Proposed Rule2024-28079
Amendments to the Program of Comprehensive Assistance for Family Caregivers
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 6, 2024
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) proposes to revise the regulations that govern VA's Program of Comprehensive Assistance for Family Caregivers (PCAFC). This proposed rule explains numerous changes VA is considering making that would primarily impact PCAFC, including, but not limited to, removing, adding, and revising definitions; revising criteria related to eligibility, revocations, and discharges; revising certain processes related to reassessments and the timing of reassessments; and relaxing in-home visits during emergencies.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 235 (Friday, December 6, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 235 (Friday, December 6, 2024)]
[Proposed Rules]
[Pages 97404-97457]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28079]
[[Page 97403]]
Vol. 89
Friday,
No. 235
December 6, 2024
Part IV
Department of Veterans Affairs
-----------------------------------------------------------------------
38 CFR Part 71
Amendments to the Program of Comprehensive Assistance for Family
Caregivers; Proposed Rule
Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 /
Proposed Rules
[[Page 97404]]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 71
RIN 2900-AR96
Amendments to the Program of Comprehensive Assistance for Family
Caregivers
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) proposes to revise the
regulations that govern VA's Program of Comprehensive Assistance for
Family Caregivers (PCAFC). This proposed rule explains numerous changes
VA is considering making that would primarily impact PCAFC, including,
but not limited to, removing, adding, and revising definitions;
revising criteria related to eligibility, revocations, and discharges;
revising certain processes related to reassessments and the timing of
reassessments; and relaxing in-home visits during emergencies.
DATES: Comments must be received on or before February 4, 2025.
ADDRESSES: Comments must be submitted through <a href="http://www.regulations.gov">www.regulations.gov</a>.
Except as provided below, comments received before the close of the
comment period will be available at <a href="http://www.regulations.gov">www.regulations.gov</a> for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
the following website as soon as possible after they have been
received: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. VA will not post on
<a href="http://Regulations.gov">Regulations.gov</a> public comments that make threats to individuals or
institutions or suggest that the commenter will take actions to harm an
individual. VA encourages individuals not to submit duplicative
comments; however, we will post comments from multiple unique
commenters even if the content is identical or nearly identical to
other comments. Any public comment received after the comment period's
closing date is considered late and will not be considered in the final
rulemaking. In accordance with the Providing Accountability Through
Transparency Act of 2023, a 100 word Plain-Language Summary of this
proposed rule is available at <a href="http://Regulations.gov">Regulations.gov</a>, under RIN 2900-AR96.
FOR FURTHER INFORMATION CONTACT: Colleen Richardson, PsyD, Executive
Director, Caregiver Support Program, Patient Care Services, Veterans
Health Administration, Department of Veterans Affairs, 810 Vermont Ave.
NW, Washington, DC 20420, (202) 461-5649. (This is not a toll-free
telephone number.)
SUPPLEMENTARY INFORMATION:
I. Background and Public Input
A. Statutory Authority
Title I of Public Law 111-163, the Caregivers and Veterans Omnibus
Health Services Act of 2010 (hereinafter referred to as the
``Caregivers Act''), established section 1720G(a) of title 38 of the
United States Code (U.S.C.), which required VA to establish a program
of comprehensive assistance for family caregivers of eligible veterans
who incurred or aggravated a serious injury in the line of duty on or
after September 11, 2001, are in need of personal care services, and
meet other requirements. The Caregivers Act also required VA to
establish a program of general caregiver support services, pursuant to
38 U.S.C. 1720G(b), for caregivers of covered veterans of all eras of
military service. VA implemented PCAFC and the Program of General
Caregiver Support Services (PGCSS) through its regulations in 38 CFR
part 71.
On June 6, 2018, the John S. McCain III, Daniel K. Akaka, and
Samuel R. Johnson VA Maintaining Internal Systems and Strengthening
Integrated Outside Networks Act of 2018 (hereinafter referred to as the
``VA MISSION Act'') was signed into law, which in part amended 38
U.S.C. 1720G. These amendments included expanding eligibility for PCAFC
in a phased approach to Family Caregivers (as that term is defined in
38 CFR 71.15) of eligible veterans who incurred or aggravated a serious
injury in the line of duty before September 11, 2001, establishing new
benefits for designated Primary Family Caregivers (as that term is
defined in Sec. 71.15) of eligible veterans, and making other changes
affecting program eligibility and VA's evaluation of PCAFC
applications.
B. Recent Program Improvements
VA adopted revisions to 38 CFR part 71 in a final rule dated July
31, 2020, following the enactment of the VA MISSION Act. 85 FR 46226
(July 31, 2020) (hereinafter the July 31, 2020 Final Rule). The July
31, 2020 Final Rule included changes to certain PCAFC eligibility
criteria and took effect October 1, 2020.
In parallel to those regulatory changes, VA implemented new
processes used within PCAFC. For example, in late 2020, VA implemented
the use of Centralized Eligibility and Appeals Teams (CEATs). CEATs are
composed of a standardized group of inter-professional, licensed
practitioners, with specific expertise and training in the eligibility
requirements for PCAFC and the criteria for the higher stipend level.
CEATs make determinations of PCAFC eligibility and, if applicable,
determinations on whether the Primary Family Caregiver is eligible for
the higher stipend level. Since implementing CEATs, the time required
to evaluate PCAFC eligibility and render application determinations has
been markedly reduced. At the end of fiscal year 2021, 62.9 percent of
PCAFC application determinations were rendered within 90 days of VA
receiving the application. By the end of fiscal year 2023, this
percentage increased and 98 percent of PCAFC application determinations
were rendered within 90 days of VA receiving the application.
Additionally, VA continues concerted efforts to enhance training of
staff involved in the evaluation of PCAFC eligibility criteria and
delivery of PCAFC. Further, VA continues to institute standardized
quality assurance measures to monitor and support accuracy and
consistency in decision-making. If VA issues a PCAFC determination that
an individual disagrees with, processes are in place for individuals to
request a review of or appeal such decision(s). Those processes are not
addressed in this proposed rule. Information about options to request
review of or appeal a PCAFC decision is available at <a href="https://www.caregiver.va.gov/support/PCAFC_Appeals.asp">https://www.caregiver.va.gov/support/PCAFC_Appeals.asp</a>.
Since these regulatory and policy changes have taken effect, access
to PCAFC has expanded and the number of eligible veterans and Family
Caregivers participating in PCAFC has continued to grow. VA has,
however, continued to hear concerns from veterans, caregivers, and
other stakeholders about inconsistency in VA's decisions impacting
eligibility for PCAFC, and concerns that certain PCAFC eligibility
criteria may be too restrictive.
In response to those concerns, in March 2022, VA initiated a review
of PCAFC to examine areas within PCAFC for which changes might be
considered. This review included engagements with veterans, caregivers,
Veterans Service Organizations (VSOs) and others to hear direct
feedback about PCAFC.\1\ During
[[Page 97405]]
this review, VA identified further opportunities for improvement.
---------------------------------------------------------------------------
\1\ See Updates on the Family Caregiver program for legacy
participants and applicants, VA press release, April 20, 2022,
available at <a href="https://news.va.gov/102672/updates-on-the-family-caregiver-program-for-legacy-participants-and-applicants/">https://news.va.gov/102672/updates-on-the-family-caregiver-program-for-legacy-participants-and-applicants/</a> (last
visited Aug. 8, 2024).
---------------------------------------------------------------------------
C. Consideration of Regulatory Amendments and Executive Order 14095,
Increasing Access to High-Quality Care and Supporting Caregivers
Based on the activities outlined above, VA is proposing regulatory
changes to more fully address concerns raised by stakeholders relating
to PCAFC eligibility criteria and other program requirements.
Furthermore, in April 2023, the President issued Executive Order 14095
which, among other things, directed the Secretary of Veterans Affairs
to consider issuing a notice of proposed rulemaking to appropriately
modify the eligibility criteria for PCAFC. In accordance with this
Executive Order and based on feedback from caregivers, veterans, and
other stakeholders and VA's internal evaluation of the program, VA has
considered appropriate modifications to PCAFC eligibility criteria as
well as other program changes, which are reflected in this proposed
rule. VA believes the regulatory amendments proposed below, along with
changes VA has already made to improve its support of eligible veterans
and Family Caregivers, demonstrates VA's unwavering commitment to
administering a program that is fair, consistent, and transparent in
its decisions.
D. Public Input
VA routinely receives information and feedback about PCAFC from
stakeholders. For example, on December 5, 2023, VA conducted a virtual
roundtable session with various VSOs and other caregiver advocacy
organizations. The session provided these stakeholders an opportunity
to share their views on topics related to PCAFC. There were 24
representatives from 15 organizations that attended the virtual
roundtable session with 13 individuals providing feedback during the
session. Representatives provided information and recommendations on
how best to improve PCAFC eligibility criteria, evaluation processes,
and other aspects of PCAFC that are governed by regulation. Proposed
modifications to part 71, as discussed in this proposed rule, address
some of the feedback received prior to and during the December 5, 2023,
session. A written transcript of the December 5, 2023, virtual
roundtable session, including a list of participating organizations, is
publicly available online at <a href="http://www.regulations.gov">www.regulations.gov</a> under RIN 2900-AR96.
While VA did not solicit written statements as part of this event,
those received by VA can also be found online at <a href="http://www.regulations.gov">www.regulations.gov</a>
under RIN 2900-AR96.
VA welcomes comments from the public on all aspects of its proposed
modifications to VA regulations in part 71. VA also seeks specific
feedback within certain sections of this proposed rule through targeted
questions located at the end of the applicable sections.
II. Proposed Changes to 38 CFR Part 71
As explained in more detail below, VA proposes to revise part 71 by
adding, removing, and revising definitions and eligibility criteria;
revising the regulations governing reassessments; revising and
clarifying certain provisions regarding the application process and the
evaluation process for determining eligibility; revising provisions
regarding adjustments to the stipend payments; revising and clarifying
certain processes regarding revocation and discharge; extending the
transition period for legacy participants, legacy applicants, and their
Family Caregivers; and making other changes. VA proposes these changes
to simplify and clarify certain aspects of VA's administration of PCAFC
and to support program integrity. Illustrative examples are included
throughout this proposal to assist the reader with understanding VA's
intended application of the proposed rule.
A. Transition Period for Legacy Cohort
VA is proposing changes to PCAFC eligibility and stipend level
criteria as part of this rulemaking. Under this proposal, VA would
extend the transition period for legacy participants and legacy
applicants, and their Family Caregivers, as those terms are defined in
Sec. 71.15, to allow time for VA to evaluate their PCAFC eligibility
and stipend level pursuant to revised regulations that may result from
this rulemaking. Specifically, VA proposes to extend their eligibility
and the time period for VA to complete their reassessments, through a
date that is 18 months after changes from this rulemaking are made
final and effective.
As part of the rulemaking that took effect October 1, 2020, VA made
changes to the eligibility criteria for PCAFC in Sec. 71.20 and in
doing so, set forth a transition plan for legacy participants and
legacy applicants, and their Family Caregivers, collectively referred
to herein as the legacy cohort. 85 FR 46253 (July 31, 2020). As part of
the transition plan, VA established a one-year transition period
wherein the legacy cohort would generally continue to remain eligible
for PCAFC while VA completed reassessments to determine their
eligibility for PCAFC under the new eligibility criteria. Id.
Subsequently, through publication of two interim final rules, VA
extended the one-year transition period and timeline for VA to conduct
all reassessments of the legacy cohort. The first interim final rule,
Extension of Program of Comprehensive Assistance for Family Caregivers
Eligibility for Legacy Participants and Legacy Applicants, referred to
herein as the First PCAFC Extension for Legacy Cohort, was published
and effective on September 22, 2021. 86 FR 52614 (September 22, 2021).
The First PCAFC Extension for Legacy Cohort extended the transition
period by one year. Id. VA then published a second interim final rule,
Extension of Program of Comprehensive Assistance for Family Caregivers
Eligibility for Legacy Participants and Legacy Applicants, referred to
herein as the Second PCAFC Extension for Legacy Cohort, which became
effective on September 21, 2022, and extended the transition period for
the legacy cohort and timeline for completing their reassessments by
three additional years--to September 30, 2025. 87 FR 57602 (September
21, 2022).
1. Proposal To Extend Transition Period for Legacy Cohort
VA proposes to further extend the legacy cohort transition period
through a date that is 18 months after the date this rulemaking, which
proposes changes to PCAFC eligibility and stipend level criteria,
becomes final and effective to allow members of the legacy cohort to be
reassessed by VA pursuant to such criteria. Without this extension,
members of the legacy cohort would be subject to inequitable treatment
or unnecessary burden, depending on whether changes to PCAFC
eligibility and stipend level criteria resulting from this rulemaking
go into effect before or after September 30, 2025.
If changes to the PCAFC eligibility and stipend level criteria are
made final and effective under this rulemaking before September 30,
2025, VA would not have sufficient time to complete reassessments of
all members of the legacy cohort under the revised criteria before such
date. In this scenario, for reassessments not completed under the
revised criteria before September 30, 2025, VA would have to carry out
discharges and stipend reductions based on reassessments completed
under outdated criteria; or alternatively, VA would have to set those
determinations aside and complete new reassessments
[[Page 97406]]
under the new criteria, which, after September 30, 2025, would result
in inequities among members of the legacy cohort. This is because
members of the legacy cohort who are reassessed under the new criteria
and found to be no longer eligible for PCAFC, or eligible but with a
reduced stipend amount, would be impacted at different times based only
on when they are reassessed. Neither option would be fair and equitable
to all members of the legacy cohort.
If changes to the PCAFC eligibility and stipend level criteria are
made final and effective under this rulemaking after September 30,
2025, after that date, VA would have to begin carrying out discharges
and stipend reductions for members of the legacy cohort pursuant to
criteria VA is proposing to change. Once the revised criteria are made
final and effective, such individuals would be required to reapply to
be considered under the new criteria. This could be perceived as
unnecessarily burdensome, and for those who reapply and are found
eligible, this gap would create disruption to the supports and services
they receive through PCAFC. Extending the transition period as proposed
in this rulemaking would avoid these challenges.
VA proposes a period of 18 months after the effective date of this
rulemaking to allow sufficient time to complete reassessments for the
legacy cohort under the new PCAFC eligibility and stipend level
criteria. Prior to initiating reassessments of PCAFC eligibility, VA
would need to inform PCAFC participants, including the legacy cohort,
about the changes to PCAFC eligibility and stipend level criteria that
become effective under this rulemaking. VA believes 18 months will
allow adequate time to provide such notification and would ensure VA
can complete these legacy reassessments while also processing a
potential influx of new applications that VA may receive following
finalization of this rulemaking. There are over 14,500 legacy
applicants and legacy participants who have not been determined
eligible for PCAFC under the criteria that went into effect on October
1, 2020, or who have been determined eligible under such criteria but
at a lower stipend amount, and who could most benefit from a
reassessment under revised criteria.
For these reasons, VA proposes to amend part 71 to extend the
transition period for the legacy cohort and timeline for VA to complete
reassessments of the legacy cohort to a date that is 18 months after
the effective date of a final rule under this rulemaking.
2. Proposed Changes to 38 CFR 71.15, 71.20, 71.30, and 71.40
To effectuate an additional extension to the legacy cohort
transition period and timeline for reassessments, VA proposes several
amendments to Sec. Sec. 71.15, 71.20, 71.30, and 71.40. Among other
changes, proposed amendments would remove references in current
regulatory text to the five-year period beginning on October 1, 2020,
and ending on September 30, 2025. VA would instead include language
that reflects a period that begins on October 1, 2020, and ends on the
date that is 18 months after the effective date of a final rule
adopting changes to eligibility and stipend level criteria for PCAFC.
These specific proposed changes to the regulations are discussed in
greater detail later in this rulemaking.
VA solicits comments from the public on this proposal. In
particular, VA requests comments on the following.
1. Should VA consider a different legacy cohort extension period
other than the proposed 18-month period after the effective date of
this rulemaking which would adopt changes to eligibility and stipend
level criteria for PCAFC? If yes, what time period should VA consider
and why?
2. What alternative approach(es) should VA consider to reassess the
legacy cohort and ensure only those individuals who meet eligibility
criteria are participating in PCAFC?
B. 38 CFR 71.10 Purpose and Scope
Current Sec. 71.10 sets forth the purpose and scope of part 71.
Paragraph (b) of Sec. 71.10 explains, among other things, that PCAFC
and Program of General Caregiver Support Services (PGCSS) benefits are
provided only to those individuals residing in a State as that term is
defined in 38 U.S.C. 101(20). VA proposes to remove the language ``as
that term is defined in 38 U.S.C. 101(20)'' from 38 CFR 71.10(b)
because VA proposes to add a definition for the term State in 38 CFR
71.15, as explained in the discussion on proposed changes to Sec.
71.15.
This proposed revision is intended to provide clarity and reduce
the burden on the reader by including all definitions in the
definitions section under Sec. 71.15.
VA proposes no other changes to Sec. 71.10.
C. 38 CFR 71.15 Definitions
Section 71.15 contains definitions for terms used throughout part
71. VA proposes to amend Sec. 71.15 by adding definitions for the
terms activity of daily living or activities of daily living (ADL),
State, and typically requires; removing the terms inability to perform
an activity of daily living (ADL), need for supervision, protection, or
instruction, and unable to self-sustain in the community and their
definitions; and revising the definitions of institutionalization,
joint application, legacy applicant, legacy participant, and serious
injury. These proposed changes are explained in more detail below in
alphabetical order of the terms being added, removed, or revised.
1. Activity of Daily Living or Activities of Daily Living (ADL)
In Sec. 71.15, VA proposes to add a definition for the term
activity of daily living or activities of daily living (ADL). In the
current definition of inability to perform an ADL, VA includes the
following ADL as applying to this term: (1) dressing or undressing
oneself; (2) bathing; (3) grooming oneself in order to keep oneself
clean and presentable; (4) adjusting any special prosthetic or
orthopedic appliance, that by reason of the particular disability,
cannot be done without assistance (this does not include the adjustment
of appliances that nondisabled persons would be unable to adjust
without aid, such as supports, belts, lacing at the back, etc.); (5)
toileting or attending to toileting; (6) feeding oneself due to loss of
coordination of upper extremities, extreme weakness, inability to
swallow, or the need for a non-oral means of nutrition; and (7)
mobility (walking, going up stairs, transferring from bed to chair,
etc.). Since, as discussed further below, VA proposes to remove the
current definition of inability to perform an ADL which contains this
list of ADL, VA proposes to add a standalone definition of ADL to Sec.
71.15 that would maintain this list of ADL with minor changes. This
separate definition is not intended to be a new definition that changes
VA's current implementation and use of the term ADL. This proposal does
not seek to narrow or expand VA's current interpretation of the term
ADL but is intended to improve clarity for purposes of applying and
implementing the term ADL as it is used throughout part 71 and in 38
U.S.C. 1720G.
VA proposes to maintain the existing ADL included in the current
definition of inability to perform an ADL as these are widely
recognized in the health care context (for example, they are found in
the Katz Basic ADL Scale (see 76 FR 26148 (May 5, 2011)) and have been
the ADL used for the purposes of PCAFC since the inception of the
program. While VA proposes to maintain the list
[[Page 97407]]
of ADL from the definition of inability to perform an ADL, this new
proposed definition for ADL revises the language used to describe
several of the ADL as is discussed below. VA's proposed changes would
not materially change the activities included in the definition of an
ADL or how VA evaluates them.
In the ADL of dressing and undressing oneself, VA proposes to
remove the word ``oneself''. Similarly, VA proposes to remove the
phrase ``oneself in order to keep oneself clean and presentable'' from
the description of the ADL of grooming. VA also proposes to remove the
parenthetical following the ADL of mobility that includes examples
(that is, walking, going up stairs, transferring from bed to chair,
etc.). These words and phrases are not needed when listing the ADL and
are commonly understood to be included in the definitions of the
identified ADLs.
In developing the definition of inability to perform an ADL, VA
included additional clarifying language in the descriptions of
adjusting any special prosthetic or orthopedic appliance and feeding
oneself, to further explain the cause for why an individual would be
unable to perform these two ADLs. In establishing a standalone
definition of ADL, these additional clarifications are not needed and
if they were to remain may lead to misinterpretation of VA's use of the
term ADL as it is referenced throughout 38 CFR part 71. For the ADL of
adjusting any special prosthetic or orthopedic appliance, VA proposes
to remove the phrase ``that by reason of the particular disability,
cannot be done without assistance''. For the ADL of feeding oneself, VA
proposes to remove the language ``due to loss of coordination of upper
extremities, extreme weakness, inability to swallow, or the need for a
non-oral means of nutrition''. In addition, to further simplify and
clarify this ADL, VA proposes to use the more commonly used term
``eating'' in place of feeding oneself.
