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:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) adopts as final, with changes, a proposed rule to revise its regulations that govern VA's Program of Comprehensive Assistance for Family Caregivers (PCAFC). This final rule makes improvements to PCAFC and updates the regulations to comply with the recent enactment of the VA MISSION Act of 2018, which made changes to the program's authorizing statute. This final rule allows PCAFC to better address the needs of veterans of all eras and standardize the program to focus on eligible veterans with moderate and severe needs.

DATES:

The effective date is October 1, 2020.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

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

On June 6, 2018, the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 or the VA MISSION Act of 2018, Public Law 115-182, was signed into law. Section 161 of the VA MISSION Act of 2018 amended 38 U.S.C. 1720G by expanding eligibility for PCAFC to Family Caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, establishing new benefits for designated Primary Family Caregivers of eligible veterans, and making other changes affecting program eligibility and VA's evaluation of PCAFC applications. The VA MISSION Act of 2018 established that expansion of PCAFC to Family Caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, will occur in two phases. The first phase will begin when VA certifies to Congress that it has fully implemented a required information technology system (IT) that fully supports PCAFC and allows for data assessment and comprehensive monitoring of PCAFC. During the 2-year period beginning on the date of such certification to Congress, PCAFC will be expanded to include Family Caregivers of eligible veterans who have a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, or air service on or before May 7, 1975. Two years after the date of submission of the certification to Congress, PCAFC will be expanded to Family Caregivers of all eligible veterans who have a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, or air service, regardless of the period of service in which the serious injury was incurred or aggravated in the line of duty in the active military, naval, or air service. This final rule implements section 161 of the VA MISSION Act of 2018 as well as makes improvements to PCAFC to improve consistency and transparency in decision making.

On March 6, 2020, VA published a proposed rule to revise its regulations that govern PCAFC to make improvements to PCAFC and update the regulations to comply with section 161 of the VA MISSION Act of 2018. 85 FR 13356 (March 6, 2020). In response to this proposed rule, VA received 273 comments, of which one comment was withdrawn by the submitter and one comment was a duplicate submission, for a total of 271 unique comments. More than 37 comments expressed general support for the proposed rule, in whole or in part. We appreciate the support of such comments, and do not address them below. Other comments expressed support or disapproval, in whole or in part, with substantive provisions in the proposed rule, and we discuss those comments and applicable revisions from the proposed rule below. We note that the discussion below is organized by the sequential order of the provisions as presented in the proposed rule; however, we only address the provisions that received comments below. Additionally, we have included a section on miscellaneous comments received. We further note that numerous commenters raised individual matters (

e.g.,

struggles they may currently be having) which are informative to VA, and to the extent these individuals provided their personal information, we did attempt to reach out to them to address their individual matters outside of this rulemaking.

In the proposed rule and in this final rule, we provide various examples to illustrate how these regulations will be applied, but we emphasize here that clinical evaluation is complex and takes into account a holistic picture of the individual; therefore, we note that examples provided are for illustrative purposes only and should not be construed to indicate specific veterans and servicemembers and their caregivers will or will not meet certain regulatory criteria or requirements.

§ 71.10 Purpose and Scope

Several commenters raised concerns about restricting PCAFC to a “State” as that term is defined in 38 U.S.C. 101(20) because 38 U.S.C. 1720G does not place any geographic restrictions on PCAFC, and such restriction would be in the view of the commenters, arbitrary, unreasonable, and without sufficient justification, particularly as VA provides other benefits and services to veterans who reside outside of a State. One commenter shared that they lived in the United Kingdom (U.K.), but believed that they should be eligible for

PCAFC as many of the PCAFC processes and requirements can be completed in the U.K. despite being outside of a State (for example, the application can be submitted by mail or online; caregiver training is available online; assessments and monitoring can be done via telehealth, Foreign Medical Program (FMP), social media, or through the use of a contract with a home health agency); and benefits such as a stipend can be based on a U.K. locality rate. This same commenter recommended revising the language in this section to state that “these benefits are provided to those individuals residing in a State as that term is defined in 38 U.S.C. 101(2). Individuals who reside outside a State will be considered for benefits on a case by case basis.” While this commenter referenced section 101(2), we believe the commenter meant to reference section 101(20) as the definition of State, for purposes of title 38, is contained in section 101(20). Section 101(20) defines State, in pertinent part, to mean each of the several States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. In suggesting that the program could be administered through VA's FMP, we generally disagree. The legal authority for the FMP bars VA from furnishing “hospital care” and “medical services” outside of a State except in the case of the stated exceptions. 38 U.S.C. 1724. This authority, as implemented, generally covers only hospital care and medical services, as those terms are defined in 38 U.S.C. 1701 and 38 CFR 17.30, that are required to treat a service-connected disability or any disability held to be aggravating a service-connected condition. Because PCAFC involves benefits that do not constitute “hospital care” or “medical services” and accounts for the care needs of eligible veterans unrelated to their service-connected disability or disabilities, PCAFC could not be administered through FMP. Lastly, telehealth services are medical services and therefore not available outside a “State,” except as provided for under the FMP.

As stated in the proposed rule, it has been VA's practice since the launch of PCAFC and PGCSS in 2011 to only provide benefits to those individuals residing in a State; thus, the proposed changes merely codify an existing practice. In addition, it is currently not feasible for VA to provide benefits under part 71 outside of a State, specifically because “requirements of this part include in-home visits such as an initial home-care assessment under current 38 CFR 71.25(e) and the provision of certain benefits that can be provided in-home such as respite care under current § 71.40(a)(4) and (c)(2), which would be difficult to conduct and provide in a consistent manner outside of a State.” 85 FR 13358 (March 6, 2020). Also, as noted in the proposed rule, administrative limitations prevent us from providing certain benefits under this part even in remote areas within the scope of the term “State.” Additionally, “ensuring oversight of PCAFC and PGCSS outside of a State would be resource-intensive and we do not believe there is sufficient demand to warrant the effort that would be required.” Id. Furthermore, we do not believe the use of contracted services would provide standardized care for participants and would hinder our ability to provide appropriate oversight and monitoring. While we understand the commenters' concerns and appreciate the suggested changes, we are not making any changes based on this comment.

§ 71.15 Definitions

We received many comments that either suggested revisions to or clarification of some terms defined in the proposed rule. We address these comments below as they relate to the term in the order they were presented in § 71.15 as proposed.

Financial Planning Services

We received multiple comments about financial planning services. One commenter was pleased with VA's proposal to include financial planning services in the menu of Family Caregivers' supports and services under PCAFC and we thank the commenter for their feedback. One commenter questioned why this service is being provided, whether it is indicative of a deeper problem, and what precautions and safety nets will be in place to ensure veterans are not exploited or abused. Furthermore, one commenter asserted that regardless of what services are provided to help with budgeting, families will become accustomed to and spend according to the monthly stipend received each month.

As stated in the proposed rule, we are adding this term to address changes made to 38 U.S.C. 1720G by the VA MISSION Act of 2018. Specifically, the VA MISSION Act of 2018 added financial planning services relating to the needs of injured veterans and their caregivers as a benefit for Primary Family Caregivers. Accordingly, financial planning services will be added to the benefits available to Primary Family Caregivers under 38 CFR 71.40(c)(5). Legislative history reflects that the addition of financial planning services to PCAFC assistance was influenced by the 2014 RAND Corporation-published report, Hidden Heroes: America's Military Caregivers, which identified that few military caregiver-specific programs provided long-term planning assistance, including legal and financial planning, for military caregivers. S. Rep No. 115-212, at 58 (2018) (accompanying S.2193, which contained language nearly identical to that enacted in sections 161-163 of the VA MISSION Act of 2018). The purpose of this benefit is to increase the financial capability of Primary Family Caregivers to be able to manage their own personal finances and those of the eligible veteran, as applicable. Furthermore, we will include in any contracts requirements such as minimum degree attainment and national certifications for individuals providing financial planning services, as well as mechanisms that would prohibit exploitation or abuse of caregivers and veterans (

e.g.,

prohibit any form of compensation from the eligible veteran or Family Caregiver for the services provided) and that allow us to take any appropriate actions necessary to address related breaches of contract. We note that the contractor would be responsible for any liability arising from the financial planning services provided by it. Further, contractors are not VA employees and therefore not covered by the Federal Tort Claims Act.

We are not making any changes to the regulation based on these comments.

In Need of Personal Care Services

We proposed to define “in need of personal care services” to mean that the eligible veteran requires in-person personal care services from another person, and without such personal care services, alternative in-person caregiving arrangements (including respite care or assistance of an alternative caregiver) would be required to support the eligible veteran's safety. A few commenters supported this definition of in need of personal care services, and we appreciate their support. Others raised concerns with the definition, and we address those comments below.

One commenter found this definition too restrictive, and to be a major change to PCAFC that would result in exclusion of current participants from the program. Similarly, another commenter further explained that this definition may unfairly discriminate against veterans who served on or after September 11, 2001 (referred to herein

as post-9/11) who currently qualify for the program but may not yet need this required level of care, and also may result in younger veterans believing they are not “disabled enough” for PCAFC. The same commenter noted that this definition would exclude veterans who may need assistance with activities of daily living (ADL), but do not otherwise need a professional home health aide or nursing home care. While we appreciate the commenters' concerns, we believe these changes are supported by the statute and would help to reduce clinical subjectivity in PCAFC eligibility determinations. As provided in the proposed rule:

The statute makes clear the importance of regular support to an eligible veteran by allowing more than one Family Caregiver to be trained to provide personal care services. 38 U.S.C. 1720G(a)(5) and (6). Likewise, eligible veterans are provided protections under the statute in the absence of a Family Caregiver such as respite care during a family member's initial training if such training would interfere with the provision of personal care services for the eligible veteran. 38 U.S.C. 1720G(a)(6)(D). Thus, we believe “in need of personal care services” under section 1720G(a)(2)(C) means that without Family Caregiver support, VA would otherwise need to hire a professional home health aide or provide other support to the eligible veteran such as adult day health care, respite care, or facilitate a nursing home or other institutional care placement.85 FR 13359 (March 6, 2020).

Also, as previously stated we are standardizing PCAFC to focus on eligible veterans with moderate and severe needs, and we believe this definition supports this focus. Furthermore, “alternative in-person caregiving arrangements” are not limited to a professional home health aide, or nursing home care. There are many types of alternative caregiving arrangements that a veteran or servicemember may utilize or require in the absence of his or her Family Caregiver providing in-person personal care services. The personal care needs of eligible veterans participating in PCAFC vary and as such, so would the types of alternative caregiving arrangements they may require. Such arrangements may include adult day health care or other similar day treatment programs, assistance provided by a friend or family member informally or formally through a VA or community Veteran-Directed care program, or through volunteer organizations that train individuals to provide respite care. Thus, we believe this definition would not discriminate against post-9/11 veterans and servicemembers who may utilize other alternative in-person caregiving arrangements other than a professional home health aide or nursing home care in the absence of their Family Caregiver. We note that PCAFC has been and will remain available to post-9/11 eligible veterans, and that the changes we are making are intended to support veterans of all eras of service, consistent with expansion of the program under the VA MISSION Act of 2018. We further refer commenters to the discussion of § 71.20 addressing commenters' concerns that the proposed regulations would negatively impact post-9/11 veterans. Additionally, we recognize that there may be reluctance by some veterans, including post-9/11 veterans, to seek care and assistance because of perceived stigma or a belief that they are not “disabled enough,” and our goal is to reduce those concerns through outreach and education on all VA programs and services, to include PCAFC, that may help meet the needs of veterans and servicemembers and their caregivers. We are not making any changes based on these comments.

One commenter supported our definition of “in need of personal care services” because it clarified that such services are required in person. In contrast, another commenter disagreed with our assertion that the PCAFC was “intended to provide assistance to Family Caregivers who are required to be physically present to support eligible veterans in their homes.” 85 FR 13360 (March 6, 2020). They asserted that the statute is intended to enable a veteran to obtain care in his or her home regardless of where the caregiver is located, such that he or she could receive care remotely “such as when the caregiver checks in to remind the veteran to take his or her medication, guide the veteran through a task that he or she can complete without physical assistance, or provide mental and emotional support should the need arise.” VA's requirement that the eligible veteran requires “in-person personal care services” is supported by the statute, and we are not persuaded by the commenter's arguments to the contrary. Even putting aside the meaning of “personal,” with which the commenter takes issue, we believe the statute makes clear the importance of providing in-person personal care services by indicating that personal care services are provided in the eligible veteran's home (38 U.S.C. 1720G(a)(9)(C)(i)) and by establishing an expectation that Family Caregivers are providing services equivalent to that of a home health aide, which are generally furnished in-person and at home (38 U.S.C. 1720G(a)(3)(C)(ii), (iv)). See 85 FR 13360 (March 6, 2020). Also, rather than supporting the commenter's argument that VA's definition is unduly restrictive, we believe that 38 U.S.C. 1720G(d)(3)(B) also illustrates the importance of in-person personal care services by only authorizing a non-family member to be a Family Caregiver if the individual lives with the eligible veteran. We do not discount the importance of remote support that caregivers provide to veterans, such as medication reminders, remote guidance through a task via telephone, and mental and emotional support, but we do not believe that type of support alone rises to the level of support envisioned by the statute for eligible veterans who are in need of personal care services in PCAFC. This is particularly true as we standardize PCAFC to focus on eligible veterans with moderate and severe needs. 85 FR 13356 (March 6, 2020). VA's definition of “in need of personal care services” is a reasonable interpretation of the statute, and we are not making any changes based on this comment. We do, however, recognize the commenter's concern regarding consistency between PCAFC and PGCSS. As noted in VA's proposed rule, the definition of “in need of personal care services” will not apply to restrict eligibility under 38 U.S.C. 1720G(b), which governs PGCSS, or any other VA benefit authorities. VA will consider whether changes to the regulations governing PGCSS are appropriate in the future.

