# Amendments to the Program of Comprehensive Assistance for Family Caregivers

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-28079

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** December 6, 2024
- **Citation:** 89 FR 97404

## Text

DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 71
RIN 2900-AR96
Amendments to the Program of Comprehensive Assistance for Family Caregivers

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) proposes to revise the regulations that govern VA's Program of Comprehensive Assistance for Family Caregivers (PCAFC). This proposed rule explains numerous changes VA is considering making that would primarily impact PCAFC, including, but not limited to, removing, adding, and revising definitions; revising criteria related to eligibility, revocations, and discharges; revising certain processes related to reassessments and the timing of reassessments; and relaxing in-home visits during emergencies.

DATES:

Comments must be received on or before February 4, 2025.

ADDRESSES:

Comments must be submitted through
www.regulations.gov.
Except as provided below, comments received before the close of the comment period will be available at
www.regulations.gov
for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on the following website as soon as possible after they have been received:
http://www.regulations.gov.
VA will not post on
Regulations.gov
public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm an individual. VA encourages individuals not to submit duplicative comments; however, we will post comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period's closing date is considered late and will not be considered in the final rulemaking. In accordance with the Providing Accountability Through Transparency Act of 2023, a 100 word Plain-Language Summary of this proposed rule is available at
Regulations.gov
, under RIN 2900-AR96.

FOR FURTHER INFORMATION CONTACT:

Colleen Richardson, PsyD, Executive Director, Caregiver Support Program, Patient Care Services, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Ave. NW, Washington, DC 20420, (202) 461-5649. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

I. Background and Public Input

A. Statutory Authority

Title I of Public Law 111-163, the Caregivers and Veterans Omnibus Health Services Act of 2010 (hereinafter referred to as the “Caregivers Act”), established section 1720G(a) of title 38 of the United States Code (U.S.C.), which required VA to establish a program of comprehensive assistance for family caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty on or after September 11, 2001, are in need of personal care services, and meet other requirements. The Caregivers Act also required VA to establish a program of general caregiver support services, pursuant to 38 U.S.C. 1720G(b), for caregivers of covered veterans of all eras of military service. VA implemented PCAFC and the Program of General Caregiver Support Services (PGCSS) through its regulations in 38 CFR part 71.

On June 6, 2018, the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 (hereinafter referred to as the “VA MISSION Act”) was signed into law, which in part amended 38 U.S.C. 1720G. These amendments included expanding eligibility for PCAFC in a phased approach to Family Caregivers (as that term is defined in 38 CFR 71.15) of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, establishing new benefits for designated Primary Family Caregivers (as that term is defined in § 71.15) of eligible veterans, and making other changes affecting program eligibility and VA's evaluation of PCAFC applications.

B. Recent Program Improvements

VA adopted revisions to 38 CFR part 71 in a final rule dated July 31, 2020, following the enactment of the VA MISSION Act. 85 FR 46226 (July 31, 2020) (hereinafter the July 31, 2020 Final Rule). The July 31, 2020 Final Rule included changes to certain PCAFC eligibility criteria and took effect October 1, 2020.

In parallel to those regulatory changes, VA implemented new processes used within PCAFC. For example, in late 2020, VA implemented the use of Centralized Eligibility and Appeals Teams (CEATs). CEATs are composed of a standardized group of inter-professional, licensed practitioners, with specific expertise and training in the eligibility requirements for PCAFC and the criteria for the higher stipend level. CEATs make determinations of PCAFC eligibility and, if applicable, determinations on whether the Primary Family Caregiver is eligible for the higher stipend level. Since implementing CEATs, the time required to evaluate PCAFC eligibility and render application determinations has been markedly reduced. At the end of fiscal year 2021, 62.9 percent of PCAFC application determinations were rendered within 90 days of VA receiving the application. By the end of fiscal year 2023, this percentage increased and 98 percent of PCAFC application determinations were rendered within 90 days of VA receiving the application.

Additionally, VA continues concerted efforts to enhance training of staff involved in the evaluation of PCAFC eligibility criteria and delivery of PCAFC. Further, VA continues to institute standardized quality assurance measures to monitor and support accuracy and consistency in decision-making. If VA issues a PCAFC determination that an individual disagrees with, processes are in place for individuals to request a review of or appeal such decision(s). Those processes are not addressed in this proposed rule. Information about options to request review of or appeal a PCAFC decision is available at
https://www.caregiver.va.gov/support/PCAFC_Appeals.asp.

Since these regulatory and policy changes have taken effect, access to PCAFC has expanded and the number of eligible veterans and Family Caregivers participating in PCAFC has continued to grow. VA has, however, continued to hear concerns from veterans, caregivers, and other stakeholders about inconsistency in VA's decisions impacting eligibility for PCAFC, and concerns that certain PCAFC eligibility criteria may be too restrictive.

In response to those concerns, in March 2022, VA initiated a review of PCAFC to examine areas within PCAFC for which changes might be considered. This review included engagements with veterans, caregivers, Veterans Service Organizations (VSOs) and others to hear direct feedback about PCAFC.
1

During

this review, VA identified further opportunities for improvement.

1

See
Updates on the Family Caregiver program for legacy participants and applicants, VA press release, April 20, 2022, available at

https://news.va.gov/102672/updates-on-the-family-

caregiver-program-for-legacy-participants-and-applicants/

(last visited Aug. 8, 2024).

C. Consideration of Regulatory Amendments and Executive Order 14095, Increasing Access to High-Quality Care and Supporting Caregivers

Based on the activities outlined above, VA is proposing regulatory changes to more fully address concerns raised by stakeholders relating to PCAFC eligibility criteria and other program requirements. Furthermore, in April 2023, the President issued Executive Order 14095 which, among other things, directed the Secretary of Veterans Affairs to consider issuing a notice of proposed rulemaking to appropriately modify the eligibility criteria for PCAFC. In accordance with this Executive Order and based on feedback from caregivers, veterans, and other stakeholders and VA's internal evaluation of the program, VA has considered appropriate modifications to PCAFC eligibility criteria as well as other program changes, which are reflected in this proposed rule. VA believes the regulatory amendments proposed below, along with changes VA has already made to improve its support of eligible veterans and Family Caregivers, demonstrates VA's unwavering commitment to administering a program that is fair, consistent, and transparent in its decisions.

D. Public Input

VA routinely receives information and feedback about PCAFC from stakeholders. For example, on December 5, 2023, VA conducted a virtual roundtable session with various VSOs and other caregiver advocacy organizations. The session provided these stakeholders an opportunity to share their views on topics related to PCAFC. There were 24 representatives from 15 organizations that attended the virtual roundtable session with 13 individuals providing feedback during the session. Representatives provided information and recommendations on how best to improve PCAFC eligibility criteria, evaluation processes, and other aspects of PCAFC that are governed by regulation. Proposed modifications to part 71, as discussed in this proposed rule, address some of the feedback received prior to and during the December 5, 2023, session. A written transcript of the December 5, 2023, virtual roundtable session, including a list of participating organizations, is publicly available online at
www.regulations.gov
under RIN 2900-AR96. While VA did not solicit written statements as part of this event, those received by VA can also be found online at
www.regulations.gov
under RIN 2900-AR96.

VA welcomes comments from the public on all aspects of its proposed modifications to VA regulations in part 71. VA also seeks specific feedback within certain sections of this proposed rule through targeted questions located at the end of the applicable sections.

II. Proposed Changes to 38 CFR Part 71

As explained in more detail below, VA proposes to revise part 71 by adding, removing, and revising definitions and eligibility criteria; revising the regulations governing reassessments; revising and clarifying certain provisions regarding the application process and the evaluation process for determining eligibility; revising provisions regarding adjustments to the stipend payments; revising and clarifying certain processes regarding revocation and discharge; extending the transition period for legacy participants, legacy applicants, and their Family Caregivers; and making other changes. VA proposes these changes to simplify and clarify certain aspects of VA's administration of PCAFC and to support program integrity. Illustrative examples are included throughout this proposal to assist the reader with understanding VA's intended application of the proposed rule.

A. Transition Period for Legacy Cohort

VA is proposing changes to PCAFC eligibility and stipend level criteria as part of this rulemaking. Under this proposal, VA would extend the transition period for legacy participants and legacy applicants, and their Family Caregivers, as those terms are defined in § 71.15, to allow time for VA to evaluate their PCAFC eligibility and stipend level pursuant to revised regulations that may result from this rulemaking. Specifically, VA proposes to extend their eligibility and the time period for VA to complete their reassessments, through a date that is 18 months after changes from this rulemaking are made final and effective.

As part of the rulemaking that took effect October 1, 2020, VA made changes to the eligibility criteria for PCAFC in § 71.20 and in doing so, set forth a transition plan for legacy participants and legacy applicants, and their Family Caregivers, collectively referred to herein as the legacy cohort. 85 FR 46253 (July 31, 2020). As part of the transition plan, VA established a one-year transition period wherein the legacy cohort would generally continue to remain eligible for PCAFC while VA completed reassessments to determine their eligibility for PCAFC under the new eligibility criteria.
Id.
Subsequently, through publication of two interim final rules, VA extended the one-year transition period and timeline for VA to conduct all reassessments of the legacy cohort. The first interim final rule, Extension of Program of Comprehensive Assistance for Family Caregivers Eligibility for Legacy Participants and Legacy Applicants, referred to herein as the First PCAFC Extension for Legacy Cohort, was published and effective on September 22, 2021. 86 FR 52614 (September 22, 2021). The First PCAFC Extension for Legacy Cohort extended the transition period by one year.
Id.
VA then published a second interim final rule, Extension of Program of Comprehensive Assistance for Family Caregivers Eligibility for Legacy Participants and Legacy Applicants, referred to herein as the Second PCAFC Extension for Legacy Cohort, which became effective on September 21, 2022, and extended the transition period for the legacy cohort and timeline for completing their reassessments by three additional years—to September 30, 2025. 87 FR 57602 (September 21, 2022).

1. Proposal To Extend Transition Period for Legacy Cohort

VA proposes to further extend the legacy cohort transition period through a date that is 18 months after the date this rulemaking, which proposes changes to PCAFC eligibility and stipend level criteria, becomes final and effective to allow members of the legacy cohort to be reassessed by VA pursuant to such criteria. Without this extension, members of the legacy cohort would be subject to inequitable treatment or unnecessary burden, depending on whether changes to PCAFC eligibility and stipend level criteria resulting from this rulemaking go into effect before or after September 30, 2025.

If changes to the PCAFC eligibility and stipend level criteria are made final and effective under this rulemaking before September 30, 2025, VA would not have sufficient time to complete reassessments of all members of the legacy cohort under the revised criteria before such date. In this scenario, for reassessments not completed under the revised criteria before September 30, 2025, VA would have to carry out discharges and stipend reductions based on reassessments completed under outdated criteria; or alternatively, VA would have to set those determinations aside and complete new reassessments

under the new criteria, which, after September 30, 2025, would result in inequities among members of the legacy cohort. This is because members of the legacy cohort who are reassessed under the new criteria and found to be no longer eligible for PCAFC, or eligible but with a reduced stipend amount, would be impacted at different times based only on when they are reassessed. Neither option would be fair and equitable to all members of the legacy cohort.

If changes to the PCAFC eligibility and stipend level criteria are made final and effective under this rulemaking after September 30, 2025, after that date, VA would have to begin carrying out discharges and stipend reductions for members of the legacy cohort pursuant to criteria VA is proposing to change. Once the revised criteria are made final and effective, such individuals would be required to reapply to be considered under the new criteria. This could be perceived as unnecessarily burdensome, and for those who reapply and are found eligible, this gap would create disruption to the supports and services they receive through PCAFC. Extending the transition period as proposed in this rulemaking would avoid these challenges.

