Extension of Program of Comprehensive Assistance for Family Caregivers Eligibility for Legacy Participants and Legacy Applicants
| Published date | 22 September 2021 |
| Citation | 86 FR 52614 |
| Record Number | 2021-20112 |
| Section | Rules and Regulations |
| Court | Veterans Affairs Department |
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Federal Register / Vol. 86, No. 181 / Wednesday, September 22, 2021 / Rules and Regulations
(ii) Retroactive application. For
distributions made on or before January
4, 2001, see § 1.301–1(g) as contained in
26 CFR part 1 revised April 1, 2021.
(g) Basis. The basis of property
received in a distribution to which
section 301 applies is the fair market
value of such property. See paragraph
(b) of this section.
(h) Transfers for less than fair market
value. If property is transferred by a
corporation to a shareholder for an
amount less than its fair market value in
a sale or exchange, such shareholder is
treated as having received a distribution
to which section 301 applies. In such
case, the amount of the distribution is
the excess of the fair market value of the
property over the amount paid for such
property at the time of the transfer. For
example, on January 3, 2021, A, a
shareholder of Corporation X,
purchased property from X for $20
when the fair market value of such
property was $100. The amount of the
distribution to A determined under
section 301(b) is $80.
(i) [Reserved]
(j) Transactions treated as
distributions. A distribution to
shareholders with respect to their stock
is within the terms of section 301,
although it takes place at the same time
as another transaction, if the
distribution is in substance a separate
transaction (whether or not connected
in a formal sense). This situation is most
likely to occur in the case of a
recapitalization, a reincorporation, or a
merger of a corporation with a newly
organized corporation having
substantially no property. For example,
if a corporation having only common
stock outstanding exchanges one share
of newly issued common stock and one
bond with a principal amount of $10 for
each share of outstanding common
stock, the distribution of the bond will
be a distribution of property (to the
extent of its fair market value) to which
section 301 applies, even though the
exchange of common stock for common
stock may be pursuant to a plan of
reorganization under the terms of
section 368(a)(1)(E) (recapitalization)
and may result in the shareholder not
recognizing any gain or loss on the
exchange by reason of section 354.
(k) Cancellation of indebtedness. The
cancellation of indebtedness of a
shareholder by a corporation is treated
as a distribution of property.
(l) Cross-references. For certain rules
relating to adjustments to earnings and
profits and for determining the extent to
which a distribution is a dividend, see
sections 312 and 316 of the Code and
the regulations in this part under
sections 312 and 316.
(m) Split-dollar and other life
insurance arrangements—(1) Split-
dollar life insurance arrangements—(i)
Distribution of economic benefits. The
provision by a corporation to its
shareholder pursuant to a split-dollar
life insurance arrangement, as defined
in § 1.61–22(b)(1) or (2), of economic
benefits described in § 1.61–22(d), or of
amounts described in § 1.61–22(e), is
treated as a distribution of property, the
amount of which is determined under
§ 1.61–22(d) and (e), respectively.
(ii) Distribution of entire contract or
undivided interest therein. A transfer
(within the meaning of § 1.61–22(c)(3))
of the ownership of a life insurance
contract (or an undivided interest
therein) that is part of a split-dollar life
insurance arrangement is a distribution
of property, the amount of which is
determined pursuant to § 1.61–22(g)(1)
and (2).
(2) Other life insurance arrangements.
A payment by a corporation on behalf
of a shareholder of premiums on a life
insurance contract or an undivided
interest therein that is owned by the
shareholder constitutes a distribution of
property, even if such payment is not
part of a split-dollar life insurance
arrangement under § 1.61–22(b).
(3) When distribution is made—(i) In
general. Except as provided in
paragraph (m)(3)(ii) of this section,
paragraph (c) of this section applies to
determine when a distribution
described in paragraph (m)(1) or (2) of
this section is taken into account by a
shareholder.
(ii) Exception. Notwithstanding
paragraph (c) of this section, a
distribution described in paragraph
(m)(1)(ii) of this section is treated as
made by a corporation to its shareholder
at the time that the life insurance
contract, or an undivided interest
therein, is transferred (within the
meaning of § 1.61–22(c)(3)) to the
shareholder.
