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

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 71

RIN 2900-AQ48

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

AGENCY:

Department of Veterans Affairs

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

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

ADDRESSES:

Written comments may be submitted through

http://www.Regulations.gov

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

http://www.Regulations.gov

.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Summary of Proposed Regulatory Changes

We propose to revise VA's regulations that govern PCAFC. This rulemaking would make improvements to PCAFC and update the regulations to comply with section 161 of Public Law 115-182, the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 or the VA MISSION Act of 2018, which made changes to PCAFC's authorizing statute.

This proposed rule—

• Would expand PCAFC to eligible veterans of all service eras, as specified.

• Would define new terms and revise existing terms used throughout the regulation. Some of the new and revised terms would have a substantial impact on eligibility requirements for PCAFC (

e.g.,

in need of personal care services; need for supervision, protection, or instruction; and serious injury), and the benefits available under PCAFC (

e.g.,

financial planning services, legal services, and monthly stipend rate).

• Would establish an annual reassessment to determine continued eligibility for PCAFC.

• Would revise the stipend payment calculation for Primary Family Caregivers.

• Would establish a transition plan for legacy participants and legacy applicants, as those terms would be defined in revised § 71.15, who may or may not meet the new eligibility criteria and whose Primary Family Caregivers could have their stipend amount impacted by changes to the stipend payment calculation.

• Would add financial planning and legal services as new benefits available to Primary Family Caregivers.

• Would revise the process for revocation and discharge from PCAFC.

• Would reference VA's ability to collect overpayments made under PCAFC.

Background on Governing Statutes and Public Input

Title I of Public Law 111-163, Caregivers and Veterans Omnibus Health Services Act of 2010 (hereinafter referred to as “the Caregivers Act”), established section 1720G(a) of title 38 of the United States Code (U.S.C.), which required VA to establish a program of comprehensive assistance for Family Caregivers of eligible veterans who have a serious injury incurred or aggravated in the line of duty on or after September 11, 2001. The Caregivers Act also required VA to establish a program of general caregiver support services, pursuant to 38 U.S.C. 1720G(b), which is available to caregivers of covered veterans of all eras of military service. VA implemented the program of comprehensive assistance for Family Caregivers (PCAFC) and the program of general caregiver support services (PGCSS) through its regulations in part 71 of title 38 of the Code of Federal Regulations (CFR). Through PCAFC, VA provides Family Caregivers of eligible veterans (as those terms are defined in 38 CFR 71.15) certain benefits, such as training, respite care, counseling, technical support, beneficiary travel (to attend required caregiver training and for an eligible veteran's medical appointments), a monthly stipend payment, and access to health care (if qualified) through the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA). 38 U.S.C. 1720G(a)(3), 38 CFR 71.40. This proposed rule relates primarily to PCAFC.

VA recognizes that improvements to PCAFC are needed to improve consistency and transparency in decision making and sought input from stakeholders on potential changes. On January 5, 2018, VA published a

Federal Register

Notice (FRN), requesting information and comments from the public to help inform VA of any changes needed to PCAFC that would increase consistency across the program as well as ensure the program supports those Family Caregivers of veterans and servicemembers most in need. See 83 FR 701 (January 5, 2018). On February 1, 2018, VA published a correction notice to clarify that public comments in response to the January 5, 2018 FRN had to be received by VA on or February 5, 2018.

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See 83 FR 4772 (February 1, 2018).

1

While the January 5, 2018 FRN also required comments to be received by VA on or before February 5, 2018, it mistakenly referred to a 45-day (instead of 30-day) comment period, which was corrected in the February 1, 2018 FRN.

Through these FRNs, we asked the public to comment on whether VA should change the definition of serious injury, how a veteran's need for supervision or protection should be assessed, how in the best interest should be defined, the circumstances under which veterans' eligibility should be reassessed after approval for PCAFC, what terminology VA should use for those who are no longer eligible for PCAFC, whether VA should modify its timeframes for continuation of benefits when a caregiver is revoked, how VA should calculate stipend rates, and how VA should assess and determine the amount and degree of personal care services provided by the Family

Caregiver. 83 FR 703 (January 5, 2018). In response to the FRNs, VA received three hundred and twenty-three (323) comments. Of these, one hundred and eighteen comments (118) addressed at least one of the eight questions listed in the notice and described above, and we considered these comments when developing this proposed rule. Most commenters expressed support for expanding PCAFC to include veterans of all eras, followed by comments identifying challenges with operational processes of the current program including inconsistency with eligibility determinations and the completion of home monitoring visits. The comments received from this FRN are publicly available online at

www.regulations.gov.

Copies of the comments are also available for public inspection in the Office of Regulation Policy and Management, Room 1064, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (exception holidays). Please call (202) 461-4902 (this is not a toll-free number) for an appointment.

On June 6, 2018, the VA MISSION Act of 2018 was signed into law. Section 161 of the VA MISSION Act of 2018 amended 38 U.S.C. 1720G by expanding eligibility for PCAFC to Family Caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, establishing new benefits for designated Primary Family Caregivers of eligible veterans, and making other changes affecting program eligibility and VA's evaluation of PCAFC applications. The VA MISSION Act of 2018 established that expansion of PCAFC to Family Caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, will occur in two phases. The first phase will begin when VA certifies to Congress that it has fully implemented a required information technology system that fully supports PCAFC and allows for data assessment and comprehensive monitoring of PCAFC. During the 2-year period beginning on the date of such certification to Congress, PCAFC will be expanded to include Family Caregivers of eligible veterans who have a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, or air service on or before May 7, 1975. Two years after the date of submission of the certification to Congress, PCAFC will be expanded to Family Caregivers of all eligible veterans who have a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, or air service, regardless of the period of service in which the serious injury was incurred or aggravated in the line of duty in the active military, naval, or air service.

On November 27, 2018, VA again sought public comment through a FRN that requested input from the public on certain changes to PCAFC required by section 161 of the VA MISSION Act of 2018. 83 FR 60966 (November 27, 2018). Specifically, we asked how VA should define “a need for regular or extensive instruction or supervision” in new 38 U.S.C. 1720G(a)(2)(C)(iii); how “need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired” would differ from “a need for supervision or protection based on symptoms of residuals of neurological or other impairment or injury;” how VA should assess whether the ability of the veteran to function in daily life would be seriously impaired without regular or extensive instruction or supervision; and what financial planning and legal services should be made available to Primary Family Caregivers, how such services should be provided, and what types of entities provide such services. VA received two hundred and twenty (220) comments, including comments outside the scope of questions posed. Many comments focused on the desire for PCAFC to be expanded to veterans of all eras, and to include illnesses as covered conditions for which a veteran may be eligible. In direct response to the questions posed, some commenters shared opinions on the importance of including the veteran's and caregiver's perspective in the assessment process and considering the complexity and frequency of the care being provided and what would happen to the veteran in the absence of such care. Other commenters offered support for utilizing the need for long-term care as a criterion for PCAFC. VA appreciates the time and attention from commenters who shared their opinions on how to improve PCAFC, and we considered these comments when developing this proposed rule. The comments received from this FRN are publicly available online at

www.regulations.gov.

Copies of the comments are also available for public inspection in the Office of Regulation Policy and Management, Room 1064, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (exception holidays). Please call (202) 461-4902 (this is not a toll-free number) for an appointment.

Additional efforts were made to garner input from stakeholders. On February 25 and March 5, 2019, meetings were held with various Veteran Service Organizations (VSOs) to discuss PCAFC and the VA MISSION Act of 2018. Discussion topics included the definitions of serious injury, need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury, and inability to perform an activity of daily living; the tier system related to stipend payments; and revocation and transition of participants from PCAFC. Furthermore, on April 26, May 16, and May 29, 2019, listening sessions were held with representatives from an organization advocating for military caregivers, various VSOs, and Caregiver Support Program Peer Mentors, consecutively, to discuss legal and financial services needed by caregivers. Discussion topics included, but were not limited to: Estate planning, end of life planning, advanced directives and living wills, designating a power of attorney, guardianship, debt management, household budget planning, retirement planning, and insurance review and counseling. The notes from these meetings and listening sessions can be found as supporting documents at

http://www.regulations.gov,

usually within 48 hours after the rulemaking document is published.

Introduction to Proposed Regulatory Changes

As explained in more detail below, we propose to revise and update 38 CFR part 71 to comply with changes made to 38 U.S.C. 1720G by section 161 of the VA MISSION Act of 2018, to further improve PCAFC for eligible veterans of all eras of service by improving consistency and transparency in how the program is administered across VA, and to provide a better experience for eligible veterans and their caregivers.

In this proposed rule, we refer to two implementation dates—one related to the first phase of expansion of PCAFC to eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, and another for purposes of our other proposed changes to part 71. As we stated above, the first phase of PCAFC expansion under the VA MISSION Act of 2018 to Family Caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, will begin when VA certifies to Congress that it has fully implemented a required information technology system. It is VA's intent that such certification be provided to

Congress on the same day that our other proposed regulatory changes would go into effect. However, we recognize that the timeline for development of an information technology system can be unpredictable. Additionally, changes to this proposed approach may be warranted based on public comments we receive in response to this proposed rule and other factors. Therefore, this proposed rule indicates that the first phase of PCAFC expansion would begin on a “date specified in a future

Federal Register

document,” and the other proposed changes in this proposed rule would go into effect on the effective date of this rule. In the proposed regulatory text below, the effective date of the final rule is referenced as “[EFFECTIVE DATE OF FINAL RULE]”.

71.10 Purpose and Scope

We propose to amend § 71.10(b), which sets forth the scope of part 71 to clarify the first sentence and add a new sentence at the end. The first sentence of current paragraph (b) states that part 71 regulates the provision of Family and General Caregiver benefits authorized by 38 U.S.C. 1720G. We propose to revise this language to better align with the language used in 38 U.S.C. 1720G(a) and (b). We propose to revise the language to state, “[t]his part regulates the provision of benefits under the Program of Comprehensive Assistance for Family Caregivers and the Program of General Caregiver Support Services authorized by 38 U.S.C. 1720G.”

The second sentence of current paragraph (b) explains that individuals eligible for such benefits may also be eligible for other VA benefits pursuant to other laws or parts of title 38, CFR, and we would make no changes to the current language.

We also propose to add a sentence at the end of paragraph (b) to explain that these benefits are provided only to those individuals residing in a State as that term is defined in 38 U.S.C. 101(20). Section 101(20) of title 38, U.S.C., defines “State” to mean “each of the several States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.” Although it has been VA's practice since the programs started in 2011, the regulations in part 71 do not state that these programs are provided only to those individuals residing in a State. Therefore, we would update our regulations to align with current practice. We note that it is not currently feasible for VA to provide benefits under part 71 outside of a State. The requirements of this part include in-home visits such as an initial home-care assessment under current § 71.25(e) and the provision of certain benefits that can be provided in-home such as respite care under current § 71.40(a)(4) and (c)(2), which would be difficult to conduct and provide in a consistent manner outside of a State. Also, ensuring oversight of PCAFC and PGCSS outside of a State would be resource-intensive and we do not believe there is sufficient demand to warrant the effort that would be required. We note that currently there are administrative limitations that prevent VA from providing certain benefits under this part in remote areas, even within the scope of the term “State,” such as in the Commonwealth of the Northern Mariana Islands; however, VA will continue to explore the potential for expanding VHA services to support PGCSS and PCAFC in these remote areas. As revised, § 71.10(b) would state, “[t]his part regulates the provision of benefits under the Program of Comprehensive Assistance for Family Caregivers and the Program of General Caregiver Support Services authorized by 38 U.S.C. 1720G. Persons eligible for such benefits may be eligible for other VA benefits based on other laws or other parts of this title. These benefits are provided only to those individuals residing in a State as that term is defined in 38 U.S.C. 101(20).”

71.15 Definitions

We propose to amend § 71.15, which contains definitions for terms used throughout part 71, by removing the definitions of “combined rate,” and “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury,” revising the definitions of “in the best interest,” “inability to perform an activity of daily living (ADL),” “primary care team,” and “serious injury”; and adding new definitions for the terms “domestic violence,” “financial planning services,” “in need of personal care services,” “institutionalization,” “intimate partner violence,” “joint application,” “legacy applicant,” “legacy participant,” “legal services,” “monthly stipend rate,” “need for supervision, protection, or instruction,” “overpayment,” and “unable to self-sustain in the community.” These proposed changes are explained in more detail below. We emphasize, as stated in the introductory language for § 71.15, that these proposed definitions would apply only for purposes of part 71.

In § 71.15, we would remove the current definition of “combined rate.” This term is currently defined to refer to the Bureau of Labor Statistics (BLS) hourly wage rate for home health aides at the 75th percentile in the eligible veteran's geographic area of residence, multiplied by the Consumer Price Index for All Urban Consumers (CPI-U). Also, the current definition explains how the rate will be determined for the purposes of this program. As further explained in this rulemaking regarding our proposed definition of the term “monthly stipend rate” and proposed § 71.40(c)(4), we are proposing to determine monthly stipend payments using data from the Office of Personnel Management's (OPM) General Schedule (GS) instead of using the combined rate. Although some Primary Family Caregivers would, for one year after the effective date of the rule, maintain the stipend amount they were eligible to receive as of the day before the effective date of this rule, we would no longer make annual adjustments to the combined rate, and it would otherwise no longer apply after the effective date of this rule. One year after the effective date of this rule, all stipend payments would be calculated using the monthly stipend rate (as that term would be defined in proposed § 71.15). Therefore, the definition of combined rate would no longer be needed or applicable in 38 CFR part 71.

In § 71.15, we would add a new definition for the term “domestic violence.” We would define domestic violence to refer to any violence or abuse that occurs within the domestic sphere or at home, and may include child abuse, elder abuse, and other types of interpersonal violence. We believe other types of interpersonal violence would include, but would not be limited to, financial harm and threatening behavior. This definition is based on the definition of domestic violence used by the Veterans Health Administration's (VHA) Intimate Partner Violence Assistance Program. As explained later in this rulemaking, we would define this term as it is used in proposed § 71.45(b)(3)(iii)(B) concerning a Family Caregiver's request for discharge from PCAFC due to domestic violence.

In proposed § 71.15, we would add a new definition of “financial planning services.” We would define this term to address changes made to 38 U.S.C. 1720G by the VA MISSION Act of 2018. Specifically, the VA MISSION Act of 2018 added financial planning services relating to the needs of injured veterans and their caregivers as a benefit for Primary Family Caregivers. See 38 U.S.C. 1720G(a)(3)(A)(ii)(VI)(aa), as amended by Public Law 115-182, section 161(a)(3). As explained later in this rulemaking, we propose to add

“financial planning services” to the benefits available to Primary Family Caregivers under a revised § 71.40(c).