Before proposing to define ADL in this proposed rule, VA conducted
a search of title 38 of the CFR to identify other regulatory
definitions of ADL used by VA. VA identified several definitions of ADL
in title 38 of the CFR, including in Sec. Sec. 3.278, 17.62, 17.3210,
and 51.2, that include descriptive language in addition to identifying
specific ADL. While there are similarities among these definitions, the
definition of ADL used in Sec. 51.2 uses terminology VA believes best
describes the meaning of ADL for purposes of part 71. Section 51.2
defines ADLs to mean ``the functions or tasks for self-care usually
performed in the normal course of a day, i.e., mobility, bathing,
dressing, grooming, toileting, transferring, and eating.'' Among other
things, this definition is used for purposes of determining eligibility
of a veteran for payment of per diem to a State for adult day health
care. See 38 CFR 51.52(d)(1) and (3).
Under this proposal, the new definition of ADL would refer to the
same ADLs as those currently identified in the definition of inability
to perform an ADL in Sec. 71.15. VA proposes to add language that is
included in the description of ADL in Sec. 51.2 by specifying in the
proposed new definition of ADL that ADL means ``any of the following
functions or tasks for self-care usually performed in the normal course
of a day'', which is consistent with how VA applies ADL for purposes of
38 U.S.C. 1720G and 38 CFR part 71. VA believes this language would be
helpful to include in the proposed definition of ADL in Sec. 71.15
because it clarifies that, for purposes of part 71, ADL are the broad
categories of functions and tasks listed and are those activities
usually performed in the normal course of a day. VA recognizes that the
functions and tasks for self-care that are ``usually'' performed in the
``normal'' course of a day depends on the unique individual. VA
discusses this in more detail in the context of proposed changes to
Sec. Sec. 71.20(a)(3) and 71.40(c)(4)(i)(A), which outline how VA
would apply ADL in the context of those sections. Additionally, the
proposed new text of ``usually performed in the normal course of a
day'' does not mandate that each activity must always be completed
daily for it to be considered an ADL under this definition. Some ADL
may be performed daily, such as feeding and toileting. However, others
such as bathing may not always be performed daily. Such ADL would still
be considered among those functions or tasks for self-care that are
usually performed in the normal course of a day even though an
individual may not need to perform such ADL daily in order to maintain
their health and well-being. This is consistent with how VA interprets
and applies ADL currently within PCAFC. See 85 FR 46226, at 46233 (July
31, 2020).
This proposed definition of ADL (that is, functions or tasks for
self-care usually performed in the normal course of a day) would align
with other Federal definitions for ADL. For example, the Centers for
Medicare & Medicaid Services' (CMS) regulations for its Home and
Community-Based Attendant Services and Supports State Plan Option
define ADL to mean basic personal everyday activities including, but
not limited to, tasks such as eating, toileting, grooming, dressing,
bathing, and transferring. See 42 CFR 441.505. Additionally, the
Department of Housing and Urban Development's regulations for its
Congregate Housing Services Program define ADL to mean, in part, an
activity regularly necessary for personal care. See 24 CFR 700.105. VA
asserts that the proposed definition of ADL in this rulemaking would
also align with the plain meaning of the term activity of daily living
as referring to activities that ``occur with some regularity''. See
Veteran Warriors, Inc. v. Sec'y of Veterans Affairs, 29 F.4th 1320,
1339 (Fed. Cir. 2022) (``By using the word daily, Congress required the
relevant activities to occur with some regularity. See also 38 CFR
71.15 (promulgating [a] list of activities of daily living, each of
which involves regular conduct--like eating or bathing).'').
Thus, ADL would be defined to mean any of the following functions
or tasks for self-care usually performed in the normal course of a day:
(1) Dressing or undressing; (2) Bathing; (3) Grooming; (4) Adjusting
any special prosthetic or orthopedic appliance (this does not include
the adjustment of appliances that nondisabled persons would be unable
to adjust without aid, such as supports, belts, lacing at the back,
etc.); (5) Toileting or attending to toileting; (6) Eating; or (7)
Mobility.
As explained below, this proposed definition of ADL would be
applied in proposed Sec. 71.20(a)(3)(i) and (iii) for purposes of
determining whether a veteran or servicemember is in need of personal
care services based on the individual typically requiring hands-on
assistance to complete one or more ADL or the individual typically
requiring regular or extensive instruction or supervision to complete
one or more ADL, and in proposed Sec. 71.40(c)(4)(i)(A)(2) as part of
the criteria used to determine whether a Primary Family Caregiver (as
that term is defined in Sec. 71.15) qualifies for the higher stipend
level. VA's later discussions not only provide explanation of its
application of the proposed definition of ADL, but also include
illustrative examples.
2. Inability To Perform an ADL
In Sec. 71.15 VA proposes to remove the term inability to perform
an ADL and its definition. Inability to perform an ADL is currently
defined to mean a veteran or servicemember requires personal care
services each time he or she completes one or more of the following:
(1) Dressing or undressing oneself; (2)
[[Page 97408]]
Bathing; (3) Grooming oneself in order to keep oneself clean and
presentable; (4) Adjusting any special prosthetic or orthopedic
appliance, that by reason of the particular disability, cannot be done
without assistance (this does not include the adjustment of appliances
that nondisabled persons would be unable to adjust without aid, such as
supports, belts, lacing at the back, etc.); (5) Toileting or attending
to toileting; (6) Feeding oneself due to loss of coordination of upper
extremities, extreme weakness, inability to swallow, or the need for a
non-oral means of nutrition; or (7) Mobility (walking, going up stairs,
transferring from bed to chair, etc.).
The term inability to perform an ADL is listed in Sec.
71.20(a)(3)(i) as one of the bases for determining PCAFC eligibility
consistent with 38 U.S.C. 1720G(a)(2)(C)(i). The term is also
referenced in the definition of unable to self-sustain in the
community, which is applied in 38 CFR 71.40(c)(4)(i)(A)(2) for purposes
of determining eligibility of a Primary Family Caregiver for the higher
stipend level. As explained in more detail below, VA proposes to
implement the statutory criterion in 38 U.S.C. 1720G(a)(2)(C)(i)
through regulation text in proposed 38 CFR 71.20(a)(3)(i) and Sec.
71.40(c)(4)(i)(A)(2) without referencing the term inability to perform
an ADL in Sec. 71.15. Those proposed amendments would eliminate the
need for the current definition of inability to perform an ADL in Sec.
71.15 and reduce the potential for confusion. Therefore, VA proposes to
remove the term inability to perform an ADL and its definition from
Sec. 71.15.
3. Institutionalization
In Sec. 71.15, VA proposes to revise the current definition of
institutionalization. This term is used in Sec. 71.45 for purposes of
discharge from PCAFC and currently refers to being institutionalized in
a setting outside the home residence to include a hospital,
rehabilitation facility, jail, prison, assisted living facility,
medical foster home, nursing home, or other similar setting. Under this
proposal, VA would remove the language ``assisted living facility''
from this definition because residing in an assisted living facility
should not by itself disqualify an eligible veteran or Family Caregiver
(as those terms are defined in Sec. 71.15) from PCAFC. VA would also
clarify that ``other similar settings'' must be determined by VA.
VA has found that some eligible veterans residing in assisted
living, or other similarly termed settings such as senior living,
choose to utilize Family Caregivers under PCAFC for the provision of
their personal care services in lieu of other paid services available
from the assisted living facility or other service providers. Some
assisted living facilities, and similarly termed environments, may
offer room and board with limited additional support as part of the
cost of residing in such facility. Other assisted living facilities may
offer a menu of add-on services to include assistance with the personal
care services that may have been provided by a Family Caregiver through
PCAFC. However, in lieu of paying for such personal care services
through the assisted living facility or other personal care service
provider, an eligible veteran may prefer to receive personal care
services from a Family Caregiver under PCAFC. In such cases, the
assisted living facility would be considered the eligible veteran's
home for purposes of Sec. 71.20(a)(6) (conditioning PCAFC eligibility
on the individual receiving care at home).
Additionally, a Family Caregiver residing in an assisted living
facility should not necessarily be precluded from being approved and
designated as a Family Caregiver in PCAFC simply because they reside in
an assisted living facility. Such individual, for example, may live in
the assisted living facility with the eligible veteran and be able to
provide the personal care services the eligible veteran requires. The
ability of the Family Caregiver to perform required personal care
services is based upon the Family Caregiver's individual abilities,
rather than the environment in which they reside.
Thus, to ensure eligible veterans and/or Family Caregivers who
reside in assisted living facilities would not be excluded from PCAFC
based only on the fact that they reside in an assisted living facility,
VA proposes to revise the term institutionalization to exclude
``assisted living facility,'' such that institutionalization would
instead mean being institutionalized in a setting outside the home
residence to include a hospital, rehabilitation facility, jail, prison,
medical foster home, nursing home, or other similar setting as
determined by VA. However, this change would not nullify any of the
eligibility criteria otherwise applicable to the eligible veteran and
Family Caregiver. For example, in instances when personal care services
that had been provided by the Family Caregiver are instead provided to
the eligible veteran by or through the assisted living facility, the
veteran would no longer be eligible for PCAFC pursuant to Sec.
71.20(a)(5) (requiring that personal care services that would be
provided by the Family Caregiver will not be simultaneously and
regularly provided by or through another individual or entity). In such
instances, the Family Caregiver's designation would be revoked for
noncompliance pursuant to Sec. 71.45(a)(1)(ii)(A) (that is, because
the eligible veteran would not meet the requirements of Sec.
71.20(a)(5)) when the personal care services that would be provided by
the Family Caregiver to the eligible veteran are the same personal care
services being provided by or through the assisted living facility to
the eligible veteran, unless a different basis of revocation or
discharge under Sec. 71.45 applies.
For these reasons, VA proposes to revise the definition of
institutionalization so as not to exclude from PCAFC eligible veterans
and/or Family Caregivers who may be living at an assisted living
facility, provided that the eligible veteran and Family Caregiver
otherwise qualify for PCAFC. The eligibility criteria in Sec.
71.20(a)(5) and (6), among other requirements, would help to ensure
that the eligible veteran and Family Caregiver continue participating
in PCAFC only when otherwise eligible to do so.
The definition of institutionalization also references ``other
similar setting''. VA proposes to add the phrase ``as determined by
VA'' after ``other similar setting'' to clarify that what is considered
a ``similar'' setting is a VA determination. This is consistent with
current practice. VA also proposes to replace the phrase ``refers to''
with the word ``means'' within the definition of institutionalization.
This is a non-substantive edit to align with the formatting of other
definitions found within Sec. 71.15.
4. Joint Application
In Sec. 71.15, VA proposes to revise the current definition of
joint application. The term joint application is used in the
definitions of legacy applicant and legacy participant, throughout
Sec. 71.25(a), in Sec. 71.25(f), in Sec. 71.40(d), and in Sec.
71.45(b)(4)(iii). The term joint application is currently defined as an
application that has all fields within the application completed,
including signature and date by all applicants, with the following
exceptions: social security number or tax identification number, middle
name, sex, email, alternate telephone number, and name of facility
where the veteran last received medical treatment, or any other field
specifically indicated as optional.
VA proposed this definition as part of a March 6, 2020 rulemaking
proposal. See 85 FR 13356, at 13362 (March 6, 2020) (hereinafter the
March 6, 2020
[[Page 97409]]
Proposed Rule). VA explained in that rulemaking that an application
that does not have all the mandatory sections completed would be
considered incomplete, and VA would not be able to begin the
application review process because the required sections are necessary
for VA to begin that process. Id. VA further explained that failure to
provide all the required information had led to delays as VA had to
take steps to obtain the missing information. Id. VA received one
public comment in response to its proposed definition of joint
application. See 85 FR 46237 (July 31, 2020). The commenter suggested,
in part, that delays could still result as VA would still need to
inform applicants that their applications were incomplete; however, VA
made no changes and adopted the definition without change. Id. at
46237-46238.
Since implementing this definition of joint application, VA
continues to receive applications that do not have all the required
fields completed. VA has also experienced challenges with timely
identification of missing required information which has led to delays
in providing notice to applicants about required information.
Additionally, while certain minimum information is needed for VA to
begin reviewing and evaluating applicants' eligibility for PCAFC (for
example, the name of the veteran or servicemember and each Family
Caregiver applicant), some required information (for example, date of
birth or zip code), can be obtained in the course of evaluating
applicants' PCAFC eligibility.
Instead of requiring specific information be included in the joint
application in regulation, VA proposes to define the term joint
application to mean an application for the Program of Comprehensive
Assistance for Family Caregivers in such form and manner as the
Secretary of Veterans Affairs considers appropriate. This proposed
change would be consistent with the statutory text at 38 U.S.C.
1720G(a)(4), which requires that PCAFC applicants ``jointly submit to
the Secretary an application [for PCAFC] in such form and in such
manner as the Secretary considers appropriate.'' This proposed change
to the definition of joint application would allow VA to begin
evaluating joint applications so long as they contain the minimum
information needed for VA to begin such review and evaluation of the
applicants' eligibility for PCAFC. This would allow efficient and
timely evaluation of joint applications and avoid subsequent delays in
rendering decisions. In many cases, if certain information is missing
from the joint application, it may be gathered during VA's evaluations
rather than serving as a precursor to such evaluations being initiated.
Furthermore, this proposed definition would permit the Secretary to
make changes to the application form, as needed, to ensure that the
appropriate information is requested and collected from PCAFC
applicants in the joint application.
VA would continue to require the use of VA Form 10-10CG as the
joint application. However, to help alleviate challenges identified
above, if this proposal is adopted, VA would update the form to ensure
that it does not require completion of fields that are not necessary
for VA to begin reviewing and evaluating applicants' eligibility for
PCAFC.
5. Legacy Applicant and Legacy Participant
In 38 CFR 71.15, VA proposes to revise the definitions of legacy
applicant and legacy participant. These terms are currently used
throughout part 71 to describe members of the legacy cohort. Legacy
applicant is currently defined to mean a veteran or servicemember who
submits a joint application for PCAFC that is received by VA before
October 1, 2020 and for whom a Family Caregiver(s) is approved and
designated on or after October 1, 2020 so long as the Primary Family
Caregiver approved and designated for the veteran or servicemember on
or after October 1, 2020 pursuant to such joint application (as
applicable) continues to be approved and designated as such. Legacy
participant is defined as an eligible veteran whose Family Caregiver(s)
was approved and designated by VA under part 71 as of the day before
October 1, 2020 so long as the Primary Family Caregiver approved and
designated for the eligible veteran as of the day before October 1,
2020 (as applicable) continues to be approved and designated as such.
For both legacy applicants and legacy participants, the definition also
states that if a new joint application is received by VA on or after
October 1, 2020 that results in approval and designation of the same or
a new Primary Family Caregiver, the veteran or servicemember would no
longer be considered a legacy applicant or legacy participant, as
applicable.
VA proposes to revise the definitions of legacy applicant and
legacy participant to specify that such designation would be a
temporary designation. These designations identify individuals who
would be subject to the transition period and related requirements VA
established for the legacy cohort through 2020 rulemaking and that VA
extended under the First PCAFC Extension for Legacy Cohort and the
Second PCAFC Extension for Legacy Cohort. See 85 FR 13362, 86 FR 52614,
and 87 FR 57602. VA proposes to state in regulation that following
expiration of the transition period for the legacy cohort, which is
proposed to conclude 18 months after the effective date of a final rule
that implements this rulemaking, a veteran or servicemember will no
longer be considered a legacy applicant or legacy participant. VA
believes that inclusion of this language would help clarify that
following the conclusion of the transition period for the legacy
cohort, all individuals applying for and participating in PCAFC will be
subject to the same set of criteria and requirements.
VA proposes to add a sentence at the end of the definitions for
legacy applicant and legacy participant, which, as proposed, would
state that effective [18 months after EFFECTIVE DATE OF FINAL RULE], a
veteran or servicemember is no longer considered a legacy applicant or
legacy participant, respectively.
6. Need for Supervision, Protection, or Instruction
In 38 CFR 71.15, VA proposes to remove the term need for
supervision, protection, or instruction and its definition. The term
need for supervision, protection, or instruction is listed as one of
the bases for determining eligibility under Sec. 71.20(a)(3) and is
also referenced in the definition of unable to self-sustain in the
community, which is applied in Sec. 71.40(c)(4)(i)(A)(2) for purposes
of determining the amount of the monthly stipend for which the Primary
Family Caregiver is eligible. The term need for supervision,
protection, or instruction is currently defined to mean an individual
has a functional impairment that directly impacts the individual's
ability to maintain his or her personal safety on a daily basis. This
term and its definition were intended to implement, in a combined
manner, two of the statutory bases upon which a veteran or
servicemember can be determined to be in need of personal care
services--specifically, a need for supervision or protection based on
symptoms or residuals of neurological or other impairment or injury,
and a need for regular or extensive instruction or supervision without
which the ability of the veteran to function in daily life would be
seriously impaired. 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii).
However, as VA explained in its Interim Final Rule (IFR) dated
[[Page 97410]]
September 21, 2022, on March 25, 2022, the U.S. Court of Appeals for
the Federal Circuit issued a decision in Veteran Warriors, Inc. v.
Sec'y of Veterans Affairs, 29 F.4th 1320 (Fed. Cir. 2022) that
invalidated VA's definition of need for supervision, protection, or
instruction in 38 CFR 71.15. See 87 FR 57602-57603 (September 21,
2022). The court determined that the definition was inconsistent with
the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii).
Veteran Warriors at 1342-43. Specifically, the court held that VA's
decision to create a single frequency requirement for ``supervision''
under clauses (ii) and (iii) of section 1720G(a)(2)(C) was inconsistent
with the statutory language. Id. at 1342. The court also found that
clauses (ii) and (iii) of section 1720G(a)(2)(C) did not restrict
eligibility based on ``personal safety'' in all cases, such that the
``personal safety'' requirement in VA's definition was inconsistent
with the statutory text. Id. at 1342-43. As a result of this ruling, VA
has applied clauses (ii) and (iii) of section 1720G(a)(2)(C) in place
of the regulatory term need for supervision, protection, or instruction
and its definition in 38 CFR 71.15 when making determinations under
PCAFC regulations that became effective on October 1, 2020. Thus, where
the term need for supervision, protection, or instruction is
referenced, VA applies the statutory language in 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii) instead.
As explained below, at this time, VA is not proposing a new
definition of need for supervision, protection, or instruction for
purposes of interpreting clauses (ii) and (iii) of 38 U.S.C.
1720G(a)(2)(C). Instead, VA's proposed interpretation of those clauses
would be addressed in proposed 38 CFR 71.20(a)(3)(ii) and (iii) for
purposes of determining PCAFC eligibility and in proposed Sec.
71.40(c)(4)(i)(A)(2) for purposes of determining eligibility for the
higher stipend level. Those amendments, if adopted, would eliminate the
need for a new definition of need for supervision, protection, or
instruction in Sec. 71.15.
For these reasons, VA proposes to remove the term need for
supervision, protection, or instruction and its definition from Sec.
71.15.
7. Unable to Self-Sustain in the Community
In Sec. 71.15, VA proposes to remove the term unable to self-
sustain in the community and its definition. Unable to self-sustain in
the community currently is defined to mean that an eligible veteran:
(1) requires personal care services each time he or she completes three
or more of the seven activities of daily living (ADL) listed in the
definition of an inability to perform an activity of daily living in
Sec. 71.15, and is fully dependent on a caregiver to complete such
ADLs; or (2) has a need for supervision, protection, or instruction on
a continuous basis. This term and its definition are used for purposes
of determining eligibility for the higher stipend level under Sec.
71.40(c)(4)(i)(A)(2). This term and its definition are also used in
Sec. 71.30, as reassessments under that section include consideration
of whether the eligible veteran is unable to self-sustain in the
community for purposes of the monthly stipend level determination under
Sec. 71.40(c)(4)(i)(A).
As explained below, VA proposes to revise Sec.
71.40(c)(4)(i)(A)(2), which currently explains that if VA determines
that the eligible veteran is unable to self-sustain in the community,
the Primary Family Caregiver's monthly stipend is calculated by
multiplying the monthly stipend rate by 1.00. In proposed Sec.
71.40(c)(4)(i)(A)(2), VA would list the criteria for the higher stipend
level without referencing the term unable to self-sustain in the
community. Consistent with that change, VA would also remove the term
unable to self-sustain in the community from Sec. 71.30, as discussed
below. As VA would discontinue use of the term unable to self-sustain
in the community and its definition in part 71, VA proposes to remove
them from Sec. 71.15.
