Program of Comprehensive Assistance for Family Caregivers Improvements and Amendments Under the VA MISSION Act of 2018
| Published date | 31 July 2020 |
| Citation | 85 FR 46226 |
| Record Number | 2020-15931 |
| Section | Rules and Regulations |
| Court | Veterans Affairs Department |
Federal Register, Volume 85 Issue 148 (Friday, July 31, 2020)
[Federal Register Volume 85, Number 148 (Friday, July 31, 2020)]
[Rules and Regulations]
[Pages 46226-46300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15931]
[[Page 46225]]
Vol. 85
Friday,
No. 148
July 31, 2020
Part II Department of Veterans Affairs-----------------------------------------------------------------------38 CFR Part 71Program of Comprehensive Assistance for Family Caregivers Improvements
and Amendments Under the VA MISSION Act of 2018; Final Rule
Federal Register / Vol. 85, No. 148 / Friday, July 31, 2020 / Rules
and Regulations
[[Page 46226]]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 71
RIN 2900-AQ48
Program of Comprehensive Assistance for Family Caregivers
Improvements and Amendments Under the VA MISSION Act of 2018
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with
changes, a proposed rule to revise its regulations that govern VA's
Program of Comprehensive Assistance for Family Caregivers (PCAFC). This
final rule makes improvements to PCAFC and updates the regulations to
comply with the recent enactment of the VA MISSION Act of 2018, which
made changes to the program's authorizing statute. This final rule
allows PCAFC to better address the needs of veterans of all eras and
standardize the program to focus on eligible veterans with moderate and
severe needs.
DATES: The effective date is October 1, 2020.
FOR FURTHER INFORMATION CONTACT: Cari Malcolm, Management Analyst,
Caregiver Support Program, Care Management and Social Work, 10P4C,
Veterans Health Administration, Department of Veterans Affairs, 810
Vermont Ave. NW, Washington, DC 20420, (202) 461-7337. (This is not a
toll-free number.)
SUPPLEMENTARY INFORMATION: Title I of Public Law 111-163, Caregivers
and Veterans Omnibus Health Services Act of 2010 (hereinafter referred
to as ``the Caregivers Act''), established section 1720G(a) of title 38
of the United States Code (U.S.C.), which required VA to establish a
program of comprehensive assistance for Family Caregivers of eligible
veterans who have a serious injury incurred or aggravated in the line
of duty on or after September 11, 2001. The Caregivers Act also
required VA to establish a program of general caregiver support
services, pursuant to 38 U.S.C. 1720G(b), which is available to
caregivers of covered veterans of all eras of military service. VA
implemented the program of comprehensive assistance for Family
Caregivers (PCAFC) and the program of general caregiver support
services (PGCSS) through its regulations in part 71 of title 38 of the
Code of Federal Regulations (CFR). Through PCAFC, VA provides Family
Caregivers of eligible veterans (as those terms are defined in 38 CFR
71.15) certain benefits, such as training, respite care, counseling,
technical support, beneficiary travel (to attend required caregiver
training and for an eligible veteran's medical appointments), a monthly
stipend payment, and access to health care (if qualified) through the
Civilian Health and Medical Program of the Department of Veterans
Affairs (CHAMPVA). 38 U.S.C. 1720G(a)(3), 38 CFR 71.40.
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 or the VA MISSION Act of 2018,
Public Law 115-182, was signed into law. Section 161 of the VA MISSION
Act of 2018 amended 38 U.S.C. 1720G by expanding eligibility for PCAFC
to Family Caregivers of eligible veterans who incurred or aggravated a
serious injury in the line of duty before September 11, 2001,
establishing new benefits for designated Primary Family Caregivers of
eligible veterans, and making other changes affecting program
eligibility and VA's evaluation of PCAFC applications. The VA MISSION
Act of 2018 established that expansion of PCAFC to Family Caregivers of
eligible veterans who incurred or aggravated a serious injury in the
line of duty before September 11, 2001, will occur in two phases. The
first phase will begin when VA certifies to Congress that it has fully
implemented a required information technology system (IT) that fully
supports PCAFC and allows for data assessment and comprehensive
monitoring of PCAFC. During the 2-year period beginning on the date of
such certification to Congress, PCAFC will be expanded to include
Family Caregivers of eligible veterans who have a serious injury
(including traumatic brain injury, psychological trauma, or other
mental disorder) incurred or aggravated in the line of duty in the
active military, naval, or air service on or before May 7, 1975. Two
years after the date of submission of the certification to Congress,
PCAFC will be expanded to Family Caregivers of all eligible veterans
who have a serious injury (including traumatic brain injury,
psychological trauma, or other mental disorder) incurred or aggravated
in the line of duty in the active military, naval, or air service,
regardless of the period of service in which the serious injury was
incurred or aggravated in the line of duty in the active military,
naval, or air service. This final rule implements section 161 of the VA
MISSION Act of 2018 as well as makes improvements to PCAFC to improve
consistency and transparency in decision making.
On March 6, 2020, VA published a proposed rule to revise its
regulations that govern PCAFC to make improvements to PCAFC and update
the regulations to comply with section 161 of the VA MISSION Act of
2018. 85 FR 13356 (March 6, 2020). In response to this proposed rule,
VA received 273 comments, of which one comment was withdrawn by the
submitter and one comment was a duplicate submission, for a total of
271 unique comments. More than 37 comments expressed general support
for the proposed rule, in whole or in part. We appreciate the support
of such comments, and do not address them below. Other comments
expressed support or disapproval, in whole or in part, with substantive
provisions in the proposed rule, and we discuss those comments and
applicable revisions from the proposed rule below. We note that the
discussion below is organized by the sequential order of the provisions
as presented in the proposed rule; however, we only address the
provisions that received comments below. Additionally, we have included
a section on miscellaneous comments received. We further note that
numerous commenters raised individual matters (e.g., struggles they may
currently be having) which are informative to VA, and to the extent
these individuals provided their personal information, we did attempt
to reach out to them to address their individual matters outside of
this rulemaking.
In the proposed rule and in this final rule, we provide various
examples to illustrate how these regulations will be applied, but we
emphasize here that clinical evaluation is complex and takes into
account a holistic picture of the individual; therefore, we note that
examples provided are for illustrative purposes only and should not be
construed to indicate specific veterans and servicemembers and their
caregivers will or will not meet certain regulatory criteria or
requirements.
Sec. 71.10 Purpose and Scope
Several commenters raised concerns about restricting PCAFC to a
``State'' as that term is defined in 38 U.S.C. 101(20) because 38
U.S.C. 1720G does not place any geographic restrictions on PCAFC, and
such restriction would be in the view of the commenters, arbitrary,
unreasonable, and without sufficient justification, particularly as VA
provides other benefits and services to veterans who reside outside of
a State. One commenter shared that they lived in the United Kingdom
(U.K.), but believed that they should be eligible for
[[Page 46227]]
PCAFC as many of the PCAFC processes and requirements can be completed
in the U.K. despite being outside of a State (for example, the
application can be submitted by mail or online; caregiver training is
available online; assessments and monitoring can be done via
telehealth, Foreign Medical Program (FMP), social media, or through the
use of a contract with a home health agency); and benefits such as a
stipend can be based on a U.K. locality rate. This same commenter
recommended revising the language in this section to state that ``these
benefits are provided to those individuals residing in a State as that
term is defined in 38 U.S.C. 101(2). Individuals who reside outside a
State will be considered for benefits on a case by case basis.'' While
this commenter referenced section 101(2), we believe the commenter
meant to reference section 101(20) as the definition of State, for
purposes of title 38, is contained in section 101(20). Section 101(20)
defines State, in pertinent part, to mean each of the several States,
Territories, and possessions of the United States, the District of
Columbia, and the Commonwealth of Puerto Rico. In suggesting that the
program could be administered through VA's FMP, we generally disagree.
The legal authority for the FMP bars VA from furnishing ``hospital
care'' and ``medical services'' outside of a State except in the case
of the stated exceptions. 38 U.S.C. 1724. This authority, as
implemented, generally covers only hospital care and medical services,
as those terms are defined in 38 U.S.C. 1701 and 38 CFR 17.30, that are
required to treat a service-connected disability or any disability held
to be aggravating a service-connected condition. Because PCAFC involves
benefits that do not constitute ``hospital care'' or ``medical
services'' and accounts for the care needs of eligible veterans
unrelated to their service-connected disability or disabilities, PCAFC
could not be administered through FMP. Lastly, telehealth services are
medical services and therefore not available outside a ``State,''
except as provided for under the FMP.
As stated in the proposed rule, it has been VA's practice since the
launch of PCAFC and PGCSS in 2011 to only provide benefits to those
individuals residing in a State; thus, the proposed changes merely
codify an existing practice. In addition, it is currently not feasible
for VA to provide benefits under part 71 outside of a State,
specifically because ``requirements of this part include in-home visits
such as an initial home-care assessment under current 38 CFR 71.25(e)
and the provision of certain benefits that can be provided in-home such
as respite care under current Sec. 71.40(a)(4) and (c)(2), which would
be difficult to conduct and provide in a consistent manner outside of a
State.'' 85 FR 13358 (March 6, 2020). Also, as noted in the proposed
rule, administrative limitations prevent us from providing certain
benefits under this part even in remote areas within the scope of the
term ``State.'' Additionally, ``ensuring oversight of PCAFC and PGCSS
outside of a State would be resource-intensive and we do not believe
there is sufficient demand to warrant the effort that would be
required.'' Id. Furthermore, we do not believe the use of contracted
services would provide standardized care for participants and would
hinder our ability to provide appropriate oversight and monitoring.
While we understand the commenters' concerns and appreciate the
suggested changes, we are not making any changes based on this comment.
Sec. 71.15 Definitions
We received many comments that either suggested revisions to or
clarification of some terms defined in the proposed rule. We address
these comments below as they relate to the term in the order they were
presented in Sec. 71.15 as proposed.
Financial Planning Services
We received multiple comments about financial planning services.
One commenter was pleased with VA's proposal to include financial
planning services in the menu of Family Caregivers' supports and
services under PCAFC and we thank the commenter for their feedback. One
commenter questioned why this service is being provided, whether it is
indicative of a deeper problem, and what precautions and safety nets
will be in place to ensure veterans are not exploited or abused.
Furthermore, one commenter asserted that regardless of what services
are provided to help with budgeting, families will become accustomed to
and spend according to the monthly stipend received each month.
As stated in the proposed rule, we are adding this term to address
changes made to 38 U.S.C. 1720G by the VA MISSION Act of 2018.
Specifically, the VA MISSION Act of 2018 added financial planning
services relating to the needs of injured veterans and their caregivers
as a benefit for Primary Family Caregivers. Accordingly, financial
planning services will be added to the benefits available to Primary
Family Caregivers under 38 CFR 71.40(c)(5). Legislative history
reflects that the addition of financial planning services to PCAFC
assistance was influenced by the 2014 RAND Corporation-published
report, Hidden Heroes: America's Military Caregivers, which identified
that few military caregiver-specific programs provided long-term
planning assistance, including legal and financial planning, for
military caregivers. S. Rep No. 115-212, at 58 (2018) (accompanying
S.2193, which contained language nearly identical to that enacted in
sections 161-163 of the VA MISSION Act of 2018). The purpose of this
benefit is to increase the financial capability of Primary Family
Caregivers to be able to manage their own personal finances and those
of the eligible veteran, as applicable. Furthermore, we will include in
any contracts requirements such as minimum degree attainment and
national certifications for individuals providing financial planning
services, as well as mechanisms that would prohibit exploitation or
abuse of caregivers and veterans (e.g., prohibit any form of
compensation from the eligible veteran or Family Caregiver for the
services provided) and that allow us to take any appropriate actions
necessary to address related breaches of contract. We note that the
contractor would be responsible for any liability arising from the
financial planning services provided by it. Further, contractors are
not VA employees and therefore not covered by the Federal Tort Claims
Act.
We are not making any changes to the regulation based on these
comments.
In Need of Personal Care Services
We proposed to define ``in need of personal care services'' to mean
that the eligible veteran requires in-person personal care services
from another person, and without such personal care services,
alternative in-person caregiving arrangements (including respite care
or assistance of an alternative caregiver) would be required to support
the eligible veteran's safety. A few commenters supported this
definition of in need of personal care services, and we appreciate
their support. Others raised concerns with the definition, and we
address those comments below.
One commenter found this definition too restrictive, and to be a
major change to PCAFC that would result in exclusion of current
participants from the program. Similarly, another commenter further
explained that this definition may unfairly discriminate against
veterans who served on or after September 11, 2001 (referred to herein
[[Page 46228]]
as post-9/11) who currently qualify for the program but may not yet
need this required level of care, and also may result in younger
veterans believing they are not ``disabled enough'' for PCAFC. The same
commenter noted that this definition would exclude veterans who may
need assistance with activities of daily living (ADL), but do not
otherwise need a professional home health aide or nursing home care.
While we appreciate the commenters' concerns, we believe these changes
are supported by the statute and would help to reduce clinical
subjectivity in PCAFC eligibility determinations. As provided in the
proposed rule:
The statute makes clear the importance of regular support to an
eligible veteran by allowing more than one Family Caregiver to be
trained to provide personal care services. 38 U.S.C. 1720G(a)(5) and
(6). Likewise, eligible veterans are provided protections under the
statute in the absence of a Family Caregiver such as respite care
during a family member's initial training if such training would
interfere with the provision of personal care services for the eligible
veteran. 38 U.S.C. 1720G(a)(6)(D). Thus, we believe ``in need of
personal care services'' under section 1720G(a)(2)(C) means that
without Family Caregiver support, VA would otherwise need to hire a
professional home health aide or provide other support to the eligible
veteran such as adult day health care, respite care, or facilitate a
nursing home or other institutional care placement.85 FR 13359 (March
6, 2020).
Also, as previously stated we are standardizing PCAFC to focus on
eligible veterans with moderate and severe needs, and we believe this
definition supports this focus. Furthermore, ``alternative in-person
caregiving arrangements'' are not limited to a professional home health
aide, or nursing home care. There are many types of alternative
caregiving arrangements that a veteran or servicemember may utilize or
require in the absence of his or her Family Caregiver providing in-
person personal care services. The personal care needs of eligible
veterans participating in PCAFC vary and as such, so would the types of
alternative caregiving arrangements they may require. Such arrangements
may include adult day health care or other similar day treatment
programs, assistance provided by a friend or family member informally
or formally through a VA or community Veteran-Directed care program, or
through volunteer organizations that train individuals to provide
respite care. Thus, we believe this definition would not discriminate
against post-9/11 veterans and servicemembers who may utilize other
alternative in-person caregiving arrangements other than a professional
home health aide or nursing home care in the absence of their Family
Caregiver. We note that PCAFC has been and will remain available to
post-9/11 eligible veterans, and that the changes we are making are
intended to support veterans of all eras of service, consistent with
expansion of the program under the VA MISSION Act of 2018. We further
refer commenters to the discussion of Sec. 71.20 addressing
commenters' concerns that the proposed regulations would negatively
impact post-9/11 veterans. Additionally, we recognize that there may be
reluctance by some veterans, including post-9/11 veterans, to seek care
and assistance because of perceived stigma or a belief that they are
not ``disabled enough,'' and our goal is to reduce those concerns
through outreach and education on all VA programs and services, to
include PCAFC, that may help meet the needs of veterans and
servicemembers and their caregivers. We are not making any changes
based on these comments.
One commenter supported our definition of ``in need of personal
care services'' because it clarified that such services are required in
person. In contrast, another commenter disagreed with our assertion
that the PCAFC was ``intended to provide assistance to Family
Caregivers who are required to be physically present to support
eligible veterans in their homes.'' 85 FR 13360 (March 6, 2020). They
asserted that the statute is intended to enable a veteran to obtain
care in his or her home regardless of where the caregiver is located,
such that he or she could receive care remotely ``such as when the
caregiver checks in to remind the veteran to take his or her
medication, guide the veteran through a task that he or she can
complete without physical assistance, or provide mental and emotional
support should the need arise.'' VA's requirement that the eligible
veteran requires ``in-person personal care services'' is supported by
the statute, and we are not persuaded by the commenter's arguments to
the contrary. Even putting aside the meaning of ``personal,'' with
which the commenter takes issue, we believe the statute makes clear the
importance of providing in-person personal care services by indicating
that personal care services are provided in the eligible veteran's home
(38 U.S.C. 1720G(a)(9)(C)(i)) and by establishing an expectation that
Family Caregivers are providing services equivalent to that of a home
health aide, which are generally furnished in-person and at home (38
U.S.C. 1720G(a)(3)(C)(ii), (iv)). See 85 FR 13360 (March 6, 2020).
Also, rather than supporting the commenter's argument that VA's
definition is unduly restrictive, we believe that 38 U.S.C.
1720G(d)(3)(B) also illustrates the importance of in-person personal
care services by only authorizing a non-family member to be a Family
Caregiver if the individual lives with the eligible veteran. We do not
discount the importance of remote support that caregivers provide to
veterans, such as medication reminders, remote guidance through a task
via telephone, and mental and emotional support, but we do not believe
that type of support alone rises to the level of support envisioned by
the statute for eligible veterans who are in need of personal care
services in PCAFC. This is particularly true as we standardize PCAFC to
focus on eligible veterans with moderate and severe needs. 85 FR 13356
(March 6, 2020). VA's definition of ``in need of personal care
services'' is a reasonable interpretation of the statute, and we are
not making any changes based on this comment. We do, however, recognize
the commenter's concern regarding consistency between PCAFC and PGCSS.
As noted in VA's proposed rule, the definition of ``in need of personal
care services'' will not apply to restrict eligibility under 38 U.S.C.
1720G(b), which governs PGCSS, or any other VA benefit authorities. VA
will consider whether changes to the regulations governing PGCSS are
appropriate in the future.
One commenter agreed with the definition to the extent that VA is
not requiring the Family Caregiver to always be present. It is not our
intent to require a Family Caregiver to be present at all times, rather
this definition establishes that the eligible veteran requires in-
person personal care services, and without such personal care services
provided by the Family Caregiver, alternative in-person caregiver
arrangements would be required to support the eligible veteran's
safety. As stated by the commenter, this definition speaks to the type
of personal care services needed by the eligible veteran, as the kind
that must be delivered in person. We appreciate this comment and make
no changes based upon it.
One commenter asked (1) whether a legacy participant determined to
need in-person care services from another person, but who does not
require assistance daily and each time an ADL is performed, would still
be eligible to continue to participate in the PCAFC; and (2) whether a
veteran who served
[[Page 46229]]
before September 11, 2001 (referred to herein as pre-9/11) who VA
determines needs in-person care services from another person, but does
not require assistance daily and each time, would be eligible for
PCAFC. The commenter's questions and examples seem to merge and
possibly confuse separate PCAFC eligibility requirements. To qualify
for PCAFC under Sec. 71.20(a)(3), a veteran or servicemember would
need to be in need of personal care services (meaning the veteran or
servicemember requires ``in-person personal care services from another
person, and without such personal care services, alternative in- person
caregiving arrangements . . . would be required to support the eligible
veteran's safety'') based on either (1) an inability to perform an
activity of living, or (2) a need for supervision, protection, or
instruction, as such terms are defined in Sec. 71.15 and discussed
further below. The definition of ``inability to perform an activity of
daily living'' refers to the veteran or servicemember requiring
personal care services ``each time'' one or more ADLs is completed, and
the definition of ``need for supervision, protection, or instruction''
refers to the individual's ability to maintain personal safety on a
``daily basis.'' The veteran or servicemember could qualify on both of
these bases, but would be required to qualify based on only one of
these bases. To the extent the commenter is concerned about these other
definitions, we further address comments about those definitions
separately in their respective sections below. We are not making any
changes based on this comment.
Another commenter acknowledged an understanding of the ``in
person'' requirement, but requested that we clearly state that the care
does not need to be hands-on, physical care, and that assistance can be
provided through supervision, protection, or instruction while the
veteran completes an ADL. A veteran or servicemember that is eligible
for PCAFC based on the definition of need for supervision, protection,
or instruction would require in-person personal care services. However,
that does not always mean hands-on care is provided or required. We
note that if an eligible veteran is eligible for PCAFC because he or
she meets the definition of inability to perform an ADL, the in-person
personal care services required to perform an ADL would be hands-on
care. We further refer that commenter to the discussion on the
definition of inability to perform an ADL, where we address similar
comments regarding veterans who may require supervision, protection, or
instruction to complete ADLs. We make no changes based on this comment.
One commenter asked whether the use of community support
professionals and resources (e.g., art therapy services, life skills
coaching) that provide active supervision to the eligible veteran while
performing other activities when the designated Family Caregiver is not
present would affect eligibility for PCAFC. It was recommended VA
clarify the role that non-designated individuals or organizations such
as those identified in the previous sentence may play in an eligible
veteran's life, and the commenter advocated that use of such services
should not disqualify a veteran from PCAFC. As previously explained, it
is not our intent to require that a Family Caregiver be present at all
times. We acknowledge that all caregivers need a break from caregiving.
It is important to note that respite care is a benefit provided to
assist Family Caregivers, and we encourage the use of respite care by
Family Caregivers. The definition of ``in need of personal care
services'' ensures that PCAFC is focused on veterans and servicemembers
who require in-person personal care services, and that in the absence
of such personal care services, such individuals would require
alternative in-person caregiving arrangements. This definition as well
as all other PCAFC eligibility criteria are not intended to discourage
the utilization of community support resources or community-based
organizations who may provide care or supervision to the eligible
veteran while the Family Caregiver is not present. We note, however, it
is our expectation that the Family Caregiver actually provide personal
care services to the eligible veteran. The requirements in Sec. Sec.
71.20(a)(5) and 71.25(f) make clear that personal care services must be
provided by the Family Caregiver, and that personal care services will
not be simultaneously and regularly provided by or through another
individual or entity. We further refer the commenter to the discussion
of Sec. 71.25 below. We are not making any changes based on these
comments.
One commenter asserted that VA's definition is further clarified by
other regulatory requirements concerning neglect of eligible veterans,
specifically Sec. 71.25(b)(3) (``[t]here must be no determination by
VA of . . . neglect of the eligible veteran by the [Family Caregiver]
applicant'') and Sec. 71.45(a)(1)(i)(B) (authorizing VA to revoke the
designation of a Family Caregiver for cause when the Family Caregiver
has neglected the eligible veteran). We used the ``in-person'' language
to address the eligible veteran's level of need, which is distinct from
Sec. Sec. 71.20(a)(5) and 71.25(f), which establish the expectations
of the Family Caregiver to provide personal care services, and
Sec. Sec. 71.25(b)(3) and 71.45(a)(1)(i)(B), which address neglect. If
the veteran or servicemember does not require in-person personal care
services, there may be other VA health care programs more suitable to
meet his or her needs. If the Family Caregiver is not providing care,
which pursuant to ``in need of personal care services'' will include
in-person care, we could initiate revocation based on noncompliance
under Sec. 71.45(a)(1)(ii)(A), or for cause under Sec.
71.45(a)(1)(i), depending on the circumstances. We note that these are
distinct criteria and considerations. To the extent the commenter was
remarking that the presence of requirements regarding neglect generally
mean that the Family Caregiver is providing care in person rather than
remotely, we agree. We make no changes based on this comment.
One commenter disagreed with the creation of the definition because
of the existing statutory and regulatory definition of ``personal care
services,'' and asserted that VA, by defining ``in need of personal
care services,'' is restricting the bases upon which an eligible
veteran can be deemed in need of personal care services in section
1720G(a)(2)(C). The commenter also asserted that VA has never created a
definition for other programs and services in which similar language is
used. We note that section 1720G(a)(2)(C) provides the bases upon which
an individual may be deemed in need of personal care services; however,
it does not define an objective standard for what it means to be in
need of personal care services, and we found it necessary to define
this term for purposes of PCAFC. We reiterate from the proposed rule
that our interpretation of the term ``in need of personal care
services'' for purposes of PCAFC would not apply to other sections in
title 38, U.S.C., that use the phrase ``in need of'' in reference to
other types of VA benefits that have separate eligibility criteria. We
are not required to interpret ``in need of'' in the same manner in
every instance the phase is used in title 38, U.S.C. See Atlantic
Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)
([although] ``there is a natural presumption that identical words used
in different parts of the same act are intended to have the same
meaning . . . the presumption is not rigid and readily yields whenever
there
[[Page 46230]]
is such variation in the connection in which the words are used as
reasonably to warrant the conclusion that they were employed in
different parts of the act with different intent''). We are not making
any changes based on this comment.
One commenter that supported the definition suggested that
eligibility assessment teams include an occupational therapist or have
applicants evaluated by an occupational therapist to help ensure a more
objective assessment. The commenter believes PCAFC disproportionately
relies on self-reporting of functioning. We note that centralized
eligibility and appeals team (CEAT) will determine eligibility,
including whether the veteran is determined to be unable to self-
sustain in the community, for purposes of PCAFC. These teams will be
comprised 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-level stipend,
and will include occupational therapists, as appropriate. We thank the
commenter for their suggestion; however, as this specific commenter did
not make any suggestions regarding the proposed rule itself, we are not
making any changes based on this comment.
Two commenters restated our belief, as indicated in the proposed
rule, that under 38 U.S.C. 1720G(a)(2)(C), ``in need of personal care
services'' means that without Family Caregiver support, VA would
otherwise need to hire a professional home health aide or provide other
support to the eligible veteran, such as adult day health care, respite
care, nursing home, or other institutional care. These two commenters
further opined that this description does not include jail or prison.
One of these commenters also referred to Veterans Health Administration
(VHA) policy on Geriatric and Extended Care Services, eligibility for
homemaker/home aide or related respite care services and home hospice
services, and an Office of Inspector General (OIG) report related to
caregivers being incarcerated or hospitalized. These commenters provide
no further context as to their concerns related to the definition of
``in need of personal care services.'' To the extent that these
comments concern incarcerated or hospitalized veterans and caregivers,
we refer the commenter to the discussion on discharge and revocations
under Sec. 71.45 further below. It is unclear why these comments refer
to other VA health care programs, but we note that PCAFC is one of many
VHA programs available to meet the needs of eligible veterans. We make
no changes based on these comments.
Another commenter noted that VA added a definition of ``in need of
personal care services,'' but also referred to the definition for
``personal care services'' as it is currently defined in Sec. 71.15,
then stated the terminology ``is not specific and very narrow.'' The
commenter asserted that it could therefore ``disqualify many veterans''
and ``allows one to think that family caregiver support is not allowed
and only qualifies for a hired professional home health aide or provide
other support to the eligible veteran such as adult day health care,
respite care, or facilitate a nursing home or other institutional care
placement.'' It is unclear if these comments were in reference to the
proposed definition of ``in need of personal care services'' or to the
current definition of ``personal care services.'' To the extent the
commenter believes the definition for ``personal care services'' in
current Sec. 71.15 is too narrow, we did not propose to change that
definition in this rulemaking and consider such comment outside the
scope of this rulemaking. To the extent the commenter believes the
definition for ``in need of personal care services'' is too narrow such
that it would disqualify many veterans, lead one to believe that that
Family Caregiver support is not allowed, and allow only a hired
professional home health aide or other similar support, we disagree and
we refer the commenter to the previous paragraphs in this section
discussing this definition. We are not making any changes based on this
comment.
One commenter also requested that VA clearly state in regulation
that working is not an exclusion criterion for either the veteran or
the Family Caregiver. This commenter stated that while VA has often
publicly stated that working is not an exclusion criterion, they are
aware of many situations when a Family Caregiver was discharged from
PCAFC because either the veteran or Family Caregiver worked. We also
received a similar comment in response to the definition of inability
to perform an ADL, in which another commenter urged VA to include in
the PCAFC regulations that employment does not exclude the veteran or
the Family Caregiver from PCAFC, and noted they are aware of several
instances where participants have been discharged from PCAFC because of
employment. This commenter further stated that a veteran's ability to
work does not mean that he or she does not need the same or higher
level of assistance with ADLs as those catastrophically disabled
veterans who are unable to work. Relatedly, some commenters opposed
allowing veterans to be eligible for PCAFC if they work full time.
Employment is not an automatic disqualifier for PCAFC. However, we
decline to include language in the regulation to explicitly state that,
as doing so could suggest that employment is not considered by VA in
determining eligibility for PCAFC, which is not the case. While
maintaining employment would not automatically disqualify a veteran or
servicemember for PCAFC, employment and other pursuits, such as
volunteer services and recreational activities, can and do inform VA
regarding an individual's functional ability and would be considered
during the evaluation of the veteran or servicemember. For example, if
a veteran or servicemember travels for work or leisure and can
independently manage alone for weeks at a time without the presence of
a caregiver, that would likely indicate that the individual does not
require personal care services ``each time'' he or she completes one or
more ADLs.
Creating any specific requirements regarding employment for
eligible veterans or Family Caregivers would be difficult because of
the unique needs of every individual and the vast employment options,
both with and without accommodations. For example, an eligible veteran
in need of personal care services due to an inability to perform
multiple ADLs because of quadriplegia may be able to maintain any
number of professional opportunities with proper accommodations, and
still qualify for PCAFC. As the needs and condition for each veteran or
servicemember and his or her caregiver are unique, we do not believe it
is reasonable to place restrictions on a veteran's or servicemember's
ability to work.
In regards to the Family Caregiver's employment, it is not our
intent to prevent Family Caregivers from obtaining and maintaining
gainful employment as we are cognizant that the monthly stipend is an
acknowledgement of the sacrifices made by Family Caregivers, but may
fall short of the income a Family Caregiver would otherwise earn if
gainfully employed. The Family Caregiver may have the ability to
provide the required personal care services to the eligible veteran
while maintaining employment. We acknowledge that each Family
Caregiver's situation is unique, such that he or she may be able to
work from home, have a flexible work schedule, or have a standard
workplace and schedule. We understand that Family Caregivers may not be
present all of the
[[Page 46231]]
time to care for the eligible veteran, and we do not expect them to
provide care 24/7. However, they would be required to be available to
provide the required personal care services to the eligible veteran.
Thus, we decline to include language to state that employment is not an
exclusionary factor for eligibility under part 71, and make no changes
based on these comments.
In the Best Interest
We proposed to revise the current definition of in the best
interest to mean a clinical determination that participation in PCAFC
is likely to be beneficial to the veteran or servicemember, and such
determination will include consideration, by a clinician, of whether
participation in the program significantly enhances the veteran's or
servicemember's ability to live safely in a home setting, supports the
veteran's or servicemember's potential progress in rehabilitation, if
such potential exists, increases the veteran's or servicemember's
potential independence, if such potential exists, and creates an
environment that supports the health and well-being of the veteran or
servicemember.
Multiple commenters stated that they believe the focus on the
potential for independence in the proposed definition of ``in the best
interest'' is contradictory to the proposed definition of ``serious
injury,'' which would require a service-connected disability rating of
70 percent or more, and the requirement that the veteran or
servicemember be in need of personal care services for a minimum of 6
months. One commenter further explained that contradiction, stating
that not all serious injuries become less over time and therefore,
independence should not be the highest achievable goal for PCAFC. The
commenter stated that focusing on the veteran's ability for improvement
does not fully acknowledge that a veteran's condition may never heal or
get better over time. First, we note that while the comments appear to
focus on serious injury, we are not requiring that the serious injury
be connected to the eligible veteran's need for personal care services.
Conditions other than the serious injury may be the reason the eligible
veteran has a need for personal care services. We agree with the
commenters that some eligible veterans may have serious injuries or
other conditions, for which they are in need of personal care services,
that may never improve over time, and PCAFC will continue to be
available to such veterans and their caregivers if eligible. However,
each individual is unique, and some eligible veterans may have serious
injuries that improve over time, and we want to support such veterans
if they are able to recover or improve over time. Furthermore, ``in
some cases a clinician may determine that other care and maintenance
options would be better to promote the [veteran's or servicemember's]
functional capabilities and potential for independence.'' 76 FR 26149
(May 5, 2011). We also want to emphasize that the potential for
independence is only one factor that will be considered by VA in
determining whether the program is in the veteran's or servicemember's
best interest. We are not making any changes based on these comments.
Several commenters raised concerns about the definition including
potential for rehabilitation, in particular the ``if such potential
exists'' language, as some veterans may have little or no potential for
rehabilitation and should not be excluded from PCAFC. One commenter
recommended that while the language ``if such potential exists''
provides some comfort, new language should be added to more explicitly
state that veterans who fail to show improvement will not be excluded
from the program. Another commenter noted that the phrase ``if such
potential exists'' is confusing as to whether the program is intended
to be permanent or rehabilitative; the commenter explained the language
implies the program is permanent if the potential for independence does
not exist. One commenter also raised concerns that this language can
lead to VA removing veterans from PCAFC when they are benefitting from
it due to having better access to an advocate for their medical care.
The current definition for in the best interest includes a
consideration of whether participation in the program supports the
veteran's or servicemember's potential for rehabilitation, if such
potential exists, and we did not propose any changes to this part of
the definition. Rather, we proposed to include an additional
consideration of whether participation in the program increases the
veteran's or servicemember's potential independence, if such potential
exists. While we appreciate the commenters' concerns regarding the
potential for rehabilitation, we believe these comments are beyond the
scope of this rulemaking as we did not propose any changes to this part
of the definition. However, we would like to clarify that the use of
the phrase ``if such potential exists'' is intended to acknowledge that
due to the conditions and impairments of some participants, a potential
for rehabilitation or improved independence may not be reasonable,
achievable, or expected. Many veterans participating in PCAFC will have
injuries, conditions, or diseases that worsen over time that do not
afford them the opportunity for rehabilitation or improved
independence. Others, however, may indeed be able to achieve a level of
increased functioning beyond their current abilities. We wish to make
it clear that PCAFC is a clinical program, and the goal of clinical
programs is to maximize health and well-being. If it is determined that
participation in PCAFC is providing a disincentive for a veteran's
well-being, PCAFC may be determined to not be in the individual's best
interest. Similarly, we wish to make it clear that when such potential
for improved functioning is not deemed reasonable, the lack of
potential does not disqualify an individual from PCAFC. We make no
changes based on these comments.
Several commenters expressed concern that eligibility
determinations are based on a veteran's ability to recover. Commenters
further asserted that it is unlawful for VA to deny or revoke
eligibility based on a standard that focuses only on those who will
recover or are likely to recover. While these commenters did not
specifically provide these comments in the context of the definition
for in the best interest, we believe these comments are best addressed
in the discussion of this definition. We note that we are not basing
eligibility decisions based on a veteran's ability to recover, and
PCAFC eligibility is not dependent on a veteran's or servicemember's
ability to recover. However, we do want to support an eligible veteran
if they are able to recover, rehabilitate, or improve over time. There
are many instances in which an eligible veteran has minimal ability to
recover, rehabilitate or improve, and PCAFC will continue to be
available to such veterans and their caregivers. We further note that
as part of this rulemaking, we are extending eligibility to those with
progressive illnesses (see definition of serious injury), from which an
eligible veteran may never recover. We make no changes based on these
comments.
One commenter explained that this definition perpetuates a
paternalistic and condescending approach of how the Department should
provide care to veterans, assuming a veteran is incapable of
understanding what health care is and what is not in their best
interest, and that the veteran is incapable of making their own health
care decisions. Additionally, another commenter recommended that the
definition focus on decision-making capacity and competence, and
surrogate
[[Page 46232]]
decision making, consistent with VHA policy regarding informed consent
for clinical treatments and procedures.
Under 38 U.S.C. 1720G(a)(1)(B), VA ``shall only provide support
under [PCAFC] to a family caregiver of an eligible veteran if [VA]
determines it is in the best interest of the eligible veteran to do
so.'' As stated in VA's interim final rule establishing part 71, VA
concludes that determinations of ``in the best interest'' must be
clinical determinations, guided by VA health professionals' judgment on
what care will best support the health and well-being of the veteran or
servicemember. 76 FR 26149 (May 5, 2011). While we appreciate the
commenters' concerns and suggestions, which seem to concern the overall
purpose and scope of this definition, the commenters did not
specifically address our proposed changes to this definition regarding
the additional consideration of whether participation in the program
increases the veteran's or servicemember's potential independence, if
such potential exists. We make no changes based on these comments.
One commenter suggested that this definition not focus on the
quality of the veteran and caregiver relationship, particularly as it
is not appropriate or ethical to do so, except in circumstances that
meet the definition of substantiated abuse or neglect consistent with
applicable, related VHA policy on elder abuse and vulnerable adults.
While we appreciate the commenter's concern, this definition is not
focused on the relationship and quality of a veteran's or
servicemember's relationship with their Family Caregiver; rather, it is
focused on whether it is in the best interest of the eligible veteran
to participate in PCAFC. The relationship of the veteran or
servicemember and the Family Caregiver is considered, but is not a
determining factor when deciding if participation in PCAFC is in the
best interest of the veteran or servicemember. We make no changes based
on this comment.
Another commenter recommended that the definition be revised to
automatically presume a veteran's participation in PCAFC is in their
best interest unless VA determines such participation is not in their
best interest. As previously explained, we did not propose a new
definition for ``in the best interest.'' Rather, we proposed to add an
additional criterion to an already existing definition in Sec. 71.15.
Therefore, we believe this comment is beyond the scope of this
rulemaking and we make no changes based on this comment.
Several commenters expressed concern about which clinician should
be allowed to make the determination of whether PCAFC is in the best
interest for a veteran or servicemember. Specifically, commenters were
concerned that the clinician making the determination may not be the
treating physician nor have any prior knowledge or experience with the
veteran or servicemember. Additionally, one commenter suggested that
the determination should be made with both the eligible veteran's
primary care doctor and primary provider of care to ensure those who
have knowledge of the veteran's needs are involved. As explained
throughout this final rule, CEATs, composed of a standardized group of
inter-professional, licensed practitioners, with specific expertise and
training in the eligibility requirements for PCAFC, will make
determinations of eligibility, including ``in the best interest,'' and
whether the veteran is determined to be unable to self-sustain in the
community. Clinical staff at local VA medical centers will conduct
evaluations of PCAFC applicants with input provided by the primary care
team to the maximum extent practicable. This information will be
provided to the CEATs for use in making eligibility determinations,
including whether the veteran is determined to be unable to self-
sustain in the community for the purposes of PCAFC. As explained in the
discussion on primary care team, we are revising the definition of
primary care team in this final rule to ensure that those medical
professionals, including a VA primary care provider, who care for the
veteran and have knowledge of the veteran's needs and treatments, are
part of the primary care team. We further note that any documentation
from a non-VA provider that the veteran or servicemember provides will
be available to VA for purposes of PCAFC evaluation and eligibility
determinations. We make no changes based on these comments.
A few commenters questioned why VA did not provide the proposed
revised definition for in the best interest so that the public could
review and comment. As indicated in the proposed rule, the current
language in the definition would generally remain; however, we are
replacing the phrase ``veteran or servicemember's'' with ``veteran's or
servicemember's'' and adding that a clinician would also consider
whether participation in PCFAC ``increases the veteran's or
servicemember's potential independence, if such potential exists.'' 85
FR 13360 (March 6, 2020). Furthermore, the proposed rule provided the
revised definition for the public to review and comment on:
In the best interest means, for the purpose of determining
whether it is in the best interest of the veteran or servicemember
to participate in the Program of Comprehensive Assistance for Family
Caregivers under 38 U.S.C. 1720G(a), a clinical determination that
participation in such program is likely to be beneficial to the
veteran or servicemember. Such determination will include
consideration, by a clinician, of whether participation in the
program significantly enhances the veteran's or servicemember's
ability to live safely in a home setting, supports the veteran's or
servicemember's potential progress in rehabilitation, if such
potential exists, increases the veteran's or servicemember's
potential independence, if such potential exists, and creates an
environment that supports the health and well-being of the veteran
or servicemember.
85 FR 13405 (March 6, 2020) (emphasis added). We are not making any
changes based on these comments.
Inability To Perform an Activity of Daily Living (ADL)
VA proposed to modify its definition of inability to perform an
activity of daily living (ADL) to mean that a veteran or servicemember
requires personal care services each time he or she completes one or
more of the specified ADLs, and would thereby exclude veterans and
servicemembers who need help completing an ADL only some of the time
the ADL is completed. VA received numerous comments about this proposed
definition. Many commenters believe this definition to be too limiting
and some suggested a less restrictive definition. Others requested
clarification or suggested alternative approaches.
Several commenters raised concerns with the part of this definition
that would require that a veteran or servicemember require personal
care services ``each time'' he or she completes one or more ADL, and
urged VA to not impose this requirement. Specifically, their concerns
are that this definition is too limiting, is more restrictive than the
current PCAFC, is too narrow to properly evaluate a veteran's
disability and symptoms, and may result in veterans being ineligible
for PCAFC when they may need more assistance than those who are
determined eligible. Several commenters asserted that some veterans may
not need assistance with one or more ADLs each time every day; they may
only need assistance some or most of the time; and that the assistance
needed can vary over time, may fluctuate (even throughout the day,
based on medication or repeated motion, etc.), and can vary based on
[[Page 46233]]
circumstances (e.g., weather, after surgery or physical therapy,
seasonally). Numerous examples were provided by commenters of
situations in which they assert a veteran may need caregiving on a
regular basis (and potentially more so than others who would qualify
under the definition) but would not meet the definition of inability to
perform an ADL because they do not need assistance every time they
perform an ADL. For example, one commenter indicated a veteran with
severe traumatic brain injury (TBI) who has an inability to regulate
mood, memory loss, or an inability to follow proper hygiene standards
may not require assistance every day, but still requires caregiving on
a regular basis. Another commenter asserted that the proposed criteria
``would discriminate against severely disabled veterans with
musculoskeletal and/or neurological conditions that limit muscle
endurance,'' that is, ``veterans with sufficient muscle force to
complete one ADL instance without assistance but due to having to
repeat the ADL throughout the course of the day would eventually
require assistance would therefore not be eligible,'' and ``would also
discriminate against other severe disabilities that relapses and
remits, or that waxes and wanes, including mental health and cognitive
impairments.'' One commenter asserted that this ``all or nothing''
approach is contrary to how health care and caregiving should be
treated, resulting in harm to veterans. One commenter recommended the
definition should use ``requires personal care services most of the
time when attempting to complete one or more of the following . . .''
or similar language. Other commenters recommended clarifying that
required assistance may vary over time or from one day to the next.
Another commenter asserted that the requirement is not consistent with
VA's ``long-established acknowledgement that an injury is not stable
and changes,'' and specifically cited to VBA's Schedule for Rating for
the musculoskeletal system at 38 CFR 4.40 and 4.45 in asserting that a
veteran with functional loss of the musculoskeletal system may
experience additional loss of function during repeated motions over
time and flare-ups.
Other commenters requested clarification on how VA would consider
ADLs that are not completed every day, including a commenter who
recognized that that the frequency with which some ADLs are completed
can vary based on the individual's clinical needs, such as bathing.
Some commenters asserted that the definition fails to support
efforts by a catastrophically disabled veteran to exert even a small
level of independence, when possible, and that because some veterans
have spent years and decades striving for a degree of independence, an
ability to infrequently perform ADLs should not disqualify a veteran
from PCAFC.
While we appreciate the commenters' concerns, we make no changes
based on these comments, and address them below.
First, we note that the definition of inability to perform an ADL
is an objective standard used to evaluate eligibility for PCAFC. This
determination is specific to PCAFC and does not indicate whether a
veteran or servicemember is in need of, and eligible for, other health
care benefits and services. If a veteran or servicemember does not meet
this definition, they may not otherwise be eligible for PCAFC. However,
it does not mean that he or she does not require, or is ineligible for,
other VA benefits and services. For veterans and servicemembers who are
not eligible for PCAFC, we will assist them, as appropriate, in
considering what other health care programs may best meet their needs.
As explained in the proposed rule and reiterated here, this
definition requires that a veteran or servicemember need personal care
services each time he or she completes any of the ADLs listed in the
definition. 85 FR 13360 (March 6, 2020). We would not require the
veteran or servicemember qualifying for PCAFC based on an inability to
perform an ADL need personal care services on a daily basis. As stated
in the proposed rule:
Although the statute refers to an eligible veteran's inability to
perform one or more activities of daily living as a basis upon which he
or she can be deemed in need of personal care services (38 U.S.C.
1720G(a)(2)(C)(i)), we recognize that not all activities of daily
living need to be performed every day. For example, bathing is included
in the current Sec. 71.15 definition of ``[i]nability to perform an
activity of daily living,'' but bathing may not be required every day.
A veteran may be able to maintain health and wellness by adhering to a
less frequent bathing routine. Id. at 113361.
As we also explained in the proposed rule, this definition is not
met if a veteran or servicemember needs help completing an ADL only
some of the time that the ADL is completed. Id. We believe the proposed
definition delineates an objective frequency requirement that will
enable VA to operationalize and standardize PCAFC across the country
and is consistent with our goal of focusing PCAFC on eligible veterans
with moderate and severe needs. The definition sets forth a consistent,
standardized, and clear requirement, by specifying that a veteran or
servicemember requires personal care services each time the ADL is
completed, regardless of which ADL it is. We believe that the
requirement that assistance be needed each time the ADL is completed
equates to a veteran or servicemember requiring a moderate amount of
personal care services. Each ADL is treated the same irrespective of
the specific tasks required to complete the ADL or frequency with which
it is completed. Reliance on a Family Caregiver for any one of the
seven ADLs results in a self-care deficit that affects the veteran's or
servicemember's quality of life.
The definition of an inability to perform an ADL would only be met
if a veteran or servicemember needs personal care services each time
that he or she completes an ADL as indicated through a clinical
evaluation of the veteran's functional abilities, with input by the
veteran or servicemember and caregiver. We acknowledge the degree of
assistance may vary; however, a degree of hands-on assistance will be
required each time the ADL is performed. In some cases, the degree of
assistance that a veteran or servicemember may need to complete the ADL
may vary throughout the day. In some instances, the veteran or
servicemember may only need minimal assistance completing the ADL, but
in other instances throughout the day may require moderate assistance.
For example, veterans and servicemembers who have muscle weakness, lack
of dexterity, or fine motor skills, may only need assistance with
removing clothing when toileting at the beginning of the day, but later
in the day they may require assistance with removing clothing,
performing appropriate hygiene and redressing when completing the task
of toileting.
We considered whether we should require the definition of inability
to perform an ADL include daily assistance with an ADL instead of
assistance each time an ADL is completed, but we have determined that
use of daily instead of each time would result in less consistency and
clarity, as it would require us to include exceptions for certain ADLs,
such as grooming and bathing, that may not be completed on a daily
basis. These exceptions would create confusion in applying the
definition and result in less consistency and standardization in the
application of this definition.
Similarly, we did not define inability to perform an ADL to require
assistance
[[Page 46234]]
with an ADL most or majority of the time because we believe such terms
are too vague and subjective, leading to inconsistencies in
interpretation and application. Using most or majority of the time
instead of each time would be difficult to quantify, and would require
us to establish an arbitrary threshold.
To the extent that a commenter was concerned that this definition
would exclude veterans who may need more assistance than those who
cannot independently accomplish one ADL, we respectfully disagree for
the reasons described above. We believe that if a veteran or
servicemember needs assistance with multiple ADLs, it is likely that at
least one of those ADLs requires assistance each time the ADL is
completed.
Furthermore, the monthly stipend provided to a Primary Family
Caregiver under 38 U.S.C. 1720G is not disability compensation and it
is not designed to supplement or replace the disability compensation
received by the veteran. Therefore, we disagree with the assertion that
this definition must maintain consistency with the rating schedule in
38 CFR part 4, subpart B.
Commenters raised concerns that catastrophically disabled veterans
would not meet this definition. We assume these commenters are
referring to the definition of catastrophically disabled veterans as
used by VHA in 38 CFR 17.36(b). We disagree that catastrophically
disabled veterans will inevitably be excluded based upon this
definition. Veterans who are catastrophically disabled are those with a
severely disabling injury, disorder, or disease that permanently
compromises their ability to carry out activities of daily living. See
38 CFR 17.36(e). Some veterans with such a designation will be in need
of personal care services based on an inability to perform an ADL
(i.e., requiring personal care services each time one or more ADLs is
completed). However, through adaptive equipment, home modifications, or
other resources, there may be veterans who do not require another
individual to perform personal care services, or otherwise do not
qualify for PCAFC. VA will evaluate each veteran and servicemember
based on the eligibility criteria set forth in Sec. 71.20.
We are not making any changes based on these comments.
One commenter provided data they collected from veterans concerning
the performance of ADLs and noted that there were extremely few
veterans who were completely dependent on caregivers to complete ADLs.
Another commenter similarly asserted that even veterans with moderate
and severe needs ``may not meet this high threshold, and the proposed
revision may exclude vast numbers of veterans from the program,''
noting that ``even a veteran who needs assistance with an ADL nine
times out of ten would nonetheless fail to meet the requirement.''
Additionally, one commenter believed the definition of inability to
perform an ADL to suggest the program would be limited to veterans
requiring 24/7 care, and that 95 percent of current PCAFC participants
would fail to qualify based on the definition of inability to perform
an ADL.
We appreciate the concerns raised by these commenters and the data
provided by one of the commenters, as these are informative. However,
we cannot verify that the data provided are accurate. We do not
currently track and maintain data on how many current PCAFC
participants qualify for PCAFC based on the current definition of
inability to perform an ADL versus the current definition of need for
supervision or protection based on symptoms or residuals of
neurological or other impairment or injury. While inability to perform
an ADL is one way in which an individual can qualify for PCAFC, it is
not the only way, as individuals may meet the definition of need for
supervision, protection, or instruction (i.e., an individual may have a
functional impairment that directly impacts his or her ability to
maintain personal safety on a daily basis). We do know that a majority
of current PCAFC participants have a mental health diagnosis amongst
their diagnoses, but we do not track if that mental health diagnosis is
the reason they are eligible for PCAFC. We do not believe this
definition of inability to perform an ADL will be as restrictive as the
commenters assert, but we cannot verify if the data provided by the
commenters is accurate. This does not change our decision to use the
definition of inability to perform an ADL as we proposed and now make
final, as we find the benefits (e.g., clarity, objectivity,
consistency) of using this definition outweigh any potential risks
identified by the commenters. We will track and monitor PCAFC
participants to determine the basis for their eligibility for PCAFC
(i.e., whether it is because he or she has an inability to perform an
ADL or a need for supervision, protection, or instruction) moving
forward. Additionally, VA will also track individuals who apply and are
not eligible based on the definition of in need of personal care
services. If over time we find that this definition is as restrictive
as the commenters assert it will be, we will adjust and revise the
definition accordingly in a future rulemaking.
Further, we do not believe that the definition of inability to
perform an ADL will exclude vast numbers of veterans and servicemembers
from PCAFC, as there will be veterans and servicemembers who meet this
definition with regards to only one ADL. We believe requiring
assistance with one ADL each time such ADL is performed encompasses a
broad and inclusive range of injuries and illnesses which may cause an
individual to require the care and assistance of another. For example,
a veteran with Parkinson's disease who needs assistance with grooming
each time, but does not need assistance with other ADLs, may meet this
definition. A veteran who requires assistance donning prosthetic
equipment, but once equipment is in place is otherwise independent, may
also meet this definition. Similarly, a veteran with mobility
impairment may meet this definition if he or she requires assistance
with lower body dressing, but is otherwise independent. While some
veterans may need assistance with more than one ADL, others will not
but would still qualify so long as they need assistance with at least
one ADL each time it is performed.
Contrary to the commenter's statement that PCAFC would be limited
to veterans requiring 24/7 care, we note that it is not our intent that
PCAFC be limited to only those veterans and servicemembers that require
24/7 care and we refer the commenter to the previously-cited examples
above. We further note that we do not expect or require Family
Caregivers to provide 24/7 care as part of PCAFC. This definition would
not restrict PCAFC to only those requiring 24/7 care, as this
definition requires that assistance be needed each time the ADL is
completed, which we believe equates to a veteran or servicemember
requiring a moderate amount of personal care services.
We make no changes based on these comments.
One commenter stated that they believe this definition of inability
to perform an ADL is more aligned with the definition of
``incapability'' rather than ``inability'' because they interpret the
definition of inability as contemplating degrees along a spectrum. This
commenter further asserted that VA's definition of inability to perform
an ADL does not align with Congressional intent for PCAFC. While we
acknowledge that incapability and inability may have similar
definitions,
[[Page 46235]]
we interpret and define inability to perform an ADL, as required by 38
U.S.C. 1720G, to mean that the veteran or servicemember needs personal
care services each time an ADL is completed. We believe this
interpretation is reasonable and rational, because it will provide
objective criteria for evaluating this term and will ensure those with
moderate and severe needs are eligible for PCAFC. It is also important
to note that while ``ability'' can be considered along a spectrum, that
does not mean that ``inability'' or ``lack'' of ability must similarly
be considered along a spectrum. We make no changes based on this
comment.
One commenter asserted that VA failed to state if the care provided
must be hands-on, physical care to meet the definition of inability to
perform an ADL and recommended VA state that assistance can also be in
the form of supervision, protection, or instruction as the veteran
completes each ADL. Relatedly, another commenter, in addressing the
definition of ``need for supervision, protection, or instruction,''
suggested that VA had muddled the statutory language, which the
commenter asserted ``neither limits the inability to perform one or
more [ADLs] to physical impairments nor excludes physical impairments
from causing the need for supervision or protection.'' Other commenters
provided examples that seemed to confuse the definitions of ``inability
to perform an activity of daily living'' and ``need for supervision,
protection, or instruction,'' which are separate bases upon which an
eligible veteran can be deemed in need of personal care services under
Sec. 71.20(a)(3). For example, one commenter referred to veterans who
may not be able to remember to take medication, eat, or bathe unless
directed to do so and supervised.