VA proposes a period of 18 months after the effective date of this rulemaking to allow sufficient time to complete reassessments for the legacy cohort under the new PCAFC eligibility and stipend level criteria. Prior to initiating reassessments of PCAFC eligibility, VA would need to inform PCAFC participants, including the legacy cohort, about the changes to PCAFC eligibility and stipend level criteria that become effective under this rulemaking. VA believes 18 months will allow adequate time to provide such notification and would ensure VA can complete these legacy reassessments while also processing a potential influx of new applications that VA may receive following finalization of this rulemaking. There are over 14,500 legacy applicants and legacy participants who have not been determined eligible for PCAFC under the criteria that went into effect on October 1, 2020, or who have been determined eligible under such criteria but at a lower stipend amount, and who could most benefit from a reassessment under revised criteria.

For these reasons, VA proposes to amend part 71 to extend the transition period for the legacy cohort and timeline for VA to complete reassessments of the legacy cohort to a date that is 18 months after the effective date of a final rule under this rulemaking.

2. Proposed Changes to 38 CFR 71.15, 71.20, 71.30, and 71.40

To effectuate an additional extension to the legacy cohort transition period and timeline for reassessments, VA proposes several amendments to §§ 71.15, 71.20, 71.30, and 71.40. Among other changes, proposed amendments would remove references in current regulatory text to the five-year period beginning on October 1, 2020, and ending on September 30, 2025. VA would instead include language that reflects a period that begins on October 1, 2020, and ends on the date that is 18 months after the effective date of a final rule adopting changes to eligibility and stipend level criteria for PCAFC. These specific proposed changes to the regulations are discussed in greater detail later in this rulemaking.

VA solicits comments from the public on this proposal. In particular, VA requests comments on the following.

1. Should VA consider a different legacy cohort extension period other than the proposed 18-month period after the effective date of this rulemaking which would adopt changes to eligibility and stipend level criteria for PCAFC? If yes, what time period should VA consider and why?

2. What alternative approach(es) should VA consider to reassess the legacy cohort and ensure only those individuals who meet eligibility criteria are participating in PCAFC?

B. 38 CFR 71.10 Purpose and Scope

Current § 71.10 sets forth the purpose and scope of part 71. Paragraph (b) of § 71.10 explains, among other things, that PCAFC and Program of General Caregiver Support Services (PGCSS) benefits are provided only to those individuals residing in a State as that term is defined in 38 U.S.C. 101(20). VA proposes to remove the language “as that term is defined in 38 U.S.C. 101(20)” from 38 CFR 71.10(b) because VA proposes to add a definition for the term
State
in 38 CFR 71.15, as explained in the discussion on proposed changes to § 71.15.

This proposed revision is intended to provide clarity and reduce the burden on the reader by including all definitions in the definitions section under § 71.15.

VA proposes no other changes to § 71.10.

C. 38 CFR 71.15 Definitions

Section 71.15 contains definitions for terms used throughout part 71. VA proposes to amend § 71.15 by adding definitions for the terms
activity of daily living or activities of daily living (ADL), State,
and
typically requires;
removing the terms
inability to perform an activity of daily living (ADL), need for supervision, protection, or instruction,
and
unable to self-sustain in the community
and their definitions; and revising the definitions of
institutionalization, joint application,

legacy applicant, legacy participant,
and
serious injury.
These proposed changes are explained in more detail below in alphabetical order of the terms being added, removed, or revised.

1. Activity of Daily Living or Activities of Daily Living (ADL)

In § 71.15, VA proposes to add a definition for the term
activity of daily living or activities of daily living (ADL).
In the current definition of
inability to perform an ADL,
VA includes the following ADL as applying to this term: (1) dressing or undressing oneself; (2) bathing; (3) grooming oneself in order to keep oneself clean and presentable; (4) adjusting any special prosthetic or orthopedic appliance, that by reason of the particular disability, cannot be done without assistance (this does not include the adjustment of appliances that nondisabled persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (5) toileting or attending to toileting; (6) feeding oneself due to loss of coordination of upper extremities, extreme weakness, inability to swallow, or the need for a non-oral means of nutrition; and (7) mobility (walking, going up stairs, transferring from bed to chair, etc.). Since, as discussed further below, VA proposes to remove the current definition of
inability to perform an ADL
which contains this list of ADL, VA proposes to add a standalone definition of ADL to § 71.15 that would maintain this list of ADL with minor changes. This separate definition is not intended to be a new definition that changes VA's current implementation and use of the term ADL. This proposal does not seek to narrow or expand VA's current interpretation of the term ADL but is intended to improve clarity for purposes of applying and implementing the term ADL as it is used throughout part 71 and in 38 U.S.C. 1720G.

VA proposes to maintain the existing ADL included in the current definition of
inability to perform an ADL
as these are widely recognized in the health care context (for example, they are found in the Katz Basic ADL Scale (
see
76 FR 26148 (May 5, 2011)) and have been the ADL used for the purposes of PCAFC since the inception of the program. While VA proposes to maintain the list

of ADL from the definition of
inability to perform an ADL,
this new proposed definition for ADL revises the language used to describe several of the ADL as is discussed below. VA's proposed changes would not materially change the activities included in the definition of an ADL or how VA evaluates them.

In the ADL of
dressing and undressing oneself,
VA proposes to remove the word “oneself”. Similarly, VA proposes to remove the phrase “oneself in order to keep oneself clean and presentable” from the description of the ADL of
grooming.
VA also proposes to remove the parenthetical following the ADL of
mobility
that includes examples (that is, walking, going up stairs, transferring from bed to chair, etc.). These words and phrases are not needed when listing the ADL and are commonly understood to be included in the definitions of the identified ADLs.

In developing the definition of
inability to perform an ADL,
VA included additional clarifying language in the descriptions of
adjusting any special prosthetic or orthopedic appliance
and
feeding oneself,
to further explain the cause for why an individual would be unable to perform these two ADLs. In establishing a standalone definition of ADL, these additional clarifications are not needed and if they were to remain may lead to misinterpretation of VA's use of the term ADL as it is referenced throughout 38 CFR part 71. For the ADL of
adjusting any special prosthetic or orthopedic appliance,
VA proposes to remove the phrase
“
that by reason of the particular disability, cannot be done without assistance”. For the ADL of
feeding oneself,
VA proposes to remove the language “due to loss of coordination of upper extremities, extreme weakness, inability to swallow, or the need for a non-oral means of nutrition”. In addition, to further simplify and clarify this ADL, VA proposes to use the more commonly used term “eating” in place of
feeding oneself.

Before proposing to define ADL in this proposed rule, VA conducted a search of title 38 of the CFR to identify other regulatory definitions of ADL used by VA. VA identified several definitions of ADL in title 38 of the CFR, including in §§ 3.278, 17.62, 17.3210, and 51.2, that include descriptive language in addition to identifying specific ADL. While there are similarities among these definitions, the definition of ADL used in § 51.2 uses terminology VA believes best describes the meaning of ADL for purposes of part 71. Section 51.2 defines ADLs to mean “the functions or tasks for self-care usually performed in the normal course of a day,
i.e.,
mobility, bathing, dressing, grooming, toileting, transferring, and eating.” Among other things, this definition is used for purposes of determining eligibility of a veteran for payment of per diem to a State for adult day health care.
See
38 CFR 51.52(d)(1) and (3).

Under this proposal, the new definition of ADL would refer to the same ADLs as those currently identified in the definition of
inability to perform an ADL
in § 71.15. VA proposes to add language that is included in the description of ADL in § 51.2 by specifying in the proposed new definition of ADL that ADL means “any of the following functions or tasks for self-care usually performed in the normal course of a day”, which is consistent with how VA applies ADL for purposes of 38 U.S.C. 1720G and 38 CFR part 71. VA believes this language would be helpful to include in the proposed definition of ADL in § 71.15 because it clarifies that, for purposes of part 71, ADL are the broad categories of functions and tasks listed and are those activities usually performed in the normal course of a day. VA recognizes that the functions and tasks for self-care that are “usually” performed in the “normal” course of a day depends on the unique individual. VA discusses this in more detail in the context of proposed changes to §§ 71.20(a)(3) and 71.40(c)(4)(i)(A), which outline how VA would apply ADL in the context of those sections. Additionally, the proposed new text of “usually performed in the normal course of a day” does not mandate that each activity must always be completed daily for it to be considered an ADL under this definition. Some ADL may be performed daily, such as feeding and toileting. However, others such as bathing may not always be performed daily. Such ADL would still be considered among those functions or tasks for self-care that are usually performed in the normal course of a day even though an individual may not need to perform such ADL daily in order to maintain their health and well-being. This is consistent with how VA interprets and applies ADL currently within PCAFC.
See
85 FR 46226, at 46233 (July 31, 2020).

This proposed definition of ADL (that is, functions or tasks for self-care usually performed in the normal course of a day) would align with other Federal definitions for ADL. For example, the Centers for Medicare & Medicaid Services' (CMS) regulations for its Home and Community-Based Attendant Services and Supports State Plan Option define ADL to mean basic personal everyday activities including, but not limited to, tasks such as eating, toileting, grooming, dressing, bathing, and transferring.
See
42 CFR 441.505. Additionally, the Department of Housing and Urban Development's regulations for its Congregate Housing Services Program define ADL to mean, in part, an activity regularly necessary for personal care.
See
24 CFR 700.105. VA asserts that the proposed definition of ADL in this rulemaking would also align with the plain meaning of the term
activity of daily living
as referring to activities that “occur with some regularity”.
See Veteran Warriors, Inc.
v.
Sec'y of Veterans Affairs,
29 F.4th 1320, 1339 (Fed. Cir. 2022) (“By using the word daily, Congress required the relevant activities to occur with some regularity.
See also
38 CFR 71.15 (promulgating [a] list of activities of daily living, each of which involves regular conduct—like eating or bathing).”).

Thus, ADL would be defined to mean any of the following functions or tasks for self-care usually performed in the normal course of a day: (1) Dressing or undressing; (2) Bathing; (3) Grooming; (4) Adjusting any special prosthetic or orthopedic appliance (this does not include the adjustment of appliances that nondisabled persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (5) Toileting or attending to toileting; (6) Eating; or (7) Mobility.

As explained below, this proposed definition of ADL would be applied in proposed § 71.20(a)(3)(i) and (iii) for purposes of determining whether a veteran or servicemember is in need of personal care services based on the individual typically requiring hands-on assistance to complete one or more ADL or the individual typically requiring regular or extensive instruction or supervision to complete one or more ADL, and in proposed § 71.40(c)(4)(i)(A)(
2
) as part of the criteria used to determine whether a Primary Family Caregiver (as that term is defined in § 71.15) qualifies for the higher stipend level. VA's later discussions not only provide explanation of its application of the proposed definition of ADL, but also include illustrative examples.

2. Inability To Perform an ADL

In § 71.15 VA proposes to remove the term
inability to perform an ADL
and its definition.
Inability to perform an ADL
is currently defined to mean a veteran or servicemember requires personal care services each time he or she completes one or more of the following: (1) Dressing or undressing oneself; (2)

Bathing; (3) Grooming oneself in order to keep oneself clean and presentable; (4) Adjusting any special prosthetic or orthopedic appliance, that by reason of the particular disability, cannot be done without assistance (this does not include the adjustment of appliances that nondisabled persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (5) Toileting or attending to toileting; (6) Feeding oneself due to loss of coordination of upper extremities, extreme weakness, inability to swallow, or the need for a non-oral means of nutrition; or (7) Mobility (walking, going up stairs, transferring from bed to chair, etc.).

