to
rely on its most recent evaluation of the personal care needs of the
eligible veteran to inform the determination of the Secondary Family
Caregiver's ability to serve in the role of Primary Family Caregiver,
and if eligible, the monthly stipend payment the Primary Family
Caregiver would be eligible to receive as set forth in proposed
revisions to Sec. 71.40(c)(4)(i)(A). This most recent evaluation of
the personal care needs of the eligible veteran would have included the
Family Caregiver's assessment of the needs and limitations of the
eligible veteran to the extent required by 38 U.S.C.
1720G(a)(3)(C)(iii)(I). In this scenario, re-evaluation of the eligible
veteran would be unnecessary. However, at any time after the Secondary
Family Caregiver transitions to being approved and designated as the
Primary Family Caregiver, the eligible veteran or Primary Family
Caregiver may request a reassessment in writing pursuant to proposed
Sec. 71.30(c), which is discussed below.
As proposed, Sec. 71.25(a)(2)(i) would state upon receiving such
application, except as provided in paragraphs (a)(2)(i)(A) and (B) of
Sec. 71.25, 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 part 71, and if
eligible, determine the applicable monthly stipend payment under Sec.
71.40(c)(4). Proposed Sec. 71.25(a)(2)(i)(A) would state VA will not
evaluate a veteran's or servicemember's eligibility under Sec. 71.20
as part of the application process when: (1) A joint application is
received seeking to designate a Secondary Family Caregiver for an
eligible veteran who already has a designated Primary Family Caregiver;
or (2) A joint application is received that seeks to change the
designation of a current Secondary Family Caregiver for an eligible
veteran to designation as the Primary Family Caregiver for that same
eligible veteran so long as the eligible veteran has already been
determined to meet the eligibility criteria under proposed Sec.
71.20(a) or Sec. 71.20(a) (2021) (which may have included the
statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place
of the criterion in Sec. 71.20(a)(3)(ii)).
Additionally, VA proposes to add new Sec. 71.25(a)(2)(i)(B) to
indicate that the required evaluations for Family Caregiver applicants
found in Sec. 71.25 may not all be required when a current approved
Secondary Family Caregiver applies to be designated as the Primary
Family Caregiver for the same eligible veteran. Proposed Sec.
71.25(a)(2)(i)(B) would state upon receipt of a joint application that
seeks to designate a current Secondary Family Caregiver as the Primary
Family Caregiver for the same eligible veteran, VA will determine which
evaluations under Sec. 71.25 are necessary to assess the individual's
eligibility as the Primary Family Caregiver. VA proposes this new
paragraph as VA may not require re-evaluation of each eligibility
criteria for such individuals, as those serving as a Secondary Family
Caregiver for an eligible veteran would have already been determined to
meet the eligibility requirements found in Sec. 71.25. The individual
designated as a Secondary Family Caregiver would have already completed
caregiver training and demonstrated the ability to carry out the
specific personal care services, core competencies, and additional care
requirements needed by the eligible veteran. For these reasons, VA
believes that a more limited evaluation may be warranted to determine
eligibility of a current Secondary Family Caregiver to serve as the
Primary Family Caregiver.
While VA is not proposing to amend Sec. 71.40(d) regarding the
effective date of PCAFC benefits, VA notes that new benefits for
Secondary Family Caregivers who are subsequently designated as a
Primary Family Caregiver would become effective pursuant to Sec.
71.40(d). This would mean that in the event a Secondary Family
Caregiver applies for and is designated as the Primary Family Caregiver
for the same eligible veteran, additional benefits exclusive to the
role of Primary Family Caregiver, such as the monthly stipend, would
become effective pursuant to Sec. 71.40(d) requirements.
Current Sec. 71.25(a)(2)(ii) explains that 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. Current Sec. 71.25(a)(2)(ii) further explains that if such
requirements are not completed 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
[[Page 97423]]
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.
VA has had instances in which VA has extended the 90-day timeline
based on VA's inability to approve and designate a Family Caregiver
solely because of actions taken or not taken by VA. However, VA has
found that such inability is rarely because of one discrete event where
responsibility for the delay is easily identified and attributed to VA.
More often, VA has experienced instances when there may be an initial
delay in VA scheduling an evaluation, for example, and because of this
delay the veteran (or servicemember) or Family Caregiver applicant may
be delayed in completing other requirements, or vice versa. VA proposes
to provide flexibility to VA to extend the 90-day period rather than
deny the application and require the veteran and Family Caregiver
applicant to re-submit a joint application, which would further delay
access to PCAFC.
Thus, VA proposes to revise this last sentence of Sec.
71.25(a)(2)(ii) to remove the word solely and explain that 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, at
least in part, due to VA's action. This proposal, if adopted, would
give VA greater flexibility to extend the deadline for completing the
designation process, and VA expects that this change would reduce
burdens on VA staff as well as PCAFC applicants who would otherwise be
required to re-submit a joint application if the designation process
was not completed within the 90-day timeline.
VA also proposes to amend Sec. 71.25(a)(3) to address how it would
evaluate joint applications if the proposed revisions to the definition
of joint application under Sec. 71.15 and other proposed changes to
eligibility criteria discussed in this proposed rule are made final and
effective. Current Sec. 71.25(a)(3) explains how VA will evaluate
joint applications received before, on, and after October 1, 2020,
which is the date that the July 31, 2020 Final Rule became effective.
Joint applications received by VA before October 1, 2020 were evaluated
by VA based on 38 CFR 71.15, 71.20, and 71.25 (2019) except that the
term joint application as defined in current Sec. 71.15 applied to
such applications. Joint applications received on or after October 1,
2020 were and are evaluated based on the criteria in effect on or after
such date. Sec. 71.25(a)(3)(ii). Paragraphs (A) and (B) of Sec.
71.25(a)(3)(ii) further address joint applications submitted by
veterans and servicemembers seeking to qualify for PCAFC based on the
phased expansion of PCAFC eligibility criteria in current Sec.
71.20(a)(2)(ii) and (iii) (codifying the criteria for the phased
expansion of PCAFC to qualifying veterans and servicemembers who
incurred or aggravated a serious injury in the line of duty before
September 11, 2001). See 85 FR 13376 (March 6, 2020). As VA has
evaluated all joint applications received by VA before October 1, 2020,
the regulation text addressing those joint applications in Sec.
71.25(a)(3)(i) is no longer necessary. Similarly, the regulation text
found in paragraphs (A) and (B) of Sec. 71.25(a)(3)(ii) is also
obsolete as VA has evaluated all joint applications referenced in those
paragraphs. Therefore, VA proposes to remove the current text found in
Sec. 71.25(a)(3)(i) and (a)(3)(ii)(A) and (B) addressing joint
applications received by VA before October 1, 2020 and to further
revise these paragraphs as discussed below.
The application process for PCAFC requires evaluation, training,
and assessments that occur over a period of time. Given this, VA
expects there will be joint applications received by VA prior to the
effective date of this proposed rule for which eligibility
determinations are still pending on the effective date of the rule.
Consistent with the approach taken in the July 31, 2020 Final Rule, VA
proposes to review pending joint applications received by VA before the
effective date of the final rule, if adopted, using the eligibility
criteria in place on the day the joint application was received, unless
otherwise noted. 85 FR 13375 (March 6, 2020). Since VA proposes to
change certain eligibility criteria, including certain terms and
definitions that would affect VA's review of joint applications
received, among other things in this proposed rule, VA believes it is
reasonable for VA to continue to evaluate joint applications received
prior to the effective date of any final rule adopting amendments to
eligibility criteria, under the statutes and regulations in effect at
the time the joint application was received by VA. This approach would
provide transparency for applicants and reduce the likelihood of
inconsistencies or delays when rendering a decision as certain
evaluations may need to be repeated if VA were to apply the new
criteria to joint applications pending on the date a final rule becomes
effective. While VA would seek to mitigate these concerns through
applying the statutes and regulations in effect at the time VA received
the joint application, VA proposes certain exceptions as explained
below.
First, VA would not apply the definition of joint application as it
currently appears in Sec. 71.15 if this rule is adopted as proposed.
Rather VA would apply the new proposed definition of joint application
discussed above regarding proposed changes to Sec. 71.15. VA discusses
the challenges associated with the current definition of this term and
VA's rationale for this proposed definition above. If adopted, VA would
apply the proposed definition of joint application in rendering a
determination under the regulations in effect from October 1, 2020,
through the effective date of any rule changes, thereby eliminating any
use of the current definition once rule changes become final and
effective. Given the challenges associated with the current definition
of joint application, VA sees no reason to maintain its use in
evaluating joint applications received prior to the effective date of
any rule changes to the definition of joint application.
Next, VA proposes to make clear how VA has addressed the term need
for supervision, protection, or instruction in part 71 since the term
was invalidated by Veteran Warriors, and how VA would continue to
address it when evaluating joint applications received prior to the
effective date of any rule changes to delete the definition of need for
supervision, protection, or instruction in Sec. 71.15. Specifically,
this proposed change would codify in regulations the criteria used by
VA since the court's ruling in Veteran Warriors. As explained above,
the Veteran Warriors decision, issued on March 25, 2022, invalidated
VA's definition of need for supervision, protection, or instruction in
Sec. 71.15. Since that decision, VA no longer applies this term or its
definition when rendering PCAFC decisions. Instead, VA applies the
statutory criteria found in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii). As
proposed, 38 CFR 71.25(a)(3)(ii) would establish in VA's regulations
that for PCAFC applications received between October 1, 2020 and the
effective date of a final rule adopting the amendments to part 71 in
this proposed rule, VA would not apply the term need for supervision,
protection, or instruction and would apply the statutory criteria under
38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) instead.
To incorporate these changes into 38 CFR 71.25(a)(3), VA proposes
to revise
[[Page 97424]]
Sec. Sec. 71.25(a)(3)(i)-(ii) and (a)(3)(ii)(A)-(B) and add new Sec.
71.25(a)(3)(ii)(B)(1)-(2). As proposed, Sec. 71.25(a)(3)(i) would
state that a joint application under part 71 is evaluated in accordance
with the statutes and regulations in effect on the date VA receives
such joint application. Section 71.25(a)(3)(ii) and (a)(3)(ii)(A)-(B)
would state notwithstanding paragraph (a)(3)(i) of Sec. 71.25, in
rendering a determination under part 71, based on the regulations that
were in effect from October 1, 2020 through the effective date of the
final rule: (A) the definition of ``joint application'' in Sec. 71.15
that would become effective on the effective date of the final rule
would apply, and (B) the definition of ``need for supervision,
protection, or instruction'' in Sec. 71.15 does not apply. Proposed
Sec. 71.25(a)(3)(ii)(B)(1)-(2) would explain that in place of the
definition of ``need for supervision, protection, or instruction'' in
Sec. 71.15, the following criteria apply: (1) a need for supervision
or protection based on symptoms or residuals of neurological or other
impairment or injury; or (2) 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.
2. Section 71.25(b)--Eligibility To Serve as Primary Family Caregiver
or Secondary Family Caregiver
Current Sec. 71.25(b) explains the requirements to serve as a
Primary Family Caregiver or Secondary Family Caregiver. This includes
being either a family member or someone who lives with the eligible
veteran full-time or will do so if designated as a Family Caregiver.
See Sec. 71.25(b)(2)(i) and (ii). VA proposes to revise Sec.
71.25(b)(2)(ii) to refer to someone who lives with the eligible veteran
full-time or will do so within 120 days of the date VA designates the
individual as a Family Caregiver. This proposed change would account
for Family Caregiver applicants who are not family members of the
veteran or servicemember and who may be living apart from the veteran
or servicemember during the application process but who intend to live
with them once the Family Caregiver is approved and designated. The
personal care needs of a veteran or servicemember applying for PCAFC
may be provided by a non-family member who only intends to live with
the veteran or servicemember if approved and designated as a Family
Caregiver, since doing so would be a condition of participation in
PCAFC. Upon approval and designation, VA would not expect the newly
designated Family Caregiver to be prepared to move in with the veteran
or servicemember instantly and without advance notice. Rather a period
of transition may be needed, and appropriate, so VA proposes to
establish a time period for such transition in Sec. 71.25(b)(2)(ii).
VA believes a period of up to 120 days is an adequate amount of time
for a Family Caregiver or the veteran or servicemember to relocate if
necessary. This 120-day period also aligns with the time period within
which VA would conduct the first wellness contact, which is generally
conducted 120 days after approval and designation. See Sec.
71.40(b)(2). During this wellness contact, VA would have the
opportunity to confirm the non-family member Family Caregiver is living
with the eligible veteran full-time.
Finally, VA proposes to revise the section heading for Sec. 71.25
by replacing the word ``Primary'' with the term ``Primary Family
Caregivers''. As proposed, the section heading would state ``Approval
and designation of Primary Family Caregivers and Secondary Family
Caregivers''. VA proposes a similar edit to the heading and
introductory sentence for Sec. 71.25(b), which would state
``Eligibility to serve as Primary Family Caregiver or Secondary Family
Caregiver. In order to serve as a Primary Family Caregiver or Secondary
Family Caregiver, the applicant must meet all of the following
requirements''. If adopted, these changes, along with a similar change
to proposed Sec. 71.25(a)(1), discussed above, would be non-
substantive technical edits to fully reference the term Primary Family
Caregiver as such term is defined in Sec. 71.15.
F. 38 CFR 71.30 Reassessment of Eligible Veterans and Family Caregivers
Current Sec. 71.30 describes the process for reassessments of
eligible veterans and Family Caregivers under PCAFC. VA proposes to
amend Sec. 71.30 to revise the language regarding the frequency of VA-
initiated reassessments, incorporate a standard by which eligible
veterans and Primary Family Caregivers can request a reassessment and
to make other technical and conforming amendments consistent with other
changes included in this proposed rule.
1. Proposed Changes to the Frequency of VA-Initiated Reassessments
VA proposes to revise Sec. 71.30 by removing the language that
reassessments will occur on an annual basis. Currently, Sec. 71.30(a)
requires that, except as provided in paragraphs (b) or (c), each
eligible veteran and Family Caregiver will be reassessed by VA (in
collaboration with the primary care team to the maximum extent
practicable) on an annual basis to determine their continued
eligibility for participation in PCAFC. The reassessment of eligible
veterans and Family Caregivers under Sec. 71.30 includes consideration
of PCAFC eligibility criteria and, if applicable, the criteria in Sec.
71.40(c)(4)(i)(A) for purposes of the monthly stipend rate. See Sec.
71.30(a).
VA believes it is important to conduct reassessments to monitor an
eligible veteran's need for personal care services and the needs and
capabilities of the designated Family Caregiver(s), to determine if any
of these needs have changed over time. Reassessments also provide
Family Caregivers and eligible veterans with an opportunity to provide
feedback to VA, which can inform whether additional instruction,
preparation, training, or technical support may be warranted. See 85 FR
13379 (March 6, 2020). See also 38 U.S.C. 1720G(a)(3)(D). The
reassessment process may also result in changes to a Primary Family
Caregiver's monthly stipend. VA takes the Family Caregiver's assessment
of the eligible veteran's needs and limitations into account when
determining the Primary Family Caregiver's monthly stipend payment, if
applicable. See 85 FR 13379 (March 6, 2020). See also 38 U.S.C.
1720G(a)(3)(C)(iii)(I).
Reassessments are necessary to ensure that individuals
participating in PCAFC continue to meet eligibility requirements. VA
proposes to maintain reassessments but proposes to remove the language
in Sec. 71.30(a) which states reassessments will occur on an annual
basis, except as provided under paragraphs (b) and (c). VA originally
proposed this default frequency for reassessments under Sec. 71.30(a)
because it recognized that an eligible veteran's need for personal care
services may change over time, and the reassessments provided an
opportunity for VA to consider whether an eligible veteran's assessed
level of need had increased or decreased during the year. 85 FR 13378
(March 6, 2020). In addition, VA believed that requiring annual
reassessments would create consistency across the program and ensure
that reassessments were generally conducted on a standard timeline. Id.
at 13378-79.
While applying the provision of annual reassessments provided
standardization in the frequency of reassessments, VA no longer
believes that annually is the appropriate standard cadence to assess
continued eligibility for PCAFC. Although VA has the authority to
conduct reassessments more or less frequently than annually pursuant to
current Sec. 71.30(b) and (c),
[[Page 97425]]
VA believes that this proposal, if adopted in a final rule, would
provide transparency for the public that VA intends to no longer
maintain a default threshold of an annual reassessment. VA would
continue to provide notice to PCAFC participants regarding the timeline
for future reassessments through issuance of VA policy and written
communication with PCAFC participants. VA also would continue
monitoring the results of reassessments over time and use data to
inform any changes to the cadence of reassessments within policy.
To remove the default frequency of conducting annual reassessments,
VA proposes to revise the first sentence of Sec. 71.30(a) by removing
the phrase ``on an annual basis''. VA would also remove the phrase
``[e]xcept as provided in paragraphs (b) and (c) of this section,''
from the first sentence because the exceptions to the annual
requirement currently set forth in Sec. 71.30(b) and (c) would no
longer be necessary. VA is proposing additional changes to paragraphs
(b) and (c), which are discussed further below.
VA also proposes a technical edit to clarify that reassessments are
completed for the eligible veteran and all Family Caregivers of the
eligible veteran (in cases where there is more than one), by adding the
word ``each'' before ``Family Caregiver'' in the first sentence of
proposed Sec. 71.30(a). Thus, as proposed, the first sentence of Sec.
71.30(a) would state that the eligible veteran and each Family
Caregiver will be reassessed by VA (in collaboration with the primary
care team to the maximum extent practicable) to determine their
continued eligibility for participation in PCAFC under part 71.
Finally, VA proposes to change the second sentence of Sec.
71.30(a) which explains that in the context of reassessments, VA
considers 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). VA proposes to add the phrase ``if applicable'' to
the end of the second sentence because consideration of the monthly
stipend only occurs as part of a reassessment when the eligible veteran
and Primary Family Caregiver are determined eligible for PCAFC. Also,
in proposed Sec. 71.30(a), VA would refer to the ``monthly stipend
payment'' instead of the term monthly stipend rate that appears in the
second sentence of current Sec. 71.30(a). The phrase ``monthly stipend
payment'' would refer to the applicable stipend amount authorized under
Sec. 71.40(c)(4) and would account for the term monthly stipend rate
and its definition in Sec. 71.15. VA also proposes to remove reference
to the term unable to self-sustain in the community from Sec.
71.30(a), consistent with its proposed removal of such term and its
definition from Sec. 71.15 as discussed above and further below in the
context of proposed changes to Sec. 71.40(c)(4)(i)(A). As proposed,
the second sentence would state that reassessments will include
consideration of the monthly stipend payment under Sec.
71.40(c)(4)(i)(A), if applicable.
2. Proposed Changes To Reassessing Eligible Veterans' Continued
Eligibility Under Sec. 71.20(a)(3)
Current Sec. 71.20(a)(3) sets forth one of the seven criteria in
Sec. 71.20(a) that a veteran or servicemember must meet to be
determined eligible for a Family Caregiver under PCAFC, and it requires
the individual to be ``in need of personal care services for a minimum
of six continuous months'' based on any one of multiple enumerated
bases. VA proposes to limit when VA would reassess an eligible veteran
under the criteria in Sec. 71.20(a)(3) through proposed revisions to
Sec. 71.30(b).
Section 71.30(b) currently states that reassessments may occur more
frequently than annually if a determination is made and documented by
VA that more frequent reassessment is appropriate. VA proposes to
remove the current regulation text found in Sec. 71.30(b) as it would
no longer be necessary if proposed changes to Sec. 71.30(a) are
adopted, as explained above. For the reasons explained below, VA
proposes to add, in its place, a standard under which VA would reassess
an eligible veteran's continued eligibility under Sec. 71.20(a)(3) not
more frequently than every two years, with certain exceptions.
VA reviewed findings from reassessments conducted pursuant to Sec.
71.30(a) for participants that joined PCAFC on or after October 1,
2020. Since implementing annual reassessments pursuant to Sec.
71.30(a), VA has found the majority of reassessments conducted have
identified minimal changes in an eligible veteran's need for personal
care services under Sec. 71.20(a)(3) since their assessment in the
previous year. As PCAFC is designed for eligible veterans with moderate
and severe needs (85 FR 46228 (July 31, 2020)) who are in need of
personal care services for at least six continuous months (Sec.
71.20(a)(3)), VA believes it is reasonable to expect there would be
limited change in the functions and needs of the eligible veterans
within a 12-month period. Additionally, when reassessments require the
evaluation of Sec. 71.20(a)(3), the clinical evaluations associated
with Sec. 71.20(a)(3) criteria may be lengthy and may be burdensome to
veterans and servicemembers. In proposing a standard for reassessing an
eligible veteran's continued eligibility under Sec. 71.20(a)(3) of not
more frequently than every two years, VA would extend the time period
between such evaluations while still providing flexibility for VA to
continue to monitor the outcome of such reassessments and extend the
cadence beyond every two years, as appropriate, to ensure that
individuals participating in PCAFC continue to meet eligibility
requirements and have access to the appropriate level of supports. VA
believes proposed changes to Sec. 71.30(b) would reduce reassessments
that may be unnecessary and would do so in a standardized manner. Given
this, VA believes reassessment of an eligible veteran's continued
eligibility under Sec. 71.20(a)(3) not more frequently than every two
years would be reasonable and appropriate.
Notwithstanding these changes, certain instances exist when VA
would need to reassess an eligible veteran under Sec. 71.30(a)(3) on a
more frequent basis than every two years. To address these situations,
VA proposes to include two exceptions to the ``not more frequently than
every two years'' provision in proposed Sec. 71.30(b).
The first exception would apply when an eligible veteran or Primary
Family Caregiver requests a reassessment pursuant to proposed changes
to Sec. 71.30(c). To be responsive to the needs of veterans and
Primary Family Caregivers, VA would conduct reassessments upon request,
even if it has been less than two years since the previous evaluation
of the eligible veteran's eligibility under Sec. 71.30(a)(3). More
details about how reassessments could be requested under proposed Sec.
71.30(c) and how those requests would be addressed are outlined further
below.
The second exception would apply when a reassessment of an eligible
veteran's continued eligibility under Sec. 71.20(a)(3) is necessary
for VA to evaluate a Family Caregiver's ability to carry out specific
personal care services, core competencies, or additional care
requirements. Per 38 U.S.C. 1720G(a)(3)(D), the Secretary is required
to ``periodically evaluate . . . the skills of the family caregiver of
such veteran to determine if additional instruction, preparation,
training, or technical support'' is needed. In these instances, an
evaluation of the needs of the eligible veteran pursuant to proposed 38
CFR 71.20(a)(3) may be necessary to
[[Page 97426]]
determine whether a Family Caregiver has the ability to carry out the
specific personal care services, core competencies, and additional care
requirements described in Sec. 71.25(c)(2). This second proposed
exception in Sec. 71.30(b) would provide VA with the ability to review
the quality of personal care services being provided to an eligible
veteran in the context of a reassessment and take corrective action as
applicable. See 38 U.S.C. 1720G(a)(9)(C)(i)-(ii).
Thus, as proposed, Sec. 71.30(b) would state that except as
provided in paragraph (c) of Sec. 71.30, VA will reassess an eligible
veteran's continued eligibility under Sec. 71.20(a)(3) not more
frequently than every two years unless such a reassessment is necessary
for VA to evaluate the Family Caregiver's ability to carry out specific
personal care services, core competencies, or additional care
requirements.
3. Proposed Changes To Address Requests for Reassessments
Currently, Sec. 71.30(c) states 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. As noted above, VA proposes
to remove the reference to an annual reassessment frequency under Sec.
71.30(a), and as a result, VA would also remove the exception found in
Sec. 71.30(c). VA proposes to further revise Sec. 71.30(c) by adding
a new provision explaining the option for eligible veterans and Primary
Family Caregivers to request reassessment at any time through a written
request.
When eligible veterans and Family Caregivers have specifically
requested reassessments before an annual reassessment was due, VA has
considered such requests when making a determination under current
Sec. 71.30(b) that a more frequent than annual reassessment is
appropriate. For example, a Primary Family Caregiver may find they are
providing physical assistance with more ADL than they were at the time
they were designated as the Primary Family Caregiver. In this case, the
Primary Family Caregiver may request a reassessment, in part, because
they believe they may qualify for a higher monthly stipend.
To make clear the opportunity for an eligible Veteran or Primary
Family Caregiver to request a reassessment, VA proposes to establish
procedural requirements for these types of requests in proposed Sec.
71.30(c). As proposed, Sec. 71.30(c) would state that reassessments
may occur when an eligible veteran or a Primary Family Caregiver of an
eligible veteran submits to VA a written request indicating that a
reassessment is requested, and such request contains the signature of
the eligible veteran or the Primary Family Caregiver. In accordance
with the ``[e]xcept as provided in paragraph (c)'' clause in proposed
Sec. 71.30(b), reassessments requested under proposed Sec. 71.30(c)
would include a reassessment of an eligible veteran's continued
eligibility under Sec. 71.20(a)(3).
For reassessment requests under proposed Sec. 71.30(c), VA
proposes not to mandate use of a specific standardized form because VA
would like to provide flexibility to eligible veterans and Primary
Family Caregivers. However, VA does propose to require requests be
submitted to VA in writing, indicate the nature of the request (that
is, a request for reassessment), and contain the signature of the
eligible veteran or the Primary Family Caregiver of an eligible
veteran. These requirements would ensure that: (1) the request is from
an individual authorized to make such a request under proposed Sec.
71.30(c) (that is, an eligible veteran or Primary Family Caregiver),
(2) VA has enough information to associate the request with the correct
eligible veteran, and (3) VA can understand the nature of the request
and intent of the requestor. If verbal requests for reassessment are
made, VA would inform eligible veterans and Primary Family Caregivers
of the process for submitting a written request for reassessment.
Additionally, requiring a written request for reassessment would
provide VA with documentation of the request and VA could formally
track receipt of such request. This would be important because if the
requested reassessment results in an increase in the monthly stipend
payment pursuant to a determination under proposed Sec.
71.40(c)(4)(i)(A)(2), the date the written request under proposed Sec.
71.30(c) is received by VA could be the effective date of the increase
under proposed Sec. 71.40(c)(4)(ii)(C)(1)(ii). This is discussed
further below regarding proposed changes to Sec. 71.40 under heading
``G. 38 CFR 71.40 Caregiver benefits''. In implementing this
requirement for a written request in proposed Sec. 71.30(c), if
adopted in a final rule, VA would provide further written guidance and
instructions to Primary Family Caregivers and eligible veterans about
how and where such requests should be submitted.