We reiterate from the proposed rule that VA considers inability to
perform an ADL separate from a need for supervision, protection, or
instruction, and that an inability to perform an ADL would involve
physical impairment, while need for supervision, protection, or
instruction would involve cognitive, neurological, or mental health
impairment. See 85 FR 13363 (March 6, 2020). That does not mean,
however, that veterans or servicemembers who require assistance with
ADLs cannot qualify for PCAFC based on a need for supervision,
protection, or instruction, as they may have a functional impairment
that directly impacts their ability to maintain personal safety on a
daily basis. It is important to note that when we evaluate veterans and
servicemembers for PCAFC, we make a clinical determination that is
comprehensive and holistic, and based on the whole picture of the
individual.
We also note that the care required under the definition of
inability to perform an ADL is hands-on, physical care. If that
requirement of hands-on, physical care is not met, a veteran or
servicemember may still qualify under the definition of need for
supervision, protection, or instruction, as that definition does not
require hands-on, physical care. To the extent that commenters
suggested we include need for supervision, protection, or instruction
as the level of assistance required for the definition of inability to
perform an ADL, we decline to adopt that suggestion. The definition of
need for supervision, protection, or instruction already includes a
type of assistance, which we believe would accurately capture veterans
with a functional impairment that impacts their ability to maintain
their personal safety on a daily basis due to an inability to perform
an ADL.
We are not making any changes based on these comments.
One commenter explained that posttraumatic stress disorder (PTSD)
and TBI can lead to fluctuations in a veteran's level of functioning
and requested VA clearly define what it means to require assistance
with an ADL each time it is completed. The commenter also requested VA
clarify how VA will consistently assess, across VA, a veteran's
inability to perform an ADL. This will be a clinical determination
based on a clinical assessment and evaluation of the veteran and
include input from the Family Caregiver or Family Caregiver applicant.
Additionally, we will provide ongoing education and training to field
staff and CEATs. We anticipate fluctuations in functioning, especially
with mental health conditions such as PTSD, but if such fluctuations
mean that a veteran or servicemember does not require personal care
services each time an ADL is completed, then the veteran or
servicemember would not meet this definition. A veteran or
servicemember could require only a minimal amount of assistance with an
ADL on some occasions and a lot of assistance with an ADL on other
occasions. However, they must require some amount of assistance with an
ADL each time. Thus, if the veteran or servicemember can complete the
ADL independently and without personal care services, even on remote
occasions, the veteran or servicemember would not meet the requirement
of this definition to require assistance ``each time'' with regards to
an ADL. However, we note that if a veteran or servicemember does not
meet the definition of inability to perform an ADL, they may be
eligible under the definition of need for supervision, protection, or
instruction. We are not making any changes based on this comment.
One commenter stated that this definition fails to consider the
detrimental effect that delayed care would have on the veteran's or
servicemember's health, and further raised concerns with the definition
in suggesting that it conditions eligibility on deterioration of the
veteran's or servicemember's health, which would be detrimental to the
veteran or servicemember and create higher health care costs for the VA
system. While we understand the commenter's concern, we believe that
excluding veterans and servicemembers who need help completing an ADL
only some of the time he or she completes any of the ADLs listed in the
definition is consistent with our goal of focusing PCAFC on eligible
veterans with moderate and severe needs. As stated in the proposed
rule:
This distinction is especially important for eligible veterans
whose care needs may be more complex, particularly as personal care
service needs related to a physical impairment can evolve over time.
For example, infrequent assistance may be needed in the immediate
time period following the onset of a disease (such that the
individual needs help completing an ADL only some of the time it's
completed), but over time and as the individual begins to age, the
individual's care needs can progress. We would thus distinguish
between veterans and servicemembers needing assistance with an ADL
only some of the time from those who need assistance every time the
ADL is completed, those who we believe have an ``inability'' to
perform an ADL. 85 FR 13361 (March 6, 2020).
Furthermore, we note that PCAFC is just one of many VA programs
available to support veterans and his or her caregiver, as VA offers a
menu of supports and services that support caregivers caring for
veterans such as homemaker and home health aides, home based primary
care, Veteran-Directed care, and adult day care health care to name a
few. In addition, VA offers supports and services provided directly to
caregivers of eligible veterans through PGCSS including access to
Caregiver Support Coordinators (CSCs) located at every VA medical
center, a caregiver website, training and education offered on-line and
in person on topics such as self-care, peer support, and telephone
support by licensed social workers through VA's Caregiver Support Line.
A determination that a veteran or servicemember is not eligible
[[Page 46236]]
for PCAFC would not exclude the veteran or servicemember and his or her
caregiver from receiving VA support through alternative support and
services as applicable. We are not making any changes based on this
comment.
One commenter further noted that a veteran's use of an assistive
device to perform an ADL should not be used against them. This same
commenter also advocated that inability to perform an ADL should mean
that the veteran or servicemember is unable to perform an ADL at any
point of time, and suggested that this could be monitored in the
wellness checks or annual assessment, and where assistance is required
indefinitely, a permanent status could be noted in the record. First,
use of an assistive device would not alone exclude a veteran or
servicemember from PCAFC. However, we note that to qualify for PCAFC,
the veteran or servicemember must be in need of personal care services,
which means, in part, that the individual requires in-person care or
assistance from another person. If the veteran's or servicemember's
needs with respect to ADLs are met with an assistive device, the
individual would not be in need of personal care services based on an
inability to perform an ADL. Second, annual reassessments will include
an assessment of whether an eligible veteran has an inability to
perform an ADL, as appropriate, as the eligible veteran may have
improved or worsened. While VA does not intend to assess PCAFC
eligibility through wellness contacts, including whether an eligible
veteran has an inability to perform an ADL, the need for a reassessment
may be identified through a wellness contact. VHA is not imposing the
``each time'' requirement for purposes of oversight. We believe
recurring reassessment and wellness checks are appropriate regardless
of the frequency with which an eligible veteran is in need of personal
care services. The ``each time'' requirement is solely for the purposes
of determining whether a veteran or servicemember meets the definition
of inability to perform an ADL. As discussed below with respect to
other commenters who advocated for a permanent designation, we will not
designate individuals as permanently eligible for PCAFC in their
medical records, even for eligible veterans who are expected to need
assistance indefinitely; however, there would be documentation of the
eligible veteran's on-going needs in the medical record. Additionally,
we note that the frequency of reassessments would be annually, unless
there is a determination made and documented by VA to conduct
reassessments on a more or less frequent basis. 85 FR 13379, 13408
(March 6, 2020). We make no changes based on these comments.
One commenter who objected to the definition of ``unable to self-
sustain in the community'' (discussed further below) provided
descriptions and examples of mobility or transferring, feeding or
eating, toileting, and shower/bathing, to include descriptions of
progressive stages of assistance. It is not clear what the commenter is
recommending; however, we do not believe it is necessary for VA to
further describe the ADLs listed in this definition as the individual
needs for each veteran and servicemember are unique. It is important to
note that the definition of inability to perform an ADL and the list of
ADLs are based on widely-accepted and commonly understood definitions
of ADL needs in the clinical context. Thus, we find it unnecessary to
add any further descriptors, particularly as doing so could lead to
confusion.
We are not making any changes based on this comment.
One commenter asked why certain instrumental activities of daily
living (IADL) were not addressed in the PCAFC eligibility criteria.
While we understand and recognize that many caregivers may assist with
IADLs, we are required by the authorizing statute to consider ADLs
specifically. As stated in the final rule implementing PCAFC and PGCSS,
we believe that Congress specifically considered and rejected the use
of the term ``instrumental activities of daily living'' in the
Caregivers Act. See 80 FR 1357, at 1367 (January 9, 2015). Moreover, in
section 162(b)(1) of the VA MISSION Act of 2018, Congress replaced the
term ``independent activities of daily living'' with the term
``activities of daily living'' in the statutory definition of
``personal care services'' in 38 U.S.C. 1720G(d)(4) removing any doubt
regarding the scope of the term ``activities of daily living.'' We are
not making any changes based on this comment.
One commenter recommended VA use the guidance set forth in a
procedural guide for the administration of the Servicemembers' Group
Life Insurance Traumatic Injury Protection (TSGLI) program, which is
authorized under 38 U.S.C. 1980A. Specifically, in the context of
determining whether an individual has a loss of ADL, the TSGLI
procedural guide states that the member must require assistance to
perform at least two of the six ADLs. The TSGLI procedural guide
defines ``requires assistance'' as: (1) Physical assistance: When a
patient requires hands-on assistance from another person; (2) stand-by
assistance: When a patient requires someone to be within arm's reach
because the patient's ability fluctuates and physical or verbal
assistance may be needed; and (3) verbal assistance: When a patient
requires verbal instruction in order to complete the ADL due to
cognitive impairment and without these verbal reminders, the patient
would not remember to perform the ADL. See TSGLI Procedural Guide,
Version 2.46 at 19-20 (June 12, 2019).
First, we note that TSGLI and PCAFC are two distinct programs with
distinct purposes, as TSGLI provides ``monetary assistance to help the
member and the member's family through an often long and arduous
treatment and rehabilitation period.'' 70 FR 75940 (December 22, 2005).
TSGLI is modeled after Accidental Death and Dismemberment (AD&D)
insurance coverage. Id. These programs also have distinct eligibility
criteria. For example, qualifying losses for TSGLI include, but are not
limited to, total and permanent loss of sight; loss of a hand or foot
by severance at or above the wrist or ankle; total and permanent loss
of speech; total and permanent loss of hearing; loss of thumb and or
other four fingers of the same hand by severance at or above the
metacarpophalangeal joints; quadriplegia, paraplegia, hemiplegia,
uniplegia; certain burns; coma or the inability to carry out the ADLs
resulting from traumatic injury to the brain. 38 U.S.C. 1980A(b)(1); 38
CFR 9.20(f). While TSGLI does provide payments for an inability to
carry out ADLs, those are limited to where that inability results from
traumatic injury, including traumatic brain injury, and coma. See 38
U.S.C. 1980A; 38 CFR 9.20(f)(17) and (20). Additionally, inability to
carry out ADLs is defined in section 1980A to mean the inability to
independently perform two or more of the following six functions:
Bathing, continence, dressing, eating, toileting, and transferring. 38
U.S.C. 1980A(b)(2)(D).
Under PCAFC, a veteran with TBI could be considered to be in need
of personal care services; that is, because of either physical
disabilities resulting in an inability to perform an ADL, or a
cognitive, neurological, or mental health impairment resulting in a
need for supervision, protection, or instruction. Stand-by and verbal
assistance are covered under the need for supervision, protection, or
instruction definition. Thus, we do not believe it is necessary to add
these under the definition of inability to perform an ADL.
As we explained in the proposed rule, rather than quantifying
losses, PCAFC is
[[Page 46237]]
designed to support the health and well-being of eligible veterans,
enhance their ability to live safely in a home setting, and support
their potential progress in rehabilitation, if such potential exists.
Unlike TSGLI, which is limited to lump-sum monetary assistance, PCAFC
provides eligible Family Caregivers with training and technical support
to assist Family Caregivers in their role as a caregiver for an
eligible veteran.
Additionally, we note that the monthly stipend provided to a
Primary Family Caregiver under 38 U.S.C. 1720G is part of a clinical
program rather than a rider to an insurance policy, thus we do not
believe that this definition must maintain consistency with TSGLI. We
are not making any changes based on this comment.
One commenter recommended that VA not evaluate inability to perform
an ADL for those veterans receiving Special Monthly Compensation (SMC)
for housebound status or aid and attendance, as they have already been
certified by both medical providers and VBA to be in need of another
person to perform an ADL, thereby suggesting that veterans in receipt
of such benefits should be considered to meet the ``inability to
perform an activity of daily living'' definition for purposes of PCAFC
eligibility. SMC for aid and attendance is payable when a veteran, due
to mental or physical disability, requires the regular aid and
attendance of another person. 38 U.S.C. 1114(l), (r); 38 CFR 3.350(b),
(h). SMC for housebound status is payable when a veteran, due to mental
or physical disability, has a service-connected disability rated as
total and (1) has additional service-connected disability or
disabilities independently ratable at 60 percent or more, or (2) by
reason of service-connected disability or disabilities, is permanently
housebound. 38 U.S.C. 1114(s); 38 CFR 3.350(i). Section 3.352 of title
38, CFR, provides criteria for determining the need for regular aid and
attendance, which include inability to perform ADLs such as dressing,
eating, and continence, or requiring supervision or protection on a
regular basis, for purposes of determining eligibility for SMC and
special monthly pension.
While the eligibility requirements for SMC referenced by the
commenter may seem similar, they are not synonymous with VA's
definition of ``inability to perform an ADL.'' The regulatory criteria
for aid and attendance under 38 CFR 3.352(a) provide that inability to
perform certain specified ADLs ``will be accorded consideration in
determining the need for regular aid and attendance.'' Further, whether
an individual is ``substantially confined as a direct result of
service-connected disabilities to his or her dwelling and the immediate
premises'' for purposes of housebound status, see 38 CFR 3.350(i)(2),
does not correlate directly with the more objective ADL criteria we
proposed for PCAFC eligibility. Consequently, the part 3 criteria fail
to provide the level of objectivity VA seeks in order to ensure that
its caregiver program is administered in a fair and consistent manner
for all participants, and we do not believe criteria for those benefits
should be a substitute for a clinical evaluation of whether a veteran
or servicemember is eligible for PCAFC due to an inability to perform
an ADL as set forth in Sec. 71.15. We believe that in order to ensure
that PCAFC is implemented in a standardized and uniform manner across
VHA, each veteran or servicemember must be evaluated based on the
eligibility criteria in Sec. 71.20. To that end, VA will utilize
standardized assessments to evaluate both the veteran or servicemember
and his or her identified caregiver when determining eligibility for
PCAFC. It is our goal to provide a program that has clear and
transparent eligibility criteria that is applied to each and every
applicant. Additionally, we do not believe it would be appropriate to
consider certain disability ratings as a substitute for a clinical
evaluation of whether a veteran or servicemember has an inability to
perform an ADL, as not all veterans and servicemembers applying for or
participating in PCAFC will have been evaluated by VA for such ratings,
and because VA has not considered whether additional VA disability
ratings or other benefits determinations other than those recommended
by the commenters may be appropriate for establishing that a veteran or
servicemember has an inability to perform an ADL for purposes of PCAFC.
We are not making any changes based on this comment.
Institutionalization
Several commenters opposed the inclusion of jail or prison in the
proposed definition of institutionalization. Specifically, commenters
stated this definition conflicts with the common use of the term by
health care providers and other VHA and federal programs. Furthermore,
commenters raised concerns about the application of this definition in
38 CFR 71.45(b)(1) and (2) (related to discharge of the Family
Caregiver due to the eligible veteran or Family Caregiver,
respectively). We note that this definition will only be used in the
context of Sec. 71.45, Revocation and Discharge of Family Caregivers,
and refer the commenters to the discussion below regarding discharge
due to incarceration under section Sec. 71.45.
Joint Application
One commenter raised concerns about the definition of joint
application, in particular that an application is considered incomplete
when all mandatory sections are not completed, since many veterans may
not be able to easily access information due to the passage of time or
may have health issues that make it difficult or impossible to complete
the application without assistance. This commenter also opined that
delays will still result as VA will need to inform applicants that
their applications are incomplete. While this commenter noted that,
pursuant to 38 CFR 21.1032, VA has a duty to assist veterans in
obtaining evidence in claims for other VA benefits, they suggested VA
adopt a less punitive approach by instituting a process that includes
notifying the applicant as promptly as possible that their application
is incomplete. By defining the joint application to mean an application
that has all fields within the application completed, including
signature and date by all applicants, and providing for certain
exceptions within the definition, it was not VA's intent to create a
burden on veterans and caregivers; rather we are establishing the date
on which VA can begin evaluating the applicants' eligibility for PCAFC.
As stated in the proposed rule, the required fields are necessary for
VA to begin evaluating the eligibility of veterans and servicemembers
and their family members for PCAFC. The date the joint application
received by VA is also the date on which certain PCAFC benefits are
effective (unless another date applies under Sec. 71.40(d)). It would
not be reasonable to provide PCAFC benefits back to the date an
incomplete application is received by VA; we need a complete
application. This is a common requirement for the administration of
benefits and services. We further note that the information required
within the application (i.e., names, address of veteran's or
servicemember's residence, dates of birth, certifications, and
signatures) is specific to the veteran and caregiver and is information
they would have readily available. They are not required to further
submit other supporting documentation that they may not have readily
available, such as a DD-214 or medical records, as part of the
application. As mentioned, the mandatory information should be readily
available to them and the
[[Page 46238]]
application should be relatively easy to complete. However, if
assistance with the application is needed, caregivers and veterans can
ask VA staff for help, guidance, and support, and we will assist
applicants as needed. In the application, we will include instructions
that will provide information on requesting assistance with filling out
the form, and various VA touchpoints including the National Caregiver
Support line, VA's website, and a link to VA's Caregiver Support
Coordinator (CSC) locator. We also note that it has been our practice
to contact the caregiver and veteran when applications are incomplete,
and we will continue to do so. Additionally, we will consider inclusion
in policy of requirements for prompt notification in instances of
incomplete applications. While we understand the commenter's concerns
and appreciate the suggested changes, we make no changes to the
regulations based on this comment.
Legal Services
One commenter asserted that VA's proposed definition of legal
services is inconsistent with 38 U.S.C. 1720G and the VA MISSION Act of
2018. This commenter specifically stated that ``instead of creating a
program which would provide free, broadly accessible legal services to
PCAFC veterans and their caregivers that covers a broad range of civil
legal issues, including full representation matters where warranted,
the proposed regulations impose a set of arbitrary limits on the types
of matters to be covered.'' While this commenter acknowledged that
there are existing programs that provide legal services to veterans,
servicemembers, and their families, the commenter asserted that such
programs are insufficient; and inclusion of legal services in the VA
MISSION Act of 2018 recognized the need for legal services by PCAFC
veterans and their caregivers. This commenter praised VA for including
preparation and execution of wills and other advance directives, but
recommended VA expand the definition to include free legal services,
and full representation as warranted, in areas of law where veterans
and caregivers commonly face issues, including affordable housing,
eviction and foreclosure, consumer debt, access to and maintaining
local and federal government benefits, and family law.
We do not agree that the definition of legal services is
inconsistent with our statutory authority, as 38 U.S.C. 1720G, as
amended by the VA MISSION Act of 2018, did not define this term further
than to state that legal services included legal advice and
consultation, relating to the needs of injured veterans and their
caregivers. We have the authority to further define this term, and did
so in the proposed rule. Through a Federal Register Notice published on
November 27, 2018, we solicited feedback from the public in order to
develop this definition, and we also held meetings and listening
sessions to obtain input from stakeholders. The responses received were
varied, as we explained in the proposed rule. See 85 FR 13362 (March 6,
2020). For example, some feedback acknowledged the potential for
conflicts of interest between the eligible veteran and Family Caregiver
regarding certain legal issues, including divorce or child custody,
while other feedback specified that legal services should include
advanced directives, power of attorney, wills, and guardianship. Id. We
considered the feedback received and, consistent with that feedback, we
defined legal services to include assistance with advanced directives,
power of attorney, simple wills, and guardianship; education on legal
topics relevant to caregiving; and a referral service for other legal
services. Id. We determined this would be the most appropriate way to
define legal services, as this would allow us to provide assistance
with the most common matters that Family Caregivers face in providing
personal care services to eligible veterans (i.e., advanced directives,
power of attorney, simple wills, and guardianship), providing education
on legal topics relevant to caregiving, and a referral service for
other legal services. As explained in the proposed rule, this
definition would address these important needs, while also being
mindful of VA resources. Id. Paying for legal services for matters
other than those described in the definition would be cost prohibitive
and may limit our ability to provide the same level of services to as
many Family Caregivers as possible, and would not be focused on those
matters that Family Caregivers most commonly face in providing personal
care services to eligible veterans. Providing limited legal assistance,
education, and referrals would ensure we consistently provide an
equitable level of legal services to all Primary Family Caregivers. As
we explained in the proposed rule and reiterate here, we will provide
as legal services assistance with advanced directives, power of
attorney, simple wills, and guardianship; education on legal topics
relevant to caregiving; and a referral service for other legal
services. These services would be provided only in relation to the
personal legal needs of the eligible veteran and the Primary Family
Caregiver. This definition of legal services excludes assistance with
matters in which the eligible veteran or Primary Family Caregiver is
taking or has taken any adversarial legal action against the United
States government, and disputes between the eligible veteran and
Primary Family Caregiver.
We make no changes to the definition based on this comment, but
will continue to assess the need for legal services by Family
Caregivers to determine if VA should propose changes to the definition
in the future.
Another commenter similarly praised VA for the inclusion of
assistance with advanced directives, power of attorney, simple wills,
and guardianship; educational opportunities on legal topics relevant to
caregiving; and referrals to community resources and attorneys for
legal assistance or representation in other legal matters. We
appreciate the comment and are not making any changes based on this
comment.
One commenter asked for clarification on whether legal services
would be available regarding family members of the Family Caregiver and
eligible veteran, such as children. While the benefit is for the
Primary Family Caregiver, a family member of the Primary Family
Caregiver and the eligible veteran may indirectly benefit from the
legal services. However, they are not directly eligible for the benefit
if they are not approved and designated as the Primary Family
Caregiver. We make no changes based on this comment.
Another commenter questioned why legal services will be available
to caregivers, whether it is indicative of a deeper problem, and asked
what precautions and safety nets will be put in place to ensure
veterans are not exploited or abused. As stated in the proposed rule,
we are adding this term to address changes made to 38 U.S.C. 1720G by
the VA MISSION Act of 2018. Specifically, the VA MISSION Act of 2018
added legal services as a benefit for Primary Family Caregivers.
Accordingly, legal services will be added to the benefits available to
Primary Family Caregivers under Sec. 71.40(c)(6). Similar to financial
planning services, we will include in any contracts requirements such
as minimum degree attainment and certifications for individuals
providing legal services, as well as mechanisms that would prohibit
exploitation or abuse of caregivers and veterans (e.g., prohibit any
form of compensation from the eligible veteran or Family Caregiver for
the services provided) and that allow us to take any appropriate
actions
[[Page 46239]]
necessary to address related breach of contracts. We note that the
contractors would be responsible for any liability arising from legal
services provided. Further, contractors are not VA employees and
therefore not covered by the Federal Tort Claims Act. We also plan to
provide resources to the Family Caregiver to report any concerns of
abuse or exploitation that may arise in the course of receiving the
legal services, such as links to State and local bar discipline
reporting sites, as appropriate. We make no changes based on this
comment.
Monthly Stipend Rate
Several commenters expressed concern about VA's definition of
monthly stipend rate. Specifically, some commenters believe it is too
high, some believe it is too low, and others disagree with using the
Office of Personnel Management's (OPM) General Schedule (GS) scale. We
note that this definition will only be applied in the context of 38 CFR
71.40(c), Primary Family Caregiver benefits. Therefore, we address the
comments in the section below regarding Sec. 71.40.
Need for Supervision, Protection, or Instruction
VA's proposed rule added ``need for supervision, protection, or
instruction'' as a new term and basis upon which a veteran or
servicemember can be deemed in need of personal care services under
Sec. 71.20(a)(3). This term and its definition serve to implement the
statutory phrases ``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'' in clauses (ii) and (iii) of section
1720G(a)(2)(C) of title 38, U.S.C. VA received numerous comments about
this proposed definition. Some commenters supported the definition,
while others believed it is too restrictive or disagreed with VA's
interpretation of the statutory requirements, and others requested VA
provide clarification.
Commenters stated that quantifying the amount of time for
supervision needed under this definition is difficult, and that some
veterans may need constant supervision because of their health
conditions. Commenters also requested VA clarify the frequency with
which a veteran would need supervision, protection, or instruction for
purposes of PCAFC eligibility. One commenter opined that the definition
is extremely narrow in scope. Another commenter stated that the ``daily
basis'' requirement will place an undue hurdle on veterans otherwise
eligible for PCAFC. Another commenter opined that the definition is too
restrictive, particularly as a veteran with ``severe TBI may have
symptoms that affect their function in a major way, but does not
require assistance with functioning every day,'' which does not
diminish their need for caregiving on a regular basis. Additionally,
commenters questioned how we would operationalize this definition, as
individuals may have daily a potential need for supervision,
protection, or instruction but intervention may only be required a few
times a week.
As indicated in the proposed rule, we would define need for
supervision, protection, or instruction 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. 85 FR 13363
(March 6, 2020). We revised the definition because we found the term
``need for supervision or protection based on symptoms or residuals of
neurological or other impairment or injury'' and its definition unduly
restricted our ability to consider all functional impairments that may
impact a veteran's or servicemember's ability to maintain his or her
personal safety on a daily basis. Id. Contrary to some of the comments,
it was not our intent to narrow and restrict eligibility with this
change, and we believe that these revisions will broaden the current
criteria since it will no longer be limited to a predetermined list of
impairments. Additionally, the revised definition will be consistent
with our goal of focusing PCAFC on eligible veterans with moderate and
severe needs. Id. at 113364.
As we indicated in the proposed rule, ``[w]hether a veteran or
servicemember would qualify for PCAFC on this basis would depend on
whether his or her functional impairment directly impacts the
individual's ability to maintain his or her personal safety on a daily
basis.'' Id.
Some commenters raised concerns about the reference to ``daily'' in
this definition, and we agree that additional clarification is needed.
While ``daily basis'' in the definition refers to the individual's
ability to maintain personal safety, most individuals determined to
qualify on this basis will also require personal care services from a
caregiver on a daily basis. The proposed rule was not clear in this
regard, but it did allude to such individuals requiring personal care
services on a daily basis. For example, we explained that a veteran or
servicemember meeting this definition may not need supervision,
protection, or instruction continuously during the day, but would need
such personal care services on a daily basis, even if just
intermittently each day. See 85 FR 13364 (March 6, 2020). This
requirement for daily personal care services under the definition of
``need for supervision, protection, or instruction'' was also
referenced in the context of explaining the definition of inability to
perform an ADL, which does not require the veteran or servicemember
need daily personal care services. See id. at 13361.
By focusing the definition of need for supervision, protection, or
instruction on individuals who require personal care services on a
daily basis, we will help ensure that PCAFC targets eligible veterans
with moderate and severe needs. While we acknowledge that veterans with
needs at a lower level may also benefit from the assistance of another
individual, we believe PCAFC was intended to support those with
moderate and severe needs. For applicants that apply to PCAFC and do
not qualify, VA will assist the applicant in identifying and making
referrals to other available resources that may meet their needs. Thus,
we do not believe that the ``daily basis'' requirement in the
definition creates an ``undue hurdle''. Also, as we explained above, we
are broadening the definition beyond a predetermined list of
impairments, which will remove an existing barrier for many veterans
and servicemembers who would meet the definition of need for
supervision, protection, or instruction but do not have one of the
listed impairments in the current regulation.
As part of this discussion, we would like to further correct and
clarify the meanings of daily and continuous for purposes of the terms
need for supervision, protection, or instruction, and unable to self-
sustain in the community, respectively. We note that those who have a
need for supervision, protection, or instruction on a continuous basis
would meet the definition of unable to self-sustain in the community
for purposes of the monthly stipend payment.
The terms daily and continuous relate to the frequency with which
intervention is required in order to maintain an individual's personal
safety that is directly impacted by his or her functional impairment.
PCAFC is a clinical program and as such the determination of whether
the frequency of intervention is daily or continuous is a clinical
decision. Clinical decision making is highly individualized based on
the specific needs of the individual
[[Page 46240]]
veteran or servicemember. As previously stated, it is important to note
that when we evaluate veterans and servicemembers for PCAFC, we make a
clinical determination that is comprehensive and holistic, and based on
the whole picture of the individual. Factors VA will consider when
evaluating the frequency of intervention required, specifically daily
or continuous, include the factors set forth in 38 U.S.C.
1720G(a)(3)(C)(iii)(II) and (III), that is, the ``extent to which the
veteran [or servicemember] can function safely and independently in the
absence of such supervision, protection, or instruction,'' and the
``amount of time required for the family caregiver to provide such
supervision, protection, or instruction to the veteran [or
servicemember].''
In addition to frequency, VA determinations of whether a veteran or
servicemember is in need of supervision, protection, or instruction,
and whether such need is on a continuous basis for purposes of the
higher-level stipend, which are clinical determinations, also account
for the degree of intervention required to support the safety of the
veteran or servicemember. Individuals whose functional impairment
directly impacts their personal safety on a daily basis generally
require at least one active intervention each day. In contrast to
passive interventions that may include the mere proximity of a
caregiver, active intervention requires the caregiver to be actively
involved and engaged in providing supervision, protection, or
instruction. Whether the need is daily or continuous will also depend
on the individual's demonstrated pattern of need.
For example, an eligible veteran with moderate cognitive impairment
may need a Family Caregiver to provide step-by-step instruction when
dressing in the morning and in the evening. Such active intervention is
required on a daily basis, takes a finite amount of time, and the
veteran can maintain their personal safety without additional active
interventions from a caregiver for the remainder of the day. This
veteran may be found to meet the definition of ``need for supervision,
protection, or instruction.'' In contrast, an eligible veteran with
advanced cognitive impairment may require supervision, protection, or
instruction on a daily basis due to the need for step-by-step
instruction in dressing each morning and because of a demonstrated
pattern of wandering outside the home at various times throughout the
day. In this example, the Family Caregiver would provide step-by-step
instruction for dressing each morning, which is a planned intervention.
In addition, because of the demonstrated pattern of wandering outside
the home at various and unpredictable times, the veteran cannot
function safely and independently in the absence of a caregiver. The
Family Caregiver actively intervenes through verbal and physical
redirection multiple times during the day. This veteran would have a
continuous need for an active intervention to ensure his or her daily
safety is maintained. Such veteran may meet the definition of unable to
self-sustain in the community because of a need for supervision,
protection, or instruction on a continuous basis.
We make no changes based on these comments.
One commenter expressed concern that the proposed definition would
exclude from PCAFC veterans who require minimal assistance with
supervision and provided an example of a veteran who can be alone, but
would need to call his or her caregiver to be talked down when they
begin to spiral or have an episode. As previously explained, we are
standardizing PCAFC to focus on eligible veterans with moderate and
severe needs. If a veteran or servicemember does not have a functional
impairment that directly impacts the individual's ability to maintain
his or her personal safety on a daily basis (or have an inability to
perform an ADL), they would not qualify for PCAFC. In addition, the
definition of in need of personal care services specifies that the
eligible veteran requires in-person personal care services, among other
requirements. We note that PCAFC is intended to focus on veterans with
moderate and severe needs who need the assistance of a Family
Caregiver, and is not intended to be a program for individuals who may
only need a minimal amount of assistance. Further, this definition is
not intended to cover the potentiality that someone may have a need for
supervision, protection, or instruction at some point in the future,
but rather instead is meant to cover those servicemembers and veterans
who have a demonstrated pattern of having a need for supervision,
protection, or instruction.
For individuals who do not meet these requirements, including an
individual who does not require in-person personal care services but
instead requires only minimal assistance through an occasional or even
daily phone call, there may be other VA health care programs and
services that would help meet their needs and those of their
caregivers. VA offers a menu of supports and services that supports
caregivers caring for veterans such as homemaker and home health aides,
home based primary care, Veteran-Directed care, and adult day care
health care to name a few. In addition, VA offers supports and services
provided directly to caregivers of eligible veterans through PGCSS
including access to CSCs located at every VA medical center, a
caregiver website, training and education offered online and in person
on topics such as self-care, peer support, and telephone support by
licensed social workers through VA's Caregiver Support Line.
We are not making any changes based on this comment.
Several commenters raised concerns about how this definition
incorporates mental health conditions, cognitive impairments, and
``invisible injuries'' (e.g., TBI, PTSD, mental illness), particularly
related to veterans with conditions that may not meet the definition of
inability to perform an ADL. As we stated in the proposed rule,
determining eligibility on the basis of this definition would not focus
on the individual's specific diagnosis or conditions, but rather
whether the veteran or servicemember has impairment in functioning that
directly impacts the individual's ability to maintain his or her
personal safety on a daily basis and thus requires supervision,
protection, or instruction from another individual. 85 FR 13364 (March
6, 2020). We further provided examples to include an individual with
schizophrenia who has active delusional thoughts that lead to unsafe
behavior, and an individual with dementia who may be unable to use the
appropriate water temperature when taking a bath and may thus require
step-by-step instruction or sequencing to maintain his or her personal
safety on a daily basis. Individuals with TBI or mental health
conditions may also qualify for PCAFC on this basis. For example, a
veteran or servicemember with TBI who has cognitive impairment
resulting in difficulty initiating and completing complex tasks, such
as a grooming routine, may require step-by-step instruction in order to
maintain his or her personal safety on a daily basis. Additionally,
eligibility on the basis of this definition may result from multiple
conditions or diagnoses. Therefore, we believe this definition
incorporates mental health conditions, cognitive impairments, and
``invisible injuries'' (e.g., TBI, PTSD, mental illness). We are not
making any changes based on these comments.
One commenter was specifically concerned that an individual with
[[Page 46241]]
dementia who is forgetful or misplaces items but can adapt and manage
successfully without compromising his or her personal safety on a daily
basis may not qualify for PCAFC under this definition. Another
commenter inquired into whether an individual who is 100 percent
service-connected disabled due to PTSD will qualify under this
definition if the individual does not meet the inability to perform an
ADL definition. Relatedly, this commenter stated that this definition
needs to be better defined for mental health conditions or cognitive
impairments when that person does not have a specific ADL deficit. As
explained above, eligibility on this basis is focused on whether the
veteran or servicemember has an impairment in functioning that directly
impacts the individual's ability to maintain his or her personal safety
on a daily basis and thus requires supervision, protection, or
instruction from another individual, rather than a specific diagnosis
or condition. The definition of ``need for supervision, protection, or
instruction'' is consistent with our goal of focusing PCAFC on eligible
veterans with moderate and severe needs. Thus, for an individual who is
forgetful or misplaces items but does not have a functional impairment
that directly impacts his or her ability to maintain personal safety on
a daily basis (and who is not determined to be in need of personal care
services based on an inability to perform an ADL), there may be other
VA programs and resources available to meet the individual's needs. An
individual with 100 percent service-connected disability due to PTSD
may be eligible under this definition if the individual has a
functional impairment that directly impacts his or her ability to
maintain his or her personal safety on a daily basis. We are not making
any changes based on these comments.
Several commenters requested VA provide clarification about this
definition, including a commenter who noted that this definition is
vague. One commenter suggested that VA define the terms ``on a daily
basis, even if just intermittently each day'' and ``ability to maintain
his or her personal safety'' to ensure consistent implementation. One
commenter asserted that VA proposed no objective criteria for
supervision, protection, or instruction, and another commenter
suggested that VA failed to provide an objective operational definition
of need for supervision, protection, or instruction. One commenter
indicated that while the supervision, protection, and instruction
standards need to be more inclusive, they set up a point of confusion
in what elements are to be considered and not considered. This
commenter further asserted that any assessment tool used to determine
PCAFC eligibility would have to define the elements considered for
supervision, protection, and instruction, and asked why VA did not
define those elements in the regulation. Another commenter asserted
that although the characterization of being unable to self-sustain in
the community is relatively clear, it appears likely that eligibility
for the lower tier stipend will be contentious for both VA and
veterans' families, and the definition of need for supervision,
protection, or instruction should be clarified further if the program
is to serve its targeted population. Furthermore, the commenter
asserted that VA's explanation that a veteran or servicemember meeting
this criterion may only need such personal care services intermittently
each day opens the door to a variety of interpretations and increases
the potential for complex and time-consuming eligibility decisions. The
commenter also questioned if a caregiver reminding one's spouse that he
or she has an upcoming appointment constitutes instruction and if it
should be considered indicative of a severe impairment in functioning,
in the absence of any objective cognitive deficits.
First, we disagree with the commenters who believe that this
definition is vague. While we broadened this definition to remove the
predetermined list of functional impairments associated with ``need for
supervision or protection based on symptoms or residuals of
neurological or other impairment of injury,'' so that ``need for
supervision, protection, or instruction'' can cover more diagnoses and
conditions, we believe the revised definition is specific enough to
allow us to make objective determinations about whether a veteran or
servicemember has a need for supervision, protection, or instruction,
consistent with the authorizing statute and intent of PCAFC. When
assessing personal care needs, VA will assess and document the support
the veteran or servicemember needs to maintain personal safety, if such
needs exist, and the frequency with which he or she requires
interventions by the caregiver. This will include consideration of,
among other factors, the veteran's or servicemember's functional
ability as it relates to such things as: Medication management, self-
preservation, safety, and self-direction. We recognize this is not a
comprehensive list of functions in which a veteran or servicemember may
experience impairment. We also note that the reasons a functional
impairment will directly impact an individual's ability to maintain his
or her personal safety on a daily basis will vary (e.g., due to memory
loss, delusion, uncontrolled seizure disorder). How an individual's
ability to maintain his or her personal safety is impacted by his or
her functional impairments will vary based on those impairments and
diagnoses. In the regulation, we would not list the elements to be
considered as doing so could potentially be more restrictive than
intended. These are clinical decisions that are dependent on each
individual's unique situation and it would be impractical for the
regulation to list and account for every functional impairment that may
directly impact an individual's ability to maintain his or her personal
safety on a daily basis. As explained above, we would require that a
veteran or servicemember have a functional impairment that directly
impacts his or her ability to maintain personal safety on a daily
basis, but the type, degree, and frequency of intervention may vary.
We would not define the terms ``on a daily basis, even if just
intermittently each day'' and ``ability to maintain his or her personal
safety'' because this a clinical program, and how these criteria are
met will vary based on each veteran's or servicemember's unique
situation. The phrase ``on a daily basis, even if intermittently each
day'' in the proposed rule was used to clarify that a veteran or
servicemember may require supervision, protection, or instruction when
completing certain tasks but may not require a caregiver to be present
the remainder of the day. We further refer the commenters to the
earlier discussion in this section regarding VA's clinical assessment
of whether a veteran or servicemember has a need for supervision,
protection, or instruction, and whether such need is continuous for
purposes of the definition of ``unable to self-sustain in the
community.''
We provided many examples in the proposed rule to explain the
phrase ``ability to maintain his or her personal safety,'' and added a
further example above regarding an individual with TBI. These examples
were provided to illustrate situations in which a veteran or
servicemember may require another individual to provide supervision,
protection, or instruction to ensure the veteran or servicemember is
able to maintain his or her personal safety on a daily basis.
Furthermore, we provided examples of when an individual may not be
in
[[Page 46242]]
need of supervision, protection, or instruction, to include ``an
individual with dementia who is forgetful or misplaces items but can
adapt and manage successfully without compromising his or her personal
safety on a daily basis (e.g., by relying on lists or visual cues for
prompting).'' 85 FR 13364 (March 6, 2020). We also note that a veteran
whose only need from a caregiver is to be reminded of appointments or
to take medications, would likely not be determined to be in need of
personal care services based on a need for supervision, protection, or
instruction, as that alone would not demonstrate that the veteran or
servicemember requires in-person personal care services from another
person, and without such personal care services, alternative in-person
caregiving arrangements would be required, based on a functional
impairment that directly impacts the individual's ability to maintain
his or her personal safety on a daily basis.
We make no changes based on these comments.
One commenter took issue with VA combining 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii) under one term and asserted that retaining
the previous basis of ``need for supervision or protection based on
symptoms or residuals of neurological or other impairment or injury''
and its associated definition and adding a new definition for ``need
for regular or extensive instruction or supervision without which the
ability of the veteran to function in daily life would be seriously
impaired'' would better align with Congressional intent. Relatedly, one
commenter stated that VA did not provide data, or sufficient
information and analysis to justify combining clauses (ii) and (iii) of
38 U.S.C. 1720G(a)(2)(C). This commenter asserted that this definition
is incongruent with the plain reading of the law and Congressional
intent, which the commenter stated requires VA utilize at least three
separate eligibility criteria to serve as the bases upon which a
veteran or servicemember can be deemed in need of personal care
services.
As indicated in the proposed rule, we believe that the current
definition for ``need for supervision or protection based on symptoms
or residuals of neurological or other impairment or injury'' unduly
restricts VA's ability to consider all functional impairments that may
impact a veteran's or servicemember's ability to maintain his or her
personal safety on a daily basis. Additionally, it is VA's intent to
broaden the current criteria by removing the predetermined list of
impairments, such that veterans and servicemembers with impairments not
listed in the current definition who may otherwise meet the definition
of need for supervision, protection, or instruction may be eligible for
PCAFC. This change will allow us to consider additional impairments
that are not listed in the current definition. Additionally, as we
explained in the discussion on the definition of inability to perform
an ADL, it may be the assistance needed for an ADL that results in a
need for supervision, protection, or instruction.
We disagree with the commenters that combining clauses (ii) and
(iii) of 38 U.S.C. 1720G(a)(2)(C) is not consistent with the statute
and Congressional intent. As we explained in the proposed rule, we
combined these two bases for PCAFC eligibility because we believe these
two bases capture the personal care service needs of veterans and
servicemembers with a significant cognitive, neurological, or mental
health impairment, as opposed to an inability to perform an ADL, which
covers physical impairments. 85 FR 13363 (March 6, 2020). We sought
input from the public on how to differentiate and define these two
bases in a Federal Register Notice that was published on November 27,
2018. See 83 FR 60966 (November 27, 2018). We also held meetings with
various stakeholders from February through May of 2019. We appreciate
the feedback we received from these efforts. However, we did not
receive any meaningful recommendations in addition to what we had
identified and considered internally for defining these bases. We were
unable to distinguish them in a meaningful way and determined that the
most logical approach was to broaden the current definition of ``need
for supervision or protection based on symptoms or residuals of
neurological or other impairment or injury'' under a new term that
would also capture veterans and servicemembers who have ``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.'' We further note that in response to this proposed rule,
while some commenters objected to combining these two bases, no
specific recommendations or suggestions on how to define and
distinguish these two bases were submitted. We make no changes based on
these comments.
Primary Care Team
In the proposed rule, we proposed to revise the definition of
``primary care team'' to mean one or more VA medical professionals who
care for a patient based on the clinical needs of the patient. We also
proposed to remove the reference to the primary care team in various
sections, including current Sec. Sec. 71.20(c) and (d), 71.20(g),
71.25(c)(1)-(2), 71.25(f), and 71.40(b)(2). Instead, we would reference
primary care team in one section, Sec. 71.25(a)(2)(i), to state that
PCAFC eligibility evaluations being performed in collaboration with the
primary care team to the maximum extent practicable.
We received comments on the definition of primary care team, the
role of the primary care team in PCAFC processes, and the centralized
eligibility and appeals teams, which are addressed below.
Primary Care Team Definition
We received multiple comments stating that the proposed definition
of ``primary care team'' is too broad and requested that the definition
remain the same or be more specific with regard to which type of VA
medical professional would serve on the primary care team for a veteran
or servicemember. Specifically, the commenters raised concerns that the
proposed definition would not require the primary care team to include
a physician, nurse practitioner, or physician assistant to oversee the
care of the veteran or servicemember but rather would allow any medical
professional who is licensed or certified to provide health care
services such as nurses, hospice workers, emergency medical
technicians, optometrists, social workers, clinical dietitians,
occupational or physical therapists, and other trained caregivers.
Commenters asserted that the lack of specificity would result in no
requirement for any type of medical evaluation encounter to determine
if personal care services are medically necessary during the evaluation
of the joint application, and referred to evaluation and management
guidelines that require services to be rendered by a physician or other
qualified health care professional who may report evaluation and
management services. We address these comments below.
We appreciate the comments and agree that the proposed definition
was not specific enough. As indicated in the proposed rule, our intent
was to expand the definition to account for veterans and servicemembers
who ``receive their primary care in the community and may only utilize
VA for a portion of their care, such as mental health or specialty
services.'' 85 FR 13365 (March 6, 2020). However, it was not our intent
to imply that the primary care team may be
[[Page 46243]]
comprised of any medical professional (e.g., nurses, hospice workers,
emergency medical technicians) in the absence of a physician, advanced
practice nurse, or a physician assistant. Additionally, after reviewing
the comments, we agree with their concerns that we should maintain the
reference to a primary care provider. Therefore, we are revising the
definition of primary care team to mean ``one or more medical
professionals who care for a patient based on the clinical needs of the
patient. Primary care teams must include a VA primary care provider who
is a physician, advanced practice nurse, or a physician assistant.'' We
make no further changes based on these comments.
Multiple commenters asserted that the removal of the phrase
``provider who coordinates the care'' is contradictory and is not
aligned with existing VA national policy. One commenter asserted that
``responsibility for coordination of care must reside with a primary
care provider or team of providers,'' and suggested that one mechanism
to facilitate this coordination is through the establishment of an
information system that can be accessed by providers in the same or
different locations that provides a record on each enrollee to include
his or her socio-demographic characteristics, a minimum data set on all
clinical encounters and an identifier that permits linkage of the
individual's encounter data over time. Commenters further expounded
that primary care is the day-to-day health care given by a health care
provider and that the provider typically acts as the first contact and
principal point of continuing care for patients within a health care
system and coordinates other specialty care.
As we explained in the proposed rule, we would remove this phrase,
``provider who coordinates the care,'' because it can lead to
misinterpretation, and it does not specify whether the care coordinated
is specific care to PCAFC or all of the eligible veteran's care
coordination needs. 85 FR 13365 (March 6, 2020). Additionally, because
of the role that the primary care team plays in coordinating an
eligible veteran's care, we believe continuing to include this language
would be unnecessary and redundant. Additionally, as explained above,
we are revising the definition to include a requirement that a VA
primary care provider who is a physician, advanced practice nurse or
physician assistant must be on the team; thus the commenters' concerns
regarding the removal of the phrase ``provider who coordinates the
care'' because a primary care provider is responsible for care
coordination is moot. Furthermore, VA has an electronic medical record
system that allows VA providers from multiple locations to access a
patient's medical record. To the extent the commenter is suggesting we
build a medical record system specific for PCAFC, we believe this is
beyond the scope of this rulemaking. We are not making any changes
based on these comments.
Multiple commenters asserted that the proposed definition does not
align with industry standards such as the American Medical Associations
(AMA) Code of Medical Ethics and the American Academy of Family
Physicians, particularly as it does not clearly define the prescribing
authority for a VA medical professional. We appreciate the commenters
concerns; however, the definition of primary care team is only used for
purposes of part 71, and not for the general provision of health care
at VA. Additionally, there are multiple definitions for primary care
teams in health care. Therefore, we do not believe VA has a requirement
to align the definition of primary care team with industry or other
federal or non-federal programs. We make no changes based on these
comments.
Several commenters expressed concern that the proposed definition
is inconsistent with VA's provision of care in the community. One
commenter asserted that the definition does not align with VA's
statutory requirements to accommodate veterans and servicemembers who
may receive care in the community. One commenter asserted that VA has
not consulted with non-VA treating physicians when making eligibility
determinations and that given pending legislation that is likely to
expand fee-for-service programs and third-party providers, it is
imperative that VA primary care teams consult these doctors and utilize
their assessments. The same commenter noted that they do not believe
non-VA providers should determine eligibility; but rather PCAFC must
consult with clinicians who are actually treating the veteran or
servicemember.
First, we note that, as explained above, we are revising the
definition to require that a VA primary care provider must be on the
team; however, we removed ``VA'' from the phrase ``one or more medical
professionals'' which we believe allows other medical professionals
(including non-VA medical professionals) who care for the patient based
on the clinical needs of the patient, to be part of the team. We
believe this definition is inclusive of veterans or servicemembers who
receive care in the community, and thus is consistent with our
statutory authority.
We further note that neither the veteran's VA primary care provider
nor his or her non-VA provider would determine PCAFC eligibility; CEATs
will determine eligibility for PCAFC, including whether the veteran is
determined to be unable to self-sustain in the community. Clinical
staff at local VA medical centers will conduct evaluations of PCAFC
applicants with input provided by the primary care team to the maximum
extent practicable. This information will be provided to the CEATs for
use in making eligibility determinations, including whether the veteran
is determined to be unable to self-sustain in the community for
purposes of PCAFC. The CEAT will be composed of a standardized group of
inter-professional, licensed practitioners, with specific expertise and
training in the determinations of eligibility and the criteria for the
higher-level stipend. We believe the use of CEATs will improve
standardization in eligibility determinations across VA. While primary
care teams will not collaborate directly with the CEAT on determining
eligibility, documentation of their input in the local staff evaluation
of PCAFC applicants will be available in the medical record for review.
This documentation will be used by the CEAT to help inform eligibility
determinations for PCAFC, including whether the veteran is determined
to be unable to self-sustain in the community for the purposes of
PCAFC. Any documentation from a non-VA provider that the veteran or
servicemember provides will be available to VA for purposes of PCAFC
evaluation and eligibility determinations. We are not making any
changes based on these comments.
Role of Primary Care Team in PCAFC Processes
Many commenters raised concerns that these changes relating to the
primary care team will reduce or eliminate the important role of a
veteran's team of medical professionals in PCAFC processes, and instead
rely on a single medical provider who may not have full knowledge of a
veteran's medical needs, medical history, or involvement in a veteran's
treatment, especially as this can lead to inconsistencies in PCAFC
determinations. Some commenters allege this would be inconsistent with
and exceed VA's authority under 38 U.S.C. 1720G. Commenters were also
concerned that a veteran's medical evaluation will be performed by a
professional who is ill-equipped to
[[Page 46244]]
correctly assess the veteran, especially when determining when a
veteran has an inability to perform ADLs.
Some commenters raised concerns about the removal of primary care
team specifically from various paragraphs in Sec. Sec. 71.20 and
71.25. These concerns included a fear that it will give VA too much
flexibility in determining who will conduct eligibility assessments, it
will provide too much deference to non-medical personnel who do not
have the qualifications of the medical practitioners on the primary
care team, will result in medical professionals making eligibility
determinations outside the scope of their practice, will provide the
CSCs and uninvolved parties who do not treat the veteran or
servicemember with too much discretion, and will create
inconsistencies. Additionally, one commenter asserted that VA did not
provide justification for why it would be more appropriate to remove
the primary care team from the eligibility assessment process.
Relatedly, several commenters disagreed with VA's claim that current
references to the primary care team are unclear. However, one of those
commenters agreed that authorizations by the primary care team have not
been applied consistently between facilities.
We address these comments below.
As we explained directly above and based on the comments received,
we are revising the primary care team definition to mean ``one or more
medical professionals who care for a patient based on the clinical
needs of the patient. Primary care teams must include a VA primary care
provider who is a physician, advanced practice nurse, or a physician
assistant.'' As Congress did not provide a definition for primary care
team in 38 U.S.C. 1720G, we define the term as previously described,
which we believe is rational and reasonable for purposes of PCAFC. This
definition, as revised in this final rule, will ensure that those
medical professionals, including a VA primary care provider, who care
for the veteran and have knowledge of the veteran's needs and
treatments, are part of the primary care team and have the opportunity
to provide input into determinations of whether the veteran or
servicemember is eligible for PCAFC.
As explained previously in this section, clinical staff at local VA
medical centers will conduct evaluations of PCAFC applicants with input
provided by the primary care team to the maximum extent practicable.
The CEAT, 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-
level stipend, will use those evaluations to inform PCAFC eligibility
determinations, including whether the veteran is determined to be
unable to self-sustain in the community. While primary care teams will
not collaborate directly with the CEAT on determining eligibility,
including whether the veteran is determined to be unable to self-
sustain in the community, documentation of their input with the local
staff evaluation of PCAFC applicants will be available in the medical
record for review. This documentation will be used by the CEAT to help
inform eligibility determinations for PCAFC, including whether the
veteran is determined to be unable to self-sustain in the community. We
believe the use of CEATs will improve standardization in eligibility
determinations across VA. These teams will have access to the
documentation of the evaluations conducted in order to inform
eligibility determinations, including whether the veteran is determined
to be unable to self-sustain in the community for the purposes of
PCAFC. We also note that we will provide robust training and education
to those staff conducting evaluations, and CEAT members who are
determining eligibility. We further refer the commenters to our
discussion on ``Staff training on eligibility determinations'' in the
miscellaneous comments section of this rule.
We disagree with the commenters' assertion that we are eliminating
the primary care team from PCAFC processes, which some allege is
inconsistent with and exceeds our authority under 38 U.S.C. 1720G. The
primary care team has not been entirely removed from eligibility
determinations; rather as indicated in the proposed rule, instead of
referencing the primary care team in various paragraphs of Sec. Sec.
71.20 and 71.25, we will reference the primary care team in Sec.
71.25(a)(2)(i) to indicate that PCAFC eligibility evaluations will be
performed in collaboration with the primary care team to the maximum
extent practicable. 85 FR 13364 (March 6, 2020).
We proposed to reference primary care team in Sec. 71.25(a)(2)(i),
to be consistent with 38 U.S.C. 1720G(a)(5), which requires that PCAFC
applications be evaluated by VA in collaboration with the primary care
team for the eligible veteran to the maximum extent practicable. As we
explained in the proposed rule, this would ensure collaboration with
the VA medical professionals involved in the patient's care during VA's
evaluation of the joint application. Id. However, it may be appropriate
to consider care requirements prescribed by providers other than the
veteran's or servicemember's primary care team, such as a non-VA
provider, or other appropriate individual or individuals in VA. We
reiterate here that these changes would give us more flexibility in how
we evaluate PCAFC eligibility and approve and designate Family
Caregivers while also ensuring that joint applications are evaluated in
collaboration with the primary care team of the veteran or
servicemember to the maximum extent practicable, consistent with the
authorizing statute. We make no changes based on these comments.