We propose to define “financial planning services” in § 71.15 to mean services focused on increasing financial capability and assisting the Primary Family Caregiver in developing a plan to manage the personal finances of the Primary Family Caregiver and the eligible veteran, as applicable, to include household budget planning, debt management, retirement planning review and education, and insurance review and education. We believe “household budget planning” would include making a budget, learning to balance a checking account, and learning to pay bills; “debt management” would include assistance establishing payment plans and credit counseling; “retirement planning” would include review and education on personal retirement plans, pension planning, and investment options, however it would not include specific investment advice; and “insurance review and education” would include review of current insurance policies, and education on alternative insurance options to include health, automobile, life, or house insurance. These services would be aimed at increasing the financial capability of Primary Family Caregivers and assisting Primary Family Caregivers in being able to manage their own personal finances and those of the eligible veteran, as applicable. We believe this is reasonable under the authorizing statute.

The VA MISSION Act of 2018 requires that these financial planning services relate “to the needs of injured veterans and their caregivers” and we believe defining these services in this manner would meet this requirement as these types of services are relevant and applicable to the care and needs of the eligible veteran and the caregiver. We believe these would be the type of financial planning services that Primary Family Caregivers would need and best support Primary Family Caregivers. This definition would also align with the feedback we received from the public in response to the November 27, 2018 FRN as well as additional meetings and listening sessions held to garner input from stakeholders. For example, some feedback included a desire for assistance with bill paying, balancing a checking account, and debt management. Additionally, it was noted that the loss of income combined with additional expenses, often unexpected, attributed to caring for another, are concerns experienced by veterans and caregivers.

We would limit these services to only those related to the personal finances of the eligible veteran and the Primary Family Caregiver. PCAFC is designed to support the clinical needs of the eligible veteran and the benefits provided to Family Caregivers under PCAFC are the direct result of the personal care services they provide to eligible veterans. As a result, these services would not be provided to assist a Primary Family Caregiver with any business or other professional endeavors because these endeavors would not be related to the provision of personal care services to an eligible veteran. We also believe limiting these services in this manner aligns with feedback received since business and professional endeavors were not raised as financial planning services that VA should provide to caregivers. We note that these services would be provided by entities authorized pursuant to any contract entered into between VA and such entities.

In proposed § 71.15, we would add a new definition of “In need of personal care services.” We would define this term to mean that the eligible veteran requires in-person personal care services from another person, and without such personal care services, alternative in-person caregiving arrangements (including respite care or assistance of an alternative caregiver) would be required to support the eligible veteran's safety.

Current § 71.15 defines personal care services to mean “care or assistance of another person necessary in order to support the eligible veteran's health and well-being, and perform personal functions required in everyday living ensuring the eligible veteran remains safe from hazards or dangers incident to his or her daily environment.” This definition is used for purposes of PCAFC and PGCSS; however, it does not provide sufficient clarity for purposes of PCAFC, which we believe is targeted to a narrower population. Specifically, it does not delineate whether such services must be provided in person or can be provided remotely, or what it means to be “in need of” such services under 38 U.S.C. 1720G(a)(2)(C). Because we believe this definition is still appropriate for purposes of 38 U.S.C. 1720G(b) with respect to PGCSS, we would add a new definition of “in need of personal care services” for purposes of determining PCAFC eligibility under proposed § 71.20(a)(3), discussed further below, and maintain our current definition of “personal care services” in § 71.15.

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The definition of “personal care services” in 38 CFR 71.15 is based on VA's interpretation of the statutory definition of “personal care services” as it existed prior to the enactment of the VA MISSION Act of 2018. The statutory definition of “personal care services,” in 38 U.S.C. 1720G(d)(4), was amended by section 161(b) of the VA MISSION Act of 2018 by replacing “independent activities of daily living” with “activities of daily living,” and to include “[s]upervision or protection based on symptoms or residuals of neurological or other impairment or injury” and “[r]egular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired.” However, we are not proposing to revise the definition of “personal care services” in § 71.15 as we believe our current definition encompasses these additional criteria and thereby recognizes all the bases upon which an eligible veteran can be deemed in need of personal care services under 38 U.S.C. 1720G(a)(2)(C)(i) through (iii) (

i.e.,

(i) an inability to perform one or more activities of daily living; (ii) a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; and (iii) a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired), which are also encompassed in the eligibility criteria we would consider under proposed § 71.20(a)(3)(i) and (ii).

Our proposed definition of “in need of personal care services” would reflect that PCAFC Family Caregivers perform in-person personal care services, and without such care, alternative caregiving arrangements would be required.

The statute makes clear the importance of regular support to an eligible veteran by allowing more than one Family Caregiver to be trained to provide personal care services. 38 U.S.C. 1720G(a)(5) and (6). Likewise, eligible veterans are provided protections under the statute in the absence of a Family Caregiver such as respite care during a family member's initial training if such training would interfere with the provision of personal care services for the eligible veteran. 38 U.S.C. 1720G(a)(6)(D). Thus, we believe “in need of personal care services” under section 1720G(a)(2)(C) means that without Family Caregiver support, VA would otherwise need to hire a professional home health aide or provide other support to the eligible veteran such as adult day health care, respite care, or facilitate a nursing home or other institutional care placement.

While regular support is essential, the frequency with which such services are required may differ depending on the eligible veteran's care needs. Therefore, our proposed definitions of inability to perform an activity of daily living (ADL) and need for supervision, protection, or instruction, as proposed in this section, would further clarify the eligible veteran's frequency of needed care.

This definition would also clarify that “in need of personal care services”

means that such services are required in person. While technological advances have improved the provision of telehealth and other remote clinical interventions for veterans, we believe PCAFC was intended to provide assistance to Family Caregivers who are required to be physically present to support eligible veterans in their homes. First, we note the term “personal” is an adjective that is defined to mean “done, made, or performed in person” among other relevant meanings such as, “[o]f or relating to a particular person.” The American Heritage Dictionary of the English Language 1311 (4th ed. 2000). Second, 38 U.S.C. 1720G(a) indicates that personal care services are provided in the eligible veteran's home. For example, in conducting monitoring, the statute authorizes VA to visit the “eligible veteran in the eligible veteran's home to review directly the quality of personal care services provided to the eligible veteran.” 38 U.S.C. 1720G(a)(9)(C)(i). Moreover, in requiring the personal caregiver stipend be not less than the “amount a commercial home health care entity would pay an individual in the geographic area of the eligible veteran [or similar area],” to the extent practicable, the statute establishes an expectation that Family Caregivers are providing services equivalent to that of a home health aide, which are generally furnished in-person and at home. 38 U.S.C. 1720G(a)(3)(C)(ii), (iv). For these reasons, we believe our proposed definition of “in need of personal care services” is a reasonable interpretation of the statute. Furthermore, we believe it would reduce clinical subjectivity in PCAFC eligibility determinations and thereby improve consistency in the program.

We note that the term “in need of personal care services” is used in 38 U.S.C. 1720G only for purposes of PCAFC under section 1720G(a)(2)(C) and would not apply to restrict eligibility under 38 U.S.C. 1720G(b) with respect to PGCSS. Moreover, this interpretation would not apply to other sections in title 38, U.S.C., that use the phrase “in need of” in reference to other types of VA benefits that have separate eligibility criteria. For example, 38 U.S.C. 1114(l), (m), (r), and (t) reference veterans “in need of regular aid and attendance” and “in need of a higher level of care” for special monthly compensation, and 38 U.S.C. 1710A and 1720C reference veterans “in need of” nursing home care. While veterans eligible for PCAFC may also be eligible for these other benefits, there are unique criteria applied by VA to establish a veteran's need for “regular aid and attendance” and “a higher level of care” under 38 U.S.C. 1114(l), (m), (r) and (t). Similarly, there are unique criteria that apply in establishing a veteran's eligibility for nursing home care under chapter 17 of title 38, U.S.C. Through this rulemaking, we do not purport to modify those criteria or establish eligibility criteria applicable under any other VA statute besides section 1720G(a)(2)(C), which is the only statute in title 38, U.S.C., that references veterans “in need of personal care services.”

In proposed § 71.15, we would revise the current definition of “in the best interest” which is used to determine whether a veteran or servicemember is eligible for PCAFC under current § 71.20(d). This revised definition would be used to determine PCAFC eligibility under proposed § 71.20(a)(4). We would also move this term before “inability to perform an activity of daily living (ADL)” in § 71.15 so that the definitions would be listed in alphabetical order.

This term is currently defined to mean a clinical determination that participation in PCAFC is likely to be beneficial to the veteran or servicemember; and in making such determination, a clinician will consider whether participation in PCAFC significantly enhances the veteran or servicemember's ability to live safely in a home setting, supports potential rehabilitation progress of the veteran or servicemember (if that potential exists), and creates an environment supportive of the veteran's or servicemember's health and well-being. This current language would generally remain in the proposed definition of “in the best interest.” However, we would replace the phrase “veteran or servicemember's” with “veteran's or servicemember's” for clarity. Also, we propose to add language to this definition to explain that a clinician would also consider whether participation in PCAFC “increases the veteran's or servicemember's potential independence, if such potential exists.” We propose to add this additional consideration because we believe PCAFC is intended to help veterans and servicemembers achieve their highest level of health, quality of life, and independence. This would also reduce incentive for the dependence on a caregiver when there is potential for improvement. Considering an individual's level of independence, particularly when potential for improvement exists, is an important consideration in determining whether participation in PCAFC is in the best interest of the eligible veteran.

In proposed § 71.15, we would also revise the current definition of “inability to perform an activity of daily living (ADL)” which is one of the bases for determining eligibility under current § 71.20(c) and proposed § 71.20(a)(3). The ADLs listed in such term, numbered as paragraphs (1) through (7), would also be applied to determine whether a veteran or servicemember is unable to self-sustain in the community for purposes of the monthly stipend (as discussed below). “inability to perform an activity of daily living (ADL)” is currently defined as any one of the following: (1) Inability to dress or undress oneself; (2) Inability to bathe; (3) Inability to groom oneself in order to keep oneself clean and presentable; (4) Frequent need of adjustment any special prosthetic or orthopedic appliance that by reason of the particular disability, cannot be done without assistance (this does not include the adjustment of appliances that nondisabled persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (5) Inability to toilet or attend to toileting without assistance; (6) Inability to feed oneself due to loss of coordination of upper extremities, extreme weakness, inability to swallow, or the need for a non-oral means of nutrition; or (7) Difficulty with mobility (walking, going up stairs, transferring from bed to chair, etc.). This current list reflects six activities that are widely recognized as ADLs by clinicians and are found in the Katz Basic ADL Scale, and one activity specific to veterans and servicemembers who require the use of a prosthetic or orthopedic appliance. 87 FR 26148 (May 5, 2011). We would maintain the current activities listed; however, we would revise the language for clarity and to delineate the frequency with which an eligible veteran would require personal care services to complete an ADL.

First, we would replace “any one of the following” with “a veteran or servicemember requires personal care services each time he or she completes one or more of the following.” This language would clarify our interpretation of “inability” as it pertains to ADLs, and specify the frequency with which such personal care services would be needed to qualify for PCAFC. In order to be considered to have an “inability to perform an activity of daily living,” we would require that a veteran or servicemember need personal care services each time he or she completes any of the ADLs listed in the definition (

e.g.,

every time the individual is dressing or undressing,

bathing, grooming, toileting, etc.). This would exclude veterans and servicemembers who need help completing an ADL only some of the time the ADL is completed (

e.g.,

the individual needs help with dressing or undressing only when wearing certain types of clothing). This change would be consistent with our goal of focusing PCAFC on eligible veterans with moderate and severe needs, and it would provide more objective criteria for clinicians evaluating PCAFC eligibility. This distinction is especially important for eligible veterans whose care needs may be more complex, particularly as personal care service needs related to a physical impairment can evolve over time. For example, infrequent assistance may be needed in the immediate time period following the onset of a disease (such that the individual needs help completing an ADL only some of the time it's completed), but over time and as the individual begins to age, the individual's care needs can progress. We would thus distinguish between veterans and servicemembers needing assistance with an ADL only some of the time from those who need assistance every time the ADL is completed, those who we believe have an “inability” to perform an ADL.

Unlike in our definition of “need for supervision, protection, or instruction,” discussed below, we would not require the veteran or servicemember qualifying for PCAFC on this basis to need personal care services daily. Although the statute refers to an eligible veteran's inability to perform one or more activities of daily living as a basis upon which he or she can be deemed in need of personal care services (38 U.S.C. 1720G(a)(2)(C)(i)), we recognize that not all activities of daily living need to be performed every day. For example, bathing is included in the current § 71.15 definition of “[i]nability to perform an activity of daily living,” but bathing may not be required every day. A veteran may be able to maintain health and wellness by adhering to a less frequent bathing routine.

Second, for consistency with the introductory language proposed for this definition, we would revise the seven ADLs by removing the level of impairment and frequency of need referenced for each ADL. Thus, we would shift the focus to the activity itself rather than the level of impairment (

i.e.,

we would remove the phrase “[i]nability to” from current paragraphs (1) through (3), (5), and (6); remove “[f]requent need of” from current paragraph (4); and remove “[d]ifficultly with” from current paragraph (7)). Despite the phrases “[f]requent need of” in current paragraph (4) and “[d]ifficultly with” in current paragraph (7) related to adjustment of a special prosthetic or orthopedic appliance and mobility, respectively, we do not believe these ADLs should be treated any differently than the other ADLs listed or have a lower threshold for purposes of PCAFC eligibility. This is because an individual who has difficulty with mobility would generally require personal care services every time they move. For example, an individual who is designated as a fall risk may require assistance each time he or she transfers from the bed to a chair or walks down the hall. Similarly, we believe the likelihood an individual may only require personal care services intermittently versus every time he or she needs to adjust any special prosthetic or orthopedic appliance is low. Finally, we would remove the phrase “without assistance” from current paragraph (5) in reference to toileting or attending to toileting as we believe this phrase is redundant because an eligible veteran would require assistance from another individual to complete any of the ADLs listed in this definition.

As revised, the term “inability to perform an activity of daily living (ADL)” would be defined to mean “a veteran or servicemember requires personal care services each time he or she completes one or more of the following: (1) Dressing or undressing oneself; (2) Bathing; (3) Grooming oneself in order to keep oneself clean and presentable; (4) Adjusting any special prosthetic or orthopedic appliance, that by reason of the particular disability, cannot be done without assistance (this does not include the adjustment of appliances that nondisabled persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (5) Toileting or attending to toileting; (6) Feeding oneself due to loss of coordination of upper extremities, extreme weakness, inability to swallow, or the need for a non-oral means of nutrition; or (7) Mobility (walking, going up stairs, transferring from bed to chair, etc.).”