One commenter agreed with the definition to the extent that VA is not requiring the Family Caregiver to always be present. It is not our intent to require a Family Caregiver to be present at all times, rather this definition establishes that the eligible veteran requires in-person personal care services, and without such personal care services provided by the Family Caregiver, alternative in-person caregiver arrangements would be required to support the eligible veteran's safety. As stated by the commenter, this definition speaks to the type of personal care services needed by the eligible veteran, as the kind that must be delivered in person. We appreciate this comment and make no changes based upon it.

One commenter asked (1) whether a legacy participant determined to need in-person care services from another person, but who does not require assistance daily and each time an ADL is performed, would still be eligible to continue to participate in the PCAFC; and (2) whether a veteran who served

before September 11, 2001 (referred to herein as pre-9/11) who VA determines needs in-person care services from another person, but does not require assistance daily and each time, would be eligible for PCAFC. The commenter's questions and examples seem to merge and possibly confuse separate PCAFC eligibility requirements. To qualify for PCAFC under § 71.20(a)(3), a veteran or servicemember would need to be in need of personal care services (meaning the veteran or servicemember requires “in-person personal care services from another person, and without such personal care services, alternative in- person caregiving arrangements . . . would be required to support the eligible veteran's safety”) based on either (1) an inability to perform an activity of living, or (2) a need for supervision, protection, or instruction, as such terms are defined in § 71.15 and discussed further below. The definition of “inability to perform an activity of daily living” refers to the veteran or servicemember requiring personal care services “each time” one or more ADLs is completed, and the definition of “need for supervision, protection, or instruction” refers to the individual's ability to maintain personal safety on a “daily basis.” The veteran or servicemember could qualify on both of these bases, but would be required to qualify based on only one of these bases. To the extent the commenter is concerned about these other definitions, we further address comments about those definitions separately in their respective sections below. We are not making any changes based on this comment.

Another commenter acknowledged an understanding of the “in person” requirement, but requested that we clearly state that the care does not need to be hands-on, physical care, and that assistance can be provided through supervision, protection, or instruction while the veteran completes an ADL. A veteran or servicemember that is eligible for PCAFC based on the definition of need for supervision, protection, or instruction would require in-person personal care services. However, that does not always mean hands-on care is provided or required. We note that if an eligible veteran is eligible for PCAFC because he or she meets the definition of inability to perform an ADL, the in-person personal care services required to perform an ADL would be hands-on care. We further refer that commenter to the discussion on the definition of inability to perform an ADL, where we address similar comments regarding veterans who may require supervision, protection, or instruction to complete ADLs. We make no changes based on this comment.

One commenter asked whether the use of community support professionals and resources (

e.g.,

art therapy services, life skills coaching) that provide active supervision to the eligible veteran while performing other activities when the designated Family Caregiver is not present would affect eligibility for PCAFC. It was recommended VA clarify the role that non-designated individuals or organizations such as those identified in the previous sentence may play in an eligible veteran's life, and the commenter advocated that use of such services should not disqualify a veteran from PCAFC. As previously explained, it is not our intent to require that a Family Caregiver be present at all times. We acknowledge that all caregivers need a break from caregiving. It is important to note that respite care is a benefit provided to assist Family Caregivers, and we encourage the use of respite care by Family Caregivers. The definition of “in need of personal care services” ensures that PCAFC is focused on veterans and servicemembers who require in-person personal care services, and that in the absence of such personal care services, such individuals would require alternative in-person caregiving arrangements. This definition as well as all other PCAFC eligibility criteria are not intended to discourage the utilization of community support resources or community-based organizations who may provide care or supervision to the eligible veteran while the Family Caregiver is not present. We note, however, it is our expectation that the Family Caregiver actually provide personal care services to the eligible veteran. The requirements in §§ 71.20(a)(5) and 71.25(f) make clear that personal care services must be provided by the Family Caregiver, and that personal care services will not be simultaneously and regularly provided by or through another individual or entity. We further refer the commenter to the discussion of § 71.25 below. We are not making any changes based on these comments.

One commenter asserted that VA's definition is further clarified by other regulatory requirements concerning neglect of eligible veterans, specifically § 71.25(b)(3) (“[t]here must be no determination by VA of . . . neglect of the eligible veteran by the [Family Caregiver] applicant”) and § 71.45(a)(1)(i)(B) (authorizing VA to revoke the designation of a Family Caregiver for cause when the Family Caregiver has neglected the eligible veteran). We used the “in-person” language to address the eligible veteran's level of need, which is distinct from §§ 71.20(a)(5) and 71.25(f), which establish the expectations of the Family Caregiver to provide personal care services, and §§ 71.25(b)(3) and 71.45(a)(1)(i)(B), which address neglect. If the veteran or servicemember does not require in-person personal care services, there may be other VA health care programs more suitable to meet his or her needs. If the Family Caregiver is not providing care, which pursuant to “in need of personal care services” will include in-person care, we could initiate revocation based on noncompliance under § 71.45(a)(1)(ii)(A), or for cause under § 71.45(a)(1)(i), depending on the circumstances. We note that these are distinct criteria and considerations. To the extent the commenter was remarking that the presence of requirements regarding neglect generally mean that the Family Caregiver is providing care in person rather than remotely, we agree. We make no changes based on this comment.

One commenter disagreed with the creation of the definition because of the existing statutory and regulatory definition of “personal care services,” and asserted that VA, by defining “in need of personal care services,” is restricting the bases upon which an eligible veteran can be deemed in need of personal care services in section 1720G(a)(2)(C). The commenter also asserted that VA has never created a definition for other programs and services in which similar language is used. We note that section 1720G(a)(2)(C) provides the bases upon which an individual may be deemed in need of personal care services; however, it does not define an objective standard for what it means to be in need of personal care services, and we found it necessary to define this term for purposes of PCAFC. We reiterate from the proposed rule that our interpretation of the term “in need of personal care services” for purposes of PCAFC would not apply to other sections in title 38, U.S.C., that use the phrase “in need of” in reference to other types of VA benefits that have separate eligibility criteria. We are not required to interpret “in need of” in the same manner in every instance the phase is used in title 38, U.S.C. See

Atlantic Cleaners & Dyers, Inc.

v.

United States,

286 U.S. 427, 433 (1932) ([although] “there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning . . . the presumption is not rigid and readily yields whenever there

is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent”). We are not making any changes based on this comment.

One commenter that supported the definition suggested that eligibility assessment teams include an occupational therapist or have applicants evaluated by an occupational therapist to help ensure a more objective assessment. The commenter believes PCAFC disproportionately relies on self-reporting of functioning. We note that centralized eligibility and appeals team (CEAT) will determine eligibility, including whether the veteran is determined to be unable to self-sustain in the community, for purposes of PCAFC. These teams will be comprised of a standardized group of inter-professional, licensed practitioners with specific expertise and training in the eligibility requirements for PCAFC and the criteria for the higher-level stipend, and will include occupational therapists, as appropriate. We thank the commenter for their suggestion; however, as this specific commenter did not make any suggestions regarding the proposed rule itself, we are not making any changes based on this comment.

Two commenters restated our belief, as indicated in the proposed rule, that under 38 U.S.C. 1720G(a)(2)(C), “in need of personal care services” means that without Family Caregiver support, VA would otherwise need to hire a professional home health aide or provide other support to the eligible veteran, such as adult day health care, respite care, nursing home, or other institutional care. These two commenters further opined that this description does not include jail or prison. One of these commenters also referred to Veterans Health Administration (VHA) policy on Geriatric and Extended Care Services, eligibility for homemaker/home aide or related respite care services and home hospice services, and an Office of Inspector General (OIG) report related to caregivers being incarcerated or hospitalized. These commenters provide no further context as to their concerns related to the definition of “in need of personal care services.” To the extent that these comments concern incarcerated or hospitalized veterans and caregivers, we refer the commenter to the discussion on discharge and revocations under § 71.45 further below. It is unclear why these comments refer to other VA health care programs, but we note that PCAFC is one of many VHA programs available to meet the needs of eligible veterans. We make no changes based on these comments.

Another commenter noted that VA added a definition of “in need of personal care services,” but also referred to the definition for “personal care services” as it is currently defined in § 71.15, then stated the terminology “is not specific and very narrow.” The commenter asserted that it could therefore “disqualify many veterans” and “allows one to think that family caregiver support is not allowed and only qualifies for a hired professional home health aide or provide other support to the eligible veteran such as adult day health care, respite care, or facilitate a nursing home or other institutional care placement.” It is unclear if these comments were in reference to the proposed definition of “in need of personal care services” or to the current definition of “personal care services.” To the extent the commenter believes the definition for “personal care services” in current § 71.15 is too narrow, we did not propose to change that definition in this rulemaking and consider such comment outside the scope of this rulemaking. To the extent the commenter believes the definition for “in need of personal care services” is too narrow such that it would disqualify many veterans, lead one to believe that that Family Caregiver support is not allowed, and allow only a hired professional home health aide or other similar support, we disagree and we refer the commenter to the previous paragraphs in this section discussing this definition. We are not making any changes based on this comment.

One commenter also requested that VA clearly state in regulation that working is not an exclusion criterion for either the veteran or the Family Caregiver. This commenter stated that while VA has often publicly stated that working is not an exclusion criterion, they are aware of many situations when a Family Caregiver was discharged from PCAFC because either the veteran or Family Caregiver worked. We also received a similar comment in response to the definition of inability to perform an ADL, in which another commenter urged VA to include in the PCAFC regulations that employment does not exclude the veteran or the Family Caregiver from PCAFC, and noted they are aware of several instances where participants have been discharged from PCAFC because of employment. This commenter further stated that a veteran's ability to work does not mean that he or she does not need the same or higher level of assistance with ADLs as those catastrophically disabled veterans who are unable to work. Relatedly, some commenters opposed allowing veterans to be eligible for PCAFC if they work full time.

Employment is not an automatic disqualifier for PCAFC. However, we decline to include language in the regulation to explicitly state that, as doing so could suggest that employment is not considered by VA in determining eligibility for PCAFC, which is not the case. While maintaining employment would not automatically disqualify a veteran or servicemember for PCAFC, employment and other pursuits, such as volunteer services and recreational activities, can and do inform VA regarding an individual's functional ability and would be considered during the evaluation of the veteran or servicemember. For example, if a veteran or servicemember travels for work or leisure and can independently manage alone for weeks at a time without the presence of a caregiver, that would likely indicate that the individual does not require personal care services “each time” he or she completes one or more ADLs.

Creating any specific requirements regarding employment for eligible veterans or Family Caregivers would be difficult because of the unique needs of every individual and the vast employment options, both with and without accommodations. For example, an eligible veteran in need of personal care services due to an inability to perform multiple ADLs because of quadriplegia may be able to maintain any number of professional opportunities with proper accommodations, and still qualify for PCAFC. As the needs and condition for each veteran or servicemember and his or her caregiver are unique, we do not believe it is reasonable to place restrictions on a veteran's or servicemember's ability to work.

In regards to the Family Caregiver's employment, it is not our intent to prevent Family Caregivers from obtaining and maintaining gainful employment as we are cognizant that the monthly stipend is an acknowledgement of the sacrifices made by Family Caregivers, but may fall short of the income a Family Caregiver would otherwise earn if gainfully employed. The Family Caregiver may have the ability to provide the required personal care services to the eligible veteran while maintaining employment. We acknowledge that each Family Caregiver's situation is unique, such that he or she may be able to work from home, have a flexible work schedule, or have a standard workplace and schedule. We understand that Family Caregivers may not be present all of the

time to care for the eligible veteran, and we do not expect them to provide care 24/7. However, they would be required to be available to provide the required personal care services to the eligible veteran. Thus, we decline to include language to state that employment is not an exclusionary factor for eligibility under part 71, and make no changes based on these comments.

In the Best Interest

We proposed to revise the current definition of in the best interest to mean a clinical determination that participation in PCAFC is likely to be beneficial to the veteran or servicemember, and such determination will include consideration, by a clinician, of whether participation in the program significantly enhances the veteran's or servicemember's ability to live safely in a home setting, supports the veteran's or servicemember's potential progress in rehabilitation, if such potential exists, increases the veteran's or servicemember's potential independence, if such potential exists, and creates an environment that supports the health and well-being of the veteran or servicemember.

Multiple commenters stated that they believe the focus on the potential for independence in the proposed definition of “in the best interest” is contradictory to the proposed definition of “serious injury,” which would require a service-connected disability rating of 70 percent or more, and the requirement that the veteran or servicemember be in need of personal care services for a minimum of 6 months. One commenter further explained that contradiction, stating that not all serious injuries become less over time and therefore, independence should not be the highest achievable goal for PCAFC. The commenter stated that focusing on the veteran's ability for improvement does not fully acknowledge that a veteran's condition may never heal or get better over time. First, we note that while the comments appear to focus on serious injury, we are not requiring that the serious injury be connected to the eligible veteran's need for personal care services. Conditions other than the serious injury may be the reason the eligible veteran has a need for personal care services. We agree with the commenters that some eligible veterans may have serious injuries or other conditions, for which they are in need of personal care services, that may never improve over time, and PCAFC will continue to be available to such veterans and their caregivers if eligible. However, each individual is unique, and some eligible veterans may have serious injuries that improve over time, and we want to support such veterans if they are able to recover or improve over time. Furthermore, “in some cases a clinician may determine that other care and maintenance options would be better to promote the [veteran's or servicemember's] functional capabilities and potential for independence.” 76 FR 26149 (May 5, 2011). We also want to emphasize that the potential for independence is only one factor that will be considered by VA in determining whether the program is in the veteran's or servicemember's best interest. We are not making any changes based on these comments.

Several commenters raised concerns about the definition including potential for rehabilitation, in particular the “if such potential exists” language, as some veterans may have little or no potential for rehabilitation and should not be excluded from PCAFC. One commenter recommended that while the language “if such potential exists” provides some comfort, new language should be added to more explicitly state that veterans who fail to show improvement will not be excluded from the program. Another commenter noted that the phrase “if such potential exists” is confusing as to whether the program is intended to be permanent or rehabilitative; the commenter explained the language implies the program is permanent if the potential for independence does not exist. One commenter also raised concerns that this language can lead to VA removing veterans from PCAFC when they are benefitting from it due to having better access to an advocate for their medical care.