The term
inability to perform an ADL
is listed in § 71.20(a)(3)(i) as one of the bases for determining PCAFC eligibility consistent with 38 U.S.C. 1720G(a)(2)(C)(i). The term is also referenced in the definition of
unable to self-sustain in the community,
which is applied in 38 CFR 71.40(c)(4)(i)(A)(
2
) for purposes of determining eligibility of a Primary Family Caregiver for the higher stipend level. As explained in more detail below, VA proposes to implement the statutory criterion in 38 U.S.C. 1720G(a)(2)(C)(i) through regulation text in proposed 38 CFR 71.20(a)(3)(i) and § 71.40(c)(4)(i)(A)(
2
) without referencing the term
inability to perform an ADL
in § 71.15. Those proposed amendments would eliminate the need for the current definition of
inability to perform an ADL
in § 71.15 and reduce the potential for confusion. Therefore, VA proposes to remove the term
inability to perform an ADL
and its definition from § 71.15.

3. Institutionalization

In § 71.15, VA proposes to revise the current definition of
institutionalization.
This term is used in § 71.45 for purposes of discharge from PCAFC and currently refers to being institutionalized in a setting outside the home residence to include a hospital, rehabilitation facility, jail, prison, assisted living facility, medical foster home, nursing home, or other similar setting. Under this proposal, VA would remove the language “assisted living facility” from this definition because residing in an assisted living facility should not by itself disqualify an eligible veteran or Family Caregiver (as those terms are defined in § 71.15) from PCAFC. VA would also clarify that “other similar settings” must be determined by VA.

VA has found that some eligible veterans residing in assisted living, or other similarly termed settings such as senior living, choose to utilize Family Caregivers under PCAFC for the provision of their personal care services in lieu of other paid services available from the assisted living facility or other service providers. Some assisted living facilities, and similarly termed environments, may offer room and board with limited additional support as part of the cost of residing in such facility. Other assisted living facilities may offer a menu of add-on services to include assistance with the personal care services that may have been provided by a Family Caregiver through PCAFC. However, in lieu of paying for such personal care services through the assisted living facility or other personal care service provider, an eligible veteran may prefer to receive personal care services from a Family Caregiver under PCAFC. In such cases, the assisted living facility would be considered the eligible veteran's home for purposes of § 71.20(a)(6) (conditioning PCAFC eligibility on the individual receiving care at home).

Additionally, a Family Caregiver residing in an assisted living facility should not necessarily be precluded from being approved and designated as a Family Caregiver in PCAFC simply because they reside in an assisted living facility. Such individual, for example, may live in the assisted living facility with the eligible veteran and be able to provide the personal care services the eligible veteran requires. The ability of the Family Caregiver to perform required personal care services is based upon the Family Caregiver's individual abilities, rather than the environment in which they reside.

Thus, to ensure eligible veterans and/or Family Caregivers who reside in assisted living facilities would not be excluded from PCAFC based only on the fact that they reside in an assisted living facility, VA proposes to revise the term
institutionalization
to exclude “assisted living facility,” such that
institutionalization
would instead mean being institutionalized in a setting outside the home residence to include a hospital, rehabilitation facility, jail, prison, medical foster home, nursing home, or other similar setting as determined by VA. However, this change would not nullify any of the eligibility criteria otherwise applicable to the eligible veteran and Family Caregiver. For example, in instances when personal care services that had been provided by the Family Caregiver are instead provided to the eligible veteran by or through the assisted living facility, the veteran would no longer be eligible for PCAFC pursuant to § 71.20(a)(5) (requiring that personal care services that would be provided by the Family Caregiver will not be simultaneously and regularly provided by or through another individual or entity). In such instances, the Family Caregiver's designation would be revoked for noncompliance pursuant to § 71.45(a)(1)(ii)(A) (that is, because the eligible veteran would not meet the requirements of § 71.20(a)(5)) when the personal care services that would be provided by the Family Caregiver to the eligible veteran are the same personal care services being provided by or through the assisted living facility to the eligible veteran, unless a different basis of revocation or discharge under § 71.45 applies.

For these reasons, VA proposes to revise the definition of
institutionalization
so as not to exclude from PCAFC eligible veterans and/or Family Caregivers who may be living at an assisted living facility, provided that the eligible veteran and Family Caregiver otherwise qualify for PCAFC. The eligibility criteria in § 71.20(a)(5) and (6), among other requirements, would help to ensure that the eligible veteran and Family Caregiver continue participating in PCAFC only when otherwise eligible to do so.

The definition of
institutionalization
also references “other similar setting”. VA proposes to add the phrase “as determined by VA” after “other similar setting” to clarify that what is considered a “similar” setting is a VA determination. This is consistent with current practice. VA also proposes to replace the phrase “refers to” with the word “means” within the definition of
institutionalization.
This is a non-substantive edit to align with the formatting of other definitions found within § 71.15.

4. Joint Application

In § 71.15, VA proposes to revise the current definition of
joint application.
The term
joint application
is used in the definitions of
legacy applicant
and
legacy participant,
throughout § 71.25(a), in § 71.25(f), in § 71.40(d), and in § 71.45(b)(4)(iii). The term
joint application
is currently defined as an application that has all fields within the application completed, including signature and date by all applicants, with the following exceptions: social security number or tax identification number, middle name, sex, email, alternate telephone number, and name of facility where the veteran last received medical treatment, or any other field specifically indicated as optional.

VA proposed this definition as part of a March 6, 2020 rulemaking proposal.
See
85 FR 13356, at 13362 (March 6, 2020) (hereinafter the March 6, 2020

Proposed Rule). VA explained in that rulemaking that an application that does not have all the mandatory sections completed would be considered incomplete, and VA would not be able to begin the application review process because the required sections are necessary for VA to begin that process.
Id.
VA further explained that failure to provide all the required information had led to delays as VA had to take steps to obtain the missing information.
Id.
VA received one public comment in response to its proposed definition of
joint application. See
85 FR 46237 (July 31, 2020). The commenter suggested, in part, that delays could still result as VA would still need to inform applicants that their applications were incomplete; however, VA made no changes and adopted the definition without change.
Id.
at 46237-46238.

Since implementing this definition of
joint application,
VA continues to receive applications that do not have all the required fields completed. VA has also experienced challenges with timely identification of missing required information which has led to delays in providing notice to applicants about required information. Additionally, while certain minimum information is needed for VA to begin reviewing and evaluating applicants' eligibility for PCAFC (for example, the name of the veteran or servicemember and each Family Caregiver applicant), some required information (for example, date of birth or zip code), can be obtained in the course of evaluating applicants' PCAFC eligibility.

Instead of requiring specific information be included in the joint application in regulation, VA proposes to define the term
joint application
to mean an application for the Program of Comprehensive Assistance for Family Caregivers in such form and manner as the Secretary of Veterans Affairs considers appropriate. This proposed change would be consistent with the statutory text at 38 U.S.C. 1720G(a)(4), which requires that PCAFC applicants “jointly submit to the Secretary an application [for PCAFC] in such form and in such manner as the Secretary considers appropriate.” This proposed change to the definition of
joint application
would allow VA to begin evaluating joint applications so long as they contain the minimum information needed for VA to begin such review and evaluation of the applicants' eligibility for PCAFC. This would allow efficient and timely evaluation of joint applications and avoid subsequent delays in rendering decisions. In many cases, if certain information is missing from the joint application, it may be gathered during VA's evaluations rather than serving as a precursor to such evaluations being initiated. Furthermore, this proposed definition would permit the Secretary to make changes to the application form, as needed, to ensure that the appropriate information is requested and collected from PCAFC applicants in the joint application.

VA would continue to require the use of VA Form 10-10CG as the joint application. However, to help alleviate challenges identified above, if this proposal is adopted, VA would update the form to ensure that it does not require completion of fields that are not necessary for VA to begin reviewing and evaluating applicants' eligibility for PCAFC.

5. Legacy Applicant and Legacy Participant

In 38 CFR 71.15, VA proposes to revise the definitions of
legacy applicant
and
legacy participant.
These terms are currently used throughout part 71 to describe members of the legacy cohort.
Legacy applicant
is currently defined to mean a veteran or servicemember who submits a joint application for PCAFC that is received by VA before October 1, 2020 and for whom a Family Caregiver(s) is approved and designated on or after October 1, 2020 so long as the Primary Family Caregiver approved and designated for the veteran or servicemember on or after October 1, 2020 pursuant to such joint application (as applicable) continues to be approved and designated as such.
Legacy participant
is defined as an eligible veteran whose Family Caregiver(s) was approved and designated by VA under part 71 as of the day before October 1, 2020 so long as the Primary Family Caregiver approved and designated for the eligible veteran as of the day before October 1, 2020 (as applicable) continues to be approved and designated as such. For both legacy applicants and legacy participants, the definition also states that if a new joint application is received by VA on or after October 1, 2020 that results in approval and designation of the same or a new Primary Family Caregiver, the veteran or servicemember would no longer be considered a legacy applicant or legacy participant, as applicable.

VA proposes to revise the definitions of
legacy applicant
and
legacy participant
to specify that such designation would be a temporary designation. These designations identify individuals who would be subject to the transition period and related requirements VA established for the legacy cohort through 2020 rulemaking and that VA extended under the First PCAFC Extension for Legacy Cohort and the Second PCAFC Extension for Legacy Cohort. See 85 FR 13362, 86 FR 52614, and 87 FR 57602. VA proposes to state in regulation that following expiration of the transition period for the legacy cohort, which is proposed to conclude 18 months after the effective date of a final rule that implements this rulemaking, a veteran or servicemember will no longer be considered a legacy applicant or legacy participant. VA believes that inclusion of this language would help clarify that following the conclusion of the transition period for the legacy cohort, all individuals applying for and participating in PCAFC will be subject to the same set of criteria and requirements.

VA proposes to add a sentence at the end of the definitions for
legacy applicant
and
legacy participant,
which, as proposed, would state that effective [18 months after EFFECTIVE DATE OF FINAL RULE], a veteran or servicemember is no longer considered a legacy applicant or legacy participant, respectively.

6. Need for Supervision, Protection, or Instruction

In 38 CFR 71.15, VA proposes to remove the term
need for supervision, protection, or instruction
and its definition. The term
need for supervision, protection, or instruction
is listed as one of the bases for determining eligibility under § 71.20(a)(3) and is also referenced in the definition of
unable to self-sustain in the community,
which is applied in § 71.40(c)(4)(i)(A)(
2
) for purposes of determining the amount of the monthly stipend for which the Primary Family Caregiver is eligible. The term
need for supervision, protection, or instruction
is currently defined to mean an individual has a functional impairment that directly impacts the individual's ability to maintain his or her personal safety on a daily basis. This term and its definition were intended to implement, in a combined manner, two of the statutory bases upon which a veteran or servicemember can be determined to be in need of personal care services—specifically, a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury, and a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired. 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii).

However, as VA explained in its Interim Final Rule (IFR) dated

September 21, 2022, on March 25, 2022, the U.S. Court of Appeals for the Federal Circuit issued a decision in
Veteran Warriors, Inc.
v.
Sec'y of Veterans Affairs,
29 F.4th 1320 (Fed. Cir. 2022) that invalidated VA's definition of
need for supervision, protection, or instruction
in 38 CFR 71.15.
See
87 FR 57602-57603 (September 21, 2022). The court determined that the definition was inconsistent with the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii).
Veteran Warriors
at 1342-43. Specifically, the court held that VA's decision to create a single frequency requirement for “supervision” under clauses (ii) and (iii) of section 1720G(a)(2)(C) was inconsistent with the statutory language.
Id.
at 1342. The court also found that clauses (ii) and (iii) of section 1720G(a)(2)(C) did not restrict eligibility based on “personal safety” in all cases, such that the “personal safety” requirement in VA's definition was inconsistent with the statutory text.
Id.
at 1342-43. As a result of this ruling, VA has applied clauses (ii) and (iii) of section 1720G(a)(2)(C) in place of the regulatory term
need for supervision, protection, or instruction
and its definition in 38 CFR 71.15 when making determinations under PCAFC regulations that became effective on October 1, 2020. Thus, where the term
need for supervision, protection, or instruction
is referenced, VA applies the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) instead.