In § 71.15, we also propose to add a definition for the term “institutionalization.” We would define institutionalization to refer to being institutionalized in a setting outside of the home residence to include a hospital, rehabilitation facility, jail, prison, assisted living facility, medical foster home, nursing home, or other similar setting. The term “institutionalization” is commonly used and understood by health care providers and we believe this definition generally aligns with the common use and understanding of the term. Furthermore, we note that the list in this definition is not meant to be exhaustive but rather illustrates the types of settings where an eligible veteran or Family Caregiver could reside to be considered institutionalized for purposes of discharge pursuant to proposed § 71.45. We recognize that the inclusion of medical foster homes (MFH) in this definition would deviate from the common understanding of MFH as a non-institutional long-term care option, and an alternative to facility-based institutional long-term care. VA refers veterans for MFH placement when they are unable to live independently safely or are in need of nursing home level care, but prefer to live in a private home setting. See 38 CFR 17.73 and 17.74. Therefore, we would consider MFH to be “institutionalization” only for purposes of PCAFC and only in proposed § 71.45(b)(1) and (2) concerning discharges of the Family Caregiver from PCAFC due to the eligible veteran's or Family Caregiver's institutionalization. As set forth in current § 71.20(e) and proposed § 71.20(a)(5), personal care services provided by the Family Caregiver under PCAFC cannot be simultaneously and regularly provided by or through another individual or entity. Therefore, a veteran participating in a MFH program would not qualify for PCAFC because his or her caregiver would be compensated through other means for the personal care services provided.

In § 71.15, we propose to add a definition for the term “intimate partner violence (IPV).” We would define intimate partner violence as referring to any violent behavior including, but not limited to, physical or sexual violence, stalking, or psychological aggression (including coercive acts or economic harm) by a current or former intimate partner that occurs on a continuum of frequency and severity which ranges from one episode that might or might not have lasting impact to chronic and severe episodes over a period of years. The definition would further explain that IPV can occur in heterosexual or same-sex relationships and does not require sexual intimacy or cohabitation. This definition is based on the definition used by VHA's Intimate Partner Violence Assistance Program. As explained later in this rulemaking, we would define this term as it will be used in proposed § 71.45(b)(3)(iii)(B) concerning a Family Caregiver's request

for discharge from PCAFC due to intimate partner violence.

In proposed § 71.15, we would add a new definition for “joint application.” We would define this term to mean an application that has all fields within the application completed, including that the application has been signed and dated by all applicants, with the following fields exempted: Social security number or tax identification number, middle name, sex, email, alternate telephone number, and name of facility where the veteran last received medical treatment, or any other field specifically indicated as optional. This term would be used in the proposed definition of “legacy applicant” discussed further below, and throughout § 71.25, as we propose to revise such section. VA would also rely on this definition when determining the date that a joint application is received for the purpose of establishing the effective date of benefits for PCAFC in proposed § 71.40(d). Only an application with all mandatory fields completed (

i.e.,

all fields other than those specifically exempted) would be considered a “joint application” under these sections.

An application that does not have all of the mandatory sections completed (

e.g.,

names, address of veteran's or servicemember's residence, dates of birth, certifications, and signatures) would not meet the definition of joint application. Such an application would be considered incomplete and the application review process would not be able to begin. This is because the required sections are necessary for VA to begin evaluating the eligibility of veterans and servicemembers and their family members for PCAFC (

e.g.,

to validate that the family member applicant is at least 18 years of age). VA has found that when applicants do not provide all of the required information, this leads to delays as VA must take steps to obtain the missing information. Fields that would be excluded from the definition of “joint application” are fields which may not be relevant to all applicants. Thus, VA would only consider an application a “joint application” when all required sections are complete (

i.e.,

all fields other than those specifically exempted).

In proposed § 71.15, we would add a new definition for “legacy applicant.” We would define this term to mean a veteran or servicemember who submits a joint application for PCAFC that is received by VA before the effective date of this rule and for whom a Family Caregiver(s) is approved and designated on or after the effective date of this rule. The definition would further require that to be considered a legacy applicant, the Primary Family Caregiver approved and designated for the veteran or servicemember pursuant to such joint application (as applicable) continues to be approved and designated as such. We would also state that if a new joint application is received by VA on or after the effective date of the rule that results in approval and designation of the same or a new Primary Family Caregiver, the veteran or servicemember would no longer be considered a legacy applicant.

In proposed § 71.15, we would also add a new definition of “legacy participant.” We would define this term to mean an eligible veteran whose Family Caregiver(s) was approved and designated by VA under this part as of the day before the effective date of this rule so long as the Primary Family Caregiver approved and designated for the eligible veteran as of that date (as applicable) continues to be approved and designated as such. We would also state that if a new joint application is received by VA on or after the effective date of the rule that results in the approval and designation of the same or a new Primary Family Caregiver, the veteran or servicemember would no longer be considered a legacy participant.

As explained later in this rulemaking, we are proposing changes to PCAFC that could affect the eligibility and benefits of Family Caregivers of legacy applicants and legacy participants, as those terms would be defined in proposed § 71.15. Therefore, our proposed rule would include requirements in proposed §§ 71.20, 71.30, and 71.40, that are intended to minimize disruption to these individuals for the one-year period following the effective date of the rule. These proposed requirements are addressed in the discussion of those sections below.

In proposed § 71.15, we would add a new definition of “legal services.” We would define this term to address changes made to 38 U.S.C. 1720G by the VA MISSION Act of 2018. Specifically, the VA MISSION Act of 2018 added “legal services, including legal advice and consultation, relating to the needs of injured veterans and their caregivers,” as a benefit for Primary Family Caregivers. See 38 U.S.C. 1720G(a)(3)(A)(ii)(VI)(bb), as amended by Public Law 115-182, section 161(a)(3). As explained later in this rulemaking, we propose to add “legal services” to the benefits available to Primary Family Caregivers under a revised § 71.40(c).

We would define “legal services” in § 71.15 to mean assistance with advanced directives, power of attorney, simple wills, and guardianship; educational opportunities on legal topics relevant to caregiving; and referrals to community resources and attorneys for legal assistance or representation in other legal matters. We believe educational opportunities on topics relevant to caregiving would include topics such as advanced directives, simple wills, and estate planning. We believe that these types of legal services would support Primary Family Caregivers and would be relevant and applicable to the needs of eligible veterans and their caregivers.

As previously discussed, VA sought feedback from the public in a FRN published on November 27, 2018, which asked for public comments on what legal services should be made available to Primary Family Caregivers, how such services should be provided, and what type of entities provide such services. Additionally, we held meetings and listening sessions to garner input from stakeholders. The responses received from these activities varied. Some of the feedback received supported a referral system to community providers, while other feedback supported the provision of legal services in the most expansive way possible. Also, some feedback acknowledged the potential for conflict of interests between the eligible veteran and Family Caregiver regarding certain legal issues, including divorce or child custody. Furthermore, some of the feedback received specified that legal services should include the provision of advanced directives, power of attorney, wills, and guardianship. VA has considered the feedback received and believes an approach inclusive of providing assistance with advanced directives, power of attorney, simple wills, and guardianship; education on legal topics relevant to caregiving; and a referral service for other legal services is most appropriate. This definition would allow VA to address certain legal needs among those that relate to and support the Primary Family Caregiver's ability to provide personal care services to the eligible veteran, while also being mindful of VA resources.

The provision of assistance for certain legal matters, and a referral service for other legal matters would provide Primary Family Caregivers with access to community resources and a network of attorneys who practice in the area of law most appropriate to his or her needs. Furthermore, we believe education on legal topics related to caregiving would provide Primary Family Caregivers with access to a multitude of resources specific to caregiving needs. We believe that

paying for legal advice and consultation for matters other than advanced directives, power of attorney, simple wills, and guardianship would be cost prohibitive and may limit our ability to provide other benefits to Family Caregivers. Providing limited legal assistance, education, and referrals would ensure that VA is able to consistently provide the same legal services to all Primary Family Caregivers.

Our proposed definition of “legal services” would also limit these services to only those provided in relation to the personal legal needs of the eligible veteran and Primary Family Caregiver. We believe limiting these services is reasonable because PCAFC is designed to support the clinical needs of the eligible veteran and the benefits provided to Family Caregivers are the direct result of the personal care services they provide to eligible veterans. As a result, these services would not be provided to assist with any business or other professional endeavors of the eligible veteran or Primary Family Caregiver because these endeavors would not be directly related to the provision of personal care services to an eligible veteran. We also believe limiting these services in this manner aligns with feedback we received since business and professional endeavors were not raised as legal services that VA should provide to caregivers. We note that these services would be provided by entities authorized pursuant to any contract entered into between VA and such entities.

Furthermore, we would explicitly exclude from this definition assistance with matters in which the eligible veteran or Primary Family Caregiver is taking or has taken any adversarial legal action against the United States government, and disputes between the eligible veteran and Primary Family Caregiver. However, we note that this would not exclude educational opportunities and referrals for such matters. We believe this is reasonable as VA should not be expected to provide legal services in a situation in which an eligible veteran or Primary Family Caregiver takes any adversarial legal action against the United States government, including VA and other Federal agencies. We believe that providing such services may result in conflicts of interest. Additionally, we do not believe VA should provide legal services in a situation where there is a dispute between the eligible veteran and Primary Family Caregiver. Although, PCAFC provides benefits directly to caregivers, VA's mission is to care for veterans, and we believe providing legal services in a situation where there is a dispute between the eligible veteran and Primary Family Caregiver could also create a conflict of interest.

In § 71.15, we propose to add a new definition for the term “monthly stipend rate.” We would define this term to mean the Office of Personnel Management (OPM) General Schedule (GS) Annual Rate for grade 4, step 1, based on the locality pay area in which the eligible veteran resides, divided by 12. We would define “monthly stipend rate” as it will be used in proposed § 71.40(c)(4) concerning stipend payments for Primary Family Caregivers. Our basis for selecting this definition and payment rate, how we would address adjustments that result from OPM's updates to the GS rate, and periodic assessments of and, if applicable, adjustments to the monthly stipend rate are discussed below in the context of proposed changes to § 71.40(c)(4).

In proposed § 71.15, we would remove the current definition of “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury,” and replace this term with a new definition of “need for supervision, protection, or instruction.” The term “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” is one of the bases for determining eligibility under current § 71.20(c), and it is currently defined to mean requiring supervision or assistance for any one of the seven listed reasons: Seizures (blackouts or lapses in mental awareness, etc.); difficulty with planning and organizing (such as the ability to adhere to medication regimen); safety risks (wandering outside the home, danger of falling, using electrical appliances, etc.); difficulty with sleep regulation; delusions or hallucinations; difficulty with recent memory; or self-regulation (being able to moderate moods, agitation or aggression, etc.). These impairments were based on the United Kingdom Functional Independence Measure and Functional Assessment Measure, and the Neuropsychiatric Inventory. 87 FR 26149 (May 5, 2011).

We believe the current definition of “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” unduly restricts VA's ability to consider all functional impairments that may impact a veteran's or servicemember's ability to maintain his or her personal safety on a daily basis. For example, an individual with a diagnosis of dysautonomia, which refers to a wide range of conditions that affect the autonomic nervous system, could experience symptoms such as an inability to stay upright, tremors, and concentration, and thus be in need of personal care services based on a need for supervision or protection, but would not necessarily have one of the seven impairments listed in the current definition of “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury.” It is VA's intent to broaden the current criteria in the definition of “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” so as not to limit eligibility to veterans and servicemembers with a predetermined list of impairments.

We propose to replace this term with a new term, “need for supervision, protection, or instruction,” which would be one of the bases for determining eligibility under proposed § 71.20(a)(3). This term would also be applied to determine whether a veteran or servicemember is unable to self-sustain in the community for purposes of the monthly stipend (as discussed below). The term “need for supervision, protection, or instruction” would represent and combine two of the statutory bases upon which a veteran or servicemember can be deemed in need of personal care services—“a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury,” and “a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired.” See 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii), as amended by Public Law 115-182, section 161(a)(2). We believe these two bases of eligibility capture the personal care service needs of veterans and servicemembers with a significant cognitive, neurological, or mental health impairment, as opposed to an inability to perform an ADL, which captures the personal care service needs of veterans and servicemembers with physical impairment.

The term “need for supervision, protection, or instruction,” would mean an individual has a functional impairment that directly impacts the individual's ability to maintain his or her personal safety on a daily basis. Examples of conditions that may cause such functional impairment include dementia, psychosis, seizures, other disorders of mental competence. However, instead of listing specific symptoms and diagnoses, which can

evolve as clinical practice guidelines are updated over time, the proposed definition would shift the focus to functional impairment. In determining eligibility on this basis, VA would not focus on the individual's specific diagnosis or conditions, but rather whether the veteran or servicemember has impairment in functioning that directly impacts the individual's ability to maintain his or her personal safety on a daily basis and thus requires supervision, protection, or instruction from another individual. For example, an individual with schizophrenia who has active delusional thoughts that lead to unsafe behavior (

e.g.,

setting a fire, walking into traffic) may require another individual to provide supervision or instruction to ensure his or her personal safety on a daily basis. Additionally, an individual with dementia may be physically capable of washing their hands or taking a bath but may be unable to use the appropriate water temperature and may thus require step-by-step instruction or sequencing in order to maintain his or her personal safety on a daily basis. However, an individual with dementia who is forgetful or misplaces items but can adapt and manage successfully without compromising his or her personal safety on a daily basis (

e.g.,

by relying on lists and visual cues for prompting), may not be in need of supervision, protection, or instruction.

This definition would also recognize that impairment in functioning may result from multiple conditions or diagnoses and the impact of the functional impairment on the individual's personal safety can change over time (

e.g.,

for a veteran or servicemember with a progressive disease). Whether a veteran or servicemember would qualify for PCAFC on this basis would depend on whether his or her functional impairment directly impacts the individual's ability to maintain his or her personal safety on a daily basis. For example, a veteran or servicemember who is diagnosed with Parkinson's disease may not qualify on this basis during the initial onset of symptoms, but over time or because of comorbidities, could be determined eligible on this basis.