VA does not propose to include reassessment requests from Secondary
Family Caregivers in proposed Sec. 71.30(c). This is because VA does
not believe individuals other than the eligible veteran or Primary
Family Caregiver should be able to initiate a process that could
uniquely impact the benefits provided to the Primary Family Caregiver.
Although certain PCAFC benefits are provided to both Primary Family
Caregivers and Secondary Family Caregivers, others are provided only to
Primary Family Caregivers, including the monthly stipend.
Additionally, Secondary Family Caregivers who would like to request
additional supports or services do not need to request a reassessment
under Sec. 71.30 to receive such supports or services. All Family
Caregivers who are seeking additional training, education or other
PCAFC assistance, can do so without requesting a reassessment. For
example, a Family Caregiver who wishes to engage with a peer support
mentor under Sec. 71.40(b)(5), can make this request at any time to
the local Caregiver Support Program (CSP) Team. Similarly, a Family
Caregiver who is seeking other counseling services under Sec.
71.40(b)(5), can make such a request at any time, including during
wellness contacts. An increase in the monthly stipend level for Primary
Family Caregivers under Sec. 71.40(c)(4)(i)(A), however, can only be
provided as a result of a reassessment which includes consideration of
an eligible veteran's need for personal care services pursuant to Sec.
71.20(a)(3). For this reason, a Primary Family Caregiver may wish to
request a reassessment to be considered for the higher stipend level.
Therefore, under proposed Sec. 71.30(c), VA would conduct a requested
reassessment only if submitted in writing by the eligible veteran or
Primary Family Caregiver (and that meets the other requirements
previously described).
Although Secondary Family Caregivers would not be included in
proposed Sec. 71.30(c), when a request for reassessment is received
from the eligible veteran or Primary Family Caregiver under such
paragraph, the reassessment would apply to the eligible veteran and all
Family Caregivers of the eligible veteran. This is because
reassessments initiated based on the request of an eligible veteran or
Primary Family Caregiver, would be carried out using the same processes
in Sec. 71.30 for reassessments initiated by VA. In completing
reassessments under Sec. 71.30, VA determines the eligibility of the
eligible veteran and each Family Caregiver, which necessarily requires
consideration of whether each Family Caregiver, including Secondary
Family Caregivers, has the ability to carry out the specific personal
care services required by the eligible veteran.
[[Page 97427]]
4. Proposed Changes to Legacy Reassessments
Current paragraph (e)(1) of Sec. 71.30 requires VA to conduct
reassessments of members of the legacy cohort within the five-year
period beginning on October 1, 2020 to determine whether the eligible
veteran meets the requirements of Sec. 71.20(a). If the eligible
veteran meets the requirements of Sec. 71.20(a), the reassessment will
take into consideration 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). See Sec. 71.30(e)(1).
For reasons discussed earlier in this rulemaking, VA proposes to
extend the transition period for continued eligibility of members of
the legacy cohort and the timeframe for completing reassessments of
this cohort to a date that is 18 months after the effective date of a
final rule under this rulemaking. The following conforming amendments
to Sec. 71.30(e) are also proposed to extend the timeframe for
conducting legacy reassessments.
First, VA proposes to add introduction text to paragraph (e) that
would describe a legacy reassessment. Currently, paragraph (e)(1)
states the reassessment will be done in collaboration with a primary
care team to the maximum extent practicable, may include a visit to the
eligible veteran's home, and may include consideration of the monthly
stipend. These provisions mirror the requirements for the reassessment
under current and proposed Sec. 71.30(a). To provide clarity, VA
proposes to remove this language from paragraph (e)(1) and would
instead state in the introduction text for paragraph (e) that a legacy
reassessment is a reassessment to determine continued eligibility under
Sec. 71.20(a) for legacy applicants and legacy participants that is
conducted in accordance with the requirements of Sec. 71.30(a).
VA would further revise paragraph (e)(1) to address the timeframe
for completing legacy reassessments. VA proposes to remove the phrase
``five-year period beginning on October 1, 2020'' and add in its place,
the phrase ``period beginning on October 1, 2020 and ending on [18
months after EFFECTIVE DATE OF FINAL RULE]''. VA would also include the
language currently found in paragraph (e)(2) regarding exceptions to
this rule. Currently, paragraph (e)(2) states that notwithstanding
paragraph (e)(1), a reassessment will not be completed under paragraph
(e)(1) if at some point before a reassessment is completed during the
five-year period beginning on October 1, 2020 the individual no longer
meets the requirements of Sec. 71.20(b) or (c). VA proposes to move
this language to paragraph (e)(1) with minor conforming changes to
remove the cross reference to paragraph (e)(1) and reference to the
``five-year'' period.
As proposed, paragraph (e)(1) would state if the eligible veteran
meets the requirements of Sec. 71.20(b) or (c) (i.e., is a legacy
participant or a legacy applicant), VA will conduct a legacy
reassessment for the eligible veteran and each Family Caregiver within
the time period beginning on October 1, 2020 and ending on [18 months
after EFFECTIVE DATE OF FINAL RULE]. It would also state that
notwithstanding the previous sentence, a legacy reassessment will not
be completed if at some point before such reassessment is completed,
the eligible veteran no longer meets the requirements of Sec. 71.20(b)
or (c).
Finally, VA proposes to revise paragraph (e)(2) to address monthly
stipend payments. As part of the legacy reassessment, for eligible
veterans who meet the requirements of Sec. 71.20(a), VA considers the
monthly stipend payment under Sec. 71.40(c)(4)(i)(A) and eligibility
for a one-time retroactive monthly stipend payment under current Sec.
71.40(c)(4)(ii)(C)(2)(i). This one-time retroactive stipend payment is
not currently addressed in Sec. 71.30(e). VA believes including a
reference to the regulations that govern the one-time retroactive
stipend payment within Sec. 71.30(e) would assist the reader in
understanding this facet of the legacy reassessment. VA proposes to
relocate the provisions currently found in Sec.
71.40(c)(4)(ii)(C)(2)(i) to Sec. 71.40(c)(4)(iii), therefore, this
latter citation is proposed to be included in paragraph (e)(2).
Accordingly, VA proposes to revise paragraph (e)(2) to state, if the
eligible veteran meets the requirements of Sec. 71.20(a), the legacy
reassessment will include consideration of the monthly stipend payment
under Sec. 71.40(c)(4)(i)(A) and whether the Primary Family Caregiver
is eligible for a one-time retroactive stipend payment pursuant to
Sec. 71.40(c)(4)(iii).
5. Proposed Technical Edits To Conform With Proposed Changes
VA proposes to add paragraph headings to paragraphs (a) through (e)
of Sec. 71.30 to assist the reader. If adopted, the heading for
paragraph (a) would state ``General.'' The heading for paragraph (b)
would state ``Frequency of reassessment.'' The heading for paragraph
(c) would state ``Requests for reassessment.'' The heading for
paragraph (d) would state ``Required participation'' and the heading
for paragraph (e) would state ``Legacy reassessments.''
VA solicits comments from the public on all aspects of this
proposed rule. In particular, VA asks the following questions on
specific aspects of this proposal.
1. Other than the changes proposed, what changes, if any, to the
frequency of reassessments should VA consider and why?
2. What models or standards are used by programs other than PCAFC
to determine continued eligibility and benefits that could inform the
appropriate frequency for PCAFC reassessments?
G. 38 CFR 71.40 Caregiver Benefits
Section 71.40 describes the benefits available to General
Caregivers, Secondary Family Caregivers, and Primary Family Caregivers.
Section 71.40(c) explains the benefits available to Primary Family
Caregivers, which includes a monthly stipend payment. See Sec.
71.40(c)(4). VA proposes changes to the eligibility requirements for
the higher stipend level and provisions regarding adjustments to
monthly stipend payments.
1. Stipend Level Criteria
Under current Sec. 71.40(c)(4)(i)(A)(1), the Primary Family
Caregiver's monthly stipend is calculated by multiplying the monthly
stipend rate (as that term is defined in Sec. 71.15) by 0.625.
However, if VA determines the eligible veteran is unable to self-
sustain in the community, the monthly stipend payment is calculated by
multiplying the monthly stipend rate by 1.00. See Sec.
71.40(c)(4)(i)(A)(2). These two levels for the monthly stipend payment
were intended to align with VA's aim at targeting PCAFC to those
veterans and servicemembers with moderate and severe needs, with the
higher stipend level provided to Primary Family Caregivers of eligible
veterans with severe needs. See 85 FR 13383 (March 6, 2020). Thus, the
Primary Family Caregiver of an eligible veteran who is determined to be
unable to self-sustain in the community would be eligible for the
higher stipend level under Sec. 71.40(c)(4)(i)(A)(2).
Currently, unable to self-sustain in the community is defined in
Sec. 71.15 to 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 Sec. 71.15, and is
fully dependent
[[Page 97428]]
on a caregiver to complete such ADLs; or (2) has a need for
supervision, protection, or instruction on a continuous basis. Although
the definition of unable to self-sustain in the community includes the
term need for supervision, protection, or instruction, following the
Veteran Warriors decision, VA no longer applies that term and instead
has applied the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and
(iii) in place of the term need for supervision, protection, or
instruction when determining whether a veteran is unable to self-
sustain in the community as explained below.
a. Determining the Monthly Stipend Payment Following the Veteran
Warriors Decision
As discussed earlier in this rulemaking regarding VA's proposed
removal of the term and definition of need for supervision, protection,
or instruction from Sec. 71.15 and the proposed changes to Sec.
71.20(a)(3), the U.S. Court of Appeals for the Federal Circuit in
Veteran Warriors invalidated VA's definition of the term need for
supervision, protection, or instruction. Notably, the court dismissed
or denied the petition for review with respect to the other regulatory
provisions challenged, including the definition of unable to self-
sustain in the community. See Veteran Warriors at 1348-51. However,
because the term need for supervision, protection, or instruction is
included in the definition of unable to self-sustain in the community,
following the court's decision, VA has applied the criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place of the term need for
supervision, protection, or instruction, when making determinations
about whether an eligible veteran is unable to self-sustain in the
community for purposes of determining the monthly stipend payment.
Following the court's decision, a Primary Family Caregiver is eligible
for the higher stipend level if the eligible veteran has a need for
supervision or protection based on symptoms or residuals of
neurological or other impairment or injury on a continuous basis or 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 on a continuous basis.
b. Proposed Changes to the Higher Stipend Level Criteria
VA proposes to revise the criteria for determining the monthly
stipend payment in Sec. 71.40(c)(4)(i)(A)(2). In proposing to amend
Sec. 71.40(c)(4)(i)(A)(2), VA would maintain the methodology for
calculating the monthly stipend rate, such that the higher stipend
level would continue to be calculated by multiplying the monthly
stipend rate (as that term is defined in Sec. 71.15) by 1.00. However,
VA would revise the criteria under which a Primary Family Caregiver
would qualify for the higher stipend level. Specifically, VA proposes
to remove the term unable to self-sustain in the community from Sec.
71.40(c)(4)(i)(A)(2) and add multiple new bases upon which a Primary
Family Caregiver may be eligible for the higher stipend level. VA's new
proposed bases for the higher stipend level would align with the
proposed bases in Sec. 71.20(a)(3) upon which a veteran or
servicemember may be determined to be in need of personal care
services.
Instead of proposing to update the current definition of unable to
self-sustain in the community in Sec. 71.15 to reflect VA's proposed
criteria for determining the higher stipend level, VA proposes removing
the term unable to self-sustain in the community and its definition
from Sec. 71.15 and adding the criteria for determining the higher
stipend level in proposed Sec. 71.40(c)(4)(i)(A)(2). This approach is
consistent with VA's proposed changes to Sec. 71.15 and Sec.
71.20(a)(3), under which VA would remove the terms inability to perform
an ADL and need for supervision, protection, or instruction, and their
definitions from Sec. 71.15 and add the bases for being in need of
personal care services into proposed Sec. 71.20(a)(3)(i) through (iii)
rather than referring to criteria contained mostly in terms and
definitions found in Sec. 71.15.
In proposed Sec. 71.40(c)(4)(i)(A)(2), VA would explain how
Primary Family Caregivers could be eligible for the higher stipend
level for each basis upon which an individual may be determined to be
in need of personal care services consistent with 38 U.S.C.
1720G(a)(2)(C) and proposed 38 CFR 71.20(a)(3). VA believes the changes
VA proposes to 38 CFR 71.40(c)(4)(i)(A)(2), as explained in more detail
in this section, would improve clarity and consistency when determining
eligibility for the higher stipend level. They would also ensure each
basis upon which an eligible veteran may be determined to be in need of
personal care services under proposed 38 CFR 71.20(a)(3) includes a
related basis by which a Primary Family Caregiver may be eligible for
the higher stipend level. If these proposed changes are adopted, the
Primary Family Caregiver could be eligible for the higher stipend level
based on any of the criteria in proposed Sec. 71.40(c)(4)(i)(A)(2),
just as eligible veterans could meet more than one of the bases in
proposed Sec. 71.20(a)(3)(i) through (iii).
Additionally, in contrast to the current definition of unable to
self-sustain in the community, which refers exclusively to the needs of
the eligible veteran, the criteria in proposed Sec.
71.40(c)(4)(i)(A)(2) would be phrased to reflect both the eligible
veteran's needs as well as the amount and degree of personal care
services the Primary Family Caregiver provides to the eligible veteran.
This change would ensure VA's regulations are reflective of the
statutory requirement that the stipend be ``based upon the amount and
degree of personal care services provided.'' 38 U.S.C.
1720G(a)(3)(C)(i). VA recognizes that the Primary Family Caregiver may
not provide all the personal care services required by an eligible
veteran, as the eligible veteran's care needs may also be met, in part,
by Secondary Family Caregivers or through other services and supports.
However, because it is the Primary Family Caregiver who receives the
stipend payment, VA believes it is reasonable to interpret the phrase
``personal care services provided'' in 38 U.S.C. 1720G(a)(3)(C)(i) to
refer to those personal care services provided by the Primary Family
Caregiver.
VA does not believe it would be reasonable to base the monthly
stipend payment for the Primary Family Caregiver upon the amount and
degree of personal care services provided by individuals and entities
other than the Primary Family Caregiver. Under 38 U.S.C.
1720G(a)(3)(C)(ii), the Secretary is required to ensure, to the extent
practicable, that ``the schedule required by clause (i) specifies that
the amount of the monthly personal caregiver stipend provided to a
primary provider of personal care services for the provision of
personal care services to an eligible veteran is not less than the
monthly amount a commercial home health care entity would pay an
individual in the geographic area of the eligible veteran to provide
equivalent personal care services to the eligible veteran.'' By
referring to ``an individual'' providing ``equivalent personal care
services to the eligible veteran'', this requirement supports VA's
proposed interpretation that the monthly stipend payment is based on
the personal care services that only the Primary Family Caregiver
provides to the eligible veteran and not the personal care services
provided by another individual or entity. By referring to the required
personal care services that the
[[Page 97429]]
eligible veteran receives from the Primary Family Caregiver, proposed
38 CFR 71.40(c)(4)(i)(A)(2) would make clear that the amount of the
monthly stipend is based upon the amount and degree of personal care
services that the Primary Family Caregiver provides to the eligible
veteran.
In addition, VA proposes to add language to proposed paragraph
(c)(4)(i)(A)(2) as a technical edit to clarify that the proposed
criteria in paragraph (c)(4)(i)(A)(2) would apply notwithstanding
paragraph (c)(4)(i)(A)(1). Currently, and under VA's proposed revisions
to Sec. 71.40(c)(4)(i)(A), a Primary Family Caregiver's monthly
stipend payment is calculated under paragraph (c)(4)(i)(A)(1) (by
multiplying the monthly stipend rate by 0.625) unless the criteria in
paragraph (c)(4)(i)(A)(2) are met, in which case the Primary Family
Caregiver's monthly stipend payment is calculated under paragraph
(c)(4)(i)(A)(2) (by multiplying the monthly stipend rate by 1.00). VA
also proposes to add a heading to paragraph Sec. 71.40(c)(4)(i)(A)(1)
which states ``Level 1 Stipend'' and a heading to paragraph Sec.
71.40(c)(4)(i)(A)(2) that states ``Level 2 Stipend'' to further
distinguish the two different stipend levels described in these
paragraphs.
As proposed, Sec. 71.40(c)(4)(i)(A)(2) would state that
notwithstanding paragraph (c)(4)(i)(A)(1) of Sec. 71.40, the Primary
Family Caregiver's monthly stipend payment is calculated by multiplying
the monthly stipend rate by 1.00 if VA determines that: (i) the
eligible veteran typically requires personal care services to complete
three or more distinct ADL, and for each distinct ADL, the eligible
veteran either is substantially dependent on the Primary Family
Caregiver for hands-on assistance or requires extensive instruction or
supervision from the Primary Family Caregiver; or (ii) the eligible
veteran has a frequent need for supervision or protection on a
continuous basis from the Primary Family Caregiver based on the
eligible veteran's symptoms or residuals of neurological or other
impairment or injury.
The meaning of the term typically requires throughout proposed
Sec. 71.40(c)(4)(i)(A)(2) would be consistent with its meaning in
proposed Sec. 71.20(a)(3)(i) and (iii) based on the proposed
definition in Sec. 71.15 (that is, typically requires would mean a
clinical determination which refers to that which is generally
necessary). Please see the discussion of proposed changes to Sec. Sec.
71.15 and 71.20(a)(3)(i) and (iii) for additional information on the
term typically requires. VA further explains the multiple bases for
eligibility for the higher stipend level that VA is proposing under the
two criterion in proposed Sec. 71.40(c)(4)(i)(A)(2)(i) and (ii), as
well as its proposed use of the term typically requires in Sec.
71.40(c)(4)(i)(A)(2)(i), in greater detail below.
i. First Proposed Basis for the Higher Stipend Level Payment
Under this proposal, Sec. 71.40(c)(4)(i)(A)(2)(i) would set forth
the first proposed basis upon which a Primary Family Caregiver would be
eligible for the higher stipend level payment and would refer to a VA
determination that the eligible veteran typically requires personal
care services to complete three or more distinct ADL, and for each
distinct ADL, the eligible veteran is substantially dependent on the
Primary Family Caregiver for hands-on assistance.
If adopted, this would amend the standard applied under the first
basis in the current definition of unable to self-sustain in the
community (that is, an eligible veteran requires personal care services
each time he or she completes three or more of the seven ADL listed in
the definition of an inability to perform an activity of daily living
in Sec. 71.15 and is fully dependent on a caregiver to complete such
ADL). That basis was intended to establish the higher stipend level for
the Primary Family Caregiver of an eligible veteran with physical
impairment. 85 FR 13383 (March 6, 2020). In addition, this proposed
basis in Sec. 71.40(c)(4)(i)(A)(2)(i) would align with the eligibility
criteria in proposed 38 CFR 71.20(a)(3)(i) (that is, the individual
typically requires hands-on assistance to complete one or more ADL). It
would therefore account for those Primary Family Caregivers of eligible
veterans who are in need of personal care services based on an
inability to perform an ADL (38 U.S.C. 1720G(a)(2)(C)(i)) and who have
severe needs.
This first proposed basis for the higher stipend level payment
would be consistent with the requirement in 38 U.S.C. 1720G(a)(3)(C)(i)
to base the monthly stipend payment upon the amount and degree of
personal care services provided because it would refer to three or more
distinct ADL and it would include a requirement that the eligible
veteran be substantially dependent upon the Primary Family Caregiver.
The proposal to require three or more distinct ADL would address the
amount of personal care services provided by the Primary Family
Caregiver because a greater amount of personal care services would be
provided if an eligible veteran requires hands-on assistance to
complete three or more distinct ADL versus to complete fewer than three
ADL. Notably, the eligibility criterion in proposed Sec.
71.20(a)(3)(i) refers to the individual typically requiring hands-on
assistance to complete just one or more ADL. In addition, the proposed
requirement that the eligible veteran be substantially dependent on the
Primary Family Caregiver would address the degree of personal care
services provided. As discussed below, if adopted in a final rule, VA
would apply the term ``substantially dependent'' in proposed Sec.
71.40(c)(4)(i)(A)(2)(i) to mean that the Primary Family Caregiver puts
forth more than half the effort when providing hands-on assistance to
the eligible veteran to complete three or more distinct ADL.
As is the case in the first basis of the current definition of
unable to self-sustain in the community, proposed Sec.
71.40(c)(4)(i)(A)(2)(i) would refer to the eligible veteran requiring
personal care services to complete three or more ADL, but VA would
specify that the personal care services under this basis must be
required for three distinct ADL (as that term is proposed to be defined
in Sec. 71.15). VA proposes to use the term ``distinct'' in front of
``ADL'' to account for VA's proposal in new Sec.
71.40(c)(4)(i)(A)(2)(i) to include more than one basis upon which a
Primary Family Caregiver could be eligible for the higher stipend level
related to an eligible veteran's need for personal care services to
complete ADL. As discussed separately below, proposed Sec.
71.40(c)(4)(i)(A)(2)(i) would allow for a combination of two different
types of personal care services to complete ADL (that is, if the
eligible veteran either is substantially dependent on the Primary
Family Caregiver for hands-on assistance or requires extensive
instruction or supervision from the Primary Family Caregiver), as long
as the criteria are met with respect to the completion of three or more
distinct ADL. VA's proposal to refer to ``three or more distinct ADL''
would clarify that an eligible veteran who requires both types of
personal care services to perform the same ADL, would not be considered
to require personal care services to complete two ADL. This is
discussed in more detail below under the heading referring to VA's
third proposed basis for the higher stipend level.
Consistent with the discussion of proposed Sec. 71.20(a)(3)(i), VA
would not require in proposed Sec. 71.40(c)(4)(i)(A)(2)(i) that
personal
[[Page 97430]]
care services be required ``each time'' the eligible veteran completes
three or more distinct ADL. While the first basis of the current
definition of unable to self-sustain in the community requires personal
care services be required ``each time'' the eligible veteran completes
three or more ADL, VA proposes not to include such requirement in
proposed Sec. 71.40(c)(4)(i)(A)(2)(i). VA's rationale for proposing to
remove the ``each time'' requirement is explained in the discussion on
proposed Sec. 71.20(a)(3)(i).
Additionally, while the first basis in the current definition of
unable to self-sustain in the community refers to an eligible veteran
being ``fully dependent'' on a caregiver to complete three or more ADL,
the first new basis under proposed Sec. 71.40(c)(4)(i)(A)(2)(i) would
require that an eligible veteran be ``substantially dependent'' on the
Primary Family Caregiver for hands-on assistance. While this proposed
change from ``fully dependent'' to ``substantially dependent'' would be
a change in terminology, it would be consistent with how VA has applied
the first basis in the current definition of unable to self-sustain in
the community since 2020. Since that time, VA has not required the
eligible veteran to have complete dependence on a caregiver to perform
three or more ADL, as the term ``fully dependent'' may imply and how VA
described this term in its July 31, 2020 Final Rule.\18\ This is
because after publication of VA's July 31, 2020 Final Rule, and prior
to implementation, VA determined such an approach would have been
unduly restrictive. Dependence occurs on a spectrum based on degrees of
need. Upon further review of the requirement to be ``fully dependent''
on the Primary Family Caregiver, VA found that this would require that
an eligible veteran must be at the very highest end of the spectrum of
a degree of need, such that no greater degree of need is possible. It
is not, and has never been, the intent of VA to require such a
standard. Rather, since implementing the first basis in the definition
of unable to self-sustain in the community, it has been and continues
to be VA's practice that individuals who require a degree of personal
care services that is of a lesser degree than that of the very highest
degree could and do meet the definition.
---------------------------------------------------------------------------
\18\ VA stated ``[t]o be fully dependent means the eligible
veteran requires the assistance of another to perform each step or
task related to completing the ADL'' and ``[w]hile dependence is
considered along a spectrum, fully dependent is at the top of the
spectrum.'' 85 FR 46274 (July 31, 2020).
---------------------------------------------------------------------------
VA currently applies the meaning of ``substantially'' in place of
``fully'' under the first basis in the definition of unable to self-
sustain in the community as VA believes ``substantially'' more
accurately reflects the level of dependence VA requires for a Primary
Family Caregiver to be eligible for the higher stipend level. The term
``substantially dependent'' is commonly used in the health care field
and is generally understood to mean an individual provides more than
half the effort, when used in the context of assessing levels of
assistance provided to an individual to complete daily activities. For
example, CMS uses the term ``substantial/maximal assistance'' when
determining the type and level of assistance required for a patient to
complete an activity in a post-acute care setting.\19\ Specifically,
CMS and other organizations define the term ``substantial/maximal
assistance'' to mean a helper does more than half the effort.\20\ VA
proposes to interpret the proposed term ``substantially dependent'' in
a similar manner such that, if VA's proposed changes to Sec.
71.40(c)(4)(i)(A)(2)(i) are adopted, ``substantially dependent'' would
be applied to mean that the Primary Family Caregiver puts forth more
than half the effort when providing hands-on assistance to an eligible
veteran to complete three or more distinct ADL. An eligible veteran who
is substantially dependent on the Primary Family Caregiver for hands-on
assistance with an ADL (that is, who requires a Primary Family
Caregiver to perform more than half the effort to complete an ADL),
would require a higher degree of personal care services than an
eligible veteran whose Primary Family Caregiver provides less than half
the effort to complete ADL. Although ``substantially dependent'' would
be applied to mean a lesser degree of dependence than that of the very
highest degree, it could also encompass eligible veterans whose
dependence on the Primary Family Caregiver for hands-on assistance with
an ADL is at the very highest degree on the spectrum (for example, if
the eligible veteran is unable to put forth any effort to complete the
ADL). It is not VA's intent for the term ``substantially dependent'' in
proposed Sec. 71.40(c)(4)(i)(A)(2)(i) to exclude eligible veterans who
are fully dependent or entirely dependent on a Primary Family Caregiver
for hands-on assistance with an ADL.
---------------------------------------------------------------------------
\19\ See Outcome and Assessment Information Set OASIS-E Manual,
effective January 1, 2023, page 126, Centers for Medicare and
Medicaid Services, available at https://www.cms.gov/files/document/oasis-e-manual-final.pdf (last visited Feb. 8, 2024).
\20\ Inpatient Rehabilitation Facility--Patient Assessment
Instrument, Version 3.0, effective October 1, 2019, page 7, Centers
for Medicare and Medicaid Services, available at https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/Proposed_IRFPAI_Version3_Eff_20191001.pdf (last visited Feb. 8,
2024) (defines Substantial/maximal assistance as ``Helper does MORE
THAN HALF the effort. Helper lifts or holds trunk or limbs and
provides more than half the effort.'' (Emphasis in original.));
Section GG Self-Care (Activities of Daily Living) and Mobility
Items, 2022, pages 1-3, American Occupational Therapy Association,
available at https://www.aota.org/-/media/Corporate/Files/Practice/Manage/Documentation/Self-Care-Mobility-Section-GG-Items-Assessment-Template.pdf (last visited Feb. 8, 2024) (defines Substantial/
maximal assistance as ``Helper does MORE THAN HALF the effort.
