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DEPARTMENT OF VETERANS benefits, such as training, respite care, improve consistency and transparency AFFAIRS counseling, technical support, in decision making. beneficiary travel (to attend required On 6, 2020, VA published a 38 CFR Part 71 caregiver training and for an eligible proposed rule to revise its regulations that govern PCAFC to make RIN 2900–AQ48 veteran’s medical appointments), a monthly stipend payment, and access to improvements to PCAFC and update the Program of Comprehensive Assistance health care (if qualified) through the regulations to comply with section 161 for Family Caregivers Improvements Civilian Health and Medical Program of of the VA MISSION Act of 2018. 85 FR and Amendments Under the VA the Department of Veterans Affairs 13356 (, 2020). In response to MISSION Act of 2018 (CHAMPVA). 38 U.S.C. 1720G(a)(3), 38 this proposed rule, VA received 273 CFR 71.40. comments, of which one comment was AGENCY: Department of Veterans Affairs. withdrawn by the submitter and one ACTION: Final rule. On 6, 2018, the John S. McCain comment was a duplicate submission, III, Daniel K. Akaka, and Samuel R. for a total of 271 unique comments. SUMMARY: The Department of Veterans Johnson VA Maintaining Internal More than 37 comments expressed Affairs (VA) adopts as final, with Systems and Strengthening Integrated general support for the proposed rule, in changes, a proposed rule to revise its Outside Networks Act of 2018 or the VA whole or in part. We appreciate the regulations that govern VA’s Program of MISSION Act of 2018, Public Law 115– support of such comments, and do not Comprehensive Assistance for Family 182, was signed into law. Section 161 of address them below. Other comments Caregivers (PCAFC). This final rule the VA MISSION Act of 2018 amended expressed support or disapproval, in makes improvements to PCAFC and 38 U.S.C. 1720G by expanding whole or in part, with substantive updates the regulations to comply with eligibility for PCAFC to Family provisions in the proposed rule, and we the recent enactment of the VA Caregivers of eligible veterans who discuss those comments and applicable MISSION Act of 2018, which made incurred or aggravated a serious injury revisions from the proposed rule below. changes to the program’s authorizing in the line of duty before 11, We note that the discussion below is statute. This final rule allows PCAFC to 2001, establishing new benefits for organized by the sequential order of the better address the needs of veterans of designated Primary Family Caregivers of provisions as presented in the proposed all eras and standardize the program to eligible veterans, and making other rule; however, we only address the focus on eligible veterans with moderate changes affecting program eligibility provisions that received comments and severe needs. and VA’s evaluation of PCAFC below. Additionally, we have included DATES: The effective date is 1, applications. The VA MISSION Act of a section on miscellaneous comments 2020. 2018 established that expansion of received. We further note that numerous commenters raised individual matters FOR FURTHER INFORMATION CONTACT: Cari PCAFC to Family Caregivers of eligible Malcolm, Management Analyst, veterans who incurred or aggravated a (e.g., struggles they currently be Caregiver Support Program, Care serious injury in the line of duty before having) which are informative to VA, Management and Social Work, 10P4C, , 2001, will occur in two and to the extent these individuals provided their personal information, we Veterans Health Administration, phases. The first phase will begin when did attempt to reach out to them to Department of Veterans Affairs, 810 VA certifies to Congress that it has fully address their individual matters outside Vermont Ave. NW, Washington, DC implemented a required information technology system (IT) that fully of this rulemaking. 20420, (202) 461–7337. (This is not a In the proposed rule and in this final supports PCAFC and allows for data toll-free number.) rule, we provide various examples to assessment and comprehensive SUPPLEMENTARY INFORMATION: Title I of illustrate how these regulations will be monitoring of PCAFC. During the 2-year Public Law 111–163, Caregivers and applied, but we emphasize here that period beginning on the date of such Veterans Omnibus Health Services Act clinical evaluation is complex and takes of 2010 (hereinafter referred to as ‘‘the certification to Congress, PCAFC will be into account a holistic picture of the Caregivers Act’’), established section expanded to include Family Caregivers individual; therefore, we note that 1720G(a) of title 38 of the of eligible veterans who have a serious examples provided are for illustrative Code (U.S.C.), which required VA to injury (including traumatic brain injury, purposes only and should not be establish a program of comprehensive psychological trauma, or other mental construed to indicate specific veterans assistance for Family Caregivers of disorder) incurred or aggravated in the and servicemembers and their eligible veterans who have a serious line of duty in the active military, naval, caregivers will or will not meet certain injury incurred or aggravated in the line or air service on or before , 1975. regulatory criteria or requirements. of duty on or after September 11, 2001. Two years after the date of submission The Caregivers Act also required VA to of the certification to Congress, PCAFC § 71.10 Purpose and Scope establish a program of general caregiver will be expanded to Family Caregivers Several commenters raised concerns support services, pursuant to 38 U.S.C. of all eligible veterans who have a about restricting PCAFC to a ‘‘State’’ as 1720G(b), which is available to serious injury (including traumatic that term is defined in 38 U.S.C. 101(20) caregivers of covered veterans of all eras brain injury, psychological trauma, or because 38 U.S.C. 1720G does not place of military service. VA implemented the other mental disorder) incurred or any geographic restrictions on PCAFC, program of comprehensive assistance aggravated in the line of duty in the and such restriction would be in the for Family Caregivers (PCAFC) and the active military, naval, or air service, view of the commenters, arbitrary, program of general caregiver support regardless of the period of service in unreasonable, and without sufficient services (PGCSS) through its regulations which the serious injury was incurred justification, particularly as VA in part 71 of title 38 of the Code of or aggravated in the line of duty in the provides other benefits and services to Federal Regulations (CFR). Through active military, naval, or air service. veterans who reside outside of a State. PCAFC, VA provides Family Caregivers This final rule implements section 161 One commenter shared that they lived of eligible veterans (as those terms are of the VA MISSION Act of 2018 as well in the United Kingdom (U.K.), but defined in 38 CFR 71.15) certain as makes improvements to PCAFC to believed that they should be eligible for

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PCAFC as many of the PCAFC processes current 38 CFR 71.25(e) and the CFR 71.40(c)(5). Legislative history and requirements can be completed in provision of certain benefits that can be reflects that the addition of financial the U.K. despite being outside of a State provided in-home such as respite care planning services to PCAFC assistance (for example, the application can be under current § 71.40(a)(4) and (c)(2), was influenced by the 2014 RAND submitted by mail or online; caregiver which would be difficult to conduct and Corporation-published report, Hidden training is available online; assessments provide in a consistent manner outside Heroes: America’s Military Caregivers, and monitoring can be done via of a State.’’ 85 FR 13358 (March 6, which identified that few military telehealth, Foreign Medical Program 2020). Also, as noted in the proposed caregiver-specific programs provided (FMP), social media, or through the use rule, administrative limitations prevent long-term planning assistance, of a contract with a home health us from providing certain benefits under including legal and financial planning, agency); and benefits such as a stipend this part even in remote areas within the for military caregivers. S. Rep No. 115– can be based on a U.K. locality rate. scope of the term ‘‘State.’’ Additionally, 212, at 58 (2018) (accompanying S.2193, This same commenter recommended ‘‘ensuring oversight of PCAFC and which contained language nearly revising the language in this section to PGCSS outside of a State would be identical to that enacted in sections state that ‘‘these benefits are provided to resource-intensive and we do not 161–163 of the VA MISSION Act of those individuals residing in a State as believe there is sufficient demand to 2018). The purpose of this benefit is to that term is defined in 38 U.S.C. 101(2). warrant the effort that would be increase the financial capability of Individuals who reside outside a State required.’’ Id. Furthermore, we do not Primary Family Caregivers to be able to will be considered for benefits on a case believe the use of contracted services manage their own personal finances and by case basis.’’ While this commenter would provide standardized care for those of the eligible veteran, as referenced section 101(2), we believe participants and would hinder our applicable. Furthermore, we will the commenter meant to reference ability to provide appropriate oversight include in any contracts requirements section 101(20) as the definition of and monitoring. While we understand such as minimum degree attainment State, for purposes of title 38, is the commenters’ concerns and and national certifications for contained in section 101(20). Section appreciate the suggested changes, we individuals providing financial 101(20) defines State, in pertinent part, are not making any changes based on planning services, as well as to mean each of the several States, this comment. mechanisms that would prohibit exploitation or abuse of caregivers and Territories, and possessions of the § 71.15 Definitions United States, the District of Columbia, veterans (e.g., prohibit any form of We received many comments that and the Commonwealth of Puerto Rico. compensation from the eligible veteran either suggested revisions to or In suggesting that the program could be or Family Caregiver for the services clarification of some terms defined in administered through VA’s FMP, we provided) and that allow us to take any the proposed rule. We address these generally disagree. The legal authority appropriate actions necessary to address comments below as they relate to the for the FMP bars VA from furnishing related breaches of contract. We note term in the order they were presented in ‘‘hospital care’’ and ‘‘medical services’’ that the contractor would be responsible § 71.15 as proposed. outside of a State except in the case of for any liability arising from the the stated exceptions. 38 U.S.C. 1724. Financial Planning Services financial planning services provided by This authority, as implemented, it. Further, contractors are not VA We received multiple comments employees and therefore not covered by generally covers only hospital care and about financial planning services. One medical services, as those terms are the Federal Tort Claims Act. commenter was pleased with VA’s We are not making any changes to the defined in 38 U.S.C. 1701 and 38 CFR proposal to include financial planning regulation based on these comments. 17.30, that are required to treat a services in the menu of Family service-connected disability or any Caregivers’ supports and services under In Need of Personal Care Services disability held to be aggravating a PCAFC and we thank the commenter for We proposed to define ‘‘in need of service-connected condition. Because their feedback. One commenter personal care services’’ to mean that the PCAFC involves benefits that do not questioned why this service is being eligible veteran requires in-person constitute ‘‘hospital care’’ or ‘‘medical provided, whether it is indicative of a personal care services from another services’’ and accounts for the care deeper problem, and what precautions person, and without such personal care needs of eligible veterans unrelated to and safety nets will be in place to services, alternative in-person their service-connected disability or ensure veterans are not exploited or caregiving arrangements (including disabilities, PCAFC could not be abused. Furthermore, one commenter respite care or assistance of an administered through FMP. Lastly, asserted that regardless of what services alternative caregiver) would be required telehealth services are medical services are provided to help with budgeting, to support the eligible veteran’s safety. and therefore not available outside a families will become accustomed to and A few commenters supported this ‘‘State,’’ except as provided for under spend according to the monthly stipend definition of in need of personal care the FMP. received each month. services, and we appreciate their As stated in the proposed rule, it has As stated in the proposed rule, we are support. Others raised concerns with been VA’s practice since the launch of adding this term to address changes the definition, and we address those PCAFC and PGCSS in 2011 to only made to 38 U.S.C. 1720G by the VA comments below. provide benefits to those individuals MISSION Act of 2018. Specifically, the One commenter found this definition residing in a State; thus, the proposed VA MISSION Act of 2018 added too restrictive, and to be a major change changes merely codify an existing financial planning services relating to to PCAFC that would result in exclusion practice. In addition, it is currently not the needs of injured veterans and their of current participants from the feasible for VA to provide benefits caregivers as a benefit for Primary program. Similarly, another commenter under part 71 outside of a State, Family Caregivers. Accordingly, further explained that this definition specifically because ‘‘requirements of financial planning services will be may unfairly discriminate against this part include in-home visits such as added to the benefits available to veterans who served on or after an initial home-care assessment under Primary Family Caregivers under 38 September 11, 2001 (referred to herein

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as post-9/11) who currently qualify for not discriminate against post-9/11 a home health aide, which are generally the program but may not yet need this veterans and servicemembers who may furnished in-person and at home (38 required level of care, and also may utilize other alternative in-person U.S.C. 1720G(a)(3)(C)(ii), (iv)). See 85 result in younger veterans believing caregiving arrangements other than a FR 13360 (March 6, 2020). Also, rather they are not ‘‘disabled enough’’ for professional home health aide or than supporting the commenter’s PCAFC. The same commenter noted that nursing home care in the absence of argument that VA’s definition is unduly this definition would exclude veterans their Family Caregiver. We note that restrictive, we believe that 38 U.S.C. who may need assistance with activities PCAFC has been and will remain 1720G(d)(3)(B) also illustrates the of daily living (ADL), but do not available to post-9/11 eligible veterans, importance of in-person personal care otherwise need a professional home and that the changes we are making are services by only authorizing a non- health aide or nursing home care. While intended to support veterans of all eras family member to be a Family Caregiver we appreciate the commenters’ of service, consistent with expansion of if the individual lives with the eligible concerns, we believe these changes are the program under the VA MISSION Act veteran. We do not discount the supported by the statute and would help of 2018. We further refer commenters to importance of remote support that to reduce clinical subjectivity in PCAFC the discussion of § 71.20 addressing caregivers provide to veterans, such as eligibility determinations. As provided commenters’ concerns that the proposed medication reminders, remote guidance in the proposed rule: regulations would negatively impact through a task via telephone, and The statute makes clear the post-9/11 veterans. Additionally, we mental and emotional support, but we importance of regular support to an recognize that there may be reluctance do not believe that type of support alone eligible veteran by allowing more than by some veterans, including post-9/11 rises to the level of support envisioned one Family Caregiver to be trained to veterans, to seek care and assistance by the statute for eligible veterans who provide personal care services. 38 because of perceived stigma or a belief are in need of personal care services in U.S.C. 1720G(a)(5) and (6). Likewise, that they are not ‘‘disabled enough,’’ PCAFC. This is particularly true as we eligible veterans are provided and our goal is to reduce those concerns standardize PCAFC to focus on eligible protections under the statute in the through outreach and education on all veterans with moderate and severe absence of a Family Caregiver such as VA programs and services, to include needs. 85 FR 13356 (March 6, 2020). respite care during a family member’s PCAFC, that may help meet the needs VA’s definition of ‘‘in need of personal initial training if such training would of veterans and servicemembers and care services’’ is a reasonable interfere with the provision of personal their caregivers. We are not making any interpretation of the statute, and we are care services for the eligible veteran. 38 changes based on these comments. not making any changes based on this U.S.C. 1720G(a)(6)(D). Thus, we believe comment. We do, however, recognize One commenter supported our ‘‘in need of personal care services’’ the commenter’s concern regarding definition of ‘‘in need of personal care under section 1720G(a)(2)(C) means that consistency between PCAFC and services’’ because it clarified that such without Family Caregiver support, VA PGCSS. As noted in VA’s proposed rule, services are required in person. In would otherwise need to hire a the definition of ‘‘in need of personal professional home health aide or contrast, another commenter disagreed care services’’ will not apply to restrict provide other support to the eligible with our assertion that the PCAFC was eligibility under 38 U.S.C. 1720G(b), veteran such as adult day health care, ‘‘intended to provide assistance to which governs PGCSS, or any other VA respite care, or facilitate a nursing home Family Caregivers who are required to benefit authorities. VA will consider or other institutional care placement.85 be physically present to support eligible whether changes to the regulations FR 13359 (March 6, 2020). veterans in their homes.’’ 85 FR 13360 governing PGCSS are appropriate in the Also, as previously stated we are (March 6, 2020). They asserted that the future. standardizing PCAFC to focus on statute is intended to enable a veteran One commenter agreed with the eligible veterans with moderate and to obtain care in his or her home definition to the extent that VA is not severe needs, and we believe this regardless of where the caregiver is requiring the Family Caregiver to always definition supports this focus. located, such that he or she could be present. It is not our intent to require Furthermore, ‘‘alternative in-person receive care remotely ‘‘such as when the a Family Caregiver to be present at all caregiving arrangements’’ are not caregiver checks in to remind the times, rather this definition establishes limited to a professional home health veteran to take his or her medication, that the eligible veteran requires in- aide, or nursing home care. There are guide the veteran through a task that he person personal care services, and many types of alternative caregiving or she can complete without physical without such personal care services arrangements that a veteran or assistance, or provide mental and provided by the Family Caregiver, servicemember may utilize or require in emotional support should the need alternative in-person caregiver the absence of his or her Family arise.’’ VA’s requirement that the arrangements would be required to Caregiver providing in-person personal eligible veteran requires ‘‘in-person support the eligible veteran’s safety. As care services. The personal care needs of personal care services’’ is supported by stated by the commenter, this definition eligible veterans participating in PCAFC the statute, and we are not persuaded by speaks to the type of personal care vary and as such, so would the types of the commenter’s arguments to the services needed by the eligible veteran, alternative caregiving arrangements they contrary. Even putting aside the as the kind that must be delivered in may require. Such arrangements may meaning of ‘‘personal,’’ with which the person. We appreciate this comment include adult day health care or other commenter takes issue, we believe the and make no changes based upon it. similar day treatment programs, statute makes clear the importance of One commenter asked (1) whether a assistance provided by a friend or providing in-person personal care legacy participant determined to need family member informally or formally services by indicating that personal care in-person care services from another through a VA or community Veteran- services are provided in the eligible person, but who does not require Directed care program, or through veteran’s home (38 U.S.C. assistance daily and each time an ADL volunteer organizations that train 1720G(a)(9)(C)(i)) and by establishing an is performed, would still be eligible to individuals to provide respite care. expectation that Family Caregivers are continue to participate in the PCAFC; Thus, we believe this definition would providing services equivalent to that of and (2) whether a veteran who served