As explained below, at this time, VA is not proposing a new definition of
need for supervision, protection, or instruction
for purposes of interpreting clauses (ii) and (iii) of 38 U.S.C. 1720G(a)(2)(C). Instead, VA's proposed interpretation of those clauses would be addressed in proposed 38 CFR 71.20(a)(3)(ii) and (iii) for purposes of determining PCAFC eligibility and in proposed § 71.40(c)(4)(i)(A)(
2
) for purposes of determining eligibility for the higher stipend level. Those amendments, if adopted, would eliminate the need for a new definition of
need for supervision, protection, or instruction
in § 71.15.

For these reasons, VA proposes to remove the term
need for supervision, protection, or instruction
and its definition from § 71.15.

7. Unable to Self-Sustain in the Community

In § 71.15, VA proposes to remove the term
unable to self-sustain in the community
and its definition.
Unable to self-sustain in the community
currently is defined to mean that an eligible veteran: (1) requires personal care services each time he or she completes three or more of the seven activities of daily living (ADL) listed in the definition of an inability to perform an activity of daily living in § 71.15, and is fully dependent on a caregiver to complete such ADLs; or (2) has a need for supervision, protection, or instruction on a continuous basis. This term and its definition are used for purposes of determining eligibility for the higher stipend level under § 71.40(c)(4)(i)(A)(
2
). This term and its definition are also used in § 71.30, as reassessments under that section include consideration of whether the eligible veteran is
unable to self-sustain in the community
for purposes of the monthly stipend level determination under § 71.40(c)(4)(i)(A).

As explained below, VA proposes to revise § 71.40(c)(4)(i)(A)(
2
), which currently explains that if VA determines that the eligible veteran is unable to self-sustain in the community, the Primary Family Caregiver's monthly stipend is calculated by multiplying the monthly stipend rate by 1.00. In proposed § 71.40(c)(4)(i)(A)(
2
), VA would list the criteria for the higher stipend level without referencing the term
unable to self-sustain in the community.
Consistent with that change, VA would also remove the term
unable to self-sustain in the community
from § 71.30, as discussed below. As VA would discontinue use of the term
unable to self-sustain in the community
and its definition in part 71, VA proposes to remove them from § 71.15.

8. Serious Injury

In § 71.15, VA proposes to revise the definition of
serious injury.
The current definition in § 71.15 states that
serious injury
means any service-connected disability that: (1) is rated at 70 percent or more by VA; or (2) is combined with any other service-connected disability or disabilities, and a combined rating of 70 percent or more is assigned by VA. This definition is applied by VA when determining whether an individual meets the eligibility criteria in § 71.20(a)(2), which requires the individual to have a
serious injury
incurred or aggravated in the line of duty to qualify for PCAFC.

VA proposes to revise the definition of
serious injury
in § 71.15 to include a total disability rating for compensation based on individual unemployability (IU) assigned by VA. IU ratings allow VA to compensate certain veterans at the 100 percent disability rate even though their service-connected disability or disabilities are not rated as 100 percent disabling by reference to specific rating schedule criteria. Under § 4.16(a), total disability ratings may be assigned when a veteran's schedular rating is less than total (which is to say, less than 100 percent) but where the veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. In other words, even though the veteran may not meet the requirements for a total (or 100 percent) disability rating by reference to the VA disability rating schedule criteria, the veteran may be compensated
as if
they were 100 percent disabled if their service-connected disability or the combination of their service-connected disabilities prevents them from engaging in substantial gainful employment.

The requirements for IU include that a veteran either (1) has one service-connected disability rated at least 60 percent disabling, or (2) has two or more service-connected disabilities with at least one rated at least 40 percent disabling and a combined rating of at least 70 percent.
See
§ 4.16(a). VA also allows for extra-schedular consideration for an IU rating in cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these percentage standards.
See
§ 4.16(b).

In VA's July 31, 2020 Final Rule, VA revised the definition of
serious injury.
85 FR 46245-46251 (July 31, 2020). In promulgating this definition, VA declined to adopt a recommendation from a commenter who recommended that VA consider including in the definition of
serious injury
service-connected veterans who are in receipt of an IU rating.
Id.
at 46249-46250. IU may encompass veterans with service-connected disabilities rated less than 70 percent, and VA did not believe it would be appropriate to use IU as a substitute for having a single or combined 70 percent rating for the purposes of PCAFC.
Id.
at 46250. VA explained that not all veterans and servicemembers applying for or participating in PCAFC would have been evaluated by VA for such rating, and if VA were to create an exception in the definition of
serious injury
for individuals with an IU rating, VA would also need to consider whether other exceptions should also satisfy the definition.
Id.
Additionally, VA referenced that IU had proven to be a very difficult concept to apply consistently in the context of disability compensation and had been the source of considerable dissatisfaction with VA adjudications and of litigation.
Id.
Observing that importing this standard could introduce potential inconsistency into PCAFC, VA declined to make any changes to incorporate IU into the

definition of
serious injury
in VA's July 31, 2020 Final Rule.
Id.

Following VA's implementation of the revised definition of
serious injury,
veterans and other stakeholders continued to raise concerns regarding the exclusion of IU from the definition of
serious injury.
VA therefore took another look at this topic and reexamined the exclusion of IU. Upon further review and reconsideration, VA now proposes to include a total disability rating for compensation based on IU within the definition of
serious injury
for purposes of PCAFC, regardless of the schedular disability rating assigned as VA has concluded the advantages of including IU in the definition of
serious injury
outweigh the concerns VA identified with doing so in VA's 2020 final rule.

VA's Schedule for Rating Disabilities (VASRD) percentage ratings represent the average impairment in earning capacity resulting from service-connected disabilities. See § 4.1. When the VASRD does not adequately account for the severity of the veteran's disability and its impact on the veteran's employability, VA may assign a total disability rating by establishing IU when the requirements under § 4.16 are met. An IU determination reflects VA's assessment that even though the veteran has a less than total schedular rating, their service-connected disability, or the combination of their service-connected disabilities, precludes them from engaging in substantial gainful employment and entitles them to payment at the 100 percent disability rate.
See
§ 4.16. VA's assignment of an IU rating establishes that the veteran's service-connected disability or disabilities renders them unemployable and compensable as if they were 100 percent disabled. Therefore, individuals with IU assigned by VA have the same level of impairment in earning capacity as that of an individual with a schedular 100 percent disability rating, regardless of whether the individual's disability picture warrants a 100-percent rating under the rating schedule(s) for the service-connected disability or disabilities.

In proposing this change, VA also reexamined its prior concerns with including IU in the definition of
serious injury,
and VA no longer believes those concerns necessitate the same approach. One such concern was the fact that not all veterans and servicemembers applying for or participating in PCAFC will have been evaluated by VA for IU.
See
85 FR 46250 (July 31, 2020). While this is still true, VA notes that any individual who does not currently have a total disability rating, including those that do not meet the definition of
serious injury
because their service-connected disability rating is less than 70 percent, can file a claim for an increased rating, which may include a request for IU if they believe such a rating is warranted.
2

There are existing processes for individuals to request consideration for IU, and adding IU to the definition of
serious injury
as proposed would provide an additional opportunity for veterans to satisfy the
serious injury
requirement in § 71.20(a)(2).

2
An IU rating under 38 CFR 4.16 would not ordinarily be awarded as a proposed rating to a servicemember undergoing medical discharge through the Integrated Disability Evaluation System. However, a servicemember undergoing medical discharge would still be able to meet the definition of serious injury for purposes of satisfying the requirement in § 71.20(a)(2), based on a proposed service-connected disability rating of 70 percent or higher. See 85 FR 13356, at 13369 (March 6, 2020) (explaining that “[f]or servicemembers undergoing medical discharge . . . who apply for PCAFC, we would accept their proposed VA rating of disability when determining whether the servicemember has a serious injury”). Additionally, VA notes that servicemembers undergoing medical discharge can be considered for an IU rating upon discharge.

VA also considered that IU was a difficult concept to apply consistently in the context of disability compensation.
Id.
While VA knows that IU may be challenging to apply consistently and has been the source of litigation, it does not want to exclude veterans with IU ratings from meeting the definition of
serious injury
based on these challenges and prevent them from participating in PCAFC when all other eligibility requirements are met.

Additionally, VA has examined whether other criteria should meet the definition of
serious injury
(based on disability rating criteria or otherwise). Based on this review, the only criterion VA identified as being equivalent to having a single or combined 70 percent service-connected rating or higher, is a VA rating of IU. However, as indicated below, VA welcomes input from the public on any other VA ratings or other criteria that VA should consider as potentially meeting the definition of
serious injury
for purposes of PCAFC.

Accordingly, VA believes its earlier concerns about including IU in the definition of
serious injury
are now outweighed by the advantages that would result for individuals with an IU rating who satisfy all other PCAFC eligibility criteria. Thus, when VA determines that a veteran's service-connected disability or disabilities are so severe as to render them unable to secure or follow a substantially gainful occupation and grants the veteran entitlement to IU, VA believes such disability, or disabilities, should be considered a
serious injury
for purposes of PCAFC. VA believes this is true regardless of the basis for VA's IU rating under § 4.16(a) or (b). Further, VA reached this conclusion, in part, based on continued feedback from VSOs and other stakeholders. VA believes for the reasons set forth above, the proposed inclusion of IU in the definition of
serious injury
is a reasonable expansion of the definition for purposes of PCAFC.

Given the above, VA proposes to revise the definition of
serious injury
in § 71.15 to include a total disability rating for compensation based on IU assigned by VA. VA proposes to revise the definition of
serious injury
by reorganizing the introductory text and paragraphs (1) and (2), including the current criteria from paragraphs (1) and (2) in revised paragraphs (1) and (2), and adding this new basis in a new paragraph (3). This change, if adopted, would allow individuals who do not currently have a single or combined 70 percent disability rating to meet the definition of
serious injury
if they have an IU rating assigned by VA. As proposed, the definition of
serious injury
would state
serious injury
means any of the following as assigned by VA: (1) a service-connected disability rated at 70 percent or more; (2) any service-connected disabilities that result in a combined rating of 70 percent or more; or (3) any service-connected disability or disabilities that result in a total disability rating for compensation based on individual unemployability.

9. State

In § 71.15 VA proposes to add a definition for the term
State.
As explained above, current § 71.10(b) explains, among other things, that PCAFC and PGCSS benefits are provided only to those individuals residing in a State as that term is defined in 38 U.S.C. 101(20). Currently, § 71.10(b) is the only instance in which part 71 refers to the term
State
and its definition in 38 U.S.C. 101(20). However, this rulemaking proposal, if adopted, would add the term
State
in other sections of part 71 as well. Specifically, this term would be used in a new basis for revocation under proposed revisions to 38 CFR 71.45 and regarding State-declared emergencies in proposed § 71.55, as discussed in more detail below. Thus, as the term is proposed to be used in multiple sections in part 71, it would be appropriate to define it in § 71.15. VA's proposed definition would be consistent with current § 71.10(b), as VA would define
State
in proposed § 71.15 to have the meaning given to that term in 38 U.S.C.

101(20). In 38 U.S.C. 101(20),
State
is defined to mean “each of the several States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. For the purpose of section 2303 and chapters 34 and 35 of [title 38], such term also includes the Canal Zone.”

As this is the definition VA currently uses for this term in 38 CFR 71.10(b), this change would have no substantive impact on that section. However, to provide clarity and consistency throughout part 71, VA proposes to include a new definition for the term
State
in § 71.15 so that it is easier to locate, understand, and reference the definition of this term.

10. Typically Requires

In § 71.15, VA proposes to add a definition for the term
typically requires.
VA proposes to use the term
typically requires
in the bases for PCAFC eligibility in proposed § 71.20(a)(3)(i) and (iii) and the monthly stipend payment criteria in proposed § 71.40(c)(4)(i)(A)(
2
)(
i
). As this term is proposed to be used in multiple sections of part 71, and VA intends for this term to have the same meaning when referenced throughout part 71, VA proposes to add a definition for
typically requires
in § 71.15.