We would require that the functional impairment impact the individual's ability to maintain personal safety on a daily basis to address and clarify the frequency with which a veteran or servicemember would need for supervision, protection, or instruction for purposes of PCAFC eligibility. This requirement would be consistent with our goal of focusing PCAFC on eligible veterans with moderate and severe needs. We also believe it is consistent with the statutory criteria it would implement, which in part recognize that instruction or supervision are needed for the eligible veteran to function in daily life. See 38 U.S.C. 1720G(a)(2)(C)(iii). A veteran or servicemember meeting this criterion may not need supervision, protection, or instruction continuously during the day (see our proposed definition of “unable to self-sustain in the community” discussed further below), but would need such personal care services on a daily basis, even if just intermittently each day. For example, a veteran or servicemember may require supervision or instruction when completing certain daily tasks, such as administering daily medication, due to a cognitive impairment caused by dementia, but not require a caregiver to be physically present the remainder of the day.

In § 71.15, we propose to add a new definition for the term “overpayment.” We would define this term to mean a payment made by VA pursuant to part 71 to an individual in excess of the amount due, to which the individual was not eligible, or otherwise made in error. The definition would also specify that an overpayment is subject to collection action. This definition would clarify the payments that are considered overpayments and subject to collection action in accordance with the Federal Claims Collection Standards (FCCS) and as discussed below in the context of the proposed addition of § 71.47.

We propose to revise the definition of “primary care team” in current § 71.15 and the references to that term in various sections of part 71. The term “primary care team” is currently defined to mean “a group of medical professionals who care for a patient and who are selected by VA based on the clinical needs of the patient.” The current definition also specifies that “[t]he team must include a primary care provider who coordinates the care, and may include clinical specialists (

e.g.,

a neurologist, psychiatrist, etc.), resident physicians, nurses, physicians' assistants, nurse practitioners, occupational or rehabilitation therapists, social workers, etc., as indicated by the needs of the particular patient.” This term is currently used in part 71 in reference to: Authorizations made in the context of eligibility determinations under current § 71.20(c) and (d) and approval and designation under current § 71.25(f), the eligible veteran's ongoing care in current § 71.20(g), the initial assessment of the caregiver applicant in current § 71.25(c)(1), the caregiver applicant's ability to carry out care requirements in current § 71.25(c)(2), and monitoring visits in current § 71.40(b)(2). For reasons discussed further below, we would remove the references to “primary care team” in all but one of these contexts (regarding the eligible veteran receiving ongoing care from a primary care team), and we would add a reference to “primary care team” in one other context.

Instead of referencing the role of the primary care team in various paragraphs of §§ 71.20 and 71.25, we propose to include one reference to the primary care team in proposed § 71.25(a)(2)(i) that indicates PCAFC eligibility evaluations would be performed in collaboration with the primary care team to the maximum extent practicable. The current references to authorizations by the primary care team in current § 71.20(c) and (d) and current § 71.25(f) are unclear and have not been applied consistently due to variation between facilities on how such authorizations are obtained. Also, the individual or team best suited to conduct the initial assessment of an applicant seeking designation as a Family Caregiver under § 71.25(c)(1) can vary across VA depending on the individual needs of the veteran or servicemember. It may be more appropriate for clinical eligibility teams or providers other than the veteran's or servicemember's primary care team to perform these evaluations. Additionally, in evaluating the caregiver applicant's ability to carry out care requirements under current § 71.25(c)(2), it may be appropriate to consider care requirements prescribed by providers other than the veteran's or servicemember's primary care team, such as a VA clinical eligibility team, non-VA provider, or other appropriate individual or individuals in VA. These changes would give VA more flexibility in how it evaluates PCAFC eligibility and approves and designates Family Caregivers while also ensuring that joint applications are evaluated in collaboration with the primary care team of the veteran or servicemember to the maximum extent practicable.

Additionally, we would remove the reference to the primary care team maintaining the eligible veteran's treatment plan and collaborating with clinical staff making home visits for purposes of monitoring in current § 71.40(b)(2) (

i.e.,

wellness contacts in proposed § 71.40(b)(2)). It may not always be appropriate for the clinical staff conducting home visits to collaborate directly with the eligible veteran's primary care team. It may be more appropriate for the clinical staff

conducting home visits to collaborate with the Caregiver Support Coordinator (CSC) who would then collaborate with the primary care team, and would be the liaison between the primary care team and the clinical staff conducting home visits. As discussed below in the context of proposed § 71.40(b)(2), the primary care team would still maintain the eligible veteran's treatment plan and be involved in monitoring the well-being of eligible veterans.

With these changes, the term “primary care team” would only be referenced in part 71 in proposed § 71.20(a)(7) in reference to the eligible veteran receiving ongoing care from a primary care team (based on current § 71.20(g)) and proposed § 71.25(a)(2)(i) in reference to VA's evaluation of PCAFC applications. In these contexts, it is important to revise the current definition of “primary care team” in § 71.15 to make clear that it refers to one or more VA medical professionals, and to recognize the variation in how eligible veterans receive care from VA.

First, we would remove the reference to a group “selected by VA” and instead refer to “one or more VA medical professionals.” The current phrase “selected by VA,” is ambiguous and can be interpreted to mean non-VA medical professionals or VA medical professionals selected to serve on the primary care team for an eligible veteran. This proposed change would remove this ambiguity by clearly stating that the primary care team is one or more VA medical professionals. Pursuant to 38 U.S.C. 1720G(a)(9)(A) through (C), VA is required to monitor the well-being of eligible veterans receiving personal care services from a designated Family Caregiver; document findings pertinent to the delivery of personal care services; and ensure appropriate follow up. Requiring eligible veterans to receive ongoing care from a primary care team that consists of one or more VA medical professionals pursuant to proposed § 71.20(a)(7) would ensure that VA is able to continue to fulfill these statutory requirements. Additionally, section 161(a)(6) of the VA MISSION Act of 2018 requires that PCAFC applications be evaluated by VA in collaboration with the primary care team for the eligible veteran to the maximum extent practicable. See 38 U.S.C. 1720G(a)(5), as amended by Public Law 115-182, section 161(a)(6). We recognize that veterans or servicemembers may receive care from non-VA providers in the community; however, for purposes of evaluating joint applications under proposed § 71.25(a)(2)(i), we would rely on input from the VA medical professional(s) who care for the patient. Additionally, we recognize that eligible veterans, based on individual needs, may only receive care from one VA medical professional or may receive care from multiple VA medical professionals; therefore, we would remove reference to “group” and instead refer to “one or more.” This revised definition would ensure collaboration with the VA medical professional(s) involved in the patient's care during the evaluation of the individual's joint application. Referencing the phrase “one or more VA medical professionals” instead of referring to medical professionals “selected by VA” would operationally be the most feasible to implement and ensure VA meets its statutory obligations.

Second, we would remove the phrase “who coordinates care” from the current definition because that phrase can be misinterpreted to mean a care coordinator or a provider who coordinates care with other providers. This phrase also does not specify whether the care coordinated is specific to care related to PCAFC or all of the care coordination needs of the eligible veteran. We have interpreted this phrase to mean a provider who coordinates the clinical needs of his or her patients which we believe is inherent in the duties of VA medical professionals. Thus, we would remove the requirement in the current definition that the primary care team must include a “provider who coordinates the care.”

Third, we would remove the phrase “must include a primary care provider,” and references to other clinical specialists as indicated by the needs of the particular patient. Some eligible veterans participating in PCAFC may receive their primary care in the community and may only utilize VA for a portion of their care, such as mental health or specialty services. Therefore, we would remove the requirement that a primary care provider must be part of the primary care team. Additionally, because this definition would refer to one or more VA medical professionals who care for a patient based on the clinical needs of the patient, we do not believe it is necessary to specify the types of medical professionals who could serve on the primary care team for an eligible veteran.

As revised the term “primary care team” would mean one or more VA medical professionals who care for a patient based on the clinical needs of the patient. We believe this revision would meet our statutory requirements, accommodate veterans and servicemembers who may receive care in the community, and ensure that eligible veterans participating in PCAFC receive care from one or more VA medical professionals based on their needs.

We would also revise the definition of “serious injury” in current § 71.15. When Congress enacted the Caregivers Act, it limited PCAFC to eligible Veterans with a “serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, or air service.” 38 U.S.C. 1720G(a)(2)(B). Currently, VA's regulations define “serious injury” at § 71.15 and implement the requirement at current § 71.20(b) and (c) mainly by restating the statutory language without providing guidance or clarity as to its meaning. “Serious injury” is currently defined in § 71.15 to mean “any injury, including traumatic brain injury, psychological trauma, or other mental disorder, incurred or aggravated in the line of duty in the active military, naval, or air service on or after September 11, 2001, that renders the veteran or servicemember in need of personal care services.” This definition has led to implementation challenges, among them inconsistent eligibility determinations by VA providers. We believe it is critical for VA to revise its definition of “serious injury” to address these challenges and improve PCAFC administration. In addition, we believe a revised definition of “serious injury” would help ensure that eligible veterans who served both before and after September 11, 2001 have equitable access to PCAFC. We propose four significant revisions to the current “serious injury” definition in § 71.15, which are discussed in detail below.

First, we would define the term “injury” to include “any service-connected disability” regardless of whether it resulted from an injury, illness, or disease. Second, we would define “serious injury” to mean having a singular or combined rating of 70 percent or more based on one or more service-connected disabilities. Third, we would no longer require a connection between the need for personal care services and a specific serious injury. Finally, we would remove the phrase “incurred or aggravated in the line of duty in the active military, naval, or air service” and replace it with “service-connected.” As revised, the term “serious injury” would be defined to mean any service-connected disability that (1) is rated at 70 percent or more by VA, or (2) is combined with any other service-connected disability or disabilities and a combined rating of 70

percent or more is assigned by VA. In this discussion, we outline the issues associated with PCAFC's current definition of “serious injury,” describe alternative approaches, and propose a new definition that would reduce subjectivity and help ensure more equitable implementation of PCAFC.

The lack of clarity on what constitutes an “injury” has placed an inordinate responsibility on providers assessing PCAFC eligibility and, as a result, has contributed to delays in VA's adjudication of PCAFC applications. It is generally not necessary for VA to distinguish between injuries and diseases in establishing service-connection for purposes of disability compensation. See 38 U.S.C. 1110 and 1131 (referring to both “injury” and “disease”). Therefore, the vast majority of VA rating decisions do not indicate whether a disability is attributable to an injury as compared to a disease. In addition, the terms “injury” and “disease” for purposes of compensation are not defined in title 38, United States Code or Code of Federal Regulations. Thus, VA providers evaluating PCAFC eligibility must rely on complex assessment, clinical diagnoses, or other credible evidence of injury, which may not be available. In the absence of clear guidance on what constitutes an injury or how to distinguish an injury from illnesses and diseases, providers apply subjective clinical judgement on a case-by-case basis.

Providers' interpretations of the “injury” requirement vary, resulting in inconsistent outcomes for PCAFC applicants between VA facilities and VA providers. For example, some VA providers have applied the term injury to include illnesses and diseases that have resulted from an injury during service while others have not (

e.g.,

one VA provider may determine that a veteran's arthritis resulted from an injury incurred in the line of duty, whereas another may consider it to be a chronic disease that, while incurred in the line of duty, does not constitute an injury). Providers may also consider the term injury to include exposure to environmental hazards during service, such that illnesses and diseases resulting from an environmental exposure could be considered injuries (

e.g.,

a veteran may suffer from neurological impairments as a result of exposure to burn pits, but providers may have differing opinions on whether that type of exposure constitutes an injury). Additionally, providers may have differing opinions as to what caused a veteran's service-connected disability (

e.g.,

a provider in one VA facility may consider a veteran's migraine headaches to be caused by a traumatic brain injury (TBI), and therefore a qualifying injury, whereas in another the VA provider may attribute the migraine headaches to a viral or bacterial infection of the head and neck that does not constitute an injury). Furthermore, the inclusion of “psychological trauma” and “other mental disorder” in 38 U.S.C. 1720G(a)(2)(B) has raised questions as to which mental health diagnoses are considered an “injury” under the law. For example, providers may have different interpretations of whether “injury” includes a mental health diagnosis clearly associated with an illness or disease (

e.g.,

where a veteran's disability rating decision documents that the veteran's post-traumatic stress disorder (PTSD) or major depressive disorder is the result of an illness, like cancer). If VA continues to apply the current definition of “serious injury,” these challenges are likely to be exacerbated as PCAFC is expanded to veterans who served before September 11, 2001. Not only will VA be processing more applications for PCAFC, but also considering eligibility for veterans of earlier eras for whom evidence establishing “injury” during military service may not be as readily available.

Outside the context of PCAFC, VA generally only considers whether a disability or a death resulted from an injury as compared to a disease when a claim is filed alleging that a disability or death was incurred during inactive duty training. VA compensation is payable only if, during inactive duty training, an individual was disabled or died “from an injury incurred or aggravated in line of duty,” or from an “acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.” 38 U.S.C. 101(24)(C). The VA General Counsel has analyzed the distinction between “injury” and “disease” for purposes of 38 U.S.C. 101(24) and concluded that the term “injury” denotes harm from external trauma, as distinguished from “disease” which refers to a type of internal infection or degenerative process. Also, VA's disability compensation regulations specify that certain presumptive exposures during service constitute an “injury” for purposes of 38 U.S.C. 101(24). See 38 CFR 3.307(a)(6)(v) (regarding presumed exposures on C-123 aircraft) and (a)(7)(iv) (regarding presumed exposures to contaminants in the water supply at Camp Lejeune).

VA also administers the Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) program under 38 U.S.C. 1980A. TSGLI provides short-term financial assistance to servicemembers insured by Servicemembers' Group Life Insurance who sustain a traumatic injury directly resulting in a scheduled loss. VA's regulations governing TSGLI at 38 CFR 9.20(b) and (c)(1) define “traumatic injury” to mean “physical damage to a living body” caused by “the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being.” The term “traumatic injury” specifically excludes “damage to a living body caused by—(i) [a] mental disorder; or (ii) [a] mental or physical illness or disease, except if the physical illness or disease is caused by a pyogenic infection, biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance.” 38 CFR 9.20(c)(2).

While VA's interpretation of “injury” for purposes of 38 U.S.C. 101(24) and the TSGLI definition of “traumatic injury” for purposes of 38 U.S.C. 1980A are useful as references in defining “injury” for purposes of PCAFC, they are not dispositive. In many respects, the term “serious injury” in 38 U.S.C. 1720G is distinguishable from “injury” and “traumatic injury” under 38 U.S.C. 101(24) and 1980A, respectively.