The current definition for in the best interest includes a consideration of whether participation in the program supports the veteran's or servicemember's potential for rehabilitation, if such potential exists, and we did not propose any changes to this part of the definition. Rather, we proposed to include an additional consideration of whether participation in the program increases the veteran's or servicemember's potential independence, if such potential exists. While we appreciate the commenters' concerns regarding the potential for rehabilitation, we believe these comments are beyond the scope of this rulemaking as we did not propose any changes to this part of the definition. However, we would like to clarify that the use of the phrase “if such potential exists” is intended to acknowledge that due to the conditions and impairments of some participants, a potential for rehabilitation or improved independence may not be reasonable, achievable, or expected. Many veterans participating in PCAFC will have injuries, conditions, or diseases that worsen over time that do not afford them the opportunity for rehabilitation or improved independence. Others, however, may indeed be able to achieve a level of increased functioning beyond their current abilities. We wish to make it clear that PCAFC is a clinical program, and the goal of clinical programs is to maximize health and well-being. If it is determined that participation in PCAFC is providing a disincentive for a veteran's well-being, PCAFC may be determined to not be in the individual's best interest. Similarly, we wish to make it clear that when such potential for improved functioning is not deemed reasonable, the lack of potential does not disqualify an individual from PCAFC. We make no changes based on these comments.

Several commenters expressed concern that eligibility determinations are based on a veteran's ability to recover. Commenters further asserted that it is unlawful for VA to deny or revoke eligibility based on a standard that focuses only on those who will recover or are likely to recover. While these commenters did not specifically provide these comments in the context of the definition for in the best interest, we believe these comments are best addressed in the discussion of this definition. We note that we are not basing eligibility decisions based on a veteran's ability to recover, and PCAFC eligibility is not dependent on a veteran's or servicemember's ability to recover. However, we do want to support an eligible veteran if they are able to recover, rehabilitate, or improve over time. There are many instances in which an eligible veteran has minimal ability to recover, rehabilitate or improve, and PCAFC will continue to be available to such veterans and their caregivers. We further note that as part of this rulemaking, we are extending eligibility to those with progressive illnesses (see definition of serious injury), from which an eligible veteran may never recover. We make no changes based on these comments.

One commenter explained that this definition perpetuates a paternalistic and condescending approach of how the Department should provide care to veterans, assuming a veteran is incapable of understanding what health care is and what is not in their best interest, and that the veteran is incapable of making their own health care decisions. Additionally, another commenter recommended that the definition focus on decision-making capacity and competence, and surrogate

decision making, consistent with VHA policy regarding informed consent for clinical treatments and procedures.

Under 38 U.S.C. 1720G(a)(1)(B), VA “shall only provide support under [PCAFC] to a family caregiver of an eligible veteran if [VA] determines it is in the best interest of the eligible veteran to do so.” As stated in VA's interim final rule establishing part 71, VA concludes that determinations of “in the best interest” must be clinical determinations, guided by VA health professionals' judgment on what care will best support the health and well-being of the veteran or servicemember. 76 FR 26149 (May 5, 2011). While we appreciate the commenters' concerns and suggestions, which seem to concern the overall purpose and scope of this definition, the commenters did not specifically address our proposed changes to this definition regarding the additional consideration of whether participation in the program increases the veteran's or servicemember's potential independence, if such potential exists. We make no changes based on these comments.

One commenter suggested that this definition not focus on the quality of the veteran and caregiver relationship, particularly as it is not appropriate or ethical to do so, except in circumstances that meet the definition of substantiated abuse or neglect consistent with applicable, related VHA policy on elder abuse and vulnerable adults. While we appreciate the commenter's concern, this definition is not focused on the relationship and quality of a veteran's or servicemember's relationship with their Family Caregiver; rather, it is focused on whether it is in the best interest of the eligible veteran to participate in PCAFC. The relationship of the veteran or servicemember and the Family Caregiver is considered, but is not a determining factor when deciding if participation in PCAFC is in the best interest of the veteran or servicemember. We make no changes based on this comment.

Another commenter recommended that the definition be revised to automatically presume a veteran's participation in PCAFC is in their best interest unless VA determines such participation is not in their best interest. As previously explained, we did not propose a new definition for “in the best interest.” Rather, we proposed to add an additional criterion to an already existing definition in § 71.15. Therefore, we believe this comment is beyond the scope of this rulemaking and we make no changes based on this comment.

Several commenters expressed concern about which clinician should be allowed to make the determination of whether PCAFC is in the best interest for a veteran or servicemember. Specifically, commenters were concerned that the clinician making the determination may not be the treating physician nor have any prior knowledge or experience with the veteran or servicemember. Additionally, one commenter suggested that the determination should be made with both the eligible veteran's primary care doctor and primary provider of care to ensure those who have knowledge of the veteran's needs are involved. As explained throughout this final rule, CEATs, composed of a standardized group of inter-professional, licensed practitioners, with specific expertise and training in the eligibility requirements for PCAFC, will make determinations of eligibility, including “in the best interest,” and whether the veteran is determined to be unable to self-sustain in the community. Clinical staff at local VA medical centers will conduct evaluations of PCAFC applicants with input provided by the primary care team to the maximum extent practicable. This information will be provided to the CEATs for use in making eligibility determinations, including whether the veteran is determined to be unable to self-sustain in the community for the purposes of PCAFC. As explained in the discussion on primary care team, we are revising the definition of primary care team in this final rule to ensure that those medical professionals, including a VA primary care provider, who care for the veteran and have knowledge of the veteran's needs and treatments, are part of the primary care team. We further note that any documentation from a non-VA provider that the veteran or servicemember provides will be available to VA for purposes of PCAFC evaluation and eligibility determinations. We make no changes based on these comments.

A few commenters questioned why VA did not provide the proposed revised definition for in the best interest so that the public could review and comment. As indicated in the proposed rule, the current language in the definition would generally remain; however, we are replacing the phrase “veteran or servicemember's” with “veteran's or servicemember's” and adding that a clinician would also consider whether participation in PCFAC “increases the veteran's or servicemember's potential independence, if such potential exists.” 85 FR 13360 (March 6, 2020). Furthermore, the proposed rule provided the revised definition for the public to review and comment on:

In the best interest means, for the purpose of determining whether it is in the best interest of the veteran or servicemember to participate in the Program of Comprehensive Assistance for Family Caregivers under 38 U.S.C. 1720G(a), a clinical determination that participation in such program is likely to be beneficial to the veteran or servicemember. Such determination will include consideration, by a clinician, of whether participation in the program significantly enhances the veteran

's

or servicemember's ability to live safely in a home setting, supports the veteran

's

or servicemember's potential progress in rehabilitation, if such potential exists,

increases the veteran's or servicemember's potential independence, if such potential exists,

and creates an environment that supports the health and well-being of the veteran or servicemember.

85 FR 13405 (March 6, 2020) (emphasis added). We are not making any changes based on these comments.

Inability To Perform an Activity of Daily Living (ADL)

VA proposed to modify its definition of inability to perform an activity of daily living (ADL) to mean that a veteran or servicemember requires personal care services each time he or she completes one or more of the specified ADLs, and would thereby exclude veterans and servicemembers who need help completing an ADL only some of the time the ADL is completed. VA received numerous comments about this proposed definition. Many commenters believe this definition to be too limiting and some suggested a less restrictive definition. Others requested clarification or suggested alternative approaches.

Several commenters raised concerns with the part of this definition that would require that a veteran or servicemember require personal care services “each time” he or she completes one or more ADL, and urged VA to not impose this requirement. Specifically, their concerns are that this definition is too limiting, is more restrictive than the current PCAFC, is too narrow to properly evaluate a veteran's disability and symptoms, and may result in veterans being ineligible for PCAFC when they may need more assistance than those who are determined eligible. Several commenters asserted that some veterans may not need assistance with one or more ADLs each time every day; they may only need assistance some or most of the time; and that the assistance needed can vary over time, may fluctuate (even throughout the day, based on medication or repeated motion, etc.), and can vary based on

circumstances (

e.g.,

weather, after surgery or physical therapy, seasonally). Numerous examples were provided by commenters of situations in which they assert a veteran may need caregiving on a regular basis (and potentially more so than others who would qualify under the definition) but would not meet the definition of inability to perform an ADL because they do not need assistance every time they perform an ADL. For example, one commenter indicated a veteran with severe traumatic brain injury (TBI) who has an inability to regulate mood, memory loss, or an inability to follow proper hygiene standards may not require assistance every day, but still requires caregiving on a regular basis. Another commenter asserted that the proposed criteria “would discriminate against severely disabled veterans with musculoskeletal and/or neurological conditions that limit muscle endurance,” that is, “veterans with sufficient muscle force to complete one ADL instance without assistance but due to having to repeat the ADL throughout the course of the day would eventually require assistance would therefore not be eligible,” and “would also discriminate against other severe disabilities that relapses and remits, or that waxes and wanes, including mental health and cognitive impairments.” One commenter asserted that this “all or nothing” approach is contrary to how health care and caregiving should be treated, resulting in harm to veterans. One commenter recommended the definition should use “requires personal care services most of the time when attempting to complete one or more of the following . . .” or similar language. Other commenters recommended clarifying that required assistance may vary over time or from one day to the next. Another commenter asserted that the requirement is not consistent with VA's “long-established acknowledgement that an injury is not stable and changes,” and specifically cited to VBA's Schedule for Rating for the musculoskeletal system at 38 CFR 4.40 and 4.45 in asserting that a veteran with functional loss of the musculoskeletal system may experience additional loss of function during repeated motions over time and flare-ups.

Other commenters requested clarification on how VA would consider ADLs that are not completed every day, including a commenter who recognized that that the frequency with which some ADLs are completed can vary based on the individual's clinical needs, such as bathing.

Some commenters asserted that the definition fails to support efforts by a catastrophically disabled veteran to exert even a small level of independence, when possible, and that because some veterans have spent years and decades striving for a degree of independence, an ability to infrequently perform ADLs should not disqualify a veteran from PCAFC.

While we appreciate the commenters' concerns, we make no changes based on these comments, and address them below.

First, we note that the definition of inability to perform an ADL is an objective standard used to evaluate eligibility for PCAFC. This determination is specific to PCAFC and does not indicate whether a veteran or servicemember is in need of, and eligible for, other health care benefits and services. If a veteran or servicemember does not meet this definition, they may not otherwise be eligible for PCAFC. However, it does not mean that he or she does not require, or is ineligible for, other VA benefits and services. For veterans and servicemembers who are not eligible for PCAFC, we will assist them, as appropriate, in considering what other health care programs may best meet their needs.

As explained in the proposed rule and reiterated here, this definition requires that a veteran or servicemember need personal care services each time he or she completes any of the ADLs listed in the definition. 85 FR 13360 (March 6, 2020). We would not require the veteran or servicemember qualifying for PCAFC based on an inability to perform an ADL need personal care services on a daily basis. As stated in the proposed rule:

Although the statute refers to an eligible veteran's inability to perform one or more activities of daily living as a basis upon which he or she can be deemed in need of personal care services (38 U.S.C. 1720G(a)(2)(C)(i)), we recognize that not all activities of daily living need to be performed every day. For example, bathing is included in the current § 71.15 definition of “[i]nability to perform an activity of daily living,” but bathing may not be required every day. A veteran may be able to maintain health and wellness by adhering to a less frequent bathing routine. Id. at 13361.

As we also explained in the proposed rule, this definition is not met if a veteran or servicemember needs help completing an ADL only some of the time that the ADL is completed. Id. We believe the proposed definition delineates an objective frequency requirement that will enable VA to operationalize and standardize PCAFC across the country and is consistent with our goal of focusing PCAFC on eligible veterans with moderate and severe needs. The definition sets forth a consistent, standardized, and clear requirement, by specifying that a veteran or servicemember requires personal care services each time the ADL is completed, regardless of which ADL it is. We believe that the requirement that assistance be needed each time the ADL is completed equates to a veteran or servicemember requiring a moderate amount of personal care services. Each ADL is treated the same irrespective of the specific tasks required to complete the ADL or frequency with which it is completed. Reliance on a Family Caregiver for any one of the seven ADLs results in a self-care deficit that affects the veteran's or servicemember's quality of life.

The definition of an inability to perform an ADL would only be met if a veteran or servicemember needs personal care services each time that he or she completes an ADL as indicated through a clinical evaluation of the veteran's functional abilities, with input by the veteran or servicemember and caregiver. We acknowledge the degree of assistance may vary; however, a degree of hands-on assistance will be required each time the ADL is performed. In some cases, the degree of assistance that a veteran or servicemember may need to complete the ADL may vary throughout the day. In some instances, the veteran or servicemember may only need minimal assistance completing the ADL, but in other instances throughout the day may require moderate assistance. For example, veterans and servicemembers who have muscle weakness, lack of dexterity, or fine motor skills, may only need assistance with removing clothing when toileting at the beginning of the day, but later in the day they may require assistance with removing clothing, performing appropriate hygiene and redressing when completing the task of toileting.

We considered whether we should require the definition of inability to perform an ADL include daily assistance with an ADL instead of assistance each time an ADL is completed, but we have determined that use of daily instead of each time would result in less consistency and clarity, as it would require us to include exceptions for certain ADLs, such as grooming and bathing, that may not be completed on a daily basis. These exceptions would create confusion in applying the definition and result in less consistency and standardization in the application of this definition.

Similarly, we did not define inability to perform an ADL to require assistance

with an ADL most or majority of the time because we believe such terms are too vague and subjective, leading to inconsistencies in interpretation and application. Using most or majority of the time instead of each time would be difficult to quantify, and would require us to establish an arbitrary threshold.

To the extent that a commenter was concerned that this definition would exclude veterans who may need more assistance than those who cannot independently accomplish one ADL, we respectfully disagree for the reasons described above. We believe that if a veteran or servicemember needs assistance with multiple ADLs, it is likely that at least one of those ADLs requires assistance each time the ADL is completed.

Furthermore, the monthly stipend provided to a Primary Family Caregiver under 38 U.S.C. 1720G is not disability compensation and it is not designed to supplement or replace the disability compensation received by the veteran. Therefore, we disagree with the assertion that this definition must maintain consistency with the rating schedule in 38 CFR part 4, subpart B.