VA proposes to add a definition stating that
typically requires
means a clinical determination which refers to that which is generally necessary. Cambridge Dictionary defines “typically” as “in a way that shows all the characteristics that you would expect from the stated person, thing, or group.”
3

The Britannica Dictionary defines “typically” as “generally or normally—used to say what normally happens” and “in the usual way—used to describe what is normal or expected of a certain place, person, situation, etc.”
4

VA's use of “typically” denotes frequency for purposes of proposed § 71.20(a)(3)(i) and (iii) and for proposed § 71.40(c)(4)(i)(A)(
2
)(
i
) and would be consistent with these dictionary definitions. As frequency occurs on a continuum, to further demonstrate where on the continuum VA's proposed term
typically requires
would fall in comparison to other terms of frequency, VA provides the below graphic.
See
also the visual aid published at
www.regulations.gov
under RIN 2900-AR96.

3
Cambridge University Press & Assessment, 2023,
https://dictionary.cambridge.org/dictionary/english/typically
(last visited Feb. 8, 2024) (also defining “typically” as “used when you are giving an average or usual example of a particular thing” and “in a way that shows the characteristics of a particular kind of person or thing; or gives a usual example of a particular thing”).

4
The Britannica Dictionary, 2023,
https://www.britannica.com/dictionary/typically
(last visited Feb. 8, 2024).

Figure 1—Typically Requires

EP06DE24.004

Additionally, like the definition of
in the best interest
in § 71.15, VA's proposed definition of
typically requires
would make clear that it is a clinical determination. This definition would allow VA to consider each individual's unique functional needs, abilities, and usual routines when making the clinical determination of whether the criteria in proposed § 71.20(a)(3)(i) and (iii) and proposed § 71.40(c)(4)(i)(A)(
2
)(
i
) are met. Additional discussion on how VA proposes to use the term
typically requires
is found in VA's discussion on proposed changes to §§ 71.20 and 71.40 below.

VA solicits comments from the public on all aspects of this proposed rule. In particular, VA asks the following questions on specific aspects of this proposal.

1. Please identify any similarly situated veterans or servicemembers who may not have an IU rating but nonetheless should be found to have a
serious injury
under the definition of that term in § 71.15 based on other VA ratings or other criteria.

2. VA has proposed a definition for the term
typically requires
that, in part, refers to that which is generally necessary. What other phrasing should VA consider as an alternative to generally necessary and why? Are there other criteria with regard to frequency that should be considered in defining
typically requires
?

3. Is there an alternative term other than
typically requires
that would be better defined to mean that which is generally necessary? For example, would the phrasing usually, most of the time, routinely, or ordinarily requires be clearer than the phrasing
typically requires
?

4. What factors should VA consider when determining what is generally necessary?

D. 38 CFR 71.20 Eligible Veterans and Servicemembers

Section 71.20(a) sets forth seven criteria for veterans and servicemembers to be determined eligible for a Primary Family Caregiver or Secondary Family Caregiver under part 71. In this rulemaking proposal, VA proposes to make substantive revisions to only two of the current criteria in § 71.20(a): (1) the individual is in need of personal care services for a minimum of six continuous months based on an inability to perform an activity of daily living, or a need for supervision, protection, or instruction (
see
§ 71.20(a)(3)); and (2) the individual receives ongoing care from a primary care team or will do so if VA designates a Family Caregiver (
see
§ 71.20(a)(7)). VA also proposes to make technical edits to § 71.20(a), as described in more detail below. VA's discussions of proposed changes include illustrative examples of how a veteran or servicemember could meet the two referenced criteria; however, this does not guarantee eligibility of the veteran or servicemember or caregiver applicant for participation in PCAFC, particularly as all the other criteria in § 71.20(a) would also have to be met, in addition to meeting other requirements in part 71.

1. Section 71.20(a)(3)—Bases Upon Which the Individual May Be Determined To Be in Need of Personal Care Services for a Minimum of Six Continuous Months

Current § 71.20(a)(3) requires that the individual be in need of personal care services for a minimum of six continuous months based on (i) an inability to perform an activity of daily living; or (ii) a need for supervision, protection, or instruction. VA established these criteria based on its interpretation of 38 U.S.C. 1720G(a)(2)(C)(i) through (iii). 85 FR 13371-13372 (March 6, 2020). However, VA's use of the term
need for supervision, protection, or instruction,
including its definition, was invalidated by the court's decision in
Veteran Warriors,
as explained in the above discussion on the proposed removal of such term and definition from 38 CFR 71.15. As such, and to make other changes to better clarify the three statutory bases upon which an individual may be determined to be in need of personal care services in 38 U.S.C. 1720G(a)(2)(C)(i) through (iii), VA proposes to amend 38 CFR 71.20(a)(3) by revising the language in paragraphs (i) and (ii) and adding a new paragraph (iii).

As proposed, § 71.20(a)(3) would state the individual is in need of personal care services for a minimum of six continuous months based on any one of the following: (i) the individual typically requires hands-on assistance to complete one or more ADL; (ii) the individual has a frequent need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; or (iii) the individual typically requires regular or extensive instruction or supervision to complete one or more ADL.

a. Proposed § 71.20(a)(3)(i)—The Individual Typically Requires Hands-On Assistance To Complete One or More ADL

As explained in the discussion of the definition of the term
inability to perform an ADL,
VA proposes to remove such term and its definition from § 71.15 and address the statutory basis under 38 U.S.C. 1720G(a)(2)(C)(i) (that is, the individual is in need of personal care services because of an inability to perform one or more ADL) in proposed 38 CFR 71.20(a)(3)(i) for purposes of determining a veteran's or servicemember's eligibility for PCAFC.

Therefore, VA proposes to revise § 71.20(a)(3)(i) to remove the current language of an inability to perform an activity of daily living and replace it with the individual typically requires hands-on assistance to complete one or more ADL. An individual who typically requires hands-on assistance to complete one or more ADL would have an inability to perform such ADL without such assistance, which would be consistent with the criterion in 38 U.S.C. 1720G(a)(2)(C)(i). This would include individuals who require assistance with some, or all of the tasks associated with an ADL, thus permitting individuals who are unable to contribute to the completion of the ADL to meet this criterion. VA explains below how this proposed change would clarify and differ from the current eligibility criterion in § 71.20(a)(3)(i).

i. Hands-On Assistance

First, in determining whether an individual is in need of personal care services under proposed § 71.20(a)(3)(i), VA would consider whether the individual typically requires “hands-on” assistance to complete one or more ADL. VA would require “hands-on” assistance for purposes of proposed paragraph (i), as this would be consistent with how VA has interpreted and applied the term
inability to perform an ADL,
(and remains consistent with 38 U.S.C. 1720G(a)(2)(C)(i)), for purposes of determining whether a veteran or servicemember is in need of personal care services on such basis.
See
85 FR 46229, 46233, 46235 (July 31, 2020). In VA's July 31, 2020 Final Rule, VA noted that if an eligible veteran is eligible for PCAFC because they meet the definition of
inability to perform an ADL,
the in-person personal care services required to perform an ADL would be hands-on care.
Id.
at 46229. This is how VA has implemented this requirement since that final rule took effect on October 1, 2020. Individuals who do not meet the “hands-on” requirement may still meet the requirement for being in need of personal care services under current 38 CFR 71.20(a)(3) based on the statutory text in 38 U.S.C. 1720G(a)(2)(C)(ii) or (iii)—even though their needs are related to ADLs.
See
85 FR 46235 (July 31, 2020). To provide further clarity and remove uncertainty concerning the type of assistance an individual must typically require in order to meet the criterion in proposed 38 CFR 71.20(a)(3)(i), VA proposes to include the words “hands-on”.

By using the phrase “assistance to complete” in proposed § 71.20(a)(3)(i), in reference to situations in which hands-on assistance is typically required, it is not VA's intent to require any minimum amount of contribution by the veteran or servicemember in completing the ADL. If a caregiver performs an ADL entirely on behalf of the veteran or servicemember (such as dressing and undressing or bathing a veteran or servicemember who is unable to contribute to the completion of such ADL because of a physical or cognitive disability), the veteran or servicemember could still meet this proposed criterion.

In addition to being consistent with current practice, including the words “hands-on” in proposed § 71.20(a)(3)(i) would also make clear a distinction between proposed § 71.20(a)(3)(i), and proposed § 71.20(a)(3)(ii) and (iii), as proposed paragraph (iii) would set forth an additional explicit basis upon which an individual can be determined to be in need of personal care services related to an ADL, even without a need for “hands-on” assistance with the performance of one or more ADL.

ii. Removal of “Each Time” Requirement

Next, VA proposes to change the requirement that an individual must require personal care services “each time” the veteran or servicemember completes one or more ADL to be determined eligible for PCAFC under the basis in § 71.20(a)(3)(i). To do this, VA proposes to modify the current language in § 71.20(a)(3)(i) to remove reference to the term
inability to perform an ADL.
In current § 71.15, the definition of
inability to perform an ADL
means a veteran or servicemember requires personal care services “each time” they complete one or more ADL. Since VA proposes to remove the term
inability to perform an ADL
and its definition from § 71.15 and instead interpret the statutory requirement in 38 U.S.C. 1720G(a)(2)(C)(i) in proposed 38 CFR 71.20(a)(3)(i), VA believes it is important to acknowledge that VA's proposed revisions to § 71.20(a)(3)(i) would not retain the “each time” requirement for purposes of determining whether an individual typically requires hands-on assistance to complete one or more ADL, as VA has found “each time” to be too restrictive.

In establishing this requirement of “each time”, VA believed that specifying the frequency with which personal care services would be needed (that is, “each time” the veteran or servicemember completes one or more ADL) would establish a clear, objective standard that could be consistently applied throughout PCAFC.
See
85 FR 13360-13361 (March 6, 2020); 85 FR 46233 (July 31, 2020). It was also established to align with VA's goal of focusing PCAFC on eligible veterans with moderate and severe needs.
Id.

However, VA received comments when it originally proposed the “each time” requirement, which included concerns that the “each time” requirement would be too restrictive and may result in denial of eligibility for some individuals with moderate and severe needs.
Id.
at 46232-46234. In the July 31, 2020 Final Rule, VA explained that if, over time, VA found that the definition of
inability to perform an ADL
was as restrictive as the commenters asserted it would be, VA would adjust and revise the definition accordingly in a future rulemaking.
Id.
at 46234.

Since that time, VA has continued to receive feedback from stakeholders that the requirement of “each time” in the current definition of the term
inability to perform an ADL
is too restrictive. For example, this issue was raised by stakeholders that participated in VA's roundtable listening session conducted on December 5, 2023. (
See
written transcript of roundtable discussion available online at
www.regulations.gov
under RIN 2900-AR96). VA agrees based on VA's review of denied applications. Through exchanges with stakeholders, including veterans, caregivers, VSOs, and members of Congress, and reviews of de-identified PCAFC evaluations that have been completed, VA identified instances of veterans with moderate or severe needs who almost always require assistance with one or more ADL yet, because of occasional episodes of independence, do not meet the current standard of requiring personal care services “each time” the veteran completes one or more ADL. This does not align with VA's intent to focus PCAFC on individuals with moderate and severe needs. VA provides illustrative examples below to showcase the restrictive nature of the “each time” requirement.

For example, a veteran may experience tremors and weakness due to their disability and consequently, require hands-on assistance from another individual when feeding and dressing on most occasions. However, due to waxing and waning of such symptoms over the course of an occasional day, this veteran can feed and dress themselves without assistance from another individual when they are experiencing limited symptoms. Such episodes in which the veteran experiences limited symptoms are not common for the veteran's level of function, and the reprieve of symptoms is infrequent. Because this veteran has occasional episodes of independence to complete one or more ADL, the veteran does not meet the current definition of
inability to perform an ADL
because personal care services are not required “each time” they feed and dress themselves.