First, the context in which “serious injury” appears in 38 U.S.C. 1720G(a)(2)(B) diverges significantly from “injury” in 38 U.S.C. 101(24)(C) and “traumatic injury” in 38 U.S.C. 1980A. Section 1720G(a)(2)(B) includes the terms “psychological trauma” and “other mental disorder,” which suggests that, rather than distinguishing “injury” and “disease,” the term “serious injury” includes certain illnesses and diseases. This is in stark contrast to 38 U.S.C. 101(24)(B) and (C) where “injury” is clearly distinguished from the term “disease.” Compare 38 U.S.C. 101(24)(B) (“any period of active duty for training during which the individual concerned was disabled or died from a disease or injury”), with section 101(24)(C) (“any period of inactive duty training during which the individual concerned was disabled or died . . . from an injury”). The inclusion of “mental disorder”—conditions that may otherwise be considered “diseases”—also distinguishes “serious injury” in section 1720G(a)(2)(B) from TSGLI's definition of “traumatic injury,” which generally excludes coverage for mental disorders (except as specified). In addition, 38 U.S.C. 1980A prescribes certain “qualifying losses” for purposes of TSGLI, to include: Total and permanent loss of sight, speech, hearing

in both ears; loss of hand or foot by severance at or above the wrist or ankle; quadriplegia, paraplegia, or hemiplegia; certain burns; and coma or the inability to carry out two or more activities of daily living resulting from traumatic injury to the brain. Congress was not so prescriptive in 38 U.S.C. 1720G, and likely had a broader veteran population in mind when referencing “serious injury” for purposes of PCAFC as opposed to servicemembers with a “traumatic injury” under 38 U.S.C. 1980A. Whereas the term “trauma” is frequently defined with reference to external force or violence (see 70 FR 75940, at 75941 (December 22, 2005) (citing VAOPGC 6-86)), the term “serious” does not carry the same connotations. See

Ballentine's Law Dictionary,

3rd Ed. (2010),

available at

LexisNexis (defining “serious” as “[i]mportant; weighty, momentous and not trifling,” and in the definition of “serious bodily injury” explaining “[t]he word `serious,' when used to define the degree of bodily harm or injury apprehended, requires or implies as high a degree as the word `great' and the latter word means high in degree, as contradistinguished from trifling.”)

Second, there are notable differences in PCAFC under 38 U.S.C. 1720G and these other title 38 authorities (

i.e.,

38 U.S.C. 101(24) and 1980A). Section 101(24)(C) is limited to injuries and other conditions occurring during training, which is likely related to the nature of inactive-duty training as involving only brief periods of service. For example, Congress may have determined that diseases becoming manifest during such brief periods of service are less likely to be causally related to such service than injuries occurring during such service. The same cannot generally be said of veterans eligible for PCAFC. It is more likely that Congress limited PCAFC to veterans with a serious injury because PCAFC was originally focused on veterans who served on or after September 11, 2001, primarily veterans of Operation Enduring Freedom, Operation Iraqi Freedom, and Operation New Dawn. TBI and PTSD have been referred to as “invisible injuries” and as the “signature wounds” of these conflicts, and it could have been Congress's intent to focus PCAFC benefits on veterans who sustained such disabilities and other “visible” injuries, as opposed to veterans with other service-connected illnesses or diseases.

Congress may have had a similar population in mind when establishing TSGLI benefits in 2005. Public Law 109-13, section 1032 (2005). As explained in VA's interim final rule establishing 38 CFR 9.20:

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

70 FR 75940 (December 22, 2005). However, unlike PCAFC, TSGLI is modeled after commercial Accidental Death and Dismemberment insurance coverage, specifically, the “dismemberment” portion of the coverage. Id. In contrast, PCAFC is a clinical benefit program administered through VHA and designed to provide assistance to Family Caregivers that provide personal care services to eligible veterans. Unlike TSGLI, which is limited to lump-sum monetary assistance, PCAFC provides eligible Family Caregivers with training and technical support to assist Family Caregivers in their role as a caregiver for an eligible veteran. In addition, PCAFC provides eligible Family Caregivers with counseling and mental health services, respite care, medical care under CHAMPVA, and a monthly personal caregiver stipend. Rather than quantifying losses, PCAFC is designed to support the health and well-being of eligible veterans, enhance their ability to live safely in a home setting, and support their potential progress in rehabilitation, if such potential exists. 38 CFR 71.15.

Further, while Congress may have originally intended to focus PCAFC on the signature disabilities of veterans who served after September 11, 2001, the VA MISSION Act of 2018 expanded PCAFC to veterans of earlier eras. Veterans who served before September 11, 2001, have high incidences of PTSD and other “visible” injuries similar to those who served after September 11, 2001; however, the signature disabilities of earlier conflicts also include other illnesses and diseases, such as diseases presumed to be the result of herbicide exposure in Vietnam and other places, and chronic multi-symptom illness experienced by Persian Gulf Veterans. Other service-connected disabilities that prevail in these populations include multiple sclerosis (MS), amyotrophic lateral sclerosis (ALS), and hepatitis C—disabilities that are generally considered to be diseases, not injuries.

In establishing a proposed definition of “injury” for purposes of PCAFC, we considered incorporating elements of VA's interpretation of “injury” under 38 U.S.C. 101(24) and the TSGLI definition of “traumatic injury” for purposes of 38 U.S.C. 1980A, while also addressing the implementation challenges outlined above and recognizing the disabilities of veterans who served before September 11, 2001. One possibility we considered was defining “injury” for purposes of PCAFC to include not only harm resulting from a violent encounter, such as application of chemical, biological, and radiological weapons, but also adverse effects on body tissue or systems resulting from: Introduction of a foreign substance, such as ingestion of a contaminated substance or exposure to a vaccination; exposure to environmental hazards like certain herbicides agents, volatile organic compound contaminants, radiation, excessive heat or cold, or non-penetrating blast waves; detention, internment, or confinement as a prisoner of war; and an insect bite or sting, or animal bite. Such a definition would recognize as an “injury” those service-connected disabilities presumed by VA to be the result of exposure during service (including disabilities associated with exposure to certain herbicide agents and diseases specific to radiation-exposed veterans), as well as any illnesses or diseases known to be caused by exposure to environmental hazards based on direct evidence (including known exposure to burn pits).

Although such a definition would be more inclusive and address some of the confusion with the current “serious injury” definition, we believe it would also result in additional inequities. This is because not all veterans who experienced such exposures or other injuries qualify for statutory or regulatory presumptions of service-connection, and credible evidence of such exposures or other injuries is not always available. As a result, similarly situated veterans with the same debilitating disease could be treated differently for purposes of PCAFC eligibility based only on whether the veteran qualifies for a presumption of service-connection based on an exposure or other injury or has evidence reflecting that the disease was caused by an exposure or other injury. For example, a veteran's service-connected Parkinson's disease could be considered

to be an “injury” for purposes of PCAFC if the veteran's rating decision reflects a presumption of exposure to water supply contaminants at Camp Lejeune, but a similarly-situated veteran who does not qualify for a presumption of exposure could be determined ineligible for PCAFC based solely on a clinical decision that the disease did not result from a qualifying injury in the line of duty. Similarly, a veteran with type 2 diabetes who qualifies for a presumption of exposure to herbicides in the Republic of Vietnam could be considered to have an “injury” for purposes of PCAFC, but another Veteran with service-connected type 2 diabetes who served in a different location or era of service could be determined ineligible for PCAFC because of a lack of evidence linking the veteran's diabetes to an exposure or other injury during service. Likewise, a veteran who incurred hepatitis C in the line of duty may believe it to have been caused by exposure to an infected vaccine needle, but without evidence to establish such a connection or other injury, it would be difficult for a provider evaluating PCAFC eligibility to classify the disease as an “injury” under this definition.

Moreover, other disabilities presumed by VA to be caused by active military, naval, or air service, or compensable based on having manifested within a certain time period, are not known to have resulted from an identifiable exposure or other injury (such as ALS and certain disabilities of Persian Gulf Veterans). For some veterans, establishing that their illness or disease resulted from an exposure in the line of duty would be challenging. With ALS, for example, “continuing uncertainty regarding specific precipitating factors or events that lead to development of the disease would present great difficulty for individual claimants seeking to establish service connection by direct evidence.” 73 FR 54692 (September 23, 2008). The same would be true of veterans trying to characterize their ALS as an injury for purposes of PCAFC. Although VA could propose that veterans with these qualifying presumptions would be considered to have an injury for purposes of PCAFC, we do not believe there is a rational basis for including veterans with these presumptive disabilities while excluding veterans whose service-connection was based on direct evidence of other illnesses or diseases incurred or aggravated in the line of duty.

We believe the definition of “injury” for purposes of PCAFC should be as inclusive as possible, but also recognize that including additional categories of specific types of external trauma would result in continued inequities and seemingly arbitrary distinctions. Defining “injury” to include diseases resulting from presumed exposures to environmental hazards, for example, would result in an expansion of PCAFC eligibility to veterans of earlier service eras for whom presumptions have been established, but similarly situated veterans of later service eras would be excluded because there is not yet scientific evidence to establish such presumptions. While we believe it would be unreasonable for VA to expand PCAFC benefits to veterans who served before September 11, 2001 without also recognizing the disabilities prevalent among such veterans, it would also be unreasonable to consider the same disabilities to be disqualifying for purposes of PCAFC for veterans who served after September 11, 2001.

Even administrative improvements, like developing detailed clinical guidelines, centralizing eligibility decisions, and training providers who render PCAFC eligibility decisions, would not eliminate these inequities, and could place VA providers in the position of rendering adjudicative decisions like those made by VBA claims examiners for purposes of VA rating determinations. We do not believe Congress intended this result. Accordingly, we believe that, to the extent the statutory language allows, the statute should be construed in a manner that minimizes the potential for complex and time-consuming eligibility determinations and disparate treatment of veterans with similar service-connected conditions and similar medical needs arising from those conditions.

Caregivers of veterans with illnesses and diseases incurred or aggravated in the line of duty, like those mentioned above, could benefit from PCAFC assistance in the same manner as caregivers of veterans with injuries, such as TBI and spinal cord injury. The most equitable and reasonable approach to resolving these challenges would be to recognize any service-connected disability as an “injury” for purposes of PCAFC.

Therefore, to address the implementation challenges discussed above in a more objective, inclusive, and equitable manner, we propose to define “injury” in 38 U.S.C. 1720G(a)(2)(B) to include any service-connected disability, regardless of whether it resulted from an injury or an illness or disease.

We note that this definition would apply only for purposes of PCAFC and would not affect other VA statutes, specifically, the application of “injury” and “traumatic injury” under 38 U.S.C. 101(24) and 1980A, respectively. As we have explained above, PCAFC is distinguishable from these other statutes, and the context in which “injury” is used in 38 U.S.C. 1720G, supports a different interpretation than has been applied for 38 U.S.C. 101(24) and 1980A.

The fact that 38 U.S.C. 101(24) and 1980A appear to treat “injury” and “disease” as mutually exclusive categories for purposes of those statutes does not preclude us from construing the term “injury” in section 1720G(a)(2)(B) to include diseases and illnesses for purposes of that provision. Although “there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning . . . the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.”

Atlantic Cleaners & Dyers, Inc.

v.

United States,

286 U.S. 427, 433 (1932). Congress has not defined the term “injury” for purposes of title 38 nor has it otherwise indicated an intent that the term be given a single meaning for purposes of all provisions within title 38.

Cf. Allen

v.

Brown,

7 Vet. App. 439, 447 (1995) (“The absence of a single generally applicable definition in 38 U.S.C. 101, which would control the interpretation of that term in other parts of title 38, suggests that the term `disability' may reasonably be interpreted as having different meaning in different parts of title 38.”).

In section 1720G(a)(2)(B), Congress specified that the term “serious injury” includes “traumatic brain injury, psychological trauma, or other mental disorder” for purposes of that section. The most natural reading of that language is that all mental disorders—including those that could be considered diseases, rather than injuries, under other provisions in title 38—may be within the scope of the term “serious injury” for purposes of section 1720G(a)(2)(B). We therefore conclude that Congress did not intend to categorically exclude from coverage under section 1720G(a)(2)(B) all conditions that likely would be considered “diseases” for purposes of other provisions in title 38. Further, by using the term “including” to preface the parenthetical reference to TBI, psychological trauma, and other mental disorders, Congress indicated that those examples are not exhaustive.

Although we believe it is clear that the term “injury” as used in section 1720G(a)(2)(B) is broader in scope than the similar terms as used in other parts of title 38, the statutory text does not indicate the full intended scope of section 1720G(a)(2)(B). In resolving that ambiguity, we note that “[s]tatutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible.”

Am. Tobacco Co.

v.

Patterson,

456 U.S. 63, 71 (1982). VA's proposed interpretation would minimize the risk of disparate treatment based on difficult and possibly subjective determinations as to the specific causes of a veteran's service-connected condition. It would also minimize the need for complex adjudicative determinations separate from those governing entitlement to VA disability compensation, which could delay administration of PCAFC assistance. Considering all service-connected disabilities to be injuries for purposes of PCAFC would reduce subjective clinical judgement and individual determinations with respect to whether a service-connected disability constitutes an “injury.” Instead, VA providers evaluating PCAFC eligibility could simply rely on VA rating decisions finding a disability in establishing whether a veteran has an “injury” for purposes of PCAFC, and thereby establish a more objective standard to assess eligibility. We note that under this proposed definition, VA would no longer be assessing whether a veteran's disability is related to an injury, however it would still have to be related to the veteran's military service. Under 38 U.S.C. 1720G(a)(2)(B), determining a veteran's disability to be “incurred or aggravated in the line of duty in the active military, naval, or air service,” requires evidence of a relationship between a veteran's in-service disease, injury, symptoms, or event and the veteran's current disability. In some cases, this relationship is shown by use of a legal presumption that the disability is related to a particular type of military service, but in other cases, it is established with direct evidence. However, in all cases, a veteran's disability must be determined to be related to the veteran's military service, even if the specific cause (

e.g.,

an injury or disease) is unknown.