Helper lifts or holds trunk or limbs and provides more than half the
effort.'' (Emphasis in original.)).
---------------------------------------------------------------------------
For example, an eligible veteran who typically requires hands-on
assistance with dressing may require the Primary Family Caregiver to
pull a shirt over their head, position both arms into shirt sleeves and
pull sleeves down, but the eligible veteran is able to pull the shirt
down over their trunk. Additionally, the eligible veteran typically
requires hands-on assistance from the Primary Family Caregiver to lift
feet and place them through undergarments and pantlegs, pull feet
through clothing, and lift undergarments and pants to knees but the
eligible veteran is able to pull clothing from knees to waist. The
eligible veteran may be determined substantially dependent on the
Primary Family Caregiver for dressing. This would be the case if the
Primary Family Caregiver is determined to perform more than half the
effort to complete the ADL of dressing while the eligible veteran
provides less than half the effort. In contrast, an eligible veteran
who only typically requires hands-on assistance when dressing to lift
both arms into shirtsleeves but is able to independently perform all
other tasks related to the ADL of dressing, would not be substantially
dependent on the Primary Family Caregiver for hands-on assistance when
dressing because the Primary Family Caregiver would not be performing
more than half the effort required to complete the ADL of dressing.
An eligible veteran who typically requires hands-on assistance for
the ADL of eating such that hand over hand assistance is needed from
the Primary Family Caregiver to place food on a fork, to place the fork
to the eligible veteran's mouth, and hold a cup with a straw in
proximity to the eligible veteran's mouth so that the veteran can
drink, would be considered substantially dependent upon the Primary
Family Caregiver for the ADL of eating because in such case, the
Primary Family Caregiver provides more than half the effort to complete
the ADL. Conversely, an eligible veteran who typically requires a
Primary Family Caregiver to place and adjust adaptive utensils in the
[[Page 97431]]
eligible veteran's grasp, but the veteran is otherwise able to eat
would not be considered substantially dependent upon the Primary Family
Caregiver for the ADL of eating because the Primary Family Caregiver
would not be providing more than half the effort in order for the
eligible veteran to complete the ADL.
Similarly, an eligible veteran who typically requires hands-on
assistance with the ADL of adjusting any special prosthetic or
orthopedic appliance, may be substantially dependent on the Primary
Family Caregiver if the Primary Family Caregiver provides more than
half the effort. For example, if the Primary Family Caregiver assists
with putting on the prosthetic limb by positioning a sock
appropriately, applying a foam liner, and lifting and placing the
eligible veteran's stump into the prosthesis, the eligible veteran may
be determined to be substantially dependent on the Primary Family
Caregiver to complete the ADL. If the eligible veteran only requires
assistance from the Primary Family Caregiver to hold the foam lining in
place while the eligible veteran applies the sock, lining, and
positions their stump into the prosthesis such that the Primary Family
Caregiver does not contribute more than half the effort required to
perform the ADL, the eligible veteran would not be determined to be
substantially dependent on the Primary Family Caregiver to complete the
ADL.
An eligible veteran who typically requires hands-on assistance to
complete each of the three ADL described in the illustrative examples
above, that is dressing, adjusting a prosthetic limb, and eating, and
for each such ADL is substantially dependent on the Primary Family
Caregiver for such hands-on assistance may be determined to meet this
proposed basis such that the Primary Family Caregiver may be eligible
for the higher stipend level.
ii. Second Proposed Basis for the Higher Stipend Level Payment
Under proposed new Sec. 71.40(c)(4)(i)(A)(2)(i), the second
proposed basis upon which a Primary Family Caregiver would be eligible
for the higher stipend level payment would be that the eligible veteran
typically requires personal care services to complete three or more
distinct ADL, and for each distinct ADL the eligible veteran requires
extensive instruction or supervision from the Primary Family Caregiver.
This proposed second basis upon which a Primary Family Caregiver
may be determined eligible for the higher stipend level payment would
align with proposed Sec. 71.20(a)(3)(iii), that is, that a veteran may
be determined in need of personal care services because the individual
typically requires regular or extensive instruction or supervision to
complete one or more ADL. A Primary Family Caregiver of an eligible
veteran who meets such proposed basis may be eligible for the higher
stipend level payment if such eligible veteran typically requires
personal care services to complete three or more distinct ADL and for
each distinct ADL, requires extensive instruction or supervision from
the Primary Family Caregiver. This second proposed basis would be
consistent with the language in 38 U.S.C. 1720G(a)(3)(C)(i) stating
that the amount of the stipend shall be based upon the amount and
degree of personal care services provided through the requirement of
``three or more distinct ADL'' and the requirement that the eligible
veteran requires ``extensive'' instruction or supervision from the
Primary Family Caregiver. As previously noted, the requirement for
three or more distinct ADL would address the amount of personal care
services provided by the Primary Family Caregiver. This is because a
Primary Family Caregiver would provide a greater amount of personal
care services when providing instruction or supervision for three or
more distinct ADL than when providing instruction or supervision for
fewer than three distinct ADL.
Referring to ``extensive'' instruction or supervision in proposed
38 CFR 71.40(c)(4)(i)(A)(2)(i) would address the degree of personal
care services provided by the Primary Family Caregiver and align with
VA's proposed interpretation of this term in proposed Sec.
71.20(a)(3)(iii). While proposed Sec. 71.20(a)(3)(iii) would refer to
``regular or extensive'' instruction or supervision, proposed Sec.
71.40(c)(4)(i)(A)(2)(i) would refer to ``extensive'' instruction or
supervision from the Primary Family Caregiver for purposes of the
higher stipend level payment. This is because VA considers those who
require regular instruction or supervision to complete one or more ADL
to be indicative of those with moderate needs while VA considers those
who require extensive instruction or supervision to complete three or
more distinct ADL to have severe needs. As explained in, and consistent
with, VA's earlier discussion on proposed Sec. 71.20(a)(3)(iii), if
this proposed rule is adopted as final, VA would consider the need for
extensive instruction or supervision to mean that the instruction or
supervision is required throughout the completion of the ADL. In
contrast, VA would consider regular instruction or supervision to mean
that the instruction or supervision is required for a portion of
completing the ADL rather than throughout the completion of the ADL.
Those who require extensive instruction or supervision therefore would
be considered to have a greater degree of need than those who require
regular instruction or supervision to complete an ADL. VA provides the
following illustrative examples to help explain VA's interpretation of
how an eligible veteran would meet the requirement of needing
``extensive'' instruction or supervision to complete three or more
distinct ADL. If an eligible veteran requires supervision when
determining the amount of shampoo necessary, applying shampoo to head,
lathering hair, and rinsing hair but is otherwise able to perform the
remaining actions of bathing without assistance, they would not have an
extensive need for supervision to complete the ADL of bathing because
supervision from the Primary Family Caregiver is not needed throughout
the act of bathing. Once the portion of the activity for which
supervision is needed was completed, the eligible veteran may be able
to function safely and independently for the remainder of completing
the activity. In contrast, if such an eligible veteran also required
supervision to adjust water temperature at the beginning of the
activity, identify body parts to wash, then rinse during the act of
bathing, and towel dry at the end of the activity, such eligible
veteran may be determined to require extensive supervision from the
Primary Family Caregiver to complete the ADL of bathing because
assistance would be required throughout the ADL of bathing.
An eligible veteran who is in need of extensive instruction to
toilet may require step-by-step instruction throughout the ADL of
toileting, such as to position self at the toilet, unfasten clothing,
cleanse oneself, and refasten clothing. Such veteran would require
extensive instruction from a Primary Family Caregiver because such
instruction is needed throughout the activity of toileting. In
contrast, if such instruction was only needed to position self at the
toilet and unfasten clothing, such need may be a regular need, because
instruction is only necessary for a portion of the activity, which is
at the beginning, and the eligible veteran is otherwise able to
complete the ADL of toileting in the absence of the Primary Family
Caregiver.
A veteran who requires step-by-step instruction from a Primary
Family Caregiver when eating, such as
[[Page 97432]]
instruction to select appropriate utensils to bring food to mouth, chew
food prior to swallowing, and to swallow prior to bringing additional
food to mouth may be determined to have an extensive need for
instruction from a Primary Family Caregiver when eating because such
instruction is required throughout the activity of eating. In contrast,
if the eligible veteran only requires such instruction for the first
two bites of the meal after which such pattern is established, and is
able to finish eating independently without further instruction from a
Primary Family Caregiver to complete the activity of eating, such
veteran may be determined to be in need of regular instruction for the
ADL of eating.
An eligible veteran who typically requires extensive instruction or
supervision with each of the three distinct ADL described in the
examples above, that is bathing, toileting and eating may be determined
to meet this second proposed basis under 38 CFR 71.40(c)(4)(i)(A)(2)(i)
such that the Primary Family Caregiver may be eligible for the higher
stipend level.
iii. Third Proposed Basis for Higher Stipend Level Payment
As proposed, Sec. 71.40(c)(4)(i)(A)(2)(i). would state that for
each distinct ADL the eligible veteran either is substantially
dependent on the Primary Family Caregiver for hands-on assistance or
requires extensive instruction or supervision from the Primary Family
Caregiver. VA would consider both types of personal care services when
determining whether the Primary Family Caregiver is eligible for the
higher stipend level payment on this basis. Therefore, a combination of
both types of personal care services, if provided by the Primary Family
Caregiver to complete three or more distinct ADL, could establish a
third basis for determining eligibility for the higher stipend level
pursuant to proposed Sec. 71.40(c)(4)(i)(A)(2)(i).
For a Primary Family Caregiver to be eligible for the higher
stipend level under Sec. 71.40(c)(4)(i)(A)(2)(i), the eligible veteran
would require at least one of these types of personal care services
(that is, be substantially dependent on the Primary Family Caregiver
for hands-on assistance, or require extensive instruction or
supervision from the Primary Family Caregiver) to complete three or
more distinct ADL. VA would not require the eligible veteran to need
the same type of personal care services to complete each of the three
or more distinct ADL. For example, an eligible veteran who typically
requires personal care services to complete three or more distinct ADL
would not have to be substantially dependent on the Primary Family
Caregiver for hands-on assistance to complete all three distinct ADL or
require extensive instruction or supervision from the Primary Family
Caregiver to complete all three distinct ADL. Instead, the Primary
Family Caregiver of such an eligible veteran could be eligible for the
higher stipend level under Sec. 71.40(c)(4)(i)(A)(2)(i) if, for
example, the eligible veteran is substantially dependent on the Primary
Family Caregiver for hands-on assistance to complete two ADL and
requires extensive instruction from the Primary Family Caregiver to
complete an additional distinct ADL. In this example, the eligible
veteran typically requires personal care services to complete three or
more distinct ADL, and for each distinct ADL, the eligible veteran
either is substantially dependent on the Primary Family Caregiver for
hands-on assistance or requires extensive instruction or supervision
from the Primary Family Caregiver; therefore, the Primary Family
Caregiver would be eligible for the higher stipend level under proposed
Sec. 71.40(c)(4)(i)(A)(2)(i). In contrast, if an eligible veteran
typically requires personal care services to complete only two distinct
ADL, the Primary Family Caregiver would not qualify for the higher
stipend level under this proposed basis, even if for both such ADL the
eligible veteran is both substantially dependent on the Primary Family
Caregiver for hands-on assistance and requires extensive instruction
from the Primary Family Caregiver.
iv. Fourth Proposed Basis for Higher Stipend Level Payment
The fourth proposed basis would be set forth in proposed Sec.
71.40(c)(4)(i)(A)(2)(ii), which would state that the eligible veteran
has a frequent need for supervision or protection on a continuous basis
from the Primary Family Caregiver based on the eligible veteran's
symptoms or residuals of neurological or other impairment or injury. As
VA explained above, following the Veteran Warriors decision, a Primary
Family Caregiver is eligible for the higher stipend level if an
eligible veteran has a need for supervision or protection based on
symptoms or residuals of neurological or other impairment or injury (38
U.S.C. 1720G(a)(2)(C)(ii)) on a continuous basis. The proposed fourth
basis in 38 CFR 71.40(c)(4)(i)(A)(2)(ii) would maintain this criterion
but with an added requirement that the eligible veteran has a frequent
need for supervision or protection, consistent with the other proposed
bases for the higher stipend level as discussed earlier in this
rulemaking.
Consistent with VA's prior and current interpretation (see 85 FR
46239-46240 (July 31, 2020)), in making determinations on whether an
eligible veteran has a need for supervision or protection based on
symptoms or residuals of neurological or other impairment or injury on
a continuous basis following the Veteran Warriors decision, VA
considers ``continuous'' to refer to the amount and degree of personal
care services provided. Whether or not the eligible veteran has a
frequent need for supervision or protection on a continuous basis would
be a clinical determination and would consider the degree of
intervention required, how frequently the required intervention is
needed, whether such required personal care services are limited or
expansive in the extent of assistance required, and whether such
personal care services are provided for short durations or occur over
an extended period of time.
For example, as these criteria are applied today, an eligible
veteran with post-traumatic stress disorder with a demonstrated pattern
of severe, uncontrolled panic attacks, who requires a Family Caregiver
to actively intervene through verbal and physical intervention to
assist the eligible veteran in grounding and de-escalating multiple
times during the day may be in need of supervision or protection on a
continuous basis. Additionally, an eligible veteran with amyotrophic
lateral sclerosis and that consequently has muscle weakness who
experiences loss of muscle control throughout the day may be in need of
supervision or protection throughout the day, and thus may be
determined to have a frequent need for supervision or protection based
on symptoms or residuals of neurological or other impairment or injury
on a continuous basis.
The phrase ``on a continuous basis'' for purposes of this proposed
basis would not mean that the eligible veteran would require
supervision or protection 24 hours per day, seven days per week, and it
is not meant to imply that an individual requires hospitalization or
nursing home care. Instead, the need for supervision or protection
could be demonstrated through, but would not be limited to, a
recurring, consistent, and prevalent need.
This requirement of ``on a continuous basis'' in proposed Sec.
71.40(c)(4)(i)(A)(2)(ii) would address the amount and degree of
personal care
[[Page 97433]]
services provided, consistent with the language in 38 U.S.C.
1720G(a)(3)(C)(i), as the Primary Family Caregiver who provides
supervision or protection on a continuous basis would provide a greater
amount and degree of personal care services to the eligible veteran
than a Primary Family Caregiver who provides supervision or protection
on a less than continuous basis.
For example, an eligible veteran with an uncontrolled seizure
disorder may experience seizures on a near daily basis and when such
seizures occur, the eligible veteran frequently needs protection from
the Primary Family Caregiver to clear the area of hard objects, support
the eligible veteran's head, call for medical assistance, if needed,
and help the eligible veteran re-orient following the seizure. Such
need for supervision or protection may be needed on a continuous basis
because such need is recurring, can occur at any time, and could
require the Primary Family Caregiver to actively intervene to maintain
the safety of the eligible veteran. Such Primary Family Caregiver may
be determined eligible for the higher stipend level under proposed
Sec. 71.40(c)(4)(i)(A)(2)(ii).
VA provides the foregoing examples as illustrations of its intended
application of the proposed rule should it be adopted as final, but
VA's determinations would continue to be fact-specific and could differ
depending on the facts and circumstances of an individual eligible
veteran and their Primary Family Caregiver.
v. Multiple Bases for Eligibility for Higher Stipend Level Payment
Since implementing changes following the Veteran Warriors ruling,
there are three bases under which a Primary Family Caregiver may be
eligible for the higher stipend level. The proposed changes within this
proposed rulemaking regarding the criteria for the higher stipend level
would provide four bases. Under VA's proposed rule, a Primary Family
Caregiver may be eligible for the higher stipend level under multiple
bases but would only be required to meet one basis to be eligible for
the higher stipend level.
Meeting one proposed basis for the higher stipend level does not
preclude a Primary Family Caregiver from meeting one or more additional
proposed bases that would also allow them to be eligible for the higher
stipend level. So long as VA determines that one of the bases under
Sec. 71.40(c)(4)(i)(A)(2) is satisfied, the Primary Family Caregiver
would be eligible for the higher stipend level.
c. Proposed Changes To Extend Transition Period for Legacy Cohort
To effectuate VA's proposed extension of the transition period for
the legacy cohort as discussed earlier in this rulemaking, VA proposes
to revise several paragraphs of Sec. 71.40(c)(4)(i). Specifically, VA
would amend the first sentence of the introductory text of Sec.
71.40(c)(4)(i)(B) to remove the phrase ``for five-years beginning on
October 1, 2020'' and add in its place, the phrase ``for the time
period beginning on October 1, 2020 and ending on [18 months after
EFFECTIVE DATE OF FINAL RULE]''. VA would make the same edit in
paragraphs (c)(4)(i)(C) and (c)(4)(i)(D).
2. Stipend Adjustments
a. Adjustments to Stipend Payments Based on the Office of Personnel
Management (OPM) Updates to the General Schedule (GS) Annual Rate
Current Sec. 71.40(c)(4)(ii) explains adjustments to monthly
stipend payments. Adjustments to monthly 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 take effect
prospectively following the date the update to such rate is made
effective by OPM. Sec. 71.40(c)(4)(ii)(A).
VA proposes to revise current Sec. 71.40(c)(4)(ii)(A) to further
clarify this provision and confirm through edits to the regulation text
that VA will not make retroactive pay corrections in instances when OPM
announces retroactive changes to the General Schedule (GS) Annual Rate
tables later in the year. See 85 FR at 46267 (July 31, 2020). VA's
proposed changes would also provide additional clarification in Sec.
71.40(c)(4)(ii)(A) that VA believes is needed to inform Primary Family
Caregivers of the specific month in which they can expect to receive a
pay adjustment under this paragraph.
Under this proposal, VA would maintain the requirement in current
paragraph (c)(4)(ii)(A) that VA will make stipend payment adjustments
based on OPM's updates to the GS Annual Rate for grade 4, step 1 for
the locality pay area in which the eligible veteran resides. To further
clarify when monthly stipend payment adjustments take effect, VA
proposes to revise the language that currently states that such
adjustments take effect prospectively following the date the update to
such rate is made effective by OPM. VA proposes to explain instead that
such adjustments would take effect on the first of the month that
changes to the GS Annual Rate are effective. However, if OPM publishes
changes to the GS Annual Rate and such changes have a retroactive
effective date, VA proposes to make those adjustments to the stipend
payments effective on the first of the month following the month that
OPM publishes changes to the GS Annual Rate.
Thus, VA proposes to revise Sec. 71.40(c)(4)(ii)(A) to state that
VA will adjust monthly stipend payments based on changes to the General
Schedule (GS) Annual Rate for grade 4, step 1 for the locality pay area
in which the eligible veteran resides. It would also state that such
adjustments will take effect on the first of the month in which changes
to the GS Annual Rate are effective. Proposed Sec. 71.40(c)(4)(ii)(A)
would further state that notwithstanding the previous sentence,
adjustments under this paragraph will take effect on the first of the
month following the month OPM publishes changes to the GS Annual Rate
if such changes have a retroactive effective date.
These proposed revisions are intended to further clarify when
adjustments will be made based on changes to the GS Annual Rate.
Pursuant to 5 U.S.C. 5303 and 5304, the GS rates are updated and
published on an annual basis by OPM. Information on the GS rates can be
found at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/. Updates to the GS Annual Rate are typically effective on the
first day of the first applicable pay period beginning on or after
January 1 of each calendar year. In the past, OPM has announced and
published the updated rates in December prior to implementing the new
rates. This has been the case each year since October 2020 when VA
implemented the term monthly stipend rate, which is defined in Sec.
71.15 to mean 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.
The proposed changes to Sec. 71.40(c)(4)(ii)(A) would provide
transparency to Primary Family Caregivers by specifying the month in
which they can expect the adjustment to the monthly stipend payment
based on changes to the GS Annual Rate to be effective. VA's proposed
changes would make clear that if changes to the GS Annual Rate for the
following calendar year are announced on December 15 and such changes
take effect on January 1 of that following calendar year, VA would make
adjustments to the monthly stipend payment based on those changes to
the GS Annual Rate effective January 1. Similarly, under this
[[Page 97434]]
proposal, if changes to the GS Annual Rate for the following calendar
year are announced on December 14 and such changes take effect on
January 10 of the following calendar year, VA would make adjustments to
the monthly stipend payment based on those changes to the GS Annual
Rate effective January 1. This is the practice VA has followed for
updates to the GS Annual Rate that were made effective in 2021, 2022,
and 2023. Thus, if adopted as proposed, this change would not have a
substantive impact upon current PCAFC participants, would clarify the
timing of adjustments under paragraph (c)(4)(ii)(A) for Primary Family
Caregivers, and reflect VA's current practice. While VA expects OPM
will continue to provide notice of GS Annual Rate changes in December
with an effective date of the first day of the first applicable pay
period beginning on or after January 1 of the following calendar year,
updates to and publication of, the GS Annual Rate may not always follow
this timeline. In some cases, changes to the GS Annual Rate may be made
retroactively. For example, Congress could enact legislation in
February that makes adjustments to the GS Annual Rate with a January
effective date. As a result, OPM may publish the changes to the GS
Annual Rate in March and the effective date may be retroactive to
January of that same year. This occurred with the 2019 GS Annual Rate
change. The President issued Executive Order 13866 on March 28, 2019,
that provided a retroactive pay adjustment to January 2019 as required
by the Consolidated Appropriations Act, 2019 (Public Law 116-6).\21\ On
these rare occasions that OPM publishes changes to the GS Annual Rate
and such changes have a retroactive effective date, VA proposes to make
adjustments to monthly stipend payments based on those changes
effective the first of the month following the month OPM publishes the
changes to the GS Annual Rate.
---------------------------------------------------------------------------
\21\ Executive Order for 2019 Pay Schedules, OPM, available at
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2019/executive-order-for-2019-pay-schedules/(last visited Feb. 8,
2024); Executive Order 13866, Adjustments of Certain Rates of Pay,
The White House, March 28, 2019, available at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/retroactive-pay-executive-order-2019-adjustments-of-certain-rates-of-pay.pdf (last
visited Feb. 8, 2024).
---------------------------------------------------------------------------
For example, under this proposal, if changes to the GS Annual Rate
are published on April 10 and are made effective retroactive to January
1, VA would apply the changes to the GS Annual Rate to the monthly
stipend rate, but they would not take effect until May 1. VA is not
proposing to apply the rate adjustments retroactively to January 1
because this would not be administratively feasible under VA's current
systems. The Caregiver Records Management Application (CARMA) is the
information technology (IT) system used by CSP to fully support PCAFC
and it allows for data assessment and comprehensive monitoring of
PCAFC. CARMA's ability to support PCAFC operations includes
functionality related to calculations and issuance of the monthly
stipend payment. The system, as designed, is not able to apply
systematic retroactive calculations. To do so would require manual
review and calculation of each Primary Family Caregiver's monthly
stipend payment impacted by retroactive payments and would require
manual updates to system data to ensure accurate tracking of
retroactive payments. Such manual review would be significantly
resource-intensive and would likely result in delays not only in
applying retroactive adjustments but delays to all monthly stipend
payments. Additionally, manual processes generally carry risk for
errors and in the case of the monthly stipend payment could result in
administrative errors such as incorrect payment calculations.
Significant additional developer resources would be needed to perform
such manual updates, potentially compromising current and future work
towards additional CARMA improvements and enhancements.
Retroactive changes to the GS Annual Rate do not occur often and
have not occurred in the last three years. Given the administrative
burden, risk to system integrity, and potential for administrative
error in payment calculations for many Primary Family Caregivers that
would be expected if VA were to make retroactive stipend pay
adjustments as discussed above, if OPM publishes changes to the GS
Annual Rate with a retroactive effective date, VA proposes to make
monthly stipend payment adjustments effective the first of the month
following the month OPM publishes changes to the GS Annual Rate.
VA also notes that there also could be instances in which changes
to the GS Annual Rate do not take effect because of an intervening
event. For example, if changes to the GS Annual Rate are announced in
November to take effect in February of the following year, but
superseding legislation or an Executive Order makes ineffective such
changes to the GS Annual Rate (such as a mandate in December to freeze
the GS Annual Rate), no changes to the GS Annual Rate would be made
based on the November announcement. Pursuant to the proposed changes to
paragraph (c)(4)(ii)(A), VA would not adjust the monthly stipend
payment based on the changes to the GS Annual Rate that were announced
in November. In such cases, there would be no changes to the GS Annual
Rate so VA would have no basis to adjust monthly stipend payments
pursuant to proposed paragraph (c)(4)(ii)(A).
b. Stipend Adjustments Resulting From Reassessments
VA proposes to revise the paragraphs of Sec. 71.40(c)(4)(ii)(C),
which address the effective date for changes in the Primary Family
Caregiver's monthly stipend payment resulting from a reassessment under
Sec. 71.30. VA's proposed changes to Sec. 71.40(c)(4)(ii)(C) would
make substantive revisions, such as VA's proposal to authorize a
retroactive increase in the monthly stipend payment that would become
effective as of the date VA receives a written reassessment request
under proposed revisions to Sec. 71.30(c), as discussed above. Other
proposed changes to Sec. 71.40(c)(4)(ii)(C), such as VA's proposed
revisions to the regulatory text regarding the effective date for a
decrease in the monthly stipend payment based on a reassessment, as
well as relocation of provisions related to the retroactive stipend
payment for Primary Family Caregivers of certain legacy participants
and legacy applicants, would primarily maintain the current regulatory
requirements but reorganize how those requirements are reflected in
VA's regulations. Each of these proposed changes are discussed in more
detail below.
i. 38 CFR 71.40(c)(4)(ii)(C)(1) and (2)--Current Requirements for
Monthly Stipend Payment Increases and Decreases
Currently, paragraphs (1) and (2) of Sec. 71.40(c)(4)(ii)(C) set
forth different requirements for monthly stipend payment increases and
decreases resulting from reassessments based on whether the eligible
veteran is or is not a legacy participant or legacy applicant as those
terms are defined in Sec. 71.15. If the eligible veteran is a legacy
participant or legacy applicant (that is, the eligible veteran meets
the requirements of Sec. 71.20(b) or (c)), monthly stipend payment
increases and decreases resulting from reassessments are governed by
current Sec. 71.40(c)(4)(ii)(C)(2). For all other eligible veterans
(that is, those determined eligible for PCAFC under the Sec. 71.20(a)
eligibility criteria that went into effect on October 1, 2020, and who
are not a legacy participant or legacy applicant meeting the
[[Page 97435]]
requirements of Sec. 71.20(b) or (c), respectively), monthly stipend
increases and decreases resulting from reassessments are governed by
current Sec. 71.40(c)(4)(ii)(C)(1).