Several commenters also expressed general disagreement with the
removal of primary care team from Sec. 71.40(b)(2). Specifically, one
commenter asserted PCAFC is proposing to fundamentally alter accepted
medical standards for provision of primary care services, clinical
staff conducting home visits have an ethical and legal responsibility
to communicate directly the functional status and well-being of the
eligible veteran directly to the eligible veteran's primary care team,
and that such staff do not have the same qualifications as medical
professionals in order to make medical determinations about the
eligible veteran. The same commenter opined that VA must recognize that
collaboration among providers which includes clinical staff conducting
home visits is a desirable characteristic of primary care.
We disagree with the assertion that the removal of primary care
team from Sec. 71.40(b)(2) conflicts with accepted medical standards.
As indicated in the proposed rule, it may not always be appropriate for
the clinical staff conducting home visits to collaborate directly with
the primary care team; however, collaboration will still occur with the
primary care team either directly with the provider conducting wellness
contacts or through intermediaries such as the CSC. We make no changes
based on these comments.
Several commenters were critical of our implied belief that primary
care teams are ``too close'' to veterans and their caregivers to
provide unbiased eligibility determinations, while several commenters
agreed with the removal of the primary care team from eligibility
determinations because the primary care team may not oversee the
eligible veteran's care and may not have a relationship with the
eligible veteran. One commenter specifically opined that there is a
conflict and danger of involving the primary care team in a
[[Page 46245]]
decision that has a financial consequence. The same commenter asserted
that VA has historically separated VHA from VBA to ensure health care
and benefits are not enmeshed with a provider's ability to provide
quality care. We agree that requiring a primary care provider to make
eligibility determinations that have a financial impact on a veteran or
servicemember and his or her Family Caregiver, places them in an
undesirable situation, and may have a negative impact on the provider-
patient relationship. Thus, we believe that the use of CEATs to make
eligibility determinations, as described above, will help preserve the
veteran-provider relationship. We make no changes based on this
comment.
One commenter generally disagreed with removing the reference to
the primary care team maintaining the eligible veteran's treatment plan
and opined that it does not align with the American Medical Association
Code of Medical Ethics. We note that CSP does not have responsibility
for the totality of the veteran's medical treatment plan, as that would
still be maintained by the primary care team consistent with what we
stated in the proposed rule. See 85 FR 13365 (March 6, 2020). We make
no changes based on this comment.
Centralized Eligibility and Appeals Team (CEAT)
Several commenters opposed the use of CEATs and expressed concerns
that it will be composed of individuals who are not medically qualified
or providers not familiar with the veteran's history. Two commenters
asserted that the use of CEATs is similar to a disability benefits
review board. One commenter asserted that use of CEATs is contrary to
health care standards for delivering medical care and standards for
authorizing and certifying that personal care services are medically
necessary. This same commenter referenced the requirements for an
independent medical examination (IME) and explained that the goal of an
IME may be to poke holes in a patient's story for purposes of
evaluating a workers' compensation claim or disability benefits.
As previously discussed, the CEATs will be 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-level stipend. We note that the
CEATs will receive training to conduct eligibility determinations,
including whether the veteran is determined to be unable to self-
sustain in the community for the purposes of PCAFC; and we further
refer the commenters to our discussion on staff training on eligibility
determinations within the miscellaneous comments section of this rule.
We believe the use of CEATs to determine eligibility for PCAFC will
improve standardization in these determinations across VA. We make no
changes based on these comments.
Serious Injury
VA received many comments on its proposed definition of serious
injury, including VA's inclusion of any service-connected disability,
regardless of whether it resulted from an injury, illness, or disease,
and removal of the requirement that the serious injury renders the
eligible veteran in need of personal care services. Most comments on
VA's proposed definition, however, concerned VA's proposed requirement
that the eligible veteran have a singular or combined service-connected
disability rating of 70 percent or more, and suggested other potential
measures for establishing a serious injury. These comments have been
grouped accordingly and addressed in turn.
Many commenters supported VA's expansion of the term ``serious
injury'' to include any service-connected disabilities, including
illnesses and diseases, and we thank them for their comments. One
commenter raised concerns that the definition does not address
illnesses (e.g., cancers, hypertension, hypothyroidism, parkinsonism,
multiple sclerosis, amyotrophic lateral sclerosis (ALS)) that may
prevent a veteran from carrying out ADLs or impede on their safety and
welfare. This commenter urged VA to revise the definition to include
such illnesses. Another commenter requested VA include service-
connected diseases. We believe these commenters misunderstood VA's
proposed definition, and we are not making any changes based on these
comments. As indicated in the proposed rule, this definition will now
include any service-connected disability regardless of whether it
resulted from an injury or disease. Therefore, a veteran or
servicemember with illnesses incurred or aggravated in the line of duty
(e.g., cancers, hypertension, hypothyroidism, parkinsonism, multiple
sclerosis, ALS) may be eligible for PCAFC if he or she has a single or
combined service-connected rating of 70 percent or more and meets the
other applicable PCAFC eligibility criteria, including being 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.
Several commenters opposed the change to the definition to include
illnesses and diseases and asserted that doing so is improper and
unfair. Commenters noted that many of these conditions will not be from
injuries and may have occurred before service, were not in the line of
duty, or may have been due to the veteran's own fault or misconduct.
One commenter stated that only those who suffer true injuries should be
eligible and that those should only be those injuries that were
incurred in the line of duty. VA's proposed rule sets forth VA's
rationale for deviating from the plain meaning of ``injury'' to include
illnesses and diseases. Among other reasons set forth in the proposed
rule, VA explained that this change is necessary to reduce subjective
clinical judgement and improve consistency in PCAFC eligibility
determinations and ensure that eligible veterans who served both before
and after September 11, 2001 have equitable access to PCAFC. While
Congress may have originally intended to focus PCAFC on the signature
disabilities of veterans and servicemembers who served after September
11, 2001, the VA MISSION Act of 2018 expanded this program to veterans
and servicemembers of earlier eras, and the signature disabilities of
earlier conflicts include illnesses and diseases such as diseases
presumed to be the result of herbicide exposure in Vietnam and other
places, and chronic multi-symptom illness experienced by Persian Gulf
veterans. VA believes caregivers of veterans and servicemembers with
illnesses and diseases incurred or aggravated in the line of duty
should benefit from PCAFC in the same manner as caregivers of veterans
with injuries such as TBI or spinal cord injury. Thus, we believe the
definition of serious injury for purposes of PCAFC should be as
inclusive as possible by recognizing any service-connected disability.
Additionally, this change will help to reduce inequities between
veterans and servicemembers from different eras. To the extent
commenters are concerned that a veteran could meet the serious injury
requirement based on a disability not incurred or aggravated in line of
duty or that resulted from the veteran's willful misconduct, we note
that VA's definition of serious injury requires the veteran have a
service-connected disability rated by VA. See 38 CFR 3.1(k) (defining
``[s]ervice-connected'') and 3.301 (addressing line of duty and
misconduct). To the extent commenters opposed including service-
connected
[[Page 46246]]
disabilities in the serious injury definition, we note that having an
injury or disease incurred or aggravated in the line of duty in the
active military, naval, or air service means the injury or disease is
service-connected. See 38 U.S.C. 101(16) and 38 CFR 3.2(k). For
purposes of PCAFC, service-connected disability ratings are the primary
method we use to determine whether an injury was incurred or aggravated
in the line of duty. We are not making any changes based on these
comments.
Several commenters supported the removal of the language that
required a connection between the need for personal care services and
the serious injury and we thank them for their comments. One commenter
disagreed with removing the language that ``couples'' the serious
injury with the need for personal care services, as the ``particular
injury should be the exact reason the [v]eteran requires a caregiver.''
This commenter expressed concern that this change will result in
overburdening the program with false or undeserving cases and would be
contrary to Congressional intent. Similarly, another commenter
expressed concern that decoupling would greatly increase the number of
veterans that will be eligible for this program.
As indicated in the proposed rule, many veterans have complex needs
as a result of multiple medical conditions, and we find this even more
true among older veterans. The complexity of assessing each specific
medical condition and whether it renders the veteran or servicemember
in need of personal care services has resulted in inconsistency in how
``serious injury'' is interpreted. We believe this inconsistency would
be exacerbated as PCAFC expands to the pre-9/11 population. For
example:
[A]n individual may have leg pain due to a service-connected spinal
cord injury but be able to manage his or her symptoms. After a number
of years, the individual is diagnosed with diabetes unrelated to his or
her military service. Over time, the individual develops neuropathy in
his or her lower extremities, which results in the individual being
unable to complete his or her ADLs independently. The onset of
neuropathy could be related to either the spinal cord injury or
diabetes. This example illustrates the difficulty of these clinical
decisions because the determination of whether the onset of neuropathy
is related to the qualifying serious injury or the illness unrelated to
military service would be a subjective clinical determination. 85 FR
13369 (March 6, 2020). Therefore, we believe it is necessary to
decouple serious injury from the need for personal care services. We
also recognize that this ``decoupling'' will expand PCAFC eligibility,
thus increasing participation in PCAFC.
Furthermore, we disagree with the commenter's assertion that this
decoupling would be contrary to Congressional intent as the ``serious
injury'' criterion and ``need for personal care services'' requirement
are separate under 38 U.S.C. 1720G(a)(2)(B) and (C), as VA articulated
in its 2011 Interim Final Rule. 76 FR 26150 (May 5, 2011) (``the
statute does not clearly state that the need for personal care services
must relate to the `serious injury' required under section
1720G(a)(2)(B)''). Rather serious injury was coupled with the need for
personal services through VA's regulations based on VA's interpretation
of the overall purpose and language of the statute as it was originally
enacted. Id. However, as explained above, we no longer believe the
coupling of serious injury and the need for personal care services is
reasonable. This is especially true as we expand to older veterans from
earlier service eras whose clinical needs are even more complex.
Moreover, expanding this definition will not exclude veterans and
servicemembers whose needs for personal care services stem from an
injury incurred or aggravated in the line of duty in the active
military, naval, or air service. We are not making any changes based on
these comments.
VA received numerous comments about its proposed reliance on a
single or combined service-connected disability rating of 70 percent or
more in establishing whether an eligible veteran has a serious injury.
In the discussion that follows, we have grouped comments that opposed
VA's use of a service-connection rating in general or expressed concern
about the different purposes of PCAFC and VA disability compensation,
and those that opposed the use of the 70 percent threshold specifically
or suggested other alternatives.
Several commenters opposed use of a service-connected rating to
determine PCAFC eligibility by asserting that doing so is contrary to
Congressional intent, particularly as the statutory authority does not
require a minimum rating, or contending that a service-connected rating
is not an appropriate consideration for determining whether a veteran
or servicemember requires personal care services from a Family
Caregiver. One commenter requested VA eliminate this requirement
because the statute does not provide VA with authority to curtail
specified eligibility. Two commenters asserted that eligibility was
intended to be based on a clinical determination of a veteran's need,
which is not a rating decision adjudicated by a non-health care
professional at the Veterans Benefits Administration, and this should
not be left to an administrative process entirely separate from VHA.
Relatedly, another commenter stated that VA should not suggest to the
public that the 70 percent rating is an objective ``clinical standard''
associated with an applicant's potential need for personal care
services. Another commenter was similarly concerned about use of a
disability rating since disability compensation is intended to
compensate for loss of ability of veteran to earn income by working
which is different than the intent of PCAFC. Relatedly one commenter
noted that service connection and injury are two separate things and
urged VA to keep the definition as it currently is. Another commenter
noted that the veteran should be looked at ``on the whole'' by a
clinician.
VA acknowledges that 38 U.S.C. 1720G does not set forth a specific
service-connected disability rating as a minimum requirement to
establish PCAFC eligibility, and that imposing one through this
rulemaking is a departure from the position taken by VA in its January
9, 2015 Final Rule. However, VA's proposed definition is a reasonable
interpretation of the statutory requirement that an eligible veteran
has an injury that is serious, particularly in the context of other
changes VA is making to the definition of serious injury.
Heretofore, the only meaning applied to establish whether an injury
was serious was that the injury render the eligible veteran in need of
personal care services. VA's proposed rule explained why it is
necessary to ``decouple'' these requirements as PCAFC expands to
veterans of earlier eras (as discussed above), but doing so removed the
only guidance informing the meaning of whether the eligible veteran's
injury was serious. Therefore, VA must replace the definition with some
standard that distinguishes a ``serious injury'' from an ``injury'' to
give effect to the statutory requirement. Williams v. Taylor, 529 U.S.
362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
In considering how to define ``serious injury'' for purposes of
PCAFC, VA sought to impose a definition that would be easily understood
by veterans and caregivers and consistently applied by VA. A specific
service-connected disability rating threshold serves those purposes. As
noted by one commenter in support of VA's proposed definition,
``disability ratings are a more common
[[Page 46247]]
standard used for eligibility across other VA programs.'' Establishing
an objective baseline for PCAFC eligibility will increase transparency
and assist the program in adjudicating applications efficiently.
VA agrees that the purpose of disability compensation is quite
different than the purpose of providing benefits to Family Caregivers
under PCAFC, and it was not VA's intent to suggest that a single or
combined 70 percent service-connected disability rating establishes or
suggests a need for personal care services from a Family Caregiver. On
the contrary, many veterans with disability ratings of 70 percent or
higher are fully independent and able to function in the absence of
support from a caregiver. Instead, a single or combined service-
connected disability rating of 70 percent or more serves as an
objective standard to determine whether an eligible veteran has a
``serious injury . . . incurred or aggravated in the line of duty in
the active, military, naval, or air service'' and thereby demonstrates
that a veteran's or servicemember's disability or disabilities rise to
the level of serious. Other criteria in part 71 will establish a
veteran's or servicemember's need for personal care services (i.e.,
whether the veteran or servicemember is ``in need of personal care
services . . . based on [a]n inability to perform an activity of daily
living; or . . . [a] need for supervision, protection, or
instruction''). We note that approximately 98 percent of the current
PCAFC population across all three tiers have a 70 percent or higher
service-connected disability rating, and would meet this definition of
serious injury. VA agrees that applicants should be looked at
holistically by clinicians considering PCAFC eligibility, and will work
to ensure that practitioners determining PCAFC eligibility are trained
to understand that ``serious injury'' is only one component of the
PCAFC eligibility criteria. We are not making any changes based on
these comments.
Several commenters expressed concerns about the ability of veterans
and servicemembers without VA disability ratings or with VA disability
ratings less than 70 percent to obtain an expedited review of their
claims and appeals in order to qualify for PCAFC. Several commenters
were particularly concerned about how delays in processing claims and
appeals will impact veterans applying for PCAFC, and how this rating
requirement will impact the processing of claims and appeals,
particularly in light of backlogs and delays in processing such claims
and appeals. One such commenter suggested that without a plan to
expedite claims for individuals applying to PCAFC, VA would be imposing
a roadblock to timely admission into PCAFC, and that bureaucracy and
red tape should never be a barrier to a veteran's ability to receive
needed in-home care. One commenter expressed concern that the proposed
rule did not provide any data or analysis about how the claims and
appeals process will impact the administration of this requirement, and
urged VA to establish an expedited VBA claims and appeals process for
veterans submitting a joint application for PCAFC.
VA agrees with the commenters and acknowledges that this
requirement may result in some delays in adjudicating PCAFC
eligibility; however, we do not believe these concerns outweigh the
advantages of this approach that are outlined above and in VA's
proposed rule. Furthermore, compensation claims processing time has
continued to decrease over the years. Specifically, the average number
of days to process a claim, as of March 2, 2020, was 78.5 days,
compared to 91.8 days on October 1, 2018. We acknowledge that, as of
July 4, 2020, the average number of days to process a claim has
increased to 114.4 days. This increase was due to the COVID-19 national
emergency and the inability to conduct in-person medical exams.
However, we note that in-person medical exams have begun again. In
addition, VA currently prioritizes certain compensation claims from any
claimant who is: Experiencing extreme financial hardship; homeless;
terminally ill; a former prisoner of war; more than 85 years old;
became very seriously ill or injured/seriously ill or injured during
service as determined by the Department of Defense; diagnosed with ALS
or Lou Gehrig's Disease; or in receipt of a Purple Heart or Medal of
Honor. In addition, VA has modernized its appeals process since
February 19, 2019 to create different claims lanes (higher level
reviews, supplemental claims, and appeals to the Board of Veterans'
Appeals) that help ensure that claimants receive a timely decision on
review when they disagree with a VA claims adjudication. We note that
VA currently does not provide priority processing of disability
compensation benefits for aid and attendance and other ancillary
benefits such as a housebound benefit. As to whether claims can be
expedited for PCAFC program applicants, VA does not have an already
available method for collecting data on veterans to know whether or not
they are also applying for PCAFC. Therefore, VA cannot currently
prioritize disability compensation claims for PCAFC claimants, as doing
so would be administratively challenging.
We also note that VA offers a menu of supports and services that
supports veterans and their caregivers that may be available PCAFC
applicants who are awaiting a VA disability rating decision. Such
services include PGCSS, homemaker and home health aides, home based
primary care, veteran directed care, and adult day care health care to
name a few. We appreciate the commenters' concerns; however, we are not
making any changes based on these comments.
One commenter expressed concern that many veterans from earlier
eras of military service were not treated right by this country and the
government, so they have not had interactions with VA and do not have a
VA disability rating. We agree that veterans from earlier eras of
military service have encountered challenging experiences with our
government and VA. We believe expansion of PCAFC to eligible veterans
who served before September 11, 2001 is one step to help remedy the
challenges veterans from those eras have faced. Other changes to the
definition of serious injury were designed to ensure PCAFC is inclusive
of veterans from all eras by including all service-connected
disabilities, regardless of whether they resulted from an injury,
illness or disease, and removing the link between the serious injury
and the individual's need for personal care services. We encourage
veterans who do not yet have an existing relationship with VA to
contact VA, through www.va.gov, your local VA location using the Find a
VA Location on www.va.gov, or 844-698-2311, to find out about the
services and benefits that may be available to them, including VA
disability compensation, pension, and health care benefits. This is
especially important for veterans and servicemembers seeking to qualify
for PCAFC because in addition to requiring that an eligible veteran
have a single or combined service-connected disability rating of 70
percent or more, the PCAFC eligibility criteria under Sec. 71.20 also
require the eligible veteran to receive ongoing care from a primary
care team, which includes a VA primary care provider, or to do so if VA
approves and designates a Family Caregiver. Thus, veterans and
servicemembers would need to establish a relationship with VA (by
obtaining a service-connected disability rating and receiving ongoing
care from a primary care team) to qualify for PCAFC. We appreciate the
commenter's concern; however, we are
[[Page 46248]]
not making any changes based on this comment.
Other commenters raised concerns about use of the 70 percent
service-connected disability threshold specifically, as being either
too high or too low, or suggested alternative bases for establishing
whether an eligible veteran has a serious injury.
Numerous commenters were concerned that using a singular or
combined service-connected disability rating of 70 percent was too high
and arbitrary, and those with lower ratings may need assistance.
Several commenters suggested VA lower the minimum rating requirement to
50 percent for consistency with the requirements for priority group one
eligibility for purposes of enrollment in VA health care. One commenter
asserted that Congress believed these veterans were of highest concern
by assigning them to priority group one, and utilizing a threshold of
50 percent or more would allow more veterans with sustained serious
service-connected disabilities to have access to PCAFC. A few
commenters suggested revising the criterion to include any disabled
veteran with a 50 percent or more service-connected disability rating
that served prior to 1975. Relatedly, one commenter suggested using a
rating of 60 percent based on the commenter's belief that this is the
threshold for qualifying for no cost VA medical care and VA disability
pension.
Other commenters asserted that using a 70 percent rating would
expand the program beyond what Congress intended. Likewise, another
commenter noted that a 70 percent rating is not difficult to achieve,
and the need for a caregiver is not hard to prove, as these are
normally granted because they are subjective.
In determining how to revise the definition of serious injury, VA
considered other service-connected disability rating levels to
establish whether an eligible veteran has a serious injury, but found a
single or combined rating of 70 percent or more to be the best
approach, as approximately 98 percent of current participants meet this
requirement. Similarly, we note that one commenter that represents a
veterans service organization conducted a survey of their ``warriors''
(i.e., veteran members) and concluded that ``over 96 percent--2,333 out
of 2,410 applicable warriors--of survey respondents enrolled in the
PCAFC reported a service-connected disability rating of 70 percent or
higher.''
We believe that a single or combined rating of 70 percent or more
would demonstrate that a veteran's or servicemember's injuries rise to
the level of serious, at least for purposes of establishing eligibility
for PCAFC. While we understand that lower ratings are used to determine
eligibility for various other VA services (i.e., Priority Group 1
eligibility for VA health care), we reiterate that PCAFC is one of many
services offered to veterans and servicemembers, as applicable, that
are complementary but are not required to be identical in terms of
eligibility requirements. VA considered applying a minimum service-
connection rating lower than 70 percent, such as 50 percent or 60
percent, but determined, based on reviewing the rating criteria in 38
CFR part 4, that not every 50 or 60 percent rating may be indicative of
a serious injury. Additionally, for the reasons set forth in the
proposed rule and this final rule, we believe the threshold of 70
percent is a reasonable and appropriate interpretation of the ``serious
injury'' requirement in 38 U.S.C. 1720G(a)(2)(B). Moreover,
[a]s the Supreme Court has noted, ``[t]he `task of classifying
persons for . . . benefits . . . inevitably requires that some
persons who have an almost equally strong claim to favored treatment
be placed on different sides of the line.''' United States R.R.
Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980) (quoting Mathews
v. Diaz, 426 U.S. 67, 83-84 (1976)). Provided there is a legitimate
basis for the general classification established by Congress or the
agency, it is not arbitrary or capricious simply because it may be
overinclusive or underinclusive on some applications. See Weinberger
v. Salfi, 422 U.S. 749, 776 (1975) (``[g]eneral rules are essential
if a fund of this magnitude is to be administered with a modicum of
efficiency, even though such rules inevitably produce seemingly
arbitrary consequences in some individual cases'').
Brief for Respondent-Appellant at 15-16, Haas v. Peake, 525 F.3d 1168
(2008) (No. 2007-7037), 2007 U.S. Fed. Cir. Briefs LEXIS 1048, at 21-
22.
VA also considered applying a minimum service-connected rating
higher than 70 percent, such as 100 percent, but determined that would
be too narrow and restrictive. For instance, a 70 percent rating for
PTSD would require: Occupational and social impairment, with
deficiencies in most areas, such as work, school, family relations,
judgment, thinking, or mood, due to such symptoms as: Suicidal
ideation; obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to function
independently, appropriately and effectively; impaired impulse control
(such as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene; difficulty
in adapting to stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective relationships.
38 CFR 4.130 DC 9411. We believe that veterans who have symptomology
that manifest to that level should not be denied admittance to the
program on the basis that their injury or disease would not be
considered ``serious,'' which would result if we used a service-
connected disability rating higher than 70 percent. Furthermore,
applying a 100 percent rating would result in approximately 40 percent
of the current participants no longer being eligible because they would
not meet that higher threshold.
VA elected not to apply different criteria to veterans and
servicemembers depending on the date their serious injury was incurred
or aggravated in the line of duty because this would be inequitable and
would lead to treating eligible veterans differently based on their era
of service. We are not making any changes based on these comments.
Another commenter noted that 70 percent is the rating required for
nursing home care, but asserted that Congress considered and rejected
limiting PCAFC to only those who would otherwise require nursing home
care. We would like to clarify that although having a single or
combined service-connection rating of 70 percent or more is one basis
upon which eligibility can be established for VA nursing home care
under 38 U.S.C. 1710A, we are not suggesting that the eligibility
criteria for PCAFC and nursing home care are identical. As we noted in
the proposed rule, there may be instances when nursing home care would
be more appropriate for a veteran or servicemember than PCAFC. 85 FR
13369 (March 6, 2020). We are requiring a 70 percent or more service-
connected disability rating because of the reasons stated in the
proposed rule and additionally outlined above and note that it is the
minimum threshold that must be met for PCAFC eligibility. As explained
in the proposed rule and reiterated in this final rule, additional
criteria must also be met before an individual is determined to be
eligible for PCAFC. We are not making any changes based on this
comment.
Several commenters raised concerns about potential abuse of the
program by individuals who may not really need it but qualify,
nonetheless. Similarly, one commenter asserted that the amount of
service connection should not be considered because there are veterans
with 100 percent service-connection ratings but do not need a
caregiver. A
[[Page 46249]]
separate commenter who asserted that a 70 percent rating is not
difficult to achieve, also indicated that the need for a caregiver is
not hard to prove, and because eligibility determinations are
subjective, benefits are normally granted. However, this commenter also
raised concerns about how staff may review these determinations later
and decide to remove participants from PCAFC.
First, we note that many of the changes we are making in this final
rule are aimed at improving standardization and reducing subjectivity
in PCAFC eligibility determinations. We agree that an eligible
veteran's service-connection rating does not establish a need for
personal care services from a Family Caregiver, and it was not VA's
intent to suggest that it does. As indicated above, a single or
combined 70 percent or more service-connected rating is just one
component of the PCAFC eligibility determination. Separate eligibility
criteria in Sec. 71.20 would establish whether a veteran or
servicemember is in need of personal care services (based on an
inability to perform an activity of daily living or a need for
supervision, protection, or instruction) and whether participation in
PCAFC is in the veteran's or servicemember's best interest, among other
criteria. Therefore, a veteran or servicemember would not be eligible
for PCAFC solely for having a service-connected disability rating.
Instead, the definition of serious injury will provide a transparent
and objective standard for determining whether a veteran's or
servicemember's injury is serious. Also, as indicated in the proposed
rule, any changes to a veteran's or servicemember's service-connected
rating that results in a rating less than 70 percent for a single or
combined service-connected disability will result in the veteran or
servicemember no longer being eligible for PCAFC. In such instance, the
veteran or servicemember would be discharged in accordance with Sec.
71.45(b)(1)(i)(A) for no longer meeting the requirements of Sec. 71.20
because of improvement in the eligible veteran's condition or otherwise
(e.g., no longer meeting the definition of serious injury). To the
extent that commenters raised concerns about how staff may review these
determinations later and decide to remove participants from PCAFC, we
note that we will provide training to VA staff who are making
eligibility determinations to ensure that the same criteria that are
used to determine eligibility at the time of application are the same
as those used during reassessments. We are not making any changes based
on these comments.
One commenter was concerned about how VA would fund this program as
a result of using this criterion, suggesting there must be millions of
veterans with a 70 percent service-connected rating, and believed this
funding could be better spent elsewhere (e.g., on aging families
affected by the COVID-19 national emergency). This same commenter was
concerned that this criterion is excessive and would create dependency
on VA. Thus, this commenter suggested limiting this program to 12
months per one's lifetime or conditioning PCAFC participation on the
veteran subsequently participating in one of the other VA in-home care
programs.
We thank the commenter for their concerns and refer them to the
regulatory impact analysis accompanying this rulemaking for a detailed
analysis of the estimated costs for this program. As noted previously,
the serious injury requirement is only one criterion that must be met
under Sec. 71.20 for a veteran or servicemember to qualify for PCAFC.
To the extent that this commenter is concerned that the criteria set
forth in Sec. 71.20 are too broad, we disagree. VA has tailored the
eligibility criteria to target veterans and servicemembers with
moderate and severe needs through new definitions for the terms ``in
need of personal care services,'' ``inability to perform an activity of
daily living,'' and ``need for supervision, protection, or
instruction,'' in particular. PCAFC is a clinical program that
addresses the unique needs of each eligible veteran and his or her
caregiver which may change over time. Also, the potential for
rehabilitation or independence among PCAFC eligible veterans will
likely decrease as the program expands to veterans and servicemembers
from earlier eras of military service who have more progressive illness
and injuries, such as dementia or Parkinson's disease. Therefore, we do
not believe limiting this program to a specific time period or
mandating the use of other VA in-home care programs is appropriate.
Furthermore, PCAFC is one of many in-home services that are
complementary but not necessarily exclusive to one another. As a
result, an eligible veteran and his or her caregiver may also
participate in other home-based VA programs, such as home based primary
care, respite care, and adult day health care, as applicable.
To the extent that this commenter is concerned that the criteria
will create dependency, we note that we proposed, and make final, Sec.
71.30 which establishes the requirement for reassessments of eligible
veterans and Family Caregivers to determine their continued eligibility
for participation in PCAFC under part 71. The reassessment includes
consideration of the PCAFC eligibility criteria, including whether
PCAFC participation is in the best interest of the veteran or
servicemember. As proposed and explained previously in this rulemaking,
``in the best interest'' is a clinical determination that includes
consideration of whether PCAFC participation supports the veteran's or
servicemember's potential progress in rehabilitation, if such potential
exists, and increases the veteran's or servicemember's potential
independence, if such potential exists, among other factors. We believe
that this reassessment process, which will occur annually (unless a
determination is made and documented by VA that more of less frequent
reassessment is appropriate), will reduce the risk of dependency in
instances where the eligible veteran may have the potential for
improvement. We are not making any changes based on this comment.
One commenter was supportive of including consideration of any
service-connected disability and VA no longer requiring a connection
between the need for personal care services and the qualifying serious
injury, but recommended VA consider including in the definition of
serious injury service-connected veterans in receipt of individual
unemployability (IU), which the commenter described as a benefit
reserved for veterans whose service-connected condition(s) is so severe
as to render them unable to obtain and maintain ``substantially
gainful'' employment. Section 4.16(a) of 38 CFR, establishes the
requirements for IU (referred therein as schedular IU), which includes
that the veteran have at least one service-connected disability rated
at least 60 percent disabling, or have 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. According to the commenter,
``[t]here are numerous disabilities warranting IU that would require a
[F]amily [C]aregiver to provide personal services to maintain the
veteran's independence in his or her community.'' IU allows VA to pay
certain veterans compensation at the 100 percent rate, even though VA
has not rated his or her service-connected disabilities at that level.
To qualify, a veteran must, in addition to meeting the service-
connection rating requirements identified by the commenter, be unable
[[Page 46250]]
to secure or follow a substantially gainful occupation as a result of
service-connected disabilities. We note that veterans who are
unemployable by reason of service-connected disabilities but who fail
to meet the requirements of Sec. 4.16(a), may still qualify for IU
based on additional consideration under Sec. 4.16(b). Simply put, a
veteran can be in receipt of an IU rating irrespective of a specific
service-connected rating.
We do not find it appropriate to use IU as a substitute for the
single or combined 70 percent rating as not all veterans and
servicemembers applying for or participating in PCAFC will have been
evaluated by VA for such ratings, and if VA were to create an exception
to the ``serious injury'' requirement for individuals with an IU
rating, VA would also need to consider whether other exceptions (based
on disability rating criteria or otherwise) should also satisfy the
``serious injury'' requirement. In addition, IU has proven to be a very
difficult concept to apply consistently in the context of disability
compensation and has been the source of considerable dissatisfaction
with VA adjudications and of litigation. Consequently, we choose not to
import this rather subjective standard and its potential for
inconsistency into the PCAFC program. As stated above, we believe the
requirement that a veteran or servicemember have a single or combined
service-connected disability rating of 70 percent or more is a
reasonable and appropriate interpretation of the ``serious injury''
requirement in 38 U.S.C. 1720G(a)(2)(B). See Brief for Respondent-
Appellant at 15-16, Haas, 525 F.3d 1168 (2008) (No. 2007-7037) (citing
Fritz, 449 U.S. at 179 (concerning regulatory line drawing);
Weinberger, 422 U.S. at 776).
One commenter recommended that VA add specific injuries and
disabilities to the list of requirements for PCAFC which is similarly
done for Special Home Adaptation (SHA) or Specially Adapted Housing
(SAH) grants (e.g., loss or loss of use of more than one limb,
blindness, severe burns, loss or loss of use of certain extremities).
The commenter further opined that a clear requirement could be that a
veteran have a Purple Heart, an award of combat related special
compensation, concurrent retirement and disability pay, a medical
retirement/discharge, be a TSGLI recipient, or have a line of duty
investigation for the injury. Relatedly, one commenter requested VA tie
eligibility to award of the Purple Heart, as there are other programs
available to veterans. As previously explained, having a serious injury
is only one component of the PCAFC eligibility criteria, and the
serious injury will no longer be tied to the veteran's or
servicemember's need for personal care services. Therefore, we
respectfully decline to include a specific list of injuries,
disabilities, awards, or compensations that may suggest a need of
personal care services. Moreover, because VA is expanding the
definition of serious injury to include any singular or combined
service-connected disability rated 70 percent or higher, regardless of
whether it resulted from an injury, illness, or disease, it is not
necessary to provide examples of potentially qualifying conditions.
Doing so could cause unnecessary confusion by suggesting that listed
conditions are somehow more applicable. Additionally, we believe
limiting PCAFC eligibility to recipients of the Military Order of the
Purple Heart would be too restrictive as it is associated only with
combat injuries, such awards have historically discriminated against
minorities and women, and recordkeeping on these awards has been
inconsistent. Further, as indicated in the proposed rule, we considered
the TSGLI definition of ``traumatic injury'' in defining serious
injury; however, we determined it would be too restrictive and result
in additional inequities, and noted the inherit differences between the
two programs--TSGLI is modeled after Accidental Death and Dismemberment
insurance coverage, whereas PCAFC is a clinical benefit program
designed to provide assistance to Family Caregivers that provide
personal care services to eligible veterans. We are not making any
changes based on these comments.
One commenter recommended VA consider defining serious injury
consistent with the definition of serious injury or illness contained
in 29 CFR 825.127(c). We note this commenter is referring to the
Department of Labor's (DOL) regulations for the Family and Medical
Leave Act (FMLA). This definition is defined, in part, to mean: a
physical or mental condition for which the covered veteran has received
a U.S. Department of Veterans Affairs Service-Related Disability Rating
(VASRD) of 50 percent or greater, and such VASRD rating is based, in
whole or in part, on the condition precipitating the need for military
caregiver leave; or a physical or mental condition that substantially
impairs the covered veteran's ability to secure or follow a
substantially gainful occupation by reason of a disability or
disabilities related to military service, or would do so absent
treatment; or an injury, including a psychological injury, on the basis
of which the covered veteran has been enrolled in PCAFC.
FMLA entitles eligible employees of covered employers to take
unpaid, job-protected leave for specified family and medical reasons
with continuation of group health insurance coverage under the same
terms and conditions as if the employee had not taken leave. The
section and definition referenced by this commenter relate specifically
to when a military caregiver may use FMLA leave to care for a covered
servicemember with a serious injury or illness. We note that FMLA is
entirely different from PCAFC as FMLA protects workers when they need
to take leave to care for certain family and medical reasons, while
PCAFC is a clinical program that provides benefits to Family
Caregivers. While DOL's definition of serious injury or illness
includes veterans participating in PCAFC, we do not believe that
requires us to adopt DOL's definition for purposes of defining serious
injury in PCAFC. We note that the authorizing statutes (i.e., 38 U.S.C.
1720G and 29 U.S.C. 2611) vary in how they define serious injury and
serious injury or illness, respectively. We make no changes based on
this comment.
One commenter recommended that in order to remain consistent with
the definition of serious injury, VA must improve its education and
communication about two of the most common conditions affecting
veterans, specifically mild traumatic brain injury (mTBI or concussion)
and PTSD. This commenter noted that a service-connected rating for a
mTBI will not automatically confer a need for supervision, and that
PTSD symptoms can be managed and even resolved completely; and
explained that family care is a complement to, not a substitute for
professional treatment and expertise. The commenter asserted that while
a spouse can help a veteran work toward his or her mental health goals,
and may be involved in treatment planning, relying on a spouse to
manage a veteran's mental health symptoms is clinically inappropriate
and cannot be the basis for acceptance into PCAFC.
First, we would like to clarify that participation in PCAFC is not
meant to replace medical or mental health treatment and agree with the
commenter that a Family Caregiver is not expected to provide such
treatment, but rather required personal care services, for mTBI or
PTSD. Further, part of the eligibility criteria for the program require
the eligible veteran to receive ongoing care from a primary care team,
which will help ensure the eligible veteran is engaged in appropriate
care based on his or her clinical needs.
[[Page 46251]]
Second, as discussed above, the veteran's or servicemember's serious
injury does not need to be related to his or her need of personal care
services, which is separately considered (i.e., whether the veteran or
servicemember is ``in need of personal care services for a minimum of
six continuous months based on . . . [a]n inability to perform an
activity of daily living; or . . . [a] need for supervision,
protection, or instruction''). Finally, we agree with the commenter
that education and training is important for staff, eligible veterans
and their Family Caregivers, and we note that we currently provide such
training on many conditions, such as TBI, PTSD, and dementia. We will
continue to provide a robust training plan for staff and PCAFC
participants. Specifically, we will ensure that training on conditions,
such as TBI, PTSD, and dementia will continue to be provided. We make
no changes based on this comment.
Unable To Self-Sustain in the Community
Several commenters expressed confusion and concern about this
definition and how it will be used to determine whether a Primary
Family Caregiver will receive the lower- or higher-level stipend. We
note that this definition will only be used in the context of Sec.
71.40(c), Primary Family Caregiver benefits, and refer to the
discussion of that section below regarding unable to self-sustain in
the community.
Sec. 71.20 Eligible veterans and servicemembers
Two-Phase Eligibility Expansion
Multiple commenters disagreed with the phased eligibility
expansion. They also opined that this phased eligibility expansion
discriminated against pre-9/11 veterans, that pre-9/11 veterans should
not be treated differently than post-9/11 veterans, that veterans from
all eras require assistance from caregivers, and that PCAFC expansion
for all pre-9/11 veterans should not be delayed and should be immediate
to veterans from all eras. Many commenters expressed that they felt
that veterans who served between May 8, 1975 and September 10, 2001
should not have to wait another two years to be part of the PCAFC
expansion. One commenter asked if there was any way the two-year time
frame for this group of veterans could be changed to a year or less.
Also, commenters expressed that they would like to see veterans with a
terminal illness or 100 percent disability rating be eligible for PCAFC
immediately, irrespective of their service date, while another
commenter suggested that immediate eligibility for PCAFC should be
viewed on a case-by-case basis instead of service dates.
In response to the above comments, the initial eligibility
distinction between pre- and post-9/11 veterans and servicemembers in
the current program was mandated by Congress by the Caregivers Act, as
established by 38 U.S.C. 1720G. Furthermore, as previously stated, the
VA MISSION Act of 2018 further modified section 1720G by expanding
eligibility for PCAFC to Family Caregivers of eligible veterans who
incurred or aggravated a serious injury in the line of duty before
September 11, 2001. However, Congress mandated that this expansion
occur in two phases. The first phase of expansion will include eligible
veterans who have a serious injury (including traumatic brain injury,
psychological trauma, or other mental disorder) incurred or aggravated
in the line of duty in the active military, naval, or air service on or
before May 7, 1975, and will begin on the date the Secretary submits a
certification to Congress that VA has fully implemented a required IT
system that fully supports PCAFC and allows for data assessment and
comprehensive monitoring of PCAFC. The second phase will occur two
years after the date the Secretary submits certification to Congress
that VA has fully implemented the required IT system, and will expand
PCAFC to all eligible veterans who have a serious injury (including
traumatic brain injury, psychological trauma, or other mental disorder)
incurred or aggravated in the line of duty in the active military,
naval, or air service, regardless of the period of service in which the
serious injury was incurred or aggravated in the line of duty in the
active military, naval, or air service. Therefore, we lack authority to
eliminate the two-phase eligibility expansion and make the changes
suggested by these comments. See 38 U.S.C 1720G(a)(2)(B).
Multiple commenters also expressed confusion as to when Vietnam
veterans would be eligible for PCAFC and asked for clarification. Other
commenters expressed confusion about when other pre-9/11 era veterans
would be eligible for PCAFC and asked for clarification. One commenter
asked if VA will use ``the same standard as the [Veterans Benefits
Administration (VBA)] of having to serve at least one day during the
time period.'' While the commenter did not provide any further detail
as to this standard, we note that in the VBA context, similar language
is found in various parts of VA's Adjudication Procedures Manual, M21-
1, to include parts regarding eligibility determinations for pension,
consideration of presumptive service-connection based on active duty
for training and inactive duty for training, and jurisdiction of Camp
Lejeune claims.
As previously explained, the authorizing statute, 38 U.S.C. 1720G,
as amended by section 161 of the VA MISSION Act of 2018, bases
eligibility for PCAFC, in part, on the date the serious injury was
incurred or aggravated in the line of duty in the active military,
naval, or air service. 38 U.S.C. 1720G(a)(2)(B). In this regard,
eligibility is not based only on the dates of active military, naval,
or air service. Instead, it is focused on when the veteran or
servicemember incurred or aggravated a serious injury in the line of
duty while in the active military, naval, or air service. Currently,
only those whose serious injury was incurred or aggravated in the line
of duty in the active military, naval or air service on or after
September 11, 2001, are eligible for PCAFC. 38 U.S.C.
1720G(a)(2)(B)(i). In the first phase of expansion (that will begin on
the date the Secretary submits to Congress certification that VA has
fully implemented the required IT system), those veterans and
servicemembers will continue to be eligible for PCAFC, and
additionally, those veterans and servicemembers who incurred or
aggravated a serious injury in the line of duty in the active military,
naval or air service on or before May 7, 1975 will also become eligible
(subject to the other applicable eligibility criteria). 38 U.S.C.
1720G(a)(2)(B)(ii). Two years after the date the Secretary submits to
Congress certification that VA has fully implemented the required IT
system, all veterans and servicemembers, that otherwise meet
eligibility criteria, including those who have a serious injury
incurred or aggravated in the line of duty in the active military,
naval, or air service after May 7, 1975 but before September 11, 2001,
will be eligible for PCAFC (i.e., May 8, 1975 to September 10, 2001).
See 38 U.S.C. 1720G(a)(2)(B)(iii). We also note that because
eligibility under 38 U.S.C. 1720G(a)(2)(B) is based on the date the
serious injury was incurred or aggravated, and not merely on the dates
of a veteran's or servicemember's service, we would not, nor would
there be a need, to apply language that the veteran or servicemember
serve ``at least one day'' during the time periods outlined above for
eligibility for the first phase of the PCAFC expansion. We
[[Page 46252]]
make no changes based on these comments.
Multiple commenters asked how VA will determine eligibility for
veterans with service dates that overlap the time periods set forth in
38 U.S.C. 1720G(a)(2)(B)(i)-(iii), and specifically, those who served
both before and after May 7, 1975; and commenters asked how VA will
determine eligibility for veterans who have presumptions of service-
connection for conditions that are not diagnosed until years after
their service. Commenters provided specific scenarios and asked under
which phase of expansion veterans would qualify for PCAFC. One
commenter asked if a veteran with a 100 percent service rating who
served from 1974 to 1994 could be eligible for PCAFC in the first phase
of expansion or in the second phase of expansion. Another commenter
asked which phase of expansion would apply for a veteran with active
military service from 1972 to 1992, who has a combined rating from
several service-connected disabilities of 70 percent or greater with
one disability at 30 percent due to service in Vietnam and the other
disabilities incurred in active service during the Lebanon conflict and
the Persian Gulf War. Another commenter asked which phase of expansion
would apply for a veteran who served from prior to May 7, 1975, until
April 30, 1980, developed ALS and was awarded presumptive service
connection for ALS last year. A different commenter asked whether a
veteran would be included under phase one of expansion if the veteran
served in Vietnam prior to May 7, 1975, was exposed to Agent Orange,
left the military in August 1975, was diagnosed with ALS several years
later, is service-connected at 100 percent, and meets all additional
eligibility criteria.
As previously explained in this section, the authorizing statute,
38 U.S.C. 1720G, as amended by section 161 of the VA MISSION Act of
2018, bases eligibility for PCAFC, in part, on the date the serious
injury was incurred or aggravated in the line of duty in the active
military, naval, or air service. Thus, while there may be veterans and
servicemembers who have service dates that cover more than one of the
time periods set forth in 38 U.S.C. 1720G(a)(2)(B)(i)-(iii), their
eligibility under section 1720G(a)(2)(B) is dependent on the date the
serious injury was incurred or aggravated. In this rulemaking, the term
``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 means a veteran with a
service-connected disability incurred or aggravated in the line of duty
before May 7, 1975, would qualify for the first phase of expansion so
long as the veteran's service-connected disability is rated at 70
percent or more by VA or is combined with any other service-connected
disability or disabilities, and a combined rating of 70 percent or more
is assigned by VA, and the veteran meets all the other PCAFC
eligibility criteria. If a veteran has a serious injury, as defined in
this rulemaking, that was incurred or aggravated after May 7, 1975, but
before September 11, 2001, and meets all other eligibility criteria for
PCAFC, then he or she would be eligible for PCAFC in the second phase
of expansion.
Additionally, there may be instances in which a veteran's or
servicemember's condition is not diagnosed until years after they
served and years after the condition was actually incurred or
aggravated, such that it may be difficult to identify when the serious
injury was incurred or aggravated. We note that there may be a lack of
documentation identifying the date on which an applicant's serious
injury was incurred or aggravated. For example, a veteran may have
served before and after May 7, 1975, and been diagnosed with ALS
several years after the veteran was discharged from active military,
naval, or air service. If that veteran has received a presumption of
service-connection for ALS, but the rating decision does not specify
the dates of service to which the ALS is attributable, VA would
determine on a case-by-case basis whether the veteran could qualify for
PCAFC under the first or second phase of expansion. The dates of
service, along with other documentation such as rating decisions,
service treatment records, VBA claims files, and review of medical
records will help inform VA of when the serious injury was incurred or
aggravated. It is important to note that such issues regarding the date
the serious injury was incurred or aggravated will arise only during
the first phase of expansion, only when the veteran has dates of
service before and after May 7, 1975, and only in instances in which
the date of the serious injury is not documented. We make no changes
based on these comments.
Implementation Delay
Commenters asked why it is taking so long to get the eligibility
expansion started, to include implementation of an IT system, and
expressed dissatisfaction that the expansion was not being implemented
now or in a more timely manner. Commenters urged that the expansion be
sped up, especially before most pre-9/11 veterans pass away. Multiple
commenters asserted that VA has missed its statutory deadline to
expand. In this regard, commenters explained that the VA MISSION Act of
2018 required VA to certify implementation of the required IT system no
later than October 1, 2019, and as such, VA was required to implement
phase one by October 1, 2019 and phase two by October 1, 2021.
Accordingly, one commenter requested VA implement phase one no later
than September 2020. Another commenter asked VA to clarify why an
additional two years is needed for evaluating phase two applicants and
recommended that VA commit to a shorter timeline for phase two
expansion. Other commenters asserted that VA must implement phase two
by October 1, 2021, to be consistent with Congressional intent.
Furthermore, one commenter specifically asked, given the delays to the
IT system, that VA publish monthly updates on the progress towards
implementation of the required IT system and on the progress towards
publishing a final rule.
We acknowledge that the full implementation of the new IT system
has been delayed. This is due to VA's pivot from developing a home
grown IT system to configuration of a commercial platform (Salesforce)
which, among other things, has required migration of data from the
legacy web-based application to the new Salesforce platform,
development of new functionality to automate monthly stipend
calculations, as well as integration with other VA systems. However, as
required by law, the phases of expansion are explicitly tied to the
date VA submits to Congress a certification that the Department has
fully implemented the required IT system, and VA has not yet submitted
to Congress that certification. The phases of expansion are not tied to
the October 1, 2019 due date for such certification in section
162(d)(3)(A) of the VA MISSION Act of 2018. See 38 U.S.C.
1720G(a)(2)(B). Accordingly, the first phase of expansion will begin
when VA submits to Congress certification that it has fully implemented
the required IT system, and the second phase will begin two years after
the date VA submits that certification to Congress. Therefore, we are
unable to expand immediately or expedite the second phase of expansion
once VA submits its certification to Congress.
Further, we will not provide the requested monthly updates on the
progress towards implementation of the
[[Page 46253]]
required IT system and on the progress of the final rule, as these are
actions we typically do not take, and it would divert our energy and
resources in making progress towards fully implementing the required IT
system and the final rule. We note that we will provide the public with
notification upon certification of the required IT system and the
publication of the final rule. We make no changes based on these
comments.
Legacy Participants
VA received multiple comments concerning eligibility for legacy
participants, as that term will be defined in Sec. 71.15. We will
address the comments below.
One commenter inquired into the reasons VA was providing a
transition period for legacy participants who the commenter believes
will not be reassessed for a year and will receive an additional five
months to transition out of PCAFC even though they may no longer be
eligible for PCAFC. The commenter suggested this is a misuse of
taxpayer dollars and recommended current PCAFC participants be
reassessed immediately to determine their continued eligibility, and if
found ineligible, only be allowed two to three months to transition out
of PCAFC.
We believe the transition period set forth in the proposed rule for
legacy participants and legacy applicants who do not meet the
requirements of Sec. 71.20(a), and their Family Caregivers is a fair
and reasonable amount of time. To clarify, VA will not wait one year
after the effective date of the rule to evaluate the eligibility of
legacy participants and legacy applicants. VA will begin the
reassessments of such individuals when this final rule becomes
effective, but VA estimates that it will need a full year to ensure all
such reassessments are completed. The one-year period beginning on the
effective date of the rule (set forth in Sec. 71.20(b) and (c)) will
allow VA to conduct reassessments of legacy participants and legacy
applicants, while also adjudicating an influx of applications as a
result of the first phase of expansion. VA would allow legacy
participants and legacy applicants to remain in the program for a full
year after the effective date of the final rule so that they all have
the same transition period, regardless of when during the one-year
transition period the reassessment is completed. As VA cannot assess
all legacy participants at the same time, this ensures equitable
treatment for everyone.
As to the commenter's suggestion that there only be a two- or
three-month transition compared to the five-month transition, we
believe that the transition period proposed by VA is appropriate and
not a misuse of taxpayer dollars. The five-month period referenced by
the commenter consists of a 60-day advanced notice followed by a 90-day
extension of benefits for discharge based on the legacy participant or
legacy applicant no longer qualifying for PCAFC as set forth in Sec.
71.45(b)(1). The 60-day advanced notice requirement provides an
opportunity for PCAFC participants to contest VA's findings before a
stipend decrease takes effect, and in certain instances of revocation
or discharge which we believe would benefit both VA and eligible
veterans and Family Caregivers. 85 FR 13394 (March 6, 2020). The 90-day
extension of benefits pursuant to Sec. 71.45(b)(1)(iii) would permit
the eligible veteran and his or her Family Caregiver a reasonable
adjustment time to adapt and plan for discharge from PCAFC. Further,
while continuing benefits for 90 days after discharge is not
contemplated under the authorizing statute, we believe it is an
appropriate and compassionate way to interpret and enforce our
authorizing statute. See 85 FR 13399 (March 6, 2020).
VA believes that the transition period is both fair and reasonable
and also an appropriate use of taxpayer dollars. As indicated in the
proposed rule, the Primary Family Caregivers of legacy participants, in
particular, may have come to rely on the benefits of PCAFC, to include
the monthly stipend payments based on the combined rate authorized
under current Sec. 71.40(c)(4). Our proposed transition period would
allow time for VA to communicate potential changes to affected
individuals and assist them in preparing for any potential discharge
from PCAFC or reduction in their stipend payment before such changes
take effect. We are not making any changes based on this comment.
Several commenters suggested VA ``grandfather'' in current PCAFC
participants, such that they not be subject to the new requirements in
Sec. 71.20(a). Two commenters suggested that the new criteria in Sec.
71.20(a) should only apply to new applicants and VA establish a
separate program for these individuals. Relatedly, one commenter
suggested that if current participants are only subjected to existing
criteria, the proposed sections on legacy participants will not be
needed. Another commenter stated that VA should retain the current
standard for legacy participants and use the new standard for new
applicants. This commenter noted that this would be permissible under
law and would protect the interest of severely disabled veterans and
their Family Caregivers that are current PCAFC participants. Similarly,
many commenters expressed concern about the negative impact of losing
the PCAFC benefits that they have come to rely on. Additionally, other
commenters suggested that legacy participants should not be reassessed.
In particular, two commenters referred to the often-long-term nature of
veterans' disabilities, including veterans whose clinical conditions
are not expected to improve over time. Another commenter suggested that
instead of reassessments, VA should review the initial application of
current PCAFC participants to determine if the participants meet the
new criteria, especially given the challenges of seeking medical care
during the COVID-19 national emergency.
As indicated in the proposed rule, we are shifting the focus of
PCAFC to eligible veterans with moderate and severe needs and making
other changes that will allow PCAFC to better address the needs of
veterans of all eras and improve and standardize the program. However,
we are mindful of the potential impact these changes may have on legacy
participants and legacy applicants, as those terms are defined in Sec.
71.15, and appreciate the commenters recommendations. Specifically, we
considered whether VA could continue applying the current criteria to
legacy participants and legacy applicants, and apply the new criteria
in Sec. 71.20(a) only to new applicants, but decided against it. Doing
so would require VA to run two separate PCAFC programs, which would be
administratively prohibitive; would lead to confusion among veterans,
caregivers, and staff; and would result in inequities between similarly
situated veterans and caregivers. Instead, VA proposes to reassess
legacy participants and legacy applicants under the new eligibility
criteria in Sec. 71.20(a) within the one-year period following the
effective date of this final rule. As explained above, VA is providing
a transition period that consists of one year for VA to complete
reassessments, followed by a period of 60-day advanced notice, and 90-
day extension of benefits. The purpose of this transition period is to
reduce any negative impact these changes may have on current PCAFC
participants. To the extent the commenters believe PCAFC should be a
permanent program, we discuss similar comments further below.