The second revision to this definition would be to distinguish an “injury” from a “serious injury” by requiring that the veteran or servicemember have a single disability rated at 70 percent or more by VA, or a have a combined rating of 70 percent or more. We believe requiring at least a 70 percent rating for a singular service-connected disability or combined rating of 70 percent for multiple service-connected disabilities would demonstrate that a veteran's injuries rise to the level of serious. VA provides nursing home care, to include at VA Community Living Centers, to eligible veterans with a 70 percent or greater service-connected disability rating (see 38 U.S.C. 1710A) based on their clinical needs, and PCAFC is designed to assist a similar population of veterans and servicemembers to remain in their homes. We note that the eligibility criteria for PCAFC and nursing home care are not identical and that there may be many instances when nursing home care would be more appropriate for a veteran or servicemember than PCAFC. However, this definition would help ensure that we are targeting a similar group of veterans and servicemembers with moderate and severe needs. Also, it would remove the current subjectivity in determining whether an injury meets the level of serious injury and would provide a transparent and clearly defined standard that can be consistently applied throughout VA. It would also help ensure better understanding of the term “serious” by veterans, servicemembers, and caregivers. Additionally, we assessed the service-connected rating of eligible veterans currently participating in PCAFC and found that the majority have a single or combined rating of 70 percent or more. Furthermore, alternatives explored, such as requiring the eligible veteran qualify for a higher disability rating, would be too restrictive and would result in the majority of the current PCAFC participants no longer qualifying for the program.

For servicemembers undergoing medical discharge (as defined in current § 71.15) who apply for PCAFC, we would accept their proposed VA rating of disability when determining whether the servicemember has a serious injury. When servicemembers are referred to a Physical Evaluation Board and file a VA Form 21-0819,

VA/DOD Joint Disability Evaluation Board Claim,

they are issued a proposed VA rating decision. A final VA rating decision is not issued until VA verifies a member's character of service and date of discharge from active duty, but this proposed rating generally does not change from the time the member received the proposed rating until the official VA rating is provided unless a clear and unmistakable error exists in the proposed rating decision, and/or VA receives new evidence after issuing the proposed rating decision that justifies changing one or more of the decisions set forth in it. While proposed ratings may be adjusted, so can the disability ratings of a veteran over time. Thus, any changes to the rating, regardless of whether the change is for a servicemember undergoing medical discharge or a veteran, that results in a rating of less than 70 percent for a single service-connected disability or a combined rating of less than 70 percent for multiple service-connected disabilities would result in the veteran or servicemember no longer being eligible for PCAFC.

Third, we would no longer require a connection between the veteran's or servicemember's need for personal care services and a specific serious injury; instead, a veteran or servicemember may qualify for this program because they have a need for personal care services for another reason, so long as the veteran or servicemember also has a singular or combined rating of 70 percent or more based on one or more service-connected disabilities (and meets other applicable criteria). We believe decoupling serious injury and the need for personal care services is necessary, as in most cases, the eligible veteran has multiple conditions that may warrant a need for personal care services, and it may not necessarily be because of the disability that he or she incurred or aggravated during their military service. We note that veterans often have complex needs as a result of several conditions and find this even more true among the older veteran population. Their needs can be so complex that it can be difficult to parse out and determine what specific condition out of many causes the need for personal care services. For example, an individual may have leg pain due to a service-connected spinal cord injury but be able to manage his or her symptoms. After a number of years, the individual is diagnosed with diabetes unrelated to his or her military service. Over time, the individual develops neuropathy in his or her lower extremities, which results in the individual being unable to complete his or her ADLs independently. The onset of neuropathy could be related to either the spinal cord injury or diabetes. This example illustrates the difficulty of these clinical decisions because the determination of whether the onset of neuropathy is related to the qualifying serious injury or the illness unrelated to military service would be a subjective clinical determination. Currently there is inconsistency in how the term

“serious injury” is interpreted due to the complexity of assessing the specific medical condition and whether it renders the veteran or servicemember in need of personal care services. As a result, we believe it is necessary to decouple serious injury from the need for personal care services.

Finally, we propose to simplify the “serious injury” definition by replacing the phrase “incurred or aggravated in the line of duty in the active military, naval, or air service” with “service-connected.” As previously explained, the current definition for serious injury is based on the language in 38 U.S.C. 1720G(a). However, 38 U.S.C. 101(16) defines “service-connected” as a disability incurred or aggravated, or a death that resulted from a disability incurred or aggravated, in line of duty in the active military, naval or air service. Because the phrase “incurred or aggravated in the line of duty in the active military, naval, or air service” in 38 U.S.C. 1720G(a)(2)(B) is generally synonymous with the term “service-connected” in 38 U.S.C. 101(16), we would simplify the “serious injury” definition accordingly. Thus, we propose to use “service-connected” in the proposed revised definition for serious injury. We note that proposed § 71.20(a)(2) would continue to use the phrase “incurred or aggravated in the line of duty in the active military, naval, or air service” in reference to the veteran's or servicemember's serious injury for purposes of establishing eligibility under the dates specified in proposed § 71.20(a)(2)(i) through (iii) and 38 U.S.C. 1720G(a)(2)(B)(i) through (iii).

We believe these proposed changes to the definition of “serious injury” would establish faster, more consistent PCAFC eligibility determinations by VA providers, and help ensure more equitable implementation of PCAFC for veterans who served both before and after September 11, 2001. Defining serious injury in this manner would create more uniformity in eligibility determinations across VA through more objective criteria. By recognizing the disabilities prevalent among veterans who served before September 11, 2001 through inclusion of illnesses and diseases, we would support Congress's goal of remedying the “inequity that currently exists between pre- and post-9/11 veterans and their caregivers” and “recognize the service and sacrifice of veteran caregivers of all ages and eras.” H.R. Rep. No. 115-671, at 17 (2018) (accompanying H.R. 5674, which contained language identical to that enacted in sections 161-163 of the VA MISSION Act of 2018). Similarly, decoupling serious injury and the need for personal care services would also recognize the complex challenges faced by veterans whom we believe PCAFC was intended to support, and eliminate difficult clinical assignment of personal care service needs to specific conditions. Moreover, adopting a 70 percent or more service-connected disability rating requirement would provide an objective clinical standard to establish the appropriate degree of severity of a veteran's or servicemember's disability for purposes of PCAFC. Our proposed definition of “serious injury” would support transparency in PCAFC eligibility decisions and improve understanding by veterans, servicemembers, and their caregivers. However, we note that “serious injury” is only one criterion a veteran or servicemember would have to meet in proposed § 71.20 to be eligible for PCAFC.

We believe this approach comports with the statutory language and context and provides the most fair and effective means of implementing the statutory language by minimizing the potential for complex and time-consuming eligibility determinations and disparate treatment of veterans with similar service-connected conditions and similar medical needs arising from those conditions. We note that some veterans with service-connected disabilities resulting from illnesses and diseases have already been determined eligible for PCAFC even absent this definition as a result of providers' subjective clinical decisions and the statute's inclusion of certain illnesses and diseases under the terms “psychological trauma” and “other mental disorder.”

We would add a new definition for the phrase “unable to self-sustain in the community,” which would be applied for purposes of determining the monthly stipend level under proposed § 71.40(c)(4)(i)(A), discussed further below. As further explained in this rulemaking, we propose to establish two levels for the monthly stipend payments versus the three tiers currently listed in § 71.40(c)(4)(iv)(A) through (C), and unable to self-sustain in the community would be used as the sole criterion to establish eligibility for the higher-level. The term “unable to self-sustain in the community” would mean that an eligible veteran (1) requires personal care services each time he or she completes three or more of the seven activities of daily living (ADL) listed in the definition of an inability to perform an activity of daily living in this section, and is fully dependent on a caregiver to complete such ADLs; or (2) has a need for supervision, protection, or instruction on a continuous basis. The basis for selecting this proposed definition is addressed in the discussion of proposed § 71.40(c)(4) below.

§ 71.20 Eligible Veterans and Servicemembers

Current 38 CFR 71.20 sets forth the criteria for veterans and servicemembers to be determined eligible for a Primary or Secondary Family Caregiver under part 71. In this section, we propose to revise the current eligibility criteria, but also ensure that legacy participants and legacy applicants, as those terms would be defined in proposed § 71.15, would remain eligible for PCAFC for a one-year transitional period beginning on the effective date of this rule (subject to the limitations discussed in this proposed rule) while VA completes a reassessment to determine their eligibility under our new proposed eligibility requirements. As a result, we propose to restructure § 71.20 to also accommodate legacy participants and legacy applicants. Proposed paragraphs (a)(1) through (7) would set forth proposed eligibility criteria adapted from current paragraphs (a) through (g); proposed paragraph (b) would address eligibility of legacy participants; and proposed paragraph (c) would address eligibility of legacy applicants. We would add a new introductory paragraph to establish that a veteran or servicemember would be eligible for a Family Caregiver under part 71 if he or she meets the criteria in paragraph (a), (b), or (c) of § 71.20, subject to the limitations set forth in such paragraphs.

In proposed § 71.20(a), we would set forth our proposed eligibility criteria for PCAFC, which would be adapted from current § 71.20(a) through (g). These criteria would be applied to determine eligibility pursuant to any joint application received by VA on or after the effective date of the rule, as discussed further below with regard to proposed § 71.25(a)(3). One year after the effective date of the rule, these criteria would apply to all veterans and servicemembers participating in PCAFC. We would redesignate the current introductory paragraph in § 71.20 as paragraph (a), which would provide that a veteran or servicemember is eligible for a Primary or Secondary Family Caregiver under part 71 if he or she meets all of the requirements in paragraphs (a)(1) through (7). We would make no changes to the language that appears in the current introductory paragraph. Proposed paragraph (a)(1), and new proposed paragraphs (a)(1)(i) and (ii) would state that the individual must be either a veteran, or a member of the Armed Forces undergoing a

medical discharge from the Armed Forces. This is the same language in current paragraphs (a) introductory text and (a)(1) and (2).

Current paragraph (b) of § 71.20 sets forth the requirement that the individual must have a serious injury, including traumatic brain injury, psychological trauma, or other mental disorder, incurred or aggravated in the line of duty in the active military, naval, or air service on or after September 11, 2001. As explained previously in this rulemaking, section 161 of the VA MISSION Act of 2018 amended 38 U.S.C. 1720G by expanding eligibility for PCAFC to Family Caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001 in a phased approach.

We propose to redesignate current paragraph (b) as (a)(2), revise proposed paragraph (a)(2), and add paragraphs (a)(2)(i) through (iii) to address the phased expansion required by the VA MISSION Act of 2018. Current paragraph (b) states that the individual has a serious injury, including traumatic brain injury, psychological trauma, or other mental disorder, incurred or aggravated in the line of duty in the active military, naval, or air service. In proposed paragraph (a)(2), we would continue to state that the individual has a serious injury incurred or aggravated in the line of duty in the active military, naval, or air service. However, we would remove the phrase “including traumatic brain injury, psychological trauma, or other mental disorder” that appears in current § 71.20(b) because such conditions would be captured by our proposed definition of “serious injury.”

As previously explained, we are proposing to revise the definition of “serious injury” in § 71.15 to mean any service-connected disability that (1) is rated at 70 percent or more by VA, or (2) is combined with any other service-connected disability or disabilities, and a combined rating of 70 percent or more is assigned by VA. This proposed definition of serious injury would include service-connected disabilities regardless of whether they are injuries, illnesses, or diseases, and thus would encompass traumatic brain injury, psychological trauma, or other mental disorder. Although the phrase “incurred or aggravated in the line of duty in the active military, naval, or air service” would also be encompassed by our revised definition of “serious injury” through the term “service-connected,” as previously explained, it would be needed for purposes of determining eligibility based on the dates specified in proposed paragraphs (a)(2)(i) through (iii).

We would move the language in current paragraph (b) that requires this serious injury have been incurred or aggravated in the line of duty in the active military, naval, or air service “on or after September 11, 2001” to proposed new paragraph (a)(2)(i). In proposed new paragraph (a)(2)(ii), we would add language to reflect that a veteran or servicemember would be eligible for this program if his or her serious injury was incurred or aggravated in the line of duty in the active military, naval, or air service “on or before May 7, 1975.” We would include language to state that the expansion of the program under proposed paragraph (a)(2)(ii) would become effective on the date specified in a future

Federal Register

document since this expansion is contingent upon the Secretary submitting the required certification to Congress, as discussed previously.

Similarly, in proposed new paragraph (a)(2)(iii), we would add language to reflect that a veteran or servicemember would be eligible for this program if his or her serious injury was incurred or aggravated in the line of duty in the active military, naval, or air service after May 7, 1975 and before September 11, 2001. Proposed paragraph (a)(2)(iii) would cover the final expansion of the program to eligible veterans of all eras, as required by the VA MISSION Act of 2018. We would include language to state that the expansion of the program under proposed paragraph (a)(2)(iii) would be effective two years after the date of the future

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document specified in paragraph (a)(2)(ii) since this expansion is triggered two years after we submit the required certification to Congress, as discussed previously. We note that pursuant to proposed § 71.25(a)(3)(ii)(A) and (B), discussed further below, VA would deny any joint application received by VA from a veteran or servicemember before such veteran or servicemember becomes eligible under paragraphs (a)(2)(ii) or (iii).

Current paragraph (c) of § 71.20 requires that the veteran or servicemember have a serious injury that renders the individual in need of personal care services for a minimum of six continuous months. This is based on a clinical determination authorized by the individual's primary care team, and is based on whether the veteran or servicemember meets one of four specifically listed criteria.

As part of this rulemaking, we propose to revise current paragraph (c) by redesignating it as paragraph (a)(3) and removing the language that requires the individual's serious injury to render the individual in need of personal care services. We would specifically remove the language that “couples” the serious injury with the need for personal care services, as we previously explained in detail in the discussion on the proposed definition of “serious injury” in proposed § 71.15. Our proposed definition of “in need of personal care services” would apply for purposes of determining eligibility under proposed paragraph (a)(3).

As discussed above regarding our proposed definition of “primary care team” in proposed § 71.15, we would also remove the current language that states the individual's primary care team authorizes the clinical determination that the individual has a serious injury that renders the individual in need of personal care services for a minimum of six continuous months. Collaboration with the primary care team would instead be referenced in proposed § 71.25(a)(2)(i). Furthermore, the use of the term “clinical” is redundant since all decisions affecting the furnishing of assistance or support under 38 U.S.C. 1720G are considered medical determinations. See 38 U.S.C. 1720G(c)(1). As revised, § 71.20(a)(3) would state that “[t]he individual is in need of personal care services for a minimum of six continuous months based on any one of the [criteria listed in proposed § 71.20(a)(3)(i) and (ii)].”