Commenters raised concerns that catastrophically disabled veterans would not meet this definition. We assume these commenters are referring to the definition of catastrophically disabled veterans as used by VHA in 38 CFR 17.36(b). We disagree that catastrophically disabled veterans will inevitably be excluded based upon this definition. Veterans who are catastrophically disabled are those with a severely disabling injury, disorder, or disease that permanently compromises their ability to carry out activities of daily living. See 38 CFR 17.36(e). Some veterans with such a designation will be in need of personal care services based on an inability to perform an ADL (

i.e.,

requiring personal care services each time one or more ADLs is completed). However, through adaptive equipment, home modifications, or other resources, there may be veterans who do not require another individual to perform personal care services, or otherwise do not qualify for PCAFC. VA will evaluate each veteran and servicemember based on the eligibility criteria set forth in § 71.20.

We are not making any changes based on these comments.

One commenter provided data they collected from veterans concerning the performance of ADLs and noted that there were extremely few veterans who were completely dependent on caregivers to complete ADLs. Another commenter similarly asserted that even veterans with moderate and severe needs “may not meet this high threshold, and the proposed revision may exclude vast numbers of veterans from the program,” noting that “even a veteran who needs assistance with an ADL nine times out of ten would nonetheless fail to meet the requirement.” Additionally, one commenter believed the definition of inability to perform an ADL to suggest the program would be limited to veterans requiring 24/7 care, and that 95 percent of current PCAFC participants would fail to qualify based on the definition of inability to perform an ADL.

We appreciate the concerns raised by these commenters and the data provided by one of the commenters, as these are informative. However, we cannot verify that the data provided are accurate. We do not currently track and maintain data on how many current PCAFC participants qualify for PCAFC based on the current definition of inability to perform an ADL versus the current definition of need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury. While inability to perform an ADL is one way in which an individual can qualify for PCAFC, it is not the only way, as individuals may meet the definition of need for supervision, protection, or instruction (

i.e.,

an individual may have a functional impairment that directly impacts his or her ability to maintain personal safety on a daily basis). We do know that a majority of current PCAFC participants have a mental health diagnosis amongst their diagnoses, but we do not track if that mental health diagnosis is the reason they are eligible for PCAFC. We do not believe this definition of inability to perform an ADL will be as restrictive as the commenters assert, but we cannot verify if the data provided by the commenters is accurate. This does not change our decision to use the definition of inability to perform an ADL as we proposed and now make final, as we find the benefits (

e.g.,

clarity, objectivity, consistency) of using this definition outweigh any potential risks identified by the commenters. We will track and monitor PCAFC participants to determine the basis for their eligibility for PCAFC (

i.e.,

whether it is because he or she has an inability to perform an ADL or a need for supervision, protection, or instruction) moving forward. Additionally, VA will also track individuals who apply and are not eligible based on the definition of in need of personal care services. If over time we find that this definition is as restrictive as the commenters assert it will be, we will adjust and revise the definition accordingly in a future rulemaking.

Further, we do not believe that the definition of inability to perform an ADL will exclude vast numbers of veterans and servicemembers from PCAFC, as there will be veterans and servicemembers who meet this definition with regards to only one ADL. We believe requiring assistance with one ADL each time such ADL is performed encompasses a broad and inclusive range of injuries and illnesses which may cause an individual to require the care and assistance of another. For example, a veteran with Parkinson's disease who needs assistance with grooming each time, but does not need assistance with other ADLs, may meet this definition. A veteran who requires assistance donning prosthetic equipment, but once equipment is in place is otherwise independent, may also meet this definition. Similarly, a veteran with mobility impairment may meet this definition if he or she requires assistance with lower body dressing, but is otherwise independent. While some veterans may need assistance with more than one ADL, others will not but would still qualify so long as they need assistance with at least one ADL each time it is performed.

Contrary to the commenter's statement that PCAFC would be limited to veterans requiring 24/7 care, we note that it is not our intent that PCAFC be limited to only those veterans and servicemembers that require 24/7 care and we refer the commenter to the previously-cited examples above. We further note that we do not expect or require Family Caregivers to provide 24/7 care as part of PCAFC. This definition would not restrict PCAFC to only those requiring 24/7 care, as this definition requires that assistance be needed each time the ADL is completed, which we believe equates to a veteran or servicemember requiring a moderate amount of personal care services.

We make no changes based on these comments.

One commenter stated that they believe this definition of inability to perform an ADL is more aligned with the definition of “incapability” rather than “inability” because they interpret the definition of inability as contemplating degrees along a spectrum. This commenter further asserted that VA's definition of inability to perform an ADL does not align with Congressional intent for PCAFC. While we acknowledge that incapability and inability may have similar definitions,

we interpret and define inability to perform an ADL, as required by 38 U.S.C. 1720G, to mean that the veteran or servicemember needs personal care services each time an ADL is completed. We believe this interpretation is reasonable and rational, because it will provide objective criteria for evaluating this term and will ensure those with moderate and severe needs are eligible for PCAFC. It is also important to note that while “ability” can be considered along a spectrum, that does not mean that “inability” or “lack” of ability must similarly be considered along a spectrum. We make no changes based on this comment.

One commenter asserted that VA failed to state if the care provided must be hands-on, physical care to meet the definition of inability to perform an ADL and recommended VA state that assistance can also be in the form of supervision, protection, or instruction as the veteran completes each ADL. Relatedly, another commenter, in addressing the definition of “need for supervision, protection, or instruction,” suggested that VA had muddled the statutory language, which the commenter asserted “neither limits the inability to perform one or more [ADLs] to physical impairments nor excludes physical impairments from causing the need for supervision or protection.” Other commenters provided examples that seemed to confuse the definitions of “inability to perform an activity of daily living” and “need for supervision, protection, or instruction,” which are separate bases upon which an eligible veteran can be deemed in need of personal care services under § 71.20(a)(3). For example, one commenter referred to veterans who may not be able to remember to take medication, eat, or bathe unless directed to do so and supervised.

We reiterate from the proposed rule that VA considers inability to perform an ADL separate from a need for supervision, protection, or instruction, and that an inability to perform an ADL would involve physical impairment, while need for supervision, protection, or instruction would involve cognitive, neurological, or mental health impairment. See 85 FR 13363 (March 6, 2020). That does not mean, however, that veterans or servicemembers who require assistance with ADLs cannot qualify for PCAFC based on a need for supervision, protection, or instruction, as they may have a functional impairment that directly impacts their ability to maintain personal safety on a daily basis. It is important to note that when we evaluate veterans and servicemembers for PCAFC, we make a clinical determination that is comprehensive and holistic, and based on the whole picture of the individual.

We also note that the care required under the definition of inability to perform an ADL is hands-on, physical care. If that requirement of hands-on, physical care is not met, a veteran or servicemember may still qualify under the definition of need for supervision, protection, or instruction, as that definition does not require hands-on, physical care. To the extent that commenters suggested we include need for supervision, protection, or instruction as the level of assistance required for the definition of inability to perform an ADL, we decline to adopt that suggestion. The definition of need for supervision, protection, or instruction already includes a type of assistance, which we believe would accurately capture veterans with a functional impairment that impacts their ability to maintain their personal safety on a daily basis due to an inability to perform an ADL.

We are not making any changes based on these comments.

One commenter explained that posttraumatic stress disorder (PTSD) and TBI can lead to fluctuations in a veteran's level of functioning and requested VA clearly define what it means to require assistance with an ADL each time it is completed. The commenter also requested VA clarify how VA will consistently assess, across VA, a veteran's inability to perform an ADL. This will be a clinical determination based on a clinical assessment and evaluation of the veteran and include input from the Family Caregiver or Family Caregiver applicant. Additionally, we will provide ongoing education and training to field staff and CEATs. We anticipate fluctuations in functioning, especially with mental health conditions such as PTSD, but if such fluctuations mean that a veteran or servicemember does not require personal care services each time an ADL is completed, then the veteran or servicemember would not meet this definition. A veteran or servicemember could require only a minimal amount of assistance with an ADL on some occasions and a lot of assistance with an ADL on other occasions. However, they must require some amount of assistance with an ADL each time. Thus, if the veteran or servicemember can complete the ADL independently and without personal care services, even on remote occasions, the veteran or servicemember would not meet the requirement of this definition to require assistance “each time” with regards to an ADL. However, we note that if a veteran or servicemember does not meet the definition of inability to perform an ADL, they may be eligible under the definition of need for supervision, protection, or instruction. We are not making any changes based on this comment.

One commenter stated that this definition fails to consider the detrimental effect that delayed care would have on the veteran's or servicemember's health, and further raised concerns with the definition in suggesting that it conditions eligibility on deterioration of the veteran's or servicemember's health, which would be detrimental to the veteran or servicemember and create higher health care costs for the VA system. While we understand the commenter's concern, we believe that excluding veterans and servicemembers who need help completing an ADL only some of the time he or she completes any of the ADLs listed in the definition is consistent with our goal of focusing PCAFC on eligible veterans with moderate and severe needs. As stated in the proposed rule:

This distinction is especially important for eligible veterans whose care needs may be more complex, particularly as personal care service needs related to a physical impairment can evolve over time. For example, infrequent assistance may be needed in the immediate time period following the onset of a disease (such that the individual needs help completing an ADL only some of the time it's completed), but over time and as the individual begins to age, the individual's care needs can progress. We would thus distinguish between veterans and servicemembers needing assistance with an ADL only some of the time from those who need assistance every time the ADL is completed, those who we believe have an “inability” to perform an ADL. 85 FR 13361 (March 6, 2020).

Furthermore, we note that PCAFC is just one of many VA programs available to support veterans and his or her caregiver, as VA offers a menu of supports and services that support caregivers caring for veterans such as homemaker and home health aides, home based primary care, Veteran-Directed care, and adult day care health care to name a few. In addition, VA offers supports and services provided directly to caregivers of eligible veterans through PGCSS including access to Caregiver Support Coordinators (CSCs) located at every VA medical center, a caregiver website, training and education offered on-line and in person on topics such as self-care, peer support, and telephone support by licensed social workers through VA's Caregiver Support Line. A determination that a veteran or servicemember is not eligible

for PCAFC would not exclude the veteran or servicemember and his or her caregiver from receiving VA support through alternative support and services as applicable. We are not making any changes based on this comment.

One commenter further noted that a veteran's use of an assistive device to perform an ADL should not be used against them. This same commenter also advocated that inability to perform an ADL should mean that the veteran or servicemember is unable to perform an ADL at any point of time, and suggested that this could be monitored in the wellness checks or annual assessment, and where assistance is required indefinitely, a permanent status could be noted in the record. First, use of an assistive device would not alone exclude a veteran or servicemember from PCAFC. However, we note that to qualify for PCAFC, the veteran or servicemember must be in need of personal care services, which means, in part, that the individual requires in-person care or assistance from another person. If the veteran's or servicemember's needs with respect to ADLs are met with an assistive device, the individual would not be in need of personal care services based on an inability to perform an ADL. Second, annual reassessments will include an assessment of whether an eligible veteran has an inability to perform an ADL, as appropriate, as the eligible veteran may have improved or worsened. While VA does not intend to assess PCAFC eligibility through wellness contacts, including whether an eligible veteran has an inability to perform an ADL, the need for a reassessment may be identified through a wellness contact. VHA is not imposing the “each time” requirement for purposes of oversight. We believe recurring reassessment and wellness checks are appropriate regardless of the frequency with which an eligible veteran is in need of personal care services. The “each time” requirement is solely for the purposes of determining whether a veteran or servicemember meets the definition of inability to perform an ADL. As discussed below with respect to other commenters who advocated for a permanent designation, we will not designate individuals as permanently eligible for PCAFC in their medical records, even for eligible veterans who are expected to need assistance indefinitely; however, there would be documentation of the eligible veteran's on-going needs in the medical record. Additionally, we note that the frequency of reassessments would be annually, unless there is a determination made and documented by VA to conduct reassessments on a more or less frequent basis. 85 FR 13379, 13408 (March 6, 2020). We make no changes based on these comments.

One commenter who objected to the definition of “unable to self-sustain in the community” (discussed further below) provided descriptions and examples of mobility or transferring, feeding or eating, toileting, and shower/bathing, to include descriptions of progressive stages of assistance. It is not clear what the commenter is recommending; however, we do not believe it is necessary for VA to further describe the ADLs listed in this definition as the individual needs for each veteran and servicemember are unique. It is important to note that the definition of inability to perform an ADL and the list of ADLs are based on widely-accepted and commonly understood definitions of ADL needs in the clinical context. Thus, we find it unnecessary to add any further descriptors, particularly as doing so could lead to confusion.

We are not making any changes based on this comment.

One commenter asked why certain instrumental activities of daily living (IADL) were not addressed in the PCAFC eligibility criteria. While we understand and recognize that many caregivers may assist with IADLs, we are required by the authorizing statute to consider ADLs specifically. As stated in the final rule implementing PCAFC and PGCSS, we believe that Congress specifically considered and rejected the use of the term “instrumental activities of daily living” in the Caregivers Act. See 80 FR 1357, at 1367 (January 9, 2015). Moreover, in section 162(b)(1) of the VA MISSION Act of 2018, Congress replaced the term “independent activities of daily living” with the term “activities of daily living” in the statutory definition of “personal care services” in 38 U.S.C. 1720G(d)(4) removing any doubt regarding the scope of the term “activities of daily living.” We are not making any changes based on this comment.

One commenter recommended VA use the guidance set forth in a procedural guide for the administration of the Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) program, which is authorized under 38 U.S.C. 1980A. Specifically, in the context of determining whether an individual has a loss of ADL, the TSGLI procedural guide states that the member must require assistance to perform at least two of the six ADLs. The TSGLI procedural guide defines “requires assistance” as: (1) Physical assistance: When a patient requires hands-on assistance from another person; (2) stand-by assistance: When a patient requires someone to be within arm's reach because the patient's ability fluctuates and physical or verbal assistance may be needed; and (3) verbal assistance: When a patient requires verbal instruction in order to complete the ADL due to cognitive impairment and without these verbal reminders, the patient would not remember to perform the ADL. See TSGLI Procedural Guide, Version 2.46 at 19-20 (June 12, 2019).