(4) Applicability date—(i) General
rule. This paragraph (m) applies to split-
dollar and other life insurance
arrangements entered into after
September 17, 2003. For purposes of
this paragraph (m)(4), a split-dollar life
insurance arrangement is entered into as
determined under § 1.61–22(j)(1)(ii).
(ii) Modified arrangements treated as
new arrangements. If a split-dollar life
insurance arrangement entered into on
or before September 17, 2003, is
materially modified (within the
meaning of § 1.61–22(j)(2)) after
September 17, 2003, the arrangement is
treated as a new arrangement entered
into on the date of the modification.
(n) Applicability date. Paragraphs (a)
through (c), (e), (g), and (h) of this
section apply to distributions under
section 301 made after September 22,
2021.
■Par. 3. Section 1.356–1 is amended by
revising paragraph (f) to read as follows:
§ 1.356–1 Receipt of additional
consideration in connection with an
exchange.
* * * * *
(f) See § 1.301–1(j) for certain
transactions that are not within the
scope of section 356.
* * * * *
■Par. 4. Section 1.368–2 is amended by
revising the last sentence of paragraph
(m)(3)(iii) to read as follows:
§ 1.368–2 Definition of terms.
* * * * *
(m) * * *
(3) * * *
(iii) * * * See § 1.301–1(j).
* * * * *
§ 1.902–1 [Amended]
■Par. 5. In § 1.902–1(a)(12), remove the
language ‘‘§ 1.301–1(b)’’ and add in its
place ‘‘§ 1.301–1(c)’’.
§ 1.902–3 [Amended]
■Par. 6. In § 1.902–3(a)(7), remove the
language ‘‘§ 1.301–1(b)’’ and add in its
place ‘‘§ 1.301–1(c)’’.
Douglas W. O’Donnell,
Deputy Commissioner for Services and
Enforcement.
Approved: August 18, 2021.
Mark J. Mazur,
Acting Assistant Secretary of the Treasury
(Tax Policy).
[FR Doc. 2021–19980 Filed 9–21–21; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 71
RIN 2900–AR28
Extension of Program of
Comprehensive Assistance for Family
Caregivers Eligibility for Legacy
Participants and Legacy Applicants
AGENCY
: Department of Veterans Affairs.
ACTION
: Interim final rule.
SUMMARY
: The Department of Veterans
Affairs (VA) is revising its regulations
that govern VA’s Program of
Comprehensive Assistance for Family
Caregivers (PCAFC) by extending
eligibility for legacy participants, legacy
applicants, and their Family Caregivers
and the applicable benefits afforded to
Family Caregivers, to include the
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monthly stipend, by one year. This
change will provide VA with an
additional year to complete
reassessments of legacy participants,
legacy applicants, and their Family
Caregivers. This change will also ensure
that legacy participants, legacy
applicants, and their Family Caregivers
are treated equitably.
DATES
:
Effective date: This interim final rule
is effective September 22, 2021.
Comment date: Comments must be
received on or before November 22,
2021.
ADDRESSES
: Comments must be
submitted through
www.Regulations.gov. Comments
received will be available at
regulations.gov for public viewing,
inspection or copies.
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) 461–7337.
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION
:
Background
In 2010, Congress established section
1720G of title 38 of the United States
Code (U.S.C.). Caregivers and Veterans
Omnibus Health Services Act of 2010,
Public Law (Pub. L.) 111–163, 124 Stat.
1130 (2010). Section 1720G required
VA, in part, to establish a Program of
Comprehensive Assistance for Family
Caregivers (PCAFC) for Family
Caregivers of eligible veterans who have
a serious injury incurred or aggravated
in the line of duty in the active military,
naval, or air service on or after
September 11, 2001. VA implemented
PCAFC through its regulations in part
71 of title 38, Code of Federal
Regulations (CFR). PCAFC provides
certain benefits such as training, respite
care, counseling, technical support,
beneficiary travel (to attend required
caregiver training and for an eligible
veteran’s medical appointments), access
to health care (if qualified) through the
Civilian Health and Medical Program of
the Department of Veterans Affairs
(CHAMPVA), and a monthly stipend. 38
U.S.C. 1720G; 38 CFR 71.40.