As to the specific concerns about reassessments, consistent with
other changes VA is making to improve PCAFC discussed above, we believe
it is reasonable to reassess legacy
[[Page 46254]]
participants and legacy applicants to determine their continued
eligibility under Sec. 71.20(a). We understand that reassessments may
cause anxiety for some individuals, but we are adding reassessment
requirements to improve consistency and transparency in the program. We
note that reassessments are not just for current participants but will
be an ongoing part of PCAFC under Sec. 71.30. Moreover, as the
personal care needs for current participants and their Family
Caregiver(s) continue to evolve, we believe it is prudent to reassess
legacy participants and legacy applicants, as opposed to only reviewing
the initial application for PCAFC, for continued eligibility as well as
to identify changes in their condition that may impact the monthly
stipend payment amount. We note that the initial application includes
basic information, primarily demographic in nature and does not capture
clinical information related to the needs of the veteran or
servicemember. Additionally, eligibility determinations are complex,
and we are establishing consistent processes and practices which
include the CEATs to review evaluations conducted at the local medical
centers and make eligibility determinations under Sec. 71.20(a). For
the foregoing reasons, we believe it is necessary for legacy
participants and legacy applicants to participate in reassessments to
determine their continued eligibility under Sec. 71.20(a). We are not
making any changes based on these comments.
One commenter opposed requiring legacy participants to reapply for
PCAFC based on the assertion that recipients of VA disability
compensation and social security benefits do not have to reapply for
those programs after they have been approved. As indicated in the
proposed rule and reiterated above, VA will not require legacy
participants or legacy applicants to reapply to PCAFC, rather they will
be reassessed within the one-year transition period beginning on the
effective date of the final rule to determine continued eligibility
under the new eligibility criteria in Sec. 71.20(a). We are not making
any changes based on this comment.
Several commenters raised concerns that a number of current PCAFC
participants would not meet the definition of serious injury
specifically and would be deemed ineligible for the program. VA
assessed the service-connected disability rating of eligible veterans
currently participating in PCAFC and found that approximately 98
percent have a single or combined service-connected disability rating
of 70 percent or more and would therefore meet the definition of
``serious injury.'' As explained above, VA will provide a transition
period for those who would not qualify under the new PCAFC eligibility
criteria, including those who do not have a single or combined service-
connected disability rating of 70 percent or more. Furthermore, PCAFC
is just one of many services offered to veterans and servicemembers, as
VA offers a menu of supports and services that supports caregivers
caring for veterans such as PGCSS, homemaker and home health aides,
home based primary care, Veteran-Directed care, and adult day care
health care to name a few. We will assist legacy participants and
legacy applicants who are transitioning out of PCAFC by identifying and
making referrals to additional supports and services, as applicable. We
are not making any changes based on these comments.
One commenter asked why the proposed rule did not provide equitable
relief to current participants who will be adversely affected by the
changes to eligibility. Similarly, another commenter recommended VA
provide equitable relief for current PCAFC participants whose
eligibility would be adversely affected by the new definition of
serious injury. The Secretary of Veterans Affairs is authorized to
grant equitable relief when the Secretary determines that: (a) Benefits
administered by VA have not been provided by reason of administrative
error; or (b) a person has suffered loss as a consequence of reliance
upon a determination by VA of eligibility or entitlements to benefits,
without knowledge that it was erroneously made. See 38 U.S.C. 503. It
is unlikely the Secretary would consider VA's lawful implementation of
new regulatory requirements in 38 CFR part 71 to constitute an
administrative error on the part of VA or application of new regulatory
criteria to constitute erroneous eligibility determinations. Therefore,
equitable relief would likely not be appropriate as recommended by the
commenters because the changes to PCAFC eligibility would not be the
result of an error but rather a deliberate decision to change the
eligibility requirements for this program. Furthermore, we note that
the regulations provide a period of transition for legacy participants
and legacy applicants, as those terms are defined in Sec. 71.15, who
may no longer be eligible or whose Primary Family Caregivers will have
their monthly stipends decreased as a result of changes to PCAFC in
this rulemaking, as discussed further above. We are not making any
changes based on these comments.
Unclear Eligibility Requirements
Several commenters suggested VA better clarify eligibility by
having clear and defined standards, and by providing examples of
qualifying conditions, such as spinal cord injury and paralysis.
Commenters stated the eligibility requirements were confusing, vague,
and contained discrepancies. Commenters also stated that there is too
much subjectivity and inconsistency across VA and asserted that who
does the eligibility determination varies, as does what they consider.
One commenter raised concerns that the proposed eligibility criteria
was more general than the current criteria which would turn PCAFC into
a ``free for all.'' Similarly, another commenter indicated fraud is
prevalent in the program and recommended VA ensure the requirements are
clear. VA recognizes that improvements to PCAFC are required and this
recognition was the catalyst for the changes in the proposed rule to
improve consistency and transparency in how the program is
administered. As indicated in the proposed rule, we are standardizing
PCAFC to focus on veterans and servicemembers with moderate and severe
needs while at the same time revising the eligibility criteria to
encompass the care needs for veterans and servicemembers of all eras
rather than only post-9/11 veterans and servicemembers. Also, it is
VA's intent to broaden the current criteria so as not to limit
eligibility to a predetermined list of injuries or impairments. Thus,
changes to the eligibility criteria include revising definitions such
as serious injury, in the best interest, and inability to complete an
ADL; creating a new definition for in need of personal care services
and need for supervision, protection, or instruction; and establishing
a transition period for legacy participants and legacy applicants who
no longer qualify or whose stipends would be reduced by these
regulatory changes. VA will further address subjectivity and
inconsistency across VA by creating a centralized infrastructure for
eligibility determinations, standardizing eligibility determinations
and appeals processes, and implementing uniform and national outcome-
based measures to identify successes, best practices, and opportunities
for improvement. Furthermore, in addition to standardizing the
eligibility determination process, VA is revising the criteria for
revocation to hold an
[[Page 46255]]
eligible veteran and his or her Family Caregiver(s) accountable for
instances of fraud or abuse under Sec. Sec. 71.45(a) and 71.47, as
applicable. We thank these commenters for their input; however, we are
not making any changes based on these comments.
One commenter described PCAFC as an alternative to the Homemaker
and Home Health Aide (H/HHA) program, H/HHA as an alternative to
nursing home care, and PCAFC as VHA's version of two Center for
Medicare and Medicaid (CMS) programs: Home and Community-Based Services
(HCBS) and Self-Directed Personal Assistance Services. To the extent
that this commenter believes that PCAFC should operate similar to VA's
H/HHA program, and CMS's Home and Community-Based Services and Self-
Directed Personal Assistance Services, we note that these are programs
distinct from PCAFC, as explained directly below.
VA's H/HHA program provides community-based services through public
and private agencies under a system of case management by VA staff. H/
HHA services enable frail or functionally impaired persons to remain in
the home. An H/HHA is a trained person who can come to a veteran's home
and help the veteran take care of themselves and their daily
activities. The H/HHA program is for veterans who need assistance with
activities of daily living, and who meet other criteria such as those
who live alone.
The Veteran-Directed Home and Community Based Services (VD-HCBS) is
a type of H/HHA that provides veterans of all ages the opportunity to
receive home and community-based services in lieu of nursing home care
and continue to live in their homes and communities. In VD-HCBS, the
veteran and veteran's caregiver will: Manage a flexible budget; decide
for themselves what mix of services will best meet their personal care
needs; hire their own personal care aides, including family or
neighbors; and purchase items or services to live independently in the
community. VD-HCBS is offered as a special component to the
Administration for Community Living's (ACL) Community Living Program
(CLP). The ACL-VA joint partnership combines the expertise of ACL's
national network of aging and disability service providers with the
resources of VA to provide veterans and their caregivers with more
access, choices and control over their long-term services and supports.
While there may be some veterans that are eligible for PCAFC as
well as H/HHA and/or VD-HCBS, these programs are distinct as they are
intended to provide different services to different groups. For
example, PCAFC provides benefits directly to Family Caregivers whereas
H/HHA and VD-HCBS provide services directly to veterans. Additionally,
as described above, these benefits and services differ, as PCAFC
provides such benefits as a monthly stipend to Primary Family
Caregivers and access to healthcare benefits through the CHAMPVA for
those who otherwise are eligible.
As further described below, H/HHA and VD-HCBS are more aligned with
CMS's HCBS and Self-Directed Personal Assistance Services programs, and
vice versa, than with PCAFC.
CMS' HCBS programs provide opportunities for Medicaid beneficiaries
to receive services in their own home or community rather than
institutions or other isolated settings. These programs serve a variety
of targeted populations, such as people with intellectual or
developmental disabilities, physical disabilities, and/or mental
illnesses. While HCBS programs can address the needs of individuals who
need assistance with ADLs (similar to certain eligible veterans in
PCAFC), HCBS programs are intended to cover a broader population as
they serve Medicaid beneficiaries and target a variety of populations
groups, such as people with intellectual or developmental disabilities,
physical disabilities, and/or mental illnesses. We note that HCBS
eligibility varies by state, as these programs are part of a state's
Medicaid program. Additionally, the health care and human services that
may be provided to beneficiaries can vary based on each state, and may
include such services as skilled nursing care; occupational, speech,
and physical therapies; dietary management; caregiver and client
training; pharmacy; durable medical equipment; case management; hospice
care; adult day care; home-delivered meals; personal care; information
and referral services; financial services; and legal services. The
services are provided by lead agencies and other service providers and
are much broader than those that we are authorized to provide pursuant
to 38 U.S.C. 1720G for purposes of PCAFC. Whereas PCAFC provides
benefits to the Family Caregiver of the eligible veteran (in support of
the wellbeing of the eligible veteran), HCBS provides health care and
human services directly to the Medicaid beneficiary (who is more
similar to the eligible veteran than the Family Caregiver in terms of
their needs). As explained previously, we consider HCBS to be more like
other programs we offer such as H/HHA and VD-HCBS than with PCAFC.
Thus, because PCAFC and HCBS are distinct programs with different
requirements and services, we make no changes based on this comment.
This commenter also referenced CMS's Self-Directed Personal
Assistance Services program, which falls under the larger umbrella of
CMS's HCBS program. We note that this is a self-directed Medicaid
services program that permits participants, or their representatives if
applicable, to have decision-making authority over certain services and
take direct responsibility to manage their services with the assistance
of a system of available supports, instead of relying on state agencies
to provide these services. Services covered include those personal care
and related services provided under the state's Medicaid plan and/or
related waivers a state already has in place, and participants are
afforded the decision-making authority to recruit, hire, train and
supervise the individuals who furnish their services. As is the case
with the overall HCBS program, eligibility and the services covered
under the Self-Directed Personal Assistance Services program vary by
state. We note that the Self-Directed Personal Assistance Services
program operates similarly to VD-HCBS, in providing individuals with
more autonomy over community-based services they receive. Because PCAFC
and Self-Directed Personal Assistance Services are distinct programs
with different requirements and services, we make no changes based on
this comment.
Because this commenter provided no additional context or arguments
related to this specific comment, which is otherwise unclear, we are
unable to further respond. We are not making any changes based on this
comment.
Negative Impact on Post-9/11 Veterans
Many commenters supported expansion of PCAFC to include veterans of
all eras of military service, and ensuring that those with the greatest
need are eligible for PCAFC, regardless of era served. We thank them
for their comments. On the other hand, several commenters opposed the
proposed eligibility criteria because they believe it focuses on pre-9/
11 and geriatric veterans at the expense of post-9/11 and younger
veterans. Commenters stated that this is unfair, punitive, and
inconsistent with Congressional intent, and would result in current
participants being ineligible for PCAFC. Some commenters specifically
asserted that the VA MISSION Act of 2018 only
[[Page 46256]]
expanded PCAFC eligibility, and that making changes that restrict
eligibility are not in line with Congress's intent in enacting the VA
MISSION Act of 2018. One of the commenters also noted that the proposed
changes to the regulations have affected their own health. One
commenter opposed the new criteria and asserted that it would result in
current participants who receive stipends at tier one no longer being
eligible for PCAFC, which they allege was VA's intention. This
commenter asserts that because Congress did not provide the necessary
funds for expansion, VA found it necessary to revise the eligibility
criteria, and this commenter requests VA be transparent about that
rationale. Relatedly, one commenter requested additional funding be
provided to support expansion of the program.
We acknowledge the commenters' concerns and thank veterans and
caregivers for sharing their personal stories and experiences with
PCAFC. We also note that commenters raised concerns about their mental
health. We encourage such veterans and caregivers to seek assistance
through their health care provider. If you are a veteran in crisis or
you are concerned about one, free and confidential support is available
24/7 by calling the Veterans Crisis Line at 1-800-273-8255 and Press 1
or by sending a text message to 838255.
As indicated in the proposed rule, VA recognizes that improvements
to PCAFC are needed to improve consistency and transparency in decision
making. We note that many of the changes we proposed were made in
response to complaints that VA has received about the administration of
the program and these changes are designed to ensure improvement in the
program for all eligible veterans--to include current and future
participants, from all eras of service. Further, we are standardizing
PCAFC to focus on veterans and servicemembers with moderate and severe
needs while at the same time revising the eligibility criteria to
encompass the care needs for veterans and servicemembers of all eras
rather than only post-9/11 veterans and servicemembers.
We note that we are not expanding PCAFC to pre-9/11 veterans at the
expense of post-9/11 veterans and servicemembers; rather, the changes
to PCAFC's eligibility criteria are intended to ensure that PCAFC is
inclusive of veterans and servicemembers of all eras, consistent with
the VA MISSION Act of 2018.
Additionally, we disagree with the assertion that Congress did not
provide the necessary funds for expansion. The 2020 President's Budget
included estimated funding to meet the caregiver population expansion
from the MISSION Act. The Further Consolidated Appropriations Act, 2020
(Pub. L. 116-94) included sufficient funding to meet the Caregiver
Program cost estimates. The 2021 President's Budget included a funding
request for the Caregiver Program based on the same updated projection
model as used to formulate the regulatory impact analysis budget impact
for this rulemaking. Future President's Budget requests will
incorporate new data and updated cost projections as they become
available. For a detailed analysis of the costs of this program, please
refer to the regulatory impact analysis accompanying this rulemaking.
We are not making any changes based on these comments.
One commenter suggested that if budgetary concerns are the basis
for the changes in eligibility requirements, then VA should start by
excluding those veterans who can work and still get VA benefits,
salary, and caregiver benefits. As stated above, budgetary concerns did
not form the basis for changing the eligibility criteria; rather, VA's
proposed changes recognized and addressed opportunities for improvement
and the need to make PCAFC more inclusive to veterans and
servicemembers of all eras. Further, we note that the authorizing
statute does not condition eligibility for PCAFC on whether a veteran
or servicemember cannot work or is not in receipt of other VA benefits;
instead, it is based on specific criteria such as whether the veteran
or servicemember has a serious injury and is in need of personal care
services. Thus, we do not believe that it is reasonable to regulate
PCAFC eligibility based on employment status, individual financial
situations, or eligibility for other programs; but rather PCAFC
eligibility focuses on the need for personal care services, among other
factors, consistent with 38 U.S.C. 1720G.
To the extent this commenter believes that veterans who can work
should not be eligible for PCAFC, we refer the commenter to the section
on the definition of ``in need of personal care services'' in which we
discuss employment of eligibility veterans and Family Caregivers.
We also do not believe PCAFC eligibility should be conditioned on
whether a veteran or servicemember is not in receipt of other VA
benefits as eligibility for PCAFC is, in part, conditioned upon the
veteran or servicemember having a serious injury, which we define in
this rulemaking as a single or combined service-connected disability
rating of 70 percent or more. This level of service-connected
disability means that a veteran is in receipt of VA disability
compensation. Thus, we do not find it appropriate to exclude those in
receipt of other VA benefits since that would exclude the population of
eligible veterans on which we are focusing PCAFC. We are not making any
changes based on this comment.
Another commenter requested VA elaborate on the number of post-9/11
veterans who will still be eligible for PCAFC under the new
requirements. We note that the regulatory impact analysis for the final
rule includes information on current participants who may no longer be
eligible for PCAFC, based on specific assumptions we have made. We make
no changes based on this comment.
Physical Disabilities Versus Mental Health and Cognitive Disabilities
Multiple commenters expressed concern that the eligibility
requirements focus more on physical disabilities rather than mental
health and cognitive disabilities, and requested the eligibility
criteria account for non-physical disabilities (including mental,
emotional, and cognitive disabilities), such as TBI, PTSD, and other
mental health conditions, as the commenters asserted that veterans with
these conditions often need as much, if not more, caregiver assistance
as those with physical disabilities. Other commenters opposed removal
of the phrase ``including traumatic brain injury, psychological trauma,
or other mental disorder'' from current Sec. 71.20 because they
believe doing so would be contrary to the authorizing statute and
Congressional intent. One commenter raised concerns that veterans may
not be eligible for PCAFC despite being 100 percent disabled for
conditions such as PTSD, particularly as ADLs do not take into account
flash backs, dissociation, panic attacks, or other PTSD-related issues.
One commenter opined that veterans with mental health conditions should
not have to show they are physically unable to do something
particularly if they do not mentally know how to do so. However, one
commenter noted that if VA wants to elaborate on the specific injuries
that would qualify for PCAFC, that would be appropriate.
We are not seeking to restrict PCAFC to veterans and servicemembers
with only physical disabilities. Section 1720G(a)(2)(B) of title 38,
U.S.C. is clear that the term ``serious injury'' includes TBI,
psychological trauma, and other
[[Page 46257]]
mental disorders for purposes of PCAFC. Consistent with the statutory
authority, the current and new PCAFC regulations are inclusive of the
caregiving needs of veterans with cognitive, neurological and mental
health disabilities, including those who suffer from PTSD and TBI.
While we are removing the phrase ``including traumatic brain injury,
psychological trauma, or other mental disorder'' from Sec. 71.20, we
are doing so because such conditions would be captured by our proposed
definition of serious injury (i.e., requiring a single or combined
percent service-connected disability rating of 70 percent or more).
Under the new regulations, we will still consider cognitive,
neurological, and mental health disabilities as part of the definition
of serious injury, and veterans who have such disabilities will still
be eligible to apply for PCAFC. We further note that mental health care
is among VA's top priorities in providing health care to veterans.
Additionally, VA's regulations, as revised through this rule, make
clear that a veteran or servicemember can be deemed to be in need of
personal care services based on either: (1) An inability to perform an
ADL, or (2) a need for supervision, protection, or instruction. The
term ``need for supervision, protection, or instruction'' means the
individual has a functional impairment that impacts the individual's
ability to maintain his or her personal safety on a daily basis. This
term ``would represent and combine two of the statutory bases upon
which a veteran or servicemember can be deemed in need of personal care
services--`a need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury,' and `a need
for regular or extensive instruction or supervision without which the
ability of the veteran to function in daily life would be seriously
impaired.' See 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii), as amended by
Public Law 115-182, section 161(a)(2).'' 85 FR 13363 (March 6, 2020).
We believe these two bases of eligibility are inclusive of the personal
care service needs of veterans and servicemembers with a cognitive,
neurological, or mental health impairment, to include TBI or PTSD.
Furthermore, we do not believe elaborating or listing specific injuries
that would qualify a veteran or servicemember for PCAFC would serve to
broaden the bases upon which an individual may meet criteria for PCAFC,
as doing so could suggest that PCAFC is limited to only those listed
conditions. In defining ``need for supervision, protection, or
instruction,'' it was VA's intent to broaden the current criteria so as
not to limit eligibility to veterans and servicemembers with a
predetermined list of impairments. Id. Instead of focusing on specific
injuries, symptoms, or diagnoses, this term allows us to consider all
functional impairments that may impact the veteran's or servicemember's
ability to maintain his or her personal safety on a daily basis, among
other applicable eligibility criteria. We are not making any changes
based on these comments.
One commenter viewed the program as intended for older veterans,
and felt that because the commenter is younger, he or she is viewed as
being able to do things themselves when that is not the case. The
commenter questioned how a veteran can have a 100 percent service-
connected disability rating, but ``barely qualify'' for PCAFC. This
commenter suggested the eligibility determinations should consider a
list of diagnoses, including those listed in the DSM-5, instead of
blanket questions that do not apply to each diagnosis. As previously
discussed, we are standardizing the program to focus on veterans and
servicemembers with moderate and severe needs based on their need for
personal care services, not on their specific diagnoses. Further, as
explained in the preceding paragraph, the definition need for
supervision, protection, or instruction, allows VA to focus on the
veteran's level of impairment and functional status as opposed to
specific injuries, symptoms, or diagnoses, which could be too
restrictive and limiting, and fail to focus on the specific needs of
the eligible veteran. For example, two veterans have similar service-
connected disability ratings for PTSD. One veteran has been engaged in
treatment, has progressed in his or her level of independence such that
he or she no longer requires a Family Caregiver, and thus is not in
need of personal care services at this time. The other veteran has
recently been diagnosed with PTSD, with symptoms that negatively impact
his or her cognitive function such that personal care services are
needed to maintain his or her safety on a daily basis. In this example,
two veterans have similar service-connected disability ratings and
diagnoses; however, they have vastly different levels of independence
and needs for personal care services. Thus, we do not believe
considering a list of specific diagnoses that would qualify a veteran
or servicemember for PCAFC would be appropriate, as it would not
account for the eligible veteran's need for personal care services. We
make no changes based on this comment.
One commenter noted that PTSD is often accompanied by other health
conditions that can exacerbate the underlying health condition (for
example, PTSD with blindness, hearing problems, and diabetes), and
suggested that we ``raise the percentage for additional handicaps
compounded by PTSD.'' To the extent that this commenter is stating that
veterans and servicemembers may have comorbid conditions that
exacerbate one another and that such individuals may be in need of a
caregiver, we agree. We encourage these individuals and their
caregivers to contact their local VA treatment team and/or the local
CSC to learn more about supports and services available to provide
assistance, including PCAFC. If this commenter is requesting an
increase to VA disability ratings for purposes of other VA benefit
programs, such comment is outside the scope of this rulemaking. We make
no changes based on this comment.
One commenter noted that VA should have better training and tools
to assess dementia. To the extent the commenter believes VA should
provide better training and tools to VA providers who assess dementia
in general, unrelated to PCAFC, we believe this comment is beyond the
scope of this rulemaking. To the extent the commenter believes such
training and tools are necessary for purposes of determining PCAFC
eligibility, we note that the PCAFC eligibility criteria do not focus
on veterans' or servicemembers' specific diagnoses, but we believe an
individual with dementia could qualify for PCAFC if the individual is
determined to be in need of personal care services based on a need for
supervision, protection, or instruction, for example, among other
applicable eligibility criteria. Additionally, as we explain throughout
this discussion, eligibility determinations for PCAFC will be based
upon evaluations of both the veteran and caregiver applicant(s)
conducted by clinical staff at the local VA medical center based upon
input from the primary care team to the maximum extent practicable.
These evaluations include assessments of the veteran's functional
status and the caregiver's ability to perform personal care services.
Additional specialty assessments may also be included based on the
individual needs of the veteran or servicemember. When all evaluations
are completed, the CEAT will review the evaluations and pertinent
medical records, in order to render a determination. We note that we
will provide in depth training and education
[[Page 46258]]
to clinical staff at local VA medical centers and CEATs to perform
PCAFC assessments and evaluations, and eligibility determinations,
including whether the veteran is determined to be unable to self-
sustain in the community for the purposes of PCAFC, respectively.
We make no changes based on this comment.
Removal of Current Sec. 71.20(c)(4)
Several commenters expressed concern over the removal of current
Sec. 71.20(c)(4) (i.e., a veteran rated 100 percent disabled for a
serious injury and awarded SMC that includes an aid and attendance
(A&A) allowance) as an eligibility criterion. Specifically, commenters
were concerned that these veterans would be wrongly removed from PCAFC
by CSP staff at medical centers or at the VISNs, and one commenter
questioned why VA would not keep this as a criterion that meets
eligibility and asserted that it serves as a safety net for those at
most risk. Also, commenters asserted that an A&A allowance is paid to
the veteran while the monthly stipend is paid to the caregiver so it
would not be a duplication of benefits. Additionally, commenters
incorrectly asserted that this criterion is a statutory requirement.
We agree that an A&A allowance and the monthly stipend rate would
not be a duplication of benefits; however, to ensure that PCAFC is
implemented in a standardized and uniform manner across VHA, we believe
each veteran or servicemember must be evaluated based on whether he or
she has an inability to perform an ADL or a need for supervision,
protection, or instruction pursuant to Sec. 71.20(a)(3)(i) and (ii).
As discussed above regarding the definition for an inability to perform
an ADL, VA will utilize standardized assessments to evaluate both the
veteran or servicemember and his or her identified caregiver when
determining eligibility for PCAFC. It is our goal to provide a program
that has clear and transparent eligibility criteria that is applied to
each and every applicant, and not all veterans and servicemembers
applying for or participating in PCAFC will have been evaluated by VA
for the ratings described in current Sec. 71.20(c)(4). Thus, while we
believe any veteran or servicemember who would qualify for PCAFC based
on current Sec. 71.20(c)(4) would likely be eligible under the other
criteria in Sec. 71.20(a)(3)(i) and (ii) (see 85 FR 13372 (March 6,
2020)), VA will still require a reassessment pursuant to Sec. 71.30 to
determine continued eligibility under Sec. 71.20(a).-Also, as
explained above regarding legacy participants and legacy applicants, VA
will provide a transition period for those who do not meet the new
eligibility criteria under Sec. 71.20(a). Additionally, we are
standardizing eligibility determinations and appeals to include the use
of a CEAT to reduce the possibility of errors in PCAFC eligibility
determinations, revocations, and discharges.
Finally, this criterion has never been a requirement under 38
U.S.C. 1720G, rather it is authorized by 38 U.S.C. 1720G(a)(2)(C)(iv)
as a possible basis upon which an individual can be deemed in need of
personal care services. As explained above and in VA's proposed rule,
the Part 3 regulatory criteria governing award of SMC fail to provide
the level of objectivity VA seeks in order to ensure that PCAFC is
administered in a fair and consistent manner for all participants, and,
we no longer believe this criterion is necessary or appropriate. We are
not making any changes based on these comments.
Alternative Eligibility Requirements
One commenter suggested that all veterans have caregivers so all
should qualify and be paid based on the percentage of their service-
connected disability rating such that a caregiver for a veteran with a
10 percent service-connected rating would receive 10 percent of the
monthly stipend rate. VA disability compensation provides monthly
benefits to veterans in recognition of the effects of disabilities,
disease, or injuries incurred or aggravated during active military
service and the eligibility criteria are specific to determining a
disability compensation. This is different from a clinical evaluation
for determining whether a veteran or servicemember is eligible for
PCAFC. PCAFC is a clinical program that requires a veteran or
servicemember to have a serious injury and be in need of personal care
services based on an inability to perform an ADL or a need for
supervision, protection, or instruction. A veteran with a service-
connected disability rating may or may not have a serious injury and be
in need of personal care services from a caregiver for purposes of
PCAFC. While a service-connected disability rating is part of the
definition of serious injury, it is not used to determine a veteran's
or servicemember's need for personal care services for purposes of
PCAFC eligibility. Instead, we assess the clinical needs of the
individual to determine whether he or she is in need for personal care
services. Service-connected disability ratings are not commensurate
with a need for personal care services. For example, a veteran may be
100 percent service-connected for PTSD however through consistent,
ongoing treatments, has developed the tools to effectively manage
symptoms associated with PTSD to the level of not requiring personal
care services from another individual. Furthermore, the stipend rate
for Primary Family Caregivers is based upon the amount and degree of
personal care services provided. See 38 U.S.C. 1720G(a)(3)(C)(i).
Therefore, it would not be appropriate for VA to pay a caregiver using
the service-connected disability rating percentage as the percentage of
the monthly stipend rate. In addition, we have separately addressed the
commenter's recommendation for the stipend amount in the section
discussing the monthly stipend rate and 38 CFR 71.40(c)(4). We are not
making any changes based on this comment.
One commenter suggested veterans and servicemembers should apply on
a case-by-case basis. Every application is reviewed individually;
however, we believe standard eligibility criteria are necessary to
increase transparency and ensure consistency nationwide. We are not
making any changes based on this comment.
Permanent Program
Multiple commenters suggested that this should be a permanent
program and requested we add language to the regulation to
automatically determine those who are permanently and totally disabled
as eligible for PCAFC. One commenter favored a permanent eligibility
designation but inquired what that would be, while several others
suggested that those with 100 percent permanent and total (P&T)
disability ratings should receive automatic and/or permanent
eligibility for PCAFC and that PCAFC eligibility should be treated
similar to disability compensation ratings in which VA provides payment
but otherwise leaves veterans alone, such that they are not further
monitored, evaluated, or reassessed. Relatedly, one commenter suggested
that those with 100 percent P&T disability rating, in addition to being
enrolled in PCAFC for more than five years, should be permanently
admitted to PCAFC. A 100 percent P&T disability rating applies to
disabilities that are total (i.e., any impairment of mind or body which
is sufficient to render it impossible for the average person to follow
a substantially gainful occupation) and permanent (i.e., impairment is
reasonably certain to continue throughout the life of the disabled
person). See 38 CFR 3.340. However, we reiterate that PCAFC is a
[[Page 46259]]
clinical program that requires a veteran or servicemember to have a
serious injury incurred or aggravated in the line of duty, and be in
need of personal care services based on an inability to perform an ADL
or a need for supervision, protection, or instruction, and is designed
to support the health and well-being of such veterans, enhance their
ability to live safely in a home setting, and support their potential
progress in rehabilitation, if such potential exists. See 85 FR 13367
(March 6, 2020). Thus, PCAFC is intended to be a program under which
the eligible veteran's eligibility may shift depending on the changing
needs of the eligible veteran. We do acknowledge that while some
eligible veterans may improve over time, others may not, and PCAFC and
other VHA services are available to ensure the needs of those veterans
continue to be met. We note that participation in PCAFC may not always
be appropriate to meet the needs of a veteran who has a 100 P&T
disability rating. We conduct ongoing wellness contacts and
reassessments to ensure the needs of the eligible veteran and Family
Caregiver are met over time, and other care needs may be addressed
through referrals to other VA and non-VA services, as appropriate. For
example, over time, personal care services from a Family Caregiver at
home may not be appropriate because nursing home care or other
institutional placement may be more appropriate. Furthermore, it is
also important to note that 38 U.S.C. 1720G(c)(2)(B) clearly
articulates that the assistance or support provided under PCAFC and
PGCSS do not create any entitlements. We are not making any changes
based on these comments.
Another commenter supported having a permanent designation for
PCAFC as caregivers often give up their careers to care for a veteran.
As explained above, PCAFC is a clinical program that requires a veteran
or servicemember to be in need of personal care services based on an
inability to perform an ADL or a need for supervision, protection, or
instruction. Furthermore, the monthly stipend payment provided under
PCAFC is meant to be an acknowledgement of the sacrifices that Primary
Family Caregivers make to care for eligible veterans. 76 FR 26155 (May
5, 2011). Thus, PCAFC is not intended to replace or supplement a
caregiver's loss of income by giving up their careers. While we
understand that some veterans and servicemembers may remain in PCAFC
indefinitely, eligibility for PCAFC is based on the level of personal
care needs of the eligible veteran, among other criteria, and not based
on whether a caregiver has given up their career to care for the
eligible veteran. We are not making any changes based on this comment.
Paying People To Not Get Better
Commenters raised concerns that PCAFC incentivizes veterans to not
``get better'' and remain sick and debilitated, when it should focus
instead on improving health. Commenters were concerned that PCAFC
benefits, such as the stipend, are too generous, cause dependency and
discourage participants from working or contributing to society,
resulting in depression and low self-esteem. We note that PCAFC is a
clinical program and as such, the safety, health and wellbeing of those
served by the program is a core objective. The potential for
rehabilitation or increased independency occurs on a spectrum. While
some eligible veterans have the ability to rehabilitate or gain
independence from his or her caregiver, which we do support if there is
such potential, we recognize that some eligible veterans may remain
eligible for PCAFC on a long-term basis. This is particularly true as
we expand to veterans and servicemembers of earlier eras. Thus, while
we understand the commenters' concerns, we must be cognizant of the
reality that not all eligible veterans will improve to the point of no
longer being in need of personal care services. We note that our
definition of in the best interest requires a consideration of whether
participation in the program supports the veteran's or servicemember's
potential progress in rehabilitation or potential independence, if such
potential exists. Therefore, we will continue to evaluate whether PCAFC
is in the best interest of eligible veterans and support those who have
the potential for improvement, when such potential exists. Further,
eligible veterans and Family Caregivers participating in PCAFC will
engage in wellness contacts, which focus on supporting the health and
wellbeing of both the eligible veteran and his or her Family
Caregivers. During wellness contacts, VA clinical staff will engage
with eligible veterans and their Family Caregivers to identify any
current needs. For example, during a wellness contact, a clinician may
recognize an eligible veteran struggling with depression or low self-
esteem and intervene accordingly. Such intervention may include
referrals to support groups or other services to address the specific
needs of the eligible veteran. We also note that PCAFC is just one way
VA supports eligible veterans and Family Caregivers and that PCAFC is
not meant to replace an eligible veteran's ongoing engagement with his
or her treatment team. We are not making any changes based on these
comments.
PCAFC Should Operate Similar to Welfare Type Programs
One commenter suggested that PCAFC operate similar to welfare type
programs, in which individuals are required to apply every time they
have a need and have a responsibility to check-in with the agency. As
indicated in the proposed rule, we will require both the eligible
veteran and Family Caregiver(s) to participate in periodic
reassessments for continued eligibility as well as to participate in
wellness contacts, which focus on supporting the health and wellbeing
of eligible veterans and his or her Family Caregivers. We note that
failure to participate in either may lead to revocation from the
program under Sec. 71.45 Revocation and Discharge of Family
Caregivers. We believe these requirements are sufficient to ensure
continued eligibility and maintain open communication with VA. We are
not making any changes based on this comment.
Technical Question
One commenter was confused about our reference to proposed Sec.
71.20(a)(4) when explaining in the best interest under current Sec.
71.20(d), and asserted that there is no Sec. 71.20(a)(3) which would
make (a)(4) impossible. As indicated in the proposed rule, we are
restructuring current Sec. 71.20 to accommodate temporary eligibility
for legacy participants (Sec. 71.20(b)) and legacy applicants (Sec.
71.20(c)). As such, the current eligibility criteria under current
Sec. 71.20 have been revised and redesignated under Sec. 71.20(a).
Thus, current Sec. 71.20(a) has been redesignated as Sec.
71.20(a)(1); current Sec. 71.20(b) has been revised and redesignated
as Sec. 71.20(a)(2); Sec. 71.20(c) has been revised and redesignated
as Sec. 71.20(a)(3); and current Sec. 71.20(d) has been revised as
redesignated as Sec. 71.20(a)(4). We make no changes based on this
comment.
Sec. 71.25 Approval and Designation of Primary and Secondary Family
Caregivers
Several commenters questioned how VA will conduct eligibility
assessments, including who will conduct these assessments and requested
additional information. Specifically, commenters asserted VA needs to
identify who will conduct eligibility assessments and have limitations
on who this may be. One commenter questioned how VA will ensure
standardization for eligibility assessments and
[[Page 46260]]
reassessments. One commenter opined that VA has no consistent protocols
for evaluating PCAFC applicants. Another commenter asked how VA will
hold employees accountable for errors and asserted the need for
independent reviews. We address these comments below.
Eligibility determinations for PCAFC will be based upon evaluations
of both the veteran and caregiver applicant(s) conducted by clinical
staff at the local VA medical center. These evaluations include
assessments of the veteran's or servicemember's functional status and
the caregiver's ability to perform personal care services. Additional
specialty assessments may also be included based on the individual
needs of the veteran or servicemember. When all evaluations are
completed, the CEAT will review the evaluations and pertinent medical
records, in order to render a determination on eligibility for PCAFC,
including whether the veteran is determined to be unable to self-
sustain in the community for the purposes of PCAFC.
The CEATs are comprised of a standardized group of inter-
professional, licensed practitioners with specific expertise and
training in the eligibility requirements for PCAFC. Furthermore, we
will provide in depth training and education to clinical staff at local
VA medical centers and CEATs, and conduct vigorous oversight to ensure
consistency across VA in implementing this regulation including
conducting regular audits of eligibility determinations. We make no
changes based on these comments.
One commenter incorrectly asserted that neither the Caregivers Act
nor VA's current regulations impose a time limit for completion by the
Family Caregiver of such instruction, preparation, and training.
Current Sec. 71.40(d) provides a 45-day timeline to ``complete all
necessary education, instruction, and training so that VA can complete
the designation process no later than 45 days after the date that the
joint application was submitted.'' Furthermore, VA may provide an
extension for up to 90 days after the date the joint application was
submitted. Additionally, current Sec. 71.25(a)(3) permits an
application to be put on hold for no more than 90 days, from the date
the application was received, for a veteran or servicemember seeking to
qualify through a GAF test score of 30 or less but who does not have a
continuous GAF score available. As indicated in the proposed rule, we
are proposing to eliminate use of the GAF score as a basis for
eligibility under current Sec. 71.20(c)(3). Therefore, we remove the
language in current Sec. 71.25(a)(3) referencing that an application
may be put on hold for no more than 90 days. Additionally, while we
already have the authority in Sec. 71.40(d)(1) to extend the
designation timeline for up to 90 days, we remove the 45-day
designation timeline in current paragraph (d)(1) and add the 90-day
designation timeline in Sec. 71.25(a)(2)(ii), as we proposed and now
make final. We are not making any changes based on this comment.
Several commenters took issue with the use of the word ``may'' in
proposed Sec. 71.25(a)(2)(ii). Specifically, one commenter stated it
is clearly arbitrary to allow VA to reserve the right to deny an
application even where the failure to meet the 90-day timeline is due
to VA's own fault. Another commenter asserted it contradicts the
preamble which states VA would not penalize an applicant if he or she
cannot meet the 90-day timeline as a result of VA's delay in completing
eligibility evaluations. While we would not penalize an applicant if he
or she cannot meet the 90-day timeline as a result of VA's delay in
completing eligibility evaluations, providing necessary education and
training, or conducting the initial home-care assessment, we believe it
is prudent to make this determination on a case-by-case basis. For
example, we do not believe an applicant who is non-responsive to
repeated attempts to conduct an initial in-home assessment through day
89 and then responds to VA on day 90 that he or she is available should
receive an extension. However, an applicant who is responsive and
agrees to an initial in-home assessment but VA cancels or reschedules
the initial in-home assessment beyond the 90-day timeline, would
receive an extension. We are not making any changes based on these
comments.
One commenter expressed disappointment by the lack of description
on the process by which current participants will be evaluated. We
direct the commenter to our previous description of the eligibility
process in this section. As indicated in the proposed rule, legacy
participants and legacy applicants will be reassessed under Sec.
71.30(e) for continued eligibility under Sec. 71.20(a) within the one-
year period beginning on the effective date of this rule. Further,
Sec. 71.40(c) provides a transition plan for Primary Family Caregivers
who may experience a reduction in the monthly stipend or discharge from
PCAFC as a result of the eligibility criteria in Sec. 71.20(a). We
make no changes based on this comment.
One commenter applauded VA for including assessment of the
caregiver's wellbeing and we appreciate the comment. Another commenter
questioned how VA will determine the competence of a caregiver to
provide personal care services. The same commenter questioned whether
VA will assess competence by demonstration and whether it will be a
verbal or physical demonstration of the required personal care
services. The determination that a caregiver is competent to provide
personal care services is a clinical judgement which may include verbal
or physical demonstration as necessary based on the individual
circumstances of the veteran or servicemember and his or her caregiver.
We make no changes based on this comment.
One commenter suggested we revise the regulation text to allow VA
the flexibility to sub-contract a provider or providers to complete the
initial home-care assessment to ensure that the 90-day period for
application review is met by stating, ``VA, or designee, will visit the
eligible veteran's home . . .'' in Sec. 71.25(e). The same commenter
further noted that the designee language can also be added to the
reassessments and the wellness contacts sections. As previously
discussed, VA does not believe the use of contracted services would
provide standardized care for participants and would hinder VA's
ability to provide appropriate oversight and monitoring. We make no
changes based on this comment.
One commenter disagreed with the language ``the Family Caregiver(s)
providing the personal care services required by the eligible veteran''
in Sec. 71.25(f). Specifically, this commenter noted that insufficient
justification was provided for this requirement, and it would be
impossible based on the ``continuous'' requirement in the definition of
unable to self-sustain in the community. This commenter asserted that
there are numerous situations where excellent care is provided to the
veteran where the designated ``caregiver'' acts like a caregiving
manager by monitoring the quality of the care given by third parties
with whom the designated caregiver may contract and pay for using the
stipend provided. The same commenter further opined that nothing in
Congressional deliberations and the proposed rule included a discussion
of how caregivers who manage and monitor caregiving provided by others
have been providing inadequate quality of care. Further, the same
commenter stated that VA has been unable to provide a response to this
issue during various meetings and follow-up requests
[[Page 46261]]
for information. We respond to this comment below.
As indicated in the proposed rule, part of the eligibility
requirements for veterans and servicemembers is that they are in need
of personal care services; thus, we believe it is reasonable to require
that a Family Caregiver actually provides personal care services to an
eligible veteran. 85 FR 13378 (March 6, 2020). Further, current Sec.
71.20(e), which we are redesignating as Sec. 71.20(a)(5), requires
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. This requirement is to ensure
that the designation of a Primary Family Caregiver is authorized for
those who do not simultaneously and regularly use other means to obtain
personal care services. 76 FR 26151 (May 5, 2011). Additionally, 38
U.S.C. 1720G(a)(3)(A)(ii) specifically uses the phrase ``the primary
provider of personal care services for an eligible veteran . . .''
Further, it is our intent to ensure that a Family Caregiver is not
dependent on VA or another agency to provide personal care services
that the Family Caregiver is expected to provide. 76 FR 26151 (May 5,
2011). If there is a desire by a veteran or servicemember and his or
her caregiver to manage personal care services provided through other
services, such as H/HHA, then we will refer applicants to other VA or
non-VA services available to them. We make no changes based on this
comment.
One commenter stated that it makes sense to require that the
Primary Caregiver provide the personal care services to the veteran,
but was concerned about the inclusion of the language that the Family
Caregiver only be absent for ``brief'' periods of time. This commenter
requested VA remove language that the Family Caregiver only be absent
for ``brief'' periods of time or clearly define ``continuous'' and
``brief absences'' to ensure caregivers are not penalized for seeking
employment or respite care. This commenter asserted that caregiving
takes a significant toll on caregivers. Commenters also expressed
concerns about whether VA expects the caregiver to always be present,
including those who work. We clarify that it is not our intent to
prevent caregivers from working as we are cognizant that the monthly
stipend is an acknowledgement of the sacrifices made by caregivers but
may fall short of the income a caregiver could receive if they were
employed. The situation for each veteran or servicemember and his or
caregiver is unique, and we understand that caregivers may not be
present all of the time as long as they are available to provide the
required personal care services. Furthermore, respite care is a benefit
provided to Family Caregivers; thus, we would not penalize a Family
Caregiver for the use of respite care. To the extent this commenter had
concerns about the use of ``continuous'' in the definition of ``unable
to self-sustain in the community,'' we further refer the commenter to
the related discussions in the section on the definitions of ``need for
supervision, protection, or instruction,'' and ``unable to self-sustain
in the community.'' We are not making any changes based on these
comments.
We received several comments that the proposed rule did not provide
enough information to provide informed comments on the eligibility
determination process and the initial assessment, and the lack of this
information has forced commenters to accept a fundamentally flawed
regulation because of the inability of VA to meet the legislative
deadlines for PCAFC expansion. One commenter specifically stated that
after the proposed rule was published, they requested additional
information from VA about how the proposed eligibility evaluation/
reassessment process will work, including any assessment instruments
that VA staff will use. The same commenter stated that because VA did
not adequately explain how the process will work, they still had
questions and concerns about it and believe that VA should publish a
supplemental notice of proposed rulemaking (NPRM) or an interim final
rule (IFR) with this process explained to provide an opportunity for
public comment. Additionally, commenters expressed concern that PCAFC
has been marked by deep systemic structural defects which can only be
resolved by placing these procedures into regulation as opposed to
policy. We believe we provided sufficient information within the
proposed rule and disagree with the assertion that VA should publish a
supplemental NPRM or an IFR. Additionally, VA has the ability to
determine certain aspects of PCAFC through policy and we believe it is
necessary to have the flexibility to modify processes to address the
changing needs of the program, which we are able to do more quickly
through policy change than through rulemaking. We are not making any
changes based on these comments.
Several commenters asserted that a Family Caregiver should live
with the eligible veteran regardless of whether they are a family
member. We appreciate the commenters' concerns; however, the
restrictions that a Family Caregiver be a member of the eligible
veteran's family (i.e., spouse, son, daughter, parent, step-family
member, or extended family member), or if not a family member, live
with the eligible veteran, or will do so if designated as a Family
Caregiver, are set forth in 38 U.S.C. 1720G(d)(3). We make no changes
based on these comments.
One commenter expressed concern that there are no rules regarding
how many veterans a caregiver can care for and that seems to be more of
a business model versus a family caregiving model as the caregiver will
be at high risk for burn out. The commenter is correct that we do not
have restrictions in place for how many eligible veterans a Family
Caregiver may be assigned to as the individual circumstances for each
eligible veteran and his or her Family Caregiver are unique. However,
we believe that the criteria in part 71 to include a determination of
in the best interest, wellness contacts, and revocation based on a
Family Caregiver's neglect, abuse, or exploitation of the eligible
veteran, establish safeguards to protect both the eligible veteran and
his or her Family Caregiver in circumstances where the Family Caregiver
provides personal care services to more than one eligible veteran. We
make no changes based on this comment.
One commenter emphasized the need for continued training for Family
Caregivers, beyond the initial eligibility requirements. Another
commenter asserted VA should partner with the National Alliance for
Mental Illness (NAMI) to provide mandatory training to an eligible
veteran's care team and Family Caregiver. Although we do not have an
explicit requirement for continued education, we do provide continuing
instruction, preparation, training and technical support to caregivers;
this includes training outside of the core curriculum. Also, we are
establishing an explicit requirement for both the eligible veteran and
his or her Family Caregiver to participate in reassessments and
wellness contacts, pursuant to Sec. 71.30 and Sec. 71.40(b)(2)
respectively. Additionally, these reassessments and wellness contacts
will allow VA to assess whether a Family Caregiver requires any
additional training to provide the personal care services required by
the eligible veteran. We appreciate the suggestion to partner with NAMI
and will consider it. We make no changes based on these comments.
Multiple commenters expressed concern over the vetting process for
Family Caregivers and one suggested that VA verify the identity of a
Family
[[Page 46262]]
Caregiver and conduct background checks (e.g., criminal, financial,
legal). As part of VA Form 10-10CG, Application for the Program of
Comprehensive Assistance, veterans and Family Caregivers are required
to provide identifying information including name, and date of birth.
Further, applicants are required to certify the information provided is
true and sign the form. While we do not require a Social Security
Number (SSN) or Tax Identification Number (TIN) for the application, an
SSN or TIN is required in order for a stipend payment to be issued.
These commenters were also concerned about the potential for abuse of
the eligible veteran and asserted VA should do its due diligence prior
to providing a stipend to Family Caregivers. We believe a veteran or
their surrogate has the right to designate a caregiver of their
choosing and that as long as we do not determine there is neglect,
abuse, or exploitation of the eligible veteran, we will approve the
caregiver the eligible veteran designates, if all other eligibility
requirements are met. As part of PCAFC, we have mechanisms in place,
and regulated in part 71, to ensure that there is no fraud, neglect,
abuse, or exploitation. For example, when determining eligibility for
PCAFC, a determination of no abuse or neglect is part of the clinical
evaluation. Additionally, pursuant to Sec. 71.45, we can revoke or
discharge an eligible veteran or Family Caregiver in instances of
fraud, or neglect, abuse, or exploitation. We note that background
checks are typically conducted for purposes of determining suitability
for employment and we note that participation in PCAFC is specifically
not considered an employment relationship. We make no changes based on
these comments.
Sec. 71.30 Reassessment of Eligible Veterans and Family Caregivers
Several commenters expressed general disagreement with VA's
proposal to conduct reassessments and asserted that once a veteran or
servicemember is admitted into the program, it should be permanent with
no annual reassessments. Specifically, one commenter asserted VA is
making the false comparison to the most severely and catastrophically
disabled veterans, to whom the commenter asserts we believes this
permanent designation should apply, and the entire population of
veterans. Another commenter asserted that they do not accept the
Department's contention that ``we do not believe that Congress intended
for PCAFC participants' eligibility to never be reassessed after the
initial assessment determination, particularly as an eligible veteran's
and Family Caregiver's continued eligibility for the program can
evolve.'' The same commenter asserted the closest the law comes to
identifying any such requirement is 38 U.S.C. 1720G(a)(9) which only
says ``The Secretary shall monitor the well-being of each eligible
veteran . . .'' and ``Visiting an eligible veteran in the eligible
veteran's home to review directly the quality of personal care services
provided . . .'' The same commenter further stated that nowhere does it
say there has to be any type of reevaluation or review, let alone of
any particular periodicity. We address these comments below.
PCAFC is a clinical program, and similar to any other clinical
program, a reassessment is appropriate to assess both the condition and
needs of the eligible veteran and the Family Caregiver. This is
particularly true given the unique circumstances for each eligible
veteran and his or her Family Caregiver as we expand to include
veterans and servicemembers from all eras. For example, an eligible
veteran may be admitted into PCAFC at the lower-level stipend (i.e.,
62.5 percent of the monthly stipend rate) and eventually be determined
to be unable to self-sustain in the community and thus his or her
Primary Family Caregiver would be eligible to receive the higher-level
stipend (i.e., 100 percent of the monthly stipend rate). Also, an
eligible veteran's condition may deteriorate to the point where it is
no longer safe to maintain the eligible veteran in the home because he
or she requires hospitalization or a higher level of care.
Additionally, the condition of an eligible veteran who is initially
determined to be unable to self-sustain in the community may improve to
the point where he or she no longer meets this definition but is still
in need of personal care services and thus his or her Primary Family
Caregiver would receive a lower-level stipend (i.e., 62.5 percent of
the monthly stipend rate). Furthermore, an eligible veteran's condition
may improve such that he or she is no longer in need of personal care
services and thus his or her Family Caregiver would be discharged from
the program. Although we agree that some eligible veterans may not have
the opportunity for improvement due to the nature of their condition/
disease progression, we do not agree that VA has no obligation to
continue to reassess the eligible veteran and Family Caregiver ``as
eligible veterans' needs for personal care services may change over
time as may the needs and capabilities of the designated Family
Caregiver(s).'' 85 FR 13378 (March 6, 2020). Additionally, 38 U.S.C.
1720G(c)(2)(A) clearly articulates that the assistance or support
provided under PCAFC and PGCSS do not create any entitlements; thus, VA
may conduct reassessments for PCAFC to determine continued eligibility
under Sec. 71.20(a). Further, we believe the VA MISSION Act of 2018
clearly articulated Congress's intent to ensure continued engagement
between VA and PCAFC participants by requiring VA to ``periodically
evaluate the needs of the eligible veteran and the skills of the
[F]amily [C]aregiver of such veteran to determine if additional
instruction, preparation, training, or technical support . . . is
necessary.'' 38 U.S.C. 1720G(a)(3)(D), as amended by Public Law 115-
182, section 161(a)(5). For these reasons, we believe VA has the
statutory authority to require reassessments for all PCAFC participants
regardless of the condition of the eligible veteran. We are not making
any changes based on these comments.
Several commenters stated that a yearly reassessment would be too
burdensome, specifically for veterans or servicemembers who have a 100
percent P&T disability rating, and one commenter stated it would be
insulting to require periodic assessments, even if annually. Another
commenter stated that it would not be a good use of taxpayer resources
or the precious time of caregivers and veterans to require those with
certain conditions (e.g., ALS, MS) to be reassessed annually or even on
a less frequent basis and that VA should develop a list of these
serious injuries that do not warrant continued reassessment for
purposes of eligibility. As explained above, VA believes it is
necessary to conduct reassessments for all PCAFC participants
regardless of the condition of the eligible veteran, and this same
principle applies regardless of whether he or she has a 100 percent P&T
disability rating or a specific health condition. However, as indicated
in the proposed rule, we recognize that an annual reassessment may not
be required for each eligible veteran (e.g., an eligible veteran whose
condition is expected to remain unchanged long-term because he or she
is bed-bound and ventilator dependent, and requires a Family Caregiver
to perform tracheotomy care to ensure uninterrupted ventilator
support). Therefore, Sec. 71.30(b) states that reassessments may occur
on a less than annual basis if a determination is made by VA that an
annual reassessment is unnecessary. We note, that even if VA
[[Page 46263]]
is conducting a reassessment less frequently than annually, VA would
continue to conduct ongoing wellness contacts pursuant to Sec.
71.40(b)(2). We are not making any changes based on these comments.