First, we note that TSGLI and PCAFC are two distinct programs with distinct purposes, as TSGLI provides “monetary assistance to help the member and the member's family through an often long and arduous treatment and rehabilitation period.” 70 FR 75940 (December 22, 2005). TSGLI is modeled after Accidental Death and Dismemberment (AD&D) insurance coverage. Id. These programs also have distinct eligibility criteria. For example, qualifying losses for TSGLI include, but are not limited to, total and permanent loss of sight; loss of a hand or foot by severance at or above the wrist or ankle; total and permanent loss of speech; total and permanent loss of hearing; loss of thumb and or other four fingers of the same hand by severance at or above the metacarpophalangeal joints; quadriplegia, paraplegia, hemiplegia, uniplegia; certain burns; coma or the inability to carry out the ADLs resulting from traumatic injury to the brain. 38 U.S.C. 1980A(b)(1); 38 CFR 9.20(f). While TSGLI does provide payments for an inability to carry out ADLs, those are limited to where that inability results from traumatic injury, including traumatic brain injury, and coma. See 38 U.S.C. 1980A; 38 CFR 9.20(f)(17) and (20). Additionally, inability to carry out ADLs is defined in section 1980A to mean the inability to independently perform two or more of the following six functions: Bathing, continence, dressing, eating, toileting, and transferring. 38 U.S.C. 1980A(b)(2)(D).

Under PCAFC, a veteran with TBI could be considered to be in need of personal care services; that is, because of either physical disabilities resulting in an inability to perform an ADL, or a cognitive, neurological, or mental health impairment resulting in a need for supervision, protection, or instruction. Stand-by and verbal assistance are covered under the need for supervision, protection, or instruction definition. Thus, we do not believe it is necessary to add these under the definition of inability to perform an ADL.

As we explained in the proposed rule, rather than quantifying losses, PCAFC is

designed to support the health and well-being of eligible veterans, enhance their ability to live safely in a home setting, and support their potential progress in rehabilitation, if such potential exists. Unlike TSGLI, which is limited to lump-sum monetary assistance, PCAFC provides eligible Family Caregivers with training and technical support to assist Family Caregivers in their role as a caregiver for an eligible veteran.

Additionally, we note that the monthly stipend provided to a Primary Family Caregiver under 38 U.S.C. 1720G is part of a clinical program rather than a rider to an insurance policy, thus we do not believe that this definition must maintain consistency with TSGLI. We are not making any changes based on this comment.

One commenter recommended that VA not evaluate inability to perform an ADL for those veterans receiving Special Monthly Compensation (SMC) for housebound status or aid and attendance, as they have already been certified by both medical providers and VBA to be in need of another person to perform an ADL, thereby suggesting that veterans in receipt of such benefits should be considered to meet the “inability to perform an activity of daily living” definition for purposes of PCAFC eligibility. SMC for aid and attendance is payable when a veteran, due to mental or physical disability, requires the regular aid and attendance of another person. 38 U.S.C. 1114(l), (r); 38 CFR 3.350(b), (h). SMC for housebound status is payable when a veteran, due to mental or physical disability, has a service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. 1114(s); 38 CFR 3.350(i). Section 3.352 of title 38, CFR, provides criteria for determining the need for regular aid and attendance, which include inability to perform ADLs such as dressing, eating, and continence, or requiring supervision or protection on a regular basis, for purposes of determining eligibility for SMC and special monthly pension.

While the eligibility requirements for SMC referenced by the commenter may seem similar, they are not synonymous with VA's definition of “inability to perform an ADL.” The regulatory criteria for aid and attendance under 38 CFR 3.352(a) provide that inability to perform certain specified ADLs “will be accorded consideration in determining the need for regular aid and attendance.” Further, whether an individual is “substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises” for purposes of housebound status, see 38 CFR 3.350(i)(2), does not correlate directly with the more objective ADL criteria we proposed for PCAFC eligibility. Consequently, the part 3 criteria fail to provide the level of objectivity VA seeks in order to ensure that its caregiver program is administered in a fair and consistent manner for all participants, and we do not believe criteria for those benefits should be a substitute for a clinical evaluation of whether a veteran or servicemember is eligible for PCAFC due to an inability to perform an ADL as set forth in § 71.15. We believe that in order to ensure that PCAFC is implemented in a standardized and uniform manner across VHA, each veteran or servicemember must be evaluated based on the eligibility criteria in § 71.20. To that end, VA will utilize standardized assessments to evaluate both the veteran or servicemember and his or her identified caregiver when determining eligibility for PCAFC. It is our goal to provide a program that has clear and transparent eligibility criteria that is applied to each and every applicant. Additionally, we do not believe it would be appropriate to consider certain disability ratings as a substitute for a clinical evaluation of whether a veteran or servicemember has an inability to perform an ADL, as not all veterans and servicemembers applying for or participating in PCAFC will have been evaluated by VA for such ratings, and because VA has not considered whether additional VA disability ratings or other benefits determinations other than those recommended by the commenters may be appropriate for establishing that a veteran or servicemember has an inability to perform an ADL for purposes of PCAFC. We are not making any changes based on this comment.

Institutionalization

Several commenters opposed the inclusion of jail or prison in the proposed definition of institutionalization. Specifically, commenters stated this definition conflicts with the common use of the term by health care providers and other VHA and federal programs. Furthermore, commenters raised concerns about the application of this definition in 38 CFR 71.45(b)(1) and (2) (related to discharge of the Family Caregiver due to the eligible veteran or Family Caregiver, respectively). We note that this definition will only be used in the context of § 71.45, Revocation and Discharge of Family Caregivers, and refer the commenters to the discussion below regarding discharge due to incarceration under section § 71.45.

Joint Application

One commenter raised concerns about the definition of joint application, in particular that an application is considered incomplete when all mandatory sections are not completed, since many veterans may not be able to easily access information due to the passage of time or may have health issues that make it difficult or impossible to complete the application without assistance. This commenter also opined that delays will still result as VA will need to inform applicants that their applications are incomplete. While this commenter noted that, pursuant to 38 CFR 21.1032, VA has a duty to assist veterans in obtaining evidence in claims for other VA benefits, they suggested VA adopt a less punitive approach by instituting a process that includes notifying the applicant as promptly as possible that their application is incomplete. By defining the joint application to mean an application that has all fields within the application completed, including signature and date by all applicants, and providing for certain exceptions within the definition, it was not VA's intent to create a burden on veterans and caregivers; rather we are establishing the date on which VA can begin evaluating the applicants' eligibility for PCAFC. As stated in the proposed rule, the required fields are necessary for VA to begin evaluating the eligibility of veterans and servicemembers and their family members for PCAFC. The date the joint application received by VA is also the date on which certain PCAFC benefits are effective (unless another date applies under § 71.40(d)). It would not be reasonable to provide PCAFC benefits back to the date an incomplete application is received by VA; we need a complete application. This is a common requirement for the administration of benefits and services. We further note that the information required within the application (

i.e.,

names, address of veteran's or servicemember's residence, dates of birth, certifications, and signatures) is specific to the veteran and caregiver and is information they would have readily available. They are not required to further submit other supporting documentation that they may not have readily available, such as a DD-214 or medical records, as part of the application. As mentioned, the mandatory information should be readily available to them and the

application should be relatively easy to complete. However, if assistance with the application is needed, caregivers and veterans can ask VA staff for help, guidance, and support, and we will assist applicants as needed. In the application, we will include instructions that will provide information on requesting assistance with filling out the form, and various VA touchpoints including the National Caregiver Support line, VA's website, and a link to VA's Caregiver Support Coordinator (CSC) locator. We also note that it has been our practice to contact the caregiver and veteran when applications are incomplete, and we will continue to do so. Additionally, we will consider inclusion in policy of requirements for prompt notification in instances of incomplete applications. While we understand the commenter's concerns and appreciate the suggested changes, we make no changes to the regulations based on this comment.

Legal Services

One commenter asserted that VA's proposed definition of legal services is inconsistent with 38 U.S.C. 1720G and the VA MISSION Act of 2018. This commenter specifically stated that “instead of creating a program which would provide free, broadly accessible legal services to PCAFC veterans and their caregivers that covers a broad range of civil legal issues, including full representation matters where warranted, the proposed regulations impose a set of arbitrary limits on the types of matters to be covered.” While this commenter acknowledged that there are existing programs that provide legal services to veterans, servicemembers, and their families, the commenter asserted that such programs are insufficient; and inclusion of legal services in the VA MISSION Act of 2018 recognized the need for legal services by PCAFC veterans and their caregivers. This commenter praised VA for including preparation and execution of wills and other advance directives, but recommended VA expand the definition to include free legal services, and full representation as warranted, in areas of law where veterans and caregivers commonly face issues, including affordable housing, eviction and foreclosure, consumer debt, access to and maintaining local and federal government benefits, and family law.

We do not agree that the definition of legal services is inconsistent with our statutory authority, as 38 U.S.C. 1720G, as amended by the VA MISSION Act of 2018, did not define this term further than to state that legal services included legal advice and consultation, relating to the needs of injured veterans and their caregivers. We have the authority to further define this term, and did so in the proposed rule. Through a

Federal Register

Notice published on November 27, 2018, we solicited feedback from the public in order to develop this definition, and we also held meetings and listening sessions to obtain input from stakeholders. The responses received were varied, as we explained in the proposed rule. See 85 FR 13362 (March 6, 2020). For example, some feedback acknowledged the potential for conflicts of interest between the eligible veteran and Family Caregiver regarding certain legal issues, including divorce or child custody, while other feedback specified that legal services should include advanced directives, power of attorney, wills, and guardianship. Id. We considered the feedback received and, consistent with that feedback, we defined legal services to include assistance with advanced directives, power of attorney, simple wills, and guardianship; education on legal topics relevant to caregiving; and a referral service for other legal services. Id. We determined this would be the most appropriate way to define legal services, as this would allow us to provide assistance with the most common matters that Family Caregivers face in providing personal care services to eligible veterans (

i.e.,

advanced directives, power of attorney, simple wills, and guardianship), providing education on legal topics relevant to caregiving, and a referral service for other legal services. As explained in the proposed rule, this definition would address these important needs, while also being mindful of VA resources. Id. Paying for legal services for matters other than those described in the definition would be cost prohibitive and may limit our ability to provide the same level of services to as many Family Caregivers as possible, and would not be focused on those matters that Family Caregivers most commonly face in providing personal care services to eligible veterans. Providing limited legal assistance, education, and referrals would ensure we consistently provide an equitable level of legal services to all Primary Family Caregivers. As we explained in the proposed rule and reiterate here, we will provide as legal services assistance with advanced directives, power of attorney, simple wills, and guardianship; education on legal topics relevant to caregiving; and a referral service for other legal services. These services would be provided only in relation to the personal legal needs of the eligible veteran and the Primary Family Caregiver. This definition of legal services excludes assistance with matters in which the eligible veteran or Primary Family Caregiver is taking or has taken any adversarial legal action against the United States government, and disputes between the eligible veteran and Primary Family Caregiver.

We make no changes to the definition based on this comment, but will continue to assess the need for legal services by Family Caregivers to determine if VA should propose changes to the definition in the future.

Another commenter similarly praised VA for the inclusion of assistance with advanced directives, power of attorney, simple wills, and guardianship; educational opportunities on legal topics relevant to caregiving; and referrals to community resources and attorneys for legal assistance or representation in other legal matters. We appreciate the comment and are not making any changes based on this comment.

One commenter asked for clarification on whether legal services would be available regarding family members of the Family Caregiver and eligible veteran, such as children. While the benefit is for the Primary Family Caregiver, a family member of the Primary Family Caregiver and the eligible veteran may indirectly benefit from the legal services. However, they are not directly eligible for the benefit if they are not approved and designated as the Primary Family Caregiver. We make no changes based on this comment.

Another commenter questioned why legal services will be available to caregivers, whether it is indicative of a deeper problem, and asked what precautions and safety nets will be put in place to ensure veterans are not exploited or abused. As stated in the proposed rule, we are adding this term to address changes made to 38 U.S.C. 1720G by the VA MISSION Act of 2018. Specifically, the VA MISSION Act of 2018 added legal services as a benefit for Primary Family Caregivers. Accordingly, legal services will be added to the benefits available to Primary Family Caregivers under § 71.40(c)(6). Similar to financial planning services, we will include in any contracts requirements such as minimum degree attainment and certifications for individuals providing legal services, as well as mechanisms that would prohibit exploitation or abuse of caregivers and veterans (

e.g.,

prohibit any form of compensation from the eligible veteran or Family Caregiver for the services provided) and that allow us to take any appropriate actions

necessary to address related breach of contracts. We note that the contractors would be responsible for any liability arising from legal services provided. Further, contractors are not VA employees and therefore not covered by the Federal Tort Claims Act. We also plan to provide resources to the Family Caregiver to report any concerns of abuse or exploitation that may arise in the course of receiving the legal services, such as links to State and local bar discipline reporting sites, as appropriate. We make no changes based on this comment.

Monthly Stipend Rate

Several commenters expressed concern about VA's definition of monthly stipend rate. Specifically, some commenters believe it is too high, some believe it is too low, and others disagree with using the Office of Personnel Management's (OPM) General Schedule (GS) scale. We note that this definition will only be applied in the context of 38 CFR 71.40(c), Primary Family Caregiver benefits. Therefore, we address the comments in the section below regarding § 71.40.

Need for Supervision, Protection, or Instruction

VA's proposed rule added “need for supervision, protection, or instruction” as a new term and basis upon which a veteran or servicemember can be deemed in need of personal care services under § 71.20(a)(3). This term and its definition serve to implement the statutory phrases “a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” and “a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired” in clauses (ii) and (iii) of section 1720G(a)(2)(C) of title 38, U.S.C. VA received numerous comments about this proposed definition. Some commenters supported the definition, while others believed it is too restrictive or disagreed with VA's interpretation of the statutory requirements, and others requested VA provide clarification.