Similarly, as another example, a veteran who usually requires hands-on assistance with toileting and mobility may have occasional days when the veteran, following a full night of rest, can perform each of these ADL independently for a limited period of time in the morning. However, as the day progresses, this veteran becomes fatigued and is unable to sustain the level of exertion needed to independently perform these ADL for the remainder of the day, thus requiring the assistance of another individual. This veteran also does not meet the current definition of inability to perform an ADL because they do not require assistance “each time” they perform these ADL.

In these and similar illustrative examples, VA has found that the “each time” standard has excluded individuals from meeting the requirement to be in need of personal care services based on an
inability to perform an ADL
despite having what VA considers to be moderate or severe needs. Such individuals are determined to not meet the current definition of
inability to perform an ADL
because they have episodes of independence that do not result in such individuals requiring personal care services “each time” they perform an ADL and they do not meet the requirement under current § 71.20(a)(3)(i). VA has thus determined that the requirement of “each time” in the current definition of
inability to perform an ADL
is too restrictive.

VA acknowledges that when the “each time” requirement in the definition of
inability to perform an ADL
was established, VA believed that such an objective and clear frequency requirement was necessary to create a consistent standard that could be operationalized across PCAFC. 85 FR 46233 (July 31, 2020). However, VA no longer believes this standard is necessary to create consistency when evaluating an individual's inability to perform an ADL. This is because VA's process for evaluating veterans and servicemembers under § 71.20(a)(3) includes comprehensive assessments that are able to identify specific variability in a veteran's or servicemember's unique functional needs, abilities, and usual routines. VA therefore asserts it is reasonable and appropriate to propose a standard that is less strict than “each time” in order to accommodate veterans and servicemembers with moderate and severe needs who would otherwise be excluded from PCAFC.

As an alternative to this proposal, VA considered whether to include a specific frequency requirement other than “each time”, and whether that should be a quantitative standard. VA recognizes the importance of ensuring VA's interpretation of 38 U.S.C. 1720G(a)(2)(C)(i) in proposed 38 CFR 71.20(a)(3)(i) accounts for the unique functional needs, abilities, and usual routines of individual veterans and servicemembers who require hands-on assistance to complete one or more ADL and decided not to propose a quantitative standard and instead focus on what a veteran or servicemember
typically requires.
As discussed in regard to proposed changes to § 71.15, VA proposes to add a definition stating that
typically requires
means a clinical determination which refers to that which is generally necessary.

As identified by the Federal Circuit in
Veteran Warriors,
“[t]here is a statutory gap” as to how often an individual must be unable to perform an ADL under 38 U.S.C. 1720G(a)(2)(C)(i).
See Veteran Warriors
at 1339. Previously, VA adopted the “each time” requirement to fill that gap for purposes of interpreting and applying 38 U.S.C. 1720G(a)(2)(C)(i), and now, VA proposes to modify the requirement by replacing it with
typically requires in
38 CFR 71.20(a)(3)(i). Inclusion of the term
typically requires
would address such questions as how often a veteran or servicemember must be unable to perform an ADL, how often the inability must be present, and how pervasive the inability must be for purposes of establishing inability to perform an ADL.
Id.

In proposing to revise § 71.20(a)(3)(i) to focus on what is typically required by each veteran or servicemember rather than use another quantitative standard, VA would avoid setting a specific quantifiable threshold. VA acknowledges that in its July 31, 2020 Final Rule VA stated it did not want to use a non-specific threshold (for example, most or majority of time) for purposes of defining
inability to perform an ADL
because using such thresholds would be vague, subjective, arbitrary, difficult to quantify, and could lead to inconsistencies. 85 FR 46233-46234 (July 31, 2020). However, VA now believes using the term
typically requires
is appropriate because the determination of whether a veteran or servicemember is in need of personal care services based on an inability to perform an ADL is a clinical determination that inherently accounts for the individual's unique functional needs, abilities, and usual routines. A specific quantifiable threshold that

applies equally to all individuals could potentially result in the exclusion of some veterans and servicemembers with moderate and severe needs from PCAFC as was the case with VA's implementation of the “each time” requirement. This is because such a threshold would not provide the flexibility that would be required to account for each individual's unique functional needs, abilities, and usual routines in making the determination of whether they are in need of personal care services.

iii. Implementation of Proposed § 71.20(a)(3)(i)

A determination that a veteran or servicemember typically requires hands-on assistance to complete one or more ADL under proposed § 71.20(a)(3)(i) would be a clinical determination based on an assessment of the veteran's or servicemember's unique functional needs, abilities, and usual routines and take into consideration the tasks required to complete the ADL. In making this clinical determination VA may consider, for example, the frequency with which the ADL is completed, the functions and tasks performed by the individual to complete the ADL, and the frequency with which hands-on assistance from another individual is needed to complete such ADL, as each of these can vary from person to person.

A. Frequency of the Functions and Tasks Required To Complete an ADL

VA first must determine what functions and tasks are performed by an individual in order to complete an ADL, as this can vary from person to person. VA notes that requiring hands-on assistance only to complete functions or tasks performed on an occasional basis that are not part of the individual's usual self-care routine would not mean the veteran or servicemember typically requires hands-on assistance to complete an ADL. For example, one veteran may shave on a daily basis as part of completing the ADL of grooming, while a different veteran who chooses to maintain a full beard does not shave as part of their grooming routine.

B. Frequency of Need for Hands-On Assistance

VA would not require assistance “each time” the veteran or servicemember completes the ADL, as was explained above. Rather, VA would assess how frequently hands-on assistance is needed in conjunction with how often the ADL is completed. This would be a more expansive basis than what VA applies today.

Failure to meet the proposed criterion in § 71.20(a)(3)(i) would not preclude individuals from being determined to be in need of personal care services under another basis in § 71.20(a)(3). Veterans and servicemembers could also be determined to be in need of personal care services based on proposed § 71.20(a)(3)(ii) or (iii) (that is, the individual has a frequent need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; or the individual typically requires regular or extensive instruction or supervision to complete one or more ADL), which are discussed below.

b. Proposed § 71.20(a)(3)(ii)—The Individual Has a Frequent Need for Supervision or Protection Based on Symptoms or Residuals of Neurological or Other Impairment or Injury

Under current § 71.20(a)(3)(ii), an individual may be determined to be in need of personal care services for a minimum of six continuous months based on a need for supervision, protection, or instruction. As explained above, this criterion was intended to implement the statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in a combined manner. However, the U.S. Court of Appeals for the Federal Circuit invalidated this term and its definition in the
Veteran Warriors
decision. Since the
Veteran Warriors
decision, in place of the term
need for supervision, protection, or instruction
and its definition in current § 71.15, VA has applied the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) when determining whether a veteran or servicemember is in need of personal care services under 38 CFR 71.20(a)(3)(ii).

VA proposes to update its regulations to align with VA's current practice of interpreting the statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) separately. To do so, VA proposes to revise 38 CFR 71.20(a)(3)(ii) to align with how VA has implemented the statutory criteria for 38 U.S.C. 1720G(a)(2)(C)(ii) (that is, a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury) as a result of the
Veteran Warriors
decision. For purposes of interpreting 38 U.S.C. 1720G(a)(2)(C)(ii), VA proposes to revise 38 CFR 71.20(a)(3)(ii) by replacing the language “[a] need for supervision, protection, or instruction” with the language “[t]he individual has a frequent need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury”. This would be consistent with the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii). However, as previously discussed regarding 38 U.S.C. 1720G(a)(2)(C)(i), the statutory language in section 1720G(a)(2)(C)(ii) does not include an explicit frequency requirement; therefore, VA proposes to include the phrase “has a frequent need” in proposed 38 CFR 71.20(a)(3)(ii) to address that gap. Such term would be reflective of how VA has been applying this statutory basis since the
Veteran Warriors
ruling. Consistent with that, VA intends to apply common dictionary definitions of the word “frequent”, which refer to an action occurring “repeatedly, “habitually”, or “on many occasions”, when implementing this new criterion.
5

VA discusses its proposed implementation of this language in greater detail further below.

5

See
Merriam-Webster Dictionary, 2023,
https://www.merriam-webster.com/dictionary/frequent
(last visited Jul. 26, 2024); The Britannica Dictionary, 2023,
https://www.britannica.com/dictionary/frequent
(last visited Jul. 26, 2024); and Oxford English Dictionary, 2023,
https://www.oed.com/search/dictionary/?scope=Entries&q=frequent
(last visited Jul. 26, 2024).

In implementing this proposed change, VA would continue to apply the statutory criteria as it relates to the interpretation of “supervision or protection” and “symptoms or residuals of neurological or other impairment or injury” as VA does in current practice. VA discusses this interpretation below.

i. Supervision or Protection

The statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) does not define supervision or protection. Therefore, VA has relied on common definitions and uses of these terms to inform VA's interpretation of this statutory provision. For instance, consistent with dictionary definitions of the term, VA considers “supervision” to be critical watching of an individual to provide oversight or directing (such as of activities or actions).
6

For the purposes of proposed 38 CFR 71.20(a)(3)(ii), supervision would not be limited to or dependent upon the veteran's or servicemember's needs related to specific activities or functions, which is in contrast to VA's interpretation of “supervision” under proposed § 71.20(a)(3)(iii), as discussed in more detail below. When VA evaluates a veteran or servicemember on the basis of whether the individual has a frequent

need for supervision based on symptoms or residuals of neurological or other impairment or injury, VA considers their overall need for supervision in general. VA interprets the word “protection” to mean keep, cover, or shield from harm. This is also consistent with common definitions for such term.
7

6

See
Merriam-Webster Dictionary, 2023,
https://www.merriam-webster.com/dictionary/supervision
(last visited Feb. 8, 2024); The Britannica Dictionary, 2023,
https://www.britannica.com/dictionary/supervision
(last visited Feb. 8, 2024); and Oxford English Dictionary, 2023,
https://www.oed.com/search/dictionary/?scope=Entries&q=supervision
(last visited Feb. 8, 2024).

7

See
Merriam-Webster Dictionary, 2023,
https://www.merriam-webster.com/dictionary/protect
(last visited Feb. 8, 2024); and The Britannica Dictionary, 2023,
https://www.britannica.com/dictionary/protection
(last visited Feb. 8, 2024).

VA considers the need for both supervision and protection when evaluating the statutory criterion in 38 U.S.C. 1720G(a)(2)(C)(ii). Although VA recognizes that the terms are distinct, VA does not believe it is necessary in its determinations to parse out whether an individual needs supervision, protection, or both under proposed 38 CFR 71.20(a)(3)(ii) because either one would satisfy this regulatory basis. Additionally, making this distinction would prove challenging because individuals who have a need for protection, generally also have a need for supervision. Likewise, an individual who needs supervision may need such supervision at times as a means of protection; however, at other times, supervision may be needed in the absence of a need for protection. When a caregiver takes action to protect a veteran or servicemember from harm, they may do so in the course of also overseeing (or supervising) that individual. For example, a veteran with a history of hypervigilance and hallucinations and who acts upon such hallucinations may need protection to support their safety during hallucinations. In such instances, the caregiver must provide supervision to identify whether protection is needed.

ii. Symptoms or Residuals of Neurological or Other Impairment or Injury

Next, VA describes its interpretation of the basis for such supervision and protection, that is, symptoms or residuals of neurological or other impairment or injury. Consistent with VA's current practice, in evaluating and determining whether a veteran or servicemember has a frequent need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury under proposed § 71.20(a)(3)(ii), VA would not have a discrete list of symptoms or residuals of neurological or other impairment or injury by which a veteran or servicemember may be determined eligible under this criterion as these can vary by individual. As clinical practices evolve over time, VA would not want to list in regulation specific symptoms or residuals as doing so could unnecessarily limit VA's ability to find individuals eligible under this criterion. However, examples of symptoms and residuals of neurological or other impairment or injury for which a veteran or servicemember may require supervision or protection may include, but are not limited to, unmanaged impulse control, command hallucinations, uncontrolled seizures, loss of muscular control, or cognitive impairments.