In 2018, section 161 of the John S.
McCain III, Daniel K. Akaka, and
Samuel R. Johnson VA Maintaining
Internal Systems and Strengthening
Integrated Outside Networks Act of
2018 (VA MISSION Act of 2018), Public
Law 115–182, 132 Stat. 1393 (2018),
amended 38 U.S.C. 1720G by expanding
PCAFC to Family Caregivers of eligible
veterans who incurred or aggravated a
serious injury in the line of duty before
September 11, 2001 in a phased
approach, establishing new benefits for
designated Primary Family Caregivers of
eligible veterans, and making other
changes affecting program eligibility
and VA’s evaluation of PCAFC
applications. To incorporate these and
other necessary changes to improve and
expand VA’s PCAFC, VA amended 38
CFR part 71. 85 Federal Register (FR)
46226 (July 31, 2020). These changes
took effect on October 1, 2020. Id. As
part of that rulemaking, VA revised the
eligibility criteria for PCAFC in § 71.20.
VA recognized that there were
individuals whose applications had
already been received by VA and were
in the process of being evaluated under
the pre-October 1, 2020 criteria and who
would be approved for PCAFC on or
after October 1, 2020, as well as
individuals who were already
participating in PCAFC before October
1, 2020. Id. VA classified these
individuals as legacy applicants and
legacy participants, respectively. 38 CFR
71.15. A legacy applicant is a veteran or
servicemember who submits a joint
application for PCAFC that was received
by VA before October 1, 2020 and for
whom a Family Caregiver(s) was
approved and designated on or after
October 1, 2020, subject to certain
criteria. Id. A legacy participant is an
eligible veteran whose Family
Caregiver(s) was approved and
designated by VA under 38 CFR part 71
as of September 30, 2020 so long as the
Primary Family Caregiver (as
applicable) continues to be approved
and designated as such. Id.
In § 71.30, VA set forth requirements
for reassessment to determine whether
legacy applicants, legacy participants,
and their Family Caregivers would
continue to be eligible for PCAFC.
Paragraph (e)(1) states that if the eligible
veteran is a legacy participant or a
legacy applicant, that eligible veteran
and their Family Caregiver(s) will be
reassessed by VA during the one-year
period beginning on October 1, 2020 to
determine whether the legacy
participant or legacy applicant meets
the new eligibility requirements in
§ 71.20(a). VA acknowledged that it
would need to reassess legacy
applicants, legacy participants, and
their Family Caregivers to determine
their continued eligibility for PCAFC,
and believed one year from the effective
date of the final rule would be necessary
and appropriate to ensure these
reassessments were completed. 85 FR at
46253.
VA foresaw possible impacts of the
new regulation on the legacy cohort. For
instance, there was the possibility that
a legacy applicant or legacy participant
would no longer be eligible for PCAFC
under the criteria in § 71.20(a). In
addition, there was the possibility that
the legacy applicant or legacy
participant would be determined
eligible for PCAFC, but the Primary
Family Caregiver would be eligible for
a stipend amount that was less than
they were receiving under the previous
regulations. Because of these potential
impacts, VA allowed for an extension of
eligibility under the pre-October 1, 2020
criteria for a one-year transition period
under § 71.20(b) and (c) for legacy
participants, legacy applicants, and
their Family Caregivers. During this
transition period, legacy participants,
legacy applicants, and their Family
Caregivers would continue to be eligible
to receive benefits under PCAFC and
would not have the amount of their
monthly stipend reduced (except as the
result of the eligible veteran moving to
a new address).
In § 71.40(c)(4), VA set forth
requirements for determining monthly
stipend amounts for Primary Family
Caregivers. This paragraph explains
how the stipend is calculated for
Primary Family Caregivers of legacy
participants and legacy applicants
during the one-year transition period.
As explained in the proposed rule,
VA believed that a one-year transition
period was reasonable. It would allow
individuals who are participating in
PCAFC as of September 30, 2020, the
day before the effective date of the rule,
to remain eligible for the program and
not experience a stipend amount
decrease (except as specified) while VA
completes a reassessment to determine
eligibility under the new criteria—
regardless of when such reassessment
occurred during the one-year period.