Commenters stated that quantifying the amount of time for supervision needed under this definition is difficult, and that some veterans may need constant supervision because of their health conditions. Commenters also requested VA clarify the frequency with which a veteran would need supervision, protection, or instruction for purposes of PCAFC eligibility. One commenter opined that the definition is extremely narrow in scope. Another commenter stated that the “daily basis” requirement will place an undue hurdle on veterans otherwise eligible for PCAFC. Another commenter opined that the definition is too restrictive, particularly as a veteran with “severe TBI may have symptoms that affect their function in a major way, but does not require assistance with functioning every day,” which does not diminish their need for caregiving on a regular basis. Additionally, commenters questioned how we would operationalize this definition, as individuals may have daily a potential need for supervision, protection, or instruction but intervention may only be required a few times a week.

As indicated in the proposed rule, we would define need for supervision, protection, or instruction to mean an individual has a functional impairment that directly impacts the individual's ability to maintain his or her personal safety on a daily basis. 85 FR 13363 (March 6, 2020). We revised the definition because we found the term “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” and its definition unduly restricted our ability to consider all functional impairments that may impact a veteran's or servicemember's ability to maintain his or her personal safety on a daily basis. Id. Contrary to some of the comments, it was not our intent to narrow and restrict eligibility with this change, and we believe that these revisions will broaden the current criteria since it will no longer be limited to a predetermined list of impairments. Additionally, the revised definition will be consistent with our goal of focusing PCAFC on eligible veterans with moderate and severe needs. Id. at 13364.

As we indicated in the proposed rule, “[w]hether a veteran or servicemember would qualify for PCAFC on this basis would depend on whether his or her functional impairment directly impacts the individual's ability to maintain his or her personal safety on a daily basis.” Id.

Some commenters raised concerns about the reference to “daily” in this definition, and we agree that additional clarification is needed. While “daily basis” in the definition refers to the individual's ability to maintain personal safety, most individuals determined to qualify on this basis will also require personal care services from a caregiver on a daily basis. The proposed rule was not clear in this regard, but it did allude to such individuals requiring personal care services on a daily basis. For example, we explained that a veteran or servicemember meeting this definition may not need supervision, protection, or instruction continuously during the day, but would need such personal care services on a daily basis, even if just intermittently each day. See 85 FR 13364 (March 6, 2020). This requirement for daily personal care services under the definition of “need for supervision, protection, or instruction” was also referenced in the context of explaining the definition of inability to perform an ADL, which does not require the veteran or servicemember need daily personal care services. See id. at 13361.

By focusing the definition of need for supervision, protection, or instruction on individuals who require personal care services on a daily basis, we will help ensure that PCAFC targets eligible veterans with moderate and severe needs. While we acknowledge that veterans with needs at a lower level may also benefit from the assistance of another individual, we believe PCAFC was intended to support those with moderate and severe needs. For applicants that apply to PCAFC and do not qualify, VA will assist the applicant in identifying and making referrals to other available resources that may meet their needs. Thus, we do not believe that the “daily basis” requirement in the definition creates an “undue hurdle”. Also, as we explained above, we are broadening the definition beyond a predetermined list of impairments, which will remove an existing barrier for many veterans and servicemembers who would meet the definition of need for supervision, protection, or instruction but do not have one of the listed impairments in the current regulation.

As part of this discussion, we would like to further correct and clarify the meanings of daily and continuous for purposes of the terms need for supervision, protection, or instruction, and unable to self-sustain in the community, respectively. We note that those who have a need for supervision, protection, or instruction on a continuous basis would meet the definition of unable to self-sustain in the community for purposes of the monthly stipend payment.

The terms daily and continuous relate to the frequency with which intervention is required in order to maintain an individual's personal safety that is directly impacted by his or her functional impairment. PCAFC is a clinical program and as such the determination of whether the frequency of intervention is daily or continuous is a clinical decision. Clinical decision making is highly individualized based on the specific needs of the individual

veteran or servicemember. As previously stated, it is important to note that when we evaluate veterans and servicemembers for PCAFC, we make a clinical determination that is comprehensive and holistic, and based on the whole picture of the individual. Factors VA will consider when evaluating the frequency of intervention required, specifically daily or continuous, include the factors set forth in 38 U.S.C. 1720G(a)(3)(C)(iii)(II) and (III), that is, the “extent to which the veteran [or servicemember] can function safely and independently in the absence of such supervision, protection, or instruction,” and the “amount of time required for the family caregiver to provide such supervision, protection, or instruction to the veteran [or servicemember].”

In addition to frequency, VA determinations of whether a veteran or servicemember is in need of supervision, protection, or instruction, and whether such need is on a continuous basis for purposes of the higher-level stipend, which are clinical determinations, also account for the degree of intervention required to support the safety of the veteran or servicemember. Individuals whose functional impairment directly impacts their personal safety on a daily basis generally require at least one active intervention each day. In contrast to passive interventions that may include the mere proximity of a caregiver, active intervention requires the caregiver to be actively involved and engaged in providing supervision, protection, or instruction. Whether the need is daily or continuous will also depend on the individual's demonstrated pattern of need.

For example, an eligible veteran with moderate cognitive impairment may need a Family Caregiver to provide step-by-step instruction when dressing in the morning and in the evening. Such active intervention is required on a daily basis, takes a finite amount of time, and the veteran can maintain their personal safety without additional active interventions from a caregiver for the remainder of the day. This veteran may be found to meet the definition of “need for supervision, protection, or instruction.” In contrast, an eligible veteran with advanced cognitive impairment may require supervision, protection, or instruction on a daily basis due to the need for step-by-step instruction in dressing each morning and because of a demonstrated pattern of wandering outside the home at various times throughout the day. In this example, the Family Caregiver would provide step-by-step instruction for dressing each morning, which is a planned intervention. In addition, because of the demonstrated pattern of wandering outside the home at various and unpredictable times, the veteran cannot function safely and independently in the absence of a caregiver. The Family Caregiver actively intervenes through verbal and physical redirection multiple times during the day. This veteran would have a continuous need for an active intervention to ensure his or her daily safety is maintained. Such veteran may meet the definition of unable to self-sustain in the community because of a need for supervision, protection, or instruction on a continuous basis.

We make no changes based on these comments.

One commenter expressed concern that the proposed definition would exclude from PCAFC veterans who require minimal assistance with supervision and provided an example of a veteran who can be alone, but would need to call his or her caregiver to be talked down when they begin to spiral or have an episode. As previously explained, we are standardizing PCAFC to focus on eligible veterans with moderate and severe needs. If a veteran or servicemember does not have a functional impairment that directly impacts the individual's ability to maintain his or her personal safety on a daily basis (or have an inability to perform an ADL), they would not qualify for PCAFC. In addition, the definition of in need of personal care services specifies that the eligible veteran requires in-person personal care services, among other requirements. We note that PCAFC is intended to focus on veterans with moderate and severe needs who need the assistance of a Family Caregiver, and is not intended to be a program for individuals who may only need a minimal amount of assistance. Further, this definition is not intended to cover the potentiality that someone may have a need for supervision, protection, or instruction at some point in the future, but rather instead is meant to cover those servicemembers and veterans who have a demonstrated pattern of having a need for supervision, protection, or instruction.

For individuals who do not meet these requirements, including an individual who does not require in-person personal care services but instead requires only minimal assistance through an occasional or even daily phone call, there may be other VA health care programs and services that would help meet their needs and those of their caregivers. VA offers a menu of supports and services that supports caregivers caring for veterans such as homemaker and home health aides, home based primary care, Veteran-Directed care, and adult day care health care to name a few. In addition, VA offers supports and services provided directly to caregivers of eligible veterans through PGCSS including access to CSCs located at every VA medical center, a caregiver website, training and education offered online and in person on topics such as self-care, peer support, and telephone support by licensed social workers through VA's Caregiver Support Line.

We are not making any changes based on this comment.

Several commenters raised concerns about how this definition incorporates mental health conditions, cognitive impairments, and “invisible injuries” (

e.g.,

TBI, PTSD, mental illness), particularly related to veterans with conditions that may not meet the definition of inability to perform an ADL. As we stated in the proposed rule, determining eligibility on the basis of this definition would not focus on the individual's specific diagnosis or conditions, but rather whether the veteran or servicemember has impairment in functioning that directly impacts the individual's ability to maintain his or her personal safety on a daily basis and thus requires supervision, protection, or instruction from another individual. 85 FR 13364 (March 6, 2020). We further provided examples to include an individual with schizophrenia who has active delusional thoughts that lead to unsafe behavior, and an individual with dementia who may be unable to use the appropriate water temperature when taking a bath and may thus require step-by-step instruction or sequencing to maintain his or her personal safety on a daily basis. Individuals with TBI or mental health conditions may also qualify for PCAFC on this basis. For example, a veteran or servicemember with TBI who has cognitive impairment resulting in difficulty initiating and completing complex tasks, such as a grooming routine, may require step-by-step instruction in order to maintain his or her personal safety on a daily basis. Additionally, eligibility on the basis of this definition may result from multiple conditions or diagnoses. Therefore, we believe this definition incorporates mental health conditions, cognitive impairments, and “invisible injuries” (

e.g.,

TBI, PTSD, mental illness). We are not making any changes based on these comments.

One commenter was specifically concerned that an individual with

dementia who is forgetful or misplaces items but can adapt and manage successfully without compromising his or her personal safety on a daily basis may not qualify for PCAFC under this definition. Another commenter inquired into whether an individual who is 100 percent service-connected disabled due to PTSD will qualify under this definition if the individual does not meet the inability to perform an ADL definition. Relatedly, this commenter stated that this definition needs to be better defined for mental health conditions or cognitive impairments when that person does not have a specific ADL deficit. As explained above, eligibility on this basis is focused on whether the veteran or servicemember has an impairment in functioning that directly impacts the individual's ability to maintain his or her personal safety on a daily basis and thus requires supervision, protection, or instruction from another individual, rather than a specific diagnosis or condition. The definition of “need for supervision, protection, or instruction” is consistent with our goal of focusing PCAFC on eligible veterans with moderate and severe needs. Thus, for an individual who is forgetful or misplaces items but does not have a functional impairment that directly impacts his or her ability to maintain personal safety on a daily basis (and who is not determined to be in need of personal care services based on an inability to perform an ADL), there may be other VA programs and resources available to meet the individual's needs. An individual with 100 percent service-connected disability due to PTSD may be eligible under this definition if the individual has a functional impairment that directly impacts his or her ability to maintain his or her personal safety on a daily basis. We are not making any changes based on these comments.

Several commenters requested VA provide clarification about this definition, including a commenter who noted that this definition is vague. One commenter suggested that VA define the terms “on a daily basis, even if just intermittently each day” and “ability to maintain his or her personal safety” to ensure consistent implementation. One commenter asserted that VA proposed no objective criteria for supervision, protection, or instruction, and another commenter suggested that VA failed to provide an objective operational definition of need for supervision, protection, or instruction. One commenter indicated that while the supervision, protection, and instruction standards need to be more inclusive, they set up a point of confusion in what elements are to be considered and not considered. This commenter further asserted that any assessment tool used to determine PCAFC eligibility would have to define the elements considered for supervision, protection, and instruction, and asked why VA did not define those elements in the regulation. Another commenter asserted that although the characterization of being unable to self-sustain in the community is relatively clear, it appears likely that eligibility for the lower tier stipend will be contentious for both VA and veterans' families, and the definition of need for supervision, protection, or instruction should be clarified further if the program is to serve its targeted population. Furthermore, the commenter asserted that VA's explanation that a veteran or servicemember meeting this criterion may only need such personal care services intermittently each day opens the door to a variety of interpretations and increases the potential for complex and time-consuming eligibility decisions. The commenter also questioned if a caregiver reminding one's spouse that he or she has an upcoming appointment constitutes instruction and if it should be considered indicative of a severe impairment in functioning, in the absence of any objective cognitive deficits.

First, we disagree with the commenters who believe that this definition is vague. While we broadened this definition to remove the predetermined list of functional impairments associated with “need for supervision or protection based on symptoms or residuals of neurological or other impairment of injury,” so that “need for supervision, protection, or instruction” can cover more diagnoses and conditions, we believe the revised definition is specific enough to allow us to make objective determinations about whether a veteran or servicemember has a need for supervision, protection, or instruction, consistent with the authorizing statute and intent of PCAFC. When assessing personal care needs, VA will assess and document the support the veteran or servicemember needs to maintain personal safety, if such needs exist, and the frequency with which he or she requires interventions by the caregiver. This will include consideration of, among other factors, the veteran's or servicemember's functional ability as it relates to such things as: Medication management, self-preservation, safety, and self-direction. We recognize this is not a comprehensive list of functions in which a veteran or servicemember may experience impairment. We also note that the reasons a functional impairment will directly impact an individual's ability to maintain his or her personal safety on a daily basis will vary (

e.g.,

due to memory loss, delusion, uncontrolled seizure disorder). How an individual's ability to maintain his or her personal safety is impacted by his or her functional impairments will vary based on those impairments and diagnoses. In the regulation, we would not list the elements to be considered as doing so could potentially be more restrictive than intended. These are clinical decisions that are dependent on each individual's unique situation and it would be impractical for the regulation to list and account for every functional impairment that may directly impact an individual's ability to maintain his or her personal safety on a daily basis. As explained above, we would require that a veteran or servicemember have a functional impairment that directly impacts his or her ability to maintain personal safety on a daily basis, but the type, degree, and frequency of intervention may vary.

We would not define the terms “on a daily basis, even if just intermittently each day” and “ability to maintain his or her personal safety” because this a clinical program, and how these criteria are met will vary based on each veteran's or servicemember's unique situation. The phrase “on a daily basis, even if intermittently each day” in the proposed rule was used to clarify that a veteran or servicemember may require supervision, protection, or instruction when completing certain tasks but may not require a caregiver to be present the remainder of the day. We further refer the commenters to the earlier discussion in this section regarding VA's clinical assessment of whether a veteran or servicemember has a need for supervision, protection, or instruction, and whether such need is continuous for purposes of the definition of “unable to self-sustain in the community.”