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before September 11, 2001 (referred to protection, or instruction to complete language to address the eligible herein as pre-9/11) who VA determines ADLs. We make no changes based on veteran’s level of need, which is distinct needs in-person care services from this comment. from §§ 71.20(a)(5) and 71.25(f), which another person, but does not require One commenter asked whether the establish the expectations of the Family assistance daily and each time, would use of community support professionals Caregiver to provide personal care be eligible for PCAFC. The commenter’s and resources (e.g., art therapy services, services, and §§ 71.25(b)(3) and questions and examples seem to merge life skills coaching) that provide active 71.45(a)(1)(i)(B), which address neglect. and possibly confuse separate PCAFC supervision to the eligible veteran while If the veteran or servicemember does not eligibility requirements. To qualify for performing other activities when the require in-person personal care services, PCAFC under § 71.20(a)(3), a veteran or designated Family Caregiver is not there may be other VA health care servicemember would need to be in present would affect eligibility for programs more suitable to meet his or need of personal care services (meaning PCAFC. It was recommended VA clarify her needs. If the Family Caregiver is not the veteran or servicemember requires the role that non-designated individuals providing care, which pursuant to ‘‘in ‘‘in-person personal care services from or organizations such as those identified need of personal care services’’ will another person, and without such in the previous sentence may play in an include in-person care, we could initiate personal care services, alternative in- eligible veteran’s life, and the revocation based on noncompliance person caregiving arrangements . . . commenter advocated that use of such under § 71.45(a)(1)(ii)(A), or for cause would be required to support the services should not disqualify a veteran under § 71.45(a)(1)(i), depending on the eligible veteran’s safety’’) based on from PCAFC. As previously explained, circumstances. We note that these are either (1) an inability to perform an it is not our intent to require that a distinct criteria and considerations. To activity of living, or (2) a need for Family Caregiver be present at all times. the extent the commenter was supervision, protection, or instruction, We acknowledge that all caregivers need remarking that the presence of as such terms are defined in § 71.15 and a break from caregiving. It is important requirements regarding neglect discussed further below. The definition to note that respite care is a benefit generally mean that the Family of ‘‘inability to perform an activity of provided to assist Family Caregivers, Caregiver is providing care in person daily living’’ refers to the veteran or and we encourage the use of respite care rather than remotely, we agree. We servicemember requiring personal care by Family Caregivers. The definition of make no changes based on this services ‘‘each time’’ one or more ADLs ‘‘in need of personal care services’’ comment. ensures that PCAFC is focused on is completed, and the definition of One commenter disagreed with the ‘‘need for supervision, protection, or veterans and servicemembers who require in-person personal care services, creation of the definition because of the instruction’’ refers to the individual’s existing statutory and regulatory ability to maintain personal safety on a and that in the absence of such personal care services, such individuals would definition of ‘‘personal care services,’’ ‘‘daily basis.’’ The veteran or and asserted that VA, by defining ‘‘in servicemember could qualify on both of require alternative in-person caregiving arrangements. This definition as well as need of personal care services,’’ is these bases, but would be required to restricting the bases upon which an qualify based on only one of these bases. all other PCAFC eligibility criteria are not intended to discourage the eligible veteran can be deemed in need To the extent the commenter is of personal care services in section concerned about these other definitions, utilization of community support resources or community-based 1720G(a)(2)(C). The commenter also we further address comments about organizations who may provide care or asserted that VA has never created a those definitions separately in their supervision to the eligible veteran while definition for other programs and respective sections below. We are not the Family Caregiver is not present. We services in which similar language is making any changes based on this note, however, it is our expectation that used. We note that section comment. the Family Caregiver actually provide 1720G(a)(2)(C) provides the bases upon Another commenter acknowledged an personal care services to the eligible which an individual may be deemed in understanding of the ‘‘in person’’ veteran. The requirements in need of personal care services; however, requirement, but requested that we §§ 71.20(a)(5) and 71.25(f) make clear it does not define an objective standard clearly state that the care does not need that personal care services must be for what it means to be in need of to be hands-on, physical care, and that provided by the Family Caregiver, and personal care services, and we found it assistance can be provided through that personal care services will not be necessary to define this term for supervision, protection, or instruction simultaneously and regularly provided purposes of PCAFC. We reiterate from while the veteran completes an ADL. A by or through another individual or the proposed rule that our interpretation veteran or servicemember that is eligible entity. We further refer the commenter of the term ‘‘in need of personal care for PCAFC based on the definition of to the discussion of § 71.25 below. We services’’ for purposes of PCAFC would need for supervision, protection, or are not making any changes based on not apply to other sections in title 38, instruction would require in-person these comments. U.S.C., that use the phrase ‘‘in need of’’ personal care services. However, that One commenter asserted that VA’s in reference to other types of VA does not always mean hands-on care is definition is further clarified by other benefits that have separate eligibility provided or required. We note that if an regulatory requirements concerning criteria. We are not required to interpret eligible veteran is eligible for PCAFC neglect of eligible veterans, specifically ‘‘in need of’’ in the same manner in because he or she meets the definition § 71.25(b)(3) (‘‘[t]here must be no every instance the phase is used in title of inability to perform an ADL, the in- determination by VA of . . . neglect of 38, U.S.C. See Atlantic Cleaners & person personal care services required the eligible veteran by the [Family Dyers, Inc. v. United States, 286 U.S. to perform an ADL would be hands-on Caregiver] applicant’’) and 427, 433 (1932) ([although] ‘‘there is a care. We further refer that commenter to § 71.45(a)(1)(i)(B) (authorizing VA to natural presumption that identical the discussion on the definition of revoke the designation of a Family words used in different parts of the inability to perform an ADL, where we Caregiver for cause when the Family same act are intended to have the same address similar comments regarding Caregiver has neglected the eligible meaning . . . the presumption is not veterans who may require supervision, veteran). We used the ‘‘in-person’’ rigid and readily yields whenever there

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is such variation in the connection in needs of eligible veterans. We make no Relatedly, some commenters opposed which the words are used as reasonably changes based on these comments. allowing veterans to be eligible for to warrant the conclusion that they were Another commenter noted that VA PCAFC if they work full time. employed in different parts of the act added a definition of ‘‘in need of Employment is not an automatic with different intent’’). We are not personal care services,’’ but also referred disqualifier for PCAFC. However, we making any changes based on this to the definition for ‘‘personal care decline to include language in the comment. services’’ as it is currently defined in regulation to explicitly state that, as One commenter that supported the § 71.15, then stated the terminology ‘‘is doing so could suggest that employment definition suggested that eligibility not specific and very narrow.’’ The is not considered by VA in determining assessment teams include an commenter asserted that it could eligibility for PCAFC, which is not the occupational therapist or have therefore ‘‘disqualify many veterans’’ case. While maintaining employment applicants evaluated by an occupational and ‘‘allows one to think that family would not automatically disqualify a therapist to help ensure a more objective caregiver support is not allowed and veteran or servicemember for PCAFC, assessment. The commenter believes only qualifies for a hired professional employment and other pursuits, such as PCAFC disproportionately relies on self- home health aide or provide other volunteer services and recreational reporting of functioning. We note that support to the eligible veteran such as activities, can and do inform VA centralized eligibility and appeals team adult day health care, respite care, or regarding an individual’s functional (CEAT) will determine eligibility, facilitate a nursing home or other ability and would be considered during including whether the veteran is institutional care placement.’’ It is the evaluation of the veteran or determined to be unable to self-sustain unclear if these comments were in servicemember. For example, if a in the community, for purposes of reference to the proposed definition of veteran or servicemember travels for PCAFC. These teams will be comprised ‘‘in need of personal care services’’ or to work or leisure and can independently of a standardized group of inter- the current definition of ‘‘personal care manage alone for weeks at a time professional, licensed practitioners with services.’’ To the extent the commenter without the presence of a caregiver, that specific expertise and training in the believes the definition for ‘‘personal would likely indicate that the eligibility requirements for PCAFC and care services’’ in current § 71.15 is too individual does not require personal the criteria for the higher-level stipend, narrow, we did not propose to change care services ‘‘each time’’ he or she and will include occupational that definition in this rulemaking and completes one or more ADLs. therapists, as appropriate. We thank the consider such comment outside the Creating any specific requirements commenter for their suggestion; scope of this rulemaking. To the extent regarding employment for eligible however, as this specific commenter did the commenter believes the definition veterans or Family Caregivers would be not make any suggestions regarding the for ‘‘in need of personal care services’’ difficult because of the unique needs of proposed rule itself, we are not making is too narrow such that it would every individual and the vast any changes based on this comment. disqualify many veterans, lead one to employment options, both with and Two commenters restated our belief, believe that that Family Caregiver without accommodations. For example, as indicated in the proposed rule, that support is not allowed, and allow only an eligible veteran in need of personal under 38 U.S.C. 1720G(a)(2)(C), ‘‘in a hired professional home health aide or care services due to an inability to need of personal care services’’ means other similar support, we disagree and perform multiple ADLs because of that without Family Caregiver support, we refer the commenter to the previous quadriplegia may be able to maintain VA would otherwise need to hire a paragraphs in this section discussing any number of professional professional home health aide or this definition. We are not making any opportunities with proper provide other support to the eligible changes based on this comment. accommodations, and still qualify for veteran, such as adult day health care, One commenter also requested that PCAFC. As the needs and condition for respite care, nursing home, or other VA clearly state in regulation that each veteran or servicemember and his institutional care. These two working is not an exclusion criterion for or her caregiver are unique, we do not commenters further opined that this either the veteran or the Family believe it is reasonable to place description does not include jail or Caregiver. This commenter stated that restrictions on a veteran’s or prison. One of these commenters also while VA has often publicly stated that servicemember’s ability to work. referred to Veterans Health working is not an exclusion criterion, In regards to the Family Caregiver’s Administration (VHA) policy on they are aware of many situations when employment, it is not our intent to Geriatric and Extended Care Services, a Family Caregiver was discharged from prevent Family Caregivers from eligibility for homemaker/home aide or PCAFC because either the veteran or obtaining and maintaining gainful related respite care services and home Family Caregiver worked. We also employment as we are cognizant that hospice services, and an Office of received a similar comment in response the monthly stipend is an Inspector General (OIG) report related to to the definition of inability to perform acknowledgement of the sacrifices made caregivers being incarcerated or an ADL, in which another commenter by Family Caregivers, but may fall short hospitalized. These commenters provide urged VA to include in the PCAFC of the income a Family Caregiver would no further context as to their concerns regulations that employment does not otherwise earn if gainfully employed. related to the definition of ‘‘in need of exclude the veteran or the Family The Family Caregiver may have the personal care services.’’ To the extent Caregiver from PCAFC, and noted they ability to provide the required personal that these comments concern are aware of several instances where care services to the eligible veteran incarcerated or hospitalized veterans participants have been discharged from while maintaining employment. We and caregivers, we refer the commenter PCAFC because of employment. This acknowledge that each Family to the discussion on discharge and commenter further stated that a Caregiver’s situation is unique, such revocations under § 71.45 further below. veteran’s ability to work does not mean that he or she may be able to work from It is unclear why these comments refer that he or she does not need the same home, have a flexible work schedule, or to other VA health care programs, but or higher level of assistance with ADLs have a standard workplace and we note that PCAFC is one of many as those catastrophically disabled schedule. We understand that Family VHA programs available to meet the veterans who are unable to work. Caregivers may not be present all of the