8. Serious Injury
In Sec. 71.15, VA proposes to revise the definition of serious
injury. The current definition in Sec. 71.15 states that serious
injury means any service-connected disability that: (1) is rated at 70
percent or more by VA; or (2) is combined with any other service-
connected disability or disabilities, and a combined rating of 70
percent or more is assigned by VA. This definition is applied by VA
when determining whether an individual meets the eligibility criteria
in Sec. 71.20(a)(2), which requires the individual to have a serious
injury incurred or aggravated in the line of duty to qualify for PCAFC.
VA proposes to revise the definition of serious injury in Sec.
71.15 to include a total disability rating for compensation based on
individual unemployability (IU) assigned by VA. IU ratings allow VA to
compensate certain veterans at the 100 percent disability rate even
though their service-connected disability or disabilities are not rated
as 100 percent disabling by reference to specific rating schedule
criteria. Under Sec. 4.16(a), total disability ratings may be assigned
when a veteran's schedular rating is less than total (which is to say,
less than 100 percent) but where the veteran is unable to secure or
follow a substantially gainful occupation due to service-connected
disabilities. In other words, even though the veteran may not meet the
requirements for a total (or 100 percent) disability rating by
reference to the VA disability rating schedule criteria, the veteran
may be compensated as if they were 100 percent disabled if their
service-connected disability or the combination of their service-
connected disabilities prevents them from engaging in substantial
gainful employment.
The requirements for IU include that a veteran either (1) has one
service-connected disability rated at least 60 percent disabling, or
(2) has two or more service-connected disabilities with at least one
rated at least 40 percent disabling and a combined rating of at least
70 percent. See Sec. 4.16(a). VA also allows for extra-schedular
consideration for an IU rating in cases of veterans who are
unemployable by reason of service-connected disabilities, but who fail
to meet these percentage standards. See Sec. 4.16(b).
In VA's July 31, 2020 Final Rule, VA revised the definition of
serious injury. 85 FR 46245-46251 (July 31, 2020). In promulgating this
definition, VA declined to adopt a recommendation from a commenter who
recommended that VA consider including in the definition of serious
injury service-connected veterans who are in receipt of an IU rating.
Id. at 46249-46250. IU may encompass veterans with service-connected
disabilities rated less than 70 percent, and VA did not believe it
would be appropriate to use IU as a substitute for having a single or
combined 70 percent rating for the purposes of PCAFC. Id. at 46250. VA
explained that not all veterans and servicemembers applying for or
participating in PCAFC would have been evaluated by VA for such rating,
and if VA were to create an exception in the definition of serious
injury for individuals with an IU rating, VA would also need to
consider whether other exceptions should also satisfy the definition.
Id. Additionally, VA referenced that IU had proven to be a very
difficult concept to apply consistently in the context of disability
compensation and had been the source of considerable dissatisfaction
with VA adjudications and of litigation. Id. Observing that importing
this standard could introduce potential inconsistency into PCAFC, VA
declined to make any changes to incorporate IU into the
[[Page 97411]]
definition of serious injury in VA's July 31, 2020 Final Rule. Id.
Following VA's implementation of the revised definition of serious
injury, veterans and other stakeholders continued to raise concerns
regarding the exclusion of IU from the definition of serious injury. VA
therefore took another look at this topic and reexamined the exclusion
of IU. Upon further review and reconsideration, VA now proposes to
include a total disability rating for compensation based on IU within
the definition of serious injury for purposes of PCAFC, regardless of
the schedular disability rating assigned as VA has concluded the
advantages of including IU in the definition of serious injury outweigh
the concerns VA identified with doing so in VA's 2020 final rule.
VA's Schedule for Rating Disabilities (VASRD) percentage ratings
represent the average impairment in earning capacity resulting from
service-connected disabilities. See Sec. 4.1. When the VASRD does not
adequately account for the severity of the veteran's disability and its
impact on the veteran's employability, VA may assign a total disability
rating by establishing IU when the requirements under Sec. 4.16 are
met. An IU determination reflects VA's assessment that even though the
veteran has a less than total schedular rating, their service-connected
disability, or the combination of their service-connected disabilities,
precludes them from engaging in substantial gainful employment and
entitles them to payment at the 100 percent disability rate. See Sec.
4.16. VA's assignment of an IU rating establishes that the veteran's
service-connected disability or disabilities renders them unemployable
and compensable as if they were 100 percent disabled. Therefore,
individuals with IU assigned by VA have the same level of impairment in
earning capacity as that of an individual with a schedular 100 percent
disability rating, regardless of whether the individual's disability
picture warrants a 100-percent rating under the rating schedule(s) for
the service-connected disability or disabilities.
In proposing this change, VA also reexamined its prior concerns
with including IU in the definition of serious injury, and VA no longer
believes those concerns necessitate the same approach. One such concern
was the fact that not all veterans and servicemembers applying for or
participating in PCAFC will have been evaluated by VA for IU. See 85 FR
46250 (July 31, 2020). While this is still true, VA notes that any
individual who does not currently have a total disability rating,
including those that do not meet the definition of serious injury
because their service-connected disability rating is less than 70
percent, can file a claim for an increased rating, which may include a
request for IU if they believe such a rating is warranted.\2\ There are
existing processes for individuals to request consideration for IU, and
adding IU to the definition of serious injury as proposed would provide
an additional opportunity for veterans to satisfy the serious injury
requirement in Sec. 71.20(a)(2).
---------------------------------------------------------------------------
\2\ An IU rating under 38 CFR 4.16 would not ordinarily be
awarded as a proposed rating to a servicemember undergoing medical
discharge through the Integrated Disability Evaluation System.
However, a servicemember undergoing medical discharge would still be
able to meet the definition of serious injury for purposes of
satisfying the requirement in Sec. 71.20(a)(2), based on a proposed
service-connected disability rating of 70 percent or higher. See 85
FR 13356, at 13369 (March 6, 2020) (explaining that ``[f]or
servicemembers undergoing medical discharge . . . who apply for
PCAFC, we would accept their proposed VA rating of disability when
determining whether the servicemember has a serious injury'').
Additionally, VA notes that servicemembers undergoing medical
discharge can be considered for an IU rating upon discharge.
---------------------------------------------------------------------------
VA also considered that IU was a difficult concept to apply
consistently in the context of disability compensation. Id. While VA
knows that IU may be challenging to apply consistently and has been the
source of litigation, it does not want to exclude veterans with IU
ratings from meeting the definition of serious injury based on these
challenges and prevent them from participating in PCAFC when all other
eligibility requirements are met.
Additionally, VA has examined whether other criteria should meet
the definition of serious injury (based on disability rating criteria
or otherwise). Based on this review, the only criterion VA identified
as being equivalent to having a single or combined 70 percent service-
connected rating or higher, is a VA rating of IU. However, as indicated
below, VA welcomes input from the public on any other VA ratings or
other criteria that VA should consider as potentially meeting the
definition of serious injury for purposes of PCAFC.
Accordingly, VA believes its earlier concerns about including IU in
the definition of serious injury are now outweighed by the advantages
that would result for individuals with an IU rating who satisfy all
other PCAFC eligibility criteria. Thus, when VA determines that a
veteran's service-connected disability or disabilities are so severe as
to render them unable to secure or follow a substantially gainful
occupation and grants the veteran entitlement to IU, VA believes such
disability, or disabilities, should be considered a serious injury for
purposes of PCAFC. VA believes this is true regardless of the basis for
VA's IU rating under Sec. 4.16(a) or (b). Further, VA reached this
conclusion, in part, based on continued feedback from VSOs and other
stakeholders. VA believes for the reasons set forth above, the proposed
inclusion of IU in the definition of serious injury is a reasonable
expansion of the definition for purposes of PCAFC.
Given the above, VA proposes to revise the definition of serious
injury in Sec. 71.15 to include a total disability rating for
compensation based on IU assigned by VA. VA proposes to revise the
definition of serious injury by reorganizing the introductory text and
paragraphs (1) and (2), including the current criteria from paragraphs
(1) and (2) in revised paragraphs (1) and (2), and adding this new
basis in a new paragraph (3). This change, if adopted, would allow
individuals who do not currently have a single or combined 70 percent
disability rating to meet the definition of serious injury if they have
an IU rating assigned by VA. As proposed, the definition of serious
injury would state serious injury means any of the following as
assigned by VA: (1) a service-connected disability rated at 70 percent
or more; (2) any service-connected disabilities that result in a
combined rating of 70 percent or more; or (3) any service-connected
disability or disabilities that result in a total disability rating for
compensation based on individual unemployability.
9. State
In Sec. 71.15 VA proposes to add a definition for the term State.
As explained above, current Sec. 71.10(b) explains, among other
things, that PCAFC and PGCSS benefits are provided only to those
individuals residing in a State as that term is defined in 38 U.S.C.
101(20). Currently, Sec. 71.10(b) is the only instance in which part
71 refers to the term State and its definition in 38 U.S.C. 101(20).
However, this rulemaking proposal, if adopted, would add the term State
in other sections of part 71 as well. Specifically, this term would be
used in a new basis for revocation under proposed revisions to 38 CFR
71.45 and regarding State-declared emergencies in proposed Sec. 71.55,
as discussed in more detail below. Thus, as the term is proposed to be
used in multiple sections in part 71, it would be appropriate to define
it in Sec. 71.15. VA's proposed definition would be consistent with
current Sec. 71.10(b), as VA would define State in proposed Sec.
71.15 to have the meaning given to that term in 38 U.S.C.
[[Page 97412]]
101(20). In 38 U.S.C. 101(20), State is defined to mean ``each of the
several States, Territories, and possessions of the United States, the
District of Columbia, and the Commonwealth of Puerto Rico. For the
purpose of section 2303 and chapters 34 and 35 of [title 38], such term
also includes the Canal Zone.''
As this is the definition VA currently uses for this term in 38 CFR
71.10(b), this change would have no substantive impact on that section.
However, to provide clarity and consistency throughout part 71, VA
proposes to include a new definition for the term State in Sec. 71.15
so that it is easier to locate, understand, and reference the
definition of this term.
10. Typically Requires
In Sec. 71.15, VA proposes to add a definition for the term
typically requires. VA proposes to use the term typically requires in
the bases for PCAFC eligibility in proposed Sec. 71.20(a)(3)(i) and
(iii) and the monthly stipend payment criteria in proposed Sec.
71.40(c)(4)(i)(A)(2)(i). As this term is proposed to be used in
multiple sections of part 71, and VA intends for this term to have the
same meaning when referenced throughout part 71, VA proposes to add a
definition for typically requires in Sec. 71.15.
VA proposes to add a definition stating that typically requires
means a clinical determination which refers to that which is generally
necessary. Cambridge Dictionary defines ``typically'' as ``in a way
that shows all the characteristics that you would expect from the
stated person, thing, or group.'' \3\ The Britannica Dictionary defines
``typically'' as ``generally or normally--used to say what normally
happens'' and ``in the usual way--used to describe what is normal or
expected of a certain place, person, situation, etc.'' \4\ VA's use of
``typically'' denotes frequency for purposes of proposed Sec.
71.20(a)(3)(i) and (iii) and for proposed Sec. 71.40(c)(4)(i)(A)(2)(i)
and would be consistent with these dictionary definitions. As frequency
occurs on a continuum, to further demonstrate where on the continuum
VA's proposed term typically requires would fall in comparison to other
terms of frequency, VA provides the below graphic. See also the visual
aid published at <a href="http://www.regulations.gov">www.regulations.gov</a> under RIN 2900-AR96.
---------------------------------------------------------------------------
\3\ Cambridge University Press & Assessment, 2023, <a href="https://dictionary.cambridge.org/dictionary/english/typically">https://dictionary.cambridge.org/dictionary/english/typically</a> (last visited
Feb. 8, 2024) (also defining ``typically'' as ``used when you are
giving an average or usual example of a particular thing'' and ``in
a way that shows the characteristics of a particular kind of person
or thing; or gives a usual example of a particular thing'').
\4\ The Britannica Dictionary, 2023, <a href="https://www.britannica.com/dictionary/typically">https://www.britannica.com/dictionary/typically</a> (last visited Feb. 8, 2024).
---------------------------------------------------------------------------
Figure 1--Typically Requires
[GRAPHIC] [TIFF OMITTED] TP06DE24.004
Additionally, like the definition of in the best interest in Sec.
71.15, VA's proposed definition of typically requires would make clear
that it is a clinical determination. This definition would allow VA to
consider each individual's unique functional needs, abilities, and
usual routines when making the clinical determination of whether the
criteria in proposed Sec. 71.20(a)(3)(i) and (iii) and proposed Sec.
71.40(c)(4)(i)(A)(2)(i) are met. Additional discussion on how VA
proposes to use the term typically requires is found in VA's discussion
on proposed changes to Sec. Sec. 71.20 and 71.40 below.
VA solicits comments from the public on all aspects of this
proposed rule. In particular, VA asks the following questions on
specific aspects of this proposal.
1. Please identify any similarly situated veterans or
servicemembers who may not have an IU rating but nonetheless should be
found to have a serious injury under the definition of that term in
Sec. 71.15 based on other VA ratings or other criteria.
2. VA has proposed a definition for the term typically requires
that, in part, refers to that which is generally necessary. What other
phrasing should VA consider as an alternative to generally necessary
and why? Are there other criteria with regard to frequency that should
be considered in defining typically requires?
3. Is there an alternative term other than typically requires that
would be better defined to mean that which is generally necessary? For
example, would the phrasing usually, most of the time, routinely, or
ordinarily requires be clearer than the phrasing typically requires?
4. What factors should VA consider when determining what is
generally necessary?
D. 38 CFR 71.20 Eligible Veterans and Servicemembers
Section 71.20(a) sets forth seven criteria for veterans and
servicemembers to be determined eligible for a Primary Family Caregiver
or Secondary Family Caregiver under part 71. In this rulemaking
proposal, VA proposes to make substantive revisions to only two of the
current criteria in Sec. 71.20(a): (1) the individual is in need of
personal care services for a minimum of six continuous months based on
an inability to perform an activity of daily living, or a need for
supervision, protection, or instruction (see Sec. 71.20(a)(3)); and
(2) the individual receives ongoing care from a primary care team or
will do so if VA designates a Family Caregiver (see Sec. 71.20(a)(7)).
VA also proposes to make technical edits to Sec. 71.20(a), as
described in more detail below. VA's discussions of proposed changes
include illustrative examples of how a veteran or servicemember could
meet the two referenced criteria; however, this does not guarantee
eligibility of the veteran or servicemember or caregiver applicant for
participation in PCAFC, particularly as all the other criteria in Sec.
71.20(a) would also have to be met, in addition to meeting other
requirements in part 71.
[[Page 97413]]
1. Section 71.20(a)(3)--Bases Upon Which the Individual May Be
Determined To Be in Need of Personal Care Services for a Minimum of Six
Continuous Months
Current Sec. 71.20(a)(3) requires that the individual be in need
of personal care services for a minimum of six continuous months based
on (i) an inability to perform an activity of daily living; or (ii) a
need for supervision, protection, or instruction. VA established these
criteria based on its interpretation of 38 U.S.C. 1720G(a)(2)(C)(i)
through (iii). 85 FR 13371-13372 (March 6, 2020). However, VA's use of
the term need for supervision, protection, or instruction, including
its definition, was invalidated by the court's decision in Veteran
Warriors, as explained in the above discussion on the proposed removal
of such term and definition from 38 CFR 71.15. As such, and to make
other changes to better clarify the three statutory bases upon which an
individual may be determined to be in need of personal care services in
38 U.S.C. 1720G(a)(2)(C)(i) through (iii), VA proposes to amend 38 CFR
71.20(a)(3) by revising the language in paragraphs (i) and (ii) and
adding a new paragraph (iii).
As proposed, Sec. 71.20(a)(3) would state the individual is in
need of personal care services for a minimum of six continuous months
based on any one of the following: (i) the individual typically
requires hands-on assistance to complete one or more ADL; (ii) the
individual has a frequent need for supervision or protection based on
symptoms or residuals of neurological or other impairment or injury; or
(iii) the individual typically requires regular or extensive
instruction or supervision to complete one or more ADL.
a. Proposed Sec. 71.20(a)(3)(i)--The Individual Typically Requires
Hands-On Assistance To Complete One or More ADL
As explained in the discussion of the definition of the term
inability to perform an ADL, VA proposes to remove such term and its
definition from Sec. 71.15 and address the statutory basis under 38
U.S.C. 1720G(a)(2)(C)(i) (that is, the individual is in need of
personal care services because of an inability to perform one or more
ADL) in proposed 38 CFR 71.20(a)(3)(i) for purposes of determining a
veteran's or servicemember's eligibility for PCAFC.
Therefore, VA proposes to revise Sec. 71.20(a)(3)(i) to remove the
current language of an inability to perform an activity of daily living
and replace it with the individual typically requires hands-on
assistance to complete one or more ADL. An individual who typically
requires hands-on assistance to complete one or more ADL would have an
inability to perform such ADL without such assistance, which would be
consistent with the criterion in 38 U.S.C. 1720G(a)(2)(C)(i). This
would include individuals who require assistance with some, or all of
the tasks associated with an ADL, thus permitting individuals who are
unable to contribute to the completion of the ADL to meet this
criterion. VA explains below how this proposed change would clarify and
differ from the current eligibility criterion in Sec. 71.20(a)(3)(i).
i. Hands-On Assistance
First, in determining whether an individual is in need of personal
care services under proposed Sec. 71.20(a)(3)(i), VA would consider
whether the individual typically requires ``hands-on'' assistance to
complete one or more ADL. VA would require ``hands-on'' assistance for
purposes of proposed paragraph (i), as this would be consistent with
how VA has interpreted and applied the term inability to perform an
ADL, (and remains consistent with 38 U.S.C. 1720G(a)(2)(C)(i)), for
purposes of determining whether a veteran or servicemember is in need
of personal care services on such basis. See 85 FR 46229, 46233, 46235
(July 31, 2020). In VA's July 31, 2020 Final Rule, VA noted that if an
eligible veteran is eligible for PCAFC because they meet the definition
of inability to perform an ADL, the in-person personal care services
required to perform an ADL would be hands-on care. Id. at 46229. This
is how VA has implemented this requirement since that final rule took
effect on October 1, 2020. Individuals who do not meet the ``hands-on''
requirement may still meet the requirement for being in need of
personal care services under current 38 CFR 71.20(a)(3) based on the
statutory text in 38 U.S.C. 1720G(a)(2)(C)(ii) or (iii)--even though
their needs are related to ADLs. See 85 FR 46235 (July 31, 2020). To
provide further clarity and remove uncertainty concerning the type of
assistance an individual must typically require in order to meet the
criterion in proposed 38 CFR 71.20(a)(3)(i), VA proposes to include the
words ``hands-on''.
By using the phrase ``assistance to complete'' in proposed Sec.
71.20(a)(3)(i), in reference to situations in which hands-on assistance
is typically required, it is not VA's intent to require any minimum
amount of contribution by the veteran or servicemember in completing
the ADL. If a caregiver performs an ADL entirely on behalf of the
veteran or servicemember (such as dressing and undressing or bathing a
veteran or servicemember who is unable to contribute to the completion
of such ADL because of a physical or cognitive disability), the veteran
or servicemember could still meet this proposed criterion.
In addition to being consistent with current practice, including
the words ``hands-on'' in proposed Sec. 71.20(a)(3)(i) would also make
clear a distinction between proposed Sec. 71.20(a)(3)(i), and proposed
Sec. 71.20(a)(3)(ii) and (iii), as proposed paragraph (iii) would set
forth an additional explicit basis upon which an individual can be
determined to be in need of personal care services related to an ADL,
even without a need for ``hands-on'' assistance with the performance of
one or more ADL.
ii. Removal of ``Each Time'' Requirement
Next, VA proposes to change the requirement that an individual must
require personal care services ``each time'' the veteran or
servicemember completes one or more ADL to be determined eligible for
PCAFC under the basis in Sec. 71.20(a)(3)(i). To do this, VA proposes
to modify the current language in Sec. 71.20(a)(3)(i) to remove
reference to the term inability to perform an ADL. In current Sec.
71.15, the definition of inability to perform an ADL means a veteran or
servicemember requires personal care services ``each time'' they
complete one or more ADL. Since VA proposes to remove the term
inability to perform an ADL and its definition from Sec. 71.15 and
instead interpret the statutory requirement in 38 U.S.C.
1720G(a)(2)(C)(i) in proposed 38 CFR 71.20(a)(3)(i), VA believes it is
important to acknowledge that VA's proposed revisions to Sec.