We provided many examples in the proposed rule to explain the phrase “ability to maintain his or her personal safety,” and added a further example above regarding an individual with TBI. These examples were provided to illustrate situations in which a veteran or servicemember may require another individual to provide supervision, protection, or instruction to ensure the veteran or servicemember is able to maintain his or her personal safety on a daily basis.

Furthermore, we provided examples of when an individual may not be in

need of supervision, protection, or instruction, to include “an individual with dementia who is forgetful or misplaces items but can adapt and manage successfully without compromising his or her personal safety on a daily basis (

e.g.,

by relying on lists or visual cues for prompting).” 85 FR 13364 (March 6, 2020). We also note that a veteran whose only need from a caregiver is to be reminded of appointments or to take medications, would likely not be determined to be in need of personal care services based on a need for supervision, protection, or instruction, as that alone would not demonstrate that the veteran or servicemember requires in-person personal care services from another person, and without such personal care services, alternative in-person caregiving arrangements would be required, based on a functional impairment that directly impacts the individual's ability to maintain his or her personal safety on a daily basis.

We make no changes based on these comments.

One commenter took issue with VA combining 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) under one term and asserted that retaining the previous basis of “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” and its associated definition and adding a new definition for “need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired” would better align with Congressional intent. Relatedly, one commenter stated that VA did not provide data, or sufficient information and analysis to justify combining clauses (ii) and (iii) of 38 U.S.C. 1720G(a)(2)(C). This commenter asserted that this definition is incongruent with the plain reading of the law and Congressional intent, which the commenter stated requires VA utilize at least three separate eligibility criteria to serve as the bases upon which a veteran or servicemember can be deemed in need of personal care services.

As indicated in the proposed rule, we believe that the current definition for “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” unduly restricts VA's ability to consider all functional impairments that may impact a veteran's or servicemember's ability to maintain his or her personal safety on a daily basis. Additionally, it is VA's intent to broaden the current criteria by removing the predetermined list of impairments, such that veterans and servicemembers with impairments not listed in the current definition who may otherwise meet the definition of need for supervision, protection, or instruction may be eligible for PCAFC. This change will allow us to consider additional impairments that are not listed in the current definition. Additionally, as we explained in the discussion on the definition of inability to perform an ADL, it may be the assistance needed for an ADL that results in a need for supervision, protection, or instruction.

We disagree with the commenters that combining clauses (ii) and (iii) of 38 U.S.C. 1720G(a)(2)(C) is not consistent with the statute and Congressional intent. As we explained in the proposed rule, we combined these two bases for PCAFC eligibility because we believe these two bases capture the personal care service needs of veterans and servicemembers with a significant cognitive, neurological, or mental health impairment, as opposed to an inability to perform an ADL, which covers physical impairments. 85 FR 13363 (March 6, 2020). We sought input from the public on how to differentiate and define these two bases in a

Federal Register

Notice that was published on November 27, 2018. See 83 FR 60966 (November 27, 2018). We also held meetings with various stakeholders from February through May of 2019. We appreciate the feedback we received from these efforts. However, we did not receive any meaningful recommendations in addition to what we had identified and considered internally for defining these bases. We were unable to distinguish them in a meaningful way and determined that the most logical approach was to broaden the current definition of “need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” under a new term that would also capture veterans and servicemembers who have “a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired.” We further note that in response to this proposed rule, while some commenters objected to combining these two bases, no specific recommendations or suggestions on how to define and distinguish these two bases were submitted. We make no changes based on these comments.

Primary Care Team

In the proposed rule, we proposed to revise the definition of “primary care team” to mean one or more VA medical professionals who care for a patient based on the clinical needs of the patient. We also proposed to remove the reference to the primary care team in various sections, including current §§ 71.20(c) and (d), 71.20(g), 71.25(c)(1)-(2), 71.25(f), and 71.40(b)(2). Instead, we would reference primary care team in one section, § 71.25(a)(2)(i), to state that PCAFC eligibility evaluations being performed in collaboration with the primary care team to the maximum extent practicable.

We received comments on the definition of primary care team, the role of the primary care team in PCAFC processes, and the centralized eligibility and appeals teams, which are addressed below.

Primary Care Team Definition

We received multiple comments stating that the proposed definition of “primary care team” is too broad and requested that the definition remain the same or be more specific with regard to which type of VA medical professional would serve on the primary care team for a veteran or servicemember. Specifically, the commenters raised concerns that the proposed definition would not require the primary care team to include a physician, nurse practitioner, or physician assistant to oversee the care of the veteran or servicemember but rather would allow any medical professional who is licensed or certified to provide health care services such as nurses, hospice workers, emergency medical technicians, optometrists, social workers, clinical dietitians, occupational or physical therapists, and other trained caregivers. Commenters asserted that the lack of specificity would result in no requirement for any type of medical evaluation encounter to determine if personal care services are medically necessary during the evaluation of the joint application, and referred to evaluation and management guidelines that require services to be rendered by a physician or other qualified health care professional who may report evaluation and management services. We address these comments below.

We appreciate the comments and agree that the proposed definition was not specific enough. As indicated in the proposed rule, our intent was to expand the definition to account for veterans and servicemembers who “receive their primary care in the community and may only utilize VA for a portion of their care, such as mental health or specialty services.” 85 FR 13365 (March 6, 2020). However, it was not our intent to imply that the primary care team may be

comprised of any medical professional (

e.g.,

nurses, hospice workers, emergency medical technicians) in the absence of a physician, advanced practice nurse, or a physician assistant. Additionally, after reviewing the comments, we agree with their concerns that we should maintain the reference to a primary care provider. Therefore, we are revising the definition of primary care team to mean “one or more medical professionals who care for a patient based on the clinical needs of the patient. Primary care teams must include a VA primary care provider who is a physician, advanced practice nurse, or a physician assistant.” We make no further changes based on these comments.

Multiple commenters asserted that the removal of the phrase “provider who coordinates the care” is contradictory and is not aligned with existing VA national policy. One commenter asserted that “responsibility for coordination of care must reside with a primary care provider or team of providers,” and suggested that one mechanism to facilitate this coordination is through the establishment of an information system that can be accessed by providers in the same or different locations that provides a record on each enrollee to include his or her socio-demographic characteristics, a minimum data set on all clinical encounters and an identifier that permits linkage of the individual's encounter data over time. Commenters further expounded that primary care is the day-to-day health care given by a health care provider and that the provider typically acts as the first contact and principal point of continuing care for patients within a health care system and coordinates other specialty care.

As we explained in the proposed rule, we would remove this phrase, “provider who coordinates the care,” because it can lead to misinterpretation, and it does not specify whether the care coordinated is specific care to PCAFC or all of the eligible veteran's care coordination needs. 85 FR 13365 (March 6, 2020). Additionally, because of the role that the primary care team plays in coordinating an eligible veteran's care, we believe continuing to include this language would be unnecessary and redundant. Additionally, as explained above, we are revising the definition to include a requirement that a VA primary care provider who is a physician, advanced practice nurse or physician assistant must be on the team; thus the commenters' concerns regarding the removal of the phrase “provider who coordinates the care” because a primary care provider is responsible for care coordination is moot. Furthermore, VA has an electronic medical record system that allows VA providers from multiple locations to access a patient's medical record. To the extent the commenter is suggesting we build a medical record system specific for PCAFC, we believe this is beyond the scope of this rulemaking. We are not making any changes based on these comments.

Multiple commenters asserted that the proposed definition does not align with industry standards such as the American Medical Associations (AMA) Code of Medical Ethics and the American Academy of Family Physicians, particularly as it does not clearly define the prescribing authority for a VA medical professional. We appreciate the commenters concerns; however, the definition of primary care team is only used for purposes of part 71, and not for the general provision of health care at VA. Additionally, there are multiple definitions for primary care teams in health care. Therefore, we do not believe VA has a requirement to align the definition of primary care team with industry or other federal or non-federal programs. We make no changes based on these comments.

Several commenters expressed concern that the proposed definition is inconsistent with VA's provision of care in the community. One commenter asserted that the definition does not align with VA's statutory requirements to accommodate veterans and servicemembers who may receive care in the community. One commenter asserted that VA has not consulted with non-VA treating physicians when making eligibility determinations and that given pending legislation that is likely to expand fee-for-service programs and third-party providers, it is imperative that VA primary care teams consult these doctors and utilize their assessments. The same commenter noted that they do not believe non-VA providers should determine eligibility; but rather PCAFC must consult with clinicians who are actually treating the veteran or servicemember.

First, we note that, as explained above, we are revising the definition to require that a VA primary care provider must be on the team; however, we removed “VA” from the phrase “one or more medical professionals” which we believe allows other medical professionals (including non-VA medical professionals) who care for the patient based on the clinical needs of the patient, to be part of the team. We believe this definition is inclusive of veterans or servicemembers who receive care in the community, and thus is consistent with our statutory authority.

We further note that neither the veteran's VA primary care provider nor his or her non-VA provider would determine PCAFC eligibility; CEATs will determine eligibility for PCAFC, including whether the veteran is determined to be unable to self-sustain in the community. Clinical staff at local VA medical centers will conduct evaluations of PCAFC applicants with input provided by the primary care team to the maximum extent practicable. This information will be provided to the CEATs for use in making eligibility determinations, including whether the veteran is determined to be unable to self-sustain in the community for purposes of PCAFC. The CEAT will be composed of a standardized group of inter-professional, licensed practitioners, with specific expertise and training in the determinations of eligibility and the criteria for the higher-level stipend. We believe the use of CEATs will improve standardization in eligibility determinations across VA. While primary care teams will not collaborate directly with the CEAT on determining eligibility, documentation of their input in the local staff evaluation of PCAFC applicants will be available in the medical record for review. This documentation will be used by the CEAT to help inform eligibility determinations for PCAFC, including whether the veteran is determined to be unable to self-sustain in the community for the purposes of PCAFC. Any documentation from a non-VA provider that the veteran or servicemember provides will be available to VA for purposes of PCAFC evaluation and eligibility determinations. We are not making any changes based on these comments.

Role of Primary Care Team in PCAFC Processes

Many commenters raised concerns that these changes relating to the primary care team will reduce or eliminate the important role of a veteran's team of medical professionals in PCAFC processes, and instead rely on a single medical provider who may not have full knowledge of a veteran's medical needs, medical history, or involvement in a veteran's treatment, especially as this can lead to inconsistencies in PCAFC determinations. Some commenters allege this would be inconsistent with and exceed VA's authority under 38 U.S.C. 1720G. Commenters were also concerned that a veteran's medical evaluation will be performed by a professional who is ill-equipped to

correctly assess the veteran, especially when determining when a veteran has an inability to perform ADLs.

Some commenters raised concerns about the removal of primary care team specifically from various paragraphs in §§ 71.20 and 71.25. These concerns included a fear that it will give VA too much flexibility in determining who will conduct eligibility assessments, it will provide too much deference to non-medical personnel who do not have the qualifications of the medical practitioners on the primary care team, will result in medical professionals making eligibility determinations outside the scope of their practice, will provide the CSCs and uninvolved parties who do not treat the veteran or servicemember with too much discretion, and will create inconsistencies. Additionally, one commenter asserted that VA did not provide justification for why it would be more appropriate to remove the primary care team from the eligibility assessment process. Relatedly, several commenters disagreed with VA's claim that current references to the primary care team are unclear. However, one of those commenters agreed that authorizations by the primary care team have not been applied consistently between facilities.

We address these comments below.

As we explained directly above and based on the comments received, we are revising the primary care team definition to mean “one or more medical professionals who care for a patient based on the clinical needs of the patient. Primary care teams must include a VA primary care provider who is a physician, advanced practice nurse, or a physician assistant.” As Congress did not provide a definition for primary care team in 38 U.S.C. 1720G, we define the term as previously described, which we believe is rational and reasonable for purposes of PCAFC. This definition, as revised in this final rule, will ensure that those medical professionals, including a VA primary care provider, who care for the veteran and have knowledge of the veteran's needs and treatments, are part of the primary care team and have the opportunity to provide input into determinations of whether the veteran or servicemember is eligible for PCAFC.

As explained previously in this section, clinical staff at local VA medical centers will conduct evaluations of PCAFC applicants with input provided by the primary care team to the maximum extent practicable. The CEAT, composed of a standardized group of inter-professional, licensed practitioners, with specific expertise and training in the eligibility requirements for PCAFC and the criteria for the higher-level stipend, will use those evaluations to inform PCAFC eligibility determinations, including whether the veteran is determined to be unable to self-sustain in the community. While primary care teams will not collaborate directly with the CEAT on determining eligibility, including whether the veteran is determined to be unable to self-sustain in the community, documentation of their input with the local staff evaluation of PCAFC applicants will be available in the medical record for review. This documentation will be used by the CEAT to help inform eligibility determinations for PCAFC, including whether the veteran is determined to be unable to self-sustain in the community. We believe the use of CEATs will improve standardization in eligibility determinations across VA. These teams will have access to the documentation of the evaluations conducted in order to inform eligibility determinations, including whether the veteran is determined to be unable to self-sustain in the community for the purposes of PCAFC. We also note that we will provide robust training and education to those staff conducting evaluations, and CEAT members who are determining eligibility. We further refer the commenters to our discussion on “Staff training on eligibility determinations” in the miscellaneous comments section of this rule.

We disagree with the commenters' assertion that we are eliminating the primary care team from PCAFC processes, which some allege is inconsistent with and exceeds our authority under 38 U.S.C. 1720G. The primary care team has not been entirely removed from eligibility determinations; rather as indicated in the proposed rule, instead of referencing the primary care team in various paragraphs of §§ 71.20 and 71.25, we will reference the primary care team in § 71.25(a)(2)(i) to indicate that PCAFC eligibility evaluations will be performed in collaboration with the primary care team to the maximum extent practicable. 85 FR 13364 (March 6, 2020).

We proposed to reference primary care team in § 71.25(a)(2)(i), to be consistent with 38 U.S.C. 1720G(a)(5), which requires that PCAFC applications be evaluated by VA in collaboration with the primary care team for the eligible veteran to the maximum extent practicable. As we explained in the proposed rule, this would ensure collaboration with the VA medical professionals involved in the patient's care during VA's evaluation of the joint application. Id. However, it may be appropriate to consider care requirements prescribed by providers other than the veteran's or servicemember's primary care team, such as a non-VA provider, or other appropriate individual or individuals in VA. We reiterate here that these changes would give us more flexibility in how we evaluate PCAFC eligibility and approve and designate Family Caregivers while also ensuring that joint applications are evaluated in collaboration with the primary care team of the veteran or servicemember to the maximum extent practicable, consistent with the authorizing statute. We make no changes based on these comments.