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time to care for the eligible veteran, and serious injuries that improve over time, achievable, or expected. Many veterans we do not expect them to provide care and we want to support such veterans participating in PCAFC will have 24/7. However, they would be required if they are able to recover or improve injuries, conditions, or diseases that to be available to provide the required over time. Furthermore, ‘‘in some cases worsen over time that do not afford personal care services to the eligible a clinician may determine that other them the opportunity for rehabilitation veteran. Thus, we decline to include care and maintenance options would be or improved independence. Others, language to state that employment is not better to promote the [veteran’s or however, may indeed be able to achieve an exclusionary factor for eligibility servicemember’s] functional capabilities a level of increased functioning beyond under part 71, and make no changes and potential for independence.’’ 76 FR their current abilities. We wish to make based on these comments. 26149 (, 2011). We also want to it clear that PCAFC is a clinical emphasize that the potential for program, and the goal of clinical In the Best Interest independence is only one factor that programs is to maximize health and We proposed to revise the current will be considered by VA in well-being. If it is determined that definition of in the best interest to mean determining whether the program is in participation in PCAFC is providing a a clinical determination that the veteran’s or servicemember’s best disincentive for a veteran’s well-being, participation in PCAFC is likely to be interest. We are not making any changes PCAFC may be determined to not be in beneficial to the veteran or based on these comments. the individual’s best interest. Similarly, servicemember, and such determination Several commenters raised concerns we wish to make it clear that when such will include consideration, by a about the definition including potential potential for improved functioning is clinician, of whether participation in for rehabilitation, in particular the ‘‘if not deemed reasonable, the lack of the program significantly enhances the such potential exists’’ language, as some potential does not disqualify an veteran’s or servicemember’s ability to veterans may have little or no potential individual from PCAFC. We make no live safely in a home setting, supports for rehabilitation and should not be changes based on these comments. the veteran’s or servicemember’s excluded from PCAFC. One commenter Several commenters expressed potential progress in rehabilitation, if recommended that while the language concern that eligibility determinations such potential exists, increases the ‘‘if such potential exists’’ provides some are based on a veteran’s ability to veteran’s or servicemember’s potential comfort, new language should be added recover. Commenters further asserted independence, if such potential exists, to more explicitly state that veterans that it is unlawful for VA to deny or and creates an environment that who fail to show improvement will not revoke eligibility based on a standard supports the health and well-being of be excluded from the program. Another that focuses only on those who will the veteran or servicemember. commenter noted that the phrase ‘‘if recover or are likely to recover. While Multiple commenters stated that they such potential exists’’ is confusing as to these commenters did not specifically believe the focus on the potential for whether the program is intended to be provide these comments in the context independence in the proposed permanent or rehabilitative; the of the definition for in the best interest, definition of ‘‘in the best interest’’ is commenter explained the language we believe these comments are best contradictory to the proposed definition implies the program is permanent if the addressed in the discussion of this of ‘‘serious injury,’’ which would potential for independence does not definition. We note that we are not require a service-connected disability exist. One commenter also raised basing eligibility decisions based on a rating of 70 percent or more, and the concerns that this language can lead to veteran’s ability to recover, and PCAFC requirement that the veteran or VA removing veterans from PCAFC eligibility is not dependent on a servicemember be in need of personal when they are benefitting from it due to veteran’s or servicemember’s ability to care services for a minimum of 6 having better access to an advocate for recover. However, we do want to months. One commenter further their medical care. support an eligible veteran if they are explained that contradiction, stating The current definition for in the best able to recover, rehabilitate, or improve that not all serious injuries become less interest includes a consideration of over time. There are many instances in over time and therefore, independence whether participation in the program which an eligible veteran has minimal should not be the highest achievable supports the veteran’s or ability to recover, rehabilitate or goal for PCAFC. The commenter stated servicemember’s potential for improve, and PCAFC will continue to be that focusing on the veteran’s ability for rehabilitation, if such potential exists, available to such veterans and their improvement does not fully and we did not propose any changes to caregivers. We further note that as part acknowledge that a veteran’s condition this part of the definition. Rather, we of this rulemaking, we are extending may never heal or get better over time. proposed to include an additional eligibility to those with progressive First, we note that while the comments consideration of whether participation illnesses (see definition of serious appear to focus on serious injury, we are in the program increases the veteran’s or injury), from which an eligible veteran not requiring that the serious injury be servicemember’s potential may never recover. We make no changes connected to the eligible veteran’s need independence, if such potential exists. based on these comments. for personal care services. Conditions While we appreciate the commenters’ One commenter explained that this other than the serious injury may be the concerns regarding the potential for definition perpetuates a paternalistic reason the eligible veteran has a need rehabilitation, we believe these and condescending approach of how the for personal care services. We agree comments are beyond the scope of this Department should provide care to with the commenters that some eligible rulemaking as we did not propose any veterans, assuming a veteran is veterans may have serious injuries or changes to this part of the definition. incapable of understanding what health other conditions, for which they are in However, we would like to clarify that care is and what is not in their best need of personal care services, that may the use of the phrase ‘‘if such potential interest, and that the veteran is never improve over time, and PCAFC exists’’ is intended to acknowledge that incapable of making their own health will continue to be available to such due to the conditions and impairments care decisions. Additionally, another veterans and their caregivers if eligible. of some participants, a potential for commenter recommended that the However, each individual is unique, rehabilitation or improved definition focus on decision-making and some eligible veterans may have independence may not be reasonable, capacity and competence, and surrogate

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decision making, consistent with VHA be allowed to make the determination of provided the revised definition for the policy regarding informed consent for whether PCAFC is in the best interest public to review and comment on: clinical treatments and procedures. for a veteran or servicemember. In the best interest means, for the purpose Under 38 U.S.C. 1720G(a)(1)(B), VA Specifically, commenters were of determining whether it is in the best ‘‘shall only provide support under concerned that the clinician making the interest of the veteran or servicemember to [PCAFC] to a family caregiver of an determination may not be the treating participate in the Program of Comprehensive eligible veteran if [VA] determines it is physician nor have any prior knowledge Assistance for Family Caregivers under 38 in the best interest of the eligible or experience with the veteran or U.S.C. 1720G(a), a clinical determination that veteran to do so.’’ As stated in VA’s servicemember. Additionally, one participation in such program is likely to be interim final rule establishing part 71, beneficial to the veteran or servicemember. commenter suggested that the Such determination will include VA concludes that determinations of ‘‘in determination should be made with consideration, by a clinician, of whether the best interest’’ must be clinical both the eligible veteran’s primary care participation in the program significantly determinations, guided by VA health doctor and primary provider of care to enhances the veteran’s or servicemember’s professionals’ judgment on what care ensure those who have knowledge of the ability to live safely in a home setting, will best support the health and well- veteran’s needs are involved. As supports the veteran’s or servicemember’s being of the veteran or servicemember. explained throughout this final rule, potential progress in rehabilitation, if such 76 FR 26149 (May 5, 2011). While we CEATs, composed of a standardized potential exists, increases the veteran’s or servicemember’s potential independence, if appreciate the commenters’ concerns group of inter-professional, licensed and suggestions, which seem to concern such potential exists, and creates an practitioners, with specific expertise environment that supports the health and the overall purpose and scope of this and training in the eligibility well-being of the veteran or servicemember. definition, the commenters did not requirements for PCAFC, will make 85 FR 13405 (March 6, 2020) (emphasis specifically address our proposed determinations of eligibility, including added). We are not making any changes changes to this definition regarding the ‘‘in the best interest,’’ and whether the based on these comments. additional consideration of whether veteran is determined to be unable to participation in the program increases self-sustain in the community. Clinical Inability To Perform an Activity of Daily the veteran’s or servicemember’s staff at local VA medical centers will Living (ADL) potential independence, if such conduct evaluations of PCAFC VA proposed to modify its definition potential exists. We make no changes applicants with input provided by the based on these comments. of inability to perform an activity of primary care team to the maximum daily living (ADL) to mean that a One commenter suggested that this extent practicable. This information will definition not focus on the quality of the veteran or servicemember requires be provided to the CEATs for use in personal care services each time he or veteran and caregiver relationship, making eligibility determinations, particularly as it is not appropriate or she completes one or more of the including whether the veteran is ethical to do so, except in circumstances specified ADLs, and would thereby determined to be unable to self-sustain that meet the definition of substantiated exclude veterans and servicemembers in the community for the purposes of abuse or neglect consistent with who need help completing an ADL only PCAFC. As explained in the discussion applicable, related VHA policy on elder some of the time the ADL is completed. on primary care team, we are revising abuse and vulnerable adults. While we VA received numerous comments about the definition of primary care team in appreciate the commenter’s concern, this proposed definition. Many this final rule to ensure that those this definition is not focused on the commenters believe this definition to be medical professionals, including a VA relationship and quality of a veteran’s or too limiting and some suggested a less primary care provider, who care for the servicemember’s relationship with their restrictive definition. Others requested Family Caregiver; rather, it is focused on veteran and have knowledge of the clarification or suggested alternative whether it is in the best interest of the veteran’s needs and treatments, are part approaches. eligible veteran to participate in PCAFC. of the primary care team. We further Several commenters raised concerns The relationship of the veteran or note that any documentation from a with the part of this definition that servicemember and the Family non-VA provider that the veteran or would require that a veteran or Caregiver is considered, but is not a servicemember provides will be servicemember require personal care determining factor when deciding if available to VA for purposes of PCAFC services ‘‘each time’’ he or she participation in PCAFC is in the best evaluation and eligibility completes one or more ADL, and urged interest of the veteran or determinations. We make no changes VA to not impose this requirement. servicemember. We make no changes based on these comments. Specifically, their concerns are that this based on this comment. A few commenters questioned why definition is too limiting, is more Another commenter recommended VA did not provide the proposed restrictive than the current PCAFC, is that the definition be revised to revised definition for in the best interest too narrow to properly evaluate a automatically presume a veteran’s so that the public could review and veteran’s disability and symptoms, and participation in PCAFC is in their best comment. As indicated in the proposed may result in veterans being ineligible interest unless VA determines such rule, the current language in the for PCAFC when they may need more participation is not in their best interest. definition would generally remain; assistance than those who are As previously explained, we did not however, we are replacing the phrase determined eligible. Several propose a new definition for ‘‘in the best ‘‘veteran or servicemember’s’’ with commenters asserted that some veterans interest.’’ Rather, we proposed to add an ‘‘veteran’s or servicemember’s’’ and may not need assistance with one or additional criterion to an already adding that a clinician would also more ADLs each time every day; they existing definition in § 71.15. Therefore, consider whether participation in may only need assistance some or most we believe this comment is beyond the PCFAC ‘‘increases the veteran’s or of the time; and that the assistance scope of this rulemaking and we make servicemember’s potential needed can vary over time, may no changes based on this comment. independence, if such potential exists.’’ fluctuate (even throughout the day, Several commenters expressed 85 FR 13360 (March 6, 2020). based on medication or repeated concern about which clinician should Furthermore, the proposed rule motion, etc.), and can vary based on

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circumstances (e.g., weather, after catastrophically disabled veteran to with our goal of focusing PCAFC on surgery or physical therapy, seasonally). exert even a small level of eligible veterans with moderate and Numerous examples were provided by independence, when possible, and that severe needs. The definition sets forth a commenters of situations in which they because some veterans have spent years consistent, standardized, and clear assert a veteran may need caregiving on and decades striving for a degree of requirement, by specifying that a a regular basis (and potentially more so independence, an ability to infrequently veteran or servicemember requires than others who would qualify under perform ADLs should not disqualify a personal care services each time the the definition) but would not meet the veteran from PCAFC. ADL is completed, regardless of which definition of inability to perform an While we appreciate the commenters’ ADL it is. We believe that the ADL because they do not need concerns, we make no changes based on requirement that assistance be needed assistance every time they perform an these comments, and address them each time the ADL is completed equates ADL. For example, one commenter below. to a veteran or servicemember requiring indicated a veteran with severe First, we note that the definition of a moderate amount of personal care traumatic brain injury (TBI) who has an inability to perform an ADL is an services. Each ADL is treated the same inability to regulate mood, memory loss, objective standard used to evaluate irrespective of the specific tasks or an inability to follow proper hygiene eligibility for PCAFC. This required to complete the ADL or standards may not require assistance determination is specific to PCAFC and frequency with which it is completed. every day, but still requires caregiving does not indicate whether a veteran or Reliance on a Family Caregiver for any on a regular basis. Another commenter servicemember is in need of, and one of the seven ADLs results in a self- asserted that the proposed criteria eligible for, other health care benefits care deficit that affects the veteran’s or ‘‘would discriminate against severely and services. If a veteran or servicemember’s quality of life. disabled veterans with musculoskeletal servicemember does not meet this The definition of an inability to and/or neurological conditions that definition, they may not otherwise be perform an ADL would only be met if limit muscle endurance,’’ that is, eligible for PCAFC. However, it does not a veteran or servicemember needs ‘‘veterans with sufficient muscle force to mean that he or she does not require, or personal care services each time that he complete one ADL instance without is ineligible for, other VA benefits and or she completes an ADL as indicated assistance but due to having to repeat services. For veterans and through a clinical evaluation of the the ADL throughout the course of the servicemembers who are not eligible for veteran’s functional abilities, with input day would eventually require assistance PCAFC, we will assist them, as by the veteran or servicemember and would therefore not be eligible,’’ and appropriate, in considering what other caregiver. We acknowledge the degree of ‘‘would also discriminate against other health care programs may best meet assistance may vary; however, a degree severe disabilities that relapses and their needs. of hands-on assistance will be required remits, or that waxes and wanes, As explained in the proposed rule and each time the ADL is performed. In including mental health and cognitive reiterated here, this definition requires some cases, the degree of assistance that impairments.’’ One commenter asserted that a veteran or servicemember need a veteran or servicemember may need to that this ‘‘all or nothing’’ approach is personal care services each time he or complete the ADL may vary throughout contrary to how health care and she completes any of the ADLs listed in the day. In some instances, the veteran caregiving should be treated, resulting the definition. 85 FR 13360 (March 6, or servicemember may only need in harm to veterans. One commenter 2020). We would not require the veteran minimal assistance completing the ADL, recommended the definition should use or servicemember qualifying for PCAFC but in other instances throughout the ‘‘requires personal care services most of based on an inability to perform an ADL day may require moderate assistance. the time when attempting to complete need personal care services on a daily For example, veterans and one or more of the following . . .’’ or basis. As stated in the proposed rule: servicemembers who have muscle similar language. Other commenters Although the statute refers to an weakness, lack of dexterity, or fine recommended clarifying that required eligible veteran’s inability to perform motor skills, may only need assistance assistance may vary over time or from one or more activities of daily living as with removing clothing when toileting one day to the next. Another commenter a basis upon which he or she can be at the beginning of the day, but later in asserted that the requirement is not deemed in need of personal care the day they may require assistance consistent with VA’s ‘‘long-established services (38 U.S.C. 1720G(a)(2)(C)(i)), with removing clothing, performing acknowledgement that an injury is not we recognize that not all activities of appropriate hygiene and redressing stable and changes,’’ and specifically daily living need to be performed every when completing the task of toileting. cited to VBA’s Schedule for Rating for day. For example, bathing is included in We considered whether we should the musculoskeletal system at 38 CFR the current § 71.15 definition of require the definition of inability to 4.40 and 4.45 in asserting that a veteran ‘‘[i]nability to perform an activity of perform an ADL include daily with functional loss of the daily living,’’ but bathing may not be assistance with an ADL instead of musculoskeletal system may experience required every day. A veteran may be assistance each time an ADL is additional loss of function during able to maintain health and wellness by completed, but we have determined that repeated motions over time and flare- adhering to a less frequent bathing use of daily instead of each time would ups. routine. Id. at 13361. result in less consistency and clarity, as Other commenters requested As we also explained in the proposed it would require us to include clarification on how VA would consider rule, this definition is not met if a exceptions for certain ADLs, such as ADLs that are not completed every day, veteran or servicemember needs help grooming and bathing, that may not be including a commenter who recognized completing an ADL only some of the completed on a daily basis. These that that the frequency with which some time that the ADL is completed. Id. We exceptions would create confusion in ADLs are completed can vary based on believe the proposed definition applying the definition and result in the individual’s clinical needs, such as delineates an objective frequency less consistency and standardization in bathing. requirement that will enable VA to the application of this definition. Some commenters asserted that the operationalize and standardize PCAFC Similarly, we did not define inability definition fails to support efforts by a across the country and is consistent to perform an ADL to require assistance