This was important because it would be
inequitable for similarly situated
veterans and their Family Caregivers to
be disadvantaged based solely on when
VA conducted their reassessment. In
addition, this one-year period would
minimize disruption to these
individuals by allowing for a period to
plan and adjust to the possibility of a
legacy applicant or legacy participant
being determined no longer eligible or
eligible such that the monthly stipend
would be a lesser amount. We believed
this to be fair, reasonable, and an
appropriate use of taxpayer dollars. 85
FR 13356 (March 6, 2020); 85 FR 46226
(July 31, 2020).
For the reasons explained below, we
are extending the one-year transition
period and timeline for VA to complete
reassessments of legacy applicants,
legacy participants, and their Family
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Caregivers for one additional year.
Legacy applicants, legacy participants,
and their Family Caregivers will remain
eligible for PCAFC in accordance with
revised § 71.20(b) and (c) and will
continue to receive benefits in
accordance with revised § 71.40 for the
additional one-year period.
Accordingly, we are amending
§§ 71.20(b) and (c) regarding program
eligibility, § 71.30(e) regarding
reassessments, and §§ 71.40(c)(4)(i)(B)
through (D), (c)(4)(ii)(C)(2)(i) and (ii),
and the note to (c)(4)(ii)(C)(2) regarding
the stipend methodology, to account for
the additional one-year period through
September 30, 2022.
Discussion
When the prior rulemaking became
effective on October 1, 2020, VA
intended to complete reassessments for
all legacy participants, legacy
applicants, and their Family Caregivers
within a one-year period to determine
their eligibility under new § 71.20(a);
however, this is no longer achievable.
For the reasons explained below, VA is
unable to conduct all necessary
reassessments of legacy applicants,
legacy participants, and their Family
Caregivers within the one-year period. It
is therefore necessary to extend PCAFC
eligibility of legacy applicants, legacy
participants, and their Family
Caregivers under §§ 71.20(b) and (c) and
their applicable benefits, including the
monthly stipend calculation under
§ 71.40(c)(4), for an additional one-year
period through September 30, 2022.
The VA MISSION Act of 2018
expanded eligibility for PCAFC to
Family Caregivers of eligible veterans
who incurred or aggravated a serious
injury in the line of duty before
September 11, 2001 in a phased
approach. The first phase, which
became effective on October 1, 2020,
expanded PCAFC eligibility to include
eligible veterans who incurred or
aggravated a serious injury in the line of
duty on or before May 7, 1975. Since the
onset of this first phase of expansion,
VA has seen a dramatic increase in new
applications for PCAFC. This increase is
significantly higher than VA
anticipated.
We acknowledge that anticipating the
number of applications that may be
received is subject to significant
variability and subjectivity. An
individual need not be eligible to apply
for PCAFC; there is no restriction on
who may choose to apply. However, VA
estimated that it would receive 76,635
applications in FY 2021, and as of July
1, 2021, VA has received approximately
90,500 applications. The number of
applications received so far exceeds the
total number of applications PCAFC
received in any previous year and
exceeds VA’s projections for the entire
FY 2021. For reference, in FY 2020, VA
received approximately 22,900
applications, with an average of 1,900
applications per month. Between
October 1, 2020 and July 1, 2021, VA
has received an average of
approximately 10,000 applications per
month.. We note that, of the
approximately 90,500 applications VA
received between October 1, 2020 and
July 1, 2021, approximately 11 percent
of these veteran applicants were born in
1983 or later, demonstrating that new
applicants are not only from those
veterans who have been waiting for
expansion to begin, but also from
veterans who may have incurred or
aggravated a serious injury in the line of
duty on or after September 11, 2001,
and are newly interested in the Program.
As part of planning for PCAFC
expansion, a staffing model was
developed to guide and inform staffing
decisions to augment resources
available to administer, monitor, and
oversee PCAFC. In particular, this
action was necessary to prepare for the
anticipated increased workload
associated with expanding PCAFC, to
include application processing,
completion of wellness contacts,
completion of reassessments, and
supporting delivery of clinical care. The
first phase of the staffing augmentation
called for an additional 680 field based
and Veteran Integrated Service Network
(VISN) level staff to support
administration and delivery of caregiver
support programming. The second
phase of staffing augmentation began in
August 2020 and sought to add over 750
additional field-based front-line staff. As
of July 2021, over 90 percent of staff had
been hired.