Several commenters also expressed general disagreement with the removal of primary care team from § 71.40(b)(2). Specifically, one commenter asserted PCAFC is proposing to fundamentally alter accepted medical standards for provision of primary care services, clinical staff conducting home visits have an ethical and legal responsibility to communicate directly the functional status and well-being of the eligible veteran directly to the eligible veteran's primary care team, and that such staff do not have the same qualifications as medical professionals in order to make medical determinations about the eligible veteran. The same commenter opined that VA must recognize that collaboration among providers which includes clinical staff conducting home visits is a desirable characteristic of primary care.

We disagree with the assertion that the removal of primary care team from § 71.40(b)(2) conflicts with accepted medical standards. As indicated in the proposed rule, it may not always be appropriate for the clinical staff conducting home visits to collaborate directly with the primary care team; however, collaboration will still occur with the primary care team either directly with the provider conducting wellness contacts or through intermediaries such as the CSC. We make no changes based on these comments.

Several commenters were critical of our implied belief that primary care teams are “too close” to veterans and their caregivers to provide unbiased eligibility determinations, while several commenters agreed with the removal of the primary care team from eligibility determinations because the primary care team may not oversee the eligible veteran's care and may not have a relationship with the eligible veteran. One commenter specifically opined that there is a conflict and danger of involving the primary care team in a

decision that has a financial consequence. The same commenter asserted that VA has historically separated VHA from VBA to ensure health care and benefits are not enmeshed with a provider's ability to provide quality care. We agree that requiring a primary care provider to make eligibility determinations that have a financial impact on a veteran or servicemember and his or her Family Caregiver, places them in an undesirable situation, and may have a negative impact on the provider-patient relationship. Thus, we believe that the use of CEATs to make eligibility determinations, as described above, will help preserve the veteran-provider relationship. We make no changes based on this comment.

One commenter generally disagreed with removing the reference to the primary care team maintaining the eligible veteran's treatment plan and opined that it does not align with the American Medical Association Code of Medical Ethics. We note that CSP does not have responsibility for the totality of the veteran's medical treatment plan, as that would still be maintained by the primary care team consistent with what we stated in the proposed rule. See 85 FR 13365 (March 6, 2020). We make no changes based on this comment.

Centralized Eligibility and Appeals Team (CEAT)

Several commenters opposed the use of CEATs and expressed concerns that it will be composed of individuals who are not medically qualified or providers not familiar with the veteran's history. Two commenters asserted that the use of CEATs is similar to a disability benefits review board. One commenter asserted that use of CEATs is contrary to health care standards for delivering medical care and standards for authorizing and certifying that personal care services are medically necessary. This same commenter referenced the requirements for an independent medical examination (IME) and explained that the goal of an IME may be to poke holes in a patient's story for purposes of evaluating a workers' compensation claim or disability benefits.

As previously discussed, the CEATs will be composed of a standardized group of inter-professional, licensed practitioners with specific expertise and training in the eligibility requirements for PCAFC and the criteria for the higher-level stipend. We note that the CEATs will receive training to conduct eligibility determinations, including whether the veteran is determined to be unable to self-sustain in the community for the purposes of PCAFC; and we further refer the commenters to our discussion on staff training on eligibility determinations within the miscellaneous comments section of this rule. We believe the use of CEATs to determine eligibility for PCAFC will improve standardization in these determinations across VA. We make no changes based on these comments.

Serious Injury

VA received many comments on its proposed definition of serious injury, including VA's inclusion of any service-connected disability, regardless of whether it resulted from an injury, illness, or disease, and removal of the requirement that the serious injury renders the eligible veteran in need of personal care services. Most comments on VA's proposed definition, however, concerned VA's proposed requirement that the eligible veteran have a singular or combined service-connected disability rating of 70 percent or more, and suggested other potential measures for establishing a serious injury. These comments have been grouped accordingly and addressed in turn.

Many commenters supported VA's expansion of the term “serious injury” to include any service-connected disabilities, including illnesses and diseases, and we thank them for their comments. One commenter raised concerns that the definition does not address illnesses (

e.g.,

cancers, hypertension, hypothyroidism, parkinsonism, multiple sclerosis, amyotrophic lateral sclerosis (ALS)) that may prevent a veteran from carrying out ADLs or impede on their safety and welfare. This commenter urged VA to revise the definition to include such illnesses. Another commenter requested VA include service-connected diseases. We believe these commenters misunderstood VA's proposed definition, and we are not making any changes based on these comments. As indicated in the proposed rule, this definition will now include any service-connected disability regardless of whether it resulted from an injury or disease. Therefore, a veteran or servicemember with illnesses incurred or aggravated in the line of duty (

e.g.,

cancers, hypertension, hypothyroidism, parkinsonism, multiple sclerosis, ALS) may be eligible for PCAFC if he or she has a single or combined service-connected rating of 70 percent or more and meets the other applicable PCAFC eligibility criteria, including being in need of personal care services for a minimum of six continuous months based on an inability to perform an activity of daily living, or a need for supervision, protection, or instruction.

Several commenters opposed the change to the definition to include illnesses and diseases and asserted that doing so is improper and unfair. Commenters noted that many of these conditions will not be from injuries and may have occurred before service, were not in the line of duty, or may have been due to the veteran's own fault or misconduct. One commenter stated that only those who suffer true injuries should be eligible and that those should only be those injuries that were incurred in the line of duty. VA's proposed rule sets forth VA's rationale for deviating from the plain meaning of “injury” to include illnesses and diseases. Among other reasons set forth in the proposed rule, VA explained that this change is necessary to reduce subjective clinical judgement and improve consistency in PCAFC eligibility determinations and ensure that eligible veterans who served both before and after September 11, 2001 have equitable access to PCAFC. While Congress may have originally intended to focus PCAFC on the signature disabilities of veterans and servicemembers who served after September 11, 2001, the VA MISSION Act of 2018 expanded this program to veterans and servicemembers of earlier eras, and the signature disabilities of earlier conflicts include illnesses and diseases such as diseases presumed to be the result of herbicide exposure in Vietnam and other places, and chronic multi-symptom illness experienced by Persian Gulf veterans. VA believes caregivers of veterans and servicemembers with illnesses and diseases incurred or aggravated in the line of duty should benefit from PCAFC in the same manner as caregivers of veterans with injuries such as TBI or spinal cord injury. Thus, we believe the definition of serious injury for purposes of PCAFC should be as inclusive as possible by recognizing any service-connected disability. Additionally, this change will help to reduce inequities between veterans and servicemembers from different eras. To the extent commenters are concerned that a veteran could meet the serious injury requirement based on a disability not incurred or aggravated in line of duty or that resulted from the veteran's willful misconduct, we note that VA's definition of serious injury requires the veteran have a service-connected disability rated by VA. See 38 CFR 3.1(k) (defining “[s]ervice-connected”) and 3.301 (addressing line of duty and misconduct). To the extent commenters opposed including service-connected

disabilities in the serious injury definition, we note that having an injury or disease incurred or aggravated in the line of duty in the active military, naval, or air service means the injury or disease is service-connected. See 38 U.S.C. 101(16) and 38 CFR 3.2(k). For purposes of PCAFC, service-connected disability ratings are the primary method we use to determine whether an injury was incurred or aggravated in the line of duty. We are not making any changes based on these comments.

Several commenters supported the removal of the language that required a connection between the need for personal care services and the serious injury and we thank them for their comments. One commenter disagreed with removing the language that “couples” the serious injury with the need for personal care services, as the “particular injury should be the exact reason the [v]eteran requires a caregiver.” This commenter expressed concern that this change will result in overburdening the program with false or undeserving cases and would be contrary to Congressional intent. Similarly, another commenter expressed concern that decoupling would greatly increase the number of veterans that will be eligible for this program.

As indicated in the proposed rule, many veterans have complex needs as a result of multiple medical conditions, and we find this even more true among older veterans. The complexity of assessing each specific medical condition and whether it renders the veteran or servicemember in need of personal care services has resulted in inconsistency in how “serious injury” is interpreted. We believe this inconsistency would be exacerbated as PCAFC expands to the pre-9/11 population. For example:

[A]n individual may have leg pain due to a service-connected spinal cord injury but be able to manage his or her symptoms. After a number of years, the individual is diagnosed with diabetes unrelated to his or her military service. Over time, the individual develops neuropathy in his or her lower extremities, which results in the individual being unable to complete his or her ADLs independently. The onset of neuropathy could be related to either the spinal cord injury or diabetes. This example illustrates the difficulty of these clinical decisions because the determination of whether the onset of neuropathy is related to the qualifying serious injury or the illness unrelated to military service would be a subjective clinical determination. 85 FR 13369 (March 6, 2020). Therefore, we believe it is necessary to decouple serious injury from the need for personal care services. We also recognize that this “decoupling” will expand PCAFC eligibility, thus increasing participation in PCAFC.

Furthermore, we disagree with the commenter's assertion that this decoupling would be contrary to Congressional intent as the “serious injury” criterion and “need for personal care services” requirement are separate under 38 U.S.C. 1720G(a)(2)(B) and (C), as VA articulated in its 2011 Interim Final Rule. 76 FR 26150 (May 5, 2011) (“the statute does not clearly state that the need for personal care services must relate to the ‘serious injury' required under section 1720G(a)(2)(B)”). Rather serious injury was coupled with the need for personal services through VA's regulations based on VA's interpretation of the overall purpose and language of the statute as it was originally enacted. Id. However, as explained above, we no longer believe the coupling of serious injury and the need for personal care services is reasonable. This is especially true as we expand to older veterans from earlier service eras whose clinical needs are even more complex. Moreover, expanding this definition will not exclude veterans and servicemembers whose needs for personal care services stem from an injury incurred or aggravated in the line of duty in the active military, naval, or air service. We are not making any changes based on these comments.

VA received numerous comments about its proposed reliance on a single or combined service-connected disability rating of 70 percent or more in establishing whether an eligible veteran has a serious injury. In the discussion that follows, we have grouped comments that opposed VA's use of a service-connection rating in general or expressed concern about the different purposes of PCAFC and VA disability compensation, and those that opposed the use of the 70 percent threshold specifically or suggested other alternatives.

Several commenters opposed use of a service-connected rating to determine PCAFC eligibility by asserting that doing so is contrary to Congressional intent, particularly as the statutory authority does not require a minimum rating, or contending that a service-connected rating is not an appropriate consideration for determining whether a veteran or servicemember requires personal care services from a Family Caregiver. One commenter requested VA eliminate this requirement because the statute does not provide VA with authority to curtail specified eligibility. Two commenters asserted that eligibility was intended to be based on a clinical determination of a veteran's need, which is not a rating decision adjudicated by a non-health care professional at the Veterans Benefits Administration, and this should not be left to an administrative process entirely separate from VHA. Relatedly, another commenter stated that VA should not suggest to the public that the 70 percent rating is an objective “clinical standard” associated with an applicant's potential need for personal care services. Another commenter was similarly concerned about use of a disability rating since disability compensation is intended to compensate for loss of ability of veteran to earn income by working which is different than the intent of PCAFC. Relatedly one commenter noted that service connection and injury are two separate things and urged VA to keep the definition as it currently is. Another commenter noted that the veteran should be looked at “on the whole” by a clinician.

VA acknowledges that 38 U.S.C. 1720G does not set forth a specific service-connected disability rating as a minimum requirement to establish PCAFC eligibility, and that imposing one through this rulemaking is a departure from the position taken by VA in its January 9, 2015 Final Rule. However, VA's proposed definition is a reasonable interpretation of the statutory requirement that an eligible veteran has an injury that is serious, particularly in the context of other changes VA is making to the definition of serious injury.

Heretofore, the only meaning applied to establish whether an injury was serious was that the injury render the eligible veteran in need of personal care services. VA's proposed rule explained why it is necessary to “decouple” these requirements as PCAFC expands to veterans of earlier eras (as discussed above), but doing so removed the only guidance informing the meaning of whether the eligible veteran's injury was serious. Therefore, VA must replace the definition with some standard that distinguishes a “serious injury” from an “injury” to give effect to the statutory requirement.

Williams

v.

Taylor,

529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

In considering how to define “serious injury” for purposes of PCAFC, VA sought to impose a definition that would be easily understood by veterans and caregivers and consistently applied by VA. A specific service-connected disability rating threshold serves those purposes. As noted by one commenter in support of VA's proposed definition, “disability ratings are a more common

standard used for eligibility across other VA programs.” Establishing an objective baseline for PCAFC eligibility will increase transparency and assist the program in adjudicating applications efficiently.

VA agrees that the purpose of disability compensation is quite different than the purpose of providing benefits to Family Caregivers under PCAFC, and it was not VA's intent to suggest that a single or combined 70 percent service-connected disability rating establishes or suggests a need for personal care services from a Family Caregiver. On the contrary, many veterans with disability ratings of 70 percent or higher are fully independent and able to function in the absence of support from a caregiver. Instead, a single or combined service-connected disability rating of 70 percent or more serves as an objective standard to determine whether an eligible veteran has a “serious injury . . . incurred or aggravated in the line of duty in the active, military, naval, or air service” and thereby demonstrates that a veteran's or servicemember's disability or disabilities rise to the level of serious. Other criteria in part 71 will establish a veteran's or servicemember's need for personal care services (

i.e.,

whether the veteran or servicemember is “in need of personal care services . . . based on [a]n inability to perform an activity of daily living; or . . . [a] need for supervision, protection, or instruction”). We note that approximately 98 percent of the current PCAFC population across all three tiers have a 70 percent or higher service-connected disability rating, and would meet this definition of serious injury. VA agrees that applicants should be looked at holistically by clinicians considering PCAFC eligibility, and will work to ensure that practitioners determining PCAFC eligibility are trained to understand that “serious in

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