71.20(a)(3)(i) would not retain the ``each time'' requirement for
purposes of determining whether an individual typically requires hands-
on assistance to complete one or more ADL, as VA has found ``each
time'' to be too restrictive.
In establishing this requirement of ``each time'', VA believed that
specifying the frequency with which personal care services would be
needed (that is, ``each time'' the veteran or servicemember completes
one or more ADL) would establish a clear, objective standard that could
be consistently applied throughout PCAFC. See 85 FR 13360-13361 (March
6, 2020); 85 FR 46233 (July 31, 2020). It was also established to align
with VA's goal of focusing PCAFC on eligible veterans with moderate and
severe needs. Id.
[[Page 97414]]
However, VA received comments when it originally proposed the ``each
time'' requirement, which included concerns that the ``each time''
requirement would be too restrictive and may result in denial of
eligibility for some individuals with moderate and severe needs. Id. at
46232-46234. In the July 31, 2020 Final Rule, VA explained that if,
over time, VA found that the definition of inability to perform an ADL
was as restrictive as the commenters asserted it would be, VA would
adjust and revise the definition accordingly in a future rulemaking.
Id. at 46234.
Since that time, VA has continued to receive feedback from
stakeholders that the requirement of ``each time'' in the current
definition of the term inability to perform an ADL is too restrictive.
For example, this issue was raised by stakeholders that participated in
VA's roundtable listening session conducted on December 5, 2023. (See
written transcript of roundtable discussion available online at
<a href="http://www.regulations.gov">www.regulations.gov</a> under RIN 2900-AR96). VA agrees based on VA's
review of denied applications. Through exchanges with stakeholders,
including veterans, caregivers, VSOs, and members of Congress, and
reviews of de-identified PCAFC evaluations that have been completed, VA
identified instances of veterans with moderate or severe needs who
almost always require assistance with one or more ADL yet, because of
occasional episodes of independence, do not meet the current standard
of requiring personal care services ``each time'' the veteran completes
one or more ADL. This does not align with VA's intent to focus PCAFC on
individuals with moderate and severe needs. VA provides illustrative
examples below to showcase the restrictive nature of the ``each time''
requirement.
For example, a veteran may experience tremors and weakness due to
their disability and consequently, require hands-on assistance from
another individual when feeding and dressing on most occasions.
However, due to waxing and waning of such symptoms over the course of
an occasional day, this veteran can feed and dress themselves without
assistance from another individual when they are experiencing limited
symptoms. Such episodes in which the veteran experiences limited
symptoms are not common for the veteran's level of function, and the
reprieve of symptoms is infrequent. Because this veteran has occasional
episodes of independence to complete one or more ADL, the veteran does
not meet the current definition of inability to perform an ADL because
personal care services are not required ``each time'' they feed and
dress themselves.
Similarly, as another example, a veteran who usually requires
hands-on assistance with toileting and mobility may have occasional
days when the veteran, following a full night of rest, can perform each
of these ADL independently for a limited period of time in the morning.
However, as the day progresses, this veteran becomes fatigued and is
unable to sustain the level of exertion needed to independently perform
these ADL for the remainder of the day, thus requiring the assistance
of another individual. This veteran also does not meet the current
definition of inability to perform an ADL because they do not require
assistance ``each time'' they perform these ADL.
In these and similar illustrative examples, VA has found that the
``each time'' standard has excluded individuals from meeting the
requirement to be in need of personal care services based on an
inability to perform an ADL despite having what VA considers to be
moderate or severe needs. Such individuals are determined to not meet
the current definition of inability to perform an ADL because they have
episodes of independence that do not result in such individuals
requiring personal care services ``each time'' they perform an ADL and
they do not meet the requirement under current Sec. 71.20(a)(3)(i). VA
has thus determined that the requirement of ``each time'' in the
current definition of inability to perform an ADL is too restrictive.
VA acknowledges that when the ``each time'' requirement in the
definition of inability to perform an ADL was established, VA believed
that such an objective and clear frequency requirement was necessary to
create a consistent standard that could be operationalized across
PCAFC. 85 FR 46233 (July 31, 2020). However, VA no longer believes this
standard is necessary to create consistency when evaluating an
individual's inability to perform an ADL. This is because VA's process
for evaluating veterans and servicemembers under Sec. 71.20(a)(3)
includes comprehensive assessments that are able to identify specific
variability in a veteran's or servicemember's unique functional needs,
abilities, and usual routines. VA therefore asserts it is reasonable
and appropriate to propose a standard that is less strict than ``each
time'' in order to accommodate veterans and servicemembers with
moderate and severe needs who would otherwise be excluded from PCAFC.
As an alternative to this proposal, VA considered whether to
include a specific frequency requirement other than ``each time'', and
whether that should be a quantitative standard. VA recognizes the
importance of ensuring VA's interpretation of 38 U.S.C.
1720G(a)(2)(C)(i) in proposed 38 CFR 71.20(a)(3)(i) accounts for the
unique functional needs, abilities, and usual routines of individual
veterans and servicemembers who require hands-on assistance to complete
one or more ADL and decided not to propose a quantitative standard and
instead focus on what a veteran or servicemember typically requires. As
discussed in regard to proposed changes to Sec. 71.15, VA proposes to
add a definition stating that typically requires means a clinical
determination which refers to that which is generally necessary.
As identified by the Federal Circuit in Veteran Warriors, ``[t]here
is a statutory gap'' as to how often an individual must be unable to
perform an ADL under 38 U.S.C. 1720G(a)(2)(C)(i). See Veteran Warriors
at 1339. Previously, VA adopted the ``each time'' requirement to fill
that gap for purposes of interpreting and applying 38 U.S.C.
1720G(a)(2)(C)(i), and now, VA proposes to modify the requirement by
replacing it with typically requires in 38 CFR 71.20(a)(3)(i).
Inclusion of the term typically requires would address such questions
as how often a veteran or servicemember must be unable to perform an
ADL, how often the inability must be present, and how pervasive the
inability must be for purposes of establishing inability to perform an
ADL. Id.
In proposing to revise Sec. 71.20(a)(3)(i) to focus on what is
typically required by each veteran or servicemember rather than use
another quantitative standard, VA would avoid setting a specific
quantifiable threshold. VA acknowledges that in its July 31, 2020 Final
Rule VA stated it did not want to use a non-specific threshold (for
example, most or majority of time) for purposes of defining inability
to perform an ADL because using such thresholds would be vague,
subjective, arbitrary, difficult to quantify, and could lead to
inconsistencies. 85 FR 46233-46234 (July 31, 2020). However, VA now
believes using the term typically requires is appropriate because the
determination of whether a veteran or servicemember is in need of
personal care services based on an inability to perform an ADL is a
clinical determination that inherently accounts for the individual's
unique functional needs, abilities, and usual routines. A specific
quantifiable threshold that
[[Page 97415]]
applies equally to all individuals could potentially result in the
exclusion of some veterans and servicemembers with moderate and severe
needs from PCAFC as was the case with VA's implementation of the ``each
time'' requirement. This is because such a threshold would not provide
the flexibility that would be required to account for each individual's
unique functional needs, abilities, and usual routines in making the
determination of whether they are in need of personal care services.
iii. Implementation of Proposed Sec. 71.20(a)(3)(i)
A determination that a veteran or servicemember typically requires
hands-on assistance to complete one or more ADL under proposed Sec.
71.20(a)(3)(i) would be a clinical determination based on an assessment
of the veteran's or servicemember's unique functional needs, abilities,
and usual routines and take into consideration the tasks required to
complete the ADL. In making this clinical determination VA may
consider, for example, the frequency with which the ADL is completed,
the functions and tasks performed by the individual to complete the
ADL, and the frequency with which hands-on assistance from another
individual is needed to complete such ADL, as each of these can vary
from person to person.
A. Frequency of the Functions and Tasks Required To Complete an ADL
VA first must determine what functions and tasks are performed by
an individual in order to complete an ADL, as this can vary from person
to person. VA notes that requiring hands-on assistance only to complete
functions or tasks performed on an occasional basis that are not part
of the individual's usual self-care routine would not mean the veteran
or servicemember typically requires hands-on assistance to complete an
ADL. For example, one veteran may shave on a daily basis as part of
completing the ADL of grooming, while a different veteran who chooses
to maintain a full beard does not shave as part of their grooming
routine.
B. Frequency of Need for Hands-On Assistance
VA would not require assistance ``each time'' the veteran or
servicemember completes the ADL, as was explained above. Rather, VA
would assess how frequently hands-on assistance is needed in
conjunction with how often the ADL is completed. This would be a more
expansive basis than what VA applies today.
Failure to meet the proposed criterion in Sec. 71.20(a)(3)(i)
would not preclude individuals from being determined to be in need of
personal care services under another basis in Sec. 71.20(a)(3).
Veterans and servicemembers could also be determined to be in need of
personal care services based on proposed Sec. 71.20(a)(3)(ii) or (iii)
(that is, the individual has a frequent need for supervision or
protection based on symptoms or residuals of neurological or other
impairment or injury; or the individual typically requires regular or
extensive instruction or supervision to complete one or more ADL),
which are discussed below.
b. Proposed Sec. 71.20(a)(3)(ii)--The Individual Has a Frequent Need
for Supervision or Protection Based on Symptoms or Residuals of
Neurological or Other Impairment or Injury
Under current Sec. 71.20(a)(3)(ii), an individual may be
determined to be in need of personal care services for a minimum of six
continuous months based on a need for supervision, protection, or
instruction. As explained above, this criterion was intended to
implement the statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and
(iii) in a combined manner. However, the U.S. Court of Appeals for the
Federal Circuit invalidated this term and its definition in the Veteran
Warriors decision. Since the Veteran Warriors decision, in place of the
term need for supervision, protection, or instruction and its
definition in current Sec. 71.15, VA has applied the statutory
language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) when determining
whether a veteran or servicemember is in need of personal care services
under 38 CFR 71.20(a)(3)(ii).
VA proposes to update its regulations to align with VA's current
practice of interpreting the statutory criteria in 38 U.S.C.
1720G(a)(2)(C)(ii) and (iii) separately. To do so, VA proposes to
revise 38 CFR 71.20(a)(3)(ii) to align with how VA has implemented the
statutory criteria for 38 U.S.C. 1720G(a)(2)(C)(ii) (that is, a need
for supervision or protection based on symptoms or residuals of
neurological or other impairment or injury) as a result of the Veteran
Warriors decision. For purposes of interpreting 38 U.S.C.
1720G(a)(2)(C)(ii), VA proposes to revise 38 CFR 71.20(a)(3)(ii) by
replacing the language ``[a] need for supervision, protection, or
instruction'' with the language ``[t]he individual has a frequent need
for supervision or protection based on symptoms or residuals of
neurological or other impairment or injury''. This would be consistent
with the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii). However,
as previously discussed regarding 38 U.S.C. 1720G(a)(2)(C)(i), the
statutory language in section 1720G(a)(2)(C)(ii) does not include an
explicit frequency requirement; therefore, VA proposes to include the
phrase ``has a frequent need'' in proposed 38 CFR 71.20(a)(3)(ii) to
address that gap. Such term would be reflective of how VA has been
applying this statutory basis since the Veteran Warriors ruling.
Consistent with that, VA intends to apply common dictionary definitions
of the word ``frequent'', which refer to an action occurring
``repeatedly, ``habitually'', or ``on many occasions'', when
implementing this new criterion.\5\ VA discusses its proposed
implementation of this language in greater detail further below.
---------------------------------------------------------------------------
\5\ See Merriam-Webster Dictionary, 2023, <a href="https://www.merriam-webster.com/dictionary/frequent">https://www.merriam-webster.com/dictionary/frequent</a> (last visited Jul. 26, 2024); The
Britannica Dictionary, 2023, <a href="https://www.britannica.com/dictionary/frequent">https://www.britannica.com/dictionary/frequent</a> (last visited Jul. 26, 2024); and Oxford English
Dictionary, 2023, <a href="https://www.oed.com/search/dictionary/?scope=Entries&q=frequent">https://www.oed.com/search/dictionary/?scope=Entries&q=frequent</a> (last visited Jul. 26, 2024).
---------------------------------------------------------------------------
In implementing this proposed change, VA would continue to apply
the statutory criteria as it relates to the interpretation of
``supervision or protection'' and ``symptoms or residuals of
neurological or other impairment or injury'' as VA does in current
practice. VA discusses this interpretation below.
i. Supervision or Protection
The statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) does not
define supervision or protection. Therefore, VA has relied on common
definitions and uses of these terms to inform VA's interpretation of
this statutory provision. For instance, consistent with dictionary
definitions of the term, VA considers ``supervision'' to be critical
watching of an individual to provide oversight or directing (such as of
activities or actions).\6\ For the purposes of proposed 38 CFR
71.20(a)(3)(ii), supervision would not be limited to or dependent upon
the veteran's or servicemember's needs related to specific activities
or functions, which is in contrast to VA's interpretation of
``supervision'' under proposed Sec. 71.20(a)(3)(iii), as discussed in
more detail below. When VA evaluates a veteran or servicemember on the
basis of whether the individual has a frequent
[[Page 97416]]
need for supervision based on symptoms or residuals of neurological or
other impairment or injury, VA considers their overall need for
supervision in general. VA interprets the word ``protection'' to mean
keep, cover, or shield from harm. This is also consistent with common
definitions for such term.\7\
---------------------------------------------------------------------------
\6\ See Merriam-Webster Dictionary, 2023, <a href="https://www.merriam-webster.com/dictionary/supervision">https://www.merriam-webster.com/dictionary/supervision</a> (last visited Feb. 8, 2024); The
Britannica Dictionary, 2023, <a href="https://www.britannica.com/dictionary/supervision">https://www.britannica.com/dictionary/supervision</a> (last visited Feb. 8, 2024); and Oxford English
Dictionary, 2023, <a href="https://www.oed.com/search/dictionary/?scope=Entries&q=supervision">https://www.oed.com/search/dictionary/?scope=Entries&q=supervision</a> (last visited Feb. 8, 2024).
\7\ See Merriam-Webster Dictionary, 2023, <a href="https://www.merriam-webster.com/dictionary/protect">https://www.merriam-webster.com/dictionary/protect</a> (last visited Feb. 8, 2024); and The
Britannica Dictionary, 2023, <a href="https://www.britannica.com/dictionary/protection">https://www.britannica.com/dictionary/protection</a> (last visited Feb. 8, 2024).
---------------------------------------------------------------------------
VA considers the need for both supervision and protection when
evaluating the statutory criterion in 38 U.S.C. 1720G(a)(2)(C)(ii).
Although VA recognizes that the terms are distinct, VA does not believe
it is necessary in its determinations to parse out whether an
individual needs supervision, protection, or both under proposed 38 CFR
71.20(a)(3)(ii) because either one would satisfy this regulatory basis.
Additionally, making this distinction would prove challenging because
individuals who have a need for protection, generally also have a need
for supervision. Likewise, an individual who needs supervision may need
such supervision at times as a means of protection; however, at other
times, supervision may be needed in the absence of a need for
protection. When a caregiver takes action to protect a veteran or
servicemember from harm, they may do so in the course of also
overseeing (or supervising) that individual. For example, a veteran
with a history of hypervigilance and hallucinations and who acts upon
such hallucinations may need protection to support their safety during
hallucinations. In such instances, the caregiver must provide
supervision to identify whether protection is needed.
ii. Symptoms or Residuals of Neurological or Other Impairment or Injury
Next, VA describes its interpretation of the basis for such
supervision and protection, that is, symptoms or residuals of
neurological or other impairment or injury. Consistent with VA's
current practice, in evaluating and determining whether a veteran or
servicemember has a frequent need for supervision or protection based
on symptoms or residuals of neurological or other impairment or injury
under proposed Sec. 71.20(a)(3)(ii), VA would not have a discrete list
of symptoms or residuals of neurological or other impairment or injury
by which a veteran or servicemember may be determined eligible under
this criterion as these can vary by individual. As clinical practices
evolve over time, VA would not want to list in regulation specific
symptoms or residuals as doing so could unnecessarily limit VA's
ability to find individuals eligible under this criterion. However,
examples of symptoms and residuals of neurological or other impairment
or injury for which a veteran or servicemember may require supervision
or protection may include, but are not limited to, unmanaged impulse
control, command hallucinations, uncontrolled seizures, loss of
muscular control, or cognitive impairments.
VA does not currently have a discrete list of neurological or other
impairments or injuries that would make a veteran or servicemember
eligible under this criterion. See 85 FR 13363-13364 (March 6, 2020).
This is because individuals with similar impairments or injuries may
experience a wide variation of symptoms leading to a variety of
functional impacts. While VA does not propose to maintain a discrete
list of impairments or injuries in regard to this criterion, examples
of impairments or injuries for which symptoms or residuals may lead to
a veteran or servicemember typically requiring supervision or
protection may include, but are not limited to, traumatic brain injury,
mental health conditions, Parkinson's disease, dementia, and
neuromuscular disorders such as muscular dystrophy, multiple sclerosis,
or amyotrophic lateral sclerosis.
iii. Implementation of Proposed Sec. 71.20(a)(3)(ii)
While VA would consider whether an individual has a frequent need
for supervision or protection when evaluating whether an individual is
in need of personal care services on this basis, VA would not set forth
a specific quantitative requirement for the frequency with which a
veteran or servicemember may require supervision or protection other
than specifying that the need for supervision or protection is
frequent. VA has found that there is no uniform frequency of
individuals' need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury. The frequency
of need varies based on each individual's unique needs and depends on
severity of their symptomology.
Therefore, when implementing proposed Sec. 71.20(a)(3)(ii), VA
would consider how frequently a veteran or servicemember is in need of
personal care services under this basis. VA would consider how symptoms
manifest for each unique individual, whether their symptoms are well-
controlled, and whether the veteran or servicemember has a past pattern
or history of requiring supervision or protection because of such
symptomology. Although a past pattern or history of requiring
supervision or protection will be considered, VA notes that it is not
necessarily determinative of whether an individual would be determined
to meet proposed Sec. 71.20(a)(3)(ii), as such individual may not
continue to need supervision or protection on a frequent basis.
In requiring a ``frequent need'', VA can allow for variance in the
type of need and circumstances presented in each individual case, while
still maintaining a consistent standard. This approach differs from the
frequency proposed under 38 CFR 71.20(a)(3)(i) and (iii) (that is,
typically requires). This is because unlike the criteria in proposed
Sec. 71.20(a)(3)(i) and (iii), which focus on ADLs, the need for
supervision or protection based on symptoms or residuals of
neurological or other impairment or injury proposed in Sec.
71.20(a)(3)(ii) does not have a discrete list of needs or
circumstances. In this regard, determining what is typically required
for an individual would be impractical.
To illustrate how the requirement for a frequent need would be
applied, VA provides the following example. There may be two veterans
with the same diagnosis of multiple sclerosis who both have symptoms of
muscle weakness that require a caregiver to stay in close proximity and
intervene if the veteran stumbles, to minimize or prevent falls. In
this example, one veteran experiences muscle weakness on a daily, or
near daily, basis and has a history of multiple falls, resulting in a
daily or near daily need for supervision and/or protection by a
caregiver. The other veteran experiences occasional muscle weakness one
or two days per week for limited amounts of time following completion
of recommended strengthening exercises, resulting in an occasional need
for supervision or protection by a caregiver on these days. While these
two veterans have the same diagnosis and both experience the same
symptoms of muscle weakness, the former veteran may have a frequent
need for supervision and protection while the latter veteran may only
occasionally have such need. In the case of the second veteran in this
example, where the need for supervision or protection only occurs after
participating in their recommended strengthening exercises, the veteran
may not be considered to have a frequent need for supervision or
protection
[[Page 97417]]
because such need is infrequent and not generally necessary.
Additionally, under proposed 38 CFR 71.20(a)(3)(ii), VA would
consider whether an individual has a demonstrated past pattern or
history when determining whether the individual has a frequent need for
supervision or protection based on symptoms or residuals of
neurological or other impairment or injury. However, a past pattern or
history of needing supervision or protection is not necessarily
determinative of whether an individual would be determined to meet
proposed Sec. 71.20(a)(3)(ii), as such individual may not continue to
have a frequent need for supervision or protection.
VA looks forward to receiving public comments on this proposal.
Additionally, VA notes that if the changes under proposed Sec.
71.20(a)(3)(ii) become effective, VA would develop trainings and
guidance materials to support consistent evaluation of this standard.
c. Proposed Sec. 71.20(a)(3)(iii)--The Individual Typically Requires
Regular or Extensive Instruction or Supervision To Complete One or More
ADL
As previously explained, the current regulatory text in Sec.