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with an ADL most or majority of the needs ‘‘may not meet this high as restrictive as the commenters assert it time because we believe such terms are threshold, and the proposed revision will be, we will adjust and revise the too vague and subjective, leading to may exclude vast numbers of veterans definition accordingly in a future inconsistencies in interpretation and from the program,’’ noting that ‘‘even a rulemaking. application. Using most or majority of veteran who needs assistance with an Further, we do not believe that the the time instead of each time would be ADL nine times out of ten would definition of inability to perform an difficult to quantify, and would require nonetheless fail to meet the ADL will exclude vast numbers of us to establish an arbitrary threshold. requirement.’’ Additionally, one veterans and servicemembers from To the extent that a commenter was commenter believed the definition of PCAFC, as there will be veterans and concerned that this definition would inability to perform an ADL to suggest servicemembers who meet this exclude veterans who may need more the program would be limited to definition with regards to only one ADL. assistance than those who cannot veterans requiring 24/7 care, and that 95 We believe requiring assistance with independently accomplish one ADL, we percent of current PCAFC participants one ADL each time such ADL is respectfully disagree for the reasons would fail to qualify based on the performed encompasses a broad and described above. We believe that if a definition of inability to perform an inclusive range of injuries and illnesses veteran or servicemember needs ADL. which may cause an individual to assistance with multiple ADLs, it is We appreciate the concerns raised by require the care and assistance of likely that at least one of those ADLs these commenters and the data provided another. For example, a veteran with Parkinson’s disease who needs requires assistance each time the ADL is by one of the commenters, as these are completed. assistance with grooming each time, but informative. However, we cannot verify Furthermore, the monthly stipend does not need assistance with other that the data provided are accurate. We provided to a Primary Family Caregiver ADLs, may meet this definition. A do not currently track and maintain data under 38 U.S.C. 1720G is not disability veteran who requires assistance donning on how many current PCAFC compensation and it is not designed to prosthetic equipment, but once participants qualify for PCAFC based on supplement or replace the disability equipment is in place is otherwise the current definition of inability to compensation received by the veteran. independent, may also meet this perform an ADL versus the current Therefore, we disagree with the definition. Similarly, a veteran with definition of need for supervision or assertion that this definition must mobility impairment may meet this maintain consistency with the rating protection based on symptoms or definition if he or she requires schedule in 38 CFR part 4, subpart B. residuals of neurological or other assistance with lower body dressing, but Commenters raised concerns that impairment or injury. While inability to is otherwise independent. While some catastrophically disabled veterans perform an ADL is one way in which an veterans may need assistance with more would not meet this definition. We individual can qualify for PCAFC, it is than one ADL, others will not but would assume these commenters are referring not the only way, as individuals may still qualify so long as they need to the definition of catastrophically meet the definition of need for assistance with at least one ADL each disabled veterans as used by VHA in 38 supervision, protection, or instruction time it is performed. CFR 17.36(b). We disagree that (i.e., an individual may have a Contrary to the commenter’s catastrophically disabled veterans will functional impairment that directly statement that PCAFC would be limited inevitably be excluded based upon this impacts his or her ability to maintain to veterans requiring 24/7 care, we note definition. Veterans who are personal safety on a daily basis). We do that it is not our intent that PCAFC be catastrophically disabled are those with know that a majority of current PCAFC limited to only those veterans and a severely disabling injury, disorder, or participants have a mental health servicemembers that require 24/7 care disease that permanently compromises diagnosis amongst their diagnoses, but and we refer the commenter to the their ability to carry out activities of we do not track if that mental health previously-cited examples above. We daily living. See 38 CFR 17.36(e). Some diagnosis is the reason they are eligible further note that we do not expect or veterans with such a designation will be for PCAFC. We do not believe this require Family Caregivers to provide 24/ in need of personal care services based definition of inability to perform an 7 care as part of PCAFC. This definition on an inability to perform an ADL (i.e., ADL will be as restrictive as the would not restrict PCAFC to only those requiring personal care services each commenters assert, but we cannot verify requiring 24/7 care, as this definition time one or more ADLs is completed). if the data provided by the commenters requires that assistance be needed each However, through adaptive equipment, is accurate. This does not change our time the ADL is completed, which we home modifications, or other resources, decision to use the definition of believe equates to a veteran or there may be veterans who do not inability to perform an ADL as we servicemember requiring a moderate require another individual to perform proposed and now make final, as we amount of personal care services. personal care services, or otherwise do find the benefits (e.g., clarity, We make no changes based on these not qualify for PCAFC. VA will evaluate objectivity, consistency) of using this comments. each veteran and servicemember based definition outweigh any potential risks One commenter stated that they on the eligibility criteria set forth in identified by the commenters. We will believe this definition of inability to § 71.20. track and monitor PCAFC participants perform an ADL is more aligned with We are not making any changes based to determine the basis for their the definition of ‘‘incapability’’ rather on these comments. eligibility for PCAFC (i.e., whether it is than ‘‘inability’’ because they interpret One commenter provided data they because he or she has an inability to the definition of inability as collected from veterans concerning the perform an ADL or a need for contemplating degrees along a performance of ADLs and noted that supervision, protection, or instruction) spectrum. This commenter further there were extremely few veterans who moving forward. Additionally, VA will asserted that VA’s definition of inability were completely dependent on also track individuals who apply and to perform an ADL does not align with caregivers to complete ADLs. Another are not eligible based on the definition Congressional intent for PCAFC. While commenter similarly asserted that even of in need of personal care services. If we acknowledge that incapability and veterans with moderate and severe over time we find that this definition is inability may have similar definitions,

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we interpret and define inability to clinical determination that is servicemember does not meet the perform an ADL, as required by 38 comprehensive and holistic, and based definition of inability to perform an U.S.C. 1720G, to mean that the veteran on the whole picture of the individual. ADL, they may be eligible under the or servicemember needs personal care We also note that the care required definition of need for supervision, services each time an ADL is completed. under the definition of inability to protection, or instruction. We are not We believe this interpretation is perform an ADL is hands-on, physical making any changes based on this reasonable and rational, because it will care. If that requirement of hands-on, comment. provide objective criteria for evaluating physical care is not met, a veteran or One commenter stated that this this term and will ensure those with servicemember may still qualify under definition fails to consider the moderate and severe needs are eligible the definition of need for supervision, detrimental effect that delayed care for PCAFC. It is also important to note protection, or instruction, as that would have on the veteran’s or that while ‘‘ability’’ can be considered definition does not require hands-on, servicemember’s health, and further along a spectrum, that does not mean physical care. To the extent that raised concerns with the definition in that ‘‘inability’’ or ‘‘lack’’ of ability must commenters suggested we include need suggesting that it conditions eligibility similarly be considered along a for supervision, protection, or on deterioration of the veteran’s or spectrum. We make no changes based instruction as the level of assistance servicemember’s health, which would on this comment. required for the definition of inability to be detrimental to the veteran or One commenter asserted that VA perform an ADL, we decline to adopt servicemember and create higher health failed to state if the care provided must that suggestion. The definition of need care costs for the VA system. While we be hands-on, physical care to meet the for supervision, protection, or understand the commenter’s concern, definition of inability to perform an instruction already includes a type of we believe that excluding veterans and ADL and recommended VA state that assistance, which we believe would servicemembers who need help assistance can also be in the form of accurately capture veterans with a completing an ADL only some of the supervision, protection, or instruction functional impairment that impacts time he or she completes any of the as the veteran completes each ADL. their ability to maintain their personal ADLs listed in the definition is Relatedly, another commenter, in safety on a daily basis due to an consistent with our goal of focusing addressing the definition of ‘‘need for inability to perform an ADL. PCAFC on eligible veterans with supervision, protection, or instruction,’’ We are not making any changes based moderate and severe needs. As stated in suggested that VA had muddled the on these comments. the proposed rule: statutory language, which the One commenter explained that posttraumatic stress disorder (PTSD) This distinction is especially important for commenter asserted ‘‘neither limits the eligible veterans whose care needs may be inability to perform one or more [ADLs] and TBI can lead to fluctuations in a more complex, particularly as personal care to physical impairments nor excludes veteran’s level of functioning and service needs related to a physical physical impairments from causing the requested VA clearly define what it impairment can evolve over time. For need for supervision or protection.’’ means to require assistance with an example, infrequent assistance may be Other commenters provided examples ADL each time it is completed. The needed in the immediate time period that seemed to confuse the definitions of commenter also requested VA clarify following the onset of a disease (such that the individual needs help completing an ADL ‘‘inability to perform an activity of daily how VA will consistently assess, across VA, a veteran’s inability to perform an only some of the time it’s completed), but living’’ and ‘‘need for supervision, over time and as the individual begins to age, protection, or instruction,’’ which are ADL. This will be a clinical the individual’s care needs can progress. We separate bases upon which an eligible determination based on a clinical would thus distinguish between veterans and veteran can be deemed in need of assessment and evaluation of the servicemembers needing assistance with an personal care services under veteran and include input from the ADL only some of the time from those who § 71.20(a)(3). For example, one Family Caregiver or Family Caregiver need assistance every time the ADL is commenter referred to veterans who applicant. Additionally, we will provide completed, those who we believe have an ongoing education and training to field ‘‘inability’’ to perform an ADL. 85 FR 13361 may not be able to remember to take (March 6, 2020). medication, eat, or bathe unless directed staff and CEATs. We anticipate to do so and supervised. fluctuations in functioning, especially Furthermore, we note that PCAFC is We reiterate from the proposed rule with mental health conditions such as just one of many VA programs available that VA considers inability to perform PTSD, but if such fluctuations mean that to support veterans and his or her an ADL separate from a need for a veteran or servicemember does not caregiver, as VA offers a menu of supervision, protection, or instruction, require personal care services each time supports and services that support and that an inability to perform an ADL an ADL is completed, then the veteran caregivers caring for veterans such as would involve physical impairment, or servicemember would not meet this homemaker and home health aides, while need for supervision, protection, definition. A veteran or servicemember home based primary care, Veteran- or instruction would involve cognitive, could require only a minimal amount of Directed care, and adult day care health neurological, or mental health assistance with an ADL on some care to name a few. In addition, VA impairment. See 85 FR 13363 (March 6, occasions and a lot of assistance with an offers supports and services provided 2020). That does not mean, however, ADL on other occasions. However, they directly to caregivers of eligible veterans that veterans or servicemembers who must require some amount of assistance through PGCSS including access to require assistance with ADLs cannot with an ADL each time. Thus, if the Caregiver Support Coordinators (CSCs) qualify for PCAFC based on a need for veteran or servicemember can complete located at every VA medical center, a supervision, protection, or instruction, the ADL independently and without caregiver website, training and as they may have a functional personal care services, even on remote education offered on-line and in person impairment that directly impacts their occasions, the veteran or servicemember on topics such as self-care, peer support, ability to maintain personal safety on a would not meet the requirement of this and telephone support by licensed daily basis. It is important to note that definition to require assistance ‘‘each social workers through VA’s Caregiver when we evaluate veterans and time’’ with regards to an ADL. However, Support Line. A determination that a servicemembers for PCAFC, we make a we note that if a veteran or veteran or servicemember is not eligible