Current 38 CFR 71.20(c)(1) through (4) provides that the veteran or servicemember must have: (1) An inability to perform an activity of daily living; (2) a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury, including traumatic brain injury; (3) psychological trauma or a mental disorder that has been scored with Global Assessment of Functioning test scores of 30 or less; or (4) a service connected disability rated at 100 percent for a serious injury incurred or aggravated in the line of duty on or after September 11, 2001, and the veteran or servicemember has been awarded special monthly compensation that includes an aid and attendance allowance. The former two bases upon which the individual can be deemed in need of personal care services (

i.e.,

an inability to perform an activity of daily living; and a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury, including traumatic brain injury), contained in current § 71.20(c)(1) and (2), restate the bases in 38 U.S.C. 1720G(a)(2)(C)(i) and

(ii). The latter two criteria (

i.e.,

the use of Global Assessment Functioning (GAF) scores, and the 100 percent service connected disability rating that includes an aid and attendance allowance award), contained in 38 CFR 71.20(c)(3) and (4), are alternative bases authorized pursuant to 38 U.S.C. 1720G(a)(2)(C)(iv) and were established by VA when these regulations were first promulgated in 2011. See 76 FR 26150 (May 5, 2011).

In proposed § 71.20, we would redesignate current paragraph (c)(1) as new paragraph (a)(3)(i). We would revise current paragraph (c)(2) and redesignate it as new paragraph (a)(3)(ii). Paragraphs (a)(3)(i) and (ii) would provide the bases upon which an individual can be deemed in need of personal care services for a minimum of six continuous months. The language in current paragraph (c)(1), which refers to “[a]n inability to perform an activity of daily living,” would remain the same and would simply be moved to new paragraph (a)(3)(i). The revised definition of inability to perform an ADL in proposed § 71.15 would apply to this paragraph.

In proposed paragraph (a)(3)(ii), we would provide the second basis upon which an individual could be deemed in need of personal care services for a minimum of six continuous months—based on a need for supervision, protection, or instruction. As previously explained regarding § 71.15, we are proposing to remove the current definition of “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” and add a new definition for “need for supervision, protection, or instruction.” This new definition would broaden the eligibility criteria in current paragraph (c)(2) and would combine two of the statutory bases upon which a veteran or servicemember can be deemed in need of personal care services—“a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury,” and “a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired.” See 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii), as amended by Public Law 115-182, section 161(a)(2). We would add this new criterion to newly designated paragraph § 71.20(a)(3)(ii). Additionally, we would remove the phrase “including traumatic brain injury” that appears in current (c)(2). An individual with a traumatic brain injury could be deemed in need of personal care services based on a need for supervision, protection, or instruction in proposed § 71.20(a)(3)(ii), but we would not specifically list traumatic brain injury or any other specific conditions or diagnoses in that paragraph.

In this rulemaking, we also propose to remove current § 71.20(c)(3), which currently states that an individual can be deemed in need of personal care services based on psychological trauma or a mental disorder that has been scored with GAF test scores of 30 or less, continuously during the 90-day period immediately preceding the date on which VA initially received the caregiver application. At the time these regulations were first promulgated, the GAF assessment was a well-established mental health examination. See 76 FR 26150 (May 5, 2011). However, we now propose to remove this basis because the GAF scoring system was removed from the latest edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), with which a mental disorder diagnosis must conform for VA rating purposes, 38 CFR 4.125(a), and is no longer widely used. Additionally, we note that no veterans and servicemembers have been deemed eligible for PCAFC based solely on their GAF score, as these individuals have also qualified under another basis in current paragraph (c). We believe that any veteran or servicemember who would qualify for PCAFC on this basis would be eligible for PCAFC under the other criteria in proposed § 71.20(a)(3)(i) and (ii). Thus, removing the criterion in current paragraph (c)(3) would likely have no impact on current and future participants.

Additionally, we also propose to remove current § 71.20(c)(4) which sets forth the basis that the veteran is service-connected for a serious injury incurred or aggravated in the line of duty on or after September 11, 2001, has been rated 100 percent disabled for that injury, and has been awarded special monthly compensation that includes an aid and attendance allowance. We believe that any veteran or servicemember who would qualify for PCAFC on this basis, even if it were expanded to reference eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, would be eligible for PCAFC under the other criteria in proposed § 71.20(a)(3)(i) and (ii). Thus, we believe it is reasonable to remove this basis in current § 71.20(c)(4).

We also propose to redesignate current § 71.20(d) as paragraph (a)(4) and revise the language. Current § 71.20(d) provides that a clinical determination (authorized by the individual's primary care team) has been made that it is in the best interest of the individual to participate in the program. Newly designated paragraph (a)(4), would state that it is in the best interest of the individual to participate in the program. The revised definition of “in the best interest” in proposed § 71.15 would apply to this paragraph. As discussed above regarding our proposed definition of “primary care team” in § 71.15, we would remove the current language that refers to a clinical determination being authorized by the individual's primary care team. Collaboration with the primary care team would instead be referenced in proposed § 71.25(a)(2)(i). Furthermore, the use of the term “clinical” is redundant since all decisions affecting the furnishing of assistance or support under 38 U.S.C. 1720G are considered medical determinations. See 38 U.S.C. 1720G(c)(1). Because current paragraph (d) would be revised and redesignated as paragraph (a)(4), we would remove paragraph (d) from § 71.20.

We propose to redesignate current paragraphs (e) through (g) as paragraphs (a)(5) through (7), respectively. The language in current paragraph (e) would remain the same and would simply be moved to new paragraph (a)(5). In paragraphs (a)(6) and (7) we would remove the phrase “agrees to,” replace “receive” with “receives,” replace “after” with “or will do so if,” and keep the remaining language the same. Current paragraphs (a)(6) and (7) state that after VA designates a Family Caregiver, the individual agrees to receive care at home and to receive ongoing care from a primary care team, respectively. We believe receiving care at home and receiving ongoing care from a primary care team (as such term would be defined in revised § 71.15) should be continuous requirements and not just an agreement made by the veteran or servicemember at some point prior to the Family Caregiver's approval and designation. Therefore, in proposed paragraphs (a)(6) and (7) we would remove the phrase “agrees to,” and replace “receive” with “receives.” We also intend for these requirements to apply throughout the Family Caregiver's approval and designation and therefore propose to replace “after” with “or will do so if” in proposed paragraphs (a)(6) and (7), so that these paragraphs are not interpreted to apply to any one point following VA's designation of the Family Caregiver. The phrase “or will do so if” is used in current § 71.25(b)(2)(ii) with respect to a caregiver applicant who is not a family member but lives with the eligible

veteran full-time “or will do so if designated as Family Caregiver.” Including this language would recognize that the veteran or servicemember may not be receiving care at home or receiving ongoing care from a primary care team at the time of his or her application for PCAFC, but would fulfill those requirements if his or her Family Caregiver is approved and designated by VA. As explained in VA's interim final rule and final rule implementing PCAFC, these requirements are needed to enable VA to perform statutorily required monitoring and documentation functions. See 76 FR 26151 (May 5, 2011) and 80 FR 1363-64 (January 9, 2015) (citing 38 U.S.C. 1720G(a)(9)). The remaining language in paragraphs (a)(6) and (7) would remain unchanged.

As a result of changes, we propose to make to the eligibility criteria, we would add a new paragraphs (b) and (c), which would establish that legacy participants and legacy applicants, respectively, would remain eligible for PCAFC for a one-year transitional period (subject to the limitations discussed in this proposed rule). Proposed paragraph (b) would state that for one year beginning on the effective date of the rule, a veteran or servicemember is eligible for a Primary or Secondary Family Caregiver under this part if he or she is a legacy participant. We believe that a one-year transition period is reasonable because it would allow individuals who are participating in PCAFC as of the day before the effective date of the rule to remain in the program for a transitional period while VA completes a reassessment to determine their eligibility under revised § 71.20(a).

Similarly, proposed paragraph (c) would state that for one year beginning on the effective date of the rule, a veteran or servicemember is eligible for a Primary or Secondary Family Caregiver under this part if he or she is a legacy applicant. We note that eligibility under paragraphs (b) or (c) would not exempt the Family Caregiver of a legacy participant or legacy applicant from being revoked or discharged pursuant to proposed § 71.45 for reasons other than not meeting the eligibility criteria in proposed § 71.20(a) in the one-year period beginning on the effective date of the rule. For example, the Family Caregiver could be revoked for cause, non-compliance, or VA error, or discharged due to death or institutionalization of the eligible veteran or Family Caregiver, as discussed in the context of proposed § 71.45 below. Therefore, in order to be considered a “legacy participant,” and remain eligible under § 71.20(b), we would require the Primary Family Caregiver approved and designated for the veteran or servicemember as of the day before the effective date of the rule (as applicable) would have to continue to be approved and designated as such. Likewise, in order to be considered a “legacy applicant,” and remain eligible under § 71.20(c), we would require that the Primary Family Caregiver approved and designated for the veteran or servicemember pursuant to a joint application received by VA prior to the effective date of the rule (as applicable), continues to be approved and designated as such. Although it is unlikely, we would include “as applicable” in parentheses to account for any legacy participant or legacy applicant who has only a Secondary Family Caregiver(s). A veteran or servicemember not meeting these requirements generally would no longer be participating in PCAFC, or would have the same or a new Primary Family Caregiver approved and designated pursuant to a joint application received by VA on or after the effective date of the rule, as discussed further below.

At the end of the one-year period following the effective date of the rule, legacy participants and legacy applicants who do not meet the new § 71.20(a) eligibility criteria would be discharged from PCAFC in accordance with proposed § 71.45, as such section would be revised by this rulemaking. However, VA would continue to support such individuals through alternative supports and services as desired and applicable. PCAFC is just one program through which VA supports veterans and their caregivers. Through the PGCSS, caregivers have access to training and education, self-care courses, peer support, and a Caregiver Support Line. Additional resources to support eligible veterans include respite care, home health aides, home based primary care, or home telehealth to name a few. Upon determining that a legacy participant or legacy applicant and his or her Family Caregiver(s) would not meet criteria for ongoing participation in PCAFC after the one-year transitional period, the local Caregiver Support Coordinator or designated social worker would begin working with the veteran or servicemember and his or her Family Caregiver on discharge.

§ 71.25 Approval and Designation of Primary and Secondary Family Caregivers

Section 71.25 currently describes the application and designation process for Family Caregivers. We propose to amend this section by revising certain terminology, revising and restructuring paragraph (a), and revising paragraphs (c), (e), and (f). These proposed changes are discussed in detail further below.

Current § 71.25(a) describes the process and requirements to apply for designation as a Primary or Secondary Family Caregiver. We propose to revise § 71.25(a)(1) by replacing the phrase “complete and sign a joint application” with “submit a joint application.” As previously explained, we are proposing a new definition for joint application. This definition would describe the requirements for a joint application to be considered complete by VA to include signatures of all applicants. Thus, the phrase “complete and sign” would be redundant since it would be encompassed in the proposed definition for joint application. We would also add language to the end of the paragraph to clarify that no more than two individuals may serve as a Secondary Family Caregiver at one time for an eligible veteran. PCAFC has generally been implemented by allowing the application and designation of one Primary Family Caregiver and up to two Secondary Family Caregivers for each eligible veteran, and this language would align with current practice. For example, the current VA Form 10-10CG has fields for only two Secondary Family Caregivers and we are not aware of any instances in which a veteran or servicemember has sought to apply with three Secondary Family Caregivers. The remaining text in this paragraph would remain unchanged.

We propose to redesignate current paragraph (a)(2) as paragraph (a)(2)(i) and revise the language. Current paragraph (a)(2) states that “[u]pon receiving such application, VA will perform the clinical evaluations required by this section; determine whether the application should be granted; and, if so, whether each applicant should be designated as identified in the application.” In newly designated paragraph (a)(2)(i), we would add “(in collaboration with the primary care team to the maximum extent practicable)” in between “VA” and “will perform.” As previously discussed regarding our proposed definition of “primary care team” in § 71.15, this would ensure collaboration with the VA medical professionals involved in the patient's care during VA's evaluation of the joint application. For example, a clinical eligibility team or other provider(s) responsible for evaluating joint applications for PCAFC eligibility would seek input from the primary care team to inform their evaluation of joint applications received.

Additionally, we would remove the term “clinical” as this is redundant since all decisions affecting the furnishing of assistance or support under 38 U.S.C. 1720G are considered medical determinations. 38 U.S.C. 1720G(c)(1). We would also reword the remaining language for clarity and to more precisely describe VA's evaluation of the joint application by indicating that VA would “perform the evaluations required to determine the eligibility of the applicants under [part 71].” We would also add that if the applicants are determined to be eligible, VA would determine “the applicable monthly stipend amount under § 71.40(c)(4).” Monthly stipend payments are based on the amount and degree of personal care services provided to the eligible veteran, and the initial eligibility evaluation provides an opportunity for the applicants to provide information to VA about the health status and care needs of the veteran or servicemember. VA values input from caregivers, as well as veterans and servicemembers, and this information would be utilized by VA to determine the appropriate stipend level for the Primary Family Caregiver. We note that the VA MISSION Act of 2018 requires VA to consider, among other things, the Family Caregiver's assessment of the needs and limitations of certain eligible veterans in determining their Primary Family Caregivers' stipend amount. See 38 U.S.C. 1720G(a)(3)(C)(iii)(I), as amended by Public Law 115-182, section 161(a)(4). Specifically, the input received from the Family Caregiver applicant would be taken into account when determining whether a veteran or servicemember is unable to self-sustain in the community (as such term would be defined in proposed § 71.15).

Furthermore, we would also include language that VA will not evaluate a veteran's or servicemember's eligibility under § 71.20 when a joint application is received to add a Secondary Family Caregiver for an eligible veteran who has a designated Primary Family Caregiver. This is because an eligible veteran with a designated Primary Family Caregiver has already been deemed eligible under § 71.20 and we do not believe it is necessary to reevaluate an eligible veteran each time he or she submits a joint application to add a new or replace a former Secondary Family Caregiver because Secondary Family Caregivers generally serve as backup support to the Primary Family Caregiver. Also, as further discussed in proposed § 71.30, eligible veterans would be reassessed for eligibility on an annual basis, unless a determination is made and documented by VA that a more or less frequent reassessment is appropriate. Therefore, upon receiving a joint application to add a new or replace a former Secondary Family Caregiver only, VA would only evaluate the eligibility of the Secondary Family Caregiver applicant. However, for any joint application received by VA requesting the approval and designation of a Primary Family Caregiver, VA would consider the eligibility of the veteran or servicemember, as well as the Primary Family Caregiver applicant and any Secondary Family Caregiver applicants (and if eligible, the applicable monthly stipend amount), pursuant to the requirements of part 71. These requirements would apply to all joint applications received by VA on or after the effective date of the rule, including joint applications submitted by legacy participants and legacy applicants.