Under current Sec. 71.40(c)(4)(ii)(C)(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), and a reassessment results in an
increase in the Primary Family Caregiver's monthly stipend payment, the
increase takes effect as of the date of the reassessment. Sec.
71.40(c)(4)(ii)(C)(1)(i). For such an eligible veteran, in the case of
a reassessment that results in a decrease in the Primary Family
Caregiver's 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. Sec.
71.40(c)(4)(ii)(C)(1)(ii). The effective date of the decrease is no
earlier than 60 days after VA provides advanced notice of its findings
to the eligible veteran and Primary Family Caregiver. Id.
Currently, paragraphs (i) and (ii) of Sec. 71.40(c)(4)(ii)(C)(2)
address monthly stipend payment increases and decreases, respectively,
resulting from reassessments in the case of legacy participants and
legacy applicants, that is, eligible veterans who meet the requirements
of Sec. 71.20(b) or (c).
Current paragraph (i) of Sec. 71.40(c)(4)(ii)(C)(2) states that 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. In such a case, the Primary Family Caregiver may also be
eligible for a retroactive payment. The requirements governing this
retroactive payment are contained in current Sec.
71.40(c)(4)(ii)(C)(2)(i). VA provides a detailed description of these
requirements later in this rulemaking in VA's discussion of its
proposal to relocate these provisions to a revised Sec.
71.40(c)(4)(iii).
Current paragraph (ii) of Sec. 71.40(c)(4)(ii)(C)(2) states that
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), that is, the legacy participant or legacy applicant
meets PCAFC eligibility criteria in Sec. 71.20(a) that became
effective on October 1, 2020, the new monthly stipend amount for the
Primary Family Caregiver under Sec. 71.40(c)(4)(i)(A) 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 October 1, 2025.
Sec. 71.40(c)(4)(ii)(C)(2)(ii). On October 1, 2025, VA will provide
advanced notice of its findings to the eligible veteran and Primary
Family Caregiver. Id.
ii. Proposed 38 CFR 71.40(c)(4)(ii)(C)(1) and (2)--Reorganization of
Monthly Stipend Payment Requirements Based on Reassessment
Proposed Sec. 71.40(c)(4)(ii)(C)(1) and (2) would continue to
address increases and decreases in the monthly stipend payment that
result from reassessments. However, to improve clarity and
succinctness, VA proposes to reorganize paragraphs (1) and (2) to
separately address monthly stipend payment increases (in revised
paragraph (1) with the heading ``Increases'') and monthly stipend
payment decreases (in revised paragraph (2) with the heading
``Decreases'') that may result from reassessments conducted by VA.
Rather than separately addressing such increases and decreases based on
whether an eligible veteran meets the requirements of Sec. 71.20(a)
only or also meets the requirements of Sec. 71.20(b) or (c), proposed
Sec. 71.40(c)(4)(ii)(C)(1) and (2) would include provisions regarding
monthly stipend payment increases and decreases, respectively, with
respect to all eligible veterans and their Primary Family Caregivers.
A. Proposed 38 CFR 71.40(c)(4)(ii)(C)(1)--Effective Date of Monthly
Stipend Payment Increases Based on a Reassessment
Proposed Sec. 71.40(c)(4)(ii)(C)(1) would have the heading
``Increases'' and would exclude references to eligibility requirements
and would instead explain that in the case of a reassessment that
results in an increase in the monthly stipend payment, the increase
takes effect on the earlier of the dates described in paragraphs (i)
and (ii). This proposed paragraph would apply to all eligible veterans
and their Primary Family Caregivers in the case of a reassessment that
results in a monthly stipend payment increase--not just those described
in current Sec. 71.40(c)(4)(ii)(C)(1) (that is, those who meet the
requirements of Sec. 71.20(a) only and not Sec. 71.20(b) or (c)).
As proposed in paragraph (c)(4)(ii)(C)(1)(i), the first of these
two dates would be the date VA issues notice of the decision. This
would be referring to the notice of the decision regarding the increase
in the monthly stipend payment as a result of the reassessment. Under
current Sec. 71.40(c)(4)(ii)(C)(1)(i) and (2)(i), if a reassessment
results in an increase in the monthly stipend payment, the increase
takes effect as of the date of the reassessment. Since implementing
this provision, VA has interpreted ``the date of the reassessment'' to
mean the date a reassessment determination is made, which aligns with
``the date VA issues notice of the decision''. A reassessment can occur
over multiple days, but it is not complete until the reassessment
determination is made, and VA issues notice of its decision. As the
current reference to ``date of the reassessment'' could be interpreted
differently, such as the date VA initiates a reassessment or the date
VA completes the final evaluation required for a reassessment, VA
proposes to revise the current language to remove ambiguity and clarify
VA's interpretation. VA proposes to revise the language to reflect that
it is the date VA issues notice of the decision, not the date the
reassessment was initiated, or the final evaluation required for the
reassessment was completed, that serves as the effective date of the
increase in the monthly stipend payment.
Proposed paragraph (ii) would refer to the second of the two dates
in proposed Sec. 71.40(c)(4)(ii)(C)(1) on which the increase in the
monthly stipend payment may take effect. This would be the date VA
received the written request for a reassessment pursuant to proposed
Sec. 71.30(c) from the eligible veteran or the Primary Family
Caregiver of the eligible veteran. As discussed in the context of
proposed changes to Sec. 71.30, VA is proposing to amend Sec.
71.30(c) to provide eligible veterans and Primary Family Caregivers the
opportunity to submit a written request for a reassessment. Proposed
Sec. 71.40(c)(4)(ii)(C)(1)(ii) would allow for a retroactive increase
in the monthly stipend payment back to the date VA received the written
request for reassessment pursuant to proposed Sec. 71.30(c), if it is
the earlier date under proposed Sec. 71.40(c)(4)(ii)(C)(1). If adopted
as proposed, this effective date provision would apply only to
reassessment requests under proposed Sec. 71.30(c) that are received
by VA on or after the effective date of the final rule adopting the
provision, and VA would clarify that in proposed paragraph
(c)(4)(ii)(C)(1)(ii). This would mean that the retroactive effective
date back to the date of receipt of a request for reassessment for
increases in the monthly stipend payment would not apply to requests
submitted before the effective date of a final rule adopting this
proposal, even if such a request met the requirements in proposed Sec.
71.30(c). Additionally, this proposed paragraph
[[Page 97436]]
would only apply to reassessments that result in an increase in the
monthly stipend payment. Proposed Sec. 71.40(c)(4)(ii)(C)(2),
discussed in more detail below, would provide the effective date for a
decrease in the monthly stipend payment based on a reassessment,
including a reassessment requested pursuant to proposed Sec. 71.30(c).
Proposed Sec. 71.40(c)(4)(ii)(C)(1)(ii) would account for the
period of time between the date VA receives a written request for
reassessment under proposed Sec. 71.30(c) and the date VA issues
notice of its decision regarding the monthly stipend payment increase
resulting from the reassessment. VA would strive to conduct
reassessments in a timely manner following a request for a reassessment
under proposed Sec. 71.30(c), if adopted in a final rule. However, if
VA experiences any delay in conducting a reassessment requested under
proposed Sec. 71.30(c), for example, because VA is responding to a
surge of new applications and/or requests for reassessment following
the effective date of the final rule, proposed Sec.
71.40(c)(4)(ii)(C)(1)(ii) would ensure any monthly stipend payment
increase resulting from a written request for reassessment under
proposed Sec. 71.30(c) would become effective no later than the date
VA received such request. Proposed Sec. 71.40(c)(4)(ii)(C)(1)(ii)
would apply to all PCAFC participants, regardless of whether the
eligible veteran is or is not a legacy participant or legacy applicant,
and it would help ensure equity among eligible veterans and Primary
Family Caregivers across PCAFC when a reassessment requested under
proposed Sec. 71.30(c) results in a monthly stipend payment increase.
Even if there is variability among VA facilities in their ability to
conduct reassessments requested under proposed Sec. 71.30(c) in a
timely manner, under proposed Sec. 71.40(c)(4)(ii)(C)(1)(ii), the
Primary Family Caregiver would receive any increased monthly stipend
payment based on the reassessment back to the date VA received the
request under proposed Sec. 71.30(c). For example, if a final rule
adopting this proposal becomes effective on March 31 and VA Facility A
receives a written request for reassessment under proposed Sec.
71.30(c) on April 1, and then on May 1, issues notice that the
reassessment resulted in an increased monthly stipend payment, the
effective date of the increase would be April 1. If VA Facility B also
receives a request for reassessment under proposed Sec. 71.30(c) on
April 1, but because of a surge in such requests for reassessments, VA
Facility B is not able to complete such reassessment right away, and on
July 1 issues notice that the reassessment resulted in an increased
monthly stipend payment, the effective date of the increase would still
be April 1. As stated above, under proposed Sec.
71.40(c)(4)(ii)(C)(1), the increase to the monthly stipend payment
resulting from a reassessment would take effect on the earlier of
either the date VA issues notice of the decision or the date VA
received the written request for the reassessment pursuant to Sec.
71.30(c) from the eligible veteran or the Primary Family Caregiver of
the eligible veteran, as would be set forth in proposed paragraphs (i)
and (ii), respectively.
Because of the changes VA proposes to make in paragraph
(c)(4)(ii)(C)(1), VA proposes to revise the first sentence in the note
to paragraph (c)(4)(ii)(C)(2) which refers to increases under paragraph
(c)(4)(ii)(C)(2)(i) of this section or decreases under paragraph
(c)(4)(ii)(C)(2)(ii) of this section. VA proposes to remove the
referenced language and in its place, add the phrase ``adjusted
pursuant to (c)(4)(ii)(C)''. This would be a technical and conforming
edit to update the note to paragraph (c)(4)(ii)(C)(2) and provide the
reader with one citation for the applicable paragraphs governing both
monthly stipend payment increases and decreases resulting from a
reassessment. In addition, VA proposes to remove references to October
1, 2025 in the note to paragraph (c)(4)(ii)(C)(2) and would add in
their place, the date that is 18 months after the effective date of a
final rule implementing this rulemaking. This change would align with
VA's proposal to extend the transition period for members of the legacy
cohort as discussed earlier in this rulemaking.
B. Proposed Sec. 71.40(c)(4)(ii)(C)(2)--Effective Date of Monthly
Stipend Payment Decrease Based on a Reassessment
Proposed paragraph (c)(4)(ii)(C)(2) would address instances in
which a reassessment results in a decrease in the monthly stipend
payment. Proposed paragraph (c)(4)(ii)(C)(2)(i) would address the
effective date for such decreases generally, by incorporating the
requirements from current Sec. 71.40(c)(4)(ii)(C)(1)(ii) and would
have the heading ``General''. Proposed paragraph (c)(4)(ii)(C)(2)(ii)
would set forth the effective date for such decreases specifically with
respect to eligible veterans who meet the requirements of Sec.
71.20(a) and (b) or (c) (that is, those legacy participants and legacy
applicants who meet the eligibility criteria in proposed Sec.
71.20(a)) by incorporating the requirements from current Sec.
71.40(c)(4)(ii)(C)(2)(ii) and would have the heading ``Resulting from a
legacy reassessment''.
Proposed paragraph (c)(4)(ii)(C)(2)(i) would be almost identical to
current Sec. 71.40(c)(4)(ii)(C)(1)(ii), except that the paragraph
would include new language referring to the effective date provision in
proposed paragraph (c)(4)(ii)(C)(2)(ii) that would be unique to legacy
participants and legacy applicants. Accordingly, proposed paragraph
(c)(4)(ii)(C)(2)(i) would state that except as provided in Sec.
71.40(c)(4)(ii)(C)(2)(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. It would also
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. There would be no
substantive change in this effective date with respect to eligible
veterans who meet the requirements of Sec. 71.20(a) only (that is,
eligible veterans who are not legacy participants or legacy applicants
meeting the requirements of Sec. 71.20(b) or (c), respectively) as
provided in current paragraph (c)(4)(ii)(C)(1)(ii).
Proposed paragraph (c)(4)(ii)(C)(2)(ii) would incorporate the
language from current Sec. 71.40(c)(4)(ii)(C)(2)(ii) but VA would add
a reference to Sec. 71.20(b) or (c) to clarify that this paragraph
would apply with respect to eligible veterans who are legacy
participants and legacy applicants and to update references to the
transition period for the legacy cohort to refer to the date that is 18
months after the effective date of a final rule implementing this
rulemaking as discussed earlier in this rulemaking. Also, to ensure
consistency with terminology used elsewhere in part 71, proposed
paragraph (c)(4)(ii)(C)(2)(ii) would refer to the ``monthly stipend
payment'' instead of the term ``stipend amount'' that appears in the
first sentence of current Sec. 71.40(c)(4)(ii)(C)(2)(ii). Accordingly,
proposed paragraph (c)(4)(ii)(C)(2)(ii) would state that with respect
to an eligible veteran who meets the requirements of Sec. 71.20(a) and
(b) or (c), in the case of a reassessment that results in a decrease in
the Primary Family Caregiver's monthly stipend payment, the new monthly
stipend payment under Sec. 71.40(c)(4)(i)(A) takes effect as of the
effective date provided in VA's final notice of such decrease to the
eligible veteran and Primary Family
[[Page 97437]]
Caregiver. It would also state that the effective date of the decrease
will be no earlier than 60 days after the date that is 18 months after
the effective date of a final rule under this rulemaking and that on
such effective date, VA will provide advanced notice of its findings to
the eligible veteran and Primary Family Caregiver.
As a result of these proposed changes to the language in proposed
paragraphs (c)(4)(ii)(C)(2)(i) and (ii), VA would also revise paragraph
(c)(4)(ii)(C)(2) to remove the current language (``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:'') as it
would no longer apply. VA would also add a heading in proposed
paragraph (c)(4)(ii)(C)(2) that states ``Decreases'' to further
describe the provisions proposed in Sec. 71.40(c)(4)(ii)(C)(2)(i) and
(ii)).
iii. Proposed Technical Edits to Sec. 71.40(c)(4)(ii)
VA proposes to add headings to the paragraphs of Sec.
71.40(c)(4)(ii) to assist the reader in identifying provisions. VA
proposes to add the heading ``OPM updates'' to Sec.
71.40(c)(4)(ii)(A), the heading ``Relocation'' to Sec.
71.40(c)(4)(ii)(B), the heading ``Reassessments'' to Sec.
71.40(c)(4)(ii)(C), and the heading ``Effective dates'' to Sec.
71.40(c)(4)(ii)(D).
c. Legacy Retroactive Monthly Stipend Payments
Since October 1, 2020, VA has provided the retroactive payments
authorized under Sec. 71.40(c)(4)(ii)(C)(2)(i) to ensure that Primary
Family Caregivers of legacy participants and legacy applicants
determined to meet the requirements of current Sec. 71.20(a) receive
the benefit of any monthly stipend payment increase resulting from a
reassessment as of October 1, 2020 (the effective date of the July 31,
2020 Final Rule)--regardless of when during the five-year period after
October 1, 2020 their reassessment is completed. See 85 FR 13389 (March
6, 2020). Because it is currently within the five-year period in which
VA intended to reassess legacy participants, legacy applicants, and
their Family Caregivers, some reassessments have not yet occurred while
others need to be repeated as a result of the Veteran Warriors
decision. See 87 FR 57602 (September 21, 2022). This means there are
Primary Family Caregivers of legacy participants and legacy applicants
who may still qualify for a retroactive monthly stipend payment. To
promote equity among all Primary Family Caregivers of legacy
participants and legacy applicants, VA proposes to continue providing
these retroactive monthly stipend payments, which are authorized when a
reassessment described in current Sec. 71.40(c)(4)(ii)(C)(2)(i)
results in an increase in the monthly stipend payment. VA proposes to
set forth the framework for these retroactive monthly stipend payments
in a standalone paragraph in Sec. 71.40(c)(4)(iii) that is distinct
from the regulatory text in Sec. 71.40(c)(4)(ii)(C) governing monthly
stipend payment increases and decreases resulting from a reassessment.
VA's proposed revisions seek to maintain the criteria that VA applies
under current Sec. 71.40(c)(4)(ii)(C)(2)(i) for retroactive monthly
stipend payments, but also account for proposed changes to Sec. Sec.
71.15 and 71.20(a)(3) in this proposed rule.
VA proposes to redesignate current paragraphs (c)(4)(iii) and (iv)
of Sec. 71.40, as paragraph (c)(4)(iv) and a new paragraph (c)(4)(v),
respectively. These paragraphs explain that Sec. 71.40 shall not be
construed to create an employment relationship between the Secretary
and an individual in receipt of assistance or support under part 71 and
that VA will periodically assess the monthly stipend rate to determine
whether it meets certain statutory requirements, respectively. VA
proposes to add a new paragraph (c)(4)(iii) with the heading ``Legacy
retroactive monthly stipend payment'' to account for the retroactive
monthly stipend payments authorized under current Sec.
71.40(c)(4)(ii)(C)(2)(i). The introduction text of proposed paragraph
(c)(4)(iii) would state that VA will consider eligibility for a one-
time legacy retroactive monthly stipend payment in accordance with this
paragraph as part of the legacy reassessment conducted under Sec.
71.30(e) of this part.
This proposed change would maintain the current requirements
associated with retroactive monthly stipend payments as set forth in
current Sec. 71.40(c)(4)(ii)(C)(2)(i). This would include the
eligibility criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) that VA
has applied in place of the term need for supervision, protection, or
instruction in 38 CFR 71.20(a)(3) and 71.40(c)(4)(i)(A)(2) since
Veteran Warriors. Because these specific eligibility criteria VA
applies under Sec. Sec. 71.20(a)(3) and 71.40(c)(4)(i)(A)(2) would be
replaced by new regulations if this proposed rule were adopted as
final, VA proposes to maintain these specific eligibility criteria in
the regulation text of proposed paragraphs (A) and (C)(2) of proposed
Sec. 71.40(c)(4)(iii) for purposes of determining eligibility for the
retroactive monthly stipend payment under this paragraph. Maintaining
the specific eligibility criteria that are in place today would ensure
that VA applies the same criteria when determining eligibility for the
retroactive monthly stipend payment for all Primary Family Caregivers
of legacy participants and legacy applicants, as applicable, regardless
of whether their eligibility for a retroactive monthly stipend payment
(and the amount of such payment) is considered by VA before or after
any regulation changes in this proposed rule take effect.
Accordingly, proposed Sec. 71.40(c)(4)(iii) would set forth the
specific criteria that VA currently applies to determine whether a
legacy participant or legacy applicant is eligible under current Sec.
71.20(a)(3), and whether their Primary Family Caregiver qualifies for
the higher stipend level payment under current Sec.
71.40(c)(4)(i)(A)(2). To be clear, as proposed, Sec. 71.40(c)(4)(iii)
would apply only for the purpose of determining eligibility for a one-
time retroactive monthly stipend payment to Primary Family Caregivers
of legacy participants and legacy applicants.
Proposed paragraph (A) of proposed Sec. 71.40(c)(4)(iii) would set
forth who may be eligible for a retroactive monthly stipend payment.
Proposed paragraph (B) would incorporate the limitations from current
Sec. 71.40(c)(4)(ii)(C)(2)(i) on when the retroactive monthly stipend
payment applies, with minor technical changes. Proposed paragraph (C)
would set forth the amount of the retroactive payment authorized under
current Sec. 71.40(c)(4)(ii)(C)(2)(i) by incorporating the criteria VA
applies to determine whether a Primary Family Caregiver qualifies for
the higher stipend level payment under current Sec. 71.40(c)(4)(i)(A).
Each of these proposed paragraphs is addressed in more detail below.
In proposed Sec. 71.40(c)(4)(iii)(A), VA would explain that,
subject to proposed Sec. 71.40(c)(4)(iii)(B), in the case of a
reassessment that results in an increase in the Primary Family
Caregiver's monthly stipend payment pursuant to proposed paragraph
Sec. 71.40(c)(4)(ii)(C)(1), the Primary Family Caregiver may be
eligible for a retroactive payment amount described in proposed
paragraph Sec. 71.40(c)(4)(iii)(C) if the eligible veteran is a legacy
participant or legacy applicant and meets the criteria VA applies to
determine eligibility under current Sec. 71.20(a)(3) (which may
include the criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) that VA
has
[[Page 97438]]
applied since the definition of need for supervision, protection, or
instruction was invalidated by Veteran Warriors). VA proposes to
continue to require that legacy participants and legacy applicants be
determined to meet the eligibility criteria in current 38 CFR
71.20(a)(3) as a prerequisite for their Primary Family Caregiver to
qualify for a retroactive monthly stipend payment.\22\ Accordingly,
proposed Sec. 71.40(c)(4)(iii)(A) would set forth the criteria VA
applies to determine eligibility under current Sec. 71.20(a)(3) (that
is, the criteria VA has applied since the definition of need for
supervision, protection, or instruction was invalidated by Veteran
Warriors). To make clear what those criteria are, proposed paragraph
Sec. 71.40(c)(4)(iii)(A) would refer to the eligible veteran being in
need of personal care services for a minimum of six continuous months
based on any one of the following: (1) an inability to perform an
activity of daily living as such term is defined in current Sec.
71.15; (2) a need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury; or (3) 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. For additional discussion regarding these criteria, please
see VA's discussion above regarding proposed Sec. 71.20(a)(3).
---------------------------------------------------------------------------
\22\ In the case that a legacy participant or legacy applicant
is not determined to be eligible for PCAFC under current Sec.
71.20(a)(3), their Primary Family Caregiver would not be eligible
for an increase in their monthly stipend payment under current Sec.
71.40(c)(4)(i)(A) and thus would not qualify for a retroactive
monthly stipend payment under current Sec. 71.40(c)(4)(ii)(C)(2)(i)
or proposed Sec. 71.40(c)(4)(iii). Instead, such a Primary Family
Caregiver would continue to qualify for a monthly stipend payment as
set forth in paragraphs (B) or (D) of Sec. 71.40(c)(4)(i).
---------------------------------------------------------------------------
Although VA is proposing to revise two of the seven eligibility
criteria found in Sec. 71.20 (criteria in paragraph (a)(3) and (7)),
only the criteria that VA applies to determine eligibility under
current Sec. 71.20(a)(3) (which may include the statutory criteria in
38 U.S.C. 1720G(a)(2)(C)(ii) and (iii)) would be included in proposed
Sec. 71.40(c)(4)(iii)(A). That is because legacy participants and
legacy applicants would already have been determined to meet criteria
set forth in current and proposed Sec. 71.20(a)(7). By carrying
forward these criteria for purposes of determining whether a Primary
Family Caregiver of a legacy participant or legacy applicant qualifies
for the retroactive stipend payment, VA would ensure the same criteria
apply to such a payment, regardless of whether the reassessment that
results in a stipend increase occurs before or after the effective date
of any final rule adopting changes to the regulations. The other
eligibility criteria in Sec. 71.20(a) would not be amended by this
proposed rule, and thus, would not be included in proposed Sec.
71.40(c)(4)(iii)(A).
Proposed paragraph Sec. 71.40(c)(4)(iii)(B) would be identical to
the last two sentences of current Sec. 71.40(c)(4)(ii)(C)(2)(i).
However, VA would make the following technical and conforming changes.
First, proposed paragraph (B) would cite to the description of the
retroactive payment in proposed new paragraph Sec.
71.40(c)(4)(iii)(A), where applicable. Second, because VA proposes to
add the criteria that VA has used in place of the definition of need
for supervision, protection, or instruction in proposed Sec.
71.40(c)(4)(iii)(A), VA would exclude the language that refers to the
criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii), the definition of
need for supervision, protection, or instruction, and the Veteran
Warriors decision and would instead refer to the criteria in proposed
38 CFR 71.40(c)(4)(iii)(A). Finally, VA would remove the language ``was
completed by VA before March 25, 2022, and such reassessment'', as such
language may inadvertently suggest that it excludes legacy
participants, legacy applicants, and their Family Caregivers who did
not have a first reassessment completed by VA before March 25, 2022,
which was not VA's intent. These changes would maintain current
practice and, as was discussed in VA's September 21, 2022 IFR, ensure
that the Primary Family Caregivers of all legacy participants and
legacy applicants meeting the requirements of current Sec. 71.20(a)
receive the benefit of any monthly stipend payment increase as of
October 1, 2020, regardless of when the reassessment is completed prior
to September 30, 2025. 87 FR 57606 (September 21, 2022). VA would,
however, revise the current text to account for the proposed extended
transition period for the legacy cohort and the timeline for completing
legacy reassessments (as discussed earlier in this rulemaking). VA
would replace references to the five-year period beginning on October
1, 2020 with language that reflects a period beginning on October 1,
2020 and ending on the date that is 18 months after the effective date
of a final rule under this rulemaking.
With these changes, proposed Sec. 71.40(c)(4)(iii)(B) would state
that if there is more than one reassessment for an eligible veteran
during the period beginning on October 1, 2020 and ending on [18 months
after EFFECTIVE DATE OF FINAL RULE], the retroactive payment described
in proposed paragraph (c)(4)(iii)(A) applies only if the first
reassessment during the aforementioned period results in an increase in
the monthly stipend payment, and only as the result of the first
reassessment during said period. Proposed Sec. 71.40(c)(4)(iii)(B)
would further state that notwithstanding the previous sentence, if the
first reassessment during the period beginning on October 1, 2020 and
ending on [18 months after EFFECTIVE DATE OF FINAL RULE] did not result
in an increase in the monthly stipend payment, the retroactive payment
described in proposed paragraph (c)(4)(iii)(A) applies to the first
reassessment initiated by VA on or after March 25, 2022 that applies
the criteria in proposed Sec. 71.40(c)(4)(iii)(A), if such
reassessment results in an increase in the monthly stipend payment, and
only as a result of such reassessment.
Proposed Sec. 71.40(c)(4)(iii)(C) would incorporate the
requirements from current Sec. 71.40(c)(4)(ii)(C)(2)(i) regarding the
amount of the retroactive payment, but with conforming and clarifying
changes. First, because the effective date of the increase under
proposed paragraph Sec. 71.40(c)(4)(ii)(C)(1) could be either of the
dates in proposed paragraphs (i) or (ii) of that proposed paragraph,
instead of referring to the date of the increase as the ``date of the
reassessment'', VA would refer to the date of the increase as ``the
effective date of the increase under paragraph (c)(4)(ii)(C)(1) of this
section''. Second, to improve clarity, VA would specify that the amount
of the retroactive payment is any difference between the amounts set
forth in new proposed paragraphs (1) and (2) of proposed paragraph
(c)(4)(iii)(C). Accordingly, in proposed paragraph Sec.