One commenter asserted that VA should re-evaluate more often and
increase stipends accordingly should the eligible veteran's personal
care needs justify such an increase. As indicated in the proposed rule,
VA will conduct annual reassessments, however such reassessments may
occur more frequently if a determination is made and documented by VA
that a more frequent reassessment is appropriate. Examples that may
necessitate a more frequent assessment include treatment or clinical
intervention that reduces an eligible veteran's level of dependency on
his or her Family Caregiver, or instances in which there is a
significant increase in the personal care needs of the eligible veteran
due to a rapidly deteriorating condition or an intervening medical
event, such as a stroke, that results in further clinical impairment.
Additionally, VA would continue to conduct ongoing wellness contacts
pursuant to Sec. 71.40(b)(2) which may result in a reassessment. We
are not making any changes based on these comments.
One commenter questioned why an annual reassessment would ever be
found unnecessary when this program was designed to be a rehabilitative
program. As previously explained, VA recognizes that not all eligible
veterans have the potential for rehabilitation or independence, and
this is particularly true as we expand to veterans and servicemembers
of all eras. Therefore, we believe it is necessary to allow some
flexibility in conducting reassessments to address the individual
circumstances for each eligible veteran and his or her Family
Caregiver(s). We are not making any changes based on this comment.
Another commenter stated it was not clear how many staff visits
will be done and when. As previously explained, VA will conduct annual
reassessments that may include a home visit, but reassessments may
occur more or less frequently than annually as determined and
documented by VA based on the individual circumstances of the eligible
veteran and the Family Caregiver(s). We are not making any changes
based on this comment.
Several commenters opined about how reassessments will be
conducted, including suggestions to include specific guidelines about
the process. Specifically, one commenter asserted that there needs to
be a quantitative assessment and that decisions not be left to staff's
subjective opinions. Another commenter encouraged VA to develop
specific guidelines around which veterans would not require an annual
reassessment as their status will not change in the future. Also, one
commenter suggested VA limit assessments to not more than annually
since more frequent assessments would otherwise be left to local
providers to determine. While we appreciate and understand the
commenter's concerns with regard to establishing objective and specific
guidelines, PCAFC is a clinical program and as a result, we will not be
able to eliminate all subjectivity. However, we will standardize the
process as much as possible to include the use of standardized
assessments for both the eligible veteran and the Family Caregiver.
Reassessments will be conducted by trained and licensed clinical
providers. Additionally, reassessment determinations will be determined
by the CEATs, that are specifically trained in the eligibility criteria
for PCAFC. As previously explained, VA will conduct annual
reassessments, but these reassessments may occur more or less
frequently than annually as determined and documented by VA based on
the individual circumstances of the eligible veteran and the Family
Caregiver(s). VA's determination of the need for reassessment more or
less frequently may stem from information gleaned during a routine
medical appointment, through a planned or unplanned interaction with a
CSC, or even at the request of the eligible veteran or Family
Caregiver, if appropriate. As mentioned below, through policy we would
require documentation of the clinical factors relied upon in concluding
that a less than or more frequent reassessment is needed. As stated
above more or less frequent annual reassessments can be conducted due
to the changing needs of the eligible veteran in order to provide the
necessary support and services. We are not making any changes based on
these comments.
We received multiple comments regarding the inclusion of the
primary care team during reassessments. Specifically, one commenter
stated that collaboration among providers, which include clinical staff
conducting home visits, is a desirable characteristic of primary care.
Another commenter requested VA preserve the role of the veteran's or
servicemember's treating clinician in the eligibility and reassessment
process. While we note these comments were primarily focused on the use
of primary care teams during the initial eligibility assessment, we
believe these comments are equally applicable to a reassessment, the
results of which will determine an eligible veteran's continued
eligibility for participation in PCAFC and whether an 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). Thus, we believe it is
necessary to collaborate with the primary care team during
reassessments in addition to the initial evaluation of PCAFC applicants
to the maximum extent possible. For these reasons, we are revising
Sec. 71.30(a) and (e) by replacing the phrase ``the eligible veteran
and Family Caregiver will be reassessed by VA'' with ``the eligible
veteran and Family Caregiver will be reassessed by VA (in collaboration
with the primary care team to the maximum extent practicable)''. We
make no other changes based on these comments.
One commenter stated that the lack of specificity in the proposed
rule for extending that periodicity is very likely to introduce huge
variance into assessment and re-eligibility decisions. Specifically, it
could even introduce corruption if caregiver eligibility assessment
officials decided they could exact benefits from veterans or caregivers
in exchange for longer periods between reassessments. To the extent the
commenter is concerned about the determination of how frequently
reassessments will occur, we refer to the previous paragraphs that
provide examples for when a reassessment may be conducted more or less
frequently than on an annual basis. Also, PCAFC will refer all
suspected fraudulent or illegal activities, including such situations
that may involve VA employees, to VA's OIG and actively participate in
VA OIG cases. We are not making any changes based on this comment.
One commenter suggested that VA have a well-defined process to
monitor the documented changes by all entities who monitor the eligible
veterans' health conditions to warrant a reassessment. VA is
responsible for determining and documenting the frequency requirements
for assessments that deviate from the annual schedule. Additionally,
through policy we would require documentation of the clinical factors
relied upon in concluding that a less than or more frequent
reassessment is needed. Furthermore, clinical providers are subject to
chart and peer reviews to ensure proper documentation in VA's
electronic health care record. We are not making any changes based on
this comment.
One commenter asked if the caregiver can be with the veteran when
they are
[[Page 46264]]
reassessed since the caregiver has a better view of what the veteran
needs and what the veteran can and cannot do. Relatedly, one commenter
asserted that VA should pay attention to feedback from caregivers and
their concerns. VA does and will continue to accept and consider
feedback from Family Caregivers. Specifically, Family Caregiver(s) are
required to participate in reassessments and wellness contacts pursuant
to Sec. Sec. 71.30 and 71.40(b)(2), respectively. VA will also
incorporate the Family Caregiver(s) feedback both during the initial
assessment and annual reassessment. We are not making any changes based
on these comments.
Another commenter asserted that the rule is missing 38 U.S.C.
1720G(a)(3)(C)(iii)(I), i.e., assessment by the Family Caregiver of the
needs and limitations of the veteran; and requested that VA should
strike down the rule because VA ignored this requirement. First, we
note that it is not a legal requirement to explicitly regulate the
requirement of section 1720G(a)(3)(C)(iii)(I) in 38 CFR part 71;
however, VA does have a legal duty to meet this requirement. Second, as
indicated in the proposed rule, a ``reassessment would provide another
opportunity for Family Caregivers and eligible veterans to give
feedback to VA about the health status and care needs of the eligible
veteran. Such information is utilized by VA to provide additional
services and support, as needed, as well as to ensure the appropriate
stipend level is assigned.'' 85 FR 13379 (March 6, 2020). We also note
that we would take the information from the caregiver into account when
determining whether a veteran or servicemember is unable to self-
sustain in the community (as defined in Sec. 71.15). We are not making
any changes based on this comment.
One commenter requested clarification on the impact a reassessment
will have on a legacy participant. Specifically, the commenter asked if
a legacy participant will no longer be eligible for PCAFC and revoked
if a reassessment determines that he or she does not meet the new
eligibility requirements under Sec. 71.20(a). As indicated in the
proposed rule, all legacy participants and legacy applicants will be
reassessed within one year of the effective date of the final rule to
determine continued eligibility in PCAFC. Upon the completion of the
one-year period, legacy participants and legacy applicants who are no
longer eligible pursuant to Sec. 71.20(a) will be provided a discharge
notice of not less than 60 days and will receive a 90-day extension of
benefits. We are not making any changes based on this comment.
Sec. 71.35 General Caregivers
One commenter opined that PGCSS is good but should only be
contained to veterans enrolled in VA care and not any caregiver that
exists because that is what community programs are for. PGCSS is only
provided to a general caregiver providing personal care services to a
covered veteran (i.e., a veteran who is enrolled in the VA health care
system). 38 U.S.C. 1720G(b)(1) and 38 CFR 71.30(b). Additionally, we
did not propose any changes to this section other than to redesignate
current Sec. 71.30 as new Sec. 71.35. We are not making any changes
based on this comment.
Another commenter suggested that VA should not be overly
restrictive with the eligibility requirements of PGCSS and provide
training and education, selfcare courses, peer support, and the
Caregiver Support Line to caregivers of covered veterans. The same
commenter also asserted that there is no statutory or regulatory
requirement that a general caregiver must provide personal care
services in person. Further, the same commenter suggested VA consider
allowing an enrolled veteran to participate in PGCSS if he or she is a
caregiver to a non-veteran spouse, partner, friend, or relative and
that this would increase the veteran's wellbeing and health. We
appreciate the commenter's suggestions and note that the definition for
personal care services as used by PGCSS does not require a general
caregiver to provide in person personal care services. As indicated in
the proposed rule, we believe the definition for ``personal care
services'' is still appropriate for purposes of 38 U.S.C. 1720G(b) with
respect to PGCSS and a new definition of ``in need of personal care
services'' has been added to delineate whether such services must be
provided in person for purposes of PCAFC.
Additionally, as explained above, PGCSS is only provided to a
general caregiver providing personal care services to a covered veteran
(i.e., a veteran who is enrolled in the VA health care system). 38
U.S.C. 1720G(b)(1) and 38 CFR 71.30(b). Thus, we do not have the
authority to provide PGCSS to veterans providing personal care services
to a non-covered veteran. Furthermore, we did not propose any changes
to Sec. 71.30 other than to redesignate current Sec. 71.30 as new
Sec. 71.35. We are not making any changes based on this comment.
Sec. 71.40 Caregiver Benefits
Wellness Contacts
One commenter suggested VA include language in the final rule to
state that a wellness visit cannot result in reassessment of a veteran,
unless it would result in being assigned to a higher tier. It is VA's
intent that the purpose of wellness contacts is to review both the
eligible veteran's and Family Caregiver's wellbeing, and the adequacy
of care and supervision being provided to the eligible veteran by the
Family Caregiver. During a wellness contact, the clinical staff member
conducting such contact may identify a change in the eligible veteran's
condition or other such change in circumstances whereby a need for a
reassessment may be deemed necessary and arranged accordingly pursuant
to Sec. 71.30. We note that wellness contacts and reassessments are
distinct and separate processes. As explained above in the discussion
on Sec. 71.30, a reassessment may occur more or less frequently than
on an annual basis based on the individual care needs of the eligible
veteran. Furthermore, 38 U.S.C. 1720G(c)(2)(A) clearly articulates that
the assistance or support provided under PCAFC and PGCSS do not create
any entitlements; thus, the monthly stipend rate may be decreased based
on a reassessment and the determination of whether an eligible veteran
is unable to self-sustain in the community or no longer meets the
eligibility requirements under Sec. 71.20(a). Therefore, we disagree
with the commenter's suggestion that a wellness visit cannot result in
a reassessment, unless it would result in being assigned a higher tier.
We make no changes based on this comment.
Several commenters opposed the change from 90 days to 180 days for
monitoring (i.e., wellness contacts) and encouraged VA to continue the
90-day requirement to ensure veterans and their caregivers needs are
met. Specifically, commenters asserted that maintaining the 90-day
monitoring requirement will provide effective oversight to ensure the
well-being and safety of the eligible veteran and Family Caregiver,
especially those veterans who are most vulnerable and susceptible to
abuse. Relatedly, we note that one commenter stated that they do not
find the 90-day requirement to be burdensome and do not wish for the
visits to change because the commenter relies on the visits for
support. The same commenter noted that prior to being part of PCAFC,
they struggled with not being able to obtain caregiver support.
Commenters also asserted that VA has provided no medically sound
justification for this
[[Page 46265]]
change, and they believe it is an inadequate time period for monitoring
veterans who are seriously ill or injured, especially those who are in
the aging population with increased and evolving needs. These
commenters note that more frequent wellness checks would ensure PCAFC
participants have the support and resources needed to remain safe in
their home setting. Commenters further noted that VA should retain the
current 90-day monitoring requirements as this would be consistent with
acceptable industry standards, including HHS and CMS, whereas the
proposed wellness contacts of once every 180 days would not. We address
these comments below.
We appreciate the comments received and agree with the commenters
that increasing the frequency of these visits from 90 days to 180 days
may not provide adequate monitoring of an eligible veteran and his or
her caregiver, especially as we expand to an aging population.
Therefore, we have revised the regulation to state that wellness
contacts ``will occur, in general, at a minimum of once every 120
days,'' as we believe this is reasonable. We note that 120 days
establishes a minimum baseline for the frequency of wellness contacts
and that these contacts may occur more frequently, if needed, to
address the individual needs of the eligible veteran and his or her
Family Caregiver. Additionally, we have added the phrase ``in general''
to provide scheduling flexibility for both VA and the eligible veteran
and his or her caregiver. As indicated in the proposed rule, eligible
veterans and his or her Family Caregiver are required to participate in
wellness contacts. Furthermore, we believe a 120-day frequency will
accommodate those eligible veterans whose conditions are generally
unchanged and would experience a significant disruption in the daily
routine when having to make scheduling changes to accommodate a
wellness contact. We make no additional changes based on these
comments.
Another commenter encouraged VA to require wellness contacts on at
least a quarterly basis, to ensure that wellness contacts include a
full assessment of a veteran's health needs based on the input of the
primary care team providing treatment to the veteran, and adjust the
eligible veteran's and caregiver's benefits without having to wait for
an annual reassessment if warranted based on the wellness contact. This
commenter believes that these changes would be consistent with the
overall intent of PCAFC and will better serve the veteran, especially
in light of VA OIG's findings that VA has not consistently monitored
current veterans in PCAFC. As explained above, the purpose of a
wellness contact is to review both the eligible veteran's and Family
Caregiver's wellbeing, the adequacy of care and supervision being
provided to the eligible veteran by the Family Caregiver, and provide
the opportunity to offer additional support, services, or referrals for
services needed by the eligible veteran or Family Caregiver.
Additionally, as explained above, reassessments may occur on a more or
less frequent basis than annually and a wellness contact may result in
a reassessment pursuant to Sec. 71.30, as necessary, which would
include a determination of whether the eligible veteran is unable to
self-sustain in the community for purposes of the monthly stipend rate.
We are not making any changes based on this comment.
Commenters also opined that requiring a minimum of one annual in
home/in person wellness contact is substandard for purposes of
monitoring and evaluating the eligible veteran and Family Caregiver,
and suggested VA provide the same level of staff monitoring as would be
expected if VA needed to hire a professional home health aide for a
veteran. Additional commenters noted that CSP does not know whether and
to what extent personal care services are being provided, and thus it
is impossible to assess the well-being of the eligible veteran and
Family Caregiver without direct observation by a qualified medical
professional. Commenters also asserted that VA will be unable to
properly monitor veteran's and caregiver's well-being or determine
whether personal care services are being provided appropriately if VA
is conducting wellness contacts semi-annually via phone. Commenters
noted that CMS requires onsite visits, by a registered nurse or other
appropriate skilled professional, ranging from 14 days to 60 days in
instances when home health aide services are provided to a patient. We
appreciate the commenters' concerns; however, we note that the
regulation establishes a minimum baseline for how many visits must
occur in the eligible veteran's home on an annual basis and that
additional or all of the these contacts may occur in the eligible
veteran's home, if needed, to address the individual needs of the
eligible veterans and his or her Family Caregiver. We are not making
any changes based on these comments.
Commenters stated that these wellness contacts would contradict VHA
policy for patients residing in a community nursing home, which
requires that a registered nurse or social worker from the contracting
VA facility conduct follow-up visits on all patients at least every 30
days except in certain situations. As explained above, we are revising
the frequency of contacts from 180 days to 120 days. Additionally, 120
days establishes a minimum baseline for the frequency of wellness
contacts, and these contacts (including home visits) may occur more
frequently, if needed, to address the individual needs of the eligible
veteran and his or her Family Caregiver. Furthermore, PCAFC is a
distinct program that provides benefits to Family Caregiver(s) for the
provision of personal care services to an eligible veteran in his or
her home; thus, we do not believe the frequency of wellness contacts
must align with VHA policy for patients residing in a community nursing
home, with which we contract. We are not making any changes based on
this comment.
Commenters identified there has been a lack of monitoring and
accountability with the administration of PCAFC, resulting in fraud,
waste, and abuse (which has been documented by VA OIG), however, they
opined that the wellness contacts will do little to address these
issues, as VA has failed to effectively run PCAFC by not establishing a
governance system to promote accountability. Some commenters noted that
the program has become too large as a result of this lack of
accountability, which they believe led to participants being kicked out
of PCAFC in 2015. As indicated in the proposed rule, we acknowledge
that we have experienced difficulty conducting monitoring due to
limited resources. 85 FR 13380 (March 6, 2020). Transitioning the
frequency of wellness contacts to generally every 120 days as well as
increased staffing for the program is expected to mitigate resource
limitations. In addition, we have developed an improved infrastructure
at the VISN and medical center level to better oversee the delivery of
PCAFC. Further, as explained previously in this rulemaking, we will
provide robust training and education to our staff, implement an audit
process to review eligibility determinations, and conduct vigorous
oversight to ensure consistency across VA in implementing this
regulation. We also anticipate that the regulations and additional
training will create more consistency and standardization across VA,
which believe will reduce any fraud, waste, and abuse within PCAFC. We
thank the commenters for their concerns;
[[Page 46266]]
however, we make no changes based on these comments.
One commenter implied that the proposed rule stated that OIG found
monitoring is resource intensive and burdensome. We correct this
commenter's misunderstanding by stating that OIG did not determine that
monitoring was resource intensive or burdensome, rather the proposed
rule acknowledged that we have failed to meet the 90-day requirement
due to limited resources, and we note that some PCAFC participants have
informed VA that they find the 90-day requirement to be burdensome. As
explained above, we will be conducting wellness contacts every 120
days, which we believe is a reasonable frequency for wellness contacts.
We make no changes based on this comment.
One commenter opined that these proposed wellness contacts do not
meet the requirements in 38 U.S.C. 1720G(a), as VA is required to
monitor the well-being of eligible veterans by directly reviewing the
quality of the personal care services in the veteran's homes and taking
corrective action. This commenter also asserted that reassessments of
veteran eligibility for PCAFC and monitoring the well-being of the
eligible veteran are simply not analogous. First, 38 U.S.C. 1720G does
not require VA conduct monitoring of the eligible veteran's wellbeing
in the home or take related corrective action; instead, section
1720G(a)(9) requires VA establish procedures to ensure appropriate
follow-up, which may include monitoring the wellbeing of the eligible
veteran in the home and taking corrective action, including suspending
or revoking the approval of a Family Caregiver. We note these latter
provisions are discretionary. Second, we note that we currently perform
periodic monitoring pursuant to 38 CFR 71.40(b)(2) and consistent with
38 U.S.C. 1720G(a)(9)(A). Section 161(a)(5) of the VA MISSION Act of
2018 amended 38 U.S.C. 1720G(a)(3)(D) to additionally require VA to
periodically evaluate the needs of the eligible veteran and the skills
of the Family Caregiver to determine if additional instruction,
preparation, training, and technical support is necessary. Consistent
with section 1720G, the purpose of wellness contacts is to review both
the eligible veteran's and Family Caregiver's wellbeing, and the
adequacy of care and supervision being provided to the eligible veteran
by the Family Caregiver. We note that we would require at least one
wellness contact occur in the eligible veteran's home on an annual
basis. Reassessments will be conducted to evaluate the eligible
veteran's and Family Caregiver's eligibility, including the Family
Caregiver's continued eligibility to perform the required personal care
services, and whether the eligible veteran is unable to self-sustain in
the community for purposes of the monthly stipend. As indicated in the
proposed rule, we believe the combination of wellness contacts and
reassessments meet the periodic evaluation requirement in 38 U.S.C.
1720G(a)(3)(D), as we would determine whether any additional
instruction, preparation, training, and technical support is needed in
order for the eligible veteran's needs to be met by the Family
Caregiver. We further note that to the extent that we would need to
take corrective action pursuant to section 1720G(a)(9), we may revoke
or discharge a caregiver or veteran from PCAFC pursuant to 38 CFR
71.45, as appropriate. We are not making any changes based on this
comment.
A commenter incorrectly stated that VA has never met the statutory
requirement to complete monitoring assessments no less than every 90
days; however, that is not a requirement established in the statute,
but rather in regulation by VA. We are not making any changes based on
this comment.
Several commenters stated that the proposed 180-day requirement is
too much and that these visits can be easily conducted by the phone
rather than in person. Additionally, commenters asserted that these
visits be waived for eligible veterans who have a 100 percent P&T
service-connected disability rating or receive other VBA or SSA
disability benefits. As previously explained, the purpose of wellness
contacts is to review both the eligible veteran's and Family
Caregiver's wellbeing, and the adequacy of care and supervision being
provided to the eligible veteran by the Family Caregiver. Also, while
we understand that the condition of some eligible veterans will remain
unchanged, VA has a statutory requirement to periodically evaluate the
needs of the eligible veteran and the skills of the Family Caregiver to
determine if additional instruction, preparation, training, or
technical support is necessary. See 38 U.S.C. 1720G(a)(3)(D).
Additionally, as explained above, we are revising the requirement from
180 days to 120 days, which we believe will accommodate those eligible
veterans whose condition is generally unchanged and would experience a
significant disruption in the daily routine when having to make
scheduling changes to accommodate a wellness contact. Further, while we
agree that some visits can be conducted by phone or other telehealth
modalities, we believe that at least one wellness contact should occur
in the eligible veteran's home to provide direct observation of the
personal care services provided and assess the wellbeing of the veteran
and Family Caregiver. We are not making any changes based on these
comments.
Several commenters requested clarification on frequency of contacts
and one commenter suggested that the frequency of these contacts be
adjusted to accommodate individual circumstances for eligible veterans
and Family Caregivers. As previously explained, 120 days establishes a
minimum baseline for the frequency of wellness contacts and these
contacts may occur more frequently if needed, to address the individual
needs of the eligible veteran and Family Caregiver. We are not making
any changes based on these comments.
One commenter stated that using the term ``wellness contact'' is
inconsistent with the provision of Home and Community Based Services
and standard medical terminology, specifically the annual wellness
visit which is a yearly appointment with a primary care provider to
create or update a personalized prevention plan. The commenter asserts
that when all members of the healthcare team use the same terminology,
they can understand what is on the patient's chart and provide them
with the best possible care. As indicated in the proposed rule, we
believe changing the terminology from ``monitoring'' to ``wellness
contacts'' is a more accurate description of the purpose of these
visits as it includes a review of the wellbeing for both the eligible
veteran and Family Caregiver. Additionally, we have found that people
find the term ``monitoring'' to be punitive. We are not making any
changes based on this comment.
Monthly Stipend Rate
VA proposed several changes to the methodology and calculation of
monthly stipend payments for Primary Family Caregivers. In particular,
we proposed to use the OPM's GS Annual Rate for grade 4, step 1, based
on the locality pay area in which the eligible veteran resides, divided
by 12. We further proposed to discontinue the use of the combined rate,
which is based on the Bureau of Labor Statistics (BLS) hourly wage rate
for home health aides at the 75th percentile in the eligible veteran's
geographic area of residence, multiplied by the Consumer Price Index
for All Urban Consumers (CPI-U).
One commenter supported the use of the OPM GS Annual Rate for grade
4,
[[Page 46267]]
step 1, and stated that it will lend significant standardization and
greatly increase the ease of program administration. Another commenter
similarly supported this change and described the GS rate as more
accurate and standardized. We appreciate these comments and do not make
any changes based upon them.
Some commenters were concerned with VA using GS instead of BLS. In
particular, commenters stated that the transition from BLS to GS is
wholly inadequate, unreasonable, illogical, arbitrary, inconsistent
with law, and an effort to reduce the amount of stipends that will be
paid. Other commenters opposed transitioning from the combined rate
(using BLS rates) to the monthly stipend rate (using GS rates), and one
commenter urged VA to keep the current rate. Another commenter
expressed concern that using the GS rate would treat caregivers like
government employees.
We disagree with the commenters above and find that the use of the
GS scale is not only reasonable and consistent with the law but will
also result in an equal or increased payment for the majority of
participants. As we explained in the proposed rule, we believe it is
reasonable to use the GS rate instead of the combined rate because of
challenges we had using the BLS rate. 85 FR 13382 (March 6, 2020). We
tried to identify other publicly available rates that we could use for
calculating the monthly stipend that would meet the statutory
requirements in 38 U.S.C. 1720G(a)(3)(C)(ii) and (iv), but were unable
to locate any. We found that the GS wage rates address some of the
challenges we have had using the BLS rate. Id. We further found that
the GS wage rates meet our needs for administering the stipend payment,
as it is publicly available, easy to locate, is developed entirely
outside of VA with a defined process for updating the rates, and
provides geographic variation. However, after publication of the
proposed rule and in considering public comments such as the reference
to caregivers being treated like federal employees, VA examined the
challenges associated with making retrospective pay corrections in
instances when OPM announces retrospective changes to the GS scale
tables later in the year. Such adjustments would complicate VA's goal,
as stated in the proposed rule, of adopting the GS wage rates to
``ensure more consistent, transparent, and predictable stipend
payments,'' (85 FR 13382 (March 6, 2020)) and our proposal to pay
stipends monthly by dividing the annual rate by 12 (rather than using
the same pay period structures that most federal employees are paid
through). Such retrospective payments would increase the risk of
improper payments, be administratively impracticable for VA, and would
be anticipated to only represent a few percentage points' change in
retrospective pay over a relatively short period of time. Thus, VA will
not make retroactive stipend payments resulting from retrospective
changes to GS wage rates by OPM and accordingly amends the regulation
text to indicate that adjustments under Sec. 71.40(c)(4)(ii)(A) take
effect ``prospectively following the date the update to such rate is
made effective by OPM.'' This change only applies to Sec.
71.40(c)(4)(ii)(A) and would not impact the retroactive adjustments in
Sec. 71.40(c)(4)(ii)(C)(2)(i) as a result of a reassessment conducted
by VA under Sec. 71.30.
In addition, we analyzed the GS and BLS wage rates to determine
whether the GS wage rates tracked the private sector wages for home
health aides, and we found that these closely tracked in the past both
at a national level and for GS adjusted localities. Id. As we explained
in the proposed rule, we determined the appropriate GS grade and step
for stipend payments by comparing against BLS wage rates for commercial
home health aides, and found that for 2020, the BLS national median
wage for home health aides (adjusted for inflation) is equivalent to
the base GS rate at grade 3, step 3 (without a locality pay
adjustment). Id. We also found that in most U.S. geographic areas for
2020, the GS rate at grade 3, step 3 would be equal to or higher than
the BLS median wage for home health aides in the same geographic areas.
Id. at 13383. We considered using a unique GS grade and step based on
the median home health aide wage rate in each of the geographic areas
where the 2020 GS rate at grade 3, step 3 was less, but determined that
would not be appropriate or practicable for the reasons previously
explained in the proposed rule. Id. As a result, we proposed to use the
slightly higher GS rate at grade 4, step 1 for all localities, which is
consistent with the requirements of section 1720G(a)(3)(C)(ii), (iv)
(i.e., that to the extent practicable, the stipend rate is not less
than the monthly amount a commercial home health care entity would pay
an individual to provide equivalent personal care services in the
eligible veteran's geographic area or geographic area with similar
costs of living).
We note that we do not view Family Caregivers as government
employees, and use of the monthly stipend rate (i.e., GS Annual Rate
for grade 4, step 1, based on the locality pay area in which the
eligible veteran resides, divided by 12) instead of the combined rate
using the BLS rate does not change our view. The stipend payment is not
intended to compensate Family Caregivers as if they were government
employees, but rather acknowledge the sacrifices these Family
Caregivers have made to care for eligible veterans. The benefits of
using the GS Annual Rate, as explained in the proposed rule and further
described herein, outweigh any potential concerns that use of this rate
could result in caregivers being treated like government employees.
Additionally, we expressly state in 38 CFR 71.40(c)(4)(iii), as made
final within this rule, that nothing in this section shall be construed
to create an employment relationship between VA and a Family Caregiver.
We make no further changes based on these comments.
Other commenters were concerned that the monthly stipend rate would
be too low. In particular, commenters were concerned that the rate will
not properly compensate Primary Family Caregivers for the care they
provide, does not reflect the actual rates of home health aides, and is
less than the proposed minimum wage of $15 per hour. Another commenter
found the GS rate to be inadequate because the USA National Average for
cost of in-home care is $52,624 as reported in the AARP Genworth Study.
Others emphasized sacrifices made by caregivers to take care of loved
ones, including lost employment wages.
We reiterate from the proposed rule that the stipend rate is
consistent with the statutory requirements of 38 U.S.C.
1720G(a)(3)(C)(ii) and (iv), which requires that to the extent
practicable, the stipend rate be not less than the monthly amount a
commercial home health care entity would pay an individual to provide
equivalent personal care services in the eligible veteran's geographic
area or geographic area with similar costs of living. See 85 FR 13382-
13383 (March 6, 2020).
In response to the commenters who shared their personal stories and
expressed concern that the stipend rate is too low, we understand and
appreciate the many sacrifices these caregivers make on a daily basis
to care for our nation's veterans. We are incredibly grateful for the
care and valuable service they provide. These caregivers greatly impact
veterans' ability to remain safely in their homes for as long as
possible. We note that PCAFC is just one of the ways in which VA is
able to recognize and thank these caregivers for their service and
sacrifice.
[[Page 46268]]
In particular, the monthly stipend is an acknowledgement for the
sacrifice Family Caregivers make to care for eligible veterans. See 76
FR 26155 (May 5, 2011). It was never intended to compensate Primary
Family Caregivers for their services or lost wages.
In response to the commenter who was concerned that the monthly
stipend rate may be less than the proposed minimum wage of $15 per
hour, we note that the stipend payment, to the extent practicable, must
be no less than the annual salary paid to home health aides in the
commercial sector. 38 U.S.C. 1720(G)(3)(C)(ii), (iv). Thus, by law, we
are required to look at the national median for home health aides. We
reviewed 2018 data of the national median for home health aides
(adjusted for inflation to 2020), and found that the national median
was $12.60 per hour. The higher monthly stipend rate of 100 percent of
the GS Annual Rate at grade 4, step 1 would receive $14.95 per hour in
2020. We note that that is the hourly rate for the Rest of the United
States, and that Primary Family Caregivers may receive more based on
their locality since the Rest of the United States would be the lowest
rate possible for purposes of calculating the stipend rate based on
locality. However, Primary Family Caregivers may receive a lower
stipend payment if they receive the lower stipend rate (i.e., 62.5
percent of the GS Annual Rate at grade 4, step 1.) It is also important
to further note that the monthly stipend payment is a nontaxable
benefit. We recognize that some Primary Family Caregivers will receive
less than $15 an hour however, we believe that the stipend rate meets
the statutory requirement for payment and is appropriate given the
intent of the benefit. As previously explained, the monthly stipend is
intended to acknowledge the sacrifices Family Caregivers make and was
never intended to compensate for their services.
In response to AARP Genworth Study, we note that this study
reflects the cost of contracted in-home care (as the rate listed is the
rage charged by a non-Medicare certified, licensed agency), and is not
reflective of the actual wages of the home health aides who provide
care. The cost of contracted in-home care also includes both overhead
and profits for the agency, which are not passed on to home health
aides. Second, we acknowledge that the cost of institutional or in-home
care is more than the monthly stipend. Pursuant to 38 U.S.C.
1720G(a)(3)(C)(ii),(iv), we are required to look at the wages of home
health aides to determine the stipend rate, and the stipend rate must
be no less than the monthly amount a commercial home health care entity
would pay an individual. While the Primary Family Caregiver and the
services he or she provides complement the clinical care provided by
commercial home health care entities to eligible veterans, the Primary
Family Caregiver is not intended to be a replacement or substitute for
such care. We also note that the Primary Family Caregiver does not
necessarily have the same specialized training and education as those
providing clinical care, and that the cost of care billed by a licensed
agency may include multiple caregivers. Thus, we do not believe it
would be reasonable or consistent with the statute to pay Primary
Family Caregivers the cost of care billed by licensed agencies. We make
no changes based on these comments.
One commenter noted that the reduction in the stipend amount may
result in the caregiver working outside the home which can hurt the
veteran who cannot survive without the caregiver. While we recognize
that some current participants may have a reduced stipend amount based
on changes we are making to the stipend methodology, the transition
from BLS to GS should result in the majority of current participants
receiving an increase in their stipend amount. As we explained in the
proposed rule and reiterate within this final rule, we will provide a
period of transition for legacy participants to minimize any negative
impact. We further note that as part of this rulemaking, we are
providing financial planning services as an additional benefit
available to Primary Family Caregivers. This new benefit can assist
these Family Caregivers with managing their finances. To the extent an
eligible veteran requires more care than the Primary Family Caregiver
is able to provide, PCAFC is one of many programs that may be available
to meet the needs of eligible veterans. In such instances, we recommend
speaking with VA about other care options that may be available, such
as home based primary care, and Veteran-Directed care. We make no
changes based on this comment.
Other commenters asserted that VA's proposed changes will result in
stipend amounts that are too high. In particular, one commenter
expressed concern that the stipend payments are in some cases higher
than disability compensation that veterans receive. Other commenters
believe the stipend payments can result in the veteran or caregiver
mismanaging the stipend, encourage individuals not to work, and are
inconsistent with the purpose of the stipend to assist the Family
Caregiver rather than pay for mortgages and similar expenses.
Consistent with our explanation in the proposed rule and as
explained directly above, we believe the monthly stipend rate will not
result in stipend rates that are too high because the monthly stipend
rate is consistent with the statutory requirements of 38 U.S.C.
1720G(a)(3)(C)(ii) and (iv), by being not less than the monthly amount
a commercial home health care entity would pay an individual to provide
equivalent personal care services in the eligible veteran's geographic
area or geographic area with similar costs of living. See 85 FR 13382
(March 6, 2020). Additionally, as explained in the proposed rule and in
this section, we determined that the monthly stipend rate tracks with
the national median wage for home health aides. Id.
To the extent that commenters were concerned that monthly stipend
payments can be higher than the disability compensation that veterans
receive, we recognize that this may possibly occur. However, it is
important to note that disability compensation and PCAFC are two
distinct and separate programs with different purposes. In deciding the
monthly stipend methodology, we considered whether disability
compensation payments would be less than Primary Family Caregiver
monthly stipend payment, but determined that the advantages of using
the GS rate to calculate the monthly stipend payment outweigh any
concerns with respect to the veteran's disability compensation payment
compared to the monthly stipend payment.
To the extent that commenters asserted that the monthly stipend
encourages individuals not to work, we respectfully disagree. We are
aware that many Primary Family Caregivers have already given up
employment so that they can care for eligible veterans. For those who
are unable to afford to care for an eligible veteran without working,
we recognize that this monthly stipend may provide Primary Family
Caregivers with the flexibility to care for the eligible veteran. The
monthly stipend is one of many benefits available to Primary Family
Caregivers as a way to acknowledge their sacrifices in caring for
eligible veterans and their valuable contributions to society. We also
note that since the monthly stipend for Primary Family Caregivers is a
benefit payment, and not based on an employment relationship, it does
not involve employer contributions to old-age, survivors, and
disability Insurance (commonly known as ``Social Security'') or
participation in a defined-contribution or defined-benefit
[[Page 46269]]
retirement program. Given this and the fact that the stipend is
nontaxable (and thus is not taxed at a higher tax bracket if there is
other taxable income from employment or other sources), we do not
believe there is an incentive for Primary Family Caregivers who would
otherwise work outside of the caregiving role to leave the labor market
because of their participation in PCAFC.
To the extent that commenters believe the stipend payment will lead
to mismanagement and it can be used to pay a mortgage or other similar
expenses, we do not impose any requirements or limitations on how a
Primary Family Caregiver spends the monthly stipend he or she receives,
and we decline to establish such requirements or limitations. However,
we do note that as part of the improvements we are making to part 71 as
part of this rulemaking, Primary Family Caregivers will be eligible to
receive financial planning services, which can assist the Primary
Family Caregiver with managing the stipend payment.
Other commenters recommended alternative approaches to determine
the monthly stipend amount. Specifically, one commenter requested that
the stipend be the rate of the salary the caregiver earned in their
past occupation and commensurate with the caregiver's education,
because many caregivers leave their jobs to become a caregiver, and
many are healthcare providers providing high level of care that a home
health aid is not trained or permitted to perform. This commenter also
noted that this would be cost efficient for VA since they would not
have to put the veteran in a skilled nursing home at VA's expense.
Another commenter recommended the stipend more closely align to the pay
of a VA registered nurse. This same commenter urged VA to compare the
salary of a home health care worker (with a median pay in 2018 of
$24,060) to a live-in home health care worker (which can average $4,800
per month for 40 hours per week of in-home care costs). Additionally,
one commenter recommended that VA assign the GS-4, Step 10 rate to
those with extreme disabilities that require 24/7, 365 care. Another
commenter suggested caregivers should be paid as if enlisted in active
duty. One commenter recommended the stipend be calculated by what it
would cost to the government for institutionalization or inpatient care
of the eligible veteran reduced by 10-20 percent. Finally, another
commenter suggested the percentage of the GS rate at grade 4, step 1,
be based on the veteran's service-connected disability rating
percentage, and further suggested that caregivers provide care full
time and should be recognized more like a social worker or nurse.
We reiterate that the monthly stipend is an acknowledgement for the
sacrifices Family Caregivers make to care for eligible veterans. See 76
FR 26155 (May 5, 2011). While we recognize that some individuals may
give up their jobs to become a Family Caregiver, the monthly stipend is
not meant to be commensurate with the income a Family Caregiver
received from previous employment (including as a healthcare provider)
or with their education. It is also not meant to transfer any savings
VA may receive by not paying for a skilled nursing home or other
institutionalization or inpatient care of the veteran to the Family
Caregiver. The monthly stipend is also not meant to replace or
substitute clinical care that eligible veterans receive. The care that
Family Caregivers provide to eligible veterans is in addition to and
supportive of the increased quality of life or maintenance of such. We
note that services that Family Caregivers provide is not meant to
replace institutional or inpatient care, and that, in addition to
PCAFC, eligible veterans may be eligible for additional VHA services
such as skilled nursing home care, home based primary care, and
Veteran-Directed care. We acknowledge that there are commenters that
believe their contributions exceed that of a home health aide. However,
the reason that we use the wages of a home health aide for determining
the stipend rate is based on the requirement in 38 U.S.C.
1720G(a)(3)(C)(ii), (iv) (to the extent practicable, the stipend is not
less than the ``amount a commercial home health care entity would pay
an individual in the geographic area of the eligible veteran [or
similar area]''). Additionally, as indicated in the proposed rule and
reiterated in this section, we believe the GS rate for grade 4, step 1
is, to the extent practicable, not less than the annual salary paid to
home health aides in the commercial sector, particularly after
considering that the monthly personal caregiver stipend is a nontaxable
benefit. 85 FR 13383 (March 6, 2020).
To the extent that commenters suggested VA base the stipend on
other occupations, such as nurses (including registered nurses) and
social workers, we decline to do so as 38 U.S.C. 1720G(a)(3)(C)(ii) is
clear that the stipend be no less than the salary paid to a home health
aide. Similarly, we decline to adopt the suggestion that we compare the
salary of a home health care worker (with a median pay in 2018 of
$24,060) to a live-in home health care worker (which can average $4,800
per month for 40 hours per week of in-home care costs). Section
1720G(a)(3)(C)(ii) is clear that the stipend be no less than the salary
paid to a home health aide, not a live-in home health care worker.
Thus, we used home health aide wages for determining the rate to use
for the monthly stipend.
To the extent that a commenter suggested that we base the stipend
on enlisted active duty, we are unclear as to this commenter's specific
suggestion since they did not provide any additional information, and
their comment was in the context of providing caregivers benefits
similar to veterans. We note that active duty enlisted pay is based on
military rank (i.e., E-1 to E-9) and years of service. As the commenter
did not suggest the level of active duty enlisted pay we should
consider using for the stipend rate (or whether to include non-wage
forms of compensation received by active duty enlisted personnel), we
cannot further address their comment. Additionally, we did not consider
the pay of active duty enlisted because the statute requires us to
determine the stipend rate based on the salary paid to a home health
aide.
With regards to the commenter that suggested we use the GS Annual
Rate at grade 4, step 10 for the stipend payment for Primary Family
Caregivers who care for eligible veterans with extreme disabilities
that require 24/7, 365 days of care, we decline to do so as those with
the highest level of need, which we believe would likely include an
individual who needs around-the-clock care, would fall under the higher
stipend level (i.e., 100 percent of the monthly stipend rate) under 38
CFR 71.40(c)(4)(i)(A)(2). The intent of having higher and lower stipend
levels was to distinguish between those who are determined to be unable
to self-sustain in the community and those who are not, as these are
different levels of need. We decided not to use multiple GS grades and
steps as we wanted to ensure we had standardization and transparency
about the rate that we were using. More levels of pay would result in
more subjectivity in the assignment of rates. To the extent that this
commenter believes that 24/7 care is required, we note that this is not
the level of care we expect to be provided. We believe it is likely
that an individual who needs 24/7 care would need additional clinical
care from a skilled health care provider. We also note that this level
of care would be beyond the scope of the level of personal care
services that is intended under PCAFC,
[[Page 46270]]
particularly as that is not the level of training we provide to Family
Caregivers for the purpose of PCAFC. If an individual needs 24/7 care,
we are willing to provide referrals to other VHA services that may be
appropriate.
Lastly, in response to the commenter that suggested the percentage
of the GS rate at grade 4, step 1, be based on the veteran's service-
connected disability rating percentage, we decline to do so. We note
that as part of this final rule, and explained previously in this
rulemaking, we are defining serious injury to mean any service-
connected disability that (1) is rated at 70 percent or more by VA; or
(2) is combined with any other service-connected disability or
disabilities, and a combined rating of 70 percent or more is assigned
by VA. If we adopted this suggestion, only Primary Family Caregivers of
those veterans with a 70 percent or higher service-connected disability
rating would be eligible for the stipend rate so veterans that do not
meet the definition of serious injury would not qualify for PCAFC. We
note that while service-connected disability rating is part of the
definition of serious injury, it is not used to determine a veteran's
or servicemember's need for personal care services for purposes of
PCAFC eligibility. Instead, we assess the clinical needs of individuals
to determine whether he or she has a need for personal care services.
Service-connected disability rating is not commensurate with a need for
personal care services, and to use the disability rating for that
purpose would not be appropriate. We also note that we will have two
levels for the stipend payment, with the higher level (i.e., 100
percent) based on whether the eligible veteran is unable to self-
sustain in the community. All other Primary Family Caregivers will
receive the stipend payment at the lower rate (i.e., 62.5 percent).
These stipend levels are not based on service-connected disability
rating, but rather whether the veteran is unable to self-sustain in the
community. Having two levels for the stipend rate will ensure that
those Primary Family Caregivers of eligible veterans with severe needs
receive the higher stipend rate.
We make no changes to the regulation based on these comments.
Multiple commenters took issue with VA's statement that reliance on
the combined rate has resulted in stipend rates well above the average
hourly rate of a home health aide in certain geographic areas,
including one commenter who suggested that this has been ``solved by
the current BLS.gov/oes contracting process which eliminated outliers
in the May 2019 Survey.'' We address these comments below.
We recognize that BLS data has been adjusted to account for
outliers. However, as explained previously in this discussion on the
monthly stipend rate, we have determined that OPM's GS rate will better
address the needs of PCAFC. We note that the current combined rate uses
the most recent data from the BLS on hourly wage rates for home health
aides as well as the most recent CPI-U, unless using this most recent
data for a geographic area would result in an overall BLS and CPI-U
combined rate that is lower than that applied in the previous year for
the same geographic area, in which case the BLS hourly wage rate and
CPI-U that was applied in the previous year for that geographic area
will be utilized to calculate the Primary Family Caregiver stipend. See
80 FR 1397 (January 9, 2015). This was put in place to ensure that
Primary Family Caregivers would not unexpectedly lose monetary
assistance upon which they had come to rely. Id. In contrast to the BLS
rate, OPM's GS scale provides a more stable data set from year to year,
drastically reducing the probability of geographic regions experiencing
inflated stipend rates. A more detailed explanation is provided within
the regulatory impact analysis.
We make no changes based on these comments.
Consequences of Potential Decrease in Stipend
One commenter asked that Primary Family Caregivers of legacy
participants continue to be paid based on the BLS rate (i.e., combined
rate) while in the program. The commenter believes BLS to be more
comprehensive in calculating living wages and indicated that the
transition to the monthly stipend rate will cut their stipend in half
and they use their current stipend to cover in home treatments and
other treatments out-of-state that would otherwise be unavailable to
them.
Initially, we note that PCAFC is complementary to other VHA health
care services and we encourage PCAFC participants to learn about other
health care benefits that may help meet the needs of the eligible
veteran. Similar to our earlier discussion about grandfathering in
PCAFC participants, we believe it would be inequitable to allow the
Primary Family Caregivers of legacy participants to receive their
previous stipend rate indefinitely while applying the monthly stipend
rate for legacy applicants and new participants. Doing so would result
in Primary Family Caregivers of post-9/11 veterans and pre-9/11
veterans who are similarly situated in all respects receiving different
stipend amounts, which would continue the inequity between different
eras of service. It would also be administratively prohibitive to
utilize two different stipend payment methodologies as we expand PCAFC
to pre-9/11 veterans. As mentioned further above, the majority of
Primary Family Caregivers of legacy participants will receive increases
in the amount of their stipend as a result of the transition from BLS
to GS. However, some may experience a decrease in their stipend amount,
which is why we provide a period of transition (i.e., to minimize the
negative impact of changes to the stipend methodology). We note that
the stipend amount for the Primary Family Caregivers of legacy
participants will generally remain unchanged during the one-year period
beginning on the effective date of this rule, unless it is to their
benefit, and so long as the legacy participant does not relocate to a
new address. We are not making any changes based on this comment.
Another commenter indicated that VA's changes will result in a
decrease in the commenter's stipend amount. The commenter indicated an
understanding of the transition period outlined in the proposed rule,
but asked whether there will be a cost of living increase for those who
``already make to [sic] much'' under the previous stipend payment
methodology. On the effective date of this rule, part 71 will no longer
refer to the combined rate, and as explained in VA's proposed rule, VA
will no longer make annual adjustments to the combined rate (85 FR
13358 (March 6, 2020)), including for Primary Family Caregivers of
legacy participants who continue (for one year after the effective
date) to receive the same stipend amount they were eligible to receive
the day before the effective date of the final rule pursuant to the
special rule in Sec. 71.40(c)(4)(i)(D). To the extent the commenter is
asking about adjustments to stipend payments under the new stipend
payment methodology (based on the monthly stipend rate) that result
from OPM's updates to the GS scale, this is addressed in Sec.
71.40(c)(4)(ii)(B). As explained in VA's proposed rule, the GS pay
schedule is usually adjusted annually each January based on nationwide
changes in the cost of wages and salaries of private industry workers.
85 FR 13388 (March 6, 2020). Any adjustment to stipend payments that
result from OPM's updates to the GS Annual Rate for grade 4, step 1 for
the locality pay area in which the eligible veteran resides, will take
effect
[[Page 46271]]
prospectively following the date the update to such rate is made
effective by OPM. See Sec. 71.40(c)(4)(ii)(A). We are not making any
changes based on this comment.
Periodic Assessments
One commenter requested VA include a statement in the final rule
that VA will post the findings of its assessments of the monthly
stipend rates on a public website so that stakeholders are able to
easily evaluate the impact of this change on Family Caregivers in the
program. We proposed to add Sec. 71.40(c)(4)(iv) which states that in
consultation with other appropriate agencies of the Federal government,
VA shall periodically assess whether the monthly stipend rate meets the
requirements of 38 U.S.C. 1720G(a)(3)(ii) and (iv). We will consider
making findings of these assessments publicly available in an effort to
be as transparent as possible. We are not making any changes based on
this comment.
Unable To Self-Sustain in the Community
VA proposed to add a new definition for the phrase ``unable to
self-sustain in the community,'' for purposes of determining the
monthly stipend level under Sec. 71.40(c)(4)(i)(A). Unable to self-
sustain in the community was proposed as the sole criterion to
establish eligibility for the higher level stipend and would mean that
an eligible veteran (1) requires personal care services each time he or
she completes three or more of the seven activities of daily living
(ADL) listed in the definition of an inability to perform an activity
of daily living in 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. Commenters raised numerous
concerns with the definition, including but not limited to the
definition lacking clarity and objectivity, use of a double negative in
the proposed rule discussion, that few veterans will be eligible for
the higher stipend level and that it will promote total reliance on
caregiver, that it is arbitrary and too strict, and that it is
economically unfair. Commenters also provided suggested edits to parts
of the definition and requested we continue to use the current three
tiers instead of two levels for purposes of the monthly stipend rate.
While we make no changes to the regulation based on these comments, we
address them in the discussion below.
One commenter stated that the new definitions seem to be easier to
understand, but is concerned the requirements may still be left to
interpretation. While the commenter did not specify which definitions
were easier to understand, we believe the commenter to be referring to
unable to self-sustain in the community, as the comment also referred
to the new stipend levels. Another commenter stated that the proposed
rule lacked adequate information on what being unable to self-sustain
in the community means although it is a determining factor for which
level a veteran is assigned. Relatedly, an additional commenter raised
concerns about the definition of ``unable to self-sustain in the
community'' as being meaningless and flawed, in part because there are
no objective criteria for need for supervision, protection, or
instruction. Another commenter, seeking clarification of the
definition, said that ``VA's failure to provide an objective
operational definition of supervision, protection or instruction . . .
seems quite contradictory based on the examples offered,'' and asked if
VA has an objective clinical reference for this definition. One
commenter noted that this definition is problematic because it is based
on the definition of the ``need for supervision, protection, or
instruction'' of which they believe there are no objective criteria.
Lastly, one commenter also expressed concern that without clear
protocols and definitions for determining whether a veteran or
servicemember is unable to self-sustain in the community, inconsistency
would persist across VA.
We appreciate the commenters' concerns, but note that this
definition is intended to distinguish between the level and amount of
personal care services that an eligible veteran needs for purposes of
determining the appropriate stipend level. We note that at least one
commenter stated that they found the definition of ``unable to self-
sustain in the community'' to be clear.
We believe the definition of ``unable to self-sustain in the
community'' contains objective, clear, and standardized requirements
that can be consistently implemented across PCAFC. We believe it is
specific enough to allow us to make objective determinations about
whether a veteran or servicemember has a higher level of need such that
he or she meets the definition of unable to self-sustain in the
community. The definition provides the frequency with which personal
care services need to be provided by a Family Caregiver of an eligible
veteran who is determined to be ``unable to self-sustain in the
community,'' and can be distinguished, for purposes of determining the
monthly stipend level, from a Family Caregiver of an eligible veteran
who does not meet this threshold. For example, an eligible veteran that
qualifies for PCAFC under the definition of ``inability to perform an
ADL'' would meet the definition of ``unable to self-sustain in the
community'' if he or she requires personal care services each time he
or she completes three or more ADLs, and is fully dependent on a
caregiver to complete such ADLs. This is distinct from the definition
of ``inability to perform an ADL'' which only requires assistance with
at least one ADL each time the ADL is completed. This distinction
between the definitions allows us to differentiate between those who
have moderate needs versus those who have a higher level of need for
purposes of determining the appropriate monthly stipend level, as we
are required by 38 U.S.C. 1720G(a)(3)(C)(i) to base the stipend rate on
the amount and degree of personal care services provided.
Additionally, an eligible veteran that qualifies for PCAFC under
the definition of ``need for supervision, protection, or instruction''
would meet the definition of ``unable to self-sustain in the
community'' if they have a need for supervision, protection, or
instruction on a continuous basis. This is distinct from the definition
of ``need for supervision, protection, or instruction'' as such
definition does not require the same frequency of personal care
services needed. As previously discussed, the terms daily and
continuous relate to the frequency of intervention required in order to
maintain an individual's personal safety that is directly impacted by
his or her functional impairment at the lower and higher stipend
levels, respectively. Veterans and servicemembers who are eligible for
PCAFC based on a need for supervision, protection, or instruction may
only require intervention at specific and scheduled times during the
day to maintain their personal safety on a daily basis. In contrast, a
veteran or servicemember who is unable to self-sustain in the
community, has a need for supervision, protection, or instruction on a
continuous basis.
Distinguishing a daily versus a continuous need for supervision,
protection, or instruction is a clinical decision, based upon an
evaluation of the individual's specific needs. This distinction is
discussed in more detail above in the discussion of the definition of
need for supervision, protection, or instruction in Sec. 71.15.
As we explained in the proposed rule, in determining whether an
eligible veteran is in need of supervision,
[[Page 46272]]
protection or instruction on a continuous basis, VA would consider the
extent to which the eligible veteran can function safely and
independently in the absence of such personal care services, and the
amount of time required for the Family Caregiver to provide such
services to the eligible veteran consistent with 38 U.S.C.
1720G(a)(3)(C)(iii)(II) and (III), as amended by section 161(a)(4)(B)
of the VA MISSION Act of 2018. Id. For example, an individual with
dementia would have a need for supervision, protection, or instruction
on a continuous basis if such individual requires daily instruction for
dressing, wanders outside the home when left unattended for more than a
few hours, and has a demonstrated pattern of turning on the stove each
time the individual enters the kitchen due to disorientation; however,
an individual with dementia who only requires step-by-step instruction
with dressing daily which includes some physical demonstration of the
tasks, would not have a need for supervision, protection, or
instruction on a continuous basis.