VA does not currently have a discrete list of neurological or other impairments or injuries that would make a veteran or servicemember eligible under this criterion.
See
85 FR 13363-13364 (March 6, 2020). This is because individuals with similar impairments or injuries may experience a wide variation of symptoms leading to a variety of functional impacts. While VA does not propose to maintain a discrete list of impairments or injuries in regard to this criterion, examples of impairments or injuries for which symptoms or residuals may lead to a veteran or servicemember typically requiring supervision or protection may include, but are not limited to, traumatic brain injury, mental health conditions, Parkinson's disease, dementia, and neuromuscular disorders such as muscular dystrophy, multiple sclerosis, or amyotrophic lateral sclerosis.

iii. Implementation of Proposed § 71.20(a)(3)(ii)

While VA would consider whether an individual has a frequent need for supervision or protection when evaluating whether an individual is in need of personal care services on this basis, VA would not set forth a specific quantitative requirement for the frequency with which a veteran or servicemember may require supervision or protection other than specifying that the need for supervision or protection is frequent. VA has found that there is no uniform frequency of individuals' need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury. The frequency of need varies based on each individual's unique needs and depends on severity of their symptomology.

Therefore, when implementing proposed § 71.20(a)(3)(ii), VA would consider how frequently a veteran or servicemember is in need of personal care services under this basis. VA would consider how symptoms manifest for each unique individual, whether their symptoms are well-controlled, and whether the veteran or servicemember has a past pattern or history of requiring supervision or protection because of such symptomology. Although a past pattern or history of requiring supervision or protection will be considered, VA notes that it is not necessarily determinative of whether an individual would be determined to meet proposed § 71.20(a)(3)(ii), as such individual may not continue to need supervision or protection on a frequent basis.

In requiring a “frequent need”, VA can allow for variance in the type of need and circumstances presented in each individual case, while still maintaining a consistent standard. This approach differs from the frequency proposed under 38 CFR 71.20(a)(3)(i) and (iii) (that is,
typically requires
). This is because unlike the criteria in proposed § 71.20(a)(3)(i) and (iii), which focus on ADLs, the need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury proposed in § 71.20(a)(3)(ii) does not have a discrete list of needs or circumstances. In this regard, determining what is typically required for an individual would be impractical.

To illustrate how the requirement for a frequent need would be applied, VA provides the following example. There may be two veterans with the same diagnosis of multiple sclerosis who both have symptoms of muscle weakness that require a caregiver to stay in close proximity and intervene if the veteran stumbles, to minimize or prevent falls. In this example, one veteran experiences muscle weakness on a daily, or near daily, basis and has a history of multiple falls, resulting in a daily or near daily need for supervision and/or protection by a caregiver. The other veteran experiences occasional muscle weakness one or two days per week for limited amounts of time following completion of recommended strengthening exercises, resulting in an occasional need for supervision or protection by a caregiver on these days. While these two veterans have the same diagnosis and both experience the same symptoms of muscle weakness, the former veteran may have a frequent need for supervision and protection while the latter veteran may only occasionally have such need. In the case of the second veteran in this example, where the need for supervision or protection only occurs after participating in their recommended strengthening exercises, the veteran may not be considered to have a frequent need for supervision or protection

because such need is infrequent and not generally necessary.

Additionally, under proposed 38 CFR 71.20(a)(3)(ii), VA would consider whether an individual has a demonstrated past pattern or history when determining whether the individual has a frequent need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury. However, a past pattern or history of needing supervision or protection is not necessarily determinative of whether an individual would be determined to meet proposed § 71.20(a)(3)(ii), as such individual may not continue to have a frequent need for supervision or protection.

VA looks forward to receiving public comments on this proposal. Additionally, VA notes that if the changes under proposed § 71.20(a)(3)(ii) become effective, VA would develop trainings and guidance materials to support consistent evaluation of this standard.

c. Proposed § 71.20(a)(3)(iii)—The Individual Typically Requires Regular or Extensive Instruction or Supervision To Complete One or More ADL

As previously explained, the current regulatory text in § 71.20(a)(3)(ii) was intended to implement the statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in a combined manner by establishing that an individual could be determined to be in need of personal care services based on a
need for supervision, protection, or instruction.
However, the
Veteran Warriors
decision, issued on March 25, 2022, invalidated VA's definition of
need for supervision, protection, or instruction.
Since that decision, VA has been applying the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place of the criterion in current 38 CFR 71.20(a)(3)(ii). VA discussed its proposed interpretation of 38 U.S.C. 1720G(a)(2)(C)(ii) above and proposes to further interpret 38 U.S.C. 1720G(a)(2)(C)(iii) in proposed modifications to the regulations as discussed in more detail below.

For purposes of interpreting 38 U.S.C. 1720G(a)(2)(C)(iii) (that is, a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired), VA proposes to add 38 CFR 71.20(a)(3)(iii) to state that the individual typically requires regular or extensive instruction or supervision to complete one or more ADL. This proposed interpretation of the statutory criteria deviates from current practice in two ways. The first is VA's inclusion of the term
typically requires,
which would specify how often a veteran or servicemember would be in need of personal care services on this basis. The second is that VA identified a need to further define its interpretation of the statutory phrase “without which the ability of the veteran to function in daily life would be seriously impaired”. In proposed § 71.20(a)(3)(iii), VA would interpret this statutory phrase to mean “to complete one or more ADL”. VA discusses its interpretation of the statutory language and its proposed criterion in greater detail further below.

i. Typically Requires

Including the term
typically requires
in proposed § 71.20(a)(3)(iii) would specify the frequency with which an eligible veteran would be in need of personal care services on this basis and would align with VA's use of the term
typically requires
in proposed § 71.20(a)(3)(i), as discussed above. Although the words “regular” and “daily” in 38 U.S.C. 1720G(a)(2)(C)(iii) could be viewed in isolation as referring to specific frequencies, for the reasons explained below, VA does not believe that Congress intended those words to establish any frequency requirement in section 1720G(a)(2)(C)(iii). Accordingly, VA proposes to include the term
typically requires
in proposed 38 CFR 71.20(a)(3)(iii) to modify the frequency requirement previously established in the definition of
supervision, protection, or instruction
that referred to a “daily basis”.
8

8
Even if not viewed as a statutory gap, the language in 38 U.S.C. 1720G(a)(2)(C)(iii) is at least ambiguous as to the frequency with which an individual would need regular or extensive instruction to be determined in need of personal care services on this basis. For the reasons explained below, VA would resolve that ambiguity by establishing in proposed 38 CFR 71.20(a)(3)(iii), that the individual typically requires regular or extensive instruction or supervision to meet this criterion.

ii. Regular or Extensive Instruction or Supervision

In 38 U.S.C. 1720G(a)(2)(C)(iii), Congress did not define what is meant by regular or extensive instruction or supervision. In implementing this statutory criterion, VA has relied upon common definitions of the terms “regular”, “extensive”, “instruction”, and “supervision” to inform VA's interpretation. Today, “regular” has been applied to mean some amount of supervision or instruction while “extensive” has generally been applied to mean a large amount of supervision or instruction. Additionally, to date, VA has applied common definitions of “instruction” and “supervision” when implementing the statutory criteria under section 1720G(a)(2)(C)(iii). VA now seeks to clarify and further define its interpretation of the statutory criterion and use of these terms.

The term “instruction” commonly refers to the provision of guidance or detailed information to complete or perform an action. It is defined as “something that someone tells you to do,” as “a statement that describes how to do something; an order or command; the action or process of teaching” and “that which is taught; knowledge or authoritative guidance imparted by one person to another.”
9

VA's use of the term “instruction” in proposed § 71.20(a)(3)(iii) would be consistent with these definitions, as VA would consider the need for instruction to mean the need for detailed information is necessary to perform an activity as VA does in current practice.

9

See
Cambridge Dictionary, 2023,
https://dictionary.cambridge.org/us/dictionary/english/instruction
(last visited Feb. 8, 2024); The Britannica Dictionary, 2023,
https://www.britannica.com/dictionary/instruction
(last visited Feb. 8, 2024); and Oxford English Dictionary, 2023,
https://www.oed.com/search/dictionary/?scope=Entries&q=instruction
(last visited Feb. 8, 2024).

VA's interpretation of the meaning of “supervision” is addressed in the discussion above regarding proposed 38 CFR 71.20(a)(3)(ii) (that is, VA considers “supervision” to be critical watching of an individual to provide oversight or directing (such as of activities or actions)).
10

While the term “supervision” has the same meaning in proposed paragraphs (a)(3)(ii) and (iii), in proposed paragraph (a)(3)(iii) supervision would be needed with respect to the veteran's or servicemember's ability to complete one or more ADL, in contrast to supervision under proposed paragraph (a)(3)(ii) which does not include that same requirement.

10

See
Merriam-Webster Dictionary, 2023,
https://www.merriam-webster.com/dictionary/supervision
(last visited Sept. 24, 2023); The Britannica Dictionary, 2023,
https://www.britannica.com/dictionary/supervision
(last visited Feb. 8, 2024); and Oxford English Dictionary, 2023,
https://www.oed.com/search/dictionary/?scope=Entries&q=supervision
(last visited Feb. 8, 2024).

Additionally, VA recognizes that the terms “instruction” and “supervision” are distinct terms. However, consistent with VA's proposed approach with regard to supervision or protection under proposed 38 CFR 71.20(a)(3)(ii) discussed above, VA does not believe it is necessary in its determinations to parse out whether an individual typically requires instruction, supervision, or both under proposed

§ 71.20(a)(3)(iii) because either one would satisfy this regulatory basis.

Next, VA explains its proposed interpretations of “regular” instruction or supervision and “extensive” instruction or supervision and the distinction between the two. The word “regular” can carry several meanings, such as “characterized by evenness, order, or harmony in physical form, structure, or organization; arranged in or constituting a constant or definite pattern; happening over and over again at the same time or in the same way; happening or done very often; normal or usual.”
11

Merriam Webster Dictionary describes “regular” as meaning, “recurring, attending, or functioning at fixed, uniform, or normal intervals; normal, standard; something of average or medium size.”
12

It is this latter meaning, that is, that which is something of average or medium size, which VA interprets to have the most applicability for purposes of evaluating that which is “regular” instruction or supervision under proposed § 71.20(a)(3)(iii). Notably, “regular” is commonly used to refer to a standard or indicative of size, such as regular clothing size versus petite or long, regular warranty versus extended warranty, regular display versus extended display, or an amount, such as with regular (basic) rates of pay.
13

These common definitions and usages that align with the term meaning a size or degree, inform VA's interpretation of the statutory language and its use of the term “regular” in proposed § 71.20(a)(3)(iii). This is also consistent with how VA currently interprets this term when applying the statutory criteria today.

11

See
Cambridge Dictionary, 2023,
https://dictionary.cambridge.org/us/dictionary/english/regular
(last visited Feb. 8, 2024); The Britannica Dictionary, 2023,
https://www.britannica.com/dictionary/regular
(last visited Feb. 8, 2024); and Oxford English Dictionary, 2023,
https://www.oed.com/search/dictionary/?scope=Entries&q=regular
(last visited Feb. 8, 2024).

12

See
Merriam-Webster Dictionary, 2023,
https://www.merriam-webster.com/dictionary/regular
(last visited Feb. 8, 2024).

13

See
for example, Regular Military Compensation (RMC) Calculator, Department of Defense,
https://militarypay.defense.gov/calculators/rmc-calculator/
(Describing “regular military compensation” as a basic level of compensation that every servicemember receives.) (last visited Feb. 8, 2024).