71.40(c)(4)(iii)(C), VA would explain that the retroactive payment
amount described in proposed paragraph (c)(4)(iii)(A) would be any
difference between the amounts in proposed paragraphs (1) and (2) of
paragraph (c)(4)(iii)(C) for the time period beginning on October 1,
2020 up to the effective date of the increase under proposed paragraph
(c)(4)(ii)(C)(1), based on the eligible veteran's address on record
with the Program of Comprehensive Assistance for Family Caregivers on
the effective date of the increase under proposed paragraph
(c)(4)(ii)(C)(1) and the monthly stipend rate on such date.
Proposed paragraph (1) under Sec. 71.40(c)(4)(iii)(C) would state
the first amount that would be used to calculate
[[Page 97439]]
the retroactive payment amount--the amount the Primary Family Caregiver
was eligible to receive under paragraph (c)(4)(i)(B) or (D) of Sec.
71.40, whichever the Primary Family Caregiver received. Primary Family
Caregivers eligible for a retroactive monthly stipend payment under
proposed paragraph Sec. 71.40(c)(4)(iii) would, up to that point, have
been receiving a monthly stipend under Sec. 71.40(c)(4)(i)(B) or (D),
so VA would maintain in proposed paragraph Sec. 71.40(c)(4)(iii)(C)(1)
this same language from current paragraph Sec.
71.40(c)(4)(ii)(C)(2)(i).
Proposed paragraph (2) under Sec. 71.40(c)(4)(iii)(C) would
include the second amount that would be used to calculate the
retroactive payment amount. Consistent with the calculation of the
monthly stipend payment under current Sec. 71.40(c)(4)(i)(A), this
amount would be the monthly stipend rate (as that term is defined in
Sec. 71.15) multiplied by 0.625 or 1.00. Under current Sec.
71.40(c)(4)(i)(A), the monthly stipend payment is the monthly stipend
rate multiplied by 0.625 unless the eligible veteran is unable to self-
sustain in the community, in which case the monthly stipend rate is
multiplied by 1.00. As VA proposes to remove the term unable to self-
sustain in the community and its definition from Sec. 71.15, proposed
Sec. 71.40(c)(4)(iii)(C)(2) would include the criteria from that
definition, as VA has applied that term and its definition since the
definition of need for supervision, protection, or instruction was
invalidated in Veteran Warriors. Please see VA's earlier discussion on
the higher stipend level criteria in proposed Sec.
71.40(c)(4)(i)(A)(2) for additional discussion on how VA interpreted
and applied that section and the basis for a determination that an
eligible veteran is unable to self-sustain in the community since the
Veteran Warriors decision.
Accordingly, proposed paragraph Sec. 71.40(c)(4)(iii)(C)(2) would
refer to the monthly stipend rate multiplied by 0.625, but also specify
that if the eligible veteran meets at least one of the following
criteria, the monthly stipend rate would be multiplied by 1.00: (i) the
eligible veteran requires personal care services each time they
complete 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'' as such term is defined in 38 CFR 71.15 (2021), and is
fully dependent on a caregiver to complete such ADLs; (ii) the eligible
veteran has a need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury on a continuous
basis; or (iii) the eligible veteran has 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 on a
continuous basis. Including this language in proposed Sec.
71.40(c)(4)(iii)(C)(2) would maintain the same criteria that VA applies
when determining the retroactive monthly stipend payment under current
Sec. 71.40(c)(4)(ii)(C)(2)(i). Maintaining these requirements would
promote equity in calculating such payments among all Primary Family
Caregivers who qualify to receive them, because the same requirements
would apply regardless of whether the reassessment and retroactive
monthly stipend payment determination occurs before or after the date
that any regulation changes would take effect, if adopted as proposed.
To be clear, proposed Sec. 71.40(c)(4)(iii)(C)(2) would apply only for
the purpose of calculating the retroactive monthly stipend payment for
Primary Family Caregivers of legacy participants and legacy applicants
when they are eligible to receive such a payment.
H. 38 CFR 71.45 Revocation and Discharge of Family Caregivers
In Sec. 71.45, VA describes the bases for revocation and discharge
of a Family Caregiver from PCAFC, the associated effective dates, and
instances in which benefits are continued after revocation or
discharge, as applicable. In this rulemaking, VA proposes several
amendments to Sec. 71.45 to address additional bases for revocation
and discharge and to make other substantive and technical edits as
explained below.
VA first proposes technical changes to Sec. 71.45 to modify
certain references to ``days'' to instead reference ``months''.
Specifically, VA proposes to make these changes in VA's regulations
that authorize the continuation of caregiver benefits in certain cases
of revocation and discharge. These changes would ensure VA's
regulations are consistent with the manner in which VA calculates the
monthly stipend payment during these continued benefit periods. For
reference, the term monthly stipend rate is defined in Sec. 71.15 to
refer to the applicable OPM GS Annual Rate divided by 12. Pursuant to
this definition, each Primary Family Caregiver's monthly stipend
payment is the same amount each month, regardless of the number of days
in the month. Accordingly, the IT system supporting CSP, CARMA, applies
a monthly rate when VA calculates and issues monthly stipend payments
to Primary Family Caregivers, including monthly stipend payments
authorized during a period of continued benefits following revocation
and discharge under Sec. 71.45. Although VA's regulations in Sec.
71.45 currently refer to continuation of caregiver benefits for 30, 60,
or 90 days, depending on the basis for revocation or discharge, VA
currently calculates stipends for those time periods by equating 30,
60, and 90 days to one, two, and three months, respectively. This
approach aligns with VA's current IT functionality and avoids manual
processes that would be required to apply a prorated daily rate for 30-
, 60-, or 90-day periods of continued caregiver benefits, which would
be resource intensive and could result in delays and errors. VA
believes that the costs associated with applying a prorated daily rate
would be significant, especially when compared to the nominal
differences between applying the monthly stipend rate as compared to a
prorated daily rate in calculating stipends during periods of continued
benefits. To ensure VA's regulations conform with current practice, VA
proposes to replace references to 30, 60, and 90 days with one, two,
and three months, respectively, in the context of Sec. 71.45
provisions that address the continuation of caregiver benefits after
revocation or discharge. VA identifies these specific proposed changes
throughout the discussion below on proposed changes to Sec. 71.45,
where applicable.
1. Proposed Revisions to Sec. 71.45(a) Regarding Revocation of a
Family Caregiver
VA proposes to revise Sec. 71.45(a) to add a basis for revocation
of a Family Caregiver and, in Sec. 71.45(a)(3), to revise the time
period for continuing benefits and to remove the opt out provision.
a. Proposed Basis for Revocation When an Eligible Veteran or Family
Caregiver No Longer Resides in a State
Current Sec. 71.45(a)(1) establishes the bases for revocation of a
Family Caregiver, and paragraphs (i) through (iii) of Sec. 71.45(a)(1)
set forth the bases on which VA may revoke the designation of a Family
Caregiver--for cause, noncompliance, and VA error, respectively. VA
proposes to add another basis for revocation of a Family Caregiver
under a new paragraph (iv) of Sec. 71.45(a)(1).
Proposed Sec. 71.45(a)(1)(iv) would state that VA will revoke the
designation of a Family Caregiver when the eligible veteran or Family
Caregiver no longer resides in a State. In addition, VA proposes to
include a note that states that if an eligible veteran no longer
resides in a State, VA will revoke the
[[Page 97440]]
designation of each of the eligible veteran's Family Caregivers. As
explained above, VA proposes to define the term State in Sec. 71.15
(consistent with the definition of such term in 38 U.S.C. 101(20)).
Therefore, the term State in proposed Sec. 71.45 (that is, in proposed
Sec. 71.45(a)(1)(iv) and in proposed Sec. 71.45(a)(2)(v), discussed
below) would have the meaning set forth in proposed Sec. 71.15 and 38
U.S.C. 101(20).
As explained in current 38 CFR 71.10(b), benefits under PCAFC and
PGCSS are provided only to those individuals residing in a State as
that term is defined in 38 U.S.C. 101(20). Therefore, an individual
residing outside a State is not eligible for PCAFC or the benefits
associated with PCAFC, and VA currently revokes the designation of the
Family Caregiver when the Family Caregiver or the eligible veteran no
longer resides in a State, consistent with 38 CFR 71.10(b). Because
current Sec. 71.45 does not contain a specific basis for revocation or
discharge based on the Family Caregiver or eligible veteran no longer
residing in a State, unless another basis of revocation or discharge
applies pursuant to Sec. 71.45(f), revocation on this basis is carried
out pursuant to current Sec. 71.45(a)(1)(ii)(E), which is a ``catch-
all category'' for requirements under part 71 that are not otherwise
accounted for in Sec. 71.45(a) or (b). 85 FR 13396 (March 6, 2020). VA
explained in its March 6, 2020 Proposed Rule that, if VA found that
``this basis for revocation is frequently relied upon, then VA would
consider proposing additional specific criteria for revocation or
discharge under this section in a future rulemaking.'' Id. While the
frequency of cases in which a PCAFC participant has moved and resided
outside of a State has not been exceedingly high, such instances have
occurred with enough frequency that VA believes a specific basis for
revocation should apply. This change, if adopted, would help ensure
transparency regarding revocation when a PCAFC participant resides
outside of a State and, along with proposed Sec. 71.45(a)(2)(v),
identify the specific requirements associated with revocation on this
basis. VA also asserts that this proposal would improve VA's ability to
track the frequency of revocation on this basis. Thus, through this
rulemaking, VA proposes to add a basis for revocation based on the
eligible veteran or Family Caregiver no longer residing in a State.
VA proposes to establish this as a basis for revocation rather than
a basis for discharge. This is because, as discussed in VA's March 6,
2020 Proposed Rule, the term ``discharge'' is commonly used in health
care 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. See 85 FR 13394 (March 6, 2020). VA further explained that
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. Id. Because residing outside of a State is an action taken
by an eligible veteran, Family Caregiver, or both, VA believes
revocation is the appropriate categorization for this new basis.
Proposed Sec. 71.45(a)(1)(iv) would include a note specifying,
consistent with current practice, that in such instances when the
eligible veteran no longer resides in a State, VA would revoke the
designation of each of the eligible veteran's Family Caregivers. This
is because approval and designation of a Family Caregiver is
conditioned upon the eligible veteran remaining eligible for PCAFC. See
38 CFR 71.25(f). If the veteran or servicemember is no longer eligible
for PCAFC, VA would have no basis to continue providing PCAFC benefits
to their caregiver(s). Consistent with all other bases for revocation
and discharge, if the eligible veteran no longer meets PCAFC
eligibility criteria, each of the approved and designated Family
Caregivers of the eligible veteran are discharged or revoked as
appropriate. However, if a Family Caregiver no longer resides in a
State, the eligible veteran could remain eligible for PCAFC if the
eligible veteran and at least one Family Caregiver continues to reside
in a State.
Current Sec. 71.45(a)(2) explains that benefits available through
PCAFC will continue to be provided to the Family Caregiver until the
date of revocation and further sets forth the revocation date for the
various revocation bases under Sec. 71.45(a)(1).
In order to address the additional basis for revocation VA proposes
in paragraph Sec. 71.45(a)(1)(iv), as described above, VA also
proposes to add a new paragraph Sec. 71.45(a)(2)(v) to set forth the
revocation date in the case of revocation on the basis of a PCAFC
participant no longer residing in a State. Proposed Sec.
71.45(a)(2)(v)(A) would explain that in the case of a revocation based
on Sec. 71.45(a)(1)(iv) (that is, when the eligible veteran or Family
Caregiver no longer resides in a State), the date of revocation would
be the earlier of the following dates, as applicable: (1) the date the
eligible veteran no longer resides in a State; or (2) the date the
Family Caregiver no longer resides in a State. VA believes that it is
reasonable to stop benefits as of the earlier of these two dates
because PCAFC is not available to individuals who reside outside of a
State.
Proposed Sec. 71.45(a)(2)(v)(B) would explain that if VA cannot
identify the date the eligible veteran or Family Caregiver, as
applicable, no longer resides in a State, the date of revocation based
on paragraph (a)(1)(iv) of Sec. 71.45 would be the earliest date known
by VA that the eligible veteran or Family Caregiver, as applicable, no
longer resides in a State, but no later than the date on which VA
identifies the eligible veteran or Family Caregiver, as applicable, no
longer resides in a State.
VA makes determinations that the Family Caregiver or eligible
veteran no longer reside in a State based on information a CSP Team
receives directly from the eligible veteran and/or Family Caregiver(s),
or through information received indirectly such as through information
available in medical record documentation. It is expected, and it has
been VA's experience, that eligible veterans and/or their Family
Caregiver(s) inform VA of a relocation out of a State prior to such
move occurring so that VA staff can assist them with planning to
transition out of PCAFC. VA staff may be able to offer support or
resources regarding transferring the care of the eligible veteran, help
facilitate medical appointments prior to an eligible veteran's move, or
engage in other such activities to plan for participants to transition
out of PCAFC. However, such direct notification to VA of an anticipated
move outside of a State may not always occur. In some cases, CSP Teams
have learned of a planned move not because the CSP Team was directly
informed but through other means. For example, the eligible veteran may
update the demographic information contained in their health record to
reflect a new address which is outside of a State or may contact their
primary care team to cancel an upcoming appointment due to their
relocation outside of a State. Similarly, the Family Caregiver may
inform an eligible veteran's health care provider after the relocation
out of a State has occurred such that they have already moved and no
longer reside in a State. This information is usually identified at the
time the eligible veteran and Family Caregiver(s) are contacted to
schedule a wellness contact.
Overpayments may result in cases of revocation based on proposed
Sec. 71.45(a)(1)(iv) and (a)(2)(v) because
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information about an eligible veteran's and/or Family Caregiver's
relocation out of a State is not always communicated in advance. An
overpayment could result when there is a delay between the date an
eligible veteran or Family Caregiver no longer resides in a State and
the date that VA becomes aware of the relocation and initiates
revocation accordingly. Pursuant to Sec. Sec. 71.45(d) and 71.47, VA
would seek to recover overpayments of benefits, as applicable,
including in cases of revocation under proposed Sec. 71.45(a)(1)(iv).
This is the case when overpayments occur as a result of other bases of
revocation or discharge. To prevent situations such as this, VA
encourages eligible veterans and Family Caregivers to notify their CSP
Team in advance of any changes that may impact their ongoing PCAFC
eligibility.
VA would not provide a period of 60-day advanced notice or a period
of continued benefits in the case of revocation under this proposed
basis. This is because, as VA explained in its July 31, 2020 Final
Rule, it is not feasible to provide PCAFC benefits outside of a State,
and VA incorporates that discussion by reference here. See 85 FR at
46227 (July 31, 2020). VA believes that this proposed approach to
effectuate the revocation pursuant to proposed Sec. 71.45(a)(2)(v) and
to recover any overpayments is reasonable. Discontinuing benefits as
close as possible to the date the individual no longer resides in a
State, if not on such date, would minimize the amount of overpayment
subject to recoupment.
b. Proposed Revision to Time Period for Continuing Benefits and Removal
of Opt Out in Sec. 71.45(a)(3)
Current Sec. 71.45(a)(3) describes the continuation of benefits in
the case of revocation based on VA error under Sec. 71.45(a)(1)(iii).
Specifically, current paragraph (a)(3) states that in the case of
revocation based on VA error under paragraph (a)(1)(iii) of Sec.
71.45, caregiver benefits will continue for 60 days after the date of
revocation unless the Family Caregiver opts out of receiving such
benefits. Paragraph (a)(3) also states that 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.
VA proposes to revise the first sentence in paragraph (a)(3) to
correct for challenges VA has experienced associated with the current
regulation text. As proposed, the first sentence of paragraph (a)(3)
would state that in the case of revocation based on VA error under
paragraph (a)(1)(iii) of Sec. 71.45, caregiver benefits will continue
for two months after the date VA issues notice of revocation. VA
explains proposed revisions below.
First, VA proposes to replace ``after the date of revocation'' with
``after the date VA issues notice of revocation'' in the regulation
text. This revision would change the start date for the period of
continued benefits. VA's intent with the current language was to
provide advance notice prior to terminating benefits, even if such
benefits would be considered an overpayment and subject to recoupment.
As explained in the March 6, 2020 Proposed Rule, ``[t]his extended
period of benefits would give the Family Caregiver time to adjust
before benefits are terminated'', as ``[i]n such cases, the Family
Caregiver may have come to rely on the benefits that were authorized as
a result of a VA error.'' 85 FR 13397 (March 6, 2020). However, the
phrase ``60 days after the date of revocation'' does not allow for the
continuation of benefits if the effective date of revocation is in the
past. For example, if in July, VA learns of and initiates revocation
based upon a VA error that was made in January, the revocation date
would be in January. Providing benefits for 60 days beyond the date of
revocation would not allow for the advanced notice period that VA
intended to authorize in Sec. 71.45(a)(3) because the 60-day period
would already have passed. By replacing ``60 days after the date of
revocation'' with ``two months after the date VA issues notice of
revocation'' in proposed Sec. 71.45(a)(3), VA believes the proposed
revised text would permit VA to provide advance notice before PCAFC
benefits are discontinued and resolve this issue with the current
regulation text and any confusion it has caused.
In the aforementioned example, under proposed paragraph (a)(3), if
VA issues notice of revocation in July, the date of revocation would
still be in January, but caregiver benefits would continue to be
provided for two months after the date in July that VA issues notice of
revocation. All benefits provided following the date of revocation in
January would still be considered an overpayment, including the
benefits provided during the two months after the date in July that VA
issues notice of revocation, and VA seeks to recover overpayment of
such benefits as provided in Sec. 71.47. As provided in the last
sentence of current Sec. 71.45(a)(3), which VA does not propose to
revise in this proposed rule, continuation of benefits under Sec.
71.45(a)(3) will be considered an overpayment and VA will seek to
recover overpayment of such benefits as provided in Sec. 71.47.
Second, VA proposes to remove the language in Sec. 71.45(a)(3)
regarding the ability of the Family Caregiver to opt out of receiving
continued benefits for 60 days after the date of revocation, in the
case of revocation due to VA error. VA acknowledges that the number of
revocations on this basis is very small. However, when they do occur,
VA generally does not receive the Family Caregiver's decision to opt
out of receiving continued benefits for the 60-day period, specifically
the monthly stipend payment, with sufficient time for VA to stop the
issuance of the monthly stipend payment. This means that VA, despite
not knowing if the Primary Family Caregiver intends to opt out, must
either proceed with issuing the continued monthly stipend payment or
place a hold on issuing the payment until the Primary Family
Caregiver's opt out decision is received, the latter of which
effectively pauses the monthly stipend payment and thereby interferes
with the intended purpose of this extended benefit period. Because it
has proven to be unworkable, VA proposes to remove this language
concerning the ability of the Family Caregiver to opt out of receiving
continued benefits for the 60 days after the date of revocation. VA
believes that the number of instances in which this basis for
revocation applies will continue to be very small, and the costs
associated with providing the option to opt out outweigh any benefits
of maintaining this provision. The current manual process in place to
execute the opt out is resource intensive and unsustainable. If this
proposed change is adopted in a final rule, VA would ensure the change
is communicated to PCAFC participants at the time of approval and
designation of a Family Caregiver and periodically throughout their
PCAFC participation. Again, 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.
Finally, current paragraph (a)(3) provides for 60 days of continued
benefits in the case of revocation based on VA error under paragraph
(a)(1)(iii). However, VA proposes to remove the language ``60 days''
and in its place, add the language ``two months''. VA's rationale for
this change is explained in more detail above and is proposed because
of the manner in which VA calculates monthly stipend payments.
As proposed, paragraph (a)(3) would state that in the case of
revocation based on VA error under paragraph (a)(1)(iii) of Sec.
71.45, caregiver benefits will continue for two months after the date
VA issues the notice of revocation. It
[[Page 97442]]
would also state that 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.
2. Proposed Revisions to Sec. 71.45(b) Regarding Discharge of a Family
Caregiver
Paragraph (b) of Sec. 71.45 addresses bases for discharge, dates
of discharge, rescission of certain discharge requests, and
continuation of benefits following discharge. Under paragraph (b)(1),
VA proposes to make several changes regarding discharge due to the
eligible veteran, including the addition of new bases for discharge. VA
also proposes to add an additional basis for discharge due to the
Family Caregiver under paragraph (b)(2) and to allow for rescission of
a discharge request under paragraph (b)(3). These and other proposed
changes to Sec. 71.45(b) are discussed below.
a. Proposed Revisions to Discharge Based on Institutionalization of the
Eligible Veteran
Current Sec. 71.45(b)(1) addresses the bases for discharge due to
the eligible veteran. Under this paragraph, a Family Caregiver will be
discharged when the eligible veteran does not meet the requirements of
Sec. 71.20(a)(1) through (4) because of improvement in their condition
or otherwise, or when the eligible veteran dies or is
institutionalized. See Sec. 71.45(b)(1)(i)(A) and (B). VA proposes to
make several revisions to paragraph (b)(1) as it relates to discharge
based on death or institutionalization.
First, VA would remove the last sentence from current Sec.
71.45(b)(1)(i)(B) that explains that in the instance of
institutionalization of the eligible veteran, notification to VA of
such institutionalization must indicate whether the eligible veteran is
expected to be institutionalized for 90 or more days from the onset of
institutionalization. VA has found that it is not necessary for such
notice to indicate whether the eligible veteran is expected to be
institutionalized for 90 or more days from the onset of
institutionalization as VA has other means of collecting this
information. What is most critical is that VA receive notification of
institutionalization of the eligible veteran. At that point, VA can
work with the eligible veteran and/or Family Caregiver to obtain
additional information that may be necessary for purposes of
determining whether discharge should be initiated and also facilitate
other appropriate actions, such as referrals for additional support, as
applicable.
VA therefore proposes to remove the requirement to indicate whether
the eligible veteran is expected to be institutionalized for 90 days or
more from the onset of institutionalization when providing notice to VA
of such institutionalization as VA has found it to be unnecessary and
potentially burdensome. VA does not anticipate any changes to PCAFC
administration or the practical application of this basis of discharge
if this requirement is removed as proposed.
While VA is proposing to remove the last sentence of Sec.
71.45(b)(1)(i)(B), VA's regulations would still include the requirement
that 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. Failure to provide
timely notification of death or institutionalization of an eligible
veteran, as required by Sec. 71.45(b)(1)(i)(B), could result in
overpayments of benefits to the Family Caregiver, which are subject to
recoupment pursuant to Sec. 71.47.
VA also proposes to make a clarifying edit to current Sec.
71.45(b)(1)(ii)(B), which explains that for discharges based on
paragraph (b)(1)(i)(B) (that is, those discharges due to the death or
institutionalization of the eligible veteran), the date of discharge
will be the earliest of the specified dates, as applicable, which
includes under current paragraph (2), the 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.
VA proposes to revise Sec. 71.45(b)(1)(ii)(B)(2) to refer to the
date that the institutionalization begins, if it is ``known on such
date'' that the eligible veteran is expected to be institutionalized
for a period of 90 days or more. VA proposes to revise the current
language from ``if it is determined'' to ``if it is known on such
date'' to make clear that the discharge would take effect on the date
the institutionalization begins under paragraph (b)(1)(ii)(B)(2) only
when it is known at the onset of institutionalization that such
institutionalization will be for 90 days or more. This aligns with how
VA has implemented paragraph (b)(1)(ii)(B)(2) since this provision
became effective. Therefore, this proposed change would not result in a
change to VA's current practice but would clarify how VA has
implemented the date of discharge.
b. Proposed Additional Bases for Discharge of a Family Caregiver Due to
the Eligible Veteran
Under Sec. 71.45(b)(1), VA proposes to include two new bases for
discharging the Family Caregiver. First, proposed Sec.
71.45(b)(1)(i)(C) would include an existing basis for discharge based
on a Family Caregiver's request for discharge due to domestic violence
(DV) or intimate partner violence (IPV) perpetrated by the eligible
veteran against the Family Caregiver. Current Sec. 71.45(b)(3)(iii)(B)
accounts for such basis within the context of discharge based on the
request of the Family Caregiver. Such paragraph explains that if the
Family Caregiver requests discharge due to DV or 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 (for example, physician, dentist, psychologist,
rehabilitation therapist) of the eligible veteran or Family Caregiver,
Intimate Partner Violence Assistance Program (IPVAP) Coordinator,
therapist or counselor.
VA would move this basis from current Sec. 71.45(b)(3)(iii) to new
proposed paragraphs (b)(1)(i)(C), (b)(1)(ii)(C), and (b)(1)(iii)(B), as
this basis for discharge is due to the eligible veteran. VA does not
propose to make any substantive changes to the provisions in current
paragraph (b)(3)(iii)(B). Using language in current paragraph
(b)(3)(iii)(B), proposed paragraph (b)(1)(i)(C) would state that the
Family Caregiver will be discharged based on the Family Caregiver
requesting discharge due to DV or IPV perpetrated by the eligible
veteran against the Family Caregiver. As discussed below, proposed
paragraph (b)(1)(ii)(C) would provide the date of discharge on this
basis, and proposed paragraphs (b)(1)(iii)(B)(1) through (3) would
include the language in current paragraph (b)(3)(iii)(B)(1) through (3)
regarding the documentation that would be required to be provided to VA
for the
[[Page 97443]]
Family Caregiver to receive three months of continued benefits.
Because VA proposes to add new paragraph (b)(1)(i)(C), which would
not require a VA determination but rather would be described as a
request from the Family Caregiver, VA would make conforming edits to
paragraphs (b)(1)(i) and (b)(1)(i)(A). In paragraph (b)(1)(i), VA would
remove the language ``when VA determines'' and replace it with ``based
on''. Thus, as proposed, paragraph (b)(1)(i) would state that except as
provided in paragraph (f) of Sec. 71.45, the Family Caregiver will be
discharged from Program of Comprehensive Assistance for Family
Caregivers based on any of the following.
Paragraph (b)(1)(i)(A) currently addresses situations where the
eligible veteran does not meet the requirements of Sec. 71.20 because
of improvement in the eligible veteran's condition or otherwise.
Because of VA's proposed changes to paragraph (b)(1)(i), VA proposes to
add language to make clear that paragraph (b)(1)(i)(A) is a VA
determination. Thus, VA proposes to revise Sec. 71.45(b)(1)(i)(A) to
add ``VA determines''. Proposed paragraph (b)(1)(i)(A) would state that
except as provided in paragraphs (a)(1)(ii)(A) and (b)(1)(i)(B) of
Sec. 71.45, VA determines the eligible veteran does not meet the
requirements of Sec. 71.20 because of improvement in the eligible
veteran's condition or otherwise.