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for PCAFC would not exclude the determination made and documented by When a patient requires hands-on veteran or servicemember and his or her VA to conduct reassessments on a more assistance from another person; (2) caregiver from receiving VA support or less frequent basis. 85 FR 13379, stand-by assistance: When a patient through alternative support and services 13408 (March 6, 2020). We make no requires someone to be within arm’s as applicable. We are not making any changes based on these comments. reach because the patient’s ability changes based on this comment. One commenter who objected to the fluctuates and physical or verbal One commenter further noted that a definition of ‘‘unable to self-sustain in assistance may be needed; and (3) verbal veteran’s use of an assistive device to the community’’ (discussed further assistance: When a patient requires perform an ADL should not be used below) provided descriptions and verbal instruction in order to complete against them. This same commenter also examples of mobility or transferring, the ADL due to cognitive impairment advocated that inability to perform an feeding or eating, toileting, and shower/ and without these verbal reminders, the ADL should mean that the veteran or bathing, to include descriptions of patient would not remember to perform servicemember is unable to perform an progressive stages of assistance. It is not the ADL. See TSGLI Procedural Guide, ADL at any point of time, and suggested clear what the commenter is Version 2.46 at 19–20 (, 2019). that this could be monitored in the recommending; however, we do not First, we note that TSGLI and PCAFC wellness checks or annual assessment, believe it is necessary for VA to further are two distinct programs with distinct and where assistance is required describe the ADLs listed in this purposes, as TSGLI provides ‘‘monetary indefinitely, a permanent status could definition as the individual needs for assistance to help the member and the each veteran and servicemember are member’s family through an often long be noted in the record. First, use of an unique. It is important to note that the and arduous treatment and assistive device would not alone definition of inability to perform an rehabilitation period.’’ 70 FR 75940 exclude a veteran or servicemember ADL and the list of ADLs are based on ( 22, 2005). TSGLI is modeled from PCAFC. However, we note that to widely-accepted and commonly after Accidental Death and qualify for PCAFC, the veteran or understood definitions of ADL needs in Dismemberment (AD&D) insurance servicemember must be in need of the clinical context. Thus, we find it coverage. Id. These programs also have personal care services, which means, in unnecessary to add any further distinct eligibility criteria. For example, part, that the individual requires in- descriptors, particularly as doing so qualifying losses for TSGLI include, but person care or assistance from another could lead to confusion. are not limited to, total and permanent person. If the veteran’s or We are not making any changes based loss of sight; loss of a hand or foot by servicemember’s needs with respect to on this comment. severance at or above the wrist or ankle; ADLs are met with an assistive device, One commenter asked why certain total and permanent loss of speech; total the individual would not be in need of instrumental activities of daily living and permanent loss of hearing; loss of personal care services based on an (IADL) were not addressed in the thumb and or other four fingers of the inability to perform an ADL. Second, PCAFC eligibility criteria. While we same hand by severance at or above the annual reassessments will include an understand and recognize that many metacarpophalangeal joints; assessment of whether an eligible caregivers may assist with IADLs, we quadriplegia, paraplegia, hemiplegia, veteran has an inability to perform an are required by the authorizing statute uniplegia; certain burns; coma or the ADL, as appropriate, as the eligible to consider ADLs specifically. As stated inability to carry out the ADLs resulting veteran may have improved or in the final rule implementing PCAFC from traumatic injury to the brain. 38 worsened. While VA does not intend to and PGCSS, we believe that Congress U.S.C. 1980A(b)(1); 38 CFR 9.20(f). assess PCAFC eligibility through specifically considered and rejected the While TSGLI does provide payments for wellness contacts, including whether an use of the term ‘‘instrumental activities an inability to carry out ADLs, those are eligible veteran has an inability to of daily living’’ in the Caregivers Act. limited to where that inability results perform an ADL, the need for a See 80 FR 1357, at 1367 ( 9, from traumatic injury, including reassessment may be identified through 2015). Moreover, in section 162(b)(1) of traumatic brain injury, and coma. See 38 a wellness contact. VHA is not imposing the VA MISSION Act of 2018, Congress U.S.C. 1980A; 38 CFR 9.20(f)(17) and the ‘‘each time’’ requirement for replaced the term ‘‘independent (20). Additionally, inability to carry out purposes of oversight. We believe activities of daily living’’ with the term ADLs is defined in section 1980A to recurring reassessment and wellness ‘‘activities of daily living’’ in the mean the inability to independently checks are appropriate regardless of the statutory definition of ‘‘personal care perform two or more of the following six frequency with which an eligible services’’ in 38 U.S.C. 1720G(d)(4) functions: Bathing, continence, veteran is in need of personal care removing any doubt regarding the scope dressing, eating, toileting, and services. The ‘‘each time’’ requirement of the term ‘‘activities of daily living.’’ transferring. 38 U.S.C. 1980A(b)(2)(D). is solely for the purposes of determining We are not making any changes based Under PCAFC, a veteran with TBI whether a veteran or servicemember on this comment. could be considered to be in need of meets the definition of inability to One commenter recommended VA personal care services; that is, because perform an ADL. As discussed below use the guidance set forth in a of either physical disabilities resulting with respect to other commenters who procedural guide for the administration in an inability to perform an ADL, or a advocated for a permanent designation, of the Servicemembers’ Group Life cognitive, neurological, or mental health we will not designate individuals as Insurance Traumatic Injury Protection impairment resulting in a need for permanently eligible for PCAFC in their (TSGLI) program, which is authorized supervision, protection, or instruction. medical records, even for eligible under 38 U.S.C. 1980A. Specifically, in Stand-by and verbal assistance are veterans who are expected to need the context of determining whether an covered under the need for supervision, assistance indefinitely; however, there individual has a loss of ADL, the TSGLI protection, or instruction definition. would be documentation of the eligible procedural guide states that the member Thus, we do not believe it is necessary veteran’s on-going needs in the medical must require assistance to perform at to add these under the definition of record. Additionally, we note that the least two of the six ADLs. The TSGLI inability to perform an ADL. frequency of reassessments would be procedural guide defines ‘‘requires As we explained in the proposed rule, annually, unless there is a assistance’’ as: (1) Physical assistance: rather than quantifying losses, PCAFC is

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designed to support the health and well- individual is ‘‘substantially confined as Discharge of Family Caregivers, and being of eligible veterans, enhance their a direct result of service-connected refer the commenters to the discussion ability to live safely in a home setting, disabilities to his or her dwelling and below regarding discharge due to and support their potential progress in the immediate premises’’ for purposes incarceration under section § 71.45. rehabilitation, if such potential exists. of housebound status, see 38 CFR Joint Application Unlike TSGLI, which is limited to lump- 3.350(i)(2), does not correlate directly sum monetary assistance, PCAFC with the more objective ADL criteria we One commenter raised concerns about provides eligible Family Caregivers with proposed for PCAFC eligibility. the definition of joint application, in training and technical support to assist Consequently, the part 3 criteria fail to particular that an application is Family Caregivers in their role as a provide the level of objectivity VA seeks considered incomplete when all caregiver for an eligible veteran. in order to ensure that its caregiver mandatory sections are not completed, Additionally, we note that the program is administered in a fair and since many veterans may not be able to monthly stipend provided to a Primary consistent manner for all participants, easily access information due to the Family Caregiver under 38 U.S.C. 1720G and we do not believe criteria for those passage of time or may have health is part of a clinical program rather than benefits should be a substitute for a issues that make it difficult or a rider to an insurance policy, thus we clinical evaluation of whether a veteran impossible to complete the application do not believe that this definition must or servicemember is eligible for PCAFC without assistance. This commenter also maintain consistency with TSGLI. We due to an inability to perform an ADL opined that delays will still result as VA are not making any changes based on as set forth in § 71.15. We believe that will need to inform applicants that their this comment. in order to ensure that PCAFC is applications are incomplete. While this One commenter recommended that implemented in a standardized and commenter noted that, pursuant to 38 VA not evaluate inability to perform an uniform manner across VHA, each CFR 21.1032, VA has a duty to assist ADL for those veterans receiving Special veteran or servicemember must be veterans in obtaining evidence in claims Monthly Compensation (SMC) for evaluated based on the eligibility for other VA benefits, they suggested VA housebound status or aid and criteria in § 71.20. To that end, VA will adopt a less punitive approach by attendance, as they have already been utilize standardized assessments to instituting a process that includes certified by both medical providers and evaluate both the veteran or notifying the applicant as promptly as VBA to be in need of another person to servicemember and his or her identified possible that their application is perform an ADL, thereby suggesting that caregiver when determining eligibility incomplete. By defining the joint veterans in receipt of such benefits for PCAFC. It is our goal to provide a application to mean an application that should be considered to meet the program that has clear and transparent has all fields within the application ‘‘inability to perform an activity of daily eligibility criteria that is applied to each completed, including signature and date living’’ definition for purposes of and every applicant. Additionally, we by all applicants, and providing for PCAFC eligibility. SMC for aid and do not believe it would be appropriate certain exceptions within the definition, attendance is payable when a veteran, to consider certain disability ratings as it was not VA’s intent to create a burden due to mental or physical disability, a substitute for a clinical evaluation of on veterans and caregivers; rather we requires the regular aid and attendance whether a veteran or servicemember has are establishing the date on which VA of another person. 38 U.S.C. 1114(l), (r); an inability to perform an ADL, as not can begin evaluating the applicants’ 38 CFR 3.350(b), (h). SMC for all veterans and servicemembers eligibility for PCAFC. As stated in the housebound status is payable when a applying for or participating in PCAFC proposed rule, the required fields are veteran, due to mental or physical will have been evaluated by VA for such necessary for VA to begin evaluating the disability, has a service-connected ratings, and because VA has not eligibility of veterans and disability rated as total and (1) has considered whether additional VA servicemembers and their family additional service-connected disability disability ratings or other benefits members for PCAFC. The date the joint or disabilities independently ratable at determinations other than those application received by VA is also the 60 percent or more, or (2) by reason of recommended by the commenters may date on which certain PCAFC benefits service-connected disability or be appropriate for establishing that a are effective (unless another date disabilities, is permanently veteran or servicemember has an applies under § 71.40(d)). It would not housebound. 38 U.S.C. 1114(s); 38 CFR inability to perform an ADL for be reasonable to provide PCAFC 3.350(i). Section 3.352 of title 38, CFR, purposes of PCAFC. We are not making benefits back to the date an incomplete provides criteria for determining the any changes based on this comment. application is received by VA; we need need for regular aid and attendance, a complete application. This is a which include inability to perform Institutionalization common requirement for the ADLs such as dressing, eating, and Several commenters opposed the administration of benefits and services. continence, or requiring supervision or inclusion of jail or prison in the We further note that the information protection on a regular basis, for proposed definition of required within the application (i.e., purposes of determining eligibility for institutionalization. Specifically, names, address of veteran’s or SMC and special monthly pension. commenters stated this definition servicemember’s residence, dates of While the eligibility requirements for conflicts with the common use of the birth, certifications, and signatures) is SMC referenced by the commenter may term by health care providers and other specific to the veteran and caregiver and seem similar, they are not synonymous VHA and federal programs. is information they would have readily with VA’s definition of ‘‘inability to Furthermore, commenters raised available. They are not required to perform an ADL.’’ The regulatory concerns about the application of this further submit other supporting criteria for aid and attendance under 38 definition in 38 CFR 71.45(b)(1) and (2) documentation that they may not have CFR 3.352(a) provide that inability to (related to discharge of the Family readily available, such as a DD–214 or perform certain specified ADLs ‘‘will be Caregiver due to the eligible veteran or medical records, as part of the accorded consideration in determining Family Caregiver, respectively). We note application. As mentioned, the the need for regular aid and that this definition will only be used in mandatory information should be attendance.’’ Further, whether an the context of § 71.45, Revocation and readily available to them and the

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application should be relatively easy to the needs of injured veterans and their Family Caregiver. This definition of complete. However, if assistance with caregivers. We have the authority to legal services excludes assistance with the application is needed, caregivers further define this term, and did so in matters in which the eligible veteran or and veterans can ask VA staff for help, the proposed rule. Through a Federal Primary Family Caregiver is taking or guidance, and support, and we will Register Notice published on has taken any adversarial legal action assist applicants as needed. In the 27, 2018, we solicited feedback from the against the United States government, application, we will include public in order to develop this and disputes between the eligible instructions that will provide definition, and we also held meetings veteran and Primary Family Caregiver. information on requesting assistance and listening sessions to obtain input We make no changes to the definition with filling out the form, and various from stakeholders. The responses based on this comment, but will VA touchpoints including the National received were varied, as we explained continue to assess the need for legal Caregiver Support line, VA’s website, in the proposed rule. See 85 FR 13362 services by Family Caregivers to and a link to VA’s Caregiver Support (March 6, 2020). For example, some determine if VA should propose Coordinator (CSC) locator. We also note feedback acknowledged the potential for changes to the definition in the future. that it has been our practice to contact conflicts of interest between the eligible Another commenter similarly praised the caregiver and veteran when veteran and Family Caregiver regarding VA for the inclusion of assistance with advanced directives, power of attorney, applications are incomplete, and we certain legal issues, including divorce or simple wills, and guardianship; will continue to do so. Additionally, we child custody, while other feedback educational opportunities on legal will consider inclusion in policy of specified that legal services should topics relevant to caregiving; and requirements for prompt notification in include advanced directives, power of instances of incomplete applications. referrals to community resources and attorney, wills, and guardianship. Id. attorneys for legal assistance or While we understand the commenter’s We considered the feedback received concerns and appreciate the suggested representation in other legal matters. We and, consistent with that feedback, we appreciate the comment and are not changes, we make no changes to the defined legal services to include regulations based on this comment. making any changes based on this assistance with advanced directives, comment. Legal Services power of attorney, simple wills, and One commenter asked for clarification One commenter asserted that VA’s guardianship; education on legal topics on whether legal services would be proposed definition of legal services is relevant to caregiving; and a referral available regarding family members of inconsistent with 38 U.S.C. 1720G and service for other legal services. Id. We the Family Caregiver and eligible the VA MISSION Act of 2018. This determined this would be the most veteran, such as children. While the commenter specifically stated that appropriate way to define legal services, benefit is for the Primary Family ‘‘instead of creating a program which as this would allow us to provide Caregiver, a family member of the would provide free, broadly accessible assistance with the most common Primary Family Caregiver and the legal services to PCAFC veterans and matters that Family Caregivers face in eligible veteran may indirectly benefit their caregivers that covers a broad providing personal care services to from the legal services. However, they range of civil legal issues, including full eligible veterans (i.e., advanced are not directly eligible for the benefit representation matters where warranted, directives, power of attorney, simple if they are not approved and designated the proposed regulations impose a set of wills, and guardianship), providing as the Primary Family Caregiver. We arbitrary limits on the types of matters education on legal topics relevant to make no changes based on this to be covered.’’ While this commenter caregiving, and a referral service for comment. acknowledged that there are existing other legal services. As explained in the Another commenter questioned why programs that provide legal services to proposed rule, this definition would legal services will be available to veterans, servicemembers, and their address these important needs, while caregivers, whether it is indicative of a families, the commenter asserted that also being mindful of VA resources. Id. deeper problem, and asked what such programs are insufficient; and Paying for legal services for matters precautions and safety nets will be put inclusion of legal services in the VA other than those described in the in place to ensure veterans are not MISSION Act of 2018 recognized the definition would be cost prohibitive and exploited or abused. As stated in the need for legal services by PCAFC may limit our ability to provide the proposed rule, we are adding this term veterans and their caregivers. This same level of services to as many Family to address changes made to 38 U.S.C. commenter praised VA for including Caregivers as possible, and would not be 1720G by the VA MISSION Act of 2018. preparation and execution of wills and focused on those matters that Family Specifically, the VA MISSION Act of other advance directives, but Caregivers most commonly face in 2018 added legal services as a benefit recommended VA expand the definition providing personal care services to for Primary Family Caregivers. to include free legal services, and full eligible veterans. Providing limited legal Accordingly, legal services will be representation as warranted, in areas of assistance, education, and referrals added to the benefits available to law where veterans and caregivers would ensure we consistently provide Primary Family Caregivers under commonly face issues, including an equitable level of legal services to all § 71.40(c)(6). Similar to financial affordable housing, eviction and Primary Family Caregivers. As we planning services, we will include in foreclosure, consumer debt, access to explained in the proposed rule and any contracts requirements such as and maintaining local and federal reiterate here, we will provide as legal minimum degree attainment and government benefits, and family law. services assistance with advanced certifications for individuals providing We do not agree that the definition of directives, power of attorney, simple legal services, as well as mechanisms legal services is inconsistent with our wills, and guardianship; education on that would prohibit exploitation or statutory authority, as 38 U.S.C. 1720G, legal topics relevant to caregiving; and abuse of caregivers and veterans (e.g., as amended by the VA MISSION Act of a referral service for other legal services. prohibit any form of compensation from 2018, did not define this term further These services would be provided only the eligible veteran or Family Caregiver than to state that legal services included in relation to the personal legal needs of for the services provided) and that allow legal advice and consultation, relating to the eligible veteran and the Primary us to take any appropriate actions