71.20(a)(3)(ii) was intended to implement the statutory criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) in a combined manner by
establishing that an individual could be determined to be in need of
personal care services based on a need for supervision, protection, or
instruction. However, the Veteran Warriors decision, issued on March
25, 2022, invalidated VA's definition of need for supervision,
protection, or instruction. Since that decision, VA has been applying
the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in
place of the criterion in current 38 CFR 71.20(a)(3)(ii). VA discussed
its proposed interpretation of 38 U.S.C. 1720G(a)(2)(C)(ii) above and
proposes to further interpret 38 U.S.C. 1720G(a)(2)(C)(iii) in proposed
modifications to the regulations as discussed in more detail below.
For purposes of interpreting 38 U.S.C. 1720G(a)(2)(C)(iii) (that
is, a need for regular or extensive instruction or supervision without
which the ability of the veteran to function in daily life would be
seriously impaired), VA proposes to add 38 CFR 71.20(a)(3)(iii) to
state that the individual typically requires regular or extensive
instruction or supervision to complete one or more ADL. This proposed
interpretation of the statutory criteria deviates from current practice
in two ways. The first is VA's inclusion of the term typically
requires, which would specify how often a veteran or servicemember
would be in need of personal care services on this basis. The second is
that VA identified a need to further define its interpretation of the
statutory phrase ``without which the ability of the veteran to function
in daily life would be seriously impaired''. In proposed Sec.
71.20(a)(3)(iii), VA would interpret this statutory phrase to mean ``to
complete one or more ADL''. VA discusses its interpretation of the
statutory language and its proposed criterion in greater detail further
below.
i. Typically Requires
Including the term typically requires in proposed Sec.
71.20(a)(3)(iii) would specify the frequency with which an eligible
veteran would be in need of personal care services on this basis and
would align with VA's use of the term typically requires in proposed
Sec. 71.20(a)(3)(i), as discussed above. Although the words
``regular'' and ``daily'' in 38 U.S.C. 1720G(a)(2)(C)(iii) could be
viewed in isolation as referring to specific frequencies, for the
reasons explained below, VA does not believe that Congress intended
those words to establish any frequency requirement in section
1720G(a)(2)(C)(iii). Accordingly, VA proposes to include the term
typically requires in proposed 38 CFR 71.20(a)(3)(iii) to modify the
frequency requirement previously established in the definition of
supervision, protection, or instruction that referred to a ``daily
basis''.\8\
---------------------------------------------------------------------------
\8\ Even if not viewed as a statutory gap, the language in 38
U.S.C. 1720G(a)(2)(C)(iii) is at least ambiguous as to the frequency
with which an individual would need regular or extensive instruction
to be determined in need of personal care services on this basis.
For the reasons explained below, VA would resolve that ambiguity by
establishing in proposed 38 CFR 71.20(a)(3)(iii), that the
individual typically requires regular or extensive instruction or
supervision to meet this criterion.
---------------------------------------------------------------------------
ii. Regular or Extensive Instruction or Supervision
In 38 U.S.C. 1720G(a)(2)(C)(iii), Congress did not define what is
meant by regular or extensive instruction or supervision. In
implementing this statutory criterion, VA has relied upon common
definitions of the terms ``regular'', ``extensive'', ``instruction'',
and ``supervision'' to inform VA's interpretation. Today, ``regular''
has been applied to mean some amount of supervision or instruction
while ``extensive'' has generally been applied to mean a large amount
of supervision or instruction. Additionally, to date, VA has applied
common definitions of ``instruction'' and ``supervision'' when
implementing the statutory criteria under section 1720G(a)(2)(C)(iii).
VA now seeks to clarify and further define its interpretation of the
statutory criterion and use of these terms.
The term ``instruction'' commonly refers to the provision of
guidance or detailed information to complete or perform an action. It
is defined as ``something that someone tells you to do,'' as ``a
statement that describes how to do something; an order or command; the
action or process of teaching'' and ``that which is taught; knowledge
or authoritative guidance imparted by one person to another.'' \9\ VA's
use of the term ``instruction'' in proposed Sec. 71.20(a)(3)(iii)
would be consistent with these definitions, as VA would consider the
need for instruction to mean the need for detailed information is
necessary to perform an activity as VA does in current practice.
---------------------------------------------------------------------------
\9\ See Cambridge Dictionary, 2023, <a href="https://dictionary.cambridge.org/us/dictionary/english/instruction">https://dictionary.cambridge.org/us/dictionary/english/instruction</a> (last
visited Feb. 8, 2024); The Britannica Dictionary, 2023, <a href="https://www.britannica.com/dictionary/instruction">https://www.britannica.com/dictionary/instruction</a> (last visited Feb. 8,
2024); and Oxford English Dictionary, 2023, <a href="https://www.oed.com/search/dictionary/?scope=Entries&q=instruction">https://www.oed.com/search/dictionary/?scope=Entries&q=instruction</a> (last visited Feb. 8,
2024).
---------------------------------------------------------------------------
VA's interpretation of the meaning of ``supervision'' is addressed
in the discussion above regarding proposed 38 CFR 71.20(a)(3)(ii) (that
is, VA considers ``supervision'' to be critical watching of an
individual to provide oversight or directing (such as of activities or
actions)).\10\ While the term ``supervision'' has the same meaning in
proposed paragraphs (a)(3)(ii) and (iii), in proposed paragraph
(a)(3)(iii) supervision would be needed with respect to the veteran's
or servicemember's ability to complete one or more ADL, in contrast to
supervision under proposed paragraph (a)(3)(ii) which does not include
that same requirement.
---------------------------------------------------------------------------
\10\ See Merriam-Webster Dictionary, 2023, <a href="https://www.merriam-webster.com/dictionary/supervision">https://www.merriam-webster.com/dictionary/supervision</a> (last visited Sept. 24, 2023);
The Britannica Dictionary, 2023, <a href="https://www.britannica.com/dictionary/supervision">https://www.britannica.com/dictionary/supervision</a> (last visited Feb. 8, 2024); and Oxford
English Dictionary, 2023, <a href="https://www.oed.com/search/dictionary/?scope=Entries&q=supervision">https://www.oed.com/search/dictionary/?scope=Entries&q=supervision</a> (last visited Feb. 8, 2024).
---------------------------------------------------------------------------
Additionally, VA recognizes that the terms ``instruction'' and
``supervision'' are distinct terms. However, consistent with VA's
proposed approach with regard to supervision or protection under
proposed 38 CFR 71.20(a)(3)(ii) discussed above, VA does not believe it
is necessary in its determinations to parse out whether an individual
typically requires instruction, supervision, or both under proposed
[[Page 97418]]
Sec. 71.20(a)(3)(iii) because either one would satisfy this regulatory
basis.
Next, VA explains its proposed interpretations of ``regular''
instruction or supervision and ``extensive'' instruction or supervision
and the distinction between the two. The word ``regular'' can carry
several meanings, such as ``characterized by evenness, order, or
harmony in physical form, structure, or organization; arranged in or
constituting a constant or definite pattern; happening over and over
again at the same time or in the same way; happening or done very
often; normal or usual.'' \11\ Merriam Webster Dictionary describes
``regular'' as meaning, ``recurring, attending, or functioning at
fixed, uniform, or normal intervals; normal, standard; something of
average or medium size.'' \12\ It is this latter meaning, that is, that
which is something of average or medium size, which VA interprets to
have the most applicability for purposes of evaluating that which is
``regular'' instruction or supervision under proposed Sec.
71.20(a)(3)(iii). Notably, ``regular'' is commonly used to refer to a
standard or indicative of size, such as regular clothing size versus
petite or long, regular warranty versus extended warranty, regular
display versus extended display, or an amount, such as with regular
(basic) rates of pay.\13\ These common definitions and usages that
align with the term meaning a size or degree, inform VA's
interpretation of the statutory language and its use of the term
``regular'' in proposed Sec. 71.20(a)(3)(iii). This is also consistent
with how VA currently interprets this term when applying the statutory
criteria today.
---------------------------------------------------------------------------
\11\ See Cambridge Dictionary, 2023, <a href="https://dictionary.cambridge.org/us/dictionary/english/regular">https://dictionary.cambridge.org/us/dictionary/english/regular</a> (last visited
Feb. 8, 2024); The Britannica Dictionary, 2023, <a href="https://www.britannica.com/dictionary/regular">https://www.britannica.com/dictionary/regular</a> (last visited Feb. 8, 2024);
and Oxford English Dictionary, 2023, <a href="https://www.oed.com/search/dictionary/?scope=Entries&q=regular">https://www.oed.com/search/dictionary/?scope=Entries&q=regular</a> (last visited Feb. 8, 2024).
\12\ See Merriam-Webster Dictionary, 2023, <a href="https://www.merriam-webster.com/dictionary/regular">https://www.merriam-webster.com/dictionary/regular</a> (last visited Feb. 8, 2024).
\13\ See for example, Regular Military Compensation (RMC)
Calculator, Department of Defense, <a href="https://militarypay.defense.gov/calculators/rmc-calculator/">https://militarypay.defense.gov/calculators/rmc-calculator/</a> (Describing ``regular military
compensation'' as a basic level of compensation that every
servicemember receives.) (last visited Feb. 8, 2024).
---------------------------------------------------------------------------
VA's use of the term ``regular'' in proposed Sec. 71.20(a)(3)(iii)
aligns with common usage of the term relating to size or degree, such
as a standard amount. VA considered the use of ``regular'' in terms of
frequency. However, Congress did not include a frequency requirement in
either of the criteria found in 38 U.S.C. 1720G(a)(2)(C)(i) or (ii).
Therefore, VA does not believe that Congress intended to add a
frequency requirement in the context of only one basis that an
individual could be determined to be in need of personal care
services.\14\ As previously discussed, VA is proposing to establish a
consistent frequency requirement for the two statutory bases VA
proposes would apply to the need for personal care services to complete
ADLs through VA's use of the term typically requires in the proposed
criterion discussed here and the criterion in proposed 38 CFR
71.20(a)(3)(i) discussed above. As referenced in VA's discussion of
proposed Sec. 71.15, typically requires would be a clinical
determination that would take into consideration an individual's unique
functional needs, abilities, and usual routines when assessing the
frequency of the individual's need for personal care services.
---------------------------------------------------------------------------
\14\ One could argue that use of the word ``daily'' in section
1720G(a)(2)(C)(iii) refers to a frequency requirement and could
imply that a veteran or servicemember must experience the need each
day. However, in section 1720G(a)(2)(C)(iii) the word ``daily'' is
used to modify the word ``life'' and is better understood to refer
to the types of activities that the veteran or servicemember
ordinarily completes to function in the normal course of a day (such
as ADL). For this reason, VA does not read the word ``daily'' in
section 1720G(a)(2)(C)(iii) to contain a frequency requirement.
Additional discussion of VA's interpretation of the phrase ``ability
of the veteran to function in daily life would be seriously
impaired'' in section 1720G(a)(2)(C)(iii) is below.
---------------------------------------------------------------------------
Similarly, VA would continue to interpret the term ``extensive'' to
also account for size or degree but on a larger scale than regular. The
term ``extensive'' commonly refers to that which is large in size or
amount, having a wide or considerable extent, or extending over or
occupying a large surface or space, covering a large area or being a
large amount.\15\ Each of these meanings for extensive refers to a size
or degree. VA therefore equates ``extensive'' with a greater size or
higher degree of personal care services requiring instruction or
supervision than that of ``regular'' as explained below.
---------------------------------------------------------------------------
\15\ See Merriam-Webster Dictionary, 2023, <a href="https://www.merriam-webster.com/dictionary/extensive">https://www.merriam-webster.com/dictionary/extensive</a> (last visited Feb. 8, 2024); The
Britannica Dictionary, 2023, <a href="https://www.britannica.com/dictionary/extensive">https://www.britannica.com/dictionary/extensive</a> (last visited Feb. 8, 2024); and Oxford English
Dictionary, 2023, <a href="https://www.oed.com/search/dictionary/?scope=Entries&q=extensive">https://www.oed.com/search/dictionary/?scope=Entries&q=extensive</a> (last visited Feb. 8, 2024).
---------------------------------------------------------------------------
VA interprets the terms regular (something of average or medium
size) and extensive (that which is large in size), to reflect different
points along a spectrum. VA interprets this difference in size or
degree to reflect a distinction in the size or degree of personal care
services required by the veteran or servicemember. This means that a
regular need for instruction or supervision is of a lower size or
degree than an extensive need for instruction or supervision.
Using this proposed standard, if adopted as final, when applying
the criterion in proposed 38 CFR 71.20(a)(3)(iii), VA would interpret
the need for extensive instruction or supervision to mean that such
instruction or supervision is required throughout the performance of
the activity; hence the personal care services (that is, instruction or
supervision) required to complete the activity would be of a large size
or degree. In contrast, VA would interpret the need for regular
instruction or supervision to mean such personal care services are only
needed to complete a portion of the activity. Thus, VA would consider
``regular'' to refer to a lesser size or degree of instruction or
supervision than that of ``extensive''.
Although VA interprets ``regular'' and ``extensive'' to reflect
different sizes or degrees of personal care services required by the
veteran or servicemember, having either a ``regular'' or ``extensive''
need for instruction or supervision to complete one or more ADL would
satisfy the criterion in proposed Sec. 71.20(a)(3)(iii). This is
consistent with VA's proposed approach with regard to supervision or
protection under proposed Sec. 71.20(a)(3)(ii) and instruction or
supervision under Sec. 71.20(a)(3)(iii) discussed above. However, the
distinction between ``regular'' and ``extensive'' would be relevant to
determinations under proposed Sec. 71.40(c)(4)(A)(2)(i) regarding
stipend level determinations, as discussed further below.
iii. Ability To Function in Daily Life Would Be Seriously Impaired
Finally, in proposed 38 CFR 71.20(a)(3)(iii), VA also proposes to
interpret ``without which the ability of the veteran to function in
daily life would be seriously impaired'' in 38 U.S.C.
1720G(a)(2)(C)(iii) to mean that such individual typically requires
regular or extensive instruction or supervision ``to complete one or
more ADL''. This is a deviation from current practice as currently VA
may include other activities or functions in addition to ADL when
applying this statutory criterion as is explained below. VA believes it
is reasonable to interpret ADL as the ``ability of the veteran to
function in daily life'' contemplated in 38 U.S.C. 1720G(a)(2)(C)(iii).
Activities or functions other than ADL for which
[[Page 97419]]
veterans and servicemembers with moderate or severe needs may be in
need of personal care services could be captured under the basis
proposed in 38 CFR 71.20(a)(3)(ii) (that is, the individual has a
frequent need for supervision or protection based on symptoms or
residuals of neurological or other impairment or injury). Therefore,
proposed 38 CFR 71.20(a)(3)(iii) would refer to instruction or
supervision to complete one or more ADL rather than repeating the
verbiage in 38 U.S.C. 1720G(a)(2)(C)(iii).
As VA explained above regarding the term ``regular'' in section
1720G(a)(2)(C)(iii), VA does not believe Congress intended the term
``daily'' in such section to establish a frequency requirement--
especially one more restrictive than would apply under clauses (i) and
(ii) of section 1720G(a)(2)(C). The statute does not say that the
veteran or servicemember would have a daily need for regular or
extensive instruction or supervision. Rather, it says that without such
regular or extensive instruction or supervision, the ability to
``function in daily life would be seriously impaired.'' In this
context, VA interprets ``function in daily life'' to align with VA's
proposed definition of ADL in 38 CFR 71.15. In proposed Sec. 71.15,
ADL would be defined, in part, as the functions or tasks for self-care
usually performed in the normal course of a day. VA believes this is
consistent with the language 38 U.S.C. 1720G(a)(2)(C)(iii) concerning
functioning in daily life, as ADL are typically performed on a daily
basis. However, similar to VA's discussion on proposed 38 CFR
71.20(a)(3)(i) and the proposed definition of ADL in Sec. 71.15, VA
would not require that the ADL with which the individual requires
regular or extensive instruction or supervision be performed on a daily
basis. ADL often occur on a daily basis, but not always (for example,
bathing). For purposes of this criterion, VA would apply the proposed
definition of ADL in 38 CFR 71.15, and the term typically requires
would set forth the applicable frequency of need. VA explains its
rationale for this interpretation in more detail below.
In determining whether the ability of the veteran or servicemember
to function in daily life would be seriously impaired for purposes of
38 U.S.C. 1720G(a)(2)(C)(iii), VA contemplated what other essential
functions or activities, beyond or instead of ADL, might be considered
functions in daily life that would be seriously impaired without
regular or extensive instruction or supervision under proposed 38 CFR
71.20(a)(3)(iii). Specifically, VA considered activities caregivers
commonly assist veterans with beyond ADL. Such activities include but
are not limited to meal preparation, shopping for essential needs,
managing finances, housework, and coordinating medical care.\16\ VA
does not believe Congress intended to capture such activities under 38
U.S.C. 1720G(a)(2)(C)(iii) for the reasons discussed below.
---------------------------------------------------------------------------
\16\ Rajeev Ramchand, et al., Hidden Heroes: America's Military
Caregivers. Santa Monica, CA: RAND Corporation (2014), pages 54-56,
available at <a href="https://www.rand.org/pubs/research_reports/RR499.html">https://www.rand.org/pubs/research_reports/RR499.html</a>.
---------------------------------------------------------------------------
First, and most noteworthy, the phrasing of this criterion in 38
U.S.C. 1720G(a)(2)(C)(iii) implies the veteran or servicemember is the
individual who performs the activity. To have a need for regular or
extensive instruction or supervision without which the ability to
function in daily life would be seriously impaired suggests that the
veteran or servicemember must be capable of performing some activity to
function in daily life with the provision of such instruction or
supervision. This means that if a veteran or servicemember is not
capable of performing such activity because that veteran or
servicemember is physically or cognitively incapable of doing so, and
no amount of instruction or supervision would enable that veteran or
servicemember to perform that activity, such veteran or servicemember
would not qualify under this basis. This means an individual who may
have a greater need, that is, who requires another person to complete
the activity necessary for functioning in daily life in its entirely or
on behalf of the veteran, would not qualify under this basis, while an
individual who can complete the activity with assistance (instruction
or supervision) could qualify.\17\
---------------------------------------------------------------------------
\17\ Note that the individual with a greater need may qualify
under a separate criterion under proposed 38 CFR 71.20(a)(3)(i) or
(ii) and the failure to qualify under this basis in Sec.
71.20(a)(3)(iii) would not mean that an individual is necessarily
ineligible for PCAFC.
---------------------------------------------------------------------------
Second, VA does not believe Congress intended to include activities
classified as instrumental activities of daily living (IADL) such as
meal preparation, shopping for essential needs, managing finances,
housework, or coordinating medical care within the criterion in 38
U.S.C. 1720G(a)(2)(C)(iii) because such activities are those that may
be completed entirely by another individual without the veteran's or
servicemember's presence or involvement. Therefore, if these activities
are not performed by the veteran or servicemember either by choice or
inability, and are instead completed by another individual, the
veteran's or servicemember's functioning in daily life would not be
seriously impaired--with or without instruction or supervision in
performing such activities, as they do not perform the activity. This
would not mean that individuals who are incapable of performing or who
otherwise need assistance with these activities would be excluded from
PCAFC. Such individuals may still be in need of personal care services
based on meeting the other criteria under proposed Sec. 71.20(a)(3).
Therefore, ADL are the only activities VA identified for which the
ability of the veteran or servicemember to function in daily life would
be seriously impaired in the absence of regular or extensive
instruction or supervision and that pursuant to this interpretation,
the criterion in proposed Sec. 71.20(a)(3)(iii) would not unduly
disadvantage one group over another. Furthermore, in contrast to the
other functions or activities VA considered, ADL cannot be done without
the veteran's or servicemember's presence or involvement. The veteran's
or servicemember's physical presence is necessary for the ADL to be
completed because the ADL that is completed is performed on, or
directly impacts, the veteran's body. Thus, VA finds it appropriate to
interpret 38 U.S.C. 1720G(a)(2)(C)(iii) to mean the individual
typically requires regular or extensive instruction or supervision to
complete one or more ADL. While there are indeed other activities which
could result in a veteran's or servicemember's ability to function in
daily life being seriously impaired that are not related to ADL, such
as but not limited to a veteran or servicemember who requires
supervision due to frequent falls, or a veteran or servicemember who
requires instruction or supervision to properly self-administer
medications, such needs could be captured under proposed 38 CFR
71.20(a)(3)(ii). An illustrative example is provided below when VA
addresses multiple bases for being determined to be in need of personal
care services.