We also note that we will provide robust training and education to
our staff, implement an audit process to review eligibility
determinations, and conduct vigorous oversight to ensure consistency
across VA in implementing this regulation, to include this definition.
To the extent commenters raised specific concerns about the
definition of ``unable to self-sustain in the community'' based on
concerns they had with the underlying definitions of inability to
perform an ADL or need for supervision, protection, or instruction, we
refer the commenters to those specific sections that discuss the
definitions of inability to perform an ADL and need for supervision,
protection, or instruction.
We make no changes based on these comments.
While we are not entirely certain, it appeared that one commenter,
in the context of their comment concerning the lower-level stipend,
suggested that the definition of ``need for supervision, protection, or
instruction'' focuses on supervision and safety necessary due to
cognitive or mental health issues. As discussed above in the context of
``inability to perform an activity of daily living,'' a need for
supervision, protection, or instruction is inclusive of a veteran or
servicemember with cognitive, neurological, or mental health issues. We
are not making any changes based on this comment.
Another commenter was confused about this definition in the
proposed regulation and the FAQs posted on VA's website about the
proposed rule because this commenter asserts that in the FAQs we use a
double negative for explaining when someone meets the lower stipend
level, and the examples we provided are not consistent with our goal of
focusing PCAFC on eligible veterans with moderate and severe needs and
providing more objective criteria for clinicians evaluating PCAFC
eligibility. We are unclear which examples the commenter is referring
to but note that we provide examples throughout the proposed rule in
order to help explain how certain criteria may be applied. Relatedly,
another commenter raised similar concerns about the language, ``not
determined to be unable to self-sustain in the community'' because they
assert this definition is circular.
To the extent that the commenter asserts that the examples we
provided for purposes of this definition are inconsistent with our
intent to focus on veterans with moderate and severe needs and to
provide more objective criteria for PCAFC, we respectfully disagree,
and note that we are unable to further respond since this commenter did
not identify the examples to which they are referring. In response to
the commenters' concerns that we used a double negative for explaining
the lower stipend, we acknowledge that we did state that an individual
would meet the lower stipend level if they are determined not to be
unable to self-sustain in the community. While we understand that this
use of ``determined not to be unable to self-sustain in the community''
can be confusing and appear circular, we used this language to clearly
distinguish between those who are determined to be ``unable to self-
sustain in the community,'' and those who are not, for purposes of
determining the stipend level. Those eligible veterans who meet the
definition of ``unable to self-sustain in the community'' are those
with severe needs while those eligible veterans who do not meet this
definition would be those with moderate needs. We intentionally did not
use the phrase ``able to self-sustain in the community'' in reference
to those veterans eligible at the lower stipend level. We note that the
ability to self-sustain is considered on a continuum with unable to
self-sustain at one end. If an eligible veteran does not meet the
definition of unable to self-sustain in the community, that does not
mean that he or she is able to self-sustain in the community, as he or
she may fall somewhere in between on the continuum. We are not making
any changes based on these comments.
Some commenters raised concerns about using ``continuous'' in the
definition of unable to self-sustain in the community. One commenter
recommended using ``frequent'' instead of ``continuous'' based on the
assertion that continuous creates a presumption that conditions must
have continuous symptomatology in order to qualify for the higher level
stipend. The same commenter asserted that a continuous requirement
would create an unrealistic standard that few, if any, veterans would
be able to meet; and the term frequent is more aligned with how
symptoms of impairments actually occur. One commenter raised concerns
about what ``continuous'' means in the context of this definition, and
asserted that a veteran who needs 24/7 care is in crisis and would need
higher level care or hospitalization. This commenter recommended that
VA better define this higher tier for veterans requiring a severe level
of supervision, protection, or instruction. Relatedly, one commenter
noted that use of ``continuous'' sets an untenable standard when the
only alternative is ``daily'' for purposes of consistently
administering a national program. The commenter also asserted that
``varying types of functional impairment that can give rise to a need
for supervision, protection, or instruction do not lend themselves to
clear distinctions when attempting to distinguish between daily and
continuous needs'' and that the ``definition would fail to provide
intended improvements to PCAFC consistency and transparency.'' Another
commenter alleged that the definition of unable to self-sustain in the
community may require continuous supervision, which they allege is
contrary to prior regulatory statements VA has made about considering
and rejecting requests to increase the amount of caregiving to more
than 40 hours per week.
We appreciate the commenters' concerns and suggestions; however, as
indicated in the proposed rule, ``continuous'' is used to address the
frequency with which an eligible veteran is in need of supervision,
protection, or instruction, rather than the frequency of symptomatology
of a specific condition. For example, an individual with a diagnosis of
moderate to severe dementia may require instruction with dressing daily
and due to a demonstrated pattern of wandering during the day, may meet
the criteria for the higher level due to a ``continuous'' need for
active intervention to ensure his or her daily safety is maintained.
That does not mean the individual would be required to actually wander
[[Page 46273]]
on a constant basis in order to be determined as unable to self-sustain
in the community. We find the use of continuous to be sufficient for
purposes of distinguishing between the higher and lower levels of
stipend when a veteran has a need for supervision, protection, or
instruction. As we explained in the proposed rule and reiterated in
this discussion, the distinction of ``continuous'' in this definition
in contrast to ``daily'' in the definition of ``need for supervision,
protection, or instruction'' allows us to differentiate between those
who have moderate needs versus those who have a higher level of need
for purposes of determining the appropriate monthly stipend level. 85
FR 13384 (March 6, 2020). We believe that the discussion above
regarding ``need for supervision, protection, or instruction'' under
Sec. 71.15 provides clarification to explain how VA will distinguish
between veterans and servicemembers who have a need for supervision,
protection, or instruction (i.e., whose functional impairment directly
impacts the individual's ability to maintain his or her personal safety
on a daily basis) versus those who meet the definition of unable to
self-sustain in the community (i.e., those who have a need for
supervision, protection, or instruction on a continuous basis).
We note that ``continuous'' does not mean constant or 24/7
supervision, protection, or instruction, and it is not our intent for
PCAFC to require 24/7 care from a Family Caregiver. The definition is
not meant to imply that an individual requires hospitalization or
nursing home care; rather, eligible veterans meeting this definition
will qualify for the higher-level stipend based on a higher level of
personal care needs. Need for supervision, protection, or instruction
on a continuous basis could be demonstrated by a regular, consistent,
and prevalent need. We note that services provided by Family Caregivers
are meant to supplement or complement clinical services provided to
eligible veterans. As part of PCAFC, we do not require Family
Caregivers provide 24/7 care to eligible veterans. PCAFC is one of many
in-home VA services that are complementary but not necessarily
exclusive to each other. As a result, an eligible veteran and his or
her caregiver may participate in more than one in-home care program, as
applicable and based on set requirements, and we can refer such
individuals to other VA services and programs as needed.
We make no changes based on these comments.
One commenter appeared to confuse the different levels of the
monthly stipend rate and questioned how a veteran with a serious
cognitive impairment who is unable to self-sustain in the community
would not require a caregiver to be physically present the remainder of
the day. First, we clarify that the definition of need for supervision,
protection, or instruction does not require such supervision,
protection, or instruction be provided on a continuous basis, but in
order to qualify for the higher stipend level, an individual would be
required to have a need for supervision, protection, or instruction on
a continuous basis. To the extent the commenter is referring to a
veteran or servicemember who meets the definition of unable of self-
sustain in the community due to a need for supervision, protection, or
instruction on a continuous basis, we agree with the commenter that
such individual may require a caregiver to be physically present the
remainder of the day. For example, an eligible veteran with dementia
who needs step-by-step instruction in dressing each morning and has a
demonstrated pattern of wandering outside the home at various times
throughout the day may meet this definition. Because of the
demonstrated pattern of wandering outside the home at various times,
the veteran cannot function safely and independently in the absence of
a caregiver, and the Family Caregiver would actively intervene through
verbal and physical redirection multiple times throughout the day. This
veteran would have a continuous need for an active intervention to
ensure his or her daily safety is maintained. In discussing the
definition of need for supervision, protection, or instruction above,
we also provided an example of a veteran or servicemember with TBI who
has cognitive impairment resulting in difficulty initiating and
completing complex tasks, such as a grooming routine, who may require
step-by-step instruction in order to maintain his or her personal
safety on a daily basis. If such veteran or servicemember also
experiences daily seizures because of an uncontrolled seizure disorder
due to the TBI, such that seizures occur at unpredictable times during
the day, the individual may be determined to be in need of supervision,
protection, or instruction on a continuous basis. In another example, a
veteran or servicemember who has a diagnosis of schizophrenia who
experiences active delusions or hallucinations and requires daily
medications for those symptoms may require daily support with
medication management from another individual due to the paranoid
thoughts that prevent the individual from independently taking the
medication (that is, he or she may think the medication is harmful),
and thus may be determined to have a need for supervision, protection,
or instruction to maintain his or her personal safety on a daily basis.
If such veteran or servicemember also responds to the delusions or
hallucinations in a manner such as engaging in violent or self-harm
behaviors at various and unpredictable times during the day, the
individual may be determined to have a need for supervision,
protection, or instruction on a continuous basis. We are not making any
changes based on this comment.
One commenter stated that the definition does not meet the intended
or accepted health care industry standards, including those related to
safely remaining in the home or community. We are unclear as to what
intended or accepted health care industry standards the commenter is
referring. However, we note that PCAFC is a program unique to VA, and
the statute requires us base the stipend payment on ``the amount and
degree of personal care services provided.'' 38 U.S.C.
1720G(a)(3)(C)(i). The intent of this definition of ``unable to self-
sustain in the community'' is to meet this statutory requirement by
distinguishing between two levels of care. This definition is intended
to cover those eligible veterans with severe needs, consistent with
PCAFC's focus on veterans with moderate and severe needs.
One commenter appeared to allege that the lower stipend level for
ADLs was too low of a bar and, thus this definition would be
inconsistent with current VA Case Mix Tools for Homemaker and/or H/HHA
service authorizations. To the extent that this commenter is referring
to the purchased HCBS Case-Mix and Budget Tool, that tool is an
instrument that provides a uniformed and standard way of allocating
Purchased HCBS to veterans based on functional need that allows them to
remain independently in their homes and communities. Completion of the
tool results in a case-mix score or level that correspond to a monthly
dollar amount; inclusive of costs for selected Purchased HCBS programs.
The Purchased HCBS programs covered by the Purchased HCBS Case-Mix and
Budget Tool includes H/HHA, Community Adult Day Health Care (CADHC),
In-Home Respite and Veteran-Directed Home and Community Base Services
(VD-HCBS). We note that the intent and use of this tool is distinct
[[Page 46274]]
from PCAFC as the tool is used to determine hours of care for services
other than PCAFC.
To the extent the commenter is referring to H/HHA eligibility
requirements under VHA Handbook 1140.6 Purchased Home Health Care
Services Procedures, we respectfully disagree with the commenter's
assertion. Eligibility determinations for H/HHA under VHA Handbook
1140.6, target the population of eligible veterans who are most in need
of H/HHA services as an alternative to nursing home care. An
interdisciplinary assessment is used to determine whether a veteran has
specific clinical conditions to include three or more ADL dependencies,
or significant cognitive impairment. Also, in the instance a veteran
only has two ADL dependencies, an additional two conditions are
considered including a dependency in three or more IADLs or if the
veteran is seventy-five years old, or older. We believe the definition
of unable to self-sustain in the community is not a departure from the
clinical conditions listed with respect to H/HHA services in VHA
Handbook 1140.6, as it similarly includes certain eligible veterans
that require assistance with three or more ADLs or have a need for
supervision, protection, or instruction on a continuous basis which is
similar to having a significant cognitive impairment. Additionally, we
note that the definition for ``unable to self-sustain in the
community'' is used to determine the higher level stipend (i.e., 100
percent of the monthly stipend rate) for the Primary Family Caregiver.
A Primary Family Caregiver would receive the stipend at the lower-level
if the eligible veteran does not meet the definition of unable to self-
sustain in the community but is still in need of personal care services
for a minimum of six continuous months based on either an inability to
perform an ADL, which means the eligible veteran requires personal care
services each time he or she completes one or more of the seven listed
ADLs in Sec. 71.15, or a need for supervision, protection or
instruction, which means the individual has a functional impairment
that directly impacts the individual's ability to maintain his or her
personal safety on a daily basis. Further, PCAFC is one of many
clinical programs available to veterans and servicemembers, as
applicable, that are complementary but are not required to be identical
in terms of eligibility requirements. We are not making any changes
based on this comment.
One commenter was not supportive of definitions to ensure that
veterans can ``self-sustain'' in the community and urged VA to define
eligibility to ensure that veterans and Family Caregivers not only
self-sustain but thrive in the community. First, we note that the
definition of unable to self-sustain in the community is focused on the
eligible veteran; not the Family Caregiver. Second, we note that
``self-sustain'' is meant to describe the eligible veteran's clinical
condition, while thriving in the community may be open to various
interpretations and is not a recognized or specific clinical term.
``Unable to self-sustain in the community'' is used only for the
purposes of defining eligibility for the higher level stipend and is
not intended to describe clinical objectives or long-term treatment
goals. We do not think it would be appropriate to add the language
``thrive in the community'' to the definition since not all veterans
and servicemembers who qualify for PCAFC will be able to ``thrive'' in
the community. We also note that it may also not be their goal. We are
not making any changes based on this comment.
Another commenter stated that the inequity in the two stipend
levels would be economically unfair to Primary Family Caregivers of
eligible veterans who are determined to be unable to self-sustain in
the community. We refer this commenter to the related discussions in
this section on the monthly stipend rate and on the specific number of
caregiver hours or tasks.
Another commenter noted that VA should reconsider this requirement
because few veterans will be eligible for the higher-level stipend, and
the definition will work against VA's efforts to foster independence
among veterans and will promote total reliance on a caregiver. The
commenter recommended that VA remove the requirement for ``full
dependence.'' Similarly, another commenter opined that the fully
dependent language was too strict, but appeared to confuse the
requirement of ``fully dependent'' for three ADLs in the definition of
unable to self-sustain in the community with the definition of
inability to perform an ADL.
First, we note that the definition of ``unable to self-sustain in
the community'' requires that an eligible veteran need personal care
services each time he or she completes three or more ADLs listed in the
definition of inability to perform an ADL in Sec. 71.15, and is fully
dependent on a caregiver to complete such ADLs; or has a need for
supervision, protection, or instruction on a continuous basis. This
definition, and in particular the requirement to be ``fully dependent''
on a caregiver to complete at least three ADLs, is not required to be
met in order to be eligible for PCAFC; it is solely used for purposes
of determining the stipend level. The definition of inability to
perform an ADL, which is one basis upon which a veteran or
servicemember may be deemed in need of personal care services, requires
that the veteran or servicemember need assistance each time that he or
she completes at least one ADL; it does not require the eligible
veteran be ``fully dependent'' on a caregiver to complete at least
three ADLs. Thus, an eligible veteran who does not require personal
care services each time he or she completes three or more ADLs, could
still be eligible for PCAFC; however, the Primary Family Caregiver
would receive the lower-level stipend (i.e., 62.5 percent of the
monthly stipend rate).
This recommendation to remove the ``fully dependent'' language
relates to the first part of the definition of unable to self-sustain
in the community that refers to the eligible veteran requiring personal
care services each time he or she completes three or more of the seven
ADLs listed in the definition of an inability to perform an ADL, and is
fully dependent on a caregiver to complete such ADLs. We decline to
make this change to the definition to remove the ``fully dependent''
language because we believe this language is necessary. We clarify in
this rulemaking that fully dependent is the degree of need required for
this prong of the definition. To be fully dependent means the eligible
veteran requires the assistance of another to perform each step or task
related to completing the ADL. We acknowledge this may be a high
standard to meet, but it will target those eligible veterans with
severe needs. We note that ``fully dependent'' is consistent with the
clinical term, dependence, which is used to define and assess a higher
level of care needed by a veteran, and ensures that the public
understands this term. While dependence is considered along a spectrum,
fully dependent is at the top of the spectrum. Thus, the fully
dependent language is intended to cover those eligible veterans with
severe needs for purposes of determining the higher stipend level.
While we support each eligible veteran's ability to be as functional
and independent as possible, we acknowledge that we do not anticipate
that many eligible veterans who qualify under this definition will have
much independence, as these would be those eligible veterans with
[[Page 46275]]
the highest needs. We do not make any changes based on these comments.
One commenter disagrees with the requirements of this definition
and requests that VA retain the clinical ratings for determining
stipend tiers in the current regulations. The same commenter asserts
that this change from the current regulations unnecessarily and
arbitrarily limits the flexibility of VA to consider all relevant
factors in determining how much help an eligible veteran needs. The
commenter further asserts that VA's proposed approach impedes VA's
ability to consider the factors in 38 U.S.C. 1720G(a)(3)(C)(iii) by
allowing VA to ignore a Family Caregiver's input and based on their
assertion that the amount of time required to provide supervision,
protection, and instruction would be irrelevant. One commenter stated
that the language suggests that in order to be considered for the
higher tier, a veteran would likely need to be in or nearing the
geriatric based population, a requirement that would omit many of the
program's current participants from being eligible or qualifying for
the higher tier. Similarly, another commenter was concerned that this
change for determining stipend levels and the definition of unable to
self-sustain in the community will arbitrarily and adversely impact
veterans PCAFC is intended to help, contrary to Congressional intent,
as it will be harder for Family Caregivers to qualify for the higher
stipend level which will reduce the benefit they receive and result in
family members being less likely to serve as a Family Caregiver. This
commenter asserted that an eligible veteran may be fully dependent on a
Family Caregiver for assistance with performing only two ADLs or need
supervision for 18 hours a day, but would not qualify under the
definition of unable to self-sustain in the community, even though they
need a caregiver for 40 hours per week. Another commenter stated that
the higher level was too stringent, and appeared to confuse the
definitions of ``inability to perform an ADL'' and ``unable to self-
sustain in the community,'' such that they believed the requirements
related to ADLs under the definition of ``unable to self-sustain in the
community'' must be met in order to qualify for PCAFC.
First, we note that the definition of ``unable to self-sustain in
the community'' requires that an eligible veteran need personal care
services each time he or she completes three or more ADLs listed in the
definition of inability to perform an ADL in 71.15, and is fully
dependent on a caregiver to complete such ADLs; or has a need for
supervision, protection, or instruction on a continuous basis. This
definition is not required to be met in order to be eligible for PCAFC;
it is solely used for purposes of determining the stipend level and is
intended to cover those eligible veterans with severe needs. The
definition of inability to perform an ADL, which is one basis upon
which a veteran or servicemember may be deemed in need of personal care
services, requires that the veteran or servicemember need assistance
each time that he or she completes at least one ADL. Thus, an eligible
veteran who does not require personal care services each time he or she
completes three or more ADLs and may only need assistance with two,
could still be eligible for PCAFC; however, the Primary Family
Caregiver would receive the lower-level stipend (i.e., 62.5 percent of
the monthly stipend).
We note that the higher level is not intended to cover only those
eligible veterans who are geriatric or nearing geriatric, and age is
not a determining factor for purposes of the definition of unable to
self-sustain in the community. Instead, the higher level is based on
whether the eligible veteran meets the definition of unable to self-
sustain in the community, which considers the amount and degree of need
for personal care services. This definition is meant to address those
eligible veterans that have severe needs, regardless of age, and this
definition of unable to self-sustain in the community provides a way
for us to distinguish between those who have severe needs and those who
have moderate needs for purposes of the stipend level.
This definition will be used to determine the higher- and lower-
level stipend payments, and VA believes it is necessary to establish a
clear delineation between the amount and degree of personal care
services provided to eligible veterans, as required by 38 U.S.C.
1720G(a)(3)(C)(i). We believe two levels will allow us to better focus
on supporting the health and wellness of eligible veterans and their
Family Caregivers, and will address the challenges we identified in
using three levels. As we explained in the proposed rule and reiterate
here, the utilization of three tiers has resulted in inconsistent
assignment of ``amount and degree of personal care services provided,''
and a lack of clear thresholds that are easily understood and
consistently applied has contributed to an emphasis on reassessment to
ensure appropriate stipend tier assignment. 85 FR 13383 (March 6,
2020). We believe that such issues would be exacerbated by the addition
of more tiers or levels, and that using only two levels will allow VA
to better focus on supporting the health and wellness of eligible
veterans and their Family Caregivers. We believe that two levels will
provide the clearest delineation between the amount and degree of
personal care services provided by the Family Caregiver.
As we explained in the proposed rule, while the changes we proposed
to the PCAFC stipend methodology and levels would result in an increase
in stipend payments for many Primary Family Caregivers of legacy
participants, for others, these changes may result in a reduction in
the stipend amount that they were eligible to receive before the
effective date of the rule. 85 FR 13385 (March 6, 2020). We acknowledge
that some legacy participants that are currently receiving stipend
payment at tier three may not meet this definition of unable to self-
sustain in the community for purposes of the stipend payment and may
receive the stipend payment at the lower level. To help minimize the
impact of such changes, we would make accommodations for Primary Family
Caregivers of eligible veterans who meet the requirements of proposed
Sec. 71.20(b) and (c) (i.e., legacy participants and legacy
applicants) to ensure their stipend is not reduced for one year
beginning on the effective date of the rule, except in cases where the
reduction is the result of the eligible veteran relocating to a new
address. Id. We do not agree that the changes to the stipend levels
will deter family members from caring for eligible veterans, who may
have been providing care to the eligible veteran even before approval
and designation as a Family Caregiver under PCAFC. Additionally, the
stipend is not intended to incentivize family members to be caregivers,
but rather an acknowledgment of the sacrifices caregivers make to care
for eligible veterans. 76 FR 26155 (May 5, 2011).
Further, the determination of whether an eligible veteran is unable
to self-sustain in the community will occur during the initial
assessment of eligibility and during reassessments, both of which will
provide the Family Caregiver with the opportunity to provide input on
the needs and limitations of the eligible veteran, and consider the
assistance the Family Caregiver provides, including both assistance
with ADLs and supervision, protection, and instruction.
For all of these reasons as explained above, we believe this
definition fulfills VA's statutory requirement, and allows for VA
consideration of those factors in
[[Page 46276]]
38 U.S.C. 1720G(a)(3)(C)(iii). We are not making any changes based on
these comments.
One commenter noted that Family Caregivers do not have the skills
or extensive training to assist veterans in need of assistance with 3
ADLs, and that veterans that qualify for these services should receive
care from in-home care providers. We note that PCAFC provides
additional options to eligible veterans and their Family Caregivers who
may wish to remain in the home. Family Caregivers receive training and
education to help them support the eligible veteran's care needs. We do
not expect Family Caregivers to replace the need for medical
professionals that provide specialized medical care that requires
advanced skill and training. PCAFC is one of many options available for
veterans who wish to remain in the home. Other programs available
include Veteran-Directed care, home based primary care services, and
adult day health care. As necessary and appropriate, we will make
referrals to other VA programs and services. We make no changes based
on this comment.
One commenter disagreed with the definition of ``unable to self-
sustain in the community,'' based on the experience of one of their
fellows who is the Family Caregiver of a paraplegic, who has suffered
significant muscle damage in his lower extremities. They noted that
while this individual can complete most ADLs independently, he has
shoulder damage resulting from overuse, and the Family Caregiver
provides support and assistance on most days. They further noted that
without the Family Caregiver's support on completing less than three
ADLs, this individual would not be able to remain in the community. As
we explained in the proposed rule and reiterated in this discussion,
the definition of unable to self-sustain in the community is intended
to provide a distinction for purposes of the higher- and lower-level
stipend rate; it is not used for determining whether an individual is
eligible for PCAFC. It is our intent that those eligible veterans with
severe needs would meet the definition of unable to self-sustain in the
community and qualify for the higher-level stipend. As we explained
above, if an eligible veteran does not meet the definition of unable to
self-sustain in the community, that does not mean they are ineligible
for PCAFC. To determine eligibility for PCAFC, VA would assess the
veteran or servicemember's eligibility under 38 CFR 71.20(a), including
whether the individual is in need of personal care services based on an
inability to perform an ADL or a need for supervision, protection, or
instruction. We make no changes based on this comment.
One commenter raised concerns about language in the proposed rule,
in which we explained the difference between the need for supervision,
protection, or instruction on a daily basis versus continuous basis by
stating that ``. . . an individual with dementia who only experiences
changes in memory or behavior at certain times of the day, such as
individuals who experience sundowning or sleep disturbances, may not be
determined to have a need for supervision, protection, or instruction
on a continuous basis.'' See 85 FR 13384 (March 6, 2020). This
commenter further stated that ``[t]he standard should was, in the
veteran were not care for by a caregiver, would the VA or a Social
Service division have to provide some type of regular aid.'' We are
unable to determine whether this commenter thinks this ``standard''
should be for PCAFC eligibility or for the higher stipend level, but
note that the commenter's examples repeat examples VA provided in the
context of explaining ``unable to self-sustain in the community.''
First, we note that the definition of ``unable to self-sustain in
the community'' requires that an eligible veteran need personal care
services each time he or she completes three or more ADLs listed in the
definition of inability to perform an ADL in 71.15, and is fully
dependent on a caregiver to complete such ADLs; or has a need for
supervision, protection, or instruction on a continuous basis. This
definition is not required to be met in order to be eligible for PCAFC;
it is solely used for purposes of determining the stipend level. The
definition of need for supervision, protection, or instruction, which
is one basis upon which a veteran or servicemember may be deemed in
need of personal care services, requires that the veteran or
servicemember have a functional impairment that directly impacts the
individual's ability to maintain his or her personal safety on a daily
basis; it does not require the eligible veteran to need supervision,
protection, or instruction on a continuous basis. Thus, an eligible
veteran who does not require need for supervision, protection, or
instruction on a continuous basis could still be eligible for PCAFC;
however, the Primary Family Caregiver would receive the lower-level
stipend (i.e., 62.5 percent of the monthly stipend rate).
As we explained in the proposed rule, an eligible veteran who has a
need for supervision, protection, or instruction on a continuous basis,
thus qualifying them for the higher stipend level, would require more
frequent and possibly more intensive care and the Family Caregiver
would thus provide a greater amount and degree of personal care
services to the eligible veteran. 85 FR 13384 (March 6, 2020). We refer
the commenter to the discussion of ``need for supervision, protection,
or instruction'' above where we distinguish the terms ``daily'' and
``continuous.''
We make no changes based on this comment.
Two Stipend Levels
VA proposed to establish two levels for the stipend payments versus
the three tiers that are set forth in current Sec. 71.40(c)(4)(iv)(A)
through (C). Whether a Primary Family Caregiver qualifies for a stipend
at the higher level will depend on whether the eligible veteran is
determined to be ``unable to self-sustain in the community'' (as that
term will be defined in Sec. 71.15). The lower stipend level will
apply to all other Primary Family Caregivers of eligible veterans such
that the eligibility criteria under proposed Sec. 71.20(a) will
establish eligibility at the lower level. VA received multiple comments
about the two stipend levels that are addressed below.
We received several comments that indicate confusion about the two
levels for stipend payments. In particular, some commenters believed
that the eligible veteran's type of disability, whether it be physical
or related to cognition, neurological or mental health, will be a
determinative factor in the stipend level. One commenter stated the
higher- level leans too heavily on physical disabilities and believes
that the lower level was for eligible veterans with needs related to
supervision and safety. The commenter noted how difficult it is to
perform the tasks associated with supervision and protection. The
commenter further inquired as to how VA will address veterans who are
eligible for both levels. The commenter was also concerned that by
assuming that physical disabilities are greater than invisible
injuries, VA would not be helping the suicide problem. Relatedly,
another commenter believed that the higher level focused on ADLs.
Another commenter also expressed general confusion about the lower
stipend level.
To clarify, all eligible veterans who qualify for PCAFC will meet
the criteria for the lower-level stipend. However, a Primary Family
Caregiver will receive the higher-level monthly stipend rate if the
eligible veteran is determined to be unable to self-sustain in the
[[Page 46277]]
community.as defined in Sec. 71.15. The definition of ``unable to
self-sustain in the community'' covers both ``inability to perform an
ADL'' and ``need for supervision, protection and instruction'' and this
accounts for both physical disabilities and cognitive, neurological,
and mental health disabilities. Thus, eligible veterans can meet the
requirements of unable to self-sustain in the community because of
physical disabilities leading to impairments or disabilities leading to
cognitive, neurological or mental health impairment. Therefore, we do
not believe that the higher stipend level is primarily for or focused
on veterans with physical disabilities. To the extent a commenter
raised concerns that VA would not be helping the suicide problem, we
refer the commenter to the discussion on veteran suicide in the
miscellaneous comments section. We are not making any changes based on
these comments.
Several commenters expressed concern with VA's proposal to have
more than one level of stipend payment. Multiple commenters disagreed
with placing percentages on how much help a veteran can receive. One
commenter asserted that everyone should be paid equally. Another
commenter recommended there be one level, and that having two will
present challenges, appeals, and confusion. The determination of
whether a Primary Family Caregiver receives the lower-level stipend
(i.e., 62.5 percent of the monthly stipend rate) or the high level
stipend (i.e., 100 percent of the monthly stipend rate) is based on
whether the eligible veteran is unable to self-sustain in the
community. The percentages are assigned only for the purposes of
calculating stipend payments. While we believe the percentages are
consistent with the time and level of personal care services required
by an eligible veteran from a Family Caregiver at each level (85 FR
13384 (March 6, 2020)), the percentages are not intended to equate to a
specific amount of care related to the personal care services being
received by the eligible veteran.
While we understand the commenters' concern that having multiple
levels could present challenges, appeals, or confusion, section 1720G
of title 38, U.S.C., requires that the amount of the monthly personal
caregiver stipend be determined in accordance with a schedule
established by VA that specifies stipends based on upon the amount and
degree of personal care services provided. See 38 U.S.C.
1720G(a)(3)(C)(i). We interpret this to mean that the schedule must
account for variation between the amount and degree of personal care
services provided. Accordingly, we believe the statute requires VA to
establish at least two PCAFC stipend levels; thus, we are unable to pay
every Primary Family Caregiver the same monthly stipend. We are not
making any changes based on these comments.
One commenter was concerned that because the veteran the commenter
cares for suffers from PTSD, TBI, depression, and pain-related issues,
they may no longer qualify for the program and requested more tiers,
not less. We wish to clarify that the assignment of tiers (in the
current regulations) or levels (as the regulations are revised by this
rulemaking) is used to determine the amount of the monthly stipend
payment issued to the designated and approved Primary Family Caregiver
and is not used to determine eligibility. To the extent that the
commenter is requesting that we add additional stipend tiers or levels
for additional stipend rates, we decline to make those changes. As VA
explained in the proposed rule, the utilization of three tiers has
resulted in inconsistent assignment of ``amount and degree of personal
care services provided,'' and a lack of clear thresholds that are
easily understood and consistently applied has contributed to an
emphasis on reassessment to ensure appropriate stipend tier assignment.
85 FR 13383 (March 6, 2020). We believe that such issues would be
exacerbated by the addition of more tiers or levels, and that using
only two levels will allow VA to better focus on supporting the health
and wellness of eligible veterans and their Family Caregivers. We
believe that two levels will provide the clearest delineation between
the amount and degree of personal care services provided by the Family
Caregiver. We also note that the eligibility criteria for PCAFC and the
higher stipend level account for veterans and servicemembers with
personal care needs related to cognitive, neurological, and mental
health conditions are considered under the definition of serious
injury, and further refer the commenter to our discussion of the
eligibility criteria in Sec. 71.20(a) and in the discussion of the
term unable to self-sustain in the community. We make no changes based
on this comment.
Several commenters suggested that certain VA disability ratings,
including a 100 percent permanent and total service-connected
disability rating and certain aid and attendance awards, should
automatically qualify an eligible veteran for the highest stipend rate.
While the eligibility requirements for these disability ratings and
awards referenced by the commenters may seem similar, we note these are
not synonymous with VA's definition of ``unable to self-sustain in the
community,'' and we do not believe the criteria for those benefits are
a substitute for a clinical evaluation of whether a veteran or
servicemember is unable to self-sustain in the community. We believe
that in order to ensure that PCAFC is implemented in a standardized and
uniform manner across VHA, each veteran or servicemember must be
evaluated based on the same criteria, including the criteria to qualify
for the higher-level stipend. To that end, VA will utilize standardized
assessments to evaluate both the veteran or servicemember and his or
her identified caregiver when determining eligibility for PCAFC and the
applicable stipend level, as applicable. It is our goal to provide a
program that has clear and transparent eligibility criteria that is
applied to each and every applicant.
Additionally, we do not believe it would be appropriate to consider
certain disability ratings as a substitute for a clinical evaluation of
whether a veteran or servicemember is unable to self-sustain in the
community, as not all veterans and servicemembers applying for or
participating in PCAFC will have been evaluated by VA for such ratings,
and because VA has not considered whether additional VA disability
ratings or other benefits determinations other than those recommended
by the commenters may be appropriate for establishing that a veteran or
servicemember is unable to self-sustain in the community for purposes
of PCAFC. Finally, it should be noted in that VA disability ratings
under VA's schedule for rating disabilities are intended to evaluate
the average impairment in earning capacity in civil occupations
resulting from various disabilities or combinations of disabilities. 38
U.S.C. 1155. They are not designed to take into account the amount and
degree of personal care services provided the eligible veteran. Thus,
they would provide a very imprecise guide to determining stipend rates.
We are not making any changes based on these comments.
Several commenters raised concerns about the hours or
responsibilities associated with the stipend levels. Multiple
commenters provided their personal stories about caring for a veteran
in the current program and believed that the current hours were not
indicative of the how long the caregiver actually spends taking care of
the eligible veteran or expressed concerns
[[Page 46278]]
that the new stipend level would be insufficient for the number of
hours required. Some stated that the 10-hour category was insufficient,
another shared that the tasks required 14 hours a day, every day and
that the new program would not adequately compensate for the required
hours, another commenter explained that the care required was 24/7 and
requested that VA require caregivers to provide a log of the activities
that they perform, and another stated that the current system was
insufficient and the regulations do not account for the amount of time
required. Another commenter questioned whether that there will be an
expectation for caregivers to provide 24/7 care. One commenter was
concerned that most of the current caregivers receiving stipends at
tier three will be excluded because the higher stipend level will
require 24/7 care.
Foremost, we thank the caregivers who are providing personal care
services to their family members and the sacrifices that they make.
Further, it has never been VA's intent that the monthly stipend
directly correlates with a specific number of caregiving hours. See 80
FR 1369 (January 9, 2015). We note that to the extent commenters are
dissatisfied with the current criteria, we understand and have removed
the references to numbers of hours, and instead will rely on a
percentage of the GS rate when determining the monthly stipend. While
we know that some Family Caregivers provide in excess of 40 hours or
more of caregiving a week, we reiterate that the stipend payment does
not represent a direct correlation to the number of hours a Family
Caregiver provides. Additionally, eligible veterans who require 24/7
care may be eligible for additional support services, such as homemaker
or home health aide, to supplement the personal care services provided
by the Family Caregiver. In addition, we note that the reference in the
definition of ``unable to self-sustain in the community'' to an
eligible veteran who has a need for supervision, protection, or
instruction on a ``continuous basis,'' was not intended to mean that
the eligible veteran requires or that the Family Caregiver provides 24/
7 or nursing home level care. This is not VA's intent or expectation of
Family Caregivers. Further, VA does not believe it is necessary to
require caregivers to provide a log of the activities they perform.
Participation in PCAFC is conditioned, in part, upon the Family
Caregiver providing personal care services to the eligible veteran.
Through wellness contacts and reassessments, VA will provide oversight
and monitoring of the adequacy of care and supervision being provided
by the Family Caregiver. We are making no changes based on these
comments.
One commenter expressed concern over how VA plans to adjust for
bias towards those with higher ratings in the new two-level system.
This commenter asked whether the individual conducting the assessment
would have access to the veteran's rating decision and be persuaded to
place the veteran in the more financially beneficial category if the
veteran has a higher rating than 70 percent, and asserted that this
factor and others must be addressed. We thank the commenter for their
concern and clarify that a 70 percent single or combined service-
connected disability rating is used to determine whether an eligible
veteran has a serious injury; however, an eligible veteran's service-
connected disability rating has no bearing on the determination of
whether an eligible veteran is in need of personal care services or
whether he or she is unable to self-sustain in the community for
purposes of the monthly stipend. Determinations of whether an eligible
veteran is unable to self-sustain in the community are made by CEATs,
which are informed by evaluations and assessments of the veteran's
functional needs for which the specific service-connected rating has no
bearing. Through training, VA will ensure this is clear to those
rendering determinations of whether an eligible veteran is unable to
self-sustain in the community. We are not making any changes based on
this comment.
One commenter recommended that assessment of the stipend level be
completed ``with the Primary doctor and Primary Caregiver,'' and
potentially a licensed occupational therapist, but disagreed with
allowing others such as a nurse, social worker, physical therapist, or
kinesiologist to complete such assessments as that can lead to
inconsistencies. As stated above, eligibility determinations for PCAFC
will be based upon evaluations of both the veteran and caregiver
applicant(s) conducted by clinical staff at the local VA medical
center, with input from the primary care team, including the veteran's
primary care provider, to the maximum extent practicable. These
evaluations include assessments of the veteran's functional status and
the caregiver's ability to perform personal care services. Additional
specialty assessments may also be included based on the individual
needs of the veteran. When all evaluations are completed, the CEAT will
review the evaluations and pertinent medical records, in order to
render a determination regarding eligibility, including whether the
veteran is determined to be unable to self-sustain in the community for
the purposes of PCAFC. The CEATs are comprised 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-level stipend.
While primary care teams will not collaborate directly with the
CEATs on determining eligibility, documentation of their input in the
local staff evaluation of PCAFC applicants will be available in the
medical record for review. This documentation will be used by the CEATs
to help inform eligibility determinations, including whether the
veteran is determined to be unable to self-sustain in the community for
the purposes of PCAFC. We are not making any changes based on this
comment.
One commenter commended VA for proposing a more streamlined
approach to determining the monthly stipend, and we appreciate the
comment. However, multiple commenters believed that VA did not provide
sufficient rationale for going from three tiers to two levels. One
commenter asserted that little information and rationale was provided
on why it is necessary to move from three tiers to two levels, and that
this change will disadvantage veterans and their caregivers. Similarly,
one commenter stated that the two levels should be better defined to
ensure the program is consistently implemented across VHA. One
commenter stated that VA provided no explanation on why the current
evaluation and scoring is no longer sufficient. Another commenter
disagreed with the change to two levels and asked for the theoretical
or conceptual basis for this change. Two commenters expressed concern
that there are no specific criteria defining the two levels and
asserted that VA provided no explanation as to why the current clinical
scoring is no longer sufficient.
As indicated in the proposed rule, VA has found that the
utilization of the current three tiers has resulted in inconsistent
assignment of the ``amount and degree of personal care services
provided.'' See 85 FR 13383 (March 6, 2020). Further, there can often
be little variance in the personal care services provided by Primary
Family Caregivers between assigned tier levels (e.g., between tier 1
and tier 2, and between tier 2 and tier 3) which has led to a lack of
clear thresholds. Id. These tier assignments were based on criteria and
[[Page 46279]]
a subsequent score that were subjective in nature due to the lack of
clear delineations between the amount and degree of required personal
care services based on the veteran's or servicemember's inability to
perform an ADL or need for supervision and protection based on symptoms
or residuals of neurological or other impairment or injury. For
example, providers surmised the difference between the level of
assistance needed to complete a task or activity when assigning a
``score.'' Additionally, the sum of all ratings lacked clear
delineation between tiers. For example, the difference between a rating
of 12 and 13 was the difference between tier one and tier two. This
subjectivity has led to lack of clear threshold and thus confusion and
frustration for both PCAFC participants and VA staff. Assessing the
needs and functional impairments of a veteran is complex and we believe
transitioning from a subjective rating which attempts to delineate
degrees of need in specific ADLs and impairments, to an assessment of
the veteran's overall level of impairment will simplify the
determination, which will in turn result in consistency and
standardization throughout PCAFC in determining the appropriate level
for stipend payments. Additionally, as previously explained, we are
standardizing PCAFC to focus on veterans and servicemembers with
moderate and severe needs. Therefore, VA believes it is necessary to
base stipend payments on only two levels of need that establish a clear
delineation between the amount and degree of personal care services
provided to eligible veterans. Id. We are not making any changes based
on these comments.
Concern for Current Legacy Participants, Including Those Receiving
Lowest Tier Stipend
Several commenters expressed concern for current participants who
may no longer be eligible for PCAFC or whose stipends may be reduced.
In recognizing the focus on eligible veterans with moderate and severe
needs, one commenter recommended that VA identify other services and
supports available to current participants who may be impacted by this
change and verify that these other programs are available consistency
across the country and effective in delivering support. The commenter
specifically mentioned Veteran-Directed care, home based primary care,
respite care, and homemaker and home health aide services, and asserted
that they are often underfunded by VA, and urged VA to ensure the
success and viability of these programs. Another commenter urged VA to
rethink the adjustment from three tiers to two levels, and asserted
that VA needs to ensure eligible veterans and their caregivers do not
fall through the cracks and jeopardize their financial stability,
specifically current PCAFC participants. Another commenter believed
that, although the role is not changing, VA was changing the
acknowledgement of the validity of the role and indicating that it is
not worth as much. The commenter further stated that by removing the
necessary funding the access to the program will be greatly diminished.
While we are making no changes based on these comments, we
emphasize that we do not believe that the sacrifices made by caregivers
are not worthwhile. Family Caregivers play a significant role in the
lives of veterans and servicemembers, and we thank them for their
service. We wish to emphasize that PCAFC is one way VA supports
eligible veterans and the Family Caregivers. For those who may no
longer qualify, CSCs are available to assist in identifying the needs
of the veterans and their caregivers, and making referrals and
connections to alternative services as appropriate. VA offers a menu of
supports and services that supports caregivers caring for veterans such
as homemaker and home health aides, home based primary care, Veteran-
Directed care, and adult day care health care to name a few. In
addition, VA offers supports and services provided directly to
caregivers of covered veterans through PGCSS including access to CSCs
located at every VA medical center, a caregiver website, training and
education offered online and in person on topics such as self-care,
peer support, and telephone support by licensed social workers through
VA's Caregiver Support Line.
While offering assurance of funding and availability of specific
services in specific areas is outside the scope of this rulemaking, we
note that VA is actively improving and expanding PGCSS, including the
establishment of General Caregiver Support staff to ensure nationwide
support at each medical center.
In addition, as explained in the proposed rule, we understand that
Primary Family Caregivers may have their stipend amount impacted by
changes to the stipend payment calculation. We take this opportunity to
highlight that the VA MISSION Act of 2018 expanded benefits available
to Primary Family Caregivers, which includes Primary Family Caregivers
of legacy participants and legacy applicants, to include financial
planning services, as that term is defined in Sec. 71.15. These
services may be helpful to those who will be adjusting to a lower
stipend amount. Family Caregivers also have access to mental health
services that can provided support as needed. We are not making any
changes based on these comments.
Several commenters disagreed with the change in the tiers,
especially the elimination of current PCAFC participants who qualify at
the lowest tier (tier one). Another commenter noted that VA presumes
the lowest tier does not include veterans with moderate to severe needs
for personal care services, and asserted that VA provided no data,
literature, or study to support this presumption. This commenter
disagrees with this presumption and asserted that VA must provide data
and analysis to support it. To further clarify, VA's assumption that
the current tier one participants will be removed from PCAFC as a
result of eligibility changes in part 71 was used for estimating the
potential impact of the regulation on VA's budget. VA made this
assumption because per the current rating criteria, Tier 1 is
indicative of a low amount of need. As VA expands PCAFC to include
eligible veterans of all eras and makes other changes to focus on
veterans with moderate and severe needs it is possible that the current
tier one participants may not meet the eligibility criteria in Sec.
71.20(a). VA will not automatically discharge current PCAFC
participants whose Primary Family Caregivers receive stipends at tier
one. Instead, VA will conduct reassessments for all legacy participants
and legacy applicants, regardless of assigned tier to determine
continued eligibility in PCAFC, and for those who are eligible, the
applicable stipend rate. We are not making any changes based on these
comments.
Specific Number of Caregiver Hours or Tasks
One commenter appreciated the idea of moving into different tiers
but was not sure if this was the appropriate direction, especially as
it is difficult to calculate time providing care. Other commenters
raised concerns about being placed in the lowest tier level when they
provide more than 10 hours of caregiving per week. Some commenters
noted that the stipend is based on 40 hours of care per week, when they
may be providing more than that and otherwise the veteran would have to
be institutionalized. This new pay scale would not cover those
situations, and one commenter recommended basing the stipend amount on
the actual number of hours of care provided.
[[Page 46280]]
Relatedly, one commenter stated that VA should consider the daily,
weekly, monthly tasks caregivers perform when determining the level of
stipend. One commenter asserted that the two levels is economically
unfair to caregivers of eligible veterans who are unable to self-
sustain in the community. We respond to these comments below.
As indicated in the proposed rule, it has never been VA's intent
that the monthly stipend directly correlates with a specific number of
caregiving hours. See 80 FR 1369 (January 9, 2015). Further, VA
recognizes that the reference to a number of hours in the current
regulation has caused confusion; therefore, we are seeking to change
the stipend calculation to use a percentage of the monthly stipend rate
based on the eligible veteran's level of care need. See 85 FR 13384
(March 6, 2020). Similarly, as we standardize PCAFC to focus on
veterans and servicemembers with moderate and severe needs, we do not
believe it is necessary to consider the number of tasks a Family
Caregiver performs as we believe a determination on the level of care
need (i.e., whether an eligible veteran is unable to self-sustain in
the community) is appropriate for determining the monthly stipend
amount that is commensurate with the needs of the veteran. We are not
making any changes based on these comments.
Multiple Residences
One commenter asked for clarification that families who live at
more than one address during the year are eligible for PCFAC and for
the calculation method that would be used to determine their stipend
rate. Living in multiple locations during the year does not disqualify
an otherwise eligible participant from participation in PCFAC. The
address on record with PCAFC determines the geographic location for
purposes of calculating the monthly stipend rate. It is presumed that
the address on record is where the eligible veteran consistently spends
the majority of his or her time and where they receive VA care.
Therefore, a temporary move or vacation would not affect the monthly
stipend rate. However, we note that we require notification of a
relocation within 30 days from the date of relocation and will seek to
recover overpayments of benefits if VA does not receive timeline
notification of a relocation. We recognize that in some cases, a
temporary move to an out-of-town relative may be planned as respite for
a short period, say one month, but perhaps unforeseen circumstances
could arise, whereby the return to the veteran's home is delayed. In
this instance, the veteran's home remains their intended permanent
address. Additionally, we are aware of cases in which a veteran may
have a `summer' residence and a `winter residence.' In these cases, VA
would expect notification of the veteran's address change, not only for
the purposes of calculating the stipend payment but also to allow VA to
conduct the required wellness contact, which is required generally
every 120 days. Such cases would be reviewed on a case by case basis.
VA will develop written guidance to guide consistent determinations of
these circumstances.
Change to Heading in Sec. 71.40(c)(4)(i)(D)
In the proposed rule, we included a heading for new Sec.
71.40(c)(4)(i)(D) which establishes a special rule for Primary Family
Caregivers of legacy participants subject to decrease as a result of
VA's transition from the combined rate to the new monthly stipend rate.
As part of this final rule, we are removing the heading, ``Special rule
for Primary Family Caregivers subject to decrease because of monthly
stipend rate'' as this heading is unnecessary. We make no other changes
to this paragraph.
Additional Benefits
Several commenters requested VA provide additional benefits for
Primary Family Caregivers to include, Military Airlift Command flights,
retirement options, dental care (for both an eligible veteran who is
rated below 100 percent service-connected disability and his or her
caregiver), long-term care benefits, assistance with mortgage and
survivor benefits. We address these comments below.
Section 71.40(b) and (c) of 38 CFR implement the benefits provided
to Secondary Family Caregivers and Primary Family Caregivers,
respectively, under 38 U.S.C. 1720G(a)(3)(A). Secondary Family
Caregivers are generally eligible for all of the benefits authorized
for General Caregivers, based on our interpretation and application of
section 1720G(a)(3)(A) and (B), in addition to benefits specific to the
Secondary Family Caregiver provided in Sec. 71.40(b)(1)-(6). See 76 FR
26153 (May 5, 2011). Similarly, Primary Family Caregivers are
authorized by section 1720G(a)(3)(A)(ii)(I) to receive all of the
benefits that VA provides to Secondary Family Caregivers in addition to
a higher level of benefits authorized only for Primary Family
Caregivers provided in Sec. 71.40(c)(2)-(6). Id. VA is unable to
provide additional benefits as suggested above (e.g., Military Airlift
Command flights, retirement options, dental care, long-term care
benefits, assistance with mortgage, survivor benefits) because these
benefits are not authorized under 38 U.S.C. 1720G(a)(3)(A).
Furthermore, to the extent one commenter believes VA should provide
dental care to veterans who have less than 100 percent service-
connected disability rating, we believe this is beyond the scope of
this rulemaking. We make no changes based on these comments.
One commenter requested that Secondary Family Caregivers be allowed
to obtain CHAMPVA benefits. Additionally, one commenter requested that
CHAMPVA include coverage for pre-existing conditions due to natural
disasters after suffering dental injury from a hurricane. 38 U.S.C.
1720G(3)(A) delineates between benefits provided to ``family caregivers
of an eligible veteran'' and ``family caregivers designated as the
primary provider of personal care services for an eligible veteran.''
Under section 1720G(a)(3)(A)(ii)(IV), VA must provide certain Primary
Family Caregivers with medical care under 38 U.S.C. 1781 and VA
administers section 1781 authority through the CHAMPVA program and its
implementing regulations. See 76 FR 26154 (May 5, 2011). Therefore, VA
lacks the statutory authority required to provide CHAMPVA benefits to
Secondary Family Caregivers as they are not designated as the primary
provider of personal care services. To the extent the commenter
believes CHAMPVA should provide coverage for pre-existing conditions,
there is currently no restriction in the services provided under
CHAMPVA based on pre-existing conditions. To the extent commenters
further suggest or request that VA should revise the CHAMPVA
regulations, those comments are beyond the scope of this rulemaking. We
are not making any changes based on these comments.
One commenter requested more access to caregiver support groups.
Another commenter asserted that in addition to offering financial
services, VA should include increased vocational rehabilitation
services to those who are no longer eligible for the monthly stipend to
help them find meaningful employment. While we are making no changes
based on these comments, we note that as part of PGCSS, we offer peer
support mentoring, local caregiver support groups, education and skills
training for caregivers, REACH (Resources for enhancing All Caregivers
Health) VA Telephone support groups and Spanish-Speaking telephone
support groups. We are ensuring that a consistent menu of these
services is
[[Page 46281]]
available across all VA facilities to any caregiver providing personal
care services to an enrolled veteran. We also note that VA has a toll-
free Caregiver Support Line, staffed by licensed social workers to
provide information about services that are available to caregivers.
Social workers assess caregiver's psychosocial needs, and provide
counseling, education, and advocacy to problem solve stressors
associated with caregiving. The Caregiver Support Line can also connect
caregivers with CSCs at local VA medical facilities and with other VA
and community resources.
Sec. 71.45 Revocation and Discharge of Family Caregivers
General
One commenter asserted that it is extremely difficult to discharge
a veteran or caregiver in PCAFC but did not provide any additional
information regarding that assertion. The changes to 38 CFR 71.45 that
we proposed and now make final are intended to clarify for eligible
veterans, Family Caregivers, and staff the various reasons for which a
Family Caregiver may be subject to discharge and revocation from PCAFC,
and will allow VA to take any appropriate action that is necessary when
those situations described in Sec. 71.45 occur. We make no changes
based on this comment.
One commenter asked what veterans and caregivers can expect from VA
in terms of being discharged from PCAFC, as VA has strict guidelines
for clinical discharge planning, and how VA plans to smoothly
transition veterans and Family Caregivers after PCAFC benefits,
supports, and services are terminated to ensure that the veteran's need
for personal care services are met. As explained in the proposed rule,
we would establish a transition plan for legacy participants and legacy
applicants who may or may not meet the new eligibility criteria and
whose Primary Family Caregivers may have their stipend amount impacted
by changes to the stipend payment calculation. We also described in
proposed Sec. 71.45 instances when VA would provide 60 days advanced
notice of discharge and when benefits would continue for a period of
time, as we believe both advanced notice of discharge and extended
benefits would assist with the adjustment of being discharged from
PCAFC. We also note that Family Caregivers can transition to PGCSS,
which provides a robust array of services such as training, education,
peer support, and ability to connect with VA Caregiver Program staff,
who can refer Family Caregivers and veterans to local VA and community
resources. We make no changes based on this comment.
One commenter requested that VA ensure both eligible veterans and
Family Caregivers are aware and comprehend the revocation and discharge
procedures as part of the initial PCAFC training. We agree with this
commenter and will provide information on revocation and discharge
procedures as part of the roles, responsibilities, and requirements
that are discussed with Family Caregivers and eligible veterans when
approved for PCAFC. However, we would not make any changes to the
regulation based on this comment, as training information would be more
appropriate for internal VA policy and training materials. We make no
changes based on this comment.
One commenter asserted that the changes we are making to part 71
will provide VA avenues to remove veterans from the existing program.