Despite these staffing augmentations,
given the significantly larger volume of
applications than was anticipated, VA
focused its resources on processing new
applications versus reassessing
eligibility of legacy applicants, legacy
participants and their Family
Caregivers. As a result, as of July 1,
2021, VA has only completed 4 percent
of the estimated 19,800 reassessment
needed for the legacy cohort. VA will be
unable to complete reassessments of
each legacy applicant, legacy
participant, and their Family
Caregiver(s) within the one-year period
provided in § 71.30(e).
While VA received higher than
anticipated applications, it is important
to note that educating and training new
staff as well as educating and training
existing staff on the program changes
has continued, culminating in more
streamlined processes, implementation
of best practices, and increased
efficiencies. As a result of these efforts,
VA has significantly increased the rate
in which applications are being
adjudicated. During the first quarter of
FY 2021, VA adjudicated an average of
4,075 applications per month. In
comparison, during the third quarter of
FY 2021, VA adjudicated an average of
10,663 applications per month—an
increase of 162 percent in adjudications
made. While VA’s rate of application
adjudication has been increasing, there
has been a corresponding decrease in
the number of new PCAFC applications
being received. The average number of
applications received each month in the
third quarter of FY 2021 was
approximately 7,300 compared to an
average of approximately 11,600 each
month during the first quarter—a
decrease of approximately 59 percent in
the average number of new applications
received each month (during third
quarter compared to first quarter). As
noted above, VA’s rate of adjudicating
applications has increased with the
passage of time during FY 2021. With
the rate of new application submissions
decreasing and adjudications of such
new applications increasing, VA has
been able to devote more resources to
reassessments of legacy participants,
legacy applicants, and their Family
Caregivers. With these continued efforts,
VA believes that reassessments of legacy
participants, legacy applicants, and
their Family Caregivers will be able to
be completed with the extension of an
additional one-year period.
Extending the eligibility period of
legacy participants, legacy applicants,
and their Family Caregivers from a one-
year period to a two-year period from
October 1, 2020 will ensure that all
legacy participants, legacy applicants,
and their Family Caregivers have the
same transition period and the same
effective date for any termination or
reduction in benefits, regardless of
when VA conducts the reassessment
during the two-year period. Without this
extension, legacy applicants, legacy
participants, and their Family
Caregivers who are reassessed and
found to be no longer eligible for PCAFC
under § 71.20(a) or who have their
stipend reduced under § 71.40(c)(4)
would be impacted at different times,
resulting in unequal treatment in the
provision of PCAFC benefits. As noted
above, VA has already begun
conducting some reassessments. If those
individuals were determined through a
reassessment completed before October
1, 2021, to be no longer eligible for
PCAFC or to be eligible but the Primary
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Family Caregiver would receive a lesser
stipend amount, an advanced notice
would be issued to the legacy
applicants, legacy participants, and
their Family Caregivers on October 1,
2021 (at the conclusion of the one-year
period) and the change would take
effect not less than 60 days following
this notification. For those determined
to no longer be eligible, benefits would
be extended for an additional 90 days
after the date of discharge. Individuals
who VA is unable to reassess prior to
October 1, 2021 and who are ultimately
determined not eligible or eligible but
with a lesser stipend amount would
continue to receive benefits in effect
prior to October 1, 2020 for longer than
those reassessed prior to October 1,
2021 for no reason other than when VA
conducted their reassessment.
When VA established the initial one-
year transition period for legacy
participants, legacy applicants, and
their Family Caregivers, it was intended
to provide a reasonable amount of time
for VA to conduct reassessments,
minimize disruption to those
individuals, and provide a fair and
reasonable time for transition. 85 FR at
46253. VA intended that all legacy
applicants, legacy participants, and
their Family Caregivers would have the
same transition period, regardless of
when the reassessment is completed
during the one-year transition period.
Id. This transition period was intended
to ensure equitable treatment for all
legacy applicants, legacy participants,
and their Family Caregivers. Id.