Although VA did not identify any other life activities or functions
that would meet the statutory language beyond that which are ADL and
which are not already covered under the other bases (that is, a need
for hands-on assistance or a need for regular or extensive supervision
or instruction to complete one or more ADL), VA specifically requests
comments on this topic from the public on whether there are certain
IADL, or other activities or functions in daily life that VA should
consider for purposes of determining that an individual is in need of
personal
[[Page 97420]]
care services under 38 U.S.C. 1720G(a)(2)(C)(iii) and proposed 38 CFR
71.20(a)(3)(iii).
iv. Implementation of Proposed Sec. 71.20(a)(3)(iii)
Similar to VA's discussions above regarding proposed 38 CFR
71.20(a)(3)(i), in evaluating whether the individual typically requires
regular or extensive instruction or supervision to complete one or more
ADL should this proposed regulation text become final, VA would
consider the instruction or supervision that is generally necessary
when the individual is completing one or more ADL. In determining if an
individual typically requires regular or extensive instruction or
supervision to complete one or more ADL, VA would consider for each
individual, factors such as how often the ADL is completed as well as
the frequency with which instruction or supervision is needed to
complete such ADL. What is typically required would be a clinical
determination based on an assessment of the veteran's or
servicemember's needs and would take into consideration things like the
individual veteran's or servicemember's unique functional needs,
abilities, usual routines, and the tasks required to be able to
complete the ADL.
d. Eligibility Under Multiple Proposed Bases
Under VA's proposed interpretation of 38 CFR 71.20(a)(3)(i) through
(iii), some veterans and servicemembers may be determined to be in need
of personal care services based on more than one criterion. This means
that a veteran or servicemember may be determined to be in need of
multiple types of personal care services (that is, hands-on assistance
with ADL, supervision or protection, and/or instruction or
supervision). For example, while both proposed Sec. 71.20(a)(3)(i) and
(iii) would require a veteran or servicemember to typically require
personal care services with respect to one or more ADL, the type of
personal care services that would be required by the veteran to satisfy
each proposed criterion differ. Under proposed Sec. 71.20(a)(3)(i),
the individual would typically require hands-on assistance, and under
proposed Sec. 71.20(a)(3)(iii), the individual would typically require
regular or extensive instruction or supervision, which VA would
consider to be something other than hands-on assistance. For example, a
veteran may typically require hands-on assistance with bathing and also
typically require regular or extensive instruction for dressing. In
such instance, the veteran may meet both proposed Sec. 71.20(a)(3)(i)
and (iii). This is just one example; however, an individual could be
determined to be in need of personal care services based on meeting
various combinations of the criteria in proposed Sec. 71.20(a)(3) such
as meeting the criterion in proposed Sec. 71.20(a)(3)(i) and (ii) or
meeting all three criteria in proposed Sec. 71.20(a)(3)(i) through
(iii).
2. Section 71.20(a)(7)--Ongoing Care From a Primary Care Team
Current Sec. 71.20(a)(7) requires that the individual receives
ongoing care from a primary care team or will do so if VA designates a
Family Caregiver. VA proposes to revise this paragraph to require that
the individual receives ongoing care from a primary care team or will
do so within 120 days of the date VA designates a Family Caregiver. VA
would further propose to state in this paragraph that if the individual
is unable to receive such care due, at least in part, to an event or
action within VA's control, VA may extend this 120-day period.
As explained in VA's 2011 IFR and 2015 Final Rule implementing
PCAFC, the current requirement to receive ongoing care in Sec.
71.20(a)(7) is necessary to enable VA to perform statutorily required
functions, including documenting findings related to the delivery of
personal care services and ensuring appropriate follow-up. See 76 FR
26151 (May 5, 2011) and 80 FR 1363-1364 (January 9, 2015) (citing 38
U.S.C. 1720G(a)(9)).
As proposed, VA would continue to require that the individual
receives ongoing care from a primary care team or will do so if VA
designates a Family Caregiver. However, VA proposes to add a timeframe,
specifically, within 120 days of the date VA designates a Family
Caregiver, within which the individual must do so. Requiring the
individual to receive ongoing care from a primary care team within a
specified time frame would enable VA to ensure that it continues to
provide appropriate follow-up and perform statutorily mandated
functions within a reasonable amount of time following designation of a
Family Caregiver, as described above. This is especially important for
those individuals who are not already receiving ongoing care from a
primary care team, as that could result in delayed access to necessary
care, including supports and services, which could lead to potentially
unsafe situations.
VA believes that allowing for 120 days to receive such care is a
reasonable amount of time to schedule and receive care from a primary
care team following VA's designation of a Family Caregiver.
Furthermore, it would align with the timing within which VA would
conduct the first wellness contact, which is generally conducted 120
days after approval. See 38 CFR 71.40(b)(2). Wellness contacts include
but are not limited to a review of the eligible veteran's well-being
and allow VA the opportunity to identify and provide any additional
support, services, or referrals for services needed by the eligible
veteran or Family Caregiver. See 85 FR 13380 (March 6, 2020).
Additionally, while eligible veterans and Family Caregivers may request
additional supports and services at any time, such requests are often
made and discussed during wellness contacts. Ensuring the eligible
veteran is receiving ongoing care from a primary care team within 120
days of the date VA designates a Family Caregiver would avoid delay in
the eligible veteran obtaining needed services.
Pursuant to proposed paragraph (a)(7), VA would also have the
discretion to extend this time period if the individual is unable to
receive ongoing care from a primary care team due, at least in part, to
an event or action within VA's control. While VA anticipates an
individual who seeks to receive care from a primary care team will be
able to receive such care within 120 days, VA recognizes there may be
extenuating circumstances in which receipt of such care may take longer
than 120 days. This provision, as proposed, would continue to allow for
some flexibility in such instances.
3. Section 71.20(b) and (c)--Legacy Applicants and Legacy Participants
Currently, under paragraphs (b) and (c) of Sec. 71.20, for five
years beginning on October 1, 2020, a veteran or servicemember is
eligible for a Primary or Secondary Family Caregiver under part 71 if
they are a legacy applicant or legacy participant. As discussed earlier
in this rulemaking, VA proposes to extend this transition period for
the legacy cohort. To provide for this additional period, VA proposes
to amend Sec. 71.20(b) and (c).
First, VA proposes to amend Sec. 71.20(b) and (c) by removing the
phrase ``For five years beginning on October 1, 2020'' and adding in
its place, the phrase ``Beginning on October 1, 2020 through [18 months
after EFFECTIVE DATE OF FINAL RULE]''. Additionally, VA would replace
``Primary or Secondary Family Caregiver'' with ``Primary Family
Caregiver or Secondary Family Caregiver'' to reference those terms as
they are defined in Sec. 71.15. Finally, VA
[[Page 97421]]
would replace the phrase ``he or she'' with ``veteran or
servicemember'' to conform to VA's goal to ensure its regulations are
gender neutral.
As proposed, paragraph (b) would state beginning on October 1, 2020
through [18 months after EFFECTIVE DATE OF FINAL RULE], a veteran or
servicemember is eligible for a Primary Family Caregiver or Secondary
Family Caregiver under this part if the veteran or servicemember is a
legacy participant. Proposed paragraph (c) would state beginning on
October 1, 2020 through [18 months after EFFECTIVE DATE OF FINAL RULE],
a veteran or servicemember is eligible for a Primary Family Caregiver
or Secondary Family Caregiver under this part if the veteran or
servicemember is a legacy applicant.
VA solicits comments from the public on all aspects of this
proposed rule. In particular, VA asks the following questions on
specific aspects of this proposal.
1. What activities or tasks in addition to or other than ADL should
VA consider when determining whether a veteran or servicemember has a
need for regular or extensive instruction or supervision without which
the ability of the veteran to function in daily life would be seriously
impaired?
2. VA has explained VA's interpretation of the words ``regular''
and ``extensive'' instruction or supervision. How else might
``regular'' be distinguished from ``extensive'' instruction or
supervision?
3. As explained above, VA would not set forth a specific
quantitative requirement for the frequency with which a veteran or
servicemember may require supervision or protection other than
specifying that the individual has a frequent need for supervision or
protection. This is because the need for supervision or protection is
not limited to a discrete list of activities or circumstances. VA has
found that there is no uniform frequency of individuals' need for
supervision or protection based on symptoms or residuals of
neurological or other impairment or injury. The frequency of need
varies based on each individual's unique needs and depends on severity
of their symptomology. Is there a different frequency standard VA
should consider, and if so, what is that standard?
E. 38 CFR 71.25 Approval and Designation of Primary Family Caregivers
and Secondary Family Caregivers
Section 71.25 describes the process for approval and designation of
Primary Family Caregivers and Secondary Family Caregivers. As described
below, VA proposes to amend Sec. 71.25(a) and (b) by revising certain
terminology, restructuring certain language, and adding additional
language to address application and eligibility requirements.
1. Section 71.25(a)--Application Requirement
Current Sec. 71.25(a) explains the requirement for submission of a
joint application for approval and designation of a Primary Family
Caregiver or Secondary Family Caregiver. In current Sec. 71.25(a)(1),
VA requires individuals who wish to be considered for designation by VA
as Primary Family Caregivers or Secondary Family Caregivers to submit a
joint application, along with the veteran or servicemember. Individuals
interested in serving as Family Caregivers must be identified as such
on the joint application, and no more than three individuals may serve
as Family Caregivers at one time for an eligible veteran, with no more
than one serving as the Primary Family Caregiver and no more than two
serving as Secondary Family Caregivers.
VA proposes to add a paragraph to Sec. 71.25(a)(1) to address
instances of a Secondary Family Caregiver seeking designation as the
Primary Family Caregiver and would reorganize Sec. 71.25(a)(1) as a
result. As proposed, Sec. 71.25(a)(1) would state that individuals who
wish to be considered for designation by VA as Primary Family
Caregivers or Secondary Family Caregivers must submit a joint
application, along with the veteran or servicemember. However, VA would
add two paragraphs to proposed Sec. 71.25(a)(1).
Proposed Sec. 71.25(a)(1)(i) would consist of the second sentence
of current paragraph Sec. 71.25(a)(1) without change. Proposed Sec.
71.25(a)(1)(ii) would state a currently approved Secondary Family
Caregiver for the eligible veteran may apply for designation as the
Primary Family Caregiver by submitting a new joint application along
with the eligible veteran.
VA proposes to add Sec. 71.25(a)(1)(ii) to clarify that the joint
application requirement still applies when an individual who is
currently serving as a Secondary Family Caregiver wishes to be
designated as the Primary Family Caregiver. If a Primary Family
Caregiver's designation is revoked, they are discharged from PCAFC, or
if the Primary Family Caregiver's revocation or discharge is pending,
then the eligible veteran and their approved and designated Secondary
Family Caregiver may want the Secondary Family Caregiver to be approved
and designated as the Primary Family Caregiver. VA's current practice
is to require that the Secondary Family Caregiver submit a new joint
application, along with the eligible veteran. VA would continue with
its current practice as it ensures the statutory requirements in 38
U.S.C. 1720G(a)(7) are met, including the requirement in section
1720G(a)(7)(B)(iii), that the eligible veteran consents to VA's
designation of the individual as the Primary Family Caregiver for the
eligible veteran. By submitting a new joint application, both the
eligible veteran and the individual applying as the Primary Family
Caregiver make their intentions known and it ensures that both parties
are seeking the change in designation. Therefore, new proposed 38 CFR
71.25(a)(1)(ii) would state a currently approved Secondary Family
Caregiver for the eligible veteran may apply for designation as the
Primary Family Caregiver by submitting a new joint application along
with the eligible veteran.
Although this is not a proposed change, it is important to note
that if the eligible veteran is a legacy participant or legacy
applicant and a new joint application is received by VA on or after
October 1, 2020 that results in approval and designation of the same or
a new Primary Family Caregiver, the eligible veteran would no longer be
considered a legacy participant or legacy applicant as those terms are
defined in 38 CFR 71.15. See 85 FR 13375-13376 (March 6, 2020).
VA also proposes to amend Sec. 71.25(a)(2)(i) to address
evaluation requirements when a current Secondary Family Caregiver seeks
designation as a Primary Family Caregiver. Pursuant to current Sec.
71.25(a)(2)(i), upon receiving a joint application, VA (in
collaboration with the primary care team to the maximum extent
practicable) will perform the evaluations required to determine the
eligibility of the applicants under part 71, and if eligible, determine
the applicable monthly stipend amount under Sec. 71.40(c)(4). See
Sec. 71.25(a)(2)(i). Notwithstanding that, VA will not evaluate a
veteran's or servicemember's eligibility under Sec. 71.20 as part of
the application process when a joint application is received seeking to
designate a Secondary Family Caregiver for an eligible veteran who has
a designated Primary Family Caregiver. Id.
VA proposes to add an additional exception when it would not
evaluate a veteran's or servicemember's eligibility under Sec. 71.20
as part of the application process and proposes to reorganize
[[Page 97422]]
Sec. 71.25(a)(2)(i) as a result. VA proposes to revise Sec.
71.25(a)(2)(i) by adding the phrase ``except as provided in paragraphs
(a)(2)(i)(A) and (B) of this section,'' in the first sentence and
adding new paragraphs (A) and (B). In proposed Sec. 71.25(a)(2)(i), VA
would refer to the ``monthly stipend payment'' instead of the term
``monthly stipend amount'' that appears in the first sentence of
current Sec. 71.25(a)(2)(i). This proposed change would ensure
consistency with terminology used elsewhere in part 71. VA also
proposes to move part of the last sentence in current Sec.
71.25(a)(2)(i) regarding when a joint application is received seeking
to designate a Secondary Family Caregiver for an eligible veteran who
already has a designated Primary Family Caregiver to new paragraphs (A)
and (A)(1). In addition to reorganizing that language into a new
paragraph (a)(2)(i)(A) and paragraph (A)(1), VA would add ``as part of
the application process'', change ``add'' to ``designate'', and add
``already''. These proposed edits are intended to be non-substantive
technical changes that would further clarify this provision. VA
proposes no other changes to that language.
VA also proposes to add new paragraph Sec. 71.25(a)(2)(i)(A)(2) to
address situations in which a current Secondary Family Caregiver seeks
to change their designation to a Primary Family Caregiver. Under
proposed Sec. 71.25(a)(2)(i)(A)(2), VA would not reevaluate an
eligible veteran under Sec. 71.20 when an eligible veteran seeks to
designate a current Secondary Family Caregiver for the eligible veteran
as the Primary Family Caregiver for that same eligible veteran so long
as the eligible veteran has already been determined to meet the
eligibility criteria found in current Sec. 71.20(a) or proposed Sec.
71.20(a). In proposing this change, VA seeks to eliminate unnecessary
evaluations of eligible veterans while also ensuring that VA approves
and designates a Primary Family Caregiver only for a veteran or
servicemember who has been determined to meet PCAFC eligibility
criteria in Sec. 71.20(a). In proposed Sec. 71.25(a)(2)(i)(A)(2), VA
would reference the Sec. 71.20(a) criteria that would be in effect as
of the effective date of this proposed rulemaking, if adopted, as well
as the current Sec. 71.20(a) criteria (which may have included the
statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place
of the definition of need for supervision, protection, or instruction).
This is because, those who have been determined to meet the eligibility
criteria in current Sec. 71.20(a) would also meet the eligibility
criteria in proposed Sec. 71.20(a). Instead of evaluating eligibility
under Sec. 71.20(a) when a joint application is received to change the
Secondary Family Caregiver to Primary Family Caregiver, VA proposes to
rely on its most recent evaluation of the personal care needs of the
eligible veteran to inform the determination of the Secondary Family
Caregiver's ability to serve in the role of Primary Family Caregiver,
and if eligible, the monthly stipend payment the Primary Family
Caregiver would be eligible to receive as set forth in proposed
revisions to Sec. 71.40(c)(4)(i)(A). This most recent evaluation of
the personal care needs of the eligible veteran would have included the
Family Caregiver's assessment of the needs and limitations of the
eligible veteran to the extent required by 38 U.S.C.
1720G(a)(3)(C)(iii)(I). In this scenario, re-evaluation of the eligible
veteran would be unnecessary. However, at any time after the Secondary
Family Caregiver transitions to being approved and designated as the
Primary Family Caregiver, the eligible veteran or Primary Family
Caregiver may request a reassessment in writing pursuant to proposed
Sec. 71.30(c), which is discussed below.
As proposed, Sec. 71.25(a)(2)(i) would state upon receiving such
application, except as provided in paragraphs (a)(2)(i)(A) and (B) of
Sec. 71.25, VA (in collaboration with the primary care team to the
maximum extent practicable) will perform the evaluations required to
determine the eligibility of the applicants under part 71, and if
eligible, determine the applicable monthly stipend payment under Sec.
71.40(c)(4). Proposed Sec. 71.25(a)(2)(i)(A) would state VA will not
evaluate a veteran's or servicemember's eligibility under Sec. 71.20
as part of the application process when: (1) A joint application is
received seeking to designate a Secondary Family Caregiver for an
eligible veteran who already has a designated Primary Family Caregiver;
or (2) A joint application is received that seeks to change the
designation of a current Secondary Family Caregiver for an eligible
veteran to designation as the Primary Family Caregiver for that same
eligible veteran so long as the eligible veteran has already been
determined to meet the eligibility criteria under proposed Sec.
71.20(a) or Sec. 71.20(a) (2021) (which may have included the
statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place
of the criterion in Sec. 71.20(a)(3)(ii)).
Additionally, VA proposes to add new Sec. 71.25(a)(2)(i)(B) to
indicate that the required evaluations for Family Caregiver applicants
found in Sec. 71.25 may not all be required when a current approved
Secondary Family Caregiver applies to be designated as the Primary
Family Caregiver for the same eligible veteran. Proposed Sec.
71.25(a)(2)(i)(B) would state upon receipt of a joint application that
seeks to designate a current Secondary Family Caregiver as the Primary
Family Caregiver for the same eligible veteran, VA will determine which
evaluations under Sec. 71.25 are necessary to assess the individual's
eligibility as the Primary Family Caregiver. VA proposes this new
paragraph as VA may not require re-evaluation of each eligibility
criteria for such individuals, as those serving as a Secondary Family
Caregiver for an eligible veteran would have already been determined to
meet the eligibility requirements found in Sec. 71.25. The individual
designated as a Secondary Family Caregiver would have already completed
caregiver training and demonstrated the ability to carry out the
specific personal care services, core competencies, and additional care
requirements needed by the eligible veteran. For these reasons, VA
believes that a more limited evaluation may be warranted to determine
eligibility of a current Secondary Family Caregiver to serve as the
Primary Family Caregiver.
While VA is not proposing to amend Sec. 71.40(d) regarding the
effective date of PCAFC benefits, VA notes that new benefits for
Secondary Family Caregivers who are subsequently designated as a
Primary Family Caregiver would become effective pursuant to Sec.
71.40(d). This would mean that in the event a Secondary Family
Caregiver applies for and is designated as the Primary Family Caregiver
for the same eligible veteran, additional benefits exclusive to the
role of Primary Family Caregiver, such as the monthly stipend, would
become effective pursuant to Sec. 71.40(d) requirements.
Current Sec. 71.25(a)(2)(ii) explains that individuals who apply
to be Family Caregivers must complete all necessary eligibility
evaluations (along with the veteran or servicemember), education and
training, and the initial home-care assessment (along with the veteran
or servicemember) so that VA may complete the designation process no
later than 90 days after the date the joint application was received by
VA. Current Sec. 71.25(a)(2)(ii) further explains that if such
requirements are not completed within 90 days from the date the joint
application is received by VA, the joint application will be denied,
and a new joint application will be required. VA may extend the 90-day
period based on
[[Page 97423]]
VA's inability to complete the eligibility evaluations, provide
necessary education and training, or conduct the initial home-care
assessment, when such inability is solely due to VA's action.
VA has had instances in which VA has extended the 90-day timeline
based on VA's inability to approve and designate a Family Caregiver
solely because of actions taken or not taken by VA. However, VA has
found that such inability is rarely because of one discrete event where
responsibility for the delay is easily identified and attributed to VA.
More often, VA has experienced instances when there may be an initial
delay in VA scheduling an evaluation, for example, and because of this
delay the veteran (or servicemember) or Family Caregiver applicant may
be delayed in completing other requirements, or vice versa. VA proposes
to provide flexibility to VA to extend the 90-day period rather than
deny the application and require the veteran and Family Caregiver
applicant to re-submit a joint application, which would further delay
access to PCAFC.
Thus, VA proposes to revise this last sentence of Sec.
71.25(a)(2)(ii) to remove the word solely and explain that VA may
extend the 90-day period based on VA's inability to complete the
eligibility evaluations, provide necessary education and training, or
conduct the initial home-care assessment, when such inability is, at
least in part, due to VA's action. This proposal, if adopted, would
give VA greater flexibility to extend the deadline for completing the
designation process, and VA expects that this change would reduce
burdens on VA staff as well as PCAFC applicants who would otherwise be
required to re-submit a joint application if the designation process
was not completed within the 90-day timeline.