Because proposed paragraph (b)(1)(i) would set forth additional
bases for discharge due to the eligible veteran (that is, bases in
addition to those set forth in current paragraph (b)(1)(i)(A) and (B)),
VA also proposes to remove the ``or'' at the end of current paragraph
(b)(1)(i)(A) and to replace the period at the end of current paragraph
(b)(1)(i)(B) with a semicolon. These proposed changes to paragraphs
(b)(1)(i) and (b)(1)(i)(A), and to the punctuation at the end of
paragraph (b)(1)(i)(B) would be technical revisions that are not
intended to have a substantive impact.
The second basis VA proposes to add to Sec. 71.45(b)(1)(i) is for
cases where VA determines that unmitigated personal safety issues exist
for the Family Caregiver due to DV or IPV by the eligible veteran
against the Family Caregiver. This would be added in a new proposed
paragraph (b)(1)(i)(D). This basis of discharge would be applied by VA
to initiate discharge due to DV or IPV by the eligible veteran against
the Family Caregiver when VA determines that unmitigated personal
safety issues exist for the Family Caregiver. Currently in such
circumstances, VA may initiate revocation (rather than discharge) of
the Family Caregiver for cause or noncompliance, in which case extended
benefits would not be available for the Family Caregiver. VA believes
that including this new basis for discharge would better support Family
Caregivers who may be determined no longer eligible for PCAFC because
of factors resulting from DV or IPV, and proposes to include a
provision for extended benefits as discussed below. The addition of
this basis for discharge would provide a standard process when VA
determines that unmitigated personal safety issues exist for the Family
Caregiver due to DV or IPV.
In VA's experience working with participants in PCAFC, VA has
identified instances of severe and/or escalating violence by the
eligible veteran directed at the Family Caregiver, but the Family
Caregiver does not request discharge and attempts to continue to
provide personal care services to the eligible veteran. VA also
identified instances where the existence or threat of violence impacts
the Family Caregiver's ability to provide required personal care
services, and/or the eligible veteran's willingness to receive personal
care services from the Family Caregiver. VA has also witnessed the
detrimental impacts that DV and IPV can have on the well-being of both
the Family Caregiver as well as the eligible veteran, which can
negatively impact the caregiving relationship. This is not to suggest
that any act which may be considered violent or aggressive inherently
impacts one's ability to provide or receive personal care services. DV
and IPV occur on a spectrum of frequency and severity and may range
from verbal insults to physical violence. Such acts of aggression
toward the Family Caregiver may occur when the Family Caregiver is
attempting to provide personal care services, or at unrelated and
isolated times.
It is not VA's intent with proposed Sec. 71.45(b)(1)(i)(D) to
discharge a Family Caregiver solely due to the presence of DV or IPV.
In fact, VA encourages identification and disclosure of DV or IPV and
would continue to encourage such disclosure if this proposed change is
adopted in a final rule so that additional support and resources can be
made available to the Family Caregiver during PCAFC participation. The
determination of whether to initiate discharge under this basis would
be a clinical determination made by VA that would include consideration
of the frequency and/or severity of the DV or IPV. VA would rely on
clinical guidelines when making determinations as to whether
unmitigated personal safety issues exist for the Family Caregiver under
proposed Sec. 71.45(b)(1)(i)(D). These guidelines would include but
are not limited to consideration of the risk of harm or lethality to
the Family Caregiver, the impact of DV or IPV on the Family Caregiver's
ability to provide personal care services and the quality of such
services. VA also would take into consideration whether the dynamic
between the eligible veteran and Family Caregiver poses a safety risk
to VA staff such that home visits as part of this program could not be
safely conducted, as such a safety risk may be indicative of the
frequency and/or severity of the DV or IPV.
VA may become aware of DV or IPV against a Family Caregiver through
various means, including but not limited to during evaluations of PCAFC
eligibility and wellness contacts, through disclosure to VA by the
eligible veteran or Family Caregiver; through observations; through
information provided to VA by family members, friends, providers, or
others; or through chart reviews. If this proposed basis for discharge
is adopted in a final rule and VA identifies DV or IPV, VA would
attempt to work with the eligible veteran and Family Caregiver, as
applicable, to identify supports and services that may be available to
meet their needs, including potential referral to the local IPVAP
coordinator, and safety planning.
VA proposes to add this new discharge basis for instances when DV
or IPV by the eligible veteran against the Family Caregiver presents
personal safety issues for the Family Caregiver, which are unmitigated.
As in cases where the Family Caregiver requests discharge pursuant to
proposed Sec. 71.45(b)(1)(i)(C), this new proposed discharge basis
under Sec. 71.45(b)(1)(i)(D) would also be included under Sec.
71.45(b)(1) because the reason for discharge would be due to the
eligible veteran. This would make clear that the behaviors of the
eligible veteran are the reason for the discharge on this basis.
VA welcomes and request public comment on this proposed basis for
discharge when VA determines that unmitigated safety issues exist for
the Family Caregiver due to DV or IPV by the eligible veteran and what
VA should consider in making these determinations if this proposed
basis is adopted in a final rule.
Additionally, because VA proposes to add additional bases for
discharge due to the eligible veteran under new proposed paragraphs
Sec. 71.45(b)(1)(i)(C) and (D) (that is, when the Family
[[Page 97444]]
Caregiver requests discharge due to DV or IPV perpetrated by the
eligible veteran against the Family Caregiver and when VA determines
unmitigated personal safety issues exist for the Family Caregiver due
to DV or IPV by the eligible veteran against the Family Caregiver), VA
proposes to add paragraphs (b)(1)(ii)(C) and (D) to address the dates
of discharge associated with these two new proposed bases.
VA proposes to add Sec. 71.45(b)(1)(ii)(C) to state that for
discharge based on paragraph (b)(1)(i)(C) (that is, when the Family
Caregiver requests discharge due to DV or IPV perpetrated by the
eligible veteran against the Family Caregiver), the date of discharge
would 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. Proposed Sec. 71.45(b)(1)(ii)(C)
would also state that if the request does not include an identified
date of discharge, VA would contact the Family Caregiver to request a
date, and if unable to successfully obtain this date, discharge would
be effective as of the date of the request. This would be consistent
with current paragraph (b)(3)(ii) which explains the discharge date in
instances when the Family Caregiver requests discharge, including due
to DV or IPV.
Proposed Sec. 71.45(b)(1)(ii)(D) would explain that for discharge
based on paragraph (b)(1)(i)(D) (that is, discharge of the Family
Caregiver based on VA determining that unmitigated personal safety
issues exist for the Family Caregiver due to DV or IPV by the eligible
veteran against the Family Caregiver), the date of discharge would be
the date VA issues notice of its determination. This would refer to the
date VA issues notice of its determination that unmitigated personal
safety issues exist for the Family Caregiver due to DV or IPV by the
eligible veteran against the Family Caregiver, such that VA is
discharging the Family Caregiver. VA proposes to use the date VA issues
notice of its determination because in these situations VA would be
making this determination as it sees significant risk to safety and the
well-being of the Family Caregiver. Once a determination is made that
unmitigated personal safety issues exist for the Family Caregiver, VA
does not propose to provide a period of advanced notice prior to
discharge. However, VA does not believe that, in general, a decision by
VA to discharge on this basis would be unexpected. This is because, as
discussed previously, VA encourages identification and disclosure of DV
or IPV at the earliest opportunity so that support and resources can be
made available. VA would work with the Family Caregiver, and the
eligible veteran, as applicable, to identify needs and options, and
through these interactions, would discuss the impact such DV or IPV
within the caregiving relationship could have on PCAFC participation.
Further, VA would ensure that this basis for discharge is communicated
to PCAFC participants upon approval and designation of a Family
Caregiver, and periodically throughout their participation in PCAFC, as
VA does with all other discharge and revocation reasons. If this basis
for discharge is adopted in a final rule, VA would also ensure it is
reviewed with the Family Caregiver and eligible veteran when DV or IPV
is identified. It is VA's intent that the provision of such information
would assist the Family Caregiver in making informed decisions related
to their caregiving role.
Current Sec. 71.45(b)(1)(iii) explains that caregiver benefits
will continue for 90 days after the date of discharge for those Family
Caregivers discharged pursuant to the bases in paragraph (b)(1)(i).
Because of the additional bases for discharge that VA proposes to add
to paragraph (b)(1)(i) (that is, when the Family Caregiver requests
discharge due to DV or IPV perpetrated by the eligible veteran against
the Family Caregiver and when VA determines unmitigated personal safety
issues exist for the Family Caregiver due to DV or IPV by the eligible
veteran against the Family Caregiver), VA proposes to add new
paragraphs (b)(1)(iii)(A) and (B) to address the continuation of
benefits for discharges pursuant to proposed paragraph (b)(1)(i). VA
would move the current language from Sec. 71.45(b)(1)(iii) into a new
proposed paragraph (b)(1)(iii)(A), which would state that except as
provided in paragraph (b)(1)(iii)(B) of Sec. 71.45, caregiver benefits
will continue for three months after the date of discharge. This
proposed text would be consistent with the current extension of
benefits in paragraph (b)(1)(iii) for current discharges made pursuant
to current Sec. 71.45(b)(1)(i)(A) and (B). However, VA would replace
``90 days'' with ``three months'' to align with VA's process for
calculating and paying monthly stipend payments. VA's rationale for
this change is explained in more detail above.
Because proposed paragraph (b)(1)(iii)(B) would address
continuation of benefits for discharges only under proposed paragraph
(b)(1)(i)(C), as discussed below, the language in proposed paragraph
(b)(1)(iii)(A) would apply to discharges pursuant to new proposed Sec.
71.45(b)(1)(i)(D) (that is, discharges based on VA determining that
unmitigated personal safety issues exist for the Family Caregiver due
to DV or IPV by the eligible veteran against the Family Caregiver).
Accordingly, Family Caregivers discharged pursuant to proposed
paragraph (b)(1)(i)(D) would receive three months of caregiver benefits
after the date of discharge, as set forth in new proposed paragraph
(b)(1)(iii)(A). VA proposes to provide caregiver benefits for three
months after the date of discharge on the basis of proposed Sec.
71.45(b)(1)(i)(D) to align with the three months of continued benefits
that VA would provide to Family Caregivers who request discharge due to
DV or IPV pursuant to proposed Sec. 71.45(b)(1)(i)(C) (so long as
other requirements are met), as discussed below. This approach would
ensure Family Caregivers are eligible for the same period of continued
benefits when discharge is due to DV or IPV, regardless of whether VA
initiates the discharge pursuant to proposed Sec. 71.45(b)(1)(i)(D) or
it is requested by the Family Caregiver under proposed Sec.
71.45(b)(1)(i)(C).
VA recognizes that the monthly stipend payment is a benefit Primary
Family Caregivers may rely upon. However, VA does not want the monthly
stipend payment to serve as an incentive to remain in an unsafe
caregiving relationship. Like the 90-day extension of benefits under
current Sec. 71.45(b)(3)(iii)(B), a three-month extension of benefits
after discharge under proposed Sec. 71.45(b)(1)(i)(D) may help to
mitigate concerns a Family Caregiver may have about the loss of the
monthly stipend payment and health care benefits. See 85 FR 13401
(March 6, 2020). VA believes that three months is an appropriate period
of time to transition out of receiving PCAFC benefits in the case of
discharge pursuant to proposed Sec. 71.45(b)(1)(i)(D). Additionally,
access to PCAFC benefits, such as counseling services, may be
especially useful to support the Family Caregiver during the three-
month period following discharge on the basis of proposed Sec.
71.45(b)(1)(i)(D).
Proposed paragraph (b)(1)(iii)(B) would address continuation of
benefits for discharges under proposed paragraph (b)(1)(i)(C) (that is,
when the Family Caregiver requests discharge due to DV or IPV
perpetrated by the eligible veteran against the Family Caregiver).
Consistent with current Sec. 71.45(b)(3)(iii), under proposed
paragraph (b)(1)(iii)(B), in the case of discharge based on new
proposed paragraph (b)(1)(i)(C), caregiver benefits
[[Page 97445]]
would continue for one month after the date of discharge unless one of
the criteria in proposed paragraph (b)(1)(iii)(B)(1) through (3) is
established, in which case caregiver benefits would continue for three
months after the date of discharge. VA proposes to move to proposed
paragraph (b)(1)(iii)(B) the language regarding continuation of
benefits in instances when the Family Caregiver requests discharge due
to DV or IPV that is included in current paragraph (b)(3)(iii)(B)(1)
through (3), which describes the requirements for the provision of 90
days of continued benefits when the discharge is due to DV or IPV. This
language would be added to proposed paragraphs (b)(1)(iii)(B)(1)
through (3) with minor modifications. Current paragraphs (b)(3)(iii)(A)
and (B) refer to the extended benefit time periods as ``30 days'' and
``90 days'', respectively. However, consistent with VA's previous
explanation, VA proposes to use ``one month'' and ``three months'' to
describe the time periods for the continued caregiver benefits in new
proposed paragraph (b)(1)(iii)(B).
Thus, proposed paragraph (b)(1)(iii)(B) would state that in the
case of discharge based on paragraph (b)(1)(i)(C) of Sec. 71.45,
caregiver benefits will continue for one month after the date of
discharge. Proposed paragraph (b)(1)(iii)(B) would further state that
notwithstanding the previous sentence, caregiver benefits will continue
for three months 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.
c. Proposed Additional Basis for Discharge of a Family Caregiver Due to
the Family Caregiver
Current paragraph Sec. 71.45(b)(2) describes conditions for
discharge of the Family Caregiver due to the Family Caregiver. Current
paragraph (b)(2)(i) addresses the only basis for such discharge now--
death or institutionalization of the Family Caregiver. VA proposes to
revise paragraph (b)(2)(i) to add an additional basis for discharge due
to the Family Caregiver being unable to provide personal care services,
among other things, and to reorganize the bases for discharge into
separate new paragraphs (A) and (B) of Sec. 71.45(b)(2)(i).
This new proposed basis for discharge due to the Family Caregiver
would account for instances in which VA determines the Family Caregiver
is not able to carry out specific personal care services, core
competencies, or additional care requirements. To be approved and
designated as a Family Caregiver, the individual must demonstrate the
ability to carry out the specific personal care services, core
competencies, and additional care requirements required by the eligible
veteran under Sec. 71.25(c)(2), so VA proposes to use the same
language in describing this new basis for discharge in proposed Sec.
71.45(b)(2)(i)(B). To clarify, a situation that would qualify for this
new proposed discharge basis, in which a Family Caregiver is unable to
carry out the enumerated actions, is intended to be different than a
situation in which a Family Caregiver is unwilling to do so. A Family
Caregiver who is unwilling to provide personal care services required
by the eligible veteran would be subject to revocation pursuant to
Sec. 71.45(a)(1)(i)(D) (authorizing revocation for cause when VA
determines that the Family Caregiver is unwilling to provide personal
care services to the eligible veteran).
Additionally, VA does not presume a Family Caregiver's inability to
carry out the specific personal care services, core competencies, or
additional care requirements needed by the eligible veteran is a matter
of noncompliance under Sec. 71.45(a)(1)(ii)(E). VA considers
noncompliance to be the direct result of a deliberate action or
inaction on the part of the eligible veteran or Family Caregiver. See
85 FR 13395 (March 6, 2020). Such inability may not be deliberate on
the part of the Family Caregiver as such Family Caregiver may be unable
to carry out the specific personal care services, core competencies, or
additional care requirements despite making significant effort to do
so. In these circumstances, for the reasons described below, VA
believes a distinct basis for discharge is appropriate and should
apply.
This new proposed basis for discharge would not add new criteria or
make changes to how criteria are currently evaluated during
reassessments. This proposed change, if made final and effective, would
allow VA to provide Family Caregivers with a period of advanced notice
and a three-month period of extended benefits when the specific
eligibility criteria are determined not to be met. Without this new
basis, there is no standard period of extended benefits. As VA
explained above, the term ``discharge'' is commonly used in health care
settings to describe what happens when a patient no longer meets
criteria for the level of care being provided. See 85 FR 13394 (March
6, 2020). Discharge may be appropriate when there is a change in
circumstances, such as when VA identifies that the Family Caregiver is
unable to carry out personal care services needed by the eligible
veteran, which may be due to a decline in their abilities or a change
in the eligible veteran's needs. In each of these cases, the basis for
the Family Caregiver not being able to carry out specific personal care
services, core competencies or additional care requirements is due to
changes in condition (of the eligible veteran or Family Caregiver). For
example, a Family Caregiver may find themselves not able to adequately
perform hands-on assistance with one or more ADL due to the increased
amount of strength required as the eligible veteran's conditions
progress. In such instance, VA believes discharge under proposed Sec.
71.45(b)(2)(i)(B) would be appropriate.
Because VA proposes to add this new basis for discharge due to the
Family Caregiver in a new Sec. 71.45(b)(2)(i)(B) and to include the
basis for discharge based on death or institutionalization under a new
Sec. 71.45(b)(2)(i)(A), VA proposes to revise the introductory text in
paragraph (b)(2)(i) to provide a general overview of discharge due to
the Family Caregiver. Accordingly, as proposed, Sec. 71.45(b)(2)(i)
would state that except as provided in paragraph (f) of Sec. 71.45,
the Family Caregiver will be discharged from the Program of
Comprehensive Assistance for Family Caregivers based on any of the
bases for discharge due to the Family Caregiver which VA would list in
proposed new paragraphs (A) and (B).
Except as explained below, VA proposes to add the remaining text in
current Sec. 71.45(b)(2)(i) in new paragraph (b)(2)(i)(A), which would
explain that one basis for discharge under paragraph (b)(2)(i) is death
or institutionalization of the Family Caregiver. VA would also include
in proposed paragraph (b)(2)(i)(A) the note from current paragraph
(b)(2)(i), which explains that VA must receive notification of death or
institutionalization of the Family
[[Page 97446]]
Caregiver as soon as possible but not later than 30 days from the date
of death or institutionalization. However, VA proposes to remove the
last sentence of current paragraph (b)(2)(i), which states 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. Consistent with VA's rationale for
removing this requirement in proposed revisions to Sec.
71.45(b)(1)(i)(B), which addresses institutionalization of an eligible
veteran, VA has found that this information is not necessary for such
notice to indicate whether the individual is expected to be
institutionalized for 90 days or more from the onset of
institutionalization of a Family Caregiver. What is most critical is
that VA receives notification of such institutionalization. Once VA has
been notified, it can work with the eligible veteran and/or Family
Caregiver to obtain additional information that may be necessary for
purposes of determining whether discharge should be initiated and also
facilitate other appropriate actions, such as referrals for additional
support, as applicable. Thus, VA would remove the requirement for a
notification of institutionalization to indicate whether the Family
Caregiver is expected to be institutionalized for 90 or more days as it
would be unnecessary. Also, while VA is proposing to remove the last
sentence of current Sec. 71.45(b)(2)(i), VA's regulations (at proposed
Sec. 71.45(b)(2)(i)(A)) would still include the requirement that 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. Failure to provide timely
notification of death or institutionalization of a Family Caregiver, as
set forth in current Sec. 71.45(b)(2)(i) and proposed Sec.
71.45(b)(2)(i)(A), or an eligible veteran, as set forth in Sec.
71.45(b)(1)(i)(B), could result in overpayments of benefits to the
Family Caregiver, which are subject to recoupment pursuant to Sec.
71.47.
Proposed new paragraph Sec. 71.45(b)(2)(i)(B) would then explain
the new additional basis for discharge. Proposed paragraph (B) would
explain that a Family Caregiver would be discharged from PCAFC when VA
determines the Family Caregiver is not able to carry out specific
personal care services, core competencies, or additional care
requirements. Current Sec. 71.45(b)(2)(ii) provides the date of
discharge in cases of discharge based on death or institutionalization
of the Family Caregiver. As explained below, VA proposes to reorganize
and revise the language in current Sec. 71.45(b)(2)(ii) and to include
in this paragraph VA's proposed discharge date that would apply to the
additional basis for discharge in proposed Sec. 71.45(b)(2)(i)(B).
First, VA proposes to keep the title of current paragraph
(b)(2)(ii) (that is, ``Discharge date''), but move the introductory
sentence in current paragraph (b)(2)(ii) to a new paragraph (A) and
clarify that it applies to discharges based on proposed paragraph
(b)(2)(i)(A) (that is, discharges due to the death or
institutionalization of the Family Caregiver). Thus, proposed
(b)(2)(ii)(A) would state that in the case of discharge based on
paragraph (b)(2)(i)(A) of Sec. 71.45, the date of discharge will be
the earliest of the following dates, as applicable. In proposed
paragraphs (b)(2)(ii)(A)(1) through (3), VA would add the existing
discharge date provisions in the case of death or institutionalization
of the Family Caregiver found in current paragraphs (b)(2)(ii)(A)
through (C). VA proposes to maintain that language, but make one
change, as explained below.
Current Sec. 71.45(b)(2)(ii)(B) states that the date of discharge
may be 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. As explained above,
VA proposes to move this language to proposed paragraph
(b)(2)(ii)(A)(2). Consistent with, and for the same reasons provided in
VA's discussion above regarding the proposed changes to similar
language in Sec. 71.45(b)(1)(ii)(B)(2), VA proposes to revise this
language in its new paragraph (proposed paragraph (b)(2)(ii)(A)(2)) to
replace ``if it is determined'' with ``if it is known on such date''.
Second, because VA is proposing to move language in current
paragraph (b)(2)(ii)(B) to paragraph (b)(2)(ii)(A)(2), VA would add new
proposed paragraph (b)(2)(ii)(B) to refer to the discharge date
applicable to the additional proposed discharge basis in proposed
paragraph (b)(2)(i)(B) (that is, discharge based on a VA determination
that the Family Caregiver is not able to carry out specific personal
care services, core competencies, or additional care requirements).
Proposed new paragraph (b)(2)(ii)(B) would state that in the case of
discharge based on proposed paragraph (b)(2)(i)(B), the date of
discharge would be provided in VA's final notice of such discharge to
the eligible veteran and Family Caregiver, and that such date would be
no earlier than 60 days after VA provides advanced notice of its
findings to the eligible veteran and Family Caregiver that the Family
Caregiver is not able to carry out specific personal care services,
core competencies, or additional care requirements. If discharged under
the proposed new basis in Sec. 71.45(b)(2)(i)(B), Family Caregivers
would have three months of continued benefits after the date of
discharge, as explained below.
The proposed 60-day advanced notice period would allow a period of
time between the date VA provides notice of its findings that the
Family Caregiver is not able to carry out specific personal care
services, core competencies, or additional care requirements, and the
date of discharge. Such time may allow for further training or
evaluation of the Family Caregiver's abilities, as applicable. If the
Family Caregiver is able to demonstrate the ability to carry out
specific personal care services, core competencies, or additional care
requirements prior to VA issuing final notice of discharge, this would
obviate VA's issuance of a final notice. A 60-day advanced notice
period would also be consistent with advanced notice periods provided
in cases of revocation for noncompliance under Sec. 71.45(a)(2)(iii)
and discharge under Sec. 71.45(b)(1)(ii)(A).
Because VA is proposing to move language in current paragraph
(b)(2)(ii)(C) to proposed paragraph (b)(2)(ii)(A)(3), VA would remove
paragraph (C) from Sec. 71.45(b)(2)(ii).
Current Sec. 71.45(b)(2)(iii) addresses continuation of benefits
for Family Caregivers who are discharged pursuant to paragraph (b)(2)
based on institutionalization of the Family Caregiver. In such cases,
benefits continue for 90 days after the date of discharge. VA proposes
to revise ``90 days'' to ``three months'' in this paragraph consistent
with VA's previous explanation about this change. VA would further
revise this paragraph to address continuation of benefits with respect
to the new basis for discharge in proposed Sec. 71.45(b)(2)(i)(B)
(that is, if VA determines the Family Caregiver is not able to carry
out specific personal care services, core competencies, or additional
care requirements), so that those discharged on such basis would also
have three months of continued benefits.
Providing three months of continued benefits after the date of
discharge would be consistent with VA's current and proposed
regulations regarding continuation of benefits when VA initiates
discharges. For example, this is consistent with the continued benefits
for those discharged under current
[[Page 97447]]
paragraph (b)(2)(i) and proposed Sec. 71.45(b)(2)(i)(A) based on
institutionalization of the Family Caregiver. This would also be
consistent with current Sec. 71.45(b)(1)(iii) and proposed Sec.
71.45(b)(1)(iii)(A) based on improvements in an eligible veteran's
condition, among other reasons under Sec. 71.45(b)(1)(i)(A). VA
believes there are parallels between a Family Caregiver's discharge
when there is a change in the eligible veteran's functioning under
paragraph (b)(1)(i)(A) (for example, due to improvement in the eligible
veteran's condition) and this new proposed discharge basis due to
changes in the Family Caregiver's ability to carry out specific
personal care services, core competencies, or additional care
requirements needed by the eligible veteran. In both cases, the
discharge of the Family Caregiver is not and would not be due to any
intentional or willful action but rather a change in an individual's
functioning. This change may be due to a change in an eligible
veteran's care needs, a change in the abilities of the Family
Caregiver, or both. VA therefore proposes to apply the same three-month
period of continued benefits for both bases. Thus, in Sec.
71.45(b)(2)(iii), VA proposes to replace ``paragraph (b)(2)(ii)(B) or
(C)'' with ``paragraphs (b)(2)(ii)(A)(2) or (3) or (b)(2)(ii)(B)'' to
refer to discharge based on institutionalization of the Family
Caregiver and VA's new proposed basis of discharge based on a VA
determination that the Family Caregiver is not able to carry out
specific personal care services, core competencies, or additional care
requirements.
d. Conforming Revisions to Sec. 71.45(b)(3) and Proposed Opportunity
for Family Caregiver To Request Rescission
Current Sec. 71.45(b)(3) describes conditions for discharge of the
Family Caregiver by request of the Family Caregiver, and current
paragraph (i) addresses requests for discharge by the Family Caregiver.
As VA proposes to address requests of the Family Caregiver for
discharge due to DV or IPV in proposed paragraphs (b)(1)(i)(C),
(b)(1)(ii)(C), and (b)(1)(iii)(B), instead of paragraph (b)(3), VA
would add a note to paragraph (b)(3)(i) to explain that requests of the
Family Caregiver for discharge due to DV or IPV perpetrated by the
eligible veteran against the Family Caregiver will be considered under
paragraph (b)(1) of Sec. 71.45. This would make clear to the public
that, if changes to the regulations are adopted as proposed, such
requests would be considered under paragraph (b)(1) and not paragraph
(b)(3).