We would redesignate current paragraph (a)(3) as paragraph (a)(2)(ii) and revise the language. The revised requirements would be based on current § 71.40(d)(1), which would be revised to address only the effective date of PCAFC benefits, as discussed later in this rulemaking. Current paragraph (a)(3) permits an application to be put on hold for no more than 90 days, from the date the application was received, for a veteran or servicemember seeking to qualify through a GAF test score of 30 or less but who does not have a continuous GAF score available. Because we are proposing to eliminate use of the GAF score as a basis for eligibility under current § 71.20(c)(3), as explained in the preceding discussion, we would also remove language in this paragraph referencing GAF test scores.

Also, we would remove language in this paragraph referencing that an application may be put on hold for no more than 90 days. Instead of placing applications on hold, we would extend the 45-day designation timeline in current § 71.40(d)(1) to 90 days.

Proposed paragraph (a)(2)(ii) would state that “[i]ndividuals who apply to be Family Caregivers must complete all necessary eligibility evaluations (along with the veteran or servicemember), education and training, and the initial home-care assessment (along with the veteran or servicemember) so that VA may complete the designation process no later than 90 days after the date the joint application was received by VA .” Further we would state that “[i]f such requirements are not complete within 90 days from the date the joint application is received by VA, the joint application will be denied, and a new joint application will be required.” This language is adapted from current § 71.40(d)(1), which requires individuals who apply to be Family Caregivers to “complete all necessary education, instruction, and training so that VA can complete the designation process no later than 45 days after the date that the joint application was submitted or . . . a new joint application will be required to serve as the date of application for payment purposes.” We would move this requirement to § 71.25(a) because it pertains to application requirements. We would specify that in addition to education, instruction, and training (which we would refer to as “education and training” for consistency with § 71.25(d)), eligibility evaluations and the initial home-care assessment would also have to be completed within 90 days from the date joint application is received by VA because those requirements are necessary prerequisites to VA's approval and designation of a Family Caregiver. We would also apply this timeline to veteran and servicemember applicants, as they must also participate in eligibility evaluations and the initial home-care assessment before VA can approve and designate their Family Caregivers.

The 45-day timeline in current § 71.40(d)(1) is in many cases too brief to allow applicants to complete the requirements for approval and designation of a Family Caregiver because eligibility determinations are complex and require detailed assessments. We believe the accuracy of determinations takes precedence over speed of such determinations. Also, we note that in a recent VA Office of Inspector General (OIG) report, OIG identified that of 1,822 veterans approved to participate in PCAFC, 65 percent did not have their applications processed timely and within the 45-day timeframe in current § 71.40(d)(1). VA OIG Report, Program of Comprehensive Assistance for Family Caregivers: Management Improvements Needed, Report No. 17-04003-222, dated August 16, 2018, p. 8. Due to the complex nature of eligibility determinations, as well as new criteria and an expanded population of potentially-eligible veterans under the VA MISSION Act of 2018, we propose to remove the current 45-day timeline in current § 71.40(d)(1). We would change this to a 90-day timeline and allow VA to extend the timeline beyond 90 days if the requisite steps are not completed as a result of a delay that is solely due to VA's action. We would state that “VA may extend the 90-day period based on VA's inability to complete the eligibility

evaluations, provide necessary education and training, or conduct the initial home-care assessment, when such inability is solely due to VA's action.” We believe 90 days is a reasonable amount of time for VA to make accurate and comprehensive determinations, without unduly delaying the provision of benefits to those ultimately approved for the program. However, we would not penalize an applicant if he or she cannot meet the 90-day timeline as a result of VA's delay in completing eligibility evaluations, providing necessary education and training, or conducting the initial home-care assessment.

We note that access to care for eligible veterans would not be delayed by these proposed changes because clinical interventions and contacts with providers and various clinical teams occur throughout the application and evaluation process. For example, during evaluation of the joint application, VA may make referrals for applicants (including those ineligible for PCAFC) for additional support and services that are not specific to PCAFC. Additionally, these changes generally would not reduce any stipend benefit the Primary Family Caregiver would receive, as stipends and certain other benefits for approved and designated Family Caregivers would continue to be retroactive to the date the application was received or the date on which the eligible veteran begins receiving care at home (or other applicable date specified in proposed § 71.40(d), as discussed further below). While proposed § 71.25(a)(2)(ii) would not impose any specific timeline on VA to complete its evaluation of joint applications, we would continue to monitor application processing times, establish indicators to identify timelines that are not in accordance with any established norms, and conduct outreach as necessary to prevent undue application processing delays.

We would exclude from proposed § 71.25(a)(2)(ii) the language in current § 71.40(d)(1) that authorizes VA to “extend the 45-day period for up to 90 days after the date the joint application was submitted . . . based on training identified under § 71.25(d) that is still pending completion, or hospitalization of the eligible veteran.” As previously explained, we would extend the designation period from 45 days after the joint application was submitted to 90 days after the date the joint application was received by VA. Therefore, we believe that the current language in § 71.40(d)(1) that allows for an extension from 45 days to 90 days would no longer be necessary since applicants would have 90 days from the date the joint application is received by VA to complete all requirements so that VA may complete the designation process. As stated previously, this 90-day timeline would also apply to veteran and servicemember applicants as they must also participate in eligibility evaluations and the initial home-care assessment. Therefore, if a veteran or servicemember is hospitalized following the submission of his or her joint application for PCAFC, but before a Family Caregiver is approved and designated, and this hospitalization prevents VA from completing the approval and designation process within 90 days from the date the joint application is received, then the joint application would be denied and a new joint application would be required.

We would also exclude from proposed § 71.25(a)(2)(ii) the language in current § 71.40(d)(1) that addresses how application timelines are impacted when an application has been placed on hold for a GAF assessment. Because we propose to remove reference to GAF test scores in proposed § 71.20 with respect to PCAFC eligibility, we would also remove the language in current § 71.40(d)(1) that refers to the GAF assessment.

As previously explained, we would redesignate current paragraph (a)(3) as paragraph (a)(2)(ii). We would then add a new paragraph (a)(3) to address how applications will be reviewed once received by VA in proposed new paragraphs (a)(3)(i) and (ii). The application process for PCAFC requires evaluation, training, and assessment that do not occur instantaneously. Thus, we anticipate there will be joint applications received by VA prior to the effective date of the rule for which eligibility determinations are still pending on the effective date of the rule. We propose to review these joint applications against the eligibility criteria that existed before the effective date of the rule. Since we are proposing to change the eligibility criteria, including definitions, that would affect VA's review of joint applications received, we believe it is reasonable for VA to continue to evaluate joint applications received prior to the effective date of the rule under the criteria in §§ 71.15, 71.20, and 71.25 as they appeared in part 71, and that were in effect, at the time the joint application was received by VA. We believe that changing the eligibility criteria during the adjudication of a joint application would place an undue hardship on applicants who relied on the eligibility criteria in effect at the time of submitting the joint application to VA. Thus, proposed paragraph (a)(3)(i) would state that, except as otherwise provided, joint applications received by VA before the effective date of the rule will be evaluated by VA based on 38 CFR 71.15, 71.20, and 71.25 (2019) (

i.e.,

as they appeared in part 71 on the day before the effective date of the rule). The one exception to this would be that the term “joint application” as we propose to define it in § 71.15 would apply such that only those applications with all mandatory fields completed (

i.e.,

all fields other than those specifically exempted) would be considered “joint applications” under this paragraph. A veteran or servicemember who submits a joint application that is received by VA before the effective date of the rule and for whom a Family Caregiver(s) is approved and designated on or after the effective date of the rule would be considered a “legacy applicant,” as such term would be defined in proposed § 71.15.

Proposed paragraph (a)(3)(ii) would state that joint applications received by VA on or after the effective date of the rule will be evaluated by VA based on the provisions of this part in effect on or after the effective date of the rule. If a veteran or servicemember and individuals who apply to be his or her Family Caregivers submit a joint application that is received by VA before the effective date of the rule, and are determined to be ineligible for PCAFC under §§ 71.15, 71.20, and 71.25 as they existed before the effective date of the rule, the veteran or servicemember along with his or her caregivers could submit another joint application on or after the effective date of the rule in order be considered under the new criteria.

The proposed changes in §§ 71.20 and 71.40 should minimize the incentive (at least within part 71) for a legacy participant or legacy applicant to submit a new joint application for PCAFC on or after the effective date of the rule. However, if a legacy participant or legacy applicant submits a new joint application on or after the effective date of the rule seeking the approval and designation of a Primary Family Caregiver, we note that pursuant to proposed § 71.25(a)(3)(ii), such application would be evaluated by VA based on the provisions of this part in effect on or after the effective date of the rule, to include an evaluation of the veteran's or servicemember's eligibility under proposed § 71.20(a). As specified in the definitions of “legacy participant” and “legacy applicant,” if a Primary Family Caregiver is approved

and designated pursuant to such application, the eligible veteran would no longer be considered a legacy participant or legacy applicant. This would include the approval and designation of a new Primary Family Caregiver, including a Secondary Family Caregiver seeking to become a Primary Family Caregiver, or a current or former Primary Family Caregiver who is reapplying. If a Primary Family Caregiver is not approved and designated for a legacy participant or legacy applicant pursuant to a joint application received by VA on or after the effective date of the rule (because the legacy participant or legacy applicant does not qualify under proposed § 71.20(a), the joint application requests the approval and designation of a Secondary Family Caregiver only, or the joint application is withdrawn before approval and designation), the veteran or servicemember would continue to be designated as a legacy participant or legacy applicant and remain eligible for PCAFC under proposed § 71.20(b) or (c), respectively.

We would add paragraphs (a)(3)(ii)(A) and (B) to address joint applications submitted by veterans and servicemembers seeking to qualify for PCAFC under proposed § 71.20(a)(2)(ii) and (iii) (

i.e.,

veterans and servicemembers who incurred or aggravated a serious injury in the line of duty in the active military, naval, or air service before September 11, 2001). As previously discussed, the first phase of PCAFC expansion under proposed § 71.20(a)(2)(ii) would begin on a “date specified in a future

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document.” The second phase of PCAFC expansion under proposed § 71.20(a)(2)(iii) would begin two years after the date specified in a future

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document as described in § 71.20(a)(2)(ii). Proposed § 71.25(a)(3)(ii)(A) and (B) would state that joint applications received from individuals described in § 71.20(a)(2)(ii) and (iii) prior to the date on which such individuals become eligible would be denied and that a veteran or servicemember seeking to quality for PCAFC pursuant to § 71.20(a)(2)(ii) and (iii) should submit a joint application that is received by VA on or after the

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document date specified in proposed § 71.20(a)(2)(ii), or two years after such date as specified in proposed § 71.20(a)(2)(iii), respectively, as applicable. We believe denying applications received prior to the effective dates of eligibility expansion specified in proposed § 71.20(a)(2)(ii) and (iii) is appropriate because it is consistent with current practice in that we currently deny applications received from veterans or servicemembers with a serious injury incurred or aggravated in the line of duty in the active military, naval, or air service before September 11, 2001. Moreover, holding applications of applicants seeking to qualify for PCAFC pursuant to § 71.20(a)(2)(ii) and (iii) would result in burdens on both VA and the applicants. A number of factors could change between the time a joint application is received by VA and the effective dates of eligibility expansion, such that the information on the joint application could be outdated by the applicable effective date of eligibility expansion. For example, there could be a different individual providing care to the veteran or servicemember than originally listed on the joint application, or the clinical status of the veteran or servicemember could change. If VA were to hold applications of individuals who would not be eligible (or potentially eligible) for PCAFC until the applicable effective date of eligibility expansion, upon the effective date of eligibility expansion, VA would have to contact each applicant to ensure all the information provided on the joint application is current before evaluating PCAFC eligibility. This would require additional steps in VA's evaluation of joint applications and impose delays before approval and designation of the Family Caregiver(s).

Additionally, we would make changes to § 71.25(c). First, we propose to remove the reference to primary care team in current paragraph (c)(1), as discussed above regarding our proposed definition of “primary care team” in § 71.15. Current paragraph (c)(1) requires that an applicant seeking to be designated as a Family Caregiver must be “initially assessed by a VA primary care team as being able to complete caregiver education and training.” We would replace the reference to “a VA primary care team” in current paragraph (c)(1) with “VA.” With this change, the initial assessment of the Family Caregiver applicant could be done by a primary care team, clinical eligibility team, or other appropriate individual or individuals in VA. Collaboration with the primary care team would instead be referenced in proposed § 71.25(a)(2)(i).

Current § 71.25(c)(1)(i) requires that the initial assessment of the Family Caregiver applicant consider “[w]hether the applicant can communicate and understand details of the treatment plan and any specific instructions related to the care of the eligible veteran.” We propose to revise § 71.25(c)(1)(i) by replacing the phrase “details of the treatment plan” with “the required personal care services.” We believe the phrase “required personal care services” more accurately reflects the Family Caregiver's role in the veteran's care. We note that treatment plans may be inclusive of clinical needs that are outside the scope of the personal care services provided by the Family Caregiver. It is critical that the Family Caregiver applicant be able to communicate and understand the required personal care services of the eligible veteran, but not necessarily the details of the treatment plan.

We propose to revise § 71.25(c)(1)(ii) by updating the language to better reflect the responsibilities of Family Caregivers. Current paragraph (c)(1)(ii) describes one of the criteria that VA will consider when conducting an assessment of caregiver applicants. Under this paragraph, assessments consider whether the applicant will be capable of following without supervision a treatment plan listing the specific care needs of the eligible veteran. We propose to revise this paragraph to instead state that assessments would consider whether the applicant will be capable of performing the required personal care services without supervision, in adherence with the eligible veteran's treatment plan in support of the needs of the eligible veteran. We believe the phrase “required personal care services” more accurately reflects the Family Caregiver's role in the eligible veteran's care. We note that treatment plans may be inclusive of care needs outside the scope of the personal care services provided by the Family Caregiver, and our proposed changes would recognize that the Family Caregiver may not follow an entire treatment plan without supervision. Furthermore, we believe the phrase “in support of the needs of the eligible veteran” further clarifies the role of the Family Caregiver to provide personal care services that are not only specific to the needs of the eligible veteran, but support those needs.

We propose to revise § 71.25(c)(2) which currently states that before VA approves an applicant to serve as a Family Caregiver, the applicant must “[c]omplete caregiver training and demonstrate the ability to carry out the specific personal care services, core competencies, and other additional care requirements prescribed by the eligible veteran's primary care team.” We would remove “other” for clarity and would remove the phrase “prescribed by the eligible veteran's primary care team,” as discussed above regarding our proposed definition of “primary care team” in § 71.15, to account for care requirements

prescribed by providers other than the veteran's or servicemember's primary care team.

We propose to revise § 71.25(e) which currently states that VA will conduct an initial home-care assessment no later than 10 business days after VA certifies completion of caregiver education and training, or in

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