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necessary to address related breach of commenter stated that the ‘‘daily basis’’ may not need supervision, protection, or contracts. We note that the contractors requirement will place an undue hurdle instruction continuously during the day, would be responsible for any liability on veterans otherwise eligible for but would need such personal care arising from legal services provided. PCAFC. Another commenter opined that services on a daily basis, even if just Further, contractors are not VA the definition is too restrictive, intermittently each day. See 85 FR employees and therefore not covered by particularly as a veteran with ‘‘severe 13364 (March 6, 2020). This the Federal Tort Claims Act. We also TBI may have symptoms that affect their requirement for daily personal care plan to provide resources to the Family function in a major way, but does not services under the definition of ‘‘need Caregiver to report any concerns of require assistance with functioning for supervision, protection, or abuse or exploitation that may arise in every day,’’ which does not diminish instruction’’ was also referenced in the the course of receiving the legal their need for caregiving on a regular context of explaining the definition of services, such as links to State and local basis. Additionally, commenters inability to perform an ADL, which does bar discipline reporting sites, as questioned how we would not require the veteran or appropriate. We make no changes based operationalize this definition, as servicemember need daily personal care on this comment. individuals may have daily a potential services. See id. at 13361. need for supervision, protection, or By focusing the definition of need for Monthly Stipend Rate instruction but intervention may only be supervision, protection, or instruction Several commenters expressed required a few times a week. on individuals who require personal concern about VA’s definition of As indicated in the proposed rule, we care services on a daily basis, we will monthly stipend rate. Specifically, some would define need for supervision, help ensure that PCAFC targets eligible commenters believe it is too high, some protection, or instruction to mean an veterans with moderate and severe believe it is too low, and others disagree individual has a functional impairment needs. While we acknowledge that with using the Office of Personnel that directly impacts the individual’s veterans with needs at a lower level may Management’s (OPM) General Schedule ability to maintain his or her personal also benefit from the assistance of (GS) scale. We note that this definition safety on a daily basis. 85 FR 13363 another individual, we believe PCAFC will only be applied in the context of 38 (March 6, 2020). We revised the was intended to support those with CFR 71.40(c), Primary Family Caregiver definition because we found the term moderate and severe needs. For benefits. Therefore, we address the ‘‘need for supervision or protection applicants that apply to PCAFC and do comments in the section below based on symptoms or residuals of not qualify, VA will assist the applicant regarding § 71.40. neurological or other impairment or in identifying and making referrals to Need for Supervision, Protection, or injury’’ and its definition unduly other available resources that may meet Instruction restricted our ability to consider all their needs. Thus, we do not believe functional impairments that may impact that the ‘‘daily basis’’ requirement in the VA’s proposed rule added ‘‘need for a veteran’s or servicemember’s ability to definition creates an ‘‘undue hurdle’’. supervision, protection, or instruction’’ maintain his or her personal safety on Also, as we explained above, we are as a new term and basis upon which a a daily basis. Id. Contrary to some of the broadening the definition beyond a veteran or servicemember can be comments, it was not our intent to predetermined list of impairments, deemed in need of personal care narrow and restrict eligibility with this which will remove an existing barrier services under § 71.20(a)(3). This term change, and we believe that these for many veterans and servicemembers and its definition serve to implement revisions will broaden the current who would meet the definition of need the statutory phrases ‘‘a need for criteria since it will no longer be limited for supervision, protection, or supervision or protection based on to a predetermined list of impairments. instruction but do not have one of the symptoms or residuals of neurological Additionally, the revised definition will listed impairments in the current or other impairment or injury’’ and ‘‘a be consistent with our goal of focusing regulation. need for regular or extensive instruction PCAFC on eligible veterans with As part of this discussion, we would or supervision without which the ability moderate and severe needs. Id. at 13364. like to further correct and clarify the of the veteran to function in daily life As we indicated in the proposed rule, meanings of daily and continuous for would be seriously impaired’’ in clauses ‘‘[w]hether a veteran or servicemember purposes of the terms need for (ii) and (iii) of section 1720G(a)(2)(C) of would qualify for PCAFC on this basis supervision, protection, or instruction, title 38, U.S.C. VA received numerous would depend on whether his or her and unable to self-sustain in the comments about this proposed functional impairment directly impacts community, respectively. We note that definition. Some commenters supported the individual’s ability to maintain his those who have a need for supervision, the definition, while others believed it or her personal safety on a daily basis.’’ protection, or instruction on a is too restrictive or disagreed with VA’s Id. continuous basis would meet the interpretation of the statutory Some commenters raised concerns definition of unable to self-sustain in requirements, and others requested VA about the reference to ‘‘daily’’ in this the community for purposes of the provide clarification. definition, and we agree that additional monthly stipend payment. Commenters stated that quantifying clarification is needed. While ‘‘daily The terms daily and continuous relate the amount of time for supervision basis’’ in the definition refers to the to the frequency with which needed under this definition is difficult, individual’s ability to maintain personal intervention is required in order to and that some veterans may need safety, most individuals determined to maintain an individual’s personal safety constant supervision because of their qualify on this basis will also require that is directly impacted by his or her health conditions. Commenters also personal care services from a caregiver functional impairment. PCAFC is a requested VA clarify the frequency with on a daily basis. The proposed rule was clinical program and as such the which a veteran would need not clear in this regard, but it did allude determination of whether the frequency supervision, protection, or instruction to such individuals requiring personal of intervention is daily or continuous is for purposes of PCAFC eligibility. One care services on a daily basis. For a clinical decision. Clinical decision commenter opined that the definition is example, we explained that a veteran or making is highly individualized based extremely narrow in scope. Another servicemember meeting this definition on the specific needs of the individual

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veteran or servicemember. As for dressing each morning, which is a supports and services that supports previously stated, it is important to note planned intervention. In addition, caregivers caring for veterans such as that when we evaluate veterans and because of the demonstrated pattern of homemaker and home health aides, servicemembers for PCAFC, we make a wandering outside the home at various home based primary care, Veteran- clinical determination that is and unpredictable times, the veteran Directed care, and adult day care health comprehensive and holistic, and based cannot function safely and care to name a few. In addition, VA on the whole picture of the individual. independently in the absence of a offers supports and services provided Factors VA will consider when caregiver. The Family Caregiver actively directly to caregivers of eligible veterans evaluating the frequency of intervention intervenes through verbal and physical through PGCSS including access to required, specifically daily or redirection multiple times during the CSCs located at every VA medical continuous, include the factors set forth day. This veteran would have a center, a caregiver website, training and in 38 U.S.C. 1720G(a)(3)(C)(iii)(II) and continuous need for an active education offered online and in person (III), that is, the ‘‘extent to which the intervention to ensure his or her daily on topics such as self-care, peer support, veteran [or servicemember] can function safety is maintained. Such veteran may and telephone support by licensed safely and independently in the absence meet the definition of unable to self- social workers through VA’s Caregiver of such supervision, protection, or sustain in the community because of a Support Line. instruction,’’ and the ‘‘amount of time need for supervision, protection, or We are not making any changes based required for the family caregiver to instruction on a continuous basis. on this comment. provide such supervision, protection, or We make no changes based on these Several commenters raised concerns instruction to the veteran [or comments. about how this definition incorporates servicemember].’’ One commenter expressed concern mental health conditions, cognitive In addition to frequency, VA that the proposed definition would impairments, and ‘‘invisible injuries’’ determinations of whether a veteran or exclude from PCAFC veterans who (e.g., TBI, PTSD, mental illness), servicemember is in need of require minimal assistance with particularly related to veterans with supervision, protection, or instruction, supervision and provided an example of conditions that may not meet the and whether such need is on a a veteran who can be alone, but would definition of inability to perform an continuous basis for purposes of the need to call his or her caregiver to be ADL. As we stated in the proposed rule, higher-level stipend, which are clinical talked down when they begin to spiral determining eligibility on the basis of determinations, also account for the or have an episode. As previously this definition would not focus on the degree of intervention required to explained, we are standardizing PCAFC individual’s specific diagnosis or support the safety of the veteran or to focus on eligible veterans with conditions, but rather whether the servicemember. Individuals whose moderate and severe needs. If a veteran veteran or servicemember has functional impairment directly impacts or servicemember does not have a impairment in functioning that directly their personal safety on a daily basis functional impairment that directly impacts the individual’s ability to generally require at least one active impacts the individual’s ability to maintain his or her personal safety on intervention each day. In contrast to maintain his or her personal safety on a daily basis and thus requires passive interventions that may include a daily basis (or have an inability to supervision, protection, or instruction the mere proximity of a caregiver, active perform an ADL), they would not from another individual. 85 FR 13364 intervention requires the caregiver to be qualify for PCAFC. In addition, the (March 6, 2020). We further provided actively involved and engaged in definition of in need of personal care examples to include an individual with providing supervision, protection, or services specifies that the eligible schizophrenia who has active instruction. Whether the need is daily or veteran requires in-person personal care delusional thoughts that lead to unsafe continuous will also depend on the services, among other requirements. We behavior, and an individual with individual’s demonstrated pattern of note that PCAFC is intended to focus on dementia who may be unable to use the need. veterans with moderate and severe appropriate water temperature when For example, an eligible veteran with needs who need the assistance of a taking a bath and may thus require step- moderate cognitive impairment may Family Caregiver, and is not intended to by-step instruction or sequencing to need a Family Caregiver to provide step- be a program for individuals who may maintain his or her personal safety on by-step instruction when dressing in the only need a minimal amount of a daily basis. Individuals with TBI or morning and in the evening. Such active assistance. Further, this definition is not mental health conditions may also intervention is required on a daily basis, intended to cover the potentiality that qualify for PCAFC on this basis. For takes a finite amount of time, and the someone may have a need for example, a veteran or servicemember veteran can maintain their personal supervision, protection, or instruction at with TBI who has cognitive impairment safety without additional active some point in the future, but rather resulting in difficulty initiating and interventions from a caregiver for the instead is meant to cover those completing complex tasks, such as a remainder of the day. This veteran may servicemembers and veterans who have grooming routine, may require step-by- be found to meet the definition of ‘‘need a demonstrated pattern of having a need step instruction in order to maintain his for supervision, protection, or for supervision, protection, or or her personal safety on a daily basis. instruction.’’ In contrast, an eligible instruction. Additionally, eligibility on the basis of veteran with advanced cognitive For individuals who do not meet this definition may result from multiple impairment may require supervision, these requirements, including an conditions or diagnoses. Therefore, we protection, or instruction on a daily individual who does not require in- believe this definition incorporates basis due to the need for step-by-step person personal care services but mental health conditions, cognitive instruction in dressing each morning instead requires only minimal impairments, and ‘‘invisible injuries’’ and because of a demonstrated pattern assistance through an occasional or even (e.g., TBI, PTSD, mental illness). We are of wandering outside the home at daily phone call, there may be other VA not making any changes based on these various times throughout the day. In health care programs and services that comments. this example, the Family Caregiver would help meet their needs and those One commenter was specifically would provide step-by-step instruction of their caregivers. VA offers a menu of concerned that an individual with

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dementia who is forgetful or misplaces they set up a point of confusion in what comprehensive list of functions in items but can adapt and manage elements are to be considered and not which a veteran or servicemember may successfully without compromising his considered. This commenter further experience impairment. We also note or her personal safety on a daily basis asserted that any assessment tool used that the reasons a functional impairment may not qualify for PCAFC under this to determine PCAFC eligibility would will directly impact an individual’s definition. Another commenter inquired have to define the elements considered ability to maintain his or her personal into whether an individual who is 100 for supervision, protection, and safety on a daily basis will vary (e.g., percent service-connected disabled due instruction, and asked why VA did not due to memory loss, delusion, to PTSD will qualify under this define those elements in the regulation. uncontrolled seizure disorder). How an definition if the individual does not Another commenter asserted that individual’s ability to maintain his or meet the inability to perform an ADL although the characterization of being her personal safety is impacted by his or definition. Relatedly, this commenter unable to self-sustain in the community her functional impairments will vary stated that this definition needs to be is relatively clear, it appears likely that based on those impairments and better defined for mental health eligibility for the lower tier stipend will diagnoses. In the regulation, we would conditions or cognitive impairments be contentious for both VA and not list the elements to be considered as when that person does not have a veterans’ families, and the definition of doing so could potentially be more specific ADL deficit. As explained need for supervision, protection, or restrictive than intended. These are above, eligibility on this basis is focused instruction should be clarified further if clinical decisions that are dependent on on whether the veteran or the program is to serve its targeted each individual’s unique situation and servicemember has an impairment in population. Furthermore, the it would be impractical for the functioning that directly impacts the commenter asserted that VA’s regulation to list and account for every individual’s ability to maintain his or explanation that a veteran or functional impairment that may directly her personal safety on a daily basis and servicemember meeting this criterion impact an individual’s ability to thus requires supervision, protection, or may only need such personal care maintain his or her personal safety on instruction from another individual, services intermittently each day opens a daily basis. As explained above, we rather than a specific diagnosis or the door to a variety of interpretations would require that a veteran or condition. The definition of ‘‘need for and increases the potential for complex servicemember have a functional supervision, protection, or instruction’’ and time-consuming eligibility impairment that directly impacts his or is consistent with our goal of focusing decisions. The commenter also her ability to maintain personal safety PCAFC on eligible veterans with questioned if a caregiver reminding on a daily basis, but the type, degree, moderate and severe needs. Thus, for an one’s spouse that he or she has an and frequency of intervention may vary. individual who is forgetful or misplaces upcoming appointment constitutes We would not define the terms ‘‘on a items but does not have a functional instruction and if it should be daily basis, even if just intermittently impairment that directly impacts his or considered indicative of a severe each day’’ and ‘‘ability to maintain his her ability to maintain personal safety impairment in functioning, in the or her personal safety’’ because this a on a daily basis (and who is not absence of any objective cognitive clinical program, and how these criteria determined to be in need of personal deficits. are met will vary based on each veteran’s or servicemember’s unique care services based on an inability to First, we disagree with the situation. The phrase ‘‘on a daily basis, perform an ADL), there may be other VA commenters who believe that this even if intermittently each day’’ in the programs and resources available to definition is vague. While we broadened proposed rule was used to clarify that a meet the individual’s needs. An this definition to remove the veteran or servicemember may require individual with 100 percent service- predetermined list of functional supervision, protection, or instruction connected disability due to PTSD may impairments associated with ‘‘need for when completing certain tasks but may be eligible under this definition if the supervision or protection based on not require a caregiver to be present the individual has a functional impairment symptoms or residuals of neurological remainder of the day. We further refer that directly impacts his or her ability or other impairment of injury,’’ so that the commenters to the earlier discussion to maintain his or her personal safety on ‘‘need for supervision, protection, or in this section regarding VA’s clinical a daily basis. We are not making any instruction’’ can cover more diagnoses assessment of whether a veteran or changes based on these comments. and conditions, we believe the revised servicemember has a need for Several commenters requested VA definition is specific enough to allow us supervision, protection, or instruction, provide clarification about this to make objective determinations about and whether such need is continuous definition, including a commenter who whether a veteran or servicemember has for purposes of the definition of ‘‘unable noted that this definition is vague. One a need for supervision, protection, or to self-sustain in the community.’’ commenter suggested that VA define the instruction, consistent with the We provided many examples in the terms ‘‘on a daily basis, even if just authorizing statute and intent of PCAFC. proposed rule to explain the phrase intermittently each day’’ and ‘‘ability to When assessing personal care needs, VA ‘‘ability to maintain his or her personal maintain his or her personal safety’’ to will assess and document the support safety,’’ and added a further example ensure consistent implementation. One the veteran or servicemember needs to above regarding an individual with TBI. commenter asserted that VA proposed maintain personal safety, if such needs These examples were provided to no objective criteria for supervision, exist, and the frequency with which he illustrate situations in which a veteran protection, or instruction, and another or she requires interventions by the or servicemember may require another commenter suggested that VA failed to caregiver. This will include individual to provide supervision, provide an objective operational consideration of, among other factors, protection, or instruction to ensure the definition of need for supervision, the veteran’s or servicemember’s veteran or servicemember is able to protection, or instruction. One functional ability as it relates to such maintain his or her personal safety on commenter indicated that while the things as: Medication management, self- a daily basis. supervision, protection, and instruction preservation, safety, and self-direction. Furthermore, we provided examples standards need to be more inclusive, We recognize this is not a of when an individual may not be in