Current Sec. 71.45(b)(3)(iii) sets forth requirements for the
continuation of caregiver benefits for discharges under paragraph
(b)(3). More specifically, current Sec. 71.45(b)(3)(iii)(A) explains
that except as provided in current paragraph (b)(3)(iii)(B) of Sec.
71.45, caregiver benefits will continue for 30 days after the date of
discharge, while current paragraph (b)(3)(iii)(B) addresses the
continuation of caregiver benefits in instances of a Family Caregiver's
request for discharge due to DV or IPV when certain documentation is
established. As discussed above, VA is proposing to move the language
in current Sec. 71.45(b)(3)(iii)(B)(1) through (3) to proposed
paragraphs (b)(1)(iii)(B)(1) through (3). Therefore, VA proposes to
remove paragraphs (A) and (B) of Sec. 71.45(b)(3)(iii) and revise
paragraph (b)(3)(iii) to state that if the Family Caregiver requests
discharge under this paragraph, caregiver benefits would continue for
one month after the date of discharge. This would not be expected to be
a substantive change because Family Caregivers discharged pursuant to
Sec. 71.45(b)(3) would continue to receive the same period of
continued benefits--whether under proposed paragraph (b)(3)(iii) or
proposed paragraphs (b)(1)(iii)(B). In addition, VA proposes to change
``30 days'' to ``one month'' consistent with VA's other proposed
changes discussed above.
VA proposes to add new paragraph (iv) to paragraph (b)(3) entitled,
``Recission'', to explain that VA will allow the Family Caregiver to
rescind their request for discharge and be reinstated if the rescission
is made within 30 days of the date of discharge. Proposed paragraph
(b)(3)(iv) would further state that if the Family Caregiver expresses a
desire to be reinstated more than 30 days from the date of discharge, a
new joint application would be required, and that this ability to
rescind requests for discharge would not apply to requests for
discharge under paragraph (b)(1)(i)(C) of Sec. 71.45. If adopted as
proposed, this provision would be consistent with how VA handles and
allows rescission of discharge requests from eligible veterans or their
surrogates pursuant to current Sec. 71.45(b)(4)(iii).
VA has found that it is not uncommon for an eligible veteran to
request discharge of their Family Caregiver as a result of a
disagreement or argument. Additionally, it is not uncommon for the
eligible veteran to rescind such request a few days later. See 85 FR
13402 (March 6, 2020). The same situation could also result when the
Family Caregiver requests discharge and then rescinds the request. VA
proposes to provide the same 30-day period that is given to eligible
veterans to Family Caregivers to allow for rescission of such a
request.
However, VA would also include language in proposed Sec.
71.45(b)(3)(iv) to state that this paragraph would not apply to
requests for discharge under proposed paragraph (b)(1)(i)(C). As
explained above, proposed paragraph (b)(1)(i)(C) would address Family
Caregiver requests for discharge due to DV or IPV perpetrated by the
eligible veteran against the Family Caregiver. VA would not allow
rescission of such requests under proposed paragraph (b)(3)(iv). This
is because a request for discharge by the Family Caregiver due to DV or
IPV would be considered an acknowledgement by the Family Caregiver that
a safety concern exists, and such safety concern could impact the
Family Caregiver's ability and/or willingness to provide the required
personal care services to the eligible veteran, as well as the eligible
veteran's willingness to receive personal care services from the Family
Caregiver. Allowing the recission of such request could perpetuate a
situation where either or both the eligible veteran and Family
Caregiver is at risk of harm. Additionally, in some cases when DV or
IPV is known to exist, recission of such request could be due to
coercion or other forms of control of the Family Caregiver by the
eligible veteran. Although proposed Sec. 71.45(b)(3)(iv) would not
allow a Family Caregiver to rescind a discharge request made under
proposed paragraph (b)(1)(i)(C), the eligible veteran and Family
Caregiver could re-apply for PCAFC by submitting a new joint
application, at which point VA would consider their eligibility for
PCAFC.
e. Proposed Revisions to Discharge of the Family Caregiver by Request
of the Eligible Veteran or Eligible Veteran's Surrogate
Current Sec. 71.45(b)(4) addresses discharge of the Family
Caregiver if an eligible veteran or their surrogate requests discharge
of the Family Caregiver. Current Sec. 71.45(b)(4)(iv) explains that
caregiver benefits will continue for 30 days after the date of
discharge, which is the present or future date of discharge provided by
the eligible veteran or eligible veteran's surrogate according to Sec.
71.45(b)(4)(ii).
VA proposes to replace the reference to ``30 days'' with ``one
month'' in Sec. 71.45(b)(4)(iv) consistent with other proposed changes
in Sec. 71.45. VA's rationale for this change is explained in more
detail above. VA also proposes to add language to Sec. 71.45(b)(4)(iv)
to
[[Page 97448]]
allow for three months of continued benefits when DV or IPV perpetrated
by the eligible veteran against the Family Caregiver can be established
based on the requirements in proposed paragraph (b)(1)(iii)(B)(1)
through (3).
In the instance that DV or IPV is being perpetrated against the
Family Caregiver by the eligible veteran and either one requests
discharge, VA believes the same period of continued caregiver benefits
should apply--regardless of whether the discharge is requested by the
Family Caregiver under proposed paragraph (b)(1)(i)(C) or by the
eligible veteran under paragraph (b)(4). If any of the requirements in
proposed paragraph (b)(1)(iii)(B)(1) through (3) can be established, VA
believes there should be a three-month period of extended benefits for
the Family Caregiver after the date of discharge when the eligible
veteran requests the discharge. VA believes this change would provide
consistency across discharge bases.
To maintain consistency with proposed Sec. 71.45(b)(1)(iii)(B), VA
proposes to require the same information as is required under such
proposed paragraph to establish that DV or IPV has occurred, when
determining whether three months of continued caregiver benefits after
the date of discharge should be provided to the Family Caregiver
pursuant to proposed Sec. 71.45(b)(4)(iv) when the eligible veteran or
their surrogate requests discharge of the Family Caregiver. Thus, this
would include by reference, (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.
This proposed change to reference the requirements in proposed
Sec. 71.45(b)(1)(iii)(B)(1) through (3) under proposed Sec.
71.45(b)(4)(iv) would ensure that a Family Caregiver that is discharged
due to DV or IPV perpetrated by an eligible veteran against the Family
Caregiver is given the same access to continued benefits when necessary
documentation/requirements are met whether it is the Family Caregiver
or the eligible veteran (or their surrogate) that requests discharge
from PCAFC.
Thus, as proposed, Sec. 71.45(b)(4)(iv) would state that caregiver
benefits will continue for one month after the date of discharge. It
would also state that notwithstanding the previous sentence, caregiver
benefits will continue for three months after the date of discharge
when any of the requirements in paragraph (b)(1)(iii)(B)(1) through (3)
can be established.
3. Multiple Bases for Revocation or Discharge
Paragraph (f) of Sec. 71.45 describes how VA addresses instances
in which there are multiple bases for revocation or discharge. Current
Sec. 71.45(f) states that in the instance that a Family Caregiver may
be both discharged pursuant to any of the criteria in paragraph (b) of
Sec. 71.45 and have his or her designation revoked pursuant to any of
the criteria in paragraph (a) of Sec. 71.45, the Family Caregiver's
designation will be revoked pursuant to paragraph (a). Further, it
states that 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 Sec. 71.45, the designation of the Family Caregiver will be
revoked pursuant to paragraph (a)(1)(i), and that in the instance that
the designation of a Family Caregiver may be revoked under paragraphs
(a)(1)(ii) and (iii) of Sec. 71.45, the designation of the Family
Caregiver will be revoked pursuant to paragraph (a)(1)(iii). Finally,
paragraph (f) states that in the instance that a Family Caregiver may
be discharged under paragraph (b)(1), (2), (3), or (4) of Sec. 71.45,
the Family Caregiver will be discharged pursuant to the paragraph most
favorable to the Family Caregiver.
VA proposes to revise Sec. 71.45(f) to require that in instances
where multiple bases exist, VA would apply the basis of revocation or
discharge with the earliest effective date. VA would no longer
necessarily effectuate a revocation over a discharge and would always
apply the basis with the earliest effective date, whether the basis
falls under discharge or revocation. As proposed, Sec. 71.45(f) would
state that in the instance a Family Caregiver may have their
designation revoked or be discharged pursuant to one or more of the
criteria in paragraphs (a) or (b) of Sec. 71.45, respectively, the
Family Caregiver's designation will be revoked or the Family Caregiver
will be discharged, as applicable, pursuant to the basis that would
result in the earliest date of revocation or discharge.
VA proposes this change for several reasons. First, once a basis
for discharge or revocation exists, VA does not believe it is practical
or appropriate to delay the discharge or revocation of a Family
Caregiver's designation simply because an additional basis exists. For
example, in the event a Family Caregiver submits a request for
discharge on July 1 that is to take effect July 21, and the eligible
veteran dies on July 15, under proposed Sec. 71.45(f), the date of
discharge would be July 15. VA does not believe it would be reasonable
to maintain the Family Caregiver's designation after the death of the
eligible veteran. Second, it would simplify the existing language in
Sec. 71.45(f) as it relates to revocation and discharge by creating a
consistent rule that applies to all situations where multiple bases
exist thereby accounting for existing and newly proposed bases for
revocation and discharge, including those proposed in this rulemaking.
Finally, VA's proposal would remove the standard of ``most
favorable to the Family Caregiver'', which could be subjective and
difficult to apply, and would replace it with a more straightforward
rule that requires VA to apply the ``basis that would result in the
earliest date of revocation or discharge'', leaving less discretion to
VA.
VA acknowledges that its proposed changes to paragraph (f) would
change VA's current practice as it relates to discharges. The last
sentence of current paragraph (f) states that 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. In proposing
this language, VA explained that it would address the infrequent
instances where multiple requests for discharge are received by VA, and
one basis is more favorable to the Family Caregiver. 85 FR 13404 (March
6, 2020). VA proposes to modify this provision and to no longer apply
this rule because there are limited instances in which multiple
discharge bases exist. When these instances have occurred, they have
generally involved a discharge that is requested due to DV or IPV. To
address these specific scenarios, VA has proposed changes to Sec.
71.45(b)(4)(iv) and (b)(1)(iii)(B), as discussed above, to allow Family
Caregivers to receive three months of continued benefits if DV or IPV
is established (and the applicable requirements are met) regardless of
whether discharge is requested by the eligible veteran or their
surrogate under Sec. 71.45(b)(4)(i) or by the Family Caregiver under
proposed Sec. 71.45(b)(1)(i)(C). With these amendments, if the
eligible veteran and
[[Page 97449]]
Family Caregiver both submit requests to VA for the Family Caregiver to
be discharged on July 7, the same period of continued benefits would
apply on the basis of either discharge request, such that VA would no
longer be faced with determining which discharge basis is ``most
favorable to the Family Caregiver'' and thereby limiting the impact of
removing this subjective standard, if proposed changes to Sec.
71.45(f) are adopted in a final rule. VA expects the proposed revisions
to Sec. 71.45(f) would provide clarity about which basis for
revocation or discharge applies when weighing multiple bases.
VA solicits comments from the public on all aspects of this
proposed rule. In particular, VA asks the following question on
specific aspects of this proposal.
1. Among other changes to Sec. 71.45, VA has proposed adding as a
new basis for discharge, a VA determination that unmitigated personal
safety issues exist for the Family Caregiver due to DV or IPV by the
eligible veteran against the Family Caregiver. What models or standards
could VA use to determine whether discharge from PCAFC may be
appropriate due to DV or IPV?
I. 38 CFR 71.55 Home Visits and Emergency Declarations
Through an IFR published in the FR on June 5, 2020, VA added a new
rule under Sec. 71.60 to provide flexibility in the modality by which
VA conducted PCAFC home visits for the duration of the National
Emergency related to Coronavirus Disease-2019 (COVID-19) declared by
the President on March 13, 2020 (COVID-19 National Emergency). 85 FR
34522 (June 5, 2020). Section 71.60 states that notwithstanding the
requirements in part 71, for the duration of the National Emergency
related to COVID-19 declared by the President on March 13, 2020, VA may
complete visits to the eligible veteran's home under part 71 through
videoconference or other available telehealth modalities. This change
was intended to help reduce the risk of exposure to and transmission of
COVID-19 to individuals involved in PCAFC, as well as members of their
households and others with whom they came into contact. 85 FR 34523
(June 5, 2020). This was especially important given the vulnerable
population of veterans served by PCAFC. Id. As the COVID-19 National
Emergency has come to an end, Sec. 71.60 is no longer operable.
The COVID-19 National Emergency demonstrated the importance of
mitigating and reducing vulnerabilities for those applying for or
participating in PCAFC as well as VA staff in the event of future
emergencies. In the case of in-person home visits, the need for these
alternative measures is not limited to emergencies involving public
health risks, like the COVID-19 National Emergency. Natural disasters
and other weather-related emergencies can also have a direct impact on
VA's ability to safely conduct in-home visits. When emergency
conditions are such that travel and/or entry into a person's home would
expose individuals to avoidable safety or public health risks, having
alternative options to complete a home visit is vital.
VA therefore proposes to provide flexibility for VA to complete
home visits under part 71 through telehealth in cases where a Federal,
State, or local authority has declared an emergency involving certain
safety or public health risks. In these situations, VA would utilize
this flexibility to complete home visits required under part 71 when
needed to help protect the health and safety of VA staff and
individuals applying for or participating in a program under part 71.
This would include home visits required under Sec. Sec. 71.25(e),
71.30, and 71.40(b)(2).
VA proposes to add Sec. 71.55 to part 71 with the heading, ``Home
visits and emergency declarations.'' Proposed Sec. 71.55 would state
that notwithstanding the requirements in part 71, for the duration of
and in the locations covered by an emergency declaration, VA may
complete home visits under part 71 through telehealth as defined in 38
CFR 17.417(a)(4). It would also state that for purposes of this new
proposed section, emergency declaration would refer to any emergency,
declared by a Federal, State, or local authority, involving a safety or
public health risk that impacts in-person interaction between VA staff
and individuals applying for or participating in a program under part
71, including but not limited to: (a) natural disasters and weather-
related emergencies when travel to, from, or within, or time spent in
the affected area would pose a safety risk; and (b) emergencies related
to influenza, coronavirus, respiratory illness, or other contagions
that pose a public health risk.
As proposed, Sec. 71.55 would align with the text in Sec. 71.60
with some changes and additions. First, Sec. 71.60 refers to
``videoconference or other available telehealth modalities.'' However,
in proposed Sec. 71.55 VA would refer to telehealth as that term is
defined in 38 CFR 17.417(a)(4). Per Sec. 17.417(a)(4), the term
telehealth means ``the use of electronic information or
telecommunications technologies to support clinical health care,
patient and professional health-related education, public health, and
health administration.'' The phrase ``telehealth modalities'', as used
in Sec. 71.60, could be interpreted as applying only to traditional
telehealth modalities, such as video, store-and-forward, and remote
patient monitoring. So as not to suggest that Sec. 71.55 would
authorize use of only those specific modalities, proposed Sec. 71.55
would not use that term and would instead reference the broader
definition of telehealth as it is defined in Sec. 17.417(a)(4).
Although proposed Sec. 71.55 would not specifically reference
``videoconference'' as Sec. 71.60 does, VA believes that through
policy, it could establish an expectation that videoconference be the
primary mode of telehealth used for completing home visits if this
proposal is adopted in a final rule. However, in cases where
videoconference is not possible, proposed Sec. 71.55 would provide VA
with flexibility to use other means of telehealth, such as telephone,
to complete home visits under this section.
Under proposed Sec. 71.55, VA would also define the term emergency
declaration for purposes of this section. As proposed, emergency
declaration would refer, in part, to any emergency declared by a
Federal, State, or local authority. This differs from Sec. 71.60 which
only applied to the COVID-19 National Emergency even though State and
local authorities also issued emergency declarations related to COVID-
19.\23\ When VA published the IFR that established Sec. 71.60, the
COVID-19 National Emergency was applicable nationwide, such that there
was no need to reference other emergency declarations and orders
related to COVID-19. However, as VA seeks to provide flexibility in the
case of emergency declarations that may be more limited in scope than
at a national level, VA believes it is prudent for proposed Sec. 71.55
to encompass any Federal, State, or local emergency declaration, so
long as it involves a safety or public health risk as described in this
proposal. VA also includes the phrase ``in the locations covered by an
emergency declaration'' in the first sentence of proposed Sec. 71.55
to account for emergencies with localized impacts
[[Page 97450]]
(for instance, State-wide, or in one or two counties) as well as those
on a larger scale (for example, nationwide). This language would make
clear that the flexibility under proposed Sec. 71.55 would apply only
to those locations covered by the emergency declaration. Additionally,
proposed Sec. 71.55 would state that the flexibility would be
authorized ``for the duration of'' the emergency declaration, phrasing
which in Sec. 71.60 describes the extent of the flexibility
authorized.
---------------------------------------------------------------------------
\23\ See, for example, Executive Order 2023-01 (COVID-19
Executive Order No. 116), State of Illinois (Jan. 6, 2023),
available at https://www.illinois.gov/government/executive-orders/executive-order.executive-order-number-01.2023.html (last visited
Feb. 8, 2024) and Orange County, Florida Emergency Executive Order
No. 2021-36 Regarding COVID-19, Orange County, Florida (Oct. 20,
2021), available at https://www.orangecountyfl.net/portals/0/library/Emergency-Safety/docs/coronavirus/2021-36%20EEO-CMcert.pdf
(last visited Feb. 8, 2024).
---------------------------------------------------------------------------
Although proposed Sec. 71.55 uses the term emergency declaration,
the terminology used within emergency declarations may vary. For
example, Locality A may ``promulgate'' or ``declare'' a state of
emergency while Locality B may ``order'' actions in response to an
emergency.\24\ Additionally, Locality C may use the phrase ``state of
emergency'' while Locality D may use ``public emergency''.\25\ To be
inclusive of the various terms used in emergency declarations of
Federal, State, and local authorities involving specified safety or
public health risks, if proposed Sec. 71.55 were adopted in a final
rule, VA would expect to interpret and apply the term emergency
declaration to encompass terms such as public health emergency, health
emergency, and disaster emergency, and VA would expect to interpret and
apply the term declared to encompass terms such as orders,
announcements, proclamations, and pronouncements.
---------------------------------------------------------------------------
\24\ Compare, for example, State of Florida, Office of the
Governor, Executive Order No. 23-171, Emergency Management--Invest
93L (Aug. 26, 2023), available at https://www.flgov.com/wp-content/uploads/2023/08/EO-23-171-1.pdf (last visited Feb. 8, 2024) (in
which a ``state of emergency'' was ``declared'') with The State of
Georgia, Executive Order 06.22.21.01 (June 22, 2021), available at
https://gov.georgia.gov/document/2021-executive-order/06222101/download (last visited Feb. 8, 2024) (listing various matters as
``ordered'' and referring to a ``Public Health State of
Emergency'').
\25\ Compare, for example, State of Maine, Proclamation to Renew
the State of Civil Emergency (June 11, 2021), available at https://www.maine.gov/governor/mills/sites/maine.gov.governor.mills/files/inline-files/Proclamation%20to%20Renew%20the%20State%20of%20Civil%20Emergency%20-%20June%2011%202021.pdf (last visited Feb. 8, 2024) (declaring a
``state of civil emergency''); with Government of the District of
Columbia, Mayor's Order No. 2022-043 (Mar. 17, 2022), available at
https://coronavirus.dc.gov/sites/default/files/dc/sites/coronavirus/page_content/attachments/2022043-Extension-of-Public-Emergency-for-COVID19.pdf (last visited Feb. 8, 2024) (extending a ``public
emergency'').
---------------------------------------------------------------------------
If adopted, VA intends to leverage the flexibilities proposed in
Sec. 71.55 specifically during emergencies involving a safety or
public health risk that impacts in-person interaction between VA staff
and individuals participating in a program under part 71. In proposed
paragraphs (a) and (b) of Sec. 71.55, VA would provide examples of
emergencies that involve the types of safety and public health risks
that may warrant use of the flexibility afforded by proposed Sec.
71.55, such as natural disasters and weather-related emergencies, and
emergencies related to contagions such as the coronavirus or other
respiratory illness. However, under proposed Sec. 71.55, the safety or
public health risk must also impact in-person interaction between VA
staff and individuals applying for or participating in a program under
part 71. In this regard, an emergency declaration by the Federal
government related to a national supply chain shortage for baby food,
for example, would not alone authorize VA to complete part 71 home
visits through telehealth under proposed Sec. 71.55, as the risks
associated with such an emergency would not impact in-person
interaction between VA staff and individuals applying for or
participating in a program under part 71 who participate in in-person
home visits. On the contrary, an emergency declaration issued by a
State or locality because of a hurricane that impacts roadways and the
ability to travel safely could involve a safety or public health risk
that impacts in-person interaction between VA staff and individuals
applying for or participating in a program under part 71 who engage in
in-person home visits. For the duration of and in the locations covered
by such an emergency declaration, proposed Sec. 71.55 would allow VA
to complete home visits through telehealth.
J. Other Technical Edits
VA proposes to make several technical edits to remove and replace
gender specific language throughout part 71 with gender-neutral
language. These proposed revisions have no substantive impact as they
are grammatical and technical corrections that would conform to VA's
goal to ensure its regulations are gender neutral in alignment with
Executive Order 13988 of January 20, 2021, Preventing and Combating
Discrimination on the Basis of Gender Identity or Sexual Orientation.
See 86 FR 7023 (January 25, 2021).
In Sec. 71.15 VA proposes to revise the definition of personal
care services to replace the language ``his or her'' with the word
``their''. In Sec. 71.20 introductory text, and paragraphs (a), (b),
and (c), VA proposes to remove the language ``he or she'' and add in
its place, the language ``the veteran or servicemember''. In Sec.
71.45(b)(3)(i), VA proposes to remove the language ``his or her'' and
add, in its place, the word ``their''.
Other technical edits include a proposed amendment to Sec.
71.20(a)(2), to add the word ``space'' to the list of the branches of
the U.S. Armed Forces to account for inclusion of the Space Force and
proposed amendment to Sec. 71.25 to add the associated information
collection control number to the end of the section. The Office of
Management and Budget (OMB) previously approved the information
collection associated with Sec. 71.25 under control number 2900-0768
(Program of Comprehensive Assistance for Family Caregivers (PCAFC), VA
Form 10-10CG).
III. Executive Orders 12866, 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, when regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, and other advantages;
distributive impacts; and equity). Executive Order 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rule is a significant regulatory action under Executive Order 12866,
Section 3(f)(1), as amended by Executive Order 14094. The Regulatory
Impact Analysis associated with this rulemaking can be found as a
supporting document at www.regulations.gov.
IV. 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 (5
U.S.C. 601-612). The factual basis for this certification is because
this rule proposes changes to eligibility requirements in and other
updates to 38 CFR part 71, under which VA provides assistance and
support
[[Page 97451]]
services through PCAFC and PGCSS for certain caregivers of eligible
veterans and covered veterans. The beneficiaries of PCAFC and PGCSS are
not small entities, and small entities would not be impacted by this
proposed rule. 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.
V. 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.
VI. Paperwork Reduction Act
This proposed rule includes provisions constituting a revision to a
current/valid collection of information under the Paperwork Reduction
Act (PRA) of 1995 (44 U.S.C. 3501-3521) that requires approval by OMB.
Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this
rulemaking action to OMB for review and approval.
OMB assigns control numbers to collections of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. If OMB does not approve the
collection of information as requested, VA will immediately remove the
provisions containing the collection of information or take such other
action as is directed by OMB.
Comments on the revised collection of information contained in this
rulemaking should be submitted through www.regulations.gov. Comments
should be sent within 60 days of publication of this rulemaking. The
collection of information associated with this rulemaking can be viewed
at: www.reginfo.gov/public/do/PRAMain.
OMB is required to make a decision concerning the collection of
information contained in this rulemaking between 30 and 60 days after
publication of this rulemaking in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment on the provisions of this
rulemaking.
The Department considers comments by the public on a new collection
of information in--
Evaluating whether the revised collection of information
is necessary for the proper performance of the functions of VA,
including whether the information will have practical utility;
Evaluating the accuracy of VA's estimate of the burden of
the revised collection of information, including the validity of the
methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology (for example,
permitting electronic submission of responses).
The collections of information associated with this rulemaking
contained in 38 CFR 71.25(a), 71.30(c), and 71.45 are described
immediately following this paragraph, under their respective titles.
This revised information collection has a current PRA clearance under
OMB control number 2900-0768.
Title: Program of Comprehensive Assistance for Family Caregivers
(PCAFC) (VA Form 10-10CG).
OMB Control No: 2900-0768.
CFR Provision: 38 CFR 71.25(a).
Summary of collection of information: The revised
collection of information in proposed 38 CFR 71.25(a) would require
veterans, servicemembers and caregivers to submit a new joint
application to participate in PCAFC and receive benefits. VA is
proposing changes to PCAFC eligibility requirements. These changes are
expected to result in an influx of new applications in the initial year
of implementation, including from applicants who have previously
applied and been denied. The number of applications submitted to VA is
expected to fall back to more typical numbers after the initial influx.
Description of need for information and proposed use of
information: VA will use the information collected to conduct an
assessment of program eligibility for applicants.
Description of likely respondents: Veterans,
servicemembers, and caregivers.
Estimated number of respondents: 140,671 annually.
Estimated frequency of responses: Once per year.
Estimated average burden per response: 15 minutes.
Estimated total annual reporting and recordkeeping burden:
35,168 hours.
Title: Program of Comprehensive Assistance for Family Caregivers
(PCAFC) (Requests for Reassessment).
OMB Control No: 2900-0768.
CFR Provision: 38 CFR 71.30(c).
Summary of collection of information: The revised
collection of information in proposed 38 CFR 71.30(c) would set forth a
process for eligible veterans and Primary Family Caregivers to request
reassessment for continued eligibility.
Description of need for information and proposed use of
information: VA will use the information collected to initiate a
reassessment under 38 CFR 71.30 on behalf of the requester. While a
written request is not required, if a written request is received, such
written request may support an earlier effective date for any increased
benefits for which the Family Caregiver may be eligible based on the
reassessment.
Description of likely respondents: Veterans,
servicemembers, and caregivers.
Estimated number of respondents: 2,800 annually.
Estimated frequency of responses: Once per year.
Estimated average burden per response: 3 minutes.
Estimated total annual reporting and recordkeeping burden:
140 hours.
Title: Program of Comprehensive Assistance for Family Caregivers
(PCAFC) (Requests for Discharge).