VA's use of the term “regular” in proposed § 71.20(a)(3)(iii) aligns with common usage of the term relating to size or degree, such as a standard amount. VA considered the use of “regular” in terms of frequency. However, Congress did not include a frequency requirement in either of the criteria found in 38 U.S.C. 1720G(a)(2)(C)(i) or (ii). Therefore, VA does not believe that Congress intended to add a frequency requirement in the context of only one basis that an individual could be determined to be in need of personal care services.
14

As previously discussed, VA is proposing to establish a consistent frequency requirement for the two statutory bases VA proposes would apply to the need for personal care services to complete ADLs through VA's use of the term
typically requires
in the proposed criterion discussed here and the criterion in proposed 38 CFR 71.20(a)(3)(i) discussed above. As referenced in VA's discussion of proposed § 71.15,
typically requires
would be a clinical determination that would take into consideration an individual's unique functional needs, abilities, and usual routines when assessing the frequency of the individual's need for personal care services.

14
One could argue that use of the word “daily” in section 1720G(a)(2)(C)(iii) refers to a frequency requirement and could imply that a veteran or servicemember must experience the need each day. However, in section 1720G(a)(2)(C)(iii) the word “daily” is used to modify the word “life” and is better understood to refer to the types of activities that the veteran or servicemember ordinarily completes to function in the normal course of a day (such as ADL). For this reason, VA does not read the word “daily” in section 1720G(a)(2)(C)(iii) to contain a frequency requirement. Additional discussion of VA's interpretation of the phrase “ability of the veteran to function in daily life would be seriously impaired” in section 1720G(a)(2)(C)(iii) is below.

Similarly, VA would continue to interpret the term “extensive” to also account for size or degree but on a larger scale than regular. The term “extensive” commonly refers to that which is large in size or amount, having a wide or considerable extent, or extending over or occupying a large surface or space, covering a large area or being a large amount.
15

Each of these meanings for extensive refers to a size or degree. VA therefore equates “extensive” with a greater size or higher degree of personal care services requiring instruction or supervision than that of “regular” as explained below.

15

See
Merriam-Webster Dictionary, 2023,
https://www.merriam-webster.com/dictionary/extensive
(last visited Feb. 8, 2024); The Britannica Dictionary, 2023,
https://www.britannica.com/dictionary/extensive
(last visited Feb. 8, 2024); and Oxford English Dictionary, 2023,
https://www.oed.com/search/dictionary/?scope=Entries&q=extensive
(last visited Feb. 8, 2024).

VA interprets the terms regular (something of average or medium size) and extensive (that which is large in size), to reflect different points along a spectrum. VA interprets this difference in size or degree to reflect a distinction in the size or degree of personal care services required by the veteran or servicemember. This means that a regular need for instruction or supervision is of a lower size or degree than an extensive need for instruction or supervision.

Using this proposed standard, if adopted as final, when applying the criterion in proposed 38 CFR 71.20(a)(3)(iii), VA would interpret the need for extensive instruction or supervision to mean that such instruction or supervision is required throughout the performance of the activity; hence the personal care services (that is, instruction or supervision) required to complete the activity would be of a large size or degree. In contrast, VA would interpret the need for regular instruction or supervision to mean such personal care services are only needed to complete a portion of the activity. Thus, VA would consider “regular” to refer to a lesser size or degree of instruction or supervision than that of “extensive”.

Although VA interprets “regular” and “extensive” to reflect different sizes or degrees of personal care services required by the veteran or servicemember, having either a “regular” or “extensive” need for instruction or supervision to complete one or more ADL would satisfy the criterion in proposed § 71.20(a)(3)(iii). This is consistent with VA's proposed approach with regard to supervision or protection under proposed § 71.20(a)(3)(ii) and instruction or supervision under § 71.20(a)(3)(iii) discussed above. However, the distinction between “regular” and “extensive” would be relevant to determinations under proposed § 71.40(c)(4)(A)(
2
)(
i
) regarding stipend level determinations, as discussed further below.

iii. Ability To Function in Daily Life Would Be Seriously Impaired

Finally, in proposed 38 CFR 71.20(a)(3)(iii), VA also proposes to interpret “without which the ability of the veteran to function in daily life would be seriously impaired” in 38 U.S.C. 1720G(a)(2)(C)(iii) to mean that such individual typically requires regular or extensive instruction or supervision “to complete one or more ADL”. This is a deviation from current practice as currently VA may include other activities or functions in addition to ADL when applying this statutory criterion as is explained below. VA believes it is reasonable to interpret ADL as the “ability of the veteran to function in daily life” contemplated in 38 U.S.C. 1720G(a)(2)(C)(iii). Activities or functions other than ADL for which

veterans and servicemembers with moderate or severe needs may be in need of personal care services could be captured under the basis proposed in 38 CFR 71.20(a)(3)(ii) (that is, the individual has a frequent need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury). Therefore, proposed 38 CFR 71.20(a)(3)(iii) would refer to instruction or supervision to complete one or more ADL rather than repeating the verbiage in 38 U.S.C. 1720G(a)(2)(C)(iii).

As VA explained above regarding the term “regular” in section 1720G(a)(2)(C)(iii), VA does not believe Congress intended the term “daily” in such section to establish a frequency requirement—especially one more restrictive than would apply under clauses (i) and (ii) of section 1720G(a)(2)(C). The statute does not say that the veteran or servicemember would have a daily need for regular or extensive instruction or supervision. Rather, it says that without such regular or extensive instruction or supervision, the ability to “function in daily life would be seriously impaired.” In this context, VA interprets “function in daily life” to align with VA's proposed definition of ADL in 38 CFR 71.15. In proposed § 71.15, ADL would be defined, in part, as the functions or tasks for self-care usually performed in the normal course of a day. VA believes this is consistent with the language 38 U.S.C. 1720G(a)(2)(C)(iii) concerning functioning in daily life, as ADL are typically performed on a daily basis. However, similar to VA's discussion on proposed 38 CFR 71.20(a)(3)(i) and the proposed definition of ADL in § 71.15, VA would not require that the ADL with which the individual requires regular or extensive instruction or supervision be performed on a daily basis. ADL often occur on a daily basis, but not always (for example, bathing). For purposes of this criterion, VA would apply the proposed definition of ADL in 38 CFR 71.15, and the term
typically requires
would set forth the applicable frequency of need. VA explains its rationale for this interpretation in more detail below.

In determining whether the ability of the veteran or servicemember to function in daily life would be seriously impaired for purposes of 38 U.S.C. 1720G(a)(2)(C)(iii), VA contemplated what other essential functions or activities, beyond or instead of ADL, might be considered functions in daily life that would be seriously impaired without regular or extensive instruction or supervision under proposed 38 CFR 71.20(a)(3)(iii). Specifically, VA considered activities caregivers commonly assist veterans with beyond ADL. Such activities include but are not limited to meal preparation, shopping for essential needs, managing finances, housework, and coordinating medical care.
16

VA does not believe Congress intended to capture such activities under 38 U.S.C. 1720G(a)(2)(C)(iii) for the reasons discussed below.

16
Rajeev Ramchand, et al., Hidden Heroes: America's Military Caregivers. Santa Monica, CA: RAND Corporation (2014), pages 54-56, available at
https://www.rand.org/pubs/research_reports/RR499.html.

First, and most noteworthy, the phrasing of this criterion in 38 U.S.C. 1720G(a)(2)(C)(iii) implies the veteran or servicemember is the individual who performs the activity. To have a need for regular or extensive instruction or supervision
without which
the ability to function in daily life would be seriously impaired suggests that the veteran or servicemember must be capable of performing some activity to function in daily life
with
the provision of such instruction or supervision. This means that if a veteran or servicemember is not capable of performing such activity because that veteran or servicemember is physically or cognitively incapable of doing so, and no amount of instruction or supervision would enable that veteran or servicemember to perform that activity, such veteran or servicemember would not qualify under this basis. This means an individual who may have a greater need, that is, who requires another person to complete the activity necessary for functioning in daily life in its entirely or on behalf of the veteran, would not qualify under this basis, while an individual who can complete the activity with assistance (instruction or supervision) could qualify.
17

17
Note that the individual with a greater need may qualify under a separate criterion under proposed 38 CFR 71.20(a)(3)(i) or (ii) and the failure to qualify under this basis in § 71.20(a)(3)(iii) would not mean that an individual is necessarily ineligible for PCAFC.

Second, VA does not believe Congress intended to include activities classified as instrumental activities of daily living (IADL) such as meal preparation, shopping for essential needs, managing finances, housework, or coordinating medical care within the criterion in 38 U.S.C. 1720G(a)(2)(C)(iii) because such activities are those that may be completed entirely by another individual without the veteran's or servicemember's presence or involvement. Therefore, if these activities are not performed by the veteran or servicemember either by choice or inability, and are instead completed by another individual, the veteran's or servicemember's functioning in daily life would not be seriously impaired—with or without instruction or supervision in performing such activities, as they do not perform the activity. This would not mean that individuals who are incapable of performing or who otherwise need assistance with these activities would be excluded from PCAFC. Such individuals may still be in need of personal care services based on meeting the other criteria under proposed § 71.20(a)(3).

Therefore, ADL are the only activities VA identified for which the ability of the veteran or servicemember to function in daily life would be seriously impaired in the absence of regular or extensive instruction or supervision and that pursuant to this interpretation, the criterion in proposed § 71.20(a)(3)(iii) would not unduly disadvantage one group over another. Furthermore, in contrast to the other functions or activities VA considered, ADL cannot be done without the veteran's or servicemember's presence or involvement. The veteran's or servicemember's physical presence is necessary for the ADL to be completed because the ADL that is completed is performed on, or directly impacts, the veteran's body. Thus, VA finds it appropriate to interpret 38 U.S.C. 1720G(a)(2)(C)(iii) to mean the individual typically requires regular or extensive instruction or supervision to complete one or more ADL. While there are indeed other activities which could result in a veteran's or servicemember's ability to function in daily life being seriously impaired that are not related to ADL, such as but not limited to a veteran or servicemember who requires supervision due to frequent falls, or a veteran or servicemember who requires instruction or supervision to properly self-administer medications, such needs could be captured under proposed 38 CFR 71.20(a)(3)(ii). An illustrative example is provided below when VA addresses multiple bases for being determined to be in need of personal care services.

Although VA did not identify any other life activities or functions that would meet the statutory language beyond that which are ADL and which are not already covered under the other bases (that is, a need for hands-on assistance or a need for regular or extensive supervision or instruction to complete one or more ADL), VA specifically requests comments on this topic from the public on whether there are certain IADL, or other activities or functions in daily life that VA should consider for purposes of determining that an individual is in need of personal

care services under 38 U.S.C. 1720G(a)(2)(C)(iii) and proposed 38 CFR 71.20(a)(3)(iii).

iv. Implementation of Proposed § 71.20(a)(3)(iii)

Similar to VA's discussions above regarding proposed 38 CFR 71.20(a)(3)(i), in evaluating whether the individual typically requires regular or extensive instruction or supervision to complete one or more ADL should this proposed regulation text become final, VA would consider the instruction or supervision that is generally necessary when the individual is completing one or more ADL. In determining if an individual typically requires regular or extensive instruction or supervision to complete one or more ADL, VA would consider for each individual, factors such as how often the ADL is completed as well as the frequency with which instruction or supervision is needed to complete such ADL. What is typically required would be a clinical determination based on an assessment of the veteran's or servicemember's needs and would take into consideration things like the individual veteran's or servicemember's unique functional needs, abilities, usual routines, and the tasks required to be able to complete the ADL.

d. Eligibility Under Multiple Proposed Bases

Under VA's proposed interpretation of 38 CFR 71.20(a)(3)(i) through (iii), some veterans and servicemembers may be determined to be in need of personal care services based on more than one criterion. This means that a veteran or servicemember may be determined to be in need of multiple types of perso

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-28079. Public record. Not legal advice.