We note that we have had the ability to revoke the Family Caregiver
from PCAFC pursuant to 38 CFR 71.45 in multiple instances, including
when an eligible veteran or Family Caregiver no longer meets the
requirements of part 71. We make no changes based on this comment.
Revocation for Cause
One commenter recommended discharge be swifter, as fraud is fraud.
We believe this commenter was referring to revocation, as we proposed
using fraud as a basis for revoking the Family Caregiver's designation.
Another commenter was concerned about numerous instances they are aware
of in which individuals are abusing PCAFC and committing fraud, and
generally suggested VA do more to address fraud. As explained in the
proposed rule, we would revoke Family Caregiver designation when fraud
has been committed, discontinue benefits on the date the fraud began
(or if VA cannot identify when the fraud began, the earliest date that
the fraud is known by VA to have been committed, and no later than the
date on which VA identifies that fraud was committed), and would seek
to recover overpayment of benefits (benefits provided after the fraud
commenced). We believe that the revocation date in cases of fraud in
the proposed rule is swift, and that any earlier date would be
premature. Also, we do not tolerate fraud in PCAFC, and believe that
this is reflected in the revocation actions outlined in the proposed
rule. However, we also acknowledge that PCAFC is a clinical program and
PCAFC staff are not investigators; thus, we refer instances of
potential fraud to VA's OIG and work with OIG to the fullest extent to
identify and address instances of fraud within PCAFC. We make no
changes based on these comments.
Revocation Due to VA Error
One commenter did not oppose revocation of the Family Caregiver due
to VA error if the error was designating a Family Caregiver who is not
actually a family member and who does not live with the veteran.
However, this commenter asked what if VA erred in determining the
veteran's eligibility for PCAFC. This commenter expanded upon this
question by further asking what action VA would take if VA made an
administrative error in the veteran's eligibility and later determined
the veteran was not eligible, and would VA discharge the veteran and
his or her caregiver from the program. While we note that the reasons
for VA error may vary based on individual cases, if VA erred in
determining a veteran eligibility for PCAFC, we would revoke the Family
Caregiver's designation from PCAFC pursuant to Sec. 71.45(a)(1)(iii).
For example, we would revoke their status if VA erred in finding a
veteran eligible for PCAFC despite the veteran not meeting the minimum
service-connected disability rating. We make no changes based on this
comment.
One commenter appeared to suggest that VA should fully recoup
benefits provided in instances in which VA erred in determining a
veteran or servicemember and his or her Family Caregiver eligibility
for PCAFC when they never met the requirements of part 71, and
suggested VA error include legacy participants who never met the
requirements of part 71. As we explained in the proposed rule,
eligibility under new Sec. 71.20 (b) or (c) would not exempt the
Family Caregiver of a legacy participant or legacy applicant from being
revoked or discharged pursuant to proposed Sec. 71.45 for reasons
other than not meeting the eligibility criteria in proposed Sec.
71.20(a) in the one-year period beginning on the effective date of the
rule. For example, the Family Caregiver could be revoked for cause,
non-compliance, or VA error, or discharged due to death or
institutionalization of the eligible veteran or the Family Caregiver,
as discussed in the context of Sec. 71.45 below. 85 FR 13373 (March 6,
2020).
We assume this commenter was suggesting recoupment of overpayments
of all benefits received; not just those as of the date of the error.
As explained further in the proposed rule, the date of revocation would
be the date of the error, and if VA cannot identify when the error was
made, the date of
[[Page 46282]]
revocation would be the earliest date that the error is known by VA to
have occurred, and no later than the date on which the error is
identified. This is our current practice, which we would continue,
unless the error is due to fraud which is separately addressed in the
regulation and in which case, we could make revocation effective
retroactively and recoup overpayments of benefits provided after the
fraud commenced. We believe this is reasonable to prevent VA from
providing any more benefits to a Family Caregiver and veteran,
including legacy participants, who are not eligible for PCAFC. We note
that we would not recoup all overpayments of benefits received as that
could result in hardship to the Family Caregiver and veteran, and as a
matter of fairness, as the error was on the part of VA, and the Family
Caregiver and/or veteran may not have been aware of the error. We do
not make any changes based on this comment.
Revocation for Noncompliance
One commenter expressed concern with ``noncompliance,'' stating
that it would become VA's new ``in the best interest of'' and
requesting VA provide a detailed set of data for dismissals, and that
noncompliance particularly be scrutinized. While it is not entirely
clear what aspect of Sec. 71.45(a)(1)(ii) the commenter's concern is
directed towards, we assume this commenter is expressing concern over
the language in Sec. 71.45(a)(1)(ii)(E). We believe that this
commenter is requesting that this language be further defined, so that
all the reasons for revocation based on noncompliance be included in
this section. Another commenter generally opposed any catch-all
language in the proposed rule. As such, we believe that the commenter
was expressing objection to the language in Sec. 71.45(a)(1)(ii)(E),
which amounts to a catch-all provision, as we explained in the preamble
for the proposed rule. This commenter seemed to indicate that such
language is problematic because it gives VA too much discretion to do
what they want or cover circumstances as they see fit.
We disagree that this language gives VA too much discretion, as
this language is consistent with VA's authority to revoke the Family
Caregiver under 38 U.S.C. 1720G(a)(7)(D)(i) and (a)(9)(C)(ii)(II). In
addition, this language is meant to ensure that PCAFC is available only
to eligible veterans and Family Caregivers who meet the requirements of
part 71. Also, to the extent that the commenter indicated that all the
reasons for revocation based on noncompliance be included in this
section, we do not believe that this is necessary. As we proposed, 38
CFR 71.45(a)(1)(ii) describes all the reasons for revocation from PCAFC
due to noncompliance. In paragraph (a)(1)(ii), we further describe the
areas of noncompliance under part 71 that would lead to revocation,
which included a catch-all category in paragraph (a)(1)(ii)(E).
Paragraphs (a)(1)(ii)(A) through (D) of Sec. 71.45 are the most common
reasons for noncompliance that we have identified, which is why they
are specifically enumerated here. However, there may be other instances
of noncompliance that may arise, and as such, a catch-all category
would be appropriate as such other instances may not be as frequent,
and to list all the requirements of Part 71 under paragraph (a)(1)
would be overly lengthy. This catch-all category would allow us to have
a clear basis for revocation if the eligible veteran or Family
Caregiver(s) are not in compliance with part 71 outside of those that
are enumerated in Sec. 71.45(a)(1)(ii)(A) through (D). Moreover, we do
intend to monitor the usage of paragraph (a)(1)(ii)(E). As we noted in
the preamble to the proposed rule, if we find that this basis for
revocation is frequently relied upon, we would consider proposing
additional specific criteria for revocation under this section in a
future rulemaking. We make no changes based on these comments.
Discharge Due to no Longer in the Best Interest
One commenter opposed VA determining that the caregiver
relationship is not in the veteran's ``best interest,'' particularly if
both individuals are consenting adults with capacity to make informed
decisions, and that the best interest standard is only applicable in
situations in which the veteran lacks decision-making capacity. As
discussed above, the definition for ``in the best interest'' here is
not focused on the relationship and quality of a veteran's or
servicemember's relationship with their Family Caregiver, rather it is
focused on whether it is in the best interest of the eligible veteran
to participate in PCAFC, and this is a clinical decision guided by the
judgement of a VA health professional on what care will best support
the health and well-being of the veteran or servicemember. Moreover, 38
U.S.C. 1720G(a)(1)(B) provides that support under PCAFC will only be
provided if VA determines it is in the best interest of the eligible
veteran to do so. We make no changes based on this comment.
Discharge Due to Incarceration
Several commenters suggested VA discharge veterans from PCAFC,
without extended benefits, when the eligible veteran has been
incarcerated for 60 or more days. Commenters opposed VA providing
eligible veterans and Family Caregivers who are incarcerated with
extended benefits because they indicated that it was inappropriate and
contradicted 38 CFR 17.38, and similarly opposed VA's inclusion of jail
and prison in the proposed definition of institutionalization. Other
commenters opposed the inclusion of jail or prison in the definition of
institutionalization because it conflicts with the common use of the
term by health care providers and other federal programs. Additionally,
commenters asserted that VHA does not have independent access to city,
county, state, or Federal prison databases and questioned whether PCAFC
can leverage existing Federal databases or agreements, similar to VBA,
to obtain veteran incarceration data.
We disagree with the comments indicating that providing extended
benefits to Family Caregivers who are discharged due to the Family
Caregiver or veteran being in jail or prison contradicts Sec. 17.38,
since the authorities for the provision of VA health care and PCAFC
differ. Promulgated pursuant to 38 U.S.C. 1710, 38 CFR 17.38 describes
the medical care and services (i.e., the medical benefits package) for
which eligible veterans under Sec. Sec. 17.36 and 17.37 may receive,
and excludes the provision of hospital and outpatient care for a
veteran who is either a patient or inmate in an institution of another
government agency if that agency has a duty to give the care or
services. Paragraph (h) of 38 U.S.C. 1710 explicitly authorizes such
exclusion of providing care to veterans, such as those who are
incarcerated, when another agency of Federal, State, or local
government has a duty under law to provide care to the veteran in an
institution of such government. We note that PCAFC is governed by
section 1720G, which does not contain any similar language to section
1710 authorizing exclusion of the provision of PCAFC benefits in the
instance of incarceration. It is also important to note that PCAFC is a
program unique to VA, and that no other Federal, State, or local
government agencies have a duty under law to provide these same
benefits. Thus, we find the authorizing statutes, 38 U.S.C. 1710 and
1720G, to be distinguishable.
[[Page 46283]]
We acknowledge that institutionalization in the health care
context, including in other federal health care programs, usually
refers to long-term health care and treatment; not jail or prison.
However, we include jail and prison in the definition of
institutionalization, as referenced for purposes of continuation of
benefits in cases of discharge from PCAFC, because it provides Family
Caregivers time to transition and minimizes the negative impact that
may result from their discharge from PCAFC due to an eligible veteran
being placed in jail or prison, which may often happen unexpectedly. We
note that PCAFC is intended to support the Family Caregiver, and we
believe continuation of benefits in such an instance would be
consistent with that intent. Also, we include jail and prison in the
definition of institutionalization, as referenced for purposes of
continuation of benefits in cases of discharge from PCAFC, because it
provides a period of transition for the veteran to replace the Primary
Family Caregiver due to the Family Caregiver being placed in jail or
prison, which may also often happen unexpectedly.
We also note that it is administratively difficult to treat
institutionalization due to jail or prison differently from other
reasons for institutionalization (e.g., nursing home, assisted living
facility). Further, the eligible veteran or Family Caregiver being
placed in jail or prison is a very rare occurrence.
While we understand the support and rationale for the position that
those who are incarcerated should not be discharged from PCAFC with
extended benefits, we are not making any changes to 38 CFR 71.45 or the
definition of institutionalization based on these comments, as we would
need to spend more time collecting and reviewing data to better
understand this issue and determine whether benefits should not be
extended and whether we should revise the definition of
institutionalization. Based on this review, we would then consider
proposing changes to the definition of institutionalization and the
revocation and discharge section in a future rulemaking.
We are not making changes based on these comments.
Discharge Due to Family Caregiver Request
One commenter asserted that the proposed rule provides incentive to
caregivers to make false allegations of abuse and does not adequately
protect eligible veterans from abuse and exploitation. This same
commenter inquired as to the required burdens of proof for caregivers
who allege abuse to receive extended benefits. Additionally, this
commenter asked about the measures that will be taken to ensure
veterans receive continuity of care so that a veteran who is being
abused/exploited can discharge the caregiver without fear of being left
without assistance with necessary Activities of Daily Living. This same
commenter also opined that there are inherent risks associated with
providing a spouse with the veteran's health information and asked how
VA will protect the veteran's health information from unauthorized use
or disclosure for non-medical purposes.
While Primary Family Caregiver allegations of abuse could result in
discharge from PCAFC with extended benefits, we disagree that that
creates an incentive to make false allegations as Family Caregiver
designation will still be discharged, which will ultimately lead to
discontinuation of benefits. It is also important to note that we
require certain documentation to be provided if the Family Caregiver
requests discharge due to domestic violence or intimate partner
violence, such as police reports or records of arrest, protective
orders, or disclosures to a treating provider, which we believe further
acts as a disincentive for making false allegations. See 85 FR 13356,
at 13410-13411 (March 6, 2020).
In order to protect eligible veterans from abuse and exploitation,
we would conduct wellness contacts and reassessments (including in home
visits) in which we would be able to identify potential vulnerabilities
for the eligible veteran. If we determine there is abuse occurring,
participation in PCAFC may be revoked under 38 CFR 71.45(a)(1)(i)(B).
Current 38 CFR 71.45(c) addresses actions we may take if we suspect
that the safety of the eligible veteran is at risk. In order to better
describe the appropriate protocol and response to be taken in such
situations, we proposed revising this paragraph to state that VA may
suspend the caregiver's responsibilities, and facilitate appropriate
referrals to protective agencies or emergency services is needed, to
ensure the welfare of the eligible veteran, prior to discharge or
revocation. See 85 FR 13411 (March 6, 2020). Measures that VA may take
to ensure eligible veterans continue to receive care when a Primary
Family Caregiver is discharged may include assisting the eligible
veteran, or surrogate, in identifying another individual to perform the
required personal care services, or assist with the designation of a
new Primary Family Caregiver. Additionally, local VA staff can work
with the eligible veteran to determine whether their needs may be met
by other VA programs or community resources, and can further refer, as
appropriate. We note that when requesting discharge, benefits continue
for a period of time so that the eligible veteran has time to adjust to
the discharge.
To the extent that the commenters raised concerns about protecting
veterans' health information from Primary Family Caregivers, we
consider such comments out of the scope of this rulemaking. We note
that being a Primary Family Caregiver does not necessarily mean such
individuals have access to the health records of the veteran, as
generally the veteran would need to consent to such access by the
Primary Family Caregiver, although there may be exceptions to this,
such as instances in which the Primary Family Caregiver is the legal
guardian. We do not provide information on the eligible veteran to the
Primary Family Caregiver solely on their status as the Primary Family
Caregiver, and VA has procedures in place for authorizing release of
records in compliance with Federal laws. It is also important to note
that we cannot protect against all risks that may exist when an
eligible veteran's caregiver is their spouse and the parties enter into
divorce proceedings, in which the eligible veteran's information may be
used against them. We make no changes based on these comments.
One commenter suggested VA allow other reasonable standards of
proof to substantiate claims of intimate partner violence for purposes
of extended benefits, as the proposed standard of proof differs from
those accepted for the arrest of a perpetrator (i.e., witness
statements, videos, taped 911 calls, photographs of injuries or
destroyed property, medical treatment records), and differs from those
required for receipt of benefits for conditions related to physical
assault, such as military sexual trauma. We decline to make any changes
based on this comment, as it would put us in an awkward position of
assessing and evaluating the authenticity and legitimacy of statements,
videos, and 911 calls; and could lead to further confusion about what
documentation would be sufficient. However, if the Primary Family
Caregiver presented such information to VA to request discharge and
establish an extension of benefits, but they did not have the documents
required under Sec. 71.45, we would refer them to the intimate partner
violence/domestic violence (IPV/DV) office and/or to a therapist or
counselor to assess
[[Page 46284]]
his or her safety and provide assistance in obtaining any required
documentation.
This same commenter opposed treating family caregivers who are
dismissed ``for cause'' better than those who relinquish caregiving
duties due to unsubstantiated IPV. This commenter noted that those
dismissed for cause must receive notice of revocation from VA within 60
days and may receive 90 days of continued services. This commenter also
noted that when a veteran dies, is institutionalized or whose condition
improves to the extent that services are no longer necessary, the
Primary Family Caregiver is provided 60 days to notify VA of the change
followed by 90 days of continued benefits. This commenter thus
suggested providing Primary Family Caregivers a minimum of 60 days to
notify VA of their request for discharge when it is due to abuse. Under
Sec. 71.45(b)(3)(i), a Primary Family Caregiver who requests discharge
due to unsubstantiated IPV can provide the present or future date of
discharge. If they do not, VA will contact the Primary Family Caregiver
to request a date. As a result, the Primary Family Caregiver is able to
set the date of discharge, after which they will receive 30 days of
continued benefits. We do not agree that a Primary Family Caregiver
whose designation is revoked for cause will receive more favorable
treatment than a Primary Family Caregiver discharged due to
unsubstantiated IPV, as a Primary Family Caregiver who is revoked for
cause will not receive an advanced notice of findings and would not
receive continued benefits per Sec. 71.45(a)(2) and (3). Also, as
previously mentioned, a Primary Family Caregiver who requests discharge
due to unsubstantiated IPV can select a future date to be discharged.
Additionally, as explained in the response to the preceding comment, if
a Primary Family Caregiver does not have the documents required under
Sec. 71.45(b)(3)(iii)(B) to substantiate IPV/DV, we would refer them
to the IPV/DV office and/or to a therapist or counselor to assess his
or her safety and provide assistance in obtaining any required
documentation. Also, we would like to clarify that, contrary to the
commenter's statement concerning improvement in the veteran's
condition, death, and institutionalization, the minimum of 60 day
notice that is provided for discharge due to improvement in the
veteran's condition is provided by VA and not the Primary Family
Caregiver, and there is no minimum of 60 day advanced notice from VA
for discharge due to death or institutionalization.
One commenter commended VA for extending services and support to
caregivers dealing with IPV/DV, but requested VA add shelter
coordinators and safe home coordinators to the list of those designated
to provide documentation to VA to allow for a more inclusive list of
professionals who work with those who have experienced IPV/DV. We make
no changes based on this comment, as the regulation lists VA clinical
professionals that may directly treat individuals experiencing IPV/DV
and those that frequently work with individuals experiencing IPV/DV and
have necessary and important expertise in this area to be able to
assess and address these issues. While this list of professionals is
not intended to be an exhaustive list, we note that shelter
coordinators and safe home coordinators are not treating providers, as
they generally are not required to hold licenses like those
professionals listed in the regulation.
Advanced Notice
One commenter supported VA's proposal to provide advanced notice of
decisions, which would also provide veterans and family caregivers the
opportunity to voice disagreement with VA's findings before benefits
are reduced or terminated. We thank this commenter for their support.
Another commenter suggested VA provide 90 days' notice to an
eligible veteran before reducing any PCAFC benefit or revoking their
participation in PCAFC, particularly in cases of non-compliance. As
explained in the proposed rule, we believe 60 days is a sufficient and
appropriate period of time to give notice that the stipend is being
decreased or that a Family Caregiver is revoked or discharged since
this would balance the desire to provide sufficient opportunity for
eligible veterans and Family Caregivers to dispute VA's findings while
ensuring benefits are not provided beyond a reasonable time to
participants who are determined to be eligible at a lower stipend rate
or no longer eligible for PCAFC. Consistent with that rationale, we
believe that 90 days is too long, and we make no changes based on this
comment.
This commenter also recommended that such notice should include the
following information, to the extent applicable: The specific reduction
in benefit, if any; a detailed explanation of the basis for the
determination to reduce the benefit; each specific eligibility
requirement with respect to which VA claims the veteran or caregiver is
noncompliant; a detailed explanation for how the veteran or caregiver
is noncompliant with each such requirement; the identity of all
personnel involved in the decision to reduce the benefit or revoke the
veteran's participation in PCAFC; all information and copies of all
documentation relied upon by VA in making its determination to reduce
the benefit or in making its determination of noncompliance. This
commenter also recommended VA allow the veteran to respond to any such
notice and provide information or explanations for why the reduction in
benefits or revocation should not be implemented; and such response
should generally be due within 60 days of receipt of the notice, but
the veteran should be permitted to request an extension of 60 days to
provide the response, which should be granted in the absence of any
determination that such request is being made in bad faith. This
commenter added that if a veteran requests a 60-day extension, VA
should not be permitted to implement the reduction in benefits or
revocation until at least 30 days after such extension. This commenter
also recommended that VA give good-faith consideration to any response
provided by the veteran, and to consider additional input from the
veteran's primary care team. Lastly, this commenter recommended VA be
required to provide a written decision, after considering the veteran's
response; and if VA still determines to reduce the veteran's benefits
or revoke the veteran's participation in PCAFC, such action should not
be effective until at least 30 days after VA provides its written
decision to the veteran.
The commenter mentioned above who supported VA's proposal to
provide advanced notice of decisions also urged VA to propose a
standard format containing a minimum set of information required in
these notices, such as those elements described under 38 U.S.C. 5104(b)
(identification of the issues adjudicated; a summary of the evidence
considered by the Secretary; a summary of the applicable laws and
regulations; identification of findings favorable to the claimant; in
the case of a denial, identification of elements not satisfied leading
to the denial; an explanation of how to obtain or access evidence used
in making the decision; and if applicable, identification of the
criteria that must be satisfied to grant service connection or the next
higher level of compensation). We appreciate both commenters' feedback,
and will consider this when developing any future changes to the
appeals process and related policies. We note that this would be in
policy rather than regulation to be consistent with how we
[[Page 46285]]
handle clinical appeals within VHA. Because PCAFC decisions are medical
determinations, we provide PCAFC participants with the opportunity to
dispute decisions made under PCAFC through the VHA clinical appeals
process, which is already established in VHA Directive 1041, Appeal of
VHA Clinical Decisions. Also, as explained in the proposed rule and
reiterated in this final rule, we will issue advanced notices before
stipend payment decreases and certain revocations and discharges. We
make no changes based on these comments.
Sec. 71.47 Collection of Overpayment
Several commenters disagreed with VA's definition of overpayment as
it would allow VA to collect any overpayments due to VA errors, such as
erroneous determinations of eligibility. These commenters opined that
VA should not collect in such circumstances as it would be contrary to
VA's authority to provide equitable relief pursuant to 38 U.S.C. 503(b)
and 38 CFR 2.7. One commenter noted that if VA sought collection of
overpayments, caregivers would file requests for equitable relief,
which would cost VA time and resources to process and would not be in
VA's or the taxpayers' best interest. That same commenter noted that
collecting overpayments when it was VA's error creates financial
hardship for the caregiver, the veteran, and their family.
While we understand the concerns the commenters raise, VA is
required to create a debt even in instances when overpayments are due
to VA error, and may collect on such overpayment. Collection of
overpayments is not unique to PCAFC, and does occur in other VA
programs, such as compensation and pension, as well as with employees
who incur debts as a result of overpayment in salary and benefits.
Individuals who incur a debt that VA attempts to collect can seek
equitable relief from VA as well as waiver of the debt. As one of the
commenters noted, VA's authority to grant equitable relief is found at
38 U.S.C. 503(b) and 38 CFR 2.7. VA may provide equitable relief due to
administrative errors made by VA. Section 2.7 specifically states that
if the Secretary determines that any. . . person, has suffered loss, as
a consequence of reliance upon a determination by the Department of
Veterans Affairs of eligibility or entitlement to benefits, without
knowledge that it was erroneously made, the Secretary is authorized to
provide such relief as the Secretary determines equitable, including
the payment of moneys to any person equitably entitled thereto.
Additionally, VA has the authority to waive debts that are incurred
from participation in a benefit program, including PCAFC, administered
under any law by VA when it is determined by a regional office
Committee on Waivers and Compromises that collection would be against
equity and good conscience. See 38 CFR 1.962. In evaluating whether
collection is against equity and good conscience, these local
committees consider the following elements: The fault of the debtor,
balancing of faults, undue hardship, defeat the purpose, unjust
enrichment, changing position to one's detriment. See 38 CFR 1.965.
While we anticipate that we should not have errors in PCAFC that
would result in overpayment, especially in light of the changes we are
making as part of this rulemaking, we acknowledge that errors can
occur. In the instance that VA has erred resulting in overpayment, an
individual can still seek equitable relief or waiver of the debt to
avoid collection by VA. However, there is no guarantee that either of
these will be granted, as the individual facts of such requests will
need to be reviewed and determined on a case by case basis. We make no
changes based on these comments.
One commenter requested VA clarify that it will not initiate
collections of overpayments to legacy participants when it is
determined they do not meet eligibility requirements, including
situations when they were initially approved in error. Another
commenter agreed with collecting overpayments due to VA error to ensure
VA is being a good financial steward of the taxpayers' dollar, and that
VA should similarly collect overpayments from legacy participants who
have never met the requirements of part 71. This commenter asserted
that VA has a duty to recover overpayments due to erroneous
determinations by VA, as all improper payments degrade the integrity of
government programs and compromise trust in the government.
We agree that we should collect overpayments pursuant to 31 U.S.C.
3711 and in accordance with the Federal Claims Collection Standards,
and 38 U.S.C. 5302 and 5314. In instances of VA error, we would go back
to the earliest date possible to collect improper payments that we made
to individuals. This determination will vary based on the facts of each
individual case. For example, if a Family Caregiver is determined
eligible for PCAFC under the new criteria and VA erred in making that
determination, VA would need to collect that overpayment from the date
VA erred (i.e., the date the determination of eligibility for PCAFC was
made). However, we note that this may vary for legacy participants
depending on the circumstances. For example, if a legacy participant is
reassessed under the new eligibility criteria, and is determined to be
ineligible under the new criteria, they will be discharged from PCAFC
and we will not recoup any benefits previously received based on the
fact that they are ineligible under the new criteria. If a legacy
participant is reassessed under the new criteria and we erred in our
initial determination that the participant was eligible for PCAFC when
they were not, and they do not qualify for PCAFC under the new
eligibility criteria, we would discharge them from PCAFC. We would not
recoup any benefits received as a matter of fairness and because we
believe that would result in hardship to the participant.
We further note that waiver of the debt and equitable relief may be
available to eliminate the debt that VA is trying to collect. However,
we cannot guarantee that either debt waiver or equitable relief would
be granted since these will need to be evaluated on a case by case
basis.
We make no changes based on these comments.
One commenter opined that PCAFC is a program susceptible to
significant improper payments; and the Office of Management and Budget
(OMB) should identify PCAFC as such and put in place measures to
determine the amount and causes of improper payments, which will allow
PCAFC to focus on corrective action plans to address these issues. We
consider this comment outside the scope of this rulemaking and note
that we cannot direct OMB to take any action. We make no changes based
on this comment.
Another commenter requested that VA provide eligible veterans and
Family Caregivers with information during the initial training to fully
understand collection of overpayments. We make no changes to the
regulation based on this comment. We would not provide this information
during initial training, but we will provide this information in fact
sheets which will be available to eligible veterans and Family
Caregivers upon approval for PCAFC.
One commenter noted that there are multiple instances of catch-all
within the proposed regulations (e.g., in the preamble discussion of
proposed Sec. 71.47) of which they have concerns that this will allow
VA to do what it wants, which the commenter considers a ``red flag.''
We responded to this
[[Page 46286]]
comment in the discussion on revocation and discharge, above, and refer
the commenter to that response. We make no changes based on this
comment.
Miscellaneous Comments
We received many comments that did not directly relate to any
regulatory sections from the proposed rule, but that expressed concerns
with VA's administration of PCAFC and PGCSS. Although we do not make
changes to the proposed rule based on these comments because they are
beyond the scope of the proposed rule or address issues that would be
best addressed through policy, we summarize the comments below by
topic.
Appeals
We received many comments related to VA's appeals process with
regard to PCAFC, which primarily argued that PCAFC determinations
should be subject to the jurisdiction of the Board of Veterans' Appeals
(BVA) and expressed concerns with the current PCAFC appeals process.
Commenters asserted that PCAFC services are benefits that should be
subject to BVA review to ensure consistency and fairness across PCAFC.
Specifically, some commenters suggested that the first sentence in 38
CFR 20.104(b) allows for PCAFC determinations to be appealed to BVA.
One commenter specifically suggested it is contrary to 38 U.S.C. 7104
and 511(a) to restrict PCAFC determinations from the jurisdiction of
BVA, and that VA should amend or waive 38 CFR 20.104(b) to allow PCAFC
determinations to be appealed to BVA (we note that although the
commenter referred to both 38 CFR 20.10(b) and 20.101(b), based on the
content of the comment, we believe that the intended reference was
Sec. 20.104(b) as Sec. 20.10(b) does not exist and Sec. 20.101(b)
was redesignated as Sec. 20.104(b) (84 FR at 177 (January 18, 2019)).
Several commenters asserted that applicants are deprived of due process
if they cannot further appeal PCAFC determinations to BVA. One
commenter opined that the authorizing statute, 38 U.S.C. 1720G, does
not consider all decisions under PCAFC to be medical determinations;
only those ``affecting the furnishing of assistance or support,'' thus
those non-medical determinations should be appealable to BVA. Other
commenters suggested that BVA should have jurisdiction over PCAFC
determinations because they are more similar to other VHA
determinations over which BVA has jurisdiction. One commenter asserted
that because VHA provides expert medical review of cases for BVA, VA
should be able to utilize BVA in reviewing its cases of PCAFC clinical
appeals decisions. Additionally, some commenters asserted that by
expanding the definition of serious injury to include a service-
connected disability that is 70 percent or more, or a combined rating
of 70 percent or more, VA should expand the ability to appeal PCAFC
decisions to BVA since PCAFC would be using VBA criteria and decisions
to influence VHA clinical determinations. Commenters also expressed
that the current appeals process for PCAFC determinations, the VHA
clinical appeals process, was unfair and inconsistent; and some
commenters recommended that PCAFC establish its own unique appeals
process. Some commenters also recommended setting forth the appeals
process for PCAFC determinations in regulation, in order to provide
clarity, consistency, and an opportunity for public comment. We address
these comments below.
First, we note that while 38 U.S.C. 1720G confers benefits, which
would typically be subject to 38 U.S.C. 7104(a) and 511(a) and confer
BVA jurisdiction, Congress specifically intended to further limit
review of PCAFC determinations with the language set forth by section
1720G(c)(1), which states that ``[a] decision by the Secretary under
this section affecting the furnishing of assistance or support shall be
considered a medical determination.'' Medical determinations are not
subject to BVA's jurisdiction under 38 CFR 20.104(b) which describes
BVA's appellate jurisdiction over VHA determinations. The first
sentence in Sec. 20.104(b) states that BVA's appellate jurisdiction
extends to questions of eligibility for hospitalization, outpatient
treatment, and nursing home and domiciliary care; for devices such as
prostheses, canes, wheelchairs, back braces, orthopedic shoes, and
similar appliances; and for other benefits administered by VHA.
However, the second sentence of Sec. 20.104(b) clarifies that medical
determinations, such as determinations of the need for and
appropriateness of specific types of medical care and treatment for an
individual, are not adjudicative matters and are beyond BVA's
jurisdiction. Id. Therefore, because 38 U.S.C. 1720G establishes that
PCAFC decisions are medical determinations, such decisions are not
appealable to BVA. Accordingly, we disagree with the assertion that the
first sentence in 38 CFR 20.104(b) allows for PCAFC determinations to
be appealed to BVA. For these same reasons, regardless of whether or
not PCAFC determinations are more similar to other VHA determinations
that BVA has jurisdiction over and despite the extent to which VHA
provides expert medical review of cases for BVA, PCAFC determinations
cannot be appealed to BVA. Accordingly, we disagree with commenters
asserting that BVA should have jurisdiction over PCAFC determinations
on these grounds.
We also disagree with the assertion that 38 CFR 20.104(b) as
applied to PCAFC determinations is contrary to 38 U.S.C. 7104(a) and
511(a), thus requiring that PCAFC appeals be reviewed by BVA. In
addition, we disagree with the assertion that 38 U.S.C. 1720G does not
consider all decisions under the PCAFC to be medical determinations
(e.g., procedural and factual questions, such as whether an applicant
has furnished all required information, whether VA has contributed to a
delay in an applicant caregiver completing his or her training and
education requirements in a timely manner, whether a veteran's serious
injury was incurred or aggravated in the line of duty, when a serious
injury was incurred or aggravated, or whether an applicant's disability
rating meets or exceeds 70 percent). As mentioned above, while 38
U.S.C. 1720G confers benefits, which would typically be subject to 38
U.S.C. 7104(a) and 511(a), Congress specifically intended to further
limit review of PCAFC determinations by designating such determinations
as ``medical determinations.'' Congress also specifically intended that
all decisions under PCAFC be considered medical determinations by
stating broadly that decisions ``affecting the furnishing of assistance
or support'' under section 1720G would be considered a medical
determination. PCAFC benefits under section 1720G consist of assistance
and support services, and as such, any decision under the PCAFC would
affect the furnishing of assistance or support under this section,
including the examples relating to PCAFC eligibility provided by the
commenter. As explained in the final rule implementing PCAFC and PGCSS,
``[t]he plain language of section 1720G(c)(1) removes any doubt that
Congress intended to insulate even decisions of eligibility from
appellate review under [PCAFC], and VA's regulation at Sec.
20.10[4](b) cannot circumvent a statutory requirement. `If the intent
of Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the
[[Page 46287]]
unambiguously expressed intent of Congress.' Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Further,
Congress is presumed to know what laws and regulations exist when it
enacts new legislation, and it is reasonable to infer that Congress
knew that medical determinations were not appealable under Sec.
20.10[4], and subsequently used that precise phrase in the statute to
limit appeals of decisions in the [PCAFC]. See California Indus.
Products, Inc. v. United States, 436 F.3d 1341, 1354 (Fed. Cir. 2006)
(`These regulations are appropriately considered in the construction of
[this particular statute] because Congress is presumed to be aware of
pertinent existing law.').'' 80 FR at 1366 (January 9, 2015).
We further note that, to the extent commenters contend that the
exclusion of medical determinations from the jurisdiction of BVA is
invalid and that VA should amend or waive 38 CFR 20.104(b), we believe
that this is beyond the scope of this rulemaking. As previously
explained, Sec. 20.104(b) restricts medical determinations from BVA's
appellate jurisdiction. However, we did not propose changes to this
regulation as part of this rulemaking; therefore, any requests to amend
or waive Sec. 20.104(b) is beyond the scope of this rulemaking.
Additionally, we believe that expanding the definition of serious
injury to include a 70 percent service-connected disability rating, or
a combined rating of 70 percent or more, does not change the
jurisdictional limitations of BVA concerning PCAFC determinations
discussed above. A determination under PCAFC that a veteran or
servicemember does not have a serious injury because he or she has a
service-connected disability rating, or a combined rating, below 70
percent, is still a PCAFC determination and would therefore still be
deemed a medical determination and not subject to BVA's jurisdiction.
However, if a veteran or servicemember believes that his or her
service-connection rating is incorrect, he or she may seek correction
of their service-connection rating from VBA or appeal their rating to
BVA, if appealable.
Commenters asserted that applicants are deprived of due process if
they cannot further appeal PCAFC determinations to BVA. In particular,
one commenter suggested that PCAFC creates an entitlement, such that
applicants have a constitutional right to due process to further appeal
PCAFC determinations. However, we note that PCAFC is not an
entitlement. Section 1720G(c)(2)(B) of 38 U.S.C. specifically states
that the statute does not create any entitlement to any assistance or
support provided under PCAFC. Notwithstanding this explicit language,
the commenter contends that this provision is not dispositive of
whether otherwise nondiscretionary, statutorily mandated benefits
create an entitlement protected by the constitution. However, these
benefits are not nondiscretionary; they are discretionary, as they can
be granted or denied within VA's discretion. In this regard, 38 U.S.C.
1720G(a)(1)(B) specifically states, ``[t]he Secretary shall only
provide support under the program required by subparagraph (A) to a
family caregiver of an eligible veteran if the Secretary determines it
is in the best interest of the eligible veteran to do so.'' Therefore,
we disagree with the commenter's assertion that PCAFC benefits create a
constitutional due process right to further appeal such determinations
to BVA. See Cushman v. Shinseki, 576 F.3d 1290, 1297 (2009) (``A
benefit is not a protected entitlement if government officials may
grant or deny it in their discretion.''). However, we further note that
despite this, VA nonetheless provides applicants with due process
through the VHA clinical appeals process. Under the VHA clinical
appeals process, veterans and Family Caregivers have access to a fair
and impartial review of disputes regarding clinical decisions. Thus,
because the process for appealing clinical decisions, such as PCAFC
determinations, is set forth in policy rather than regulation, we would
make no changes to the regulations to include appeals of PCAFC
decisions. Moreover, VA has provided a new advanced notice provision in
the PCAFC regulations where VA must provide no less than 60-days
advanced notice prior to a decrease in the monthly stipend payment,
revocation, or discharge (as applicable) from PCAFC. This 60-day period
will provide an opportunity to contest VA's findings before a stipend
decrease, revocation, or discharge (as applicable) become effective. We
believe providing advanced notice and opportunity to contest VA's
findings before benefits are reduced or terminated would benefit both
VA and eligible veterans and Family Caregivers. 85 FR 13394 (March 6,
2020)). By adding a requirement for advanced notice before stipend
payment decreases and certain revocations and discharges, it is our
hope that communication between VA and eligible veterans and their
Family Caregivers would improve, and that PCAFC participants would have
a better understanding of VA's decision-making process. Id.
To the extent that commenters recommended that the appeals process
for PCAFC determinations be set forth in regulation and that PCAFC have
its own unique appeals process, as we explained above, all decisions
under PCAFC are considered medical determinations pursuant to 38 U.S.C.
1720G; and disputes of medical determinations (i.e., clinical disputes)
are subject to the VHA clinical appeals process per VHA Directive 1041,
Appeal of VHA Clinical Decisions. We note that while we generally
follow the VHA clinical appeals process outlined in VHA Directive 1041
for appeals of PCAFC decisions, there are some processes unique to
PCAFC, which will be addressed in an appendix to VHA Directive 1041.
The updated directive with that appendix will be published at a future
date on VHA's publication website. Thus, because the clinical appeals
process is already established in VHA Directive 1041, we do not find it
necessary to establish an entirely separate appeals process for PCAFC
decisions or set forth in regulation the appeals process for PCAFC
decisions. For these reasons, at this time, we decline to establish an
entirely separate appeals process for PCAFC decisions or set forth in
regulation the appeals process for PCAFC decisions.
A commenter also encouraged VA to utilize mediation and online
dispute resolutions for clinical appeals pursuant VHA Directive 1041,
Appeal of VHA Clinical Decisions. Commenters also opined that the VHA
clinical appeals process is not fair as there is no neutral party to
impartially adjudicate appeals and inconsistent as clinical review
could vary from provider to provider, VAMC to VAMC, and VISN to VISN.
We do not address these as these comments are outside the scope of this
rulemaking and apply to all of VHA clinical appeals, not just PCAFC.
However, we will take these under consideration for future changes to
VHA Directive 1041, or subsequent directive.
Electronic Communications
One commenter opined that it is necessary to include the ability of
caregivers to electronically be in touch with the ones they are giving
care to. The same commenter asserted that being unable to see or speak
to the person you have been taking care of for years puts stress on the
caregiver and the client. Further, the commenter stated that the
recreation group in a nursing home can accommodate the use social media
platforms. We do not understand the exact concerns of this commenter
and
[[Page 46288]]
encourage anyone encountering these issues to contact their local CSC.
Contracting
One commenter stated they have not received any patients from VA
despite having a contract for over three years and questioned what they
should do. We consider this comment outside the scope of this
rulemaking and would recommend this commenter reach out to the
contracting officer for the contract.
Current Execution of PCAFC
Several commenters did not suggest specific changes to the proposed
rule but rather expressed frustration with the current execution and
management of PCAFC, to include inconsistent application of program
requirements, problematic eligibility determinations, inappropriate
discharges, and a general lack of knowledge and accountability by CSCs.
Other commenters provided general information about their
circumstances. We make no changes based on these comments; however, we
note that we are implementing processes to standardize and improve
PCAFC eligibility determinations to include a robust staff education
and training plan, centralized eligibility, and enhanced oversight.
Additionally, as we shift eligibility determinations to the CEATs, we
will shift the role of the CSCs to providing care and advocacy for the
eligible veteran and his or her caregiver. Also, eligible veterans and
his or her caregivers who believe they have been inappropriately
discharged from the program may contact their local facility patient
advocate as well as appeal PCAFC determinations through the VHA
clinical appeals process. Furthermore, individuals interested in
applying to PCAFC may contact their local VA medical facility CSC or
refer to https://www.caregiver.va.gov/ for additional information about
the program and the application process.
Denial of Aide and Attendance Benefit
One commenter stated that they have submitted VA Form 21-2680 three
times and have been denied by VA. We note that PCAFC is a VHA clinical
program that is separate from a VBA aide and attendance allowance. For
questions regarding eligibility please contact your nearest VBA
regional office.
Funding for PCAFC and Regulatory Impact Analysis
Multiple commenters questioned how VA will pay for the expansion of
PCAFC. One commenter raised concerns that the program has too many
holes it in and may likely be financially unsustainable. The 2020
President's Budget included estimated funding to meet the caregiver
population expansion from the MISSION Act. The Further Consolidated
Appropriations Act, 2020 (Pub. L. 116-94) included sufficient funding
to meet the Caregiver Program cost estimates. The 2021 President's
Budget included a funding request for the Caregiver Program based on
the same updated projection model as used to formulate the regulatory
impact analysis budget impact. Future President's Budget requests will
incorporate new data and updated cost projections as they become
available. For a detailed analysis of the costs of this program, please
refer to the regulatory impact analysis accompanying this rulemaking.
We make no changes based on these comments.
Another comment requested VA explain the discrepancy between the
economically significant description of the proposed rule and the
regulatory impact analysis that states 2022 is not economically
significant. The commenter further opined that after unloading all of
the post-9/11 veterans, the costs of all previous era veterans equal
out so that this rule is not economically significant. First, with
regards to the commenter's statement that the regulatory impact
analysis states that 2022 is not economically significant, we are
unclear as to what this commenter is referring by ``2022.'' As the
regulatory impact analysis states, we determined that this regulatory
action is economically significant. Further, as previously discussed,
we are not expanding to pre-9/11 eligible veterans at the expense of
post-9/11 veterans and servicemembers, rather we are building one
program to encompass veterans and servicemembers of all eras.
Intent of Program
One commenter requested VA ``get back'' to the original intent of
the program, which the commenter stated is for home bound veterans from
military service injury, and that most veterans with qualifying issues
do not require a caregiver for 24/7 care and thus will not be eligible.
This commenter also asserted that PCAFC may enable veterans and their
caregivers, causing negative impacts on veteran/caregiver mental
health.
First, we note that the intent of PCAFC has always been to provide
comprehensive assistance to Family Caregivers of eligible veterans who
have a serious injury incurred or aggravated in the line of duty on or
after September 11, 2001. It was never intended to be solely for ``home
bound veterans'' nor was it intended to require caregivers provide 24/7
care. PCAFC was intended to provide supportive services, and education
and training to Family Caregivers of injured veterans. Services
provided by Family Caregivers are meant to supplement or complement
clinical services provided to eligible veterans. As part of PCAFC, we
do not require Family Caregivers provide 24/7 care to eligible
veterans. The changes we previously proposed and now make final do not
alter that intent. However, we note that the changes we are making to
PCAFC are necessary as a result of the VA MISSION Act of 2018 which
requires PCAFC to be expanded to veterans of all eras. Thus, because
veterans of different eras have different needs, we need to adapt PCAFC
to meet the needs of these veterans and are doing so by making such
changes as decoupling serious injury and the need for personal care
services. We believe these changes are consistent with the original
intent of PCAFC.
We respectfully disagree with the commenter's assertion that PCAFC
will enable veterans and their caregivers, causing negative impacts on
veteran and caregiver mental health. We reiterate that PCAFC is meant
to provide certain assistance to Family Caregivers and recognize the
sacrifices caregivers make to care for veterans. It is intended to help
veterans and servicemembers achieve their highest level of health,
quality of life, and independence. 85 FR 13360 (March 6, 2020). While
we understand and recognize that being a Family Caregiver can be
challenging, Family Caregivers can receive respite care and counseling,
including individual and group therapy, and peer support groups, under
PCAFC. Primary Family Caregivers may also receive health care and
services through CHAMPVA. Additionally, eligible veterans would be
enrolled in VA healthcare and would be able to seek mental health care
through VA. We make no changes based on this comment.
Interaction With Other Programs
Multiple commenters requested clarification on how PCAFC interacts
with other VA and federal programs (e.g., VHA Homemaker and Home Health
Aide, VHA Home Based Primary Care, VHA Veteran-Directed Care, VBA Aid
and Attendance, programs administered by the Social Security
Administration (SSA)). Additionally, one commenter requested
information about services available to them to use now until they are
eligible for PCAFC as a result of expansion. PCAFC is one of many in-
home VA services that are complementary but not necessarily
[[Page 46289]]
exclusive to one another. As a result, an eligible veteran and his or
her caregiver may participant in more than one in-home care program, as
applicable. Furthermore, older veterans or servicemembers awaiting
expansion for his or her service era, may be eligible for other VA
programs and benefits (e.g., PGCSS, Homemaker and Home Health Aide,
Veteran-Directed Care, home based primary care, SMC). As we have noted
throughout this rule, VA offers a menu of supports and services that
supports caregivers caring for veterans such as PGCSS, homemaker and
home health aides, home based primary care, Veteran-Directed care, and
adult day care health care to name a few. We note that the definition
of serious injury requires a single or combined service-connected
disability rating of 70 percent, which is the minimum threshold we will
use for determining eligibility for PCAFC. As explained previously,
other criteria, including that the individual be in need of personal
care services and that PCAFC be in the best interest of the veteran,
must be further met to be eligible for PCAFC. Eligibility for SSA
benefits does not impact eligibility for PCAFC. It is also important to
note that stipend payments received under PCAFC do not earn credits
toward Social Security retirement as stipend payments are non-taxable.
We further note that all income counts against eligibility for
Supplemental Security Income, but not against eligibility for Social
Security Disability Income or Social Security retirements. Because we
do not administer SSA benefits, we would further refer commenters to
SSA's website (at https://www.ssa.gov/) for more information on
eligibility for SSA benefits. We will also consider these comments in
determining requirements in contracts for personal financial services.
We are not making any changes to the regulation based on these
comments.
Meeting Notes
One commenter requested VA provide the meetings notes from a
current employee from February 25, 2019. If the commenter is referring
to the February 25, 2019 meeting notes identified in the proposed rule,
the meeting notes titled ``Meeting Notes 02.25.19'' is posted in the
docket folder for this rulemaking (i.e., AQ48--Proposed Rule--Program
of Comprehensive Assistance for Family Caregivers Improvements and
Amendments under the VA MISSION Act of 2018) at https://www.regulations.gov. The commenter may need to select ``View All''
beside the Primary Documents heading in the docket. We make no changes
based on this comment.
Electronic Medical Record and Health Insurance Portability and
Accountability Act (HIPAA)
One commenter asserted that access to a patient's medical record,
including the ability to insert a document into a patient's medical
record should be limited to only the medical provider(s) who treat the
veteran or servicemember. The same commenter further opined that
introducing this security method to the Computerized Patient Record
System (CPRS) would help eliminate HIPAA violations and cross provider
communication that crowds up the medical record. The commenter also
asserted that the medical records should only consist of the patient's
medical information. We consider this comment outside the rulemaking,
but note that VA has implemented security mechanisms, including access
and audit controls, within VA's Veterans Health Information System
Technology Architecture (VistA)/CPRS that comply with the HIPAA
Security Rule. All staff with access to patient information are
required, in the performance of their duties, to know their
responsibilities in maintaining the confidentiality of VA sensitive
information, especially patient information, by completing the annual
Cyber Security and Privacy training. We note that the health record
consists of the patient's medical information, including the
individual's health history, examinations, tests, treatments, and
outcomes. It also includes an administrative component that is an
official record pertaining to the administrative aspects involved in
the care of a patient, including: Demographics, eligibility, billing,
correspondence, and other business-related aspects. Such information is
necessary, particularly, as individuals other than a treating provider
utilize the information contained in the VHA health record on a daily
basis for eligibility determinations and other health care functions,
such as coding and billing; thus, we cannot limit access to the medical
record to only the treating providers. We make no changes based on this
comment.
One commenter stated this is ludicrous and a clear HIPAA violation
for said caregiver. As the commenter did not provide further
information, we cannot address this comment. We make no changes based
on this comment.
Move PCAFC to VBA
Several commenters asserted that PCAFC is a permanent benefits
program and questioned whether the program should be administered by
VBA. Commenters further expounded that VHA has shown it is unable to
consistently administer the program and that VHA medical facility staff
should not be involved with decisions that have financial implications
to veterans and his or her caregiver. While we agree that PCAFC does
provide benefits to the Family Caregivers of eligible veterans, PCAFC
is a clinical program that provides assistance to Family Caregivers of
eligible veterans who have a serious injury incurred or aggravated in
the line of duty, and is designed to support the health and well-being
of such veterans, enhance their ability to live safely in a home
setting, and support their potential progress in rehabilitation, if
such potential exists. See 85 FR 13356, at 13367 (March 6, 2020). Thus,
PCAFC is intended to be a program under which assistance may shift
depending on the changing needs of the eligible veteran. We do
acknowledge that while some eligible veterans may improve over time,
others may not, and PCAFC and other VHA services are available to
ensure the needs of those veterans continue to be met. Given the
placement of authority for the PCAFC program in Chapter 17 of title 38,
U.S. Code--Hospital, Nursing Home, Domiciliary, and Medical Care, VHA
has the exclusive authority to carry out the PCAFC program. See 38
U.S.C. 7301. Any relocation of the program to VBA would require
statutory change. Further, section 1720G does not create any
entitlement to any assistance or support provided under PCAFC and
PGCSS. See 38 U.S.C. 1720G(c)(2)(B). In administering PCAFC pursuant to
VHA's statutory authority in section 1720G, as explained in the
proposed rule, we have recognized that improvements to PCAFC were
needed to improve consistency and transparency within the PCAFC. See 85
FR 13356 (March 6, 2020). We believe the changes that we are making in
this rule will improve PCAFC, especially with regards to eligibility
determinations. We also note that we are implementing processes to
standardize and improve PCAFC eligibility determinations to include a
robust staff education and training plan, centralized eligibility, and
enhanced oversight.
Most In Need
Several commenters expressed concern over the phrase ``most in
need.'' In particular, one commenter asserted that the purpose and
application of this phrase ``eliminates participation because the word
`most' [implies] not all who are eligible.'' We note that, although the
comment used the word
[[Page 46290]]
``entitles,'' based on the content of the comment, we believe that the
intended word was ``implies.'' This commenter further asserted that it
is unlawful for VA to deny or revoke eligibility to focus on those who
are most in need. We do not have unlimited resources to provide PCAFC
to all caregivers of veterans, and note that the purpose and intent of
PCAFC is to provide benefits to Family Caregivers who make sacrifices
to care for veterans, who would otherwise not be able to manage without
that caregiver's assistance. We note that the phrase ``most in need''
was only used in the proposed rule in reference to a Federal Register
Notice published on January 5, 2018, requesting information and
comments from the public on how to improve PCAFC. We note that the
changes we are making through this rulemaking are intended to better
address the needs of veterans of all eras and standardize the program
to focus on eligible veterans with moderate and severe needs. 84 FR
13356 (March 6, 2020). We also further refer the commenter to the
discussion directly above addressing that PCAFC is not an entitlement
program.
We do not make any changes based on these comments.
Not Veteran-Centric
One commenter asserted that the proposed rule is VA-centric versus
veteran centric. Specifically, this commenter asserted that the changes
will lead to veterans not receiving the quality care they deserve, and
deny eligibility to other veterans under expansion who would be
previously eligible.
As we explained in the proposed rule, we are making changes to the
current regulations in part 71 to improve the PCAFC to ensure
consistency and transparency in decision making within the program, to
update the regulations to comply with amendments made to 38 U.S.C.
1720G by the VA MISSION Act of 2018, and to allow PCAFC to better
address the needs of veterans of all eras and standardize PCAFC to
focus on eligible veterans with moderate and severe needs. These
efforts to standardize PCAFC will ensure that eligible veterans and
Family Caregivers will receive a high level of care through PCAFC.
Thus, we disagree that the proposed rule is VA centric. We do not
believe this will lead to veterans not receiving the quality of care
they deserve, as veterans who are not eligible for PCAFC may be
eligible for other VHA care and services, such as home based primary
care, Veteran-Directed, and adult day health care. Similarly, we
acknowledge there may be veterans who would be eligible for PCAFC under
the previous eligibility criteria but will not be eligible under the
new eligibility criteria. However, for the reasons described in this
paragraph, we believe these changes are necessary.
We make no changes based on this comment.
Veteran Suicide
Commenters expressed concern that the proposed changes will result
in an increase in veteran suicides. One commenter also requested that
VA refrain from proposing another rule change before addressing why
veterans are committing suicide on VA hospital property. While we
consider these comments out of scope and make no changes based on these
comments, it is important to note that PCAFC is focused on providing
support and services to caregivers of veterans, and does not replace
appropriate clinical services from which a veteran may benefit. We also
note that suicide prevention is VA's top clinical priority. More
information on VA's suicide prevention efforts can be found at: https://www.mentalhealth.va.gov/MENTALHEALTH/suicide_prevention/index.asp. If
you are a veteran in crisis or you are concerned about one, free and
confidential support is available 24/7 by calling the Veterans Crisis
Line at 1-800-273-8255 and Press 1 or by sending a text message to
838255. We make no changes based on these comments.
Overhaul of Existing Program
Multiple commenters expressed frustration that this rulemaking is a
complete overhaul rather than fixing issues with the current program.