OMB Control No: 2900-0768.
CFR Provision: 38 CFR 71.45.
Summary of collection of information: The revised
collection of information in proposed 38 CFR 71.45 requires veterans,
servicemembers and caregivers to submit requests for discharge verbally
or in writing to PCAFC. If such request for discharge is due to cases
of DV or IPV by the eligible veteran against the Family Caregiver, the
provision of a protective order, police report, or documentation by a
treating provider of disclosure of DV or IPV may be provided to support
the provision of extended benefits to the Family Caregiver upon the
discharge.
Description of need for information and proposed use of
information: VA will use the information collected to determine the
date of discharge for a caregiver.
Description of likely respondents: Veterans,
servicemembers, and caregivers.
Estimated number of respondents: 1,710 annually.
[[Page 97452]]
Estimated frequency of responses: Once per year.
Estimated average burden per response: 5 minutes.
Estimated total annual reporting and recordkeeping burden:
143 hours.
Total Estimated cost to respondents per year: VA estimates the
total annual cost to respondents to be $1,115,997.48 (35,451 burden
hours x $31.48 per hour).
*To estimate the total information collection burden cost, VA used
the May 2023 Bureau of Labor Statistics (BLS) mean hourly wage code--
``00-0000 All Occupations,'' available at https://www.bls.gov/oes/2023/may/oes_nat.htm.
The time estimate for the Federal Government to process VA Form 10-
10CG is 15 minutes. The time estimate for the Federal Government to
process requests for reassessment is 3 minutes and requests for
discharge is 5 minutes. This equates to a time estimate of 35,451
hours. The annual cost to the Federal Government is estimated at
$1,769,004.90 (35,451 hours x $49.90 per hour, based on the Atlanta
2024 hourly rate table for a grade 12, step 5 employee).
The annual total cost to the public and the government is expected
to be $2,885,002.38.
List of Subjects in 38 CFR Part 71
Administrative practice and procedure, Claims, Health care, Health
facilities, Health professions, Mental health programs, Public
assistance programs, Travel and transportation expenses, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, signed and approved
this document on November 15, 2024, 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.
Consuela Benjamin,
Regulation Development Coordinator Office of Regulation Policy &
Management, Office of General Counsel Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 71 as set forth below:
PART 71--CAREGIVERS BENEFITS AND CERTAIN MEDICAL BENEFITS OFFERED
TO FAMILY MEMBERS OF VETERANS
0
1. The authority citation for part 71 continues to read as follows:
Authority: 38 U.S.C. 501, 1720G, unless otherwise noted.
* * * * *
Sec. 71.10 [Amended]
0
2. In Sec. 71.10, amend paragraph (b) by removing the language ``as
that term is defined in 38 U.S.C. 101(20)''.
0
3. Amend Sec. 71.15 by:
0
a. Adding definitions for ``Activity of daily living or activities of
daily living (ADL)'', ``State'', and ``Typically requires'' in
alphabetical order.
0
b. Removing the definitions of ``Inability to perform an activity of
daily living (ADL)'', ``Need for supervision, protection, or
instruction'', and ``Unable to self-sustain in the community''.
0
c. Revising the definitions of ``Institutionalization'', ``Joint
application'', ``Legacy applicant'', ``Legacy participant'', and
``Serious injury''.
0
d. In the definition of ``Personal care services'', removing the
language ``his or her'' and adding, in its place, the language
``their''.
The revisions and additions read as follows:
Sec. 71.15 Definitions.
Activity of daily living or activities of daily living (ADL) means
any of the following functions or tasks for self-care usually performed
in the normal course of a day:
(1) Dressing or undressing;
(2) Bathing;
(3) Grooming;
(4) Adjusting any special prosthetic or orthopedic appliance (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) Eating; or
(7) Mobility.
* * * * *
Institutionalization means being institutionalized in a setting
outside the home residence to include a hospital, rehabilitation
facility, jail, prison, medical foster home, nursing home, or other
similar setting as determined by VA.
* * * * *
Joint application means an application for the Program of
Comprehensive Assistance for Family Caregivers in such form and manner
as the Secretary of Veterans Affairs considers appropriate.
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 October 1, 2020 and for
whom a Family Caregiver(s) is approved and designated on or after
October 1, 2020 so long as the Primary Family Caregiver approved and
designated for the veteran or servicemember on or after October 1, 2020
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 October 1, 2020 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.
Effective [18 months after EFFECTIVE DATE OF FINAL RULE], the veteran
or servicemember is no longer 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 October 1, 2020 so long as the Primary Family Caregiver
approved and designated for the eligible veteran as of the day before
October 1, 2020 (as applicable) continues to be approved and designated
as such. If a new joint application is received by VA on or after
October 1, 2020 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. Effective [18 months after
EFFECTIVE DATE OF FINAL RULE], the veteran or servicemember is no
longer considered a legacy participant.
* * * * *
Serious injury means any of the following as assigned by VA:
(1) A service-connected disability rated at 70 percent or more;
(2) Any service-connected disabilities that result in a combined
rating of 70 percent or more; or
(3) Any service-connected disability or disabilities that result in
a total disability rating for compensation based on individual
unemployability.
State has the meaning given that term in 38 U.S.C. 101(20).
Typically requires means a clinical determination which refers to
that which is generally necessary.
* * * * *
0
4. Amend Sec. 71.20 by:
0
a. In the introductory text and paragraph (a) introductory text,
removing the language ``he or she'' and in its place, adding the
language ``the veteran or servicemember''.
0
b. In paragraph (a)(2), removing the language ``or air'' and in its
place, adding the language ``air, or space''.
0
c. Revising paragraphs (a)(3)(i) and (ii), (a)(7), (b), and (c).
0
d. Adding new paragraph (a)(3)(iii).
[[Page 97453]]
The revisions and additions read as follows:
Sec. 71.20 Eligible veterans and servicemembers.
(a) * * *
(3) * * *
(i) The individual typically requires hands-on assistance to
complete one or more ADL;
(ii) The individual has a frequent need for supervision or
protection based on symptoms or residuals of neurological or other
impairment or injury; or
(iii) The individual typically requires regular or extensive
instruction or supervision to complete one or more ADL.
* * * * *
(7) The individual receives ongoing care from a primary care team
or will do so within 120 days of the date VA designates a Family
Caregiver. If the individual is unable to receive such care due, at
least in part, to an event or action within VA's control, VA may extend
this 120-day period.
(b) Beginning on October 1, 2020 through [18 months after EFFECTIVE
DATE OF FINAL RULE], a veteran or servicemember is eligible for a
Primary Family Caregiver or Secondary Family Caregiver under this part
if the veteran or servicemember is a legacy participant.
(c) Beginning on October 1, 2020 through [18 months after EFFECTIVE
DATE OF FINAL RULE], a veteran or servicemember is eligible for a
Primary Family Caregiver or Secondary Family Caregiver under this part
if the veteran or servicemember is a legacy applicant.
* * * * *
0
5. Amend Sec. 71.25 by:
0
a. Revising the section heading.
0
b. Adding the words ``Family Caregivers'' after the word ``Primary'' in
the first sentence of paragraph (a)(1).
0
c. Removing the last sentence of paragraph (a)(1).
0
d. Adding paragraphs (a)(1)(i) and (ii).
0
e. Revising paragraph (a)(2)(i).
0
f. Revising the last sentence of paragraph (a)(2)(ii).
0
g. Revising paragraphs (a)(3)(i) and (ii).
0
h. Revising paragraph (b) introductory text.
0
i. Revising paragraph (b)(2)(ii).
0
j. Adding the information collection control number to the end of the
section.
The revisions and additions read as follows:
Sec. 71.25 Approval and designation of Primary Family Caregivers and
Secondary Family Caregivers.
(a) * * *
(1) * * *
(i) 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.
(ii) A currently approved Secondary Family Caregiver for the
eligible veteran may apply for designation as the Primary Family
Caregiver by submitting a new joint application along with the eligible
veteran.
(2) * * *
(i) Upon receiving such application, except as provided in
paragraphs (a)(2)(i)(A) and (B) of this section, 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 payment under Sec. 71.40(c)(4).
(A) VA will not evaluate a veteran's or servicemember's eligibility
under Sec. 71.20 as part of the application process when:
(1) A joint application is received to designate a Secondary Family
Caregiver for an eligible veteran who already has a designated Primary
Family Caregiver; or
(2) A joint application is received that seeks to change the
designation of a current Secondary Family Caregiver for an eligible
veteran to designation as the Primary Family Caregiver for that same
eligible veteran so long as the eligible veteran has been determined to
meet the eligibility criteria under Sec. 71.20(a) or Sec. 71.20(a)
(2021) (which may have applied the statutory criteria in 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii) in place of the criterion in Sec.
71.20(a)(3)(ii)).
(B) Upon receipt of a joint application that seeks to designate a
current Secondary Family Caregiver as the Primary Family Caregiver for
the same eligible veteran, VA will determine which evaluations under
this section are necessary to assess the individual's eligibility as
the Primary Family Caregiver.
(ii) * * * 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, at least in part, due to VA's action.
(3) * * *
(i) A joint application under this part is evaluated in accordance
with the statutes and regulations in effect on the date VA receives
such joint application.
(ii) Notwithstanding paragraph (a)(3)(i) of this section, in
rendering a determination under this part, based on the regulations
that were in effect from October 1, 2020 through [EFFECTIVE DATE OF
FINAL RULE]:
(A) The definition of ``joint application'' in Sec. 71.15 that
became effective [EFFECTIVE DATE OF FINAL RULE] applies.
(B) The definition of ``need for supervision, protection, or
instruction'' in Sec. 71.15 does not apply. In its place, the
following criteria apply:
(1) A need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury; or
(2) 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.
(b) Eligibility to serve as Primary Family Caregiver or Secondary
Family Caregiver. In order to serve as a Primary Family Caregiver or
Secondary Family Caregiver, the applicant must meet all of the
following requirements:
* * * * *
(2) * * *
(ii) Someone who lives with the eligible veteran full-time or will
do so within 120 days of the date VA designates the individual as a
Family Caregiver.
* * * * *
(The Office of Management and Budget has approved the information
collection requirement in this section under control number 2900-0768)
0
6. Amend Sec. 71.30 by:
0
a. Revising paragraphs (a), (b), and (c).
0
b. Adding a heading to paragraph (d).
0
c. Revising paragraph (e).
The revisions and additions read as follows:
Sec. 71.30 Reassessment of Eligible Veterans and Family Caregivers.
(a) General. The eligible veteran and each Family Caregiver will be
reassessed by VA (in collaboration with the primary care team to the
maximum extent practicable) to determine their continued eligibility
for participation in PCAFC under this part. Reassessments will include
consideration of the monthly stipend payment under Sec.
71.40(c)(4)(i)(A), if applicable. Reassessments may include a visit to
the eligible veteran's home.
(b) Frequency of reassessment. Except as provided in paragraph (c)
of this section, VA will reassess an eligible veteran's continued
eligibility under Sec. 71.20(a)(3) not more frequently than
[[Page 97454]]
every two years unless such a reassessment is necessary for VA to
evaluate the Family Caregiver's ability to carry out specific personal
care services, core competencies, or additional care requirements.
(c) Requests for reassessment. Reassessments may occur when an
eligible veteran or a Primary Family Caregiver of an eligible veteran
submits to VA a written request indicating that a reassessment is
requested, and such request contains the signature of the eligible
veteran or the Primary Family Caregiver.
(d) Required participation. * * *
(e) Legacy reassessments. For purposes of this paragraph, a legacy
reassessment is a reassessment of an eligible veteran who meets the
requirements of Sec. 71.20(b) or (c) (i.e., is a legacy participant or
a legacy applicant) that is conducted to determine whether such
individual meets the requirements of Sec. 71.20(a) for purposes of
continued eligibility. Legacy reassessments are conducted in accordance
with the requirements outlined in paragraph (a) of this section.
(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),
VA will conduct a legacy reassessment for the eligible veteran and each
Family Caregiver within the time period beginning on October 1, 2020
and ending on [18 months after EFFECTIVE DATE OF FINAL RULE].
Notwithstanding the previous sentence, a legacy reassessment will not
be completed if at some point before such reassessment is completed the
eligible veteran no longer meets the requirements of Sec. 71.20(b) or
(c).
(2) If the eligible veteran meets the requirements of Sec.
71.20(a), the legacy reassessment will include consideration of the
monthly stipend payment under Sec. 71.40(c)(4)(i)(A) and whether the
Primary Family Caregiver is eligible for a one-time retroactive stipend
payment pursuant to Sec. 71.40(c)(4)(iii).
0
7. Amend Sec. 71.40 by:
0
a. Adding a heading to paragraph (c)(4)(i)(A)(1).
0
b. Revising paragraph (c)(4)(i)(A)(2).
0
c. Revising the first sentence of paragraphs (c)(4)(i)(B) introductory
text, (c)(4)(i)(C), and (c)(4)(i)(D).
0
d. Revising paragraph (c)(4)(ii)(A).
0
e. Adding headings to paragraphs (c)(4)(ii)(B) and (C) introductory
text.
0
f. Revising paragraphs (c)(4)(ii)(C)(1) and (2), and the note to
paragraph (c)(4)(ii)(C)(2).
0
g. Adding a heading to paragraph (c)(4)(ii)(D).
0
h. Redesignating paragraphs (c)(4)(iii) and (iv) as paragraphs
(c)(4)(iv) and (v).
0
i. Adding new paragraph (c)(4)(iii).
The revisions and additions read as follows:
Sec. 71.40 Caregiver benefits.
* * * * *
(c) * * *
(4) * * *
(i) * * *
(A) * * *
(1) Level 1 Stipend. * * *
(2) Level 2 Stipend. Notwithstanding paragraph (c)(4)(i)(A)(1) of
this section, the Primary Family Caregiver's monthly stipend is
calculated by multiplying the monthly stipend rate by 1.00 if VA
determines that:
(i) The eligible veteran typically requires personal care services
to complete three or more distinct ADL, and for each distinct ADL, the
eligible veteran either is substantially dependent on the Primary
Family Caregiver for hands-on assistance or requires extensive
instruction or supervision from the Primary Family Caregiver; or
(ii) The eligible veteran has a frequent need for supervision or
protection on a continuous basis from the Primary Family Caregiver
based on the eligible veteran's symptoms or residuals of neurological
or other impairment or injury.
(B) Except as provided in paragraph (c)(4)(i)(C) of this section,
for the time period beginning on October 1, 2020 and ending on [18
months after 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). * * *
* * * * *
(C) For the time period beginning on October 1, 2020 and ending on
[18 months after 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. * * *
(D) Notwithstanding paragraphs (c)(4)(i)(A) through (C) of this
section, for the time period beginning on October 1, 2020 and ending on
[18 months after 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 October
1, 2020 (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 October 1, 2020. * * *
(ii) * * *
(A) OPM updates. VA will adjust monthly stipend payments based on
changes to the General Schedule (GS) Annual Rate for grade 4, step 1
for the locality pay area in which the eligible veteran resides. Such
adjustments will take effect on the first of the month in which changes
to the GS Annual Rate are effective. Notwithstanding the previous
sentence, adjustments under this paragraph will take effect on the
first of the month following the month OPM publishes changes to the GS
Annual Rate if such changes have a retroactive effective date.
(B) Relocation. * * *
(C) Reassessments. * * *
(1) Increases. In the case of a reassessment that results in an
increase in the monthly stipend payment based on paragraph (c)(4)(i)(A)
of this section, the effective date of the increase is the earlier of
the following dates:
(i) The date VA issues notice of the decision.
(ii) In the case of a written request for reassessment pursuant to
Sec. 71.30(c) that is received by VA on or after [EFFECTIVE DATE OF
FINAL RULE], the date VA received such request from the eligible
veteran or the Primary Family Caregiver of the eligible veteran.
(2) Decreases--(i) General. Except as provided in paragraph
(c)(4)(ii)(C)(2)(ii) of this section, 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.
(ii) Resulting from a legacy reassessment. With respect to an
eligible veteran who meets the requirements of Sec. 71.20(a) and (b)
or (c), in the case of a reassessment that results in a decrease in the
Primary Family Caregiver's monthly stipend payment, the new stipend
amount under paragraph (c)(4)(i)(A) of this section takes effect as of
the effective date provided in VA's
[[Page 97455]]
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 [18 months after EFFECTIVE DATE OF FINAL RULE]. On
[18 months after EFFECTIVE DATE OF FINAL RULE], VA will provide
advanced notice of its findings to the eligible veteran and Primary
Family Caregiver.
Note 1 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 adjusted under
paragraph (c)(4)(ii)(C) of this section. Unless the Family Caregiver
is revoked or discharged under Sec. 71.45 before the date that is
60 days after [18 months 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 [18 months after EFFECTIVE DATE OF
FINAL RULE]. On [18 months after EFFECTIVE DATE OF FINAL RULE], VA
will provide advanced notice of its findings to the eligible veteran
and Family Caregiver.
(D) Effective dates. * * *
(iii) Legacy retroactive monthly stipend payment. VA will consider
eligibility for a one-time legacy retroactive monthly stipend payment
in accordance with this paragraph as part of the legacy reassessment
conducted under Sec. 71.30(e) of this part.
(A) Subject to paragraph (c)(4)(iii)(B) of this section, in the
case of a reassessment that results in an increase in the Primary
Family Caregiver's monthly stipend payment pursuant to paragraph
(c)(4)(ii)(C)(1) of this section, the Primary Family Caregiver may be
eligible for a retroactive payment amount described in paragraph
(c)(4)(iii)(C) of this section if the eligible veteran is a legacy
participant or legacy applicant and is in need of personal care
services for a minimum of six continuous months based on any one of the
following:
(1) An inability to perform an activity of daily living as such
term is defined in 38 CFR 71.15 (2021).
(2) A need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury.
(3) 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.
(B) If there is more than one reassessment for an eligible veteran
during period beginning on October 1, 2020 and ending on [18 months
after EFFECTIVE DATE OF FINAL RULE], the retroactive payment described
in paragraph (c)(4)(iii)(A) applies only if the first reassessment
during the aforementioned period results in an increase in the monthly
stipend payment, and only as the result of the first reassessment
during said period. Notwithstanding the previous sentence, if the first
reassessment during the period beginning on October 1, 2020 and ending
on [18 months after EFFECTIVE DATE OF FINAL RULE] did not result in an
increase in the monthly stipend payment, the retroactive payment
described in paragraph (c)(4)(iii)(A) of this section applies to the
first reassessment initiated by VA on or after March 25, 2022 that
applies the criteria in paragraph (c)(4)(iii)(A) of this section, if
such reassessment results in an increase in the monthly stipend
payment, and only as a result of such reassessment.
(C) The retroactive payment amount described in paragraph
(c)(4)(iii)(A) of this section is any difference between the amounts in
paragraphs (1) and (2) of this paragraph (c)(4)(iii)(C) of this section
for the time period beginning on October 1, 2020 up to the effective
date of the increase under paragraph (c)(4)(ii)(C)(1) of this section,
based on the eligible veteran's address on record with the Program of
Comprehensive Assistance for Family Caregivers on the effective date of
the increase under paragraph (c)(4)(ii)(C)(1) of this section and the
monthly stipend rate on such date.
(1) 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; and
(2) The monthly stipend rate multiplied by 0.625. Notwithstanding
the previous sentence, if the eligible veteran meets at least one of
the following criteria, the monthly stipend rate is multiplied by 1.00:
(i) The eligible veteran requires personal care services each time
they complete 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'' as such term is defined in 38 CFR 71.15 (2021), and
is fully dependent on a caregiver to complete such ADLs.
(ii) The eligible veteran has a need for supervision or protection
based on symptoms or residuals of neurological or other impairment or
injury on a continuous basis.
(iii) The eligible veteran has 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 on a continuous
basis.
* * * * *
0
8. Amend Sec. 71.45 by:
0
a. Adding paragraphs (a)(1)(iv) and (a)(2)(v).
0
b. Revising the first sentence in paragraph (a)(3).
0
c. Revising paragraphs (b)(1)(i).
0
d. Revising paragraph (b)(1)(ii)(B)(2).
0
e. Adding paragraphs (b)(1)(ii)(C) and (D).
0
f. Revising paragraph (b)(1)(iii).
0
g. Revising paragraphs (b)(2)(i) through (iii).
0
h. In paragraph (b)(3)(i), removing the language ``his or her'' and
adding in its place the language ``their''.
0
i. Adding a note to paragraph (b)(3)(i).
0
j. Revising paragraph (b)(3)(iii).
0
k. Adding paragraph (b)(3)(iv).
0
l. Revising paragraphs (b)(4)(iv), and (f).
The revisions and additions read as follows:
Sec. 71.45 Revocation and discharge of Family Caregivers.
(a) * * *
(1) * * *
(iv) Residing outside a State. VA will revoke the designation of a
Family Caregiver when the eligible veteran or Family Caregiver no
longer resides in a State. Note: If an eligible veteran no longer
resides in a State, VA will revoke the designation of each of the
eligible veteran's Family Caregivers.
(2) * * *
(v)(A) In the case of a revocation based on paragraph (a)(1)(iv) of
this section, the date of revocation will be the earlier of the
following dates, as applicable:
(1) The date the eligible veteran no longer resides in a State.
(2) The date the Family Caregiver no longer resides in a State.
(B) If VA cannot identify the date the eligible veteran or Family
Caregiver, as applicable, no longer resides in a State, the date of
revocation based on paragraph (a)(1)(iv) of this section will be the
earliest date known by VA that the eligible veteran or Family
Caregiver, as applicable, no longer resides in a State, but no later
than the date on which VA identifies the eligible veteran or Family
Caregiver, as applicable, no longer resides in a State.
(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 two months after the date VA issues the notice of
revocation. * * *
(b) * * *
(1) * * *
(i) Bases for discharge. Except as provided in paragraph (f) of
this section,
[[Page 97456]]
the Family Caregiver will be discharged from the Program of
Comprehensive Assistance for Family Caregivers based on any of the
following:
(A) Except as provided in paragraphs (a)(1)(ii)(A) and (b)(1)(i)(B)
of this section, VA determines the eligible veteran does not meet the
requirements of Sec. 71.20 because of improvement in the eligible
veteran's condition or otherwise;
(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;
(C) The Family Caregiver requests discharge due to domestic
violence (DV) or intimate partner violence (IPV) perpetrated by the
eligible veteran against the Family Caregiver; or
(D) VA determines unmitigated personal safety issues exist for the
Family Caregiver due to DV or IPV by the eligible veteran against the
Family Caregiver.
(ii) * * *
(B) * * *
(2) Date that the institutionalization begins, if it is known on
such date that the eligible veteran is expected to be institutionalized
for a period of 90 days or more.
* * * * *
(C) For discharge based on paragraph (b)(1)(i)(C) of this section,
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.
(D) For discharge based on paragraph (b)(1)(i)(D) of this section,
the date of discharge will be the date VA issues notice of its
determination.
(iii) Continuation of benefits. (A) Except as provided in paragraph
(b)(1)(iii)(B) of this section, caregiver benefits will continue for
three months after the date of discharge.
(B) In the case of discharge based on paragraph (b)(1)(i)(C) of
this section, caregiver benefits will continue for one month after the
date of discharge. Notwithstanding the previous sentence, caregiver
benefits will continue for three months 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.
(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.
(2) * * *
(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 based on any of the
following:
(A) 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.
(B) VA determines the Family Caregiver is not able to carry out
specific personal care services, core competencies, or additional care
requirements.
(ii) Discharge date. (A) In the case of discharge based on
paragraph (b)(2)(i)(A) of this section, the date of discharge will be
the earliest of the following dates, as applicable:
(1) Date of death of the Family Caregiver.
(2) Date that the institutionalization begins, if it is known on
such date that the Family Caregiver is expected to be institutionalized
for a period of 90 days or more.
(3) Date of the 90th day of institutionalization.
(B) In the case of discharge based on paragraph (b)(2)(i)(B) of
this section, the date of discharge will be provided in VA's final
notice of such discharge to the eligible veteran and Family Caregiver,
and such date will be no earlier than 60 days after VA provides
advanced notice of its findings to the eligible veteran and Family
Caregiver that the Family Caregiver is not able to carry out specific
personal care services, core competencies, or additional care
requirements.
(iii) Continuation of benefits. Caregiver benefits will continue
for three months after date of discharge in paragraph (b)(2)(ii)(A)(2)
or (3) or (b)(2)(ii)(B) of this section.
(3) * * *
(i) * * *
Note to paragraph (b)(3)(i): Requests of the Family Caregiver
for discharge due to DV or IPV perpetrated by the eligible veteran
against the Family Caregiver will be considered under paragraph
(b)(1) of this section.
* * * * *
(iii) Continuation of benefits. Caregiver benefits will continue
for one month after the date of discharge.
(iv) Rescission. VA will allow the Family Caregiver to rescind
their request for discharge and be reinstated if the rescission is made
within 30 days of the date of discharge. If the Family Caregiver
expresses a desire to be reinstated more than 30 days from the date of
discharge, a new joint application is required. This ability to rescind
requests for discharge does not apply to requests for discharge under
paragraph (b)(1)(i)(C) of this section.
(4) * * *
(iv) Continuation of benefits. Caregiver benefits will continue for
one month after the date of discharge. Notwithstanding the previous
sentence, caregiver benefits will continue for three months after the
date of discharge when any of the requirements in paragraph
(b)(1)(iii)(B)(1) through (3) can be established.
* * * * *
(f) Multiple bases for revocation or discharge. In the instance
that a Family Caregiver may have their designation revoked or be
discharged pursuant to one or more of the criteria in paragraphs (a) or
(b) of this section, respectively, the Family Caregiver's designation
will be revoked or the Family Caregiver will be discharged, as
applicable, pursuant to the basis that would result in the earliest
date of revocation or discharge.
0
9. Add Sec. 71.55 to read as follows:
Sec. 71.55 Home visits and emergency declarations.
Notwithstanding the requirements in this part, for the duration of
and in the locations covered by an emergency declaration, VA may
complete home visits under this part through telehealth as defined in
38 CFR 17.417(a)(4). For purposes of this section, emergency
declaration refers to any emergency, declared by a Federal, State, or
local authority, involving a safety or public health risk that impacts
in-person interaction between VA staff and individuals applying for or
participating in a program under this part, including but not limited
to:
[[Page 97457]]
(a) Natural disasters and weather-related emergencies when travel
to, from, or within, or time spent in the affected area would pose a
safety risk; and
(b) Emergencies related to influenza, coronavirus, respiratory
illness, or other contagions that pose a public health risk.
[FR Doc. 2024-28079 Filed 12-5-24; 8:45 am]
BILLING CODE 8320-01-P