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need of supervision, protection, or such that veterans and servicemembers based on the clinical needs of the instruction, to include ‘‘an individual with impairments not listed in the patient. We also proposed to remove the with dementia who is forgetful or current definition who may otherwise reference to the primary care team in misplaces items but can adapt and meet the definition of need for various sections, including current manage successfully without supervision, protection, or instruction §§ 71.20(c) and (d), 71.20(g), compromising his or her personal safety may be eligible for PCAFC. This change 71.25(c)(1)–(2), 71.25(f), and 71.40(b)(2). on a daily basis (e.g., by relying on lists will allow us to consider additional Instead, we would reference primary or visual cues for prompting).’’ 85 FR impairments that are not listed in the care team in one section, § 71.25(a)(2)(i), 13364 (March 6, 2020). We also note current definition. Additionally, as we to state that PCAFC eligibility that a veteran whose only need from a explained in the discussion on the evaluations being performed in caregiver is to be reminded of definition of inability to perform an collaboration with the primary care appointments or to take medications, ADL, it may be the assistance needed for team to the maximum extent would likely not be determined to be in an ADL that results in a need for practicable. need of personal care services based on supervision, protection, or instruction. We received comments on the a need for supervision, protection, or We disagree with the commenters that definition of primary care team, the role instruction, as that alone would not combining clauses (ii) and (iii) of 38 of the primary care team in PCAFC demonstrate that the veteran or U.S.C. 1720G(a)(2)(C) is not consistent processes, and the centralized eligibility servicemember requires in-person with the statute and Congressional and appeals teams, which are addressed personal care services from another intent. As we explained in the proposed below. rule, we combined these two bases for person, and without such personal care Primary Care Team Definition services, alternative in-person PCAFC eligibility because we believe caregiving arrangements would be these two bases capture the personal We received multiple comments required, based on a functional care service needs of veterans and stating that the proposed definition of impairment that directly impacts the servicemembers with a significant ‘‘primary care team’’ is too broad and individual’s ability to maintain his or cognitive, neurological, or mental health requested that the definition remain the her personal safety on a daily basis. impairment, as opposed to an inability same or be more specific with regard to We make no changes based on these to perform an ADL, which covers which type of VA medical professional comments. physical impairments. 85 FR 13363 would serve on the primary care team One commenter took issue with VA (March 6, 2020). We sought input from for a veteran or servicemember. combining 38 U.S.C. 1720G(a)(2)(C)(ii) the public on how to differentiate and Specifically, the commenters raised and (iii) under one term and asserted define these two bases in a Federal concerns that the proposed definition that retaining the previous basis of Register Notice that was published on would not require the primary care team ‘‘need for supervision or protection , 2018. See 83 FR 60966 to include a physician, nurse based on symptoms or residuals of (November 27, 2018). We also held practitioner, or physician assistant to neurological or other impairment or meetings with various stakeholders from oversee the care of the veteran or injury’’ and its associated definition and through May of 2019. We servicemember but rather would allow adding a new definition for ‘‘need for appreciate the feedback we received any medical professional who is regular or extensive instruction or from these efforts. However, we did not licensed or certified to provide health supervision without which the ability of receive any meaningful care services such as nurses, hospice the veteran to function in daily life recommendations in addition to what workers, emergency medical would be seriously impaired’’ would we had identified and considered technicians, optometrists, social better align with Congressional intent. internally for defining these bases. We workers, clinical dietitians, Relatedly, one commenter stated that were unable to distinguish them in a occupational or physical therapists, and VA did not provide data, or sufficient meaningful way and determined that other trained caregivers. Commenters information and analysis to justify the most logical approach was to asserted that the lack of specificity combining clauses (ii) and (iii) of 38 broaden the current definition of ‘‘need would result in no requirement for any U.S.C. 1720G(a)(2)(C). This commenter for supervision or protection based on type of medical evaluation encounter to asserted that this definition is symptoms or residuals of neurological determine if personal care services are incongruent with the plain reading of or other impairment or injury’’ under a medically necessary during the the law and Congressional intent, which new term that would also capture evaluation of the joint application, and the commenter stated requires VA veterans and servicemembers who have referred to evaluation and management utilize at least three separate eligibility ‘‘a need for regular or extensive guidelines that require services to be criteria to serve as the bases upon which instruction or supervision without rendered by a physician or other a veteran or servicemember can be which the ability of the veteran to qualified health care professional who deemed in need of personal care function in daily life would be seriously may report evaluation and management services. impaired.’’ We further note that in services. We address these comments As indicated in the proposed rule, we response to this proposed rule, while below. believe that the current definition for some commenters objected to We appreciate the comments and ‘‘need for supervision or protection combining these two bases, no specific agree that the proposed definition was based on symptoms or residuals of recommendations or suggestions on not specific enough. As indicated in the neurological or other impairment or how to define and distinguish these two proposed rule, our intent was to expand injury’’ unduly restricts VA’s ability to bases were submitted. We make no the definition to account for veterans consider all functional impairments that changes based on these comments. and servicemembers who ‘‘receive their may impact a veteran’s or primary care in the community and may servicemember’s ability to maintain his Primary Care Team only utilize VA for a portion of their or her personal safety on a daily basis. In the proposed rule, we proposed to care, such as mental health or specialty Additionally, it is VA’s intent to revise the definition of ‘‘primary care services.’’ 85 FR 13365 (March 6, 2020). broaden the current criteria by removing team’’ to mean one or more VA medical However, it was not our intent to imply the predetermined list of impairments, professionals who care for a patient that the primary care team may be

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comprised of any medical professional because a primary care provider is care in the community, and thus is (e.g., nurses, hospice workers, responsible for care coordination is consistent with our statutory authority. emergency medical technicians) in the moot. Furthermore, VA has an We further note that neither the absence of a physician, advanced electronic medical record system that veteran’s VA primary care provider nor practice nurse, or a physician assistant. allows VA providers from multiple his or her non-VA provider would Additionally, after reviewing the locations to access a patient’s medical determine PCAFC eligibility; CEATs comments, we agree with their concerns record. To the extent the commenter is will determine eligibility for PCAFC, that we should maintain the reference to suggesting we build a medical record including whether the veteran is a primary care provider. Therefore, we system specific for PCAFC, we believe determined to be unable to self-sustain are revising the definition of primary this is beyond the scope of this in the community. Clinical staff at local care team to mean ‘‘one or more medical rulemaking. We are not making any VA medical centers will conduct professionals who care for a patient changes based on these comments. evaluations of PCAFC applicants with based on the clinical needs of the Multiple commenters asserted that the input provided by the primary care team patient. Primary care teams must proposed definition does not align with to the maximum extent practicable. This include a VA primary care provider who industry standards such as the information will be provided to the is a physician, advanced practice nurse, American Medical Associations (AMA) CEATs for use in making eligibility or a physician assistant.’’ We make no Code of Medical Ethics and the determinations, including whether the further changes based on these American Academy of Family veteran is determined to be unable to comments. Physicians, particularly as it does not self-sustain in the community for Multiple commenters asserted that the clearly define the prescribing authority purposes of PCAFC. The CEAT will be removal of the phrase ‘‘provider who for a VA medical professional. We composed of a standardized group of coordinates the care’’ is contradictory appreciate the commenters concerns; inter-professional, licensed and is not aligned with existing VA however, the definition of primary care practitioners, with specific expertise national policy. One commenter team is only used for purposes of part and training in the determinations of asserted that ‘‘responsibility for 71, and not for the general provision of eligibility and the criteria for the higher- coordination of care must reside with a health care at VA. Additionally, there level stipend. We believe the use of primary care provider or team of are multiple definitions for primary care CEATs will improve standardization in providers,’’ and suggested that one teams in health care. Therefore, we do eligibility determinations across VA. mechanism to facilitate this not believe VA has a requirement to While primary care teams will not coordination is through the align the definition of primary care team collaborate directly with the CEAT on establishment of an information system with industry or other federal or non- determining eligibility, documentation that can be accessed by providers in the federal programs. We make no changes of their input in the local staff same or different locations that provides based on these comments. evaluation of PCAFC applicants will be a record on each enrollee to include his Several commenters expressed available in the medical record for or her socio-demographic concern that the proposed definition is review. This documentation will be characteristics, a minimum data set on inconsistent with VA’s provision of care used by the CEAT to help inform all clinical encounters and an identifier in the community. One commenter eligibility determinations for PCAFC, that permits linkage of the individual’s asserted that the definition does not including whether the veteran is encounter data over time. Commenters align with VA’s statutory requirements determined to be unable to self-sustain further expounded that primary care is to accommodate veterans and in the community for the purposes of the day-to-day health care given by a servicemembers who may receive care PCAFC. Any documentation from a non- health care provider and that the in the community. One commenter VA provider that the veteran or provider typically acts as the first asserted that VA has not consulted with servicemember provides will be contact and principal point of non-VA treating physicians when available to VA for purposes of PCAFC continuing care for patients within a making eligibility determinations and evaluation and eligibility health care system and coordinates that given pending legislation that is determinations. We are not making any other specialty care. likely to expand fee-for-service changes based on these comments. As we explained in the proposed rule, programs and third-party providers, it is we would remove this phrase, ‘‘provider imperative that VA primary care teams Role of Primary Care Team in PCAFC who coordinates the care,’’ because it consult these doctors and utilize their Processes can lead to misinterpretation, and it assessments. The same commenter Many commenters raised concerns does not specify whether the care noted that they do not believe non-VA that these changes relating to the coordinated is specific care to PCAFC or providers should determine eligibility; primary care team will reduce or all of the eligible veteran’s care but rather PCAFC must consult with eliminate the important role of a coordination needs. 85 FR 13365 (March clinicians who are actually treating the veteran’s team of medical professionals 6, 2020). Additionally, because of the veteran or servicemember. in PCAFC processes, and instead rely on role that the primary care team plays in First, we note that, as explained a single medical provider who may not coordinating an eligible veteran’s care, above, we are revising the definition to have full knowledge of a veteran’s we believe continuing to include this require that a VA primary care provider medical needs, medical history, or language would be unnecessary and must be on the team; however, we involvement in a veteran’s treatment, redundant. Additionally, as explained removed ‘‘VA’’ from the phrase ‘‘one or especially as this can lead to above, we are revising the definition to more medical professionals’’ which we inconsistencies in PCAFC include a requirement that a VA believe allows other medical determinations. Some commenters primary care provider who is a professionals (including non-VA allege this would be inconsistent with physician, advanced practice nurse or medical professionals) who care for the and exceed VA’s authority under 38 physician assistant must be on the team; patient based on the clinical needs of U.S.C. 1720G. Commenters were also thus the commenters’ concerns the patient, to be part of the team. We concerned that a veteran’s medical regarding the removal of the phrase believe this definition is inclusive of evaluation will be performed by a ‘‘provider who coordinates the care’’ veterans or servicemembers who receive professional who is ill-equipped to

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correctly assess the veteran, especially requirements for PCAFC and the criteria appropriate to consider care when determining when a veteran has for the higher-level stipend, will use requirements prescribed by providers an inability to perform ADLs. those evaluations to inform PCAFC other than the veteran’s or Some commenters raised concerns eligibility determinations, including servicemember’s primary care team, about the removal of primary care team whether the veteran is determined to be such as a non-VA provider, or other specifically from various paragraphs in unable to self-sustain in the community. appropriate individual or individuals in §§ 71.20 and 71.25. These concerns While primary care teams will not VA. We reiterate here that these changes included a fear that it will give VA too collaborate directly with the CEAT on would give us more flexibility in how much flexibility in determining who determining eligibility, including we evaluate PCAFC eligibility and will conduct eligibility assessments, it whether the veteran is determined to be approve and designate Family will provide too much deference to non- unable to self-sustain in the community, Caregivers while also ensuring that joint medical personnel who do not have the documentation of their input with the applications are evaluated in qualifications of the medical local staff evaluation of PCAFC collaboration with the primary care practitioners on the primary care team, applicants will be available in the team of the veteran or servicemember to will result in medical professionals medical record for review. This the maximum extent practicable, making eligibility determinations documentation will be used by the consistent with the authorizing statute. outside the scope of their practice, will CEAT to help inform eligibility We make no changes based on these provide the CSCs and uninvolved determinations for PCAFC, including comments. parties who do not treat the veteran or whether the veteran is determined to be Several commenters also expressed servicemember with too much unable to self-sustain in the community. general disagreement with the removal discretion, and will create We believe the use of CEATs will of primary care team from § 71.40(b)(2). inconsistencies. Additionally, one improve standardization in eligibility Specifically, one commenter asserted commenter asserted that VA did not determinations across VA. These teams PCAFC is proposing to fundamentally provide justification for why it would be will have access to the documentation alter accepted medical standards for more appropriate to remove the primary of the evaluations conducted in order to provision of primary care services, care team from the eligibility assessment inform eligibility determinations, clinical staff conducting home visits process. Relatedly, several commenters including whether the veteran is have an ethical and legal responsibility disagreed with VA’s claim that current determined to be unable to self-sustain to communicate directly the functional references to the primary care team are in the community for the purposes of status and well-being of the eligible unclear. However, one of those PCAFC. We also note that we will veteran directly to the eligible veteran’s commenters agreed that authorizations provide robust training and education to primary care team, and that such staff by the primary care team have not been those staff conducting evaluations, and do not have the same qualifications as applied consistently between facilities. CEAT members who are determining medical professionals in order to make We address these comments below. eligibility. We further refer the medical determinations about the As we explained directly above and commenters to our discussion on ‘‘Staff eligible veteran. The same commenter based on the comments received, we are training on eligibility determinations’’ opined that VA must recognize that revising the primary care team in the miscellaneous comments section collaboration among providers which definition to mean ‘‘one or more of this rule. includes clinical staff conducting home medical professionals who care for a We disagree with the commenters’ visits is a desirable characteristic of patient based on the clinical needs of assertion that we are eliminating the primary care. the patient. Primary care teams must primary care team from PCAFC We disagree with the assertion that include a VA primary care provider who processes, which some allege is the removal of primary care team from is a physician, advanced practice nurse, inconsistent with and exceeds our § 71.40(b)(2) conflicts with accepted or a physician assistant.’’ As Congress authority under 38 U.S.C. 1720G. The medical standards. As indicated in the did not provide a definition for primary primary care team has not been entirely proposed rule, it may not always be care team in 38 U.S.C. 1720G, we define removed from eligibility determinations; appropriate for the clinical staff the term as previously described, which rather as indicated in the proposed rule, conducting home visits to collaborate we believe is rational and reasonable for instead of referencing the primary care directly with the primary care team; purposes of PCAFC. This definition, as team in various paragraphs of §§ 71.20 however, collaboration will still occur revised in this final rule, will ensure and 71.25, we will reference the primary with the primary care team either that those medical professionals, care team in § 71.25(a)(2)(i) to indicate directly with the provider conducting including a VA primary care provider, that PCAFC eligibility evaluations will wellness contacts or through who care for the veteran and have be performed in collaboration with the intermediaries such as the CSC. We knowledge of the veteran’s needs and primary care team to the maximum make no changes based on these treatments, are part of the primary care extent practicable. 85 FR 13364 (March comments. team and have the opportunity to 6, 2020). Several commenters were critical of provide input into determinations of We proposed to reference primary our implied belief that primary care whether the veteran or servicemember is care team in § 71.25(a)(2)(i), to be teams are ‘‘too close’’ to veterans and eligible for PCAFC. consistent with 38 U.S.C. 1720G(a)(5), their caregivers to provide unbiased As explained previously in this which requires that PCAFC applications eligibility determinations, while several section, clinical staff at local VA be evaluated by VA in collaboration commenters agreed with the removal of medical centers will conduct with the primary care team for the the primary care team from eligibility evaluations of PCAFC applicants with eligible veteran to the maximum extent determinations because the primary care input provided by the primary care team practicable. As we explained in the team may not oversee the eligible to the maximum extent practicable. The proposed rule, this would ensure veteran’s care and may not have a CEAT, composed of a standardized collaboration with the VA medical relationship with the eligible veteran. group of inter-professional, licensed professionals involved in the patient’s One commenter specifically opined that practitioners, with specific expertise care during VA’s evaluation of the joint there is a conflict and danger of and training in the eligibility application. Id. However, it may be involving the primary care team in a