Specifically, commenters noted that the proposed rule does nothing to
address non-compliance and inconsistency in the implementation and
management of the current program and questioned the purpose of the
moratorium on tier reductions and discharges based on clinical
determinations. As indicated in the proposed rule, VA has recognized
the need to improve consistency and transparency since the
implementation of PCAFC in 2011 and the current moratorium was put in
place to prevent discharges and tier reductions while PCAFC focused on
education, guidance and conducted audits. We note that this moratorium
is still in place, and will be lifted once this regulation is final and
effective. Additionally, the current regulations are focused on post-9/
11 veterans and servicemembers and as discussed above we believe the
eligibility requirements must be revised to be inclusive of veterans
and servicemembers of all eras. Furthermore, we will continue to
provide robust training and education to our staff, implement an audit
process to review assessments at medical centers as well as centralized
eligibility determinations, and conduct vigorous oversight to ensure
consistency across VA in implementing this regulation. We make no
changes based on these comments.
PCAFC Is Not a VBA Nonmedical Benefit
One commenter urged VA to stop modeling PCAFC as though it is a VBA
nonmedical benefit, and cited to Tapia v. United States, 146 Fed. Cl.
114 (2016), in which the United State Court of Federal Claims affirmed
that PCAFC determinations are clinical and thus subject to VHA's
clinical appeals process. We do not understand this comment, and to the
extent that this commenter is asserting that PCAFC is a clinical
program operated by VHA, we agree. To the extent that this commenter is
asserting that PCAFC determinations are subject to the clinical appeals
process and are not within BVA's jurisdiction, we also agree. We make
no changes based on this comment.
PCAFC Staffing
Several commenters expressed concern that VA does not have the
staff to handle the wave of applications that will come once expansion
occurs. Specifically, commenters noted that VA staff are already
overwhelmed serving current PCAFC participants. We thank the commenters
for their concerns and note that we are actively increasing PCAFC staff
nationwide in anticipation of expansion. We make no changes based on
these comments.
Plain Writing Act and FAQs
Two commenters requested VA better explain PCAFC by using plain
language consistent with the Plain Writing Act of 2010. A separate
comment indicated VA should follow the plain language guidelines of
Plain Writing. Two commenters indicated that the rule was difficult to
understand and one of those commenter's requests FAQs. We are aware of
the complexity of the proposed changes; however, we conformed the
regulation to the Office of Federal Register guidelines which where
were developed to help agencies produce clear, enforceable regulation
documents. Additionally, we have and will continue to provide FAQs on
various aspects of the program. We are not making any changes based on
this comment.
[[Page 46291]]
Pilot Program
One commenter requested that VA pilot the proposed changes before
implementing the changes. The same commenter asserted that veterans of
all eras should join under the current regulations. As amended by
section 163 of the VA MISSION Act of 2018, 38 U.S.C. 1720G requires VA
expand eligibility for PCAFC to all veterans in two phases. We would
not pilot the proposed changes before implementing them as that would
not be appropriate in this instance. Pilot programs are conducted to
determine whether an approach may work and whether such an approach is
the correct one to use. However, the changes we have proposed and are
making final as part of this rulemaking are based on challenges and
issues we have seen and identified over the years since PCAFC was first
implemented. We have conducted thorough analysis to determine what
changes to make and to support those changes. In addition, running two
separate and distinct programs for different groups of veterans will
lead to confusion for caregivers, veterans, and staff. We do not make
any changes based on this comment but will continue to review and
analyze PCAFC and make any changes we deem necessary.
Requirement To Reapply After Moving
One commenter opposed the current practice and requirement for
participants to reapply for the program because they have moved, as
this has resulted in denial of PCAFC benefits. We wish to clarify that
an eligible veteran and the Family Caregiver are not required to submit
a new joint application if or when they relocate; that is, move to
another address. However, we will require a wellness contact be
conducted in the eligible veteran's home to determine if the new
environment meets the care needs of the eligible veteran. During the
wellness contact, the clinical staff member conducting such contact may
identify a change in the eligible veteran's condition or other such
change in circumstances whereby a need for a reassessment may be deemed
necessary and arranged accordingly pursuant to Sec. 71.30 if
necessary. We note that wellness contacts and reassessments are
distinct and separate processes.
Further, as explained above, we will provide robust training and
education to our staff, implement an audit process to review
eligibility determinations, and conduct vigorous oversight to ensure
consistency across VA in implementing this regulation. We are not
making any changes based on this comment.
Special Compensation for Assistance With Activities of Daily Living
(SCAADL)
Several commenters asserted that DoD's SCAADL program was intended
to be a part of a servicemembers' seamless transition to PCAFC. One
commenter provided SCAADL performance metrics and stated that there has
been little coordination with SCAADL by PCAFC or the Recovery
Coordination Program despite a Memorandum of Understanding between VA
and DoD for interagency complex care coordination requirements for
servicemembers and veterans. The commenter further asserted that the
Congressional intent of PCAFC was very clear following the passage of
three crucial laws: Caregivers Act, section 603 of the National Defense
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), and the
Veterans' Benefits Act of 2010 (Pub. L. 111-275).
While we consider these comments outside the scope of the proposed
rule, we will briefly explain SCAADL and PCAFC, and the coordination
between VA and DoD to meet the needs of servicemembers and veterans.
Authorized by section 603 of the National Defense Authorization Act for
Fiscal Year 2010 (Pub. L. 111-84) and codified at 37 U.S.C. 439, SCAADL
is taxable financial compensation that DoD provides to eligible
permanent catastrophically injured or ill servicemembers who require
caregiver support for assistance with activities of daily living or for
constant supervision and protection, without which they would require
hospitalization or residential institutional care. It is important to
note that PCAFC and SCAADL are distinct programs, as the statutory
authorities set forth different requirements and benefits for each
program. For example, unlike PCAFC, SCAADL does not provide benefits
directly to the Family Caregiver nor does it provide benefits other
than financial compensation.
These commenters also refer to the Recovery Coordination Program,
and we assume they are referring to the joint DoD/VA Federal Recovery
Coordination Program, which is a joint effort between the Departments
to coordinate the clinical and nonclinical services needed by severely
wounded, ill, and injured servicemembers and veterans.
DoD and VA continue to take efforts to support a smooth transition
as servicemembers leave active duty and become veterans. Through the
Transition Assistance Program, every year approximately 200,000
servicemembers, who are preparing to transition to civilian life,
receive information, resources, and tools to help prepare for this
transition. VA's portion of this program includes an in-person course
called VA Benefits and Services, which helps servicemembers understand
how to navigate VA and the benefits and services they have earned
through their military careers. This includes information on PCAFC. It
is important to note that if a servicemember has been discharged from
the military or has a date of medical discharge, he or she is eligible
to apply for PCAFC. We note that CSP partners with VA's Transition and
Care Management through their partnership with the Federal Recovery
Program and DoD Medical Treatment Facilities. We make no changes based
on these comments.
These same commenters also recommended that PCAFC be more aligned
with SCAADL, including definitions, application timelines, and
eligibility determinations. As explained in response to the comments
directly above, there are differences between the two programs based on
the authorizing statutes. Thus, the definitions and eligibility
determinations for these programs are necessarily different.
Additionally, the application timelines differ as a result of
differences between the programs' processes. For example, initial
eligibility for SCAADL is certified by a DoD- or VA-licensed physician,
after which time, DoD recommends that all responsible parties complete
the SCAADL application form within 30 days. In contrast, PCAFC does not
provide a recommended a timeline for completing the PCAFC application
form. Because we view these as distinct programs with different
requirements, we make no changes based on these comments.
Staff Training on Eligibility Determinations
Several commenters asserted that current PCAFC staff are unable to
make accurate eligibility determinations because they have been
improperly trained. Specifically, one commenter asserted that training
provided was not properly vetted by VA's Chief Education Officer to
ensure the training meets the standards of the Caregiver Omnibus Act of
2010. We are preparing multi-day trainings to be provided to staff that
will be making eligibility determinations. These trainings will be
approved by VA's Employee Education Service (EES), and will be tailored
to the various disciplines of the staff that will be determining
eligibility for PCAFC.
[[Page 46292]]
These trainings will be accredited by EES as these will be considered
continuing education credits for staff licenses, as applicable. We
currently provide in VA's employee training system, the Talent
Management System, standardized trainings on many portions of PCAFC,
including caregiver support and eligibility. These standardized
trainings have been approved by EES. We are also developing trainings
on how to use assessment instruments. We will ensure that quality
assurance and peer reviews are conducted to ensure that eligibility
determinations are made appropriately and consistently. Where we
determine improvement is needed, we will remediate and provide re-
training of staff. We make no changes based on these comments.
VA Should Pay all Veterans Before Caregivers
One commenter asserted that there should be some type of
compensation for all veterans who served regardless of whether they
have a service-connected disability prior to providing a stipend and
health care services to Family Caregivers. The same commenter further
opined that veterans with a certain percentage of service-connected
disability are free to schedule multiple VA medical appointments and
questioned why able-bodied veterans are not compensated nor able to use
VA for medical care. To the extent the commenter requests VA to revise
how veterans are compensated and priority designation for access to VA
medical care, this is beyond the scope of this rulemaking. We make no
changes based on this comment.
Veteran Functional Assessment Instrument
One commenter specifically stated that after the proposed rule was
published, they requested additional information from VA about how the
proposed eligibility evaluation and reassessment process will work,
including any assessment instruments that VA staff will use. This
commenter recommended that because VA did not adequately explain how
the process will work, VA should publish a supplemental notice of
proposed rulemaking or an interim final rule to explain this process,
upon which to provide the public the opportunity to comment. One
commenter recommended VA use an interrater reliability measure to
determine the level of standardization of the veteran functional
assessment instrument that VA staff may use to inform eligibility
determinations, recommended the current assessment instrument be
revised to ensure standardization and yield consistency, and further
suggested that the current assessment instrument be independently
validated, subject to public scrutiny, which should prove the
instrument's reliability, validity, responsiveness as an outcome
measure, and interpretability. This commenter also asked VA to provide
justification to prove the current assessment instrument was so fatally
flawed and beyond repair such that any necessary improvements would
cause greater burden than deploying a new assessment instrument or
undue burden on the public and the government. This commenter also
noted that VA has not provided the public with any valid and reliable
data or research to prove that the new veteran functional assessment
instrument has equivalent interrater reliability and validity as the
three assessment instruments on which it is based. Another commenter
opined that the current assessment tool used for evaluating the level
of assistance required by a veteran to complete ADLs or to determine a
veteran's need for supervision or protection is a good instrument and
asked what assessment/evaluation guidelines will be put in place now.
Additionally, one of the commenters referenced our current use of the
Katz Basic Activities of Daily Living Scale; the UK Functional
Independence Measure and Functional Assessment Measure; and the
Neuropsychiatric Inventory for conducting assessments of veterans. One
commenter raised concerns about using a new tool as VA staff is not
using the current tool properly. Two commenters requested VA provide a
detailed list of requirements and the scoring methodology to determine
eligibility.
We consider these comments to be outside the scope of the rule and
do not make any changes based on these comments nor will we publish a
supplemental notice of proposed rulemaking or an interim final rule;
however, we provide additional information as follows. The exact
processes and instruments that will be used to assess eligible veterans
and Family Caregivers for PCAFC would best be handled through policy.
While we note that commenters specifically inquired, or raised concerns
about the veteran functional assessment instrument, we note that it is
one of several factors that may be used by staff to inform
determinations for PCAFC eligibility. There will be no scoring
methodology for determining eligibility. Because these determinations
are clinical, the indicators and information used to make the
determinations will vary on a case by case basis depending on the
veteran's situation. After the regulation is published, we will publish
related policies that will describe the assessment process, including
any assessment instruments VA staff may use when PCAFC applicants are
evaluated for the program. We will ensure VA staff utilizing the any
assessment instruments are properly trained. We further note that we
will continue to monitor to ensure that any instruments used to assist
in assessing a veteran's needs for purposes of PCAFC are reliable and
valid. We make no changes based on these comments.
Several comments copied and pasted SMAG committee minutes, with no
further explanation or discussion. We concur that these are the minutes
from the SMAG Committee meetings. However, because no further context
to these comments were provided, we cannot address them further. We
make no changes based on these comments.
Other
Several commenters posted comments that did not provide additional
information beyond what appears to be a news release from Senator Patty
Murray on March 9, 2019 regarding PCAFC and minutes from the 1999
Archives of the U.S. Senate Taskforce on Hispanic Affairs, Veteran
Advisory Committee. Another commenter posted their interpretation of
the major takeaways for the proposed rule. One commenter posted
information on an herbal formula that can be used for ALS. One
commenter posted what appears to be excerpts from VA OIG reports. As no
further explanation or discussion was provided by the commenters, we
cannot further address. We make no changes based on these comments.
Technical Edits
We would make a technical edit to Sec. Sec. 71.10 through 71.40,
and 71.50. We would remove the statutory authority citations at the end
of each of these sections and amend the introductory ``Authority''
section of part 71 to include the statutory citations listed in these
sections that are not already provided in the ``Authority'' section of
part 71 to conform with publishing guidelines established by the Office
of the Federal Register. We note that current Sec. Sec. 71.20 and
71.30 include a citation to 38 U.S.C. 1720G(a)(2) and 1720G(b)(1), (2),
respectively. However, we would reference 38 U.S.C. 1720G, not specific
subsections and paragraphs. We would also add a reference to 31 U.S.C.
3711, which pertains to collections; 38 U.S.C. 5302, which
[[Page 46293]]
pertains to waiver of benefits overpayments; and 38 U.S.C. 5314, which
pertains to the offset of benefits overpayments. These references would
be added for purposes of proposed Sec. 71.47, Collection of
overpayment.
Paperwork Reduction Act
This final rule contains provisions that would constitute a revised
collection of information under 38 CFR 71.25, which is currently
approved under Office of Management and Budget (OMB) Control #2900-
0768. This rule also contains provisions that constitute a new
collection of information under 38 CFR 71.40, which will be added under
OMB Control #2900-0768. As required by 44 U.S.C. 3507(d), VA will
submit, under a separate document, the revised collection of
information associated with Sec. Sec. 71.25 and 71.40 to OMB for its
review and approval. Notice of OMB approval for this revised collection
of information will be published in a future Federal Register document.
Regulatory Flexibility Act
The Secretary hereby certifies that this 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 (RFA), 5 U.S.C.
601-612. We note that caregivers are not small entities. However, this
final rule may directly affect small entities that we would contract
with to provide financial planning services and legal services to
Primary Family Caregivers; however, matters relating to contracts are
exempt from the RFA requirements. Any effects on small entities would
be indirect. Therefore, pursuant to 5 U.S.C. 605(b), the initial and
final regulatory flexibility analysis requirements of 5 U.S.C. 603 and
604 do not apply.
Congressional Review Act
This regulatory action is a major rule under the Congressional
Review Act, 5 U.S.C. 801-808, because it may result in an annual effect
on the economy of $100 million or more. In accordance with 5 U.S.C.
801(a)(1), VA will submit to the Comptroller General and to Congress a
copy of this regulatory action and VA's Regulatory Impact Analysis.
Executive Order 12866, 13563, and 13771
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is an economically significant regulatory action under
Executive Order 12866. VA's impact analysis can be found as a
supporting document at http://www.regulations.gov, usually within 48
hours after the rulemaking document is published. Additionally, a copy
of the rulemaking and its impact analysis are available on VA's website
at http://www.va.gov/orpm/, by following the link for ``VA Regulations
Published.''
This rulemaking is considered an E.O. 13771 regulatory action. VA
has determined that the net costs are $483.4 million over a five-year
period and $70.5 million per year on an ongoing basis discounted at 7
percent relative to year 2016, over a perpetual time horizon. Details
on the estimated costs of this final rule can be found in the rule's
economic analysis.
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 final rule would have no such effect
on State, local, and tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.009, Veterans Medical
Care Benefits.
List of Subjects in 38 CFR Part 71
Administrative practice and procedure, Caregivers program, Claims,
Health care, Health facilities, Health professions, Mental health
programs, Travel and transportation expenses, Veterans.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Brooks D.
Tucker, Acting Chief of Staff, Department of Veterans Affairs, approved
this document on July 17, 2020, for publication.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 71 as follows:
PART 71--CAREGIVERS BENEFITS AND CERTAIN MEDICAL BENEFITS OFFERED
TO FAMILY MEMBERS OF VETERANS
0
1. The authority citation for part 71 is revised to read as follows:
Authority: 38 U.S.C. 501, 1720G, unless otherwise noted.
Section 71.40 also issued under 38 U.S.C. 111(e), 1720B, 1782.
Section 71.47 also issued under 31 U.S.C. 3711; 38 U.S.C. 5302,
5314.
Section 71.50 also issued under 38 U.S.C. 1782.
0
2. Amend Sec. 71.10 by revising paragraph (b) and removing the
authority citation at the end of the section.
The revision reads as follows:
Sec. 71.10 Purpose and scope.
* * * * *
(b) Scope. This part regulates the provision of benefits under the
Program of Comprehensive Assistance for Family Caregivers and the
Program of General Caregiver Support Services authorized by 38 U.S.C.
1720G. Persons eligible for such benefits may be eligible for other VA
benefits based on other laws or other parts of this title. These
benefits are provided only to those individuals residing in a State as
that term is defined in 38 U.S.C. 101(20).
0
3. Amend Sec. 71.15 by:
0
a. Removing the definition of ``Combined rate'';
0
b. Adding in alphabetical order definitions for ``Domestic violence
(DV)'', ``Financial planning services'', and ``In need of personal care
services'';
0
c. Redesignating in proper alphabetical order the definition of ``In
the best interest'' and revising it;
0
d. Revising the definition of ``Inability to perform an activity of
daily living (ADL)'';
0
e. Adding in alphabetical order definitions for
``Institutionalization'', ``Intimate partner violence (IPV)'', ``Joint
application'', ``Legacy applicant'', ``Legacy participant'', ``Legal
services'', and ``Monthly stipend rate'';
[[Page 46294]]
0
f. Removing the definition of ``Need for supervision or protection
based on symptoms or residuals of neurological or other impairment or
injury'';
0
g. Adding in alphabetical order definitions for ``Need for supervision,
protection, or instruction'' and ``Overpayment'';
0
h. Revising the definitions of ``Primary care team'' and ``Serious
injury'';
0
i. Adding in alphabetical order a definition of ``Unable to self-
sustain in the community''; and
0
j. Removing the authority citation at the end of the section.
The revisions and additions read as follows:
Sec. 71.15 Definitions.
* * * * *
Domestic violence (DV) refers to any violence or abuse that occurs
within the domestic sphere or at home, and may include child abuse,
elder abuse, and other types of interpersonal violence.
* * * * *
Financial planning services means services focused on increasing
financial capability and assisting the Primary Family Caregiver in
developing a plan to manage the personal finances of the Primary Family
Caregiver and the eligible veteran, as applicable, to include household
budget planning, debt management, retirement planning review and
education, and insurance review and education.
* * * * *
In need of personal care services means that the eligible veteran
requires in-person personal care services from another person, and
without such personal care services, alternative in-person caregiving
arrangements (including respite care or assistance of an alternative
caregiver) would be required to support the eligible veteran's safety.
In the best interest means, for the purpose of determining whether
it is in the best interest of the veteran or servicemember to
participate in the Program of Comprehensive Assistance for Family
Caregivers under 38 U.S.C. 1720G(a), a clinical determination that
participation in such program is likely to be beneficial to the veteran
or servicemember. Such determination will include consideration, by a
clinician, of whether participation in the program significantly
enhances the veteran's or servicemember's ability to live safely in a
home setting, supports the veteran's or servicemember's potential
progress in rehabilitation, if such potential exists, increases the
veteran's or servicemember's potential independence, if such potential
exists, and creates an environment that supports the health and well-
being of the veteran or servicemember.
Inability to perform an activity of daily living (ADL) means a
veteran or servicemember requires personal care services each time he
or she completes one or more of the following:
(1) Dressing or undressing oneself;
(2) Bathing;
(3) Grooming oneself in order to keep oneself clean and
presentable;
(4) Adjusting any special prosthetic or orthopedic appliance, that
by reason of the particular disability, cannot be done without
assistance (this does not include the adjustment of appliances that
nondisabled persons would be unable to adjust without aid, such as
supports, belts, lacing at the back, etc.);
(5) Toileting or attending to toileting;
(6) Feeding oneself due to loss of coordination of upper
extremities, extreme weakness, inability to swallow, or the need for a
non-oral means of nutrition; or
(7) Mobility (walking, going up stairs, transferring from bed to
chair, etc.).
Institutionalization refers to being institutionalized in a setting
outside the home residence to include a hospital, rehabilitation
facility, jail, prison, assisted living facility, medical foster home,
nursing home, or other similar setting.
Intimate partner violence (IPV) refers to any violent behavior
including, but not limited to, physical or sexual violence, stalking,
or psychological aggression (including coercive acts or economic harm)
by a current or former intimate partner that occurs on a continuum of
frequency and severity which ranges from one episode that might or
might not have lasting impact to chronic and severe episodes over a
period of years. IPV can occur in heterosexual or same-sex
relationships and does not require sexual intimacy or cohabitation.
Joint application means an application that has all fields within
the application completed, including signature and date by all
applicants, with the following exceptions: social security number or
tax identification number, middle name, sex, email, alternate telephone
number, and name of facility where the veteran last received medical
treatment, or any other field specifically indicated as optional.
Legacy applicant means a veteran or servicemember who submits a
joint application for the Program of Comprehensive Assistance for
Family Caregivers that is received by VA before 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.
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.
Legal services means assistance with advanced directives, power of
attorney, simple wills, and guardianship; educational opportunities on
legal topics relevant to caregiving; and referrals to community
resources and attorneys for legal assistance or representation in other
legal matters. These services would be provided only in relation to the
personal legal needs of the eligible veteran and the Primary Family
Caregiver. This definition excludes assistance with matters in which
the eligible veteran or Primary Family Caregiver is taking or has taken
any adversarial legal action against the United States government, and
disputes between the eligible veteran and Primary Family Caregiver.
Monthly stipend rate means the Office of Personnel Management (OPM)
General Schedule (GS) Annual Rate for grade 4, step 1, based on the
locality pay area in which the eligible veteran resides, divided by 12.
Need for supervision, protection, or instruction means an
individual has a functional impairment that directly impacts the
individual's ability to maintain his or her personal safety on a daily
basis.
Overpayment means a payment made by VA pursuant to this part to an
individual in excess of the amount due, to which the individual was not
eligible, or otherwise made in error. An overpayment is subject to
collection action.
* * * * *
[[Page 46295]]
Primary care team means one or more medical professionals who care
for a patient based on the clinical needs of the patient. Primary care
teams must include a VA primary care provider who is a physician,
advanced practice nurse, or a physician assistant.
* * * * *
Serious injury means any service-connected disability that:
(1) Is rated at 70 percent or more by VA; or
(2) Is combined with any other service-connected disability or
disabilities, and a combined rating of 70 percent or more is assigned
by VA.
Unable to self-sustain in the community means that an eligible
veteran:
(1) Requires personal care services each time he or she completes
three or more of the seven activities of daily living (ADL) listed in
the definition of an inability to perform an activity of daily living
in this section, and is fully dependent on a caregiver to complete such
ADLs; or
(2) Has a need for supervision, protection, or instruction on a
continuous basis.
* * * * *
0
4. Revise Sec. 71.20 to read as follows:
Sec. 71.20 Eligible veterans and servicemembers.
A veteran or servicemember is eligible for a Family Caregiver under
this part if he or she meets the criteria in paragraph (a), (b), or (c)
of this section, subject to the limitations set forth in such
paragraphs.
(a) A veteran or servicemember is eligible for a Primary or
Secondary Family Caregiver under this part if he or she meets all of
the following requirements:
(1) The individual is either:
(i) A veteran; or
(ii) A member of the Armed Forces undergoing a medical discharge
from the Armed Forces.
(2) The individual has a serious injury incurred or aggravated in
the line of duty in the active military, naval, or air service:
(i) On or after September 11, 2001;
(ii) Effective on the date specified in a future Federal Register
document, on or before May 7, 1975; or
(iii) Effective two years after the date specified in a future
Federal Register document as described in paragraph (a)(2)(ii) of this
section, after May 7, 1975 and before September 11, 2001.
(3) The individual is in need of personal care services for a
minimum of six continuous months based on any one of the following:
(i) An inability to perform an activity of daily living; or
(ii) A need for supervision, protection, or instruction.
(4) It is in the best interest of the individual to participate in
the program.
(5) Personal care services that would be provided by the Family
Caregiver will not be simultaneously and regularly provided by or
through another individual or entity.
(6) The individual receives care at home or will do so if VA
designates a Family Caregiver.
(7) The individual receives ongoing care from a primary care team
or will do so if VA designates a Family Caregiver.
(b) For one year beginning on October 1, 2020, a veteran or
servicemember is eligible for a Primary or Secondary Family Caregiver
under this part if he or she is a legacy participant.
(c) For one year beginning on October 1, 2020, a veteran or
servicemember is eligible for a Primary or Secondary Family Caregiver
under this part if he or she is a legacy applicant.
0
5. Amend Sec. 71.25:
0
a. By revising paragraph (a);
0
b. In paragraph (c)(1) introductory text, by removing the phrase ``a VA
primary care team'' and adding in its place ``VA''; and
0
c. By revising paragraphs (c)(1)(i) and (ii), (c)(2), (e), and (f); and
0
d. By removing the authority citation at the end of the section.
The revisions read as follows:
Sec. 71.25 Approval and designation of Primary and Secondary Family
Caregivers.
(a) Application requirement. (1) Individuals who wish to be
considered for designation by VA as Primary or Secondary Family
Caregivers must submit a joint application, along with the veteran or
servicemember. Individuals interested in serving as Family Caregivers
must be identified as such on the joint application, and no more than
three individuals may serve as Family Caregivers at one time for an
eligible veteran, with no more than one serving as the Primary Family
Caregiver and no more than two serving as Secondary Family Caregivers.
(2)(i) Upon receiving such application, VA (in collaboration with
the primary care team to the maximum extent practicable) will perform
the evaluations required to determine the eligibility of the applicants
under this part, and if eligible, determine the applicable monthly
stipend amount under Sec. 71.40(c)(4). Notwithstanding the first
sentence, VA will not evaluate a veteran's or servicemember's
eligibility under Sec. 71.20 when a joint application is received to
add a Secondary Family Caregiver for an eligible veteran who has a
designated Primary Family Caregiver.
(ii) Individuals who apply to be Family Caregivers must complete
all necessary eligibility evaluations (along with the veteran or
servicemember), education and training, and the initial home-care
assessment (along with the veteran or servicemember) so that VA may
complete the designation process no later than 90 days after the date
the joint application was received by VA. If such requirements are not
complete within 90 days from the date the joint application is received
by VA, the joint application will be denied, and a new joint
application will be required. VA may extend the 90-day period based on
VA's inability to complete the eligibility evaluations, provide
necessary education and training, or conduct the initial home-care
assessment, when such inability is solely due to VA's action.
(3)(i) Except as provided in this paragraph, joint applications
received by VA before October 1, 2020 will be evaluated by VA based on
38 CFR 71.15, 71.20, and 71.25 (2019). Notwithstanding the previous
sentence, the term ``joint application'' as defined in Sec. 71.15
applies to applications described in this paragraph.
(ii) Joint applications received by VA on or after October 1, 2020
will be evaluated by VA based on the provisions of this part in effect
on or after October 11, 2020.
(A) VA will deny any joint application of an individual described
in Sec. 71.20(a)(2)(ii), if such joint application is received by VA
before the date published in a future Federal Register document that is
specified in such section. A veteran or servicemember seeking to
qualify for the Program of Comprehensive Assistance for Family
Caregivers pursuant to Sec. 71.20(a)(2)(ii) should submit a joint
application that is received by VA on or after the date published in a
future Federal Register document that is specified in Sec.
71.20(a)(2)(ii).
(B) VA will deny any joint application of an individual described
in Sec. 71.20(a)(2)(iii), if such joint application is received by VA
before the date that is two years after the date published in a future
Federal Register document that is specified in Sec. 71.20(a)(2)(ii). A
veteran or servicemember seeking to qualify for the Program of
Comprehensive Assistance for Family Caregivers pursuant to Sec.
71.20(a)(2)(iii) should submit a joint application that is received by
VA on or after the date that is two years after the date published in a
future Federal
[[Page 46296]]
Register document that is specified in Sec. 71.20(a)(2)(ii).
* * * * *
(c) * * *
(1) * * *
(i) Whether the applicant can communicate and understand the
required personal care services and any specific instructions related
to the care of the eligible veteran (accommodation for language or
hearing impairment will be made to the extent possible and as
appropriate); and
(ii) Whether the applicant will be capable of performing the
required personal care services without supervision, in adherence with
the eligible veteran's treatment plan in support of the needs of the
eligible veteran.
(2) Complete caregiver training and demonstrate the ability to
carry out the specific personal care services, core competencies, and
additional care requirements.
* * * * *
(e) Initial home-care assessment. VA will visit the eligible
veteran's home to assess the eligible veteran's well-being and the
well-being of the caregiver, as well as the caregiver's competence to
provide personal care services at the eligible veteran's home.
(f) Approval and designation. VA will approve the joint application
and designate Primary and/or Secondary Family Caregivers, as
appropriate, if the applicable requirements of this part are met.
Approval and designation is conditioned on the eligible veteran and
designated Family Caregiver(s) remaining eligible for Family Caregiver
benefits under this part, the Family Caregiver(s) providing the
personal care services required by the eligible veteran, and the
eligible veteran and designated Family Caregiver(s) complying with all
applicable requirements of this part, including participating in
reassessments pursuant to Sec. 71.30 and wellness contacts pursuant to
Sec. 71.40(b)(2). Refusal to comply with any applicable requirements
of this part will result in revocation from the program pursuant to
Sec. 71.45, Revocation and Discharge of Family Caregivers.
Sec. 71.30 [Redesignated as Sec. 71.35]
0
6. Redesignate Sec. 71.30 as Sec. 71.35.
0
7. Add a new Sec. 71.30 to read as follows:
Sec. 71.30 Reassessment of Eligible Veterans and Family Caregivers.
(a) Except as provided in paragraphs (b) and (c) of this section,
the eligible veteran and Family Caregiver will be reassessed by VA (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 under this part. Reassessments
will include consideration of whether the eligible veteran is unable to
self-sustain in the community for purposes of the monthly stipend rate
under Sec. 71.40(c)(4)(i)(A). Reassessment may include a visit to the
eligible veteran's home.
(b) Reassessments may occur more frequently than annually if a
determination is made and documented by VA that more frequent
reassessment is appropriate.
(c) Reassessments may occur on a less than annual basis if a
determination is made and documented by VA that an annual reassessment
is unnecessary.
(d) Failure of the eligible veteran or Family Caregiver to
participate in any reassessment pursuant to this section will result in
revocation pursuant to Sec. 71.45, Revocation and Discharge of Family
Caregivers.
(e)(1) If the eligible veteran meets the requirements of Sec.
71.20(b) or (c) (i.e., is a legacy participant or a legacy applicant),
the eligible veteran and Family Caregiver will be reassessed by VA (in
collaboration with the primary care team to the maximum extent
practicable) within the one-year period beginning on October 1, 2020 to
determine whether the eligible veteran meets the requirements of Sec.
71.20(a). This reassessment may include a visit to the eligible
veteran's home. If the eligible veteran meets the requirements of Sec.
71.20(a), the reassessment will consider whether the eligible veteran
is unable to self-sustain in the community for purposes of the monthly
stipend rate under Sec. 71.40(c)(4)(i)(A).
(2) Notwithstanding paragraph (e)(1) of this section, a
reassessment will not be completed under paragraph (e)(1) if at some
point before a reassessment is completed during the one-year period
beginning on October 1, 2020 the individual no longer meets the
requirements of Sec. 71.20(b) or (c).
Sec. 71.35 [Amended]
0
8. In newly redesignated Sec. 71.35, remove the authority citation at
the end of the section.
0
9. Amend Sec. 71.40 by revising paragraphs (b)(2), (c) introductory
text, and (c)(4), adding paragraphs (c)(5) and (6), revising paragraph
(d), and removing the authority citation at the end of the section.
The revisions and additions read as follows:
Sec. 71.40 Caregiver benefits.
* * * * *
(b) * * *
(2) Wellness contacts to review the eligible veteran's well-being,
adequacy of personal care services being provided by the Family
Caregiver(s), and the well-being of the Family Caregiver(s). This
wellness contact will occur, in general, at a minimum of once every 120
days, and at least one visit must occur in the eligible veteran's home
on an annual basis. Failure of the eligible veteran and Family
Caregiver to participate in any wellness contacts pursuant to this
paragraph will result in revocation pursuant to Sec. 71.45, Revocation
and Discharge of Family Caregivers.
* * * * *
(c) Primary Family Caregiver benefits. VA will provide to Primary
Family Caregivers all of the benefits listed in paragraphs (c)(1)
through (6) of this section.
* * * * *
(4) Primary Family Caregivers will receive a monthly stipend for
each month's participation as a Primary Family Caregiver.
(i) Stipend amount. (A) Except as provided in paragraph
(c)(4)(i)(C) of this section, if the eligible veteran meets the
requirements of Sec. 71.20(a), the Primary Family Caregiver's monthly
stipend is the amount set forth in paragraph (c)(4)(i)(A)(1) or (2) of
this section.
(1) The Primary Family Caregiver's monthly stipend is calculated by
multiplying the monthly stipend rate by 0.625.
(2) If VA determines that the eligible veteran is unable to self-
sustain in the community, the Primary Family Caregiver's monthly
stipend is calculated by multiplying the monthly stipend rate by 1.00.
(B) Except as provided in paragraph (c)(4)(i)(C) of this section,
for one year beginning on October 1, 2020, if the eligible veteran
meets the requirements of Sec. 71.20(b) or (c), (i.e., is a legacy
participant or a legacy applicant), the Primary Family Caregiver's
monthly stipend is calculated based on the clinical rating in 38 CFR
71.40(c)(4)(i) through (iii) (2019) and the definitions applicable to
such paragraphs under 38 CFR 71.15 (2019). If the sum of all of the
ratings assigned is:
(1) 21 or higher, then the Primary Family Caregiver's monthly
stipend is calculated by multiplying the monthly stipend rate by 1.00.
(2) 13 to 20, then the Primary Family Caregiver's monthly stipend
is calculated by multiplying the monthly stipend rate by 0.625.
(3) 1 to 12, then the Primary Family Caregiver's monthly stipend is
calculated by multiplying the monthly stipend rate by 0.25.
[[Page 46297]]
(C) For one year beginning on October 1, 2020, if the eligible
veteran meets the requirements of Sec. 71.20(a) and (b) or (c), the
Primary Family Caregiver's monthly stipend is the amount the Primary
Family Caregiver is eligible to receive under paragraph (c)(4)(i)(A) or
(B) of this section, whichever is higher. If the higher monthly stipend
rate is the amount the Primary Family Caregiver is eligible to receive
under paragraph (c)(4)(i)(A) of this section, the stipend rate will be
adjusted and paid in accordance with paragraph (c)(4)(ii)(C)(2)(i) of
this section.
(D) Notwithstanding paragraphs (c)(4)(i)(A) through (C) of this
section, for one year beginning on October 1, 2020, 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. If the eligible veteran relocates to
a different address, the stipend amount thereafter is determined
pursuant to paragraph (c)(4)(i)(A), (B), or (C) of this section and
adjusted in accordance with paragraph (c)(4)(ii)(B) of this section.
(ii) Adjustments to stipend payments. (A) Adjustments to stipend
payments that result from OPM's updates to the General Schedule (GS)
Annual Rate for grade 4, step 1 for the locality pay area in which the
eligible veteran resides take effect prospectively following the date
the update to such rate is made effective by OPM.
(B) Adjustments to stipend payments that result from the eligible
veteran relocating to a new address are effective the first of the
month following the month in which VA is notified that the eligible
veteran has relocated to a new address. VA must receive notification
within 30 days from the date of relocation. If VA does not receive
notification within 30 days from the date of relocation, VA will seek
to recover overpayments of benefits under this paragraph (c)(4) back to
the latest date on which the adjustment would have been effective if VA
had been notified within 30 days from the date of relocation, as
provided in Sec. 71.47.
(C) The Primary Family Caregiver's monthly stipend may be adjusted
pursuant to the reassessment conducted by VA under Sec. 71.30.
(1) If the eligible veteran meets the requirements of Sec.
71.20(a) only (and does not meet the requirements of Sec. 71.20(b) or
(c)), the Primary Family Caregiver's monthly stipend is adjusted as
follows:
(i) In the case of a reassessment that results in an increase in
the monthly stipend payment, the increase takes effect as of the date
of the reassessment.
(ii) In the case of a reassessment that results in a decrease in
the monthly stipend payment, the decrease takes effect as of the
effective date provided in VA's final notice of such decrease to the
eligible veteran and Primary Family Caregiver. The effective date of
the decrease will be no earlier than 60 days after VA provides advanced
notice of its findings to the eligible veteran and Primary Family
Caregiver.
(2) If the eligible veteran meets the requirements of Sec.
71.20(b) or (c), the Primary Family Caregiver's monthly stipend may be
adjusted as follows:
(i) In the case of a reassessment that results in an increase in
the monthly stipend payment, the increase takes effect as of the date
of the reassessment. The Primary Family Caregiver will also be paid the
difference between the amount under paragraph (c)(4)(i)(A) of this
section that the Primary Family Caregiver is eligible to receive and
the amount the Primary Family Caregiver was eligible to receive under
paragraph (c)(4)(i)(B) or (D) of this section, whichever the Primary
Family Caregiver received for the time period beginning on October 1,
2020 up to the date of the reassessment, based on the eligible
veteran's address on record with the Program of Comprehensive
Assistance for Family Caregivers on the date of the reassessment and
the monthly stipend rate on such date. If there is more than one
reassessment for an eligible veteran during the one-year period
beginning on October 1, 2020, the retroactive payment described in the
previous sentence applies only if the first reassessment during the
one-year period beginning on October 1, 2020 results in an increase in
the monthly stipend payment, and only as the result of the first
reassessment during the one-year period.
(ii) In the case of a reassessment that results in a decrease in
the monthly stipend payment and the eligible veteran meets the
requirements of Sec. 71.20(a), the new stipend amount under paragraph
(c)(4)(i)(A) of this section takes effect as of the effective date
provided in VA's final notice of such decrease to the eligible veteran
and Primary Family Caregiver. The effective date of the decrease will
be no earlier than 60 days after the date that is one year after
October 1, 2020. On the date that is one year after October 1, 2020, VA
will provide advanced notice of its findings to the eligible veteran
and Primary Family Caregiver.
Note to paragraph (c)(4)(ii)(C)(2): If an eligible veteran who
meets the requirements of Sec. 71.20(b) or (c) is determined, pursuant
to a reassessment conducted by VA under Sec. 71.30, to not meet the
requirements of Sec. 71.20(a), the monthly stipend payment will not be
increased under paragraph (c)(4)(ii)(C)(2)(i) of this section or
decreased under paragraph (c)(4)(ii)(C)(2)(ii) of this section. Unless
the Family Caregiver is revoked or discharged under Sec. 71.45 before
the date that is 60 days after the date that is one year after October
1, 2020, the effective date for discharge of the Family Caregiver of a
legacy participant or legacy applicant under Sec. 71.45(b)(1)(ii) will
be no earlier than 60 days after the date that is one year after
October 1, 2020. On the date that is one year after October 1, 2020, VA
will provide advanced notice of its findings to the eligible veteran
and Family Caregiver.
(D) Adjustments to stipend payments for the first month will take
effect on the date specified in paragraph (d) of this section. Stipend
payments for the last month will end on the date specified in Sec.
71.45.
(iii) No employment relationship. Nothing in this section shall be
construed to create an employment relationship between the Secretary
and an individual in receipt of assistance or support under this part.
(iv) Periodic assessment. In consultation with other appropriate
agencies of the Federal government, VA shall periodically assess
whether the monthly stipend rate meets the requirements of 38 U.S.C.
1720G(a)(3)(C)(ii) and (iv). If VA determines that adjustments to the
monthly stipend rate are necessary, VA shall make such adjustments
through future rulemaking.
(5) Primary Family Caregivers are eligible for financial planning
services as that term is defined in Sec. 71.15. Such services will be
provided by entities authorized pursuant to any contract entered into
between VA and such entities.
(6) Primary Family Caregivers are eligible for legal services as
that term is defined in Sec. 71.15. Such services will be provided by
entities authorized pursuant to any contract entered into between VA
and such entities.
(d) Effective date of benefits under the Program of Comprehensive
Assistance for Family Caregivers. Except for paragraphs (b)(6) and
(c)(3) and (4) of this section, caregiver benefits under
[[Page 46298]]
paragraphs (b) and (c) of this section are effective upon approval and
designation under Sec. 71.25(f). Caregiver benefits under paragraphs
(b)(6) and (c)(3) and (4) are effective on the latest of the following
dates:
(1) The date the joint application that resulted in approval and
designation of the Family Caregiver is received by VA.
(2) The date the eligible veteran begins receiving care at home.
(3) The date the Family Caregiver begins providing personal care
services to the eligible veteran at home.
(4) In the case of a new Family Caregiver applying to be the
Primary Family Caregiver for an eligible veteran, the day after the
effective date of revocation or discharge of the previous Primary
Family Caregiver for the eligible veteran (such that there is only one
Primary Family Caregiver designated for an eligible veteran at one
time).
(5) In the case of a new Family Caregiver applying to be a
Secondary Family Caregiver for an eligible veteran who already has two
Secondary Family Caregivers approved and designated by VA, the day
after the effective date of revocation or discharge of a previous
Secondary Family Caregiver for the eligible veteran (such that there
are no more than two Secondary Family Caregivers designated for an
eligible veteran at one time).
(6) In the case of a current or previous Family Caregiver
reapplying with the same eligible veteran, the day after the date of
revocation or discharge under Sec. 71.45, or in the case of extended
benefits under Sec. 71.45(b)(1)(iii), (b)(2)(iii), (b)(3)(iii)(A) or
(B), and (b)(4)(iv), the day after the last date on which such Family
Caregiver received caregiver benefits.
(7) The day after the date a joint application is denied.
0
10. Revise Sec. 71.45 to read as follows:
Sec. 71.45 Revocation and discharge of Family Caregivers.
(a) Revocation of the Family Caregiver--(1) Bases for revocation of
the Family Caregiver--(i) For cause. VA will revoke the designation of
a Family Caregiver for cause when VA determines any of the following:
(A) The Family Caregiver or eligible veteran committed fraud under
this part;
(B) The Family Caregiver neglected, abused, or exploited the
eligible veteran;
(C) Personal safety issues exist for the eligible veteran that the
Family Caregiver is unwilling to mitigate;
(D) The Family Caregiver is unwilling to provide personal care
services to the eligible veteran or, in the case of the Family
Caregiver's temporary absence or incapacitation, fails to ensure (if
able to) the provision of personal care services to the eligible
veteran.
(ii) Noncompliance. Except as provided in paragraph (f) of this
section, VA will revoke the designation of a Family Caregiver when the
Family Caregiver or eligible veteran is noncompliant with the
requirements of this part. Noncompliance means:
(A) The eligible veteran does not meet the requirements of Sec.
71.20(a)(5), (6), or (7);
(B) The Family Caregiver does not meet the requirements of Sec.
71.25(b)(2);
(C) Failure of the eligible veteran or Family Caregiver to
participate in any reassessment pursuant to Sec. 71.30;
(D) Failure of the eligible veteran or Family Caregiver to
participate in any wellness contact pursuant to Sec. 71.40(b)(2); or
(E) Failure to meet any other requirement of this part except as
provided in paragraph (b)(1) or (2) of this section.
(iii) VA error. Except as provided in Sec. 71.45(f), VA will
revoke the designation of a Family Caregiver if the Family Caregiver's
approval and designation under this part was authorized as a result of
an erroneous eligibility determination by VA.
(2) Revocation date. All caregiver benefits will continue to be
provided to the Family Caregiver until the date of revocation.
(i) In the case of revocation based on fraud committed by the
Family Caregiver or eligible veteran under paragraph (a)(1)(i)(A) of
this section, the date of revocation will be the date the fraud began.
If VA cannot identify when the fraud began, the date of revocation will
be the earliest date that the fraud is known by VA to have been
committed, and no later than the date on which VA identifies that fraud
was committed.
(ii) In the case of revocation based on paragraphs (a)(1)(i)(B)
through (D) of this section, the date of revocation will be the date VA
determines the criteria in any such paragraph has been met.
(iii) In the case of revocation based on noncompliance under
paragraph (a)(1)(ii) of this section, revocation takes effect as of the
effective date provided in VA's final notice of such revocation to the
eligible veteran and Family Caregiver. The effective date of revocation
will be no earlier than 60 days after VA provides advanced notice of
its findings to the eligible veteran and Family Caregiver.
(iv) In the case of revocation based on VA error under paragraph
(a)(1)(iii) of this section, the date of revocation will be the date
the error was made. If VA cannot identify when the error was made, the
date of revocation will be the earliest date that the error is known by
VA to have occurred, and no later than the date on which VA identifies
that the error occurred.
(3) Continuation of benefits. In the case of revocation based on VA
error under paragraph (a)(1)(iii) of this section, caregiver benefits
will continue for 60 days after the date of revocation unless the
Family Caregiver opts out of receiving such benefits. Continuation of
benefits under this paragraph will be considered an overpayment and VA
will seek to recover overpayment of such benefits as provided in Sec.
71.47.
(b) Discharge of the Family Caregiver--(1) Discharge due to the
eligible veteran--(i) Bases for discharge. Except as provided in
paragraph (f) of this section, the Family Caregiver will be discharged
from the Program of Comprehensive Assistance for Family Caregivers when
VA determines any of the following:
(A) Except as provided in paragraphs (a)(1)(ii)(A) and (b)(1)(i)(B)
of this section, the eligible veteran does not meet the requirements of
Sec. 71.20 because of improvement in the eligible veteran's condition
or otherwise; or
(B) Death or institutionalization of the eligible veteran. Note: VA
must receive notification of death or institutionalization of the
eligible veteran as soon as possible but not later than 30 days from
the date of death or institutionalization. Notification of
institutionalization must indicate whether the eligible veteran is
expected to be institutionalized for 90 or more days from the onset of
institutionalization.
(ii) Discharge date. (A) In the case of discharge based on
paragraph (b)(1)(i)(A) of this section, the discharge takes effect as
of the effective date provided in VA's final notice of such discharge
to the eligible veteran and Family Caregiver. The effective date of
discharge will be no earlier than 60 days after VA provides advanced
notice of its findings to the eligible veteran and Family Caregiver
that the eligible veteran does not meet the requirements of Sec.
71.20.
(B) For discharge based on paragraph (b)(1)(i)(B) of this section,
the date of discharge will be the earliest of the following dates, as
applicable:
(1) Date of death of the eligible veteran.
[[Page 46299]]
(2) Date that institutionalization begins, if it is determined that
the eligible veteran is expected to be institutionalized for a period
of 90 days or more.
(3) Date of the 90th day of institutionalization.
(iii) Continuation of benefits. Caregiver benefits will continue
for 90 days after the date of discharge.
(2) Discharge due to the Family Caregiver--(i) Bases for discharge.
Except as provided in paragraph (f) of this section, the Family
Caregiver will be discharged from the Program of Comprehensive
Assistance for Family Caregivers due to the death or
institutionalization of the Family Caregiver. Note: VA must receive
notification of death or institutionalization of the Family Caregiver
as soon as possible but not later than 30 days from the date of death
or institutionalization. Notification of institutionalization must
indicate whether Family Caregiver is expected to be institutionalized
for 90 or more days from the onset of institutionalization.
(ii) Discharge date. The date of discharge will be the earliest of
the following dates, as applicable:
(A) Date of death of the Family Caregiver.
(B) Date that the institutionalization begins, if it is determined
that the Family Caregiver is expected to be institutionalized for a
period of 90 days or more.
(C) Date of the 90th day of institutionalization.
(iii) Continuation of benefits. Caregiver benefits will continue
for 90 days after date of discharge in paragraph (b)(2)(ii)(B) or (C)
of this section.
(3) Discharge of the Family Caregiver by request of the Family
Caregiver--(i) Request for discharge. Except as provided in paragraph
(f) of this section, the Family Caregiver will be discharged from the
Program of Comprehensive Assistance for Family Caregivers if a Family
Caregiver requests discharge of his or her caregiver designation. The
request may be made verbally or in writing and must provide the present
or future date of discharge. If the discharge request is received
verbally, VA will provide the Family Caregiver written confirmation of
receipt of the verbal discharge request and the effective date of
discharge. VA will notify the eligible veteran verbally and in writing
of the request for discharge and the effective date of discharge.
(ii) Discharge date. The date of discharge will be the present or
future date provided by the Family Caregiver or the date of the Family
Caregiver's request for discharge if the Family Caregiver does not
provide a date. If the request does not include an identified date of
discharge, VA will contact the Family Caregiver to request a date. If
unable to successfully obtain this date, discharge will be effective as
of the date of the request.
(iii) Continuation of benefits. (A) Except as provided in paragraph
(b)(3)(iii)(B) of this section, caregiver benefits will continue for 30
days after the date of discharge.
(B) If the Family Caregiver requests discharge due to domestic
violence (DV) or intimate partner violence (IPV) perpetrated by the
eligible veteran against the Family Caregiver, caregiver benefits will
continue for 90 days after the date of discharge when any of the
following can be established:
(1) The issuance of a protective order, to include interim,
temporary and/or final protective orders, to protect the Family
Caregiver from DV or IPV perpetrated by the eligible veteran.
(2) A police report indicating DV or IPV perpetrated by the
eligible veteran against the Family Caregiver or a record of an arrest
related to DV or IPV perpetrated by the eligible veteran against the
Family Caregiver; or
(3) Documentation of disclosure of DV or IPV perpetrated by the
eligible veteran against the Family Caregiver to a treating provider
(e.g., physician, dentist, psychologist, rehabilitation therapist) of
the eligible veteran or Family Caregiver, Intimate Partner Violence
Assistance Program (IPVAP) Coordinator, therapist or counselor.
(4) Discharge of the Family Caregiver by request of the eligible
veteran or eligible veteran's surrogate--(i) Request for discharge.
Except as provided in paragraph (f) of this section, the Family
Caregiver will be discharged from the Program of Comprehensive
Assistance for Caregivers if an eligible veteran or the eligible
veteran's surrogate requests discharge of the Family Caregiver. The
discharge request may be made verbally or in writing and must express
an intent to remove the Family Caregiver's approval and designation. If
the discharge request is received verbally, VA will provide the
eligible veteran written confirmation of receipt of the verbal
discharge request and effective date of discharge. VA will notify the
Family Caregiver verbally and in writing of the request for discharge
and effective date of discharge.
(ii) Discharge date. The date of discharge will be the present or
future date of discharge provided by the eligible veteran or eligible
veteran's surrogate. If the request does not provide a present or
future date of discharge, VA will ask the eligible veteran or eligible
veteran's surrogate to provide one. If unable to successfully obtain
this date, discharge will be effective as of the date of the request.
(iii) Rescission. VA will allow the eligible veteran or eligible
veteran's surrogate to rescind the discharge request and have the
Family Caregiver reinstated if the rescission is made within 30 days of
the date of discharge. If the eligible veteran or eligible veteran's
surrogate expresses a desire to reinstate the Family Caregiver more
than 30 days from the date of discharge, a new joint application is
required.
(iv) Continuation of benefits. Caregiver benefits will continue for
30 days after the date of discharge.
(c) Safety and welfare. If VA suspects that the safety of the
eligible veteran is at risk, then VA may suspend the caregiver's
responsibilities, and facilitate appropriate referrals to protective
agencies or emergency services if needed, to ensure the welfare of the
eligible veteran, prior to discharge or revocation.
(d) Overpayments. VA will seek to recover overpayments of benefits
provided under this section as provided in Sec. 71.47.
(e) Transition and bereavement counseling. VA will, if requested
and applicable, assist the Family Caregiver in transitioning to
alternative health care coverage and mental health services. In
addition, in cases of death of the eligible veteran, bereavement
counseling may be available under 38 U.S.C. 1783.
(f) Multiple bases for revocation or discharge. In the instance
that a Family Caregiver may be both discharged pursuant to any of the
criteria in paragraph (b) of this section and have his or her
designation revoked pursuant to any of the criteria in paragraph (a) of
this section, the Family Caregiver's designation will be revoked
pursuant to paragraph (a). In the instance that the designation of a
Family Caregiver may be revoked under paragraph (a)(1)(i) and paragraph
(a)(1)(ii) or (iii) of this section, the designation of the Family
Caregiver will be revoked pursuant to paragraph (a)(1)(i). In the
instance that the designation of a Family Caregiver may be revoked
under paragraphs (a)(1)(ii) and (iii) of this section, the designation
of the Family Caregiver will be revoked pursuant to paragraph
(a)(1)(iii). In the instance that a Family Caregiver may be discharged
under paragraph (b)(1), (2), (3), or (4) of this section, the Family
Caregiver will be discharged pursuant to the paragraph most favorable
to the Family Caregiver.
[[Page 46300]]
0
11. Add Sec. 71.47 to read as follows:
Sec. 71.47 Collection of overpayment.
VA will collect overpayments as defined in Sec. 71.15 pursuant to
the Federal Claims Collection Standards.
Sec. 71.50 [Amended]
0
12. Amend Sec. 71.50 by removing the statutory authority citation at
the end of the section.
[FR Doc. 2020-15931 Filed 7-30-20; 8:45 am]
BILLING CODE 8320-01-P