Extending the transition period for an
additional year beyond the one-year
period beginning October 1, 2020 for all
legacy participants, legacy applicants,
and their Family Caregivers will
continue to ensure equitable treatment
among this cohort.
Changes to 38 CFR Part 71
For the reasons explained above, VA
amends its regulations codified in
§ 71.20 regarding program eligibility,
§ 71.30 regarding reassessments, and
§ 71.40 regarding caregiver benefits, to
extend the transition period for legacy
applicants, legacy participants, and
their Family Caregivers from one year to
two years (that is, until October 1, 2022)
and to extend the time period for
reassessments of such individuals from
one year to two years (that is, until
October 1, 2022).
VA amends § 71.20 by removing the
words ‘‘one year’’ in §§ 71.20(b) and (c),
and adding, in their place, the words
‘‘two years’’.
VA amends § 71.30 by removing the
words ‘‘one-year’’ in paragraphs (e)(1)
and (2) and adding, in their place, the
words ‘‘two-year’’.
VA also amends § 71.40 by removing
the words ‘‘one year’’ in paragraphs
(c)(4)(i)(B) through (D) and adding, in
their place, the words ‘‘two years’’. VA
similarly amends paragraph
(c)(4)(ii)(C)(2)(i) by removing the words
‘‘one-year’’ and adding, in their place,
the words ‘‘two-year’’. Lastly, VA
amends paragraph (c)(4)(ii)(C)(2)(ii) and
the note to paragraph (c)(4)(ii)(C)(2) by
removing the words ‘‘the date that is
one year after October 1, 2020’’, and
adding, in their place, the words
‘‘October 1, 2022’’.
Administrative Procedure Act
The Secretary of Veterans Affairs
finds that there is good cause under the
provisions of 5 U.S.C. 553(b)(B) to waive
prior notice and an opportunity for
public comment and publish this rule,
as notice and comment would be
contrary to public interest. VA is issuing
this rule to extend the time to complete
reassessments for legacy applicants,
legacy participants, and their Family
Caregivers for an additional year,
through September 30, 2022, and to
similarly extend the transition period.
As discussed earlier, VA will not be able
to complete the required reassessments
of this legacy cohort by October 1, 2021.
Absent regulatory action, effective
October 1, 2021 the reassessment period
of legacy applicants, legacy participants,
and their Family Caregivers sunsets.
This would leave legacy applicants,
legacy participants, and their Family
Caregivers in a state of uncertainty
about their status and eligibility for
benefits moving forward. Extending the
reassessment period in advance of
October 1, 2021 will provide clarity to
the legacy applicants, legacy
participants, and their Family
Caregivers about the duration of their
current benefits and about next steps.
Additionally, if the date to complete the
reassessments and the period of
transition is not extended, legacy
applicants, legacy participants, and
their Family Caregivers who are
reassessed and found to be no longer
eligible for PCAFC, or eligible but with
a reduced stipend amount, would be
impacted at different times. Some legacy
participants, legacy applicants, and
their Family Caregivers would
experience negative impacts before
others within this same cohort based on
when they are reassessed. The varying
impact would result from no reason
other than that VA was able to reassess
certain individuals earlier than others.
Therefore, VA must amend its
regulations to provide a one-year
extension for the reassessment period
and for VA to conduct the
reassessments.
Notwithstanding the effective date of
this rulemaking, VA invites public
comments on this interim final rule and
will fully consider and address any
comments received. Generally, VA
would seek notice and comment in
advance of a rule becoming effective.
However, in this circumstance, VA does
not have sufficient time to provide the
public with the opportunity for prior
notice and comment and have the
amendments effective by October 1,
2021. As noted earlier in the preamble,
the number of applications received has
far exceeded expectations, and by
focusing its resources on processing
new applications (while also
implementing new regulations and
processes for evaluating PCAFC
eligibility), VA was unable to prioritize
the reassessment of legacy participants,
legacy applicants, and their Family
Caregivers. In October 2020, VA
received an estimated 18,400
applications with a decline in
applications received in November and
December 2020. However, during the
second quarter of FY 2021, VA received
another surge in applications, which
further delayed VA’s ability to prioritize
the reassessment of legacy participants,
legacy applicants, and their Family
Caregivers. To manage these competing
issues, VA explored options to complete
the reassessments while continuing to
process applications. During this
exploration, however, VA determined
that, even with processing applications
while conducting legacy reassessments,
an additional 12-month period would be
required to complete the legacy
reassessments, which is the basis for
this interim final rule.