VA also proposes to amend Sec. 71.25(a)(3) to address how it would
evaluate joint applications if the proposed revisions to the definition
of joint application under Sec. 71.15 and other proposed changes to
eligibility criteria discussed in this proposed rule are made final and
effective. Current Sec. 71.25(a)(3) explains how VA will evaluate
joint applications received before, on, and after October 1, 2020,
which is the date that the July 31, 2020 Final Rule became effective.
Joint applications received by VA before October 1, 2020 were evaluated
by VA based on 38 CFR 71.15, 71.20, and 71.25 (2019) except that the
term joint application as defined in current Sec. 71.15 applied to
such applications. Joint applications received on or after October 1,
2020 were and are evaluated based on the criteria in effect on or after
such date. Sec. 71.25(a)(3)(ii). Paragraphs (A) and (B) of Sec.
71.25(a)(3)(ii) further address joint applications submitted by
veterans and servicemembers seeking to qualify for PCAFC based on the
phased expansion of PCAFC eligibility criteria in current Sec.
71.20(a)(2)(ii) and (iii) (codifying the criteria for the phased
expansion of PCAFC to qualifying veterans and servicemembers who
incurred or aggravated a serious injury in the line of duty before
September 11, 2001). See 85 FR 13376 (March 6, 2020). As VA has
evaluated all joint applications received by VA before October 1, 2020,
the regulation text addressing those joint applications in Sec.
71.25(a)(3)(i) is no longer necessary. Similarly, the regulation text
found in paragraphs (A) and (B) of Sec. 71.25(a)(3)(ii) is also
obsolete as VA has evaluated all joint applications referenced in those
paragraphs. Therefore, VA proposes to remove the current text found in
Sec. 71.25(a)(3)(i) and (a)(3)(ii)(A) and (B) addressing joint
applications received by VA before October 1, 2020 and to further
revise these paragraphs as discussed below.
The application process for PCAFC requires evaluation, training,
and assessments that occur over a period of time. Given this, VA
expects there will be joint applications received by VA prior to the
effective date of this proposed rule for which eligibility
determinations are still pending on the effective date of the rule.
Consistent with the approach taken in the July 31, 2020 Final Rule, VA
proposes to review pending joint applications received by VA before the
effective date of the final rule, if adopted, using the eligibility
criteria in place on the day the joint application was received, unless
otherwise noted. 85 FR 13375 (March 6, 2020). Since VA proposes to
change certain eligibility criteria, including certain terms and
definitions that would affect VA's review of joint applications
received, among other things in this proposed rule, VA believes it is
reasonable for VA to continue to evaluate joint applications received
prior to the effective date of any final rule adopting amendments to
eligibility criteria, under the statutes and regulations in effect at
the time the joint application was received by VA. This approach would
provide transparency for applicants and reduce the likelihood of
inconsistencies or delays when rendering a decision as certain
evaluations may need to be repeated if VA were to apply the new
criteria to joint applications pending on the date a final rule becomes
effective. While VA would seek to mitigate these concerns through
applying the statutes and regulations in effect at the time VA received
the joint application, VA proposes certain exceptions as explained
below.
First, VA would not apply the definition of joint application as it
currently appears in Sec. 71.15 if this rule is adopted as proposed.
Rather VA would apply the new proposed definition of joint application
discussed above regarding proposed changes to Sec. 71.15. VA discusses
the challenges associated with the current definition of this term and
VA's rationale for this proposed definition above. If adopted, VA would
apply the proposed definition of joint application in rendering a
determination under the regulations in effect from October 1, 2020,
through the effective date of any rule changes, thereby eliminating any
use of the current definition once rule changes become final and
effective. Given the challenges associated with the current definition
of joint application, VA sees no reason to maintain its use in
evaluating joint applications received prior to the effective date of
any rule changes to the definition of joint application.
Next, VA proposes to make clear how VA has addressed the term need
for supervision, protection, or instruction in part 71 since the term
was invalidated by Veteran Warriors, and how VA would continue to
address it when evaluating joint applications received prior to the
effective date of any rule changes to delete the definition of need for
supervision, protection, or instruction in Sec. 71.15. Specifically,
this proposed change would codify in regulations the criteria used by
VA since the court's ruling in Veteran Warriors. As explained above,
the Veteran Warriors decision, issued on March 25, 2022, invalidated
VA's definition of need for supervision, protection, or instruction in
Sec. 71.15. Since that decision, VA no longer applies this term or its
definition when rendering PCAFC decisions. Instead, VA applies the
statutory criteria found in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii). As
proposed, 38 CFR 71.25(a)(3)(ii) would establish in VA's regulations
that for PCAFC applications received between October 1, 2020 and the
effective date of a final rule adopting the amendments to part 71 in
this proposed rule, VA would not apply the term need for supervision,
protection, or instruction and would apply the statutory criteria under
38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) instead.
To incorporate these changes into 38 CFR 71.25(a)(3), VA proposes
to revise
[[Page 97424]]
Sec. Sec. 71.25(a)(3)(i)-(ii) and (a)(3)(ii)(A)-(B) and add new Sec.
71.25(a)(3)(ii)(B)(1)-(2). As proposed, Sec. 71.25(a)(3)(i) would
state that a joint application under part 71 is evaluated in accordance
with the statutes and regulations in effect on the date VA receives
such joint application. Section 71.25(a)(3)(ii) and (a)(3)(ii)(A)-(B)
would state notwithstanding paragraph (a)(3)(i) of Sec. 71.25, in
rendering a determination under part 71, based on the regulations that
were in effect from October 1, 2020 through the effective date of the
final rule: (A) the definition of ``joint application'' in Sec. 71.15
that would become effective on the effective date of the final rule
would apply, and (B) the definition of ``need for supervision,
protection, or instruction'' in Sec. 71.15 does not apply. Proposed
Sec. 71.25(a)(3)(ii)(B)(1)-(2) would explain that in place of the
definition of ``need for supervision, protection, or instruction'' in
Sec. 71.15, the following criteria apply: (1) a need for supervision
or protection based on symptoms or residuals of neurological or other
impairment or injury; or (2) a need for regular or extensive
instruction or supervision without which the ability of the veteran to
function in daily life would be seriously impaired.
2. Section 71.25(b)--Eligibility To Serve as Primary Family Caregiver
or Secondary Family Caregiver
Current Sec. 71.25(b) explains the requirements to serve as a
Primary Family Caregiver or Secondary Family Caregiver. This includes
being either a family member or someone who lives with the eligible
veteran full-time or will do so if designated as a Family Caregiver.
See Sec. 71.25(b)(2)(i) and (ii). VA proposes to revise Sec.
71.25(b)(2)(ii) to refer to someone who lives with the eligible veteran
full-time or will do so within 120 days of the date VA designates the
individual as a Family Caregiver. This proposed change would account
for Family Caregiver applicants who are not family members of the
veteran or servicemember and who may be living apart from the veteran
or servicemember during the application process but who intend to live
with them once the Family Caregiver is approved and designated. The
personal care needs of a veteran or servicemember applying for PCAFC
may be provided by a non-family member who only intends to live with
the veteran or servicemember if approved and designated as a Family
Caregiver, since doing so would be a condition of participation in
PCAFC. Upon approval and designation, VA would not expect the newly
designated Family Caregiver to be prepared to move in with the veteran
or servicemember instantly and without advance notice. Rather a period
of transition may be needed, and appropriate, so VA proposes to
establish a time period for such transition in Sec. 71.25(b)(2)(ii).
VA believes a period of up to 120 days is an adequate amount of time
for a Family Caregiver or the veteran or servicemember to relocate if
necessary. This 120-day period also aligns with the time period within
which VA would conduct the first wellness contact, which is generally
conducted 120 days after approval and designation. See Sec.
71.40(b)(2). During this wellness contact, VA would have the
opportunity to confirm the non-family member Family Caregiver is living
with the eligible veteran full-time.
Finally, VA proposes to revise the section heading for Sec. 71.25
by replacing the word ``Primary'' with the term ``Primary Family
Caregivers''. As proposed, the section heading would state ``Approval
and designation of Primary Family Caregivers and Secondary Family
Caregivers''. VA proposes a similar edit to the heading and
introductory sentence for Sec. 71.25(b), which would state
``Eligibility to serve as Primary Family Caregiver or Secondary Family
Caregiver. In order to serve as a Primary Family Caregiver or Secondary
Family Caregiver, the applicant must meet all of the following
requirements''. If adopted, these changes, along with a similar change
to proposed Sec. 71.25(a)(1), discussed above, would be non-
substantive technical edits to fully reference the term Primary Family
Caregiver as such term is defined in Sec. 71.15.
F. 38 CFR 71.30 Reassessment of Eligible Veterans and Family Caregivers
Current Sec. 71.30 describes the process for reassessments of
eligible veterans and Family Caregivers under PCAFC. VA proposes to
amend Sec. 71.30 to revise the language regarding the frequency of VA-
initiated reassessments, incorporate a standard by which eligible
veterans and Primary Family Caregivers can request a reassessment and
to make other technical and conforming amendments consistent with other
changes included in this proposed rule.
1. Proposed Changes to the Frequency of VA-Initiated Reassessments
VA proposes to revise Sec. 71.30 by removing the language that
reassessments will occur on an annual basis. Currently, Sec. 71.30(a)
requires that, except as provided in paragraphs (b) or (c), each
eligible veteran and Family Caregiver will be reassessed by VA (in
collaboration with the primary care team to the maximum extent
practicable) on an annual basis to determine their continued
eligibility for participation in PCAFC. The reassessment of eligible
veterans and Family Caregivers under Sec. 71.30 includes consideration
of PCAFC eligibility criteria and, if applicable, the criteria in Sec.
71.40(c)(4)(i)(A) for purposes of the monthly stipend rate. See Sec.
71.30(a).
VA believes it is important to conduct reassessments to monitor an
eligible veteran's need for personal care services and the needs and
capabilities of the designated Family Caregiver(s), to determine if any
of these needs have changed over time. Reassessments also provide
Family Caregivers and eligible veterans with an opportunity to provide
feedback to VA, which can inform whether additional instruction,
preparation, training, or technical support may be warranted. See 85 FR
13379 (March 6, 2020). See also 38 U.S.C. 1720G(a)(3)(D). The
reassessment process may also result in changes to a Primary Family
Caregiver's monthly stipend. VA takes the Family Caregiver's assessment
of the eligible veteran's needs and limitations into account when
determining the Primary Family Caregiver's monthly stipend payment, if
applicable. See 85 FR 13379 (March 6, 2020). See also 38 U.S.C.
1720G(a)(3)(C)(iii)(I).
Reassessments are necessary to ensure that individuals
participating in PCAFC continue to meet eligibility requirements. VA
proposes to maintain reassessments but proposes to remove the language
in Sec. 71.30(a) which states reassessments will occur on an annual
basis, except as provided under paragraphs (b) and (c). VA originally
proposed this default frequency for reassessments under Sec. 71.30(a)
because it recognized that an eligible veteran's need for personal care
services may change over time, and the reassessments provided an
opportunity for VA to consider whether an eligible veteran's assessed
level of need had increased or decreased during the year. 85 FR 13378
(March 6, 2020). In addition, VA believed that requiring annual
reassessments would create consistency across the program and ensure
that reassessments were generally conducted on a standard timeline. Id.
at 13378-79.
While applying the provision of annual reassessments provided
standardization in the frequency of reassessments, VA no longer
believes that annually is the appropriate standard cadence to assess
continued eligibility for PCAFC. Although VA has the authority to
conduct reassessments more or less frequently than annually pursuant to
current Sec. 71.30(b) and (c),
[[Page 97425]]
VA believes that this proposal, if adopted in a final rule, would
provide transparency for the public that VA intends to no longer
maintain a default threshold of an annual reassessment. VA would
continue to provide notice to PCAFC participants regarding the timeline
for future reassessments through issuance of VA policy and written
communication with PCAFC participants. VA also would continue
monitoring the results of reassessments over time and use data to
inform any changes to the cadence of reassessments within policy.
To remove the default frequency of conducting annual reassessments,
VA proposes to revise the first sentence of Sec. 71.30(a) by removing
the phrase ``on an annual basis''. VA would also remove the phrase
``[e]xcept as provided in paragraphs (b) and (c) of this section,''
from the first sentence because the exceptions to the annual
requirement currently set forth in Sec. 71.30(b) and (c) would no
longer be necessary. VA is proposing additional changes to paragraphs
(b) and (c), which are discussed further below.
VA also proposes a technical edit to clarify that reassessments are
completed for the eligible veteran and all Family Caregivers of the
eligible veteran (in cases where there is more than one), by adding the
word ``each'' before ``Family Caregiver'' in the first sentence of
proposed Sec. 71.30(a). Thus, as proposed, the first sentence of Sec.
71.30(a) would state that the eligible veteran and each Family
Caregiver will be reassessed by VA (in collaboration with the primary
care team to the maximum extent practicable) to determine their
continued eligibility for participation in PCAFC under part 71.
Finally, VA proposes to change the second sentence of Sec.
71.30(a) which explains that in the context of reassessments, VA
considers whether the eligible veteran is unable to self-sustain in the
community for purposes of the monthly stipend rate under Sec.
71.40(c)(4)(i)(A). VA proposes to add the phrase ``if applicable'' to
the end of the second sentence because consideration of the monthly
stipend only occurs as part of a reassessment when the eligible veteran
and Primary Family Caregiver are determined eligible for PCAFC. Also,
in proposed Sec. 71.30(a), VA would refer to the ``monthly stipend
payment'' instead of the term monthly stipend rate that appears in the
second sentence of current Sec. 71.30(a). The phrase ``monthly stipend
payment'' would refer to the applicable stipend amount authorized under
Sec. 71.40(c)(4) and would account for the term monthly stipend rate
and its definition in Sec. 71.15. VA also proposes to remove reference
to the term unable to self-sustain in the community from Sec.
71.30(a), consistent with its proposed removal of such term and its
definition from Sec. 71.15 as discussed above and further below in the
context of proposed changes to Sec. 71.40(c)(4)(i)(A). As proposed,
the second sentence would state that reassessments will include
consideration of the monthly stipend payment under Sec.
71.40(c)(4)(i)(A), if applicable.
2. Proposed Changes To Reassessing Eligible Veterans' Continued
Eligibility Under Sec. 71.20(a)(3)
Current Sec. 71.20(a)(3) sets forth one of the seven criteria in
Sec. 71.20(a) that a veteran or servicemember must meet to be
determined eligible for a Family Caregiver under PCAFC, and it requires
the individual to be ``in need of personal care services for a minimum
of six continuous months'' based on any one of multiple enumerated
bases. VA proposes to limit when VA would reassess an eligible veteran
under the criteria in Sec. 71.20(a)(3) through proposed revisions to
Sec. 71.30(b).
Section 71.30(b) currently states that reassessments may occur more
frequently than annually if a determination is made and documented by
VA that more frequent reassessment is appropriate. VA proposes to
remove the current regulation text found in Sec. 71.30(b) as it would
no longer be necessary if proposed changes to Sec. 71.30(a) are
adopted, as explained above. For the reasons explained below, VA
proposes to add, in its place, a standard under which VA would reassess
an eligible veteran's continued eligibility under Sec. 71.20(a)(3) not
more frequently than every two years, with certain exceptions.
VA reviewed findings from reassessments conducted pursuant to Sec.
71.30(a) for participants that joined PCAFC on or after October 1,
2020. Since implementing annual reassessments pursuant to Sec.
71.30(a), VA has found the majority of reassessments conducted have
identified minimal changes in an eligible veteran's need for personal
care services under Sec. 71.20(a)(3) since their assessment in the
previous year. As PCAFC is designed for eligible veterans with moderate
and severe needs (85 FR 46228 (July 31, 2020)) who are in need of
personal care services for at least six continuous months (Sec.
71.20(a)(3)), VA believes it is reasonable to expect there would be
limited change in the functions and needs of the eligible veterans
within a 12-month period. Additionally, when reassessments require the
evaluation of Sec. 71.20(a)(3), the clinical evaluations associated
with Sec. 71.20(a)(3) criteria may be lengthy and may be burdensome to
veterans and servicemembers. In proposing a standard for reassessing an
eligible veteran's continued eligibility under Sec. 71.20(a)(3) of not
more frequently than every two years, VA would extend the time period
between such evaluations while still providing flexibility for VA to
continue to monitor the outcome of such reassessments and extend the
cadence beyond every two years, as appropriate, to ensure that
individuals participating in PCAFC continue to meet eligibility
requirements and have access to the appropriate level of supports. VA
believes proposed changes to Sec. 71.30(b) would reduce reassessments
that may be unnecessary and would do so in a standardized manner. Given
this, VA believes reassessment of an eligible veteran's continued
eligibility under Sec. 71.20(a)(3) not more frequently than every two
years would be reasonable and appropriate.
Notwithstanding these changes, certain instances exist when VA
would need to reassess an eligible veteran under Sec. 71.30(a)(3) on a
more frequent basis than every two years. To address these situations,
VA proposes to include two exceptions to the ``not more frequently than
every two years'' provision in proposed Sec. 71.30(b).
The first exception would apply when an eligible veteran or Primary
Family Caregiver requests a reassessment pursuant to proposed changes
to Sec. 71.30(c). To be responsive to the needs of veterans and
Primary Family Caregivers, VA would conduct reassessments upon request,
even if it has been less than two years since the previous evaluation
of the eligible veteran's eligibility under Sec. 71.30(a)(3). More
details about how reassessments could be requested under proposed Sec.
71.30(c) and how those requests would be addressed are outlined further
below.
The second exception would apply when a reassessment of an eligible
veteran's continued eligibility under Sec. 71.20(a)(3) is necessary
for VA to evaluate a Family Caregiver's ability to carry out specific
personal care services, core competencies, or additional care
requirements. Per 38 U.S.C. 1720G(a)(3)(D), the Secretary is required
to ``periodically evaluate . . . the skills of the family caregiver of
such veteran to determine if additional instruction, preparation,
training, or technical support'' is needed. In these instances, an
evaluation of the needs of the eligible veteran pursuant to proposed 38
CFR 71.20(a)(3) may be necessary to
[[Page 97426]]
determine whether a Family Caregiver has the ability to carry out the
specific personal care services, core competencies, and additional care
requirements described in Sec. 71.25(c)(2). This second proposed
exception in Sec. 71.30(b) would provide VA with the ability to review
the quality of personal care services being provided to an eligible
veteran in the context of a reassessment and take corrective action as
applicable. See 38 U.S.C. 1720G(a)(9)(C)(i)-(ii).
Thus, as proposed, Sec. 71.30(b) would state that except as
provided in paragraph (c) of Sec. 71.30, VA will reassess an eligible
veteran's continued eligibility under Sec. 71.20(a)(3) not more
frequently than every two years unless such a reassessment is necessary
for VA to evaluate the Family Caregiver's ability to carry out specific
personal care services, core competencies, or additional care
requirements.
3. Proposed Changes To Address Requests for Reassessments
Currently, Sec. 71.30(c) states that reassessments may occur on a
less than annual basis if a determination is made and documented by VA
that an annual reassessment is unnecessary. As noted above, VA proposes
to remove the reference to an annual reassessment frequency under Sec.
71.30(a), and as a result, VA would also remove the exception found in
Sec. 71.30(c). VA proposes to further revise Sec. 71.30(c) by adding
a new provision explaining the option for eligible veterans and Primary
Family Caregivers to request reassessment at any time through a written
request.
When eligible veterans and Family Caregivers have specifically
requested reassessments before an annual reassessment was due, VA has
considered such requests when making a determination under current
Sec. 71.30(b) that a more frequent than annual reassessment is
appropriate. For example, a Primary Family Caregiver may find they are
providing physical assistance with more ADL than they were at the time
they were designated as the Primary Family Caregiver. In this case, the
Primary Family Caregiver may request a reassessment, in part, because
they believe they may qualify for a higher monthly stipend.
To make clear the opportunity for an eligible Veteran or Primary
Family Caregiver to request a reassessment, VA proposes to establish
procedural requirements for these types of requests in proposed Sec.
71.30(c). As proposed, Sec. 71.30(c) would state that reassessments
may occur when an eligible veteran or a Primary Family Caregiver of an
eligible veteran submits to VA a written request indicating that a
reassessment is requested, and such request contains the signature of
the eligible veteran or the Primary Family Caregiver. In accordance
with the ``[e]xcept as provided in paragraph (c)'' clause in proposed
Sec. 71.30(b), reassessments requested under proposed Sec. 71.30(c)
would include a reassessment of an eligible veteran's continued
eligibility under Sec. 71.20(a)(3).
For reassessment requests under proposed Sec. 71.30(c), VA
proposes not to mandate use of a specific standardized form because VA
would like to provide flexibility to eligible veterans and Primary
Family Caregivers. However, VA does propose to require requests be
submitted to VA in writing, indicate the nature of the request (that
is, a request for reassessment), and contain the signature of the
eligible veteran or the Primary Family Caregiver of an eligible
veteran. These requirements would ensure that: (1) the request is from
an individual authorized to make such a request under proposed Sec.
71.30(c) (that is, an eligible veteran or Primary Family Caregiver),
(2) VA has enough information to associate the request with the correct
eligible veteran, and (3) VA can understand the nature of the request
and intent of the requestor. If verbal requests for reassessment are
made, VA would inform eligible veterans and Primary Family Caregivers
of the process for submitting a written request for reassessment.
Additionally, requiring a written request for reassessment would
provide VA with documentation of the request and VA could formally
track receipt of such request. This would be important because if the
requested reassessment results in an increase in the monthly stipend
payment pursuant to a determination under proposed Sec.
71.40(c)(4)(i)(A)(2), the date the written request under proposed Sec.
71.30(c) is received by VA could be the effective date of the increase
under proposed Sec. 71.40(c)(4)(ii)(C)(1)(ii). This is discussed
further below regarding proposed changes to Sec. 71.40 under heading
``G. 38 CFR 71.40 Caregiver benefits''. In implementing this
requirement for a written request in proposed Sec. 71.30(c), if
adopted in a final rule, VA would provide further written guidance and
instructions to Primary Family Caregivers and eligible veterans about
how and where such requests should be submitted.
VA does not propose to include reassessment requests from Secondary
Family Caregivers in proposed Sec. 71.30(c). This is because VA does
not believe individuals other than the eligible veteran or Primary
Family Caregiver should be able to initiate a process that could
uniquely impact the benefits provided to the Primary Family Caregiver.
Although certain PCAFC benefits are provided to both Primary Family
Caregivers and Secondary Family Caregivers, others are provided only to
Primary Family Caregivers, including the monthly stipend.
Additionally, Secondary Family Caregivers who would like to request
additional supports or services do not need to request a reassessment
under Sec. 71.30 to receive such supports or services. All Family
Caregivers who are seeking additional training, education or other
PCAFC assistance, can do so without requesting a reassessment. For
example, a Family Caregiver who wishes to engage with a peer support
mentor under Sec. 71.40(b)(5), can make this request at any time to
the local Caregiver Support Program (CSP) Team. Similarly, a Family
Caregiver who is seeking other counseling services under Sec.
71.40(b)(5), can make such a request at any time, including during
wellness contacts. An increase in the monthly stipend level for Primary
Family Caregivers under Sec. 71.40(c)(4)(i)(A), however, can only be
provided as a result of a reassessment which includes consideration of
an eligible veteran's need for personal care services pursuant to Sec.
71.20(a)(3). For this reason, a Primary Family Caregiver may wish to
request a reassessment to be considered for the higher stipend level.
Therefore, under proposed Sec. 71.30(c), VA would conduct a requested
reassessment only if submitted in writing by the eligible veteran or
Primary Family Caregiver (and that meets the other requirements
previously described).
Although Secondary Family Caregivers would not be included in
proposed Sec. 71.30(c), when a request for reassessment is received
from the eligible veteran or Primary Family Caregiver under such
paragraph, the reassessment would apply to the eligible veteran and all
Family Caregivers of the eligible veteran. This is because
reassessments initiated based on the request of an eligible veteran or
Primary Family Caregiver, would be carried out using the same processes
in Sec. 71.30 for reassessments initiated by VA. In completing
reassessments under Sec. 71.30, VA determines the eligibility of the
eligible veteran and each Family Caregiver, which necessarily requires
consideration of whether each Family Caregiver, including Secondary
Family Caregivers, has the ability to carry out the specific personal
care services required by the eligible veteran.
[[Page 97427]]
4. Proposed Changes to Legacy Reassessments
Current paragraph (e)(1) of Sec. 71.30 requires VA to conduct
reassessments of members of the legacy cohort within the five-year
period beginning on October 1, 2020 to determine whether the eligible
veteran meets the requirements of Sec. 71.20(a). If the eligible
veteran meets the requirements of Sec. 71.20(a), the reassessment will
take into consideration whether the eligible veteran is unable to self-
sustain in the community for purposes of the monthly stipend rate under
Sec. 71.40(c)(4)(i)(A). See Sec. 71.30(e)(1).
For reasons discussed earlier in this rulemaking, VA proposes to
extend the transition period for continued eligibility of members of
the legacy cohort and the timeframe for completing reassessments of
this cohort to a date that is 18 months after the effective date of a
final rule under this rulemaking. The following conforming amendments
to Sec. 71.30(e) are also proposed to extend the timeframe for
conducting legacy reassessments.
First, VA proposes to add introduction text to paragraph (e) that
would describe a legacy reassessment. Currently, paragraph (e)(1)
states the reassessment will be done in collaboration with a primary
care team to the maximum extent practicable, may include a visit to the
eligible veteran's home, and may include consideration of the monthly
stipend. These provisions mirror the requirements for the reassessment
under current and proposed Sec. 71.30(a). To provide clarity, VA
proposes to remove this language from paragraph (e)(1) and would
instead state in the introduction text for paragraph (e) that a legacy
reassessment is a reassessment to determine continued eligibility under
Sec. 71.20(a) for legacy applicants and legacy participants that is
conducted in accordance with the requirements of Sec. 71.30(a).
VA would further revise paragraph (e)(1) to address the timeframe
for completing legacy reassessments. VA proposes to remove the phrase
``five-year period beginning on October 1, 2020'' and add in its place,
the phrase ``period beginning on October 1, 2020 and ending on [18
months after EFFECTIVE DATE OF FINAL RULE]''. VA would also include the
language currently found in paragraph (e)(2) regarding exceptions to
this rule. Currently, paragraph (e)(2) states that notwithstanding
paragraph (e)(1), a reassessment will not be completed under paragraph
(e)(1) if at some point before a reassessment is completed during the
five-year period beginning on October 1, 2020 the individual no longer
meets the requirements of Sec. 71.20(b) or (c). VA proposes to move
this language to paragraph (e)(1) with minor conforming changes to
remove the cross reference to paragraph (e)(1) and reference to the
``five-year'' period.
As proposed, paragraph (e)(1) would state if the eligible veteran
meets the requirements of Sec. 71.20(b) or (c) (i.e., is a legacy
participant or a legacy applicant), VA will conduct a legacy
reassessment for the eligible veteran and each Family Caregiver within
the time period beginning on October 1, 2020 and ending on [18 months
after EFFECTIVE DATE OF FINAL RULE]. It would also state that
notwithstanding the previous sentence, a legacy reassessment will not
be completed if at some point before such reassessment is completed,
the eligible veteran no longer meets the requirements of Sec. 71.20(b)
or (c).
Finally, VA proposes to revise paragraph (e)(2) to address monthly
stipend payments. As part of the legacy reassessment, for eligible
veterans who meet the requirements of Sec. 71.20(a), VA considers the
monthly stipend payment under Sec. 71.40(c)(4)(i)(A) and eligibility
for a one-time retroactive monthly stipend payment under current Sec.
71.40(c)(4)(ii)(C)(2)(i). This one-time retroactive stipend payment is
not currently addressed in Sec. 71.30(e). VA believes including a
reference to the regulations that govern the one-time retroactive
stipend payment within Sec. 71.30(e) would assist the reader in
understanding this facet of the legacy reassessment. VA proposes to
relocate the provisions currently found in Sec.
71.40(c)(4)(ii)(C)(2)(i) to Sec. 71.40(c)(4)(iii), therefore, this
latter citation is proposed to be included in paragraph (e)(2).
Accordingly, VA proposes to revise paragraph (e)(2) to state, if the
eligible veteran meets the requirements of Sec. 71.20(a), the legacy
reassessment will include consideration of the monthly stipend payment
under Sec. 71.40(c)(4)(i)(A) and whether the Primary Family Caregiver
is eligible for a one-time retroactive stipend payment pursuant to
Sec. 71.40(c)(4)(iii).
5. Proposed Technical Edits To Conform With Proposed Changes
VA proposes to add paragraph headings to paragraphs (a) through (e)
of Sec. 71.30 to assist the reader. If adopted, the heading for
paragraph (a) would state ``General.'' The heading for paragraph (b)
would state ``Frequency of reassessment.'' The heading for paragraph
(c) would state ``Requests for reassessment.'' The heading for
paragraph (d) would state ``Required participation'' and the heading
for paragraph (e) would state ``Legacy reassessments.''
VA solicits comments from the public on all aspects of this
proposed rule. In particular, VA asks the following questions on
specific aspects of this proposal.
1. Other than the changes proposed, what changes, if any, to the
frequency of reassessments should VA consider and why?
2. What models or standards are used by programs other than PCAFC
to determine continued eligibility and benefits that could inform the
appropriate frequency for PCAFC reassessments?
G. 38 CFR 71.40 Caregiver Benefits
Section 71.40 describes the benefits available to General
Caregivers, Secondary Family Caregivers, and Primary Family Caregivers.
Section 71.40(c) explains the benefits available to Primary Family
Caregivers, which includes a monthly stipend payment. See Sec.
71.40(c)(4). VA proposes changes to the eligibility requirements for
the higher stipend level and provisions regarding adjustments to
monthly stipend payments.
1. Stipend Level Criteria
Under current Sec. 71.40(c)(4)(i)(A)(1), the Primary Family
Caregiver's monthly stipend is calculated by multiplying the monthly
stipend rate (as that term is defined in Sec. 71.15) by 0.625.
However, if VA determines the eligible veteran is unable to self-
sustain in the community, the monthly stipend payment is calculated by
multiplying the monthly stipend rate by 1.00. See Sec.
71.40(c)(4)(i)(A)(2). These two levels for the monthly stipend payment
were intended to align with VA's aim at targeting PCAFC to those
veterans and servicemembers with moderate and severe needs, with the
higher stipend level provided to Primary Family Caregivers of eligible
veterans with severe needs. See 85 FR 13383 (March 6, 2020). Thus, the
Primary Family Caregiver of an eligible veteran who is determined to be
unable to self-sustain in the community would be eligible for the
higher stipend level under Sec. 71.40(c)(4)(i)(A)(2).
Currently, unable to self-sustain in the community is defined in
Sec. 71.15 to mean that an eligible veteran (1) requires personal care
services each time he or she completes three or more of the seven
activities of daily living (ADL) listed in the definition of an
inability to perform an activity of daily living in Sec. 71.15, and is
fully dependent
[[Page 97428]]
on a caregiver to complete such ADLs; or (2) has a need for
supervision, protection, or instruction on a continuous basis. Although
the definition of unable to self-sustain in the community includes the
term need for supervision, protection, or instruction, following the
Veteran Warriors decision, VA no longer applies that term and instead
has applied the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and
(iii) in place of the term need for supervision, protection, or
instruction when determining whether a veteran is unable to self-
sustain in the community as explained below.
a. Determining the Monthly Stipend Payment Following the Veteran
Warriors Decision
As discussed earlier in this rulemaking regarding VA's proposed
removal of the term and definition of need for supervision, protection,
or instruction from Sec. 71.15 and the proposed changes to Sec.
71.20(a)(3), the U.S. Court of Appeals for the Federal Circuit in
Veteran Warriors invalidated VA's definition of the term need for
supervision, protection, or instruction. Notably, the court dismissed
or denied the petition for review with respect to the other regulatory
provisions challenged, including the definition of unable to self-
sustain in the community. See Veteran Warriors at 1348-51. However,
because the term need for supervision, protection, or instruction is
included in the definition of unable to self-sustain in the community,
following the court's decision, VA has applied the criteria in 38
U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place of the term need for
supervision, protection, or instruction, when making determinations
about whether an eligible veteran is unable to self-sustain in the
community for purposes of determining the monthly stipend payment.
Following the court's decision, a Primary Family Caregiver is eligible
for the higher stipend level if the eligible veteran has a need for
supervision or protection based on symptoms or residuals of
neurological or other impairment or injury on a continuous basis or a
need for regular or extensive instruction or supervision without which
the ability of the veteran to function in daily life would be seriously
impaired on a continuous basis.
b. Proposed Changes to the Higher Stipend Level Criteria
VA proposes to revise the criteria for determining the monthly
stipend payment in Sec. 71.40(c)(4)(i)(A)(2). In proposing to amend
Sec. 71.40(c)(4)(i)(A)(2), VA would maintain the methodology for
calculating the monthly stipend rate, such that the higher stipend
level would continue to be calculated by multiplying the monthly
stipend rate (as that term is defined in Sec. 71.15) by 1.00. However,
VA would revise the criteria under which a Primary Family Caregiver
would qualify for the higher stipend level. Specifically, VA proposes
to remove the term unable to self-sustain in the community from Sec.
71.40(c)(4)(i)(A)(2) and add multiple new bases upon which a Primary
Family Caregiver may be eligible for the higher stipend level. VA's new
proposed bases for the higher stipend level would align with the
proposed bases in Sec. 71.20(a)(3) upon which a veteran or
servicemember may be determined to be in need of personal care
services.
Instead of proposing to update the current definition of unable to
self-sustain in the community in Sec. 71.15 to reflect VA's proposed
criteria for determining the higher stipend level, VA proposes removing
the term unable to self-sustain in the community and its definition
from Sec. 71.15 and adding the criteria for determining the higher
stipend level in proposed Sec. 71.40(c)(4)(i)(A)(2). This approach is
consistent with VA's proposed changes to Sec. 71.15 and Sec.
71.20(a)(3), under which VA would remove the terms inability to perform
an ADL and need for supervision, protection, or instruction, and their
definitions from Sec. 71.15 and add the bases for being in need of
personal care services into proposed Sec. 71.20(a)(3)(i) through (iii)
rather than referring to criteria contained mostly in terms and
definitions found in Sec. 71.15.
In proposed Sec. 71.40(c)(4)(i)(A)(2), VA would explain how
Primary Family Caregivers could be eligible for the higher stipend
level for each basis upon which an individual may be determined to be
in need of personal care services consistent with 38 U.S.C.
1720G(a)(2)(C) and proposed 38 CFR 71.20(a)(3). VA believes the changes
VA proposes to 38 CFR 71.40(c)(4)(i)(A)(2), as explained in more detail
in this section, would improve clarity and consistency when determining
eligibility for the higher stipend level. They would also ensure each
basis upon which an eligible veteran may be determined to be in need of
personal care services under proposed 38 CFR 71.20(a)(3) includes a
related basis by which a Primary Family Caregiver may be eligible for
the higher stipend level. If these proposed changes are adopted, the
Primary Family Caregiver could be eligible for the higher stipend level
based on any of the criteria in proposed Sec. 71.40(c)(4)(i)(A)(2),
just as eligible veterans could meet more than one of the bases in
proposed Sec. 71.20(a)(3)(i) through (iii).
Additionally, in contrast to the current definition of unable to
self-sustain in the community, which refers exclusively to the needs of
the eligible veteran, the criteria in proposed Sec.
71.40(c)(4)(i)(A)(2) would be phrased to reflect both the eligible
veteran's needs as well as the amount and degree of personal care
services the Primary Family Caregiver provides to the eligible veteran.
This change would ensure VA's regulations are reflective of the
statutory requirement that the stipend be ``based upon the amount and
degree of personal care services provided.'' 38 U.S.C.
1720G(a)(3)(C)(i). VA recognizes that the Primary Family Caregiver may
not provide all the personal care services required by an eligible
veteran, as the eligible veteran's care needs may also be met, in part,
by Secondary Family Caregivers or through other services and supports.
However, because it is the Primary Family Caregiver who receives the
stipend payment, VA believes it is reasonable to interpret the phrase
``personal care services provided'' in 38 U.S.C. 1720G(a)(3)(C)(i) to
refer to those personal care services provided by the Primary Family
Caregiver.
VA does not believe it would be reasonable to base the monthly
stipend payment for the Primary Family Caregiver upon the amount and
degree of personal care services provided by individuals and entities
other than the Primary Family Caregiver. Under 38 U.S.C.
1720G(a)(3)(C)(ii), the Secretary is required to ensure, to the extent
practicable, that ``the schedule required by clause (i) specifies that
the amount of the monthly personal caregiver stipend provided to a
primary provider of personal care services for the provision of
personal care services to an eligible veteran is not less than the
monthly amount a commercial home health care entity would pay an
individual in the geographic area of the eligible veteran to provide
equivalent personal care services to the eligible veteran.'' By
referring to ``an individual'' providing ``equivalent personal care
services to the eligible veteran'', this requirement supports VA's
proposed interpretation that the monthly stipend payment is based on
the personal care services that only the Primary Family Caregiver
provides to the eligible veteran and not the personal care services
provided by another individual or entity. By referring to the required
personal care services that the
[[Page 97429]]
eligible veteran receives from the Primary Family Caregiver, proposed
38 CFR 71.40(c)(4)(i)(A)(2) would make clear that the amount of the
monthly stipend is based upon the amount and degree of personal care
services that the Primary Family Caregiver provides to the eligible
veteran.
In addition, VA proposes to add language to proposed paragraph
(c)(4)(i)(A)(2) as a technical edit to clarify that the proposed
criteria in paragraph (c)(4)(i)(A)(2) would apply notwithstanding
paragraph (c)(4)(i)(A)(1). Currently, and under VA's proposed revisions
to Sec. 71.40(c)(4)(i)(A), a Primary Family Caregiver's monthly
stipend payment is calculated under paragraph (c)(4)(i)(A)(1) (by
multiplying the monthly stipend rate by 0.625) unless the criteria in
paragraph (c)(4)(i)(A)(2) are met, in which case the Primary Family
Caregiver's monthly stipend payment is calculated under paragraph
(c)(4)(i)(A)(2) (by multiplying the monthly stipend rate by 1.00). VA
also proposes to add a heading to paragraph Sec. 71.40(c)(4)(i)(A)(1)
which states ``Level 1 Stipend'' and a heading to paragraph Sec.
71.40(c)(4)(i)(A)(2) that states ``Level 2 Stipend'' to further
distinguish the two different stipend levels described in these
paragraphs.
As proposed, Sec. 71.40(c)(4)(i)(A)(2) would state that
notwithstanding paragraph (c)(4)(i)(A)(1) of Sec. 71.40, the Primary
Family Caregiver's monthly stipend payment is calculated by multiplying
the monthly stipend rate by 1.00 if VA determines that: (i) the
eligible veteran typically requires personal care services to complete
three or more distinct ADL, and for each distinct ADL, the eligible
veteran either is substantially dependent on the Primary Family
Caregiver for hands-on assistance or requires extensive instruction or
supervision from the Primary Family Caregiver; or (ii) the eligible
veteran has a frequent need for supervision or protection on a
continuous basis from the Primary Family Caregiver based on the
eligible veteran's symptoms or residuals of neurological or other
impairment or injury.
The meaning of the term typically requires throughout proposed
Sec. 71.40(c)(4)(i)(A)(2) would be consistent with its meaning in
proposed Sec. 71.20(a)(3)(i) and (iii) based on the proposed
definition in Sec. 71.15 (that is, typically requires would mean a
clinical determination which refers to that which is generally
necessary). Please see the discussion of proposed changes to Sec. Sec.
71.15 and 71.20(a)(3)(i) and (iii) for additional information on the
term typically requires. VA further explains the multiple bases for
eligibility for the higher stipend level that VA is proposing under the
two criterion in proposed Sec. 71.40(c)(4)(i)(A)(2)(i) and (ii), as
well as its proposed use of the term typically requires in Sec.
71.40(c)(4)(i)(A)(2)(i), in greater detail below.
i. First Proposed Basis for the Higher Stipend Level Payment
Under this proposal, Sec. 71.40(c)(4)(i)(A)(2)(i) would set forth
the first proposed basis upon which a Primary Family Caregiver would be
eligible for the higher stipend level payment and would refer to a VA
determination that the eligible veteran typically requires personal
care services to complete three or more distinct ADL, and for each
distinct ADL, the eligible veteran is substantially dependent on the
Primary Family Caregiver for hands-on assistance.
If adopted, this would amend the standard applied under the first
basis in the current definition of unable to self-sustain in the
community (that is, an eligible veteran requires personal care services
each time he or she completes three or more of the seven ADL listed in
the definition of an inability to perform an activity of daily living
[…truncated; see source link]Indexed from Federal Register on December 6, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.