For the reasons stated above, the
Secretary also finds good cause under 5
U.S.C. 553(d)(3) to make this interim
final rule effective on the date of its
publication in the Federal Register.
VA recognizes that this extension will
continue for an additional year the
existing disparity between PCAFC
participants who applied for the
program on or after October 1, 2020 (and
were approved for PCAFC based on the
existing regulatory criteria), and legacy
participants, legacy applicants, and
their Family Caregivers (who were
approved for PCAFC based on pre-
October 1, 2020 regulatory
requirements). However, any harm
associated with continuing the current
inequity between these two cohorts for
an additional one-year period, does not
outweigh the harm associated with the
alternative outcomes that would result
in the absence of this regulatory action.
In contrast to PCAFC participants who
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applied for the program on or after
October 1, 2020, legacy participants and
their Family Caregivers were not aware
of the regulatory changes that would go
into effect on October 1, 2020, and are
therefore at the greatest risk of being
affected by those changes.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, when regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, and other advantages;
distributive impacts; and equity).
Executive Order 13563 (Improving
Regulation and Regulatory Review)
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility. The Office of
Information and Regulatory Affairs has
determined that this rule is not a
significant regulatory action under
Executive Order 12866. The Regulatory
Impact Analysis associated with this
rulemaking can be found as a
supporting document at
www.regulations.gov.
Regulatory Flexibility Act
The Secretary hereby certifies that
this interim final rule will 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). This
interim final rule extends the time for
VA to conduct legacy reassessments and
the transition period for legacy
applicants, legacy participants, and
their Family Caregivers. This rule has
no impact on small entities. 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.
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 interim final rule will
have no such effect on State, local, and
tribal governments, or on the private
sector.
Paperwork Reduction Act
This interim final rule contains no
provisions constituting a collection of
information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3521).
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance numbers and titles for the
programs affected by this document are
64.009, Veterans Medical Care Benefits.
Congressional Review Act
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), the Office of
Information and Regulatory Affairs
designated this rule as not a major rule,
as defined by 5 U.S.C. 804(2).
List of Subjects in 38 CFR Part 71
Administrative practice and
procedure, Caregivers program, Claims,
Health care, Health facilities, Health
professions, Mental health programs,
Travel and transportation expenses,
Veterans.
Signing Authority
Denis McDonough, Secretary of
Veterans Affairs, approved this
document on July 30, 2021, 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,
Regulations 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 amends 38 CFR part 71 as
follows:
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:
Authority: 38 U.S.C. 501, 1720G, unless
otherwise noted.
Section 71.40 also issued under 38 U.S.C.
111(e), 1720B, 1782.
Section 71.47 also issued under 31 U.S.C.
3711; 38 U.S.C. 5302, 5314.
Section 71.50 also issued under 38 U.S.C.
1782.
§ 71.20 [Amended]
■2. Amend § 71.20 in paragraphs (b)
and (c) by removing ‘‘one year’’ and
adding ‘‘two years’’ in its place.
§ 71.20 [Amended]
■3. Amend § 71.30 in paragraphs (e)(1)
and (2) by removing ‘‘one-year’’ and
adding ‘‘two-year’’ in its place.
§ 71.40 [Amended]
■4. Amend § 71.40:
■a. In paragraphs (c)(4)(i)(B)
introductory text and (c)(4)(i)(C) and
(D), by removing the words ‘‘one year’’
and adding in their place the words
‘‘two years’’.
■b. In paragraph (c)(4)(ii)(C)(2)(i), by
removing the words ‘‘one-year’’ each
place they appear and adding in their
place the words ‘‘two-year’’.
■c. In paragraph (c)(4)(ii)(C)(2)(ii) and
note to paragraph (c)(4)(ii)(C)(2), by
removing the words ‘‘the date that is
one year after October 1, 2020’’ each
place they appear and adding in their
place the words ‘‘October 1, 2022’’.
[FR Doc. 2021–20112 Filed 9–21–21; 8:45 am]
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