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decision that has a financial for the purposes of PCAFC; and we activity of daily living, or a need for consequence. The same commenter further refer the commenters to our supervision, protection, or instruction. asserted that VA has historically discussion on staff training on eligibility Several commenters opposed the separated VHA from VBA to ensure determinations within the change to the definition to include health care and benefits are not miscellaneous comments section of this illnesses and diseases and asserted that enmeshed with a provider’s ability to rule. We believe the use of CEATs to doing so is improper and unfair. provide quality care. We agree that determine eligibility for PCAFC will Commenters noted that many of these requiring a primary care provider to improve standardization in these conditions will not be from injuries and make eligibility determinations that determinations across VA. We make no may have occurred before service, were have a financial impact on a veteran or changes based on these comments. not in the line of duty, or may have been servicemember and his or her Family Serious Injury due to the veteran’s own fault or Caregiver, places them in an undesirable misconduct. One commenter stated that situation, and may have a negative VA received many comments on its only those who suffer true injuries impact on the provider-patient proposed definition of serious injury, should be eligible and that those should relationship. Thus, we believe that the including VA’s inclusion of any service- only be those injuries that were incurred use of CEATs to make eligibility connected disability, regardless of in the line of duty. VA’s proposed rule determinations, as described above, will whether it resulted from an injury, sets forth VA’s rationale for deviating help preserve the veteran-provider illness, or disease, and removal of the from the plain meaning of ‘‘injury’’ to relationship. We make no changes based requirement that the serious injury include illnesses and diseases. Among on this comment. renders the eligible veteran in need of other reasons set forth in the proposed One commenter generally disagreed personal care services. Most comments rule, VA explained that this change is with removing the reference to the on VA’s proposed definition, however, necessary to reduce subjective clinical primary care team maintaining the concerned VA’s proposed requirement judgement and improve consistency in eligible veteran’s treatment plan and that the eligible veteran have a singular PCAFC eligibility determinations and opined that it does not align with the or combined service-connected ensure that eligible veterans who served American Medical Association Code of disability rating of 70 percent or more, both before and after September 11, Medical Ethics. We note that CSP does and suggested other potential measures 2001 have equitable access to PCAFC. not have responsibility for the totality of for establishing a serious injury. These While Congress may have originally the veteran’s medical treatment plan, as comments have been grouped intended to focus PCAFC on the that would still be maintained by the accordingly and addressed in turn. primary care team consistent with what signature disabilities of veterans and we stated in the proposed rule. See 85 Many commenters supported VA’s servicemembers who served after FR 13365 (March 6, 2020). We make no expansion of the term ‘‘serious injury’’ September 11, 2001, the VA MISSION changes based on this comment. to include any service-connected Act of 2018 expanded this program to disabilities, including illnesses and veterans and servicemembers of earlier Centralized Eligibility and Appeals diseases, and we thank them for their eras, and the signature disabilities of Team (CEAT) comments. One commenter raised earlier conflicts include illnesses and Several commenters opposed the use concerns that the definition does not diseases such as diseases presumed to of CEATs and expressed concerns that address illnesses (e.g., cancers, be the result of herbicide exposure in it will be composed of individuals who hypertension, hypothyroidism, Vietnam and other places, and chronic are not medically qualified or providers parkinsonism, multiple sclerosis, multi-symptom illness experienced by not familiar with the veteran’s history. amyotrophic lateral sclerosis (ALS)) that Persian Gulf veterans. VA believes Two commenters asserted that the use may prevent a veteran from carrying out caregivers of veterans and of CEATs is similar to a disability ADLs or impede on their safety and servicemembers with illnesses and benefits review board. One commenter welfare. This commenter urged VA to diseases incurred or aggravated in the asserted that use of CEATs is contrary revise the definition to include such line of duty should benefit from PCAFC to health care standards for delivering illnesses. Another commenter requested in the same manner as caregivers of medical care and standards for VA include service-connected diseases. veterans with injuries such as TBI or authorizing and certifying that personal We believe these commenters spinal cord injury. Thus, we believe the care services are medically necessary. misunderstood VA’s proposed definition of serious injury for purposes This same commenter referenced the definition, and we are not making any of PCAFC should be as inclusive as requirements for an independent changes based on these comments. As possible by recognizing any service- medical examination (IME) and indicated in the proposed rule, this connected disability. Additionally, this explained that the goal of an IME may definition will now include any service- change will help to reduce inequities be to poke holes in a patient’s story for connected disability regardless of between veterans and servicemembers purposes of evaluating a workers’ whether it resulted from an injury or from different eras. To the extent compensation claim or disability disease. Therefore, a veteran or commenters are concerned that a benefits. servicemember with illnesses incurred veteran could meet the serious injury As previously discussed, the CEATs or aggravated in the line of duty (e.g., requirement based on a disability not will be composed of a standardized cancers, hypertension, hypothyroidism, incurred or aggravated in line of duty or group of inter-professional, licensed parkinsonism, multiple sclerosis, ALS) that resulted from the veteran’s willful practitioners with specific expertise and may be eligible for PCAFC if he or she misconduct, we note that VA’s training in the eligibility requirements has a single or combined service- definition of serious injury requires the for PCAFC and the criteria for the connected rating of 70 percent or more veteran have a service-connected higher-level stipend. We note that the and meets the other applicable PCAFC disability rated by VA. See 38 CFR CEATs will receive training to conduct eligibility criteria, including being in 3.1(k) (defining ‘‘[s]ervice-connected’’) eligibility determinations, including need of personal care services for a and 3.301 (addressing line of duty and whether the veteran is determined to be minimum of six continuous months misconduct). To the extent commenters unable to self-sustain in the community based on an inability to perform an opposed including service-connected

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disabilities in the serious injury injury from the need for personal care eligibility was intended to be based on definition, we note that having an injury services. We also recognize that this a clinical determination of a veteran’s or disease incurred or aggravated in the ‘‘decoupling’’ will expand PCAFC need, which is not a rating decision line of duty in the active military, naval, eligibility, thus increasing participation adjudicated by a non-health care or air service means the injury or in PCAFC. professional at the Veterans Benefits disease is service-connected. See 38 Furthermore, we disagree with the Administration, and this should not be U.S.C. 101(16) and 38 CFR 3.2(k). For commenter’s assertion that this left to an administrative process entirely purposes of PCAFC, service-connected decoupling would be contrary to separate from VHA. Relatedly, another disability ratings are the primary Congressional intent as the ‘‘serious commenter stated that VA should not method we use to determine whether an injury’’ criterion and ‘‘need for personal suggest to the public that the 70 percent injury was incurred or aggravated in the care services’’ requirement are separate rating is an objective ‘‘clinical standard’’ line of duty. We are not making any under 38 U.S.C. 1720G(a)(2)(B) and (C), associated with an applicant’s potential changes based on these comments. as VA articulated in its 2011 Interim need for personal care services. Another Several commenters supported the Final Rule. 76 FR 26150 (May 5, 2011) commenter was similarly concerned removal of the language that required a (‘‘the statute does not clearly state that about use of a disability rating since connection between the need for the need for personal care services must disability compensation is intended to personal care services and the serious relate to the ‘serious injury’ required compensate for loss of ability of veteran injury and we thank them for their under section 1720G(a)(2)(B)’’). Rather to earn income by working which is comments. One commenter disagreed serious injury was coupled with the different than the intent of PCAFC. with removing the language that need for personal services through VA’s Relatedly one commenter noted that ‘‘couples’’ the serious injury with the regulations based on VA’s interpretation service connection and injury are two need for personal care services, as the of the overall purpose and language of separate things and urged VA to keep ‘‘particular injury should be the exact the statute as it was originally enacted. the definition as it currently is. Another reason the [v]eteran requires a Id. However, as explained above, we no commenter noted that the veteran caregiver.’’ This commenter expressed longer believe the coupling of serious should be looked at ‘‘on the whole’’ by concern that this change will result in injury and the need for personal care a clinician. overburdening the program with false or services is reasonable. This is especially VA acknowledges that 38 U.S.C. undeserving cases and would be true as we expand to older veterans 1720G does not set forth a specific contrary to Congressional intent. from earlier service eras whose clinical service-connected disability rating as a Similarly, another commenter expressed needs are even more complex. minimum requirement to establish concern that decoupling would greatly Moreover, expanding this definition PCAFC eligibility, and that imposing increase the number of veterans that will not exclude veterans and one through this rulemaking is a will be eligible for this program. servicemembers whose needs for departure from the position taken by VA As indicated in the proposed rule, personal care services stem from an in its , 2015 Final Rule. many veterans have complex needs as a injury incurred or aggravated in the line However, VA’s proposed definition is a result of multiple medical conditions, of duty in the active military, naval, or reasonable interpretation of the and we find this even more true among air service. We are not making any statutory requirement that an eligible older veterans. The complexity of changes based on these comments. veteran has an injury that is serious, assessing each specific medical VA received numerous comments particularly in the context of other condition and whether it renders the about its proposed reliance on a single changes VA is making to the definition veteran or servicemember in need of or combined service-connected of serious injury. personal care services has resulted in disability rating of 70 percent or more Heretofore, the only meaning applied inconsistency in how ‘‘serious injury’’ is in establishing whether an eligible to establish whether an injury was interpreted. We believe this veteran has a serious injury. In the serious was that the injury render the inconsistency would be exacerbated as discussion that follows, we have eligible veteran in need of personal care PCAFC expands to the pre-9/11 grouped comments that opposed VA’s services. VA’s proposed rule explained population. For example: use of a service-connection rating in why it is necessary to ‘‘decouple’’ these [A]n individual may have leg pain general or expressed concern about the requirements as PCAFC expands to due to a service-connected spinal cord different purposes of PCAFC and VA veterans of earlier eras (as discussed injury but be able to manage his or her disability compensation, and those that above), but doing so removed the only symptoms. After a number of years, the opposed the use of the 70 percent guidance informing the meaning of individual is diagnosed with diabetes threshold specifically or suggested other whether the eligible veteran’s injury was unrelated to his or her military service. alternatives. serious. Therefore, VA must replace the Over time, the individual develops Several commenters opposed use of a definition with some standard that neuropathy in his or her lower service-connected rating to determine distinguishes a ‘‘serious injury’’ from an extremities, which results in the PCAFC eligibility by asserting that ‘‘injury’’ to give effect to the statutory individual being unable to complete his doing so is contrary to Congressional requirement. Williams v. Taylor, 529 or her ADLs independently. The onset intent, particularly as the statutory U.S. 362, 404, 120 S.Ct. 1495, 146 of neuropathy could be related to either authority does not require a minimum L.Ed.2d 389 (2000). the spinal cord injury or diabetes. This rating, or contending that a service- In considering how to define ‘‘serious example illustrates the difficulty of connected rating is not an appropriate injury’’ for purposes of PCAFC, VA these clinical decisions because the consideration for determining whether a sought to impose a definition that determination of whether the onset of veteran or servicemember requires would be easily understood by veterans neuropathy is related to the qualifying personal care services from a Family and caregivers and consistently applied serious injury or the illness unrelated to Caregiver. One commenter requested by VA. A specific service-connected military service would be a subjective VA eliminate this requirement because disability rating threshold serves those clinical determination. 85 FR 13369 the statute does not provide VA with purposes. As noted by one commenter (March 6, 2020). Therefore, we believe authority to curtail specified eligibility. in support of VA’s proposed definition, it is necessary to decouple serious Two commenters asserted that ‘‘disability ratings are a more common

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standard used for eligibility across other suggested that without a plan to currently prioritize disability VA programs.’’ Establishing an objective expedite claims for individuals applying compensation claims for PCAFC baseline for PCAFC eligibility will to PCAFC, VA would be imposing a claimants, as doing so would be increase transparency and assist the roadblock to timely admission into administratively challenging. program in adjudicating applications PCAFC, and that bureaucracy and red We also note that VA offers a menu efficiently. tape should never be a barrier to a of supports and services that supports VA agrees that the purpose of veteran’s ability to receive needed in- veterans and their caregivers that may disability compensation is quite home care. One commenter expressed be available PCAFC applicants who are different than the purpose of providing concern that the proposed rule did not awaiting a VA disability rating decision. benefits to Family Caregivers under provide any data or analysis about how Such services include PGCSS, PCAFC, and it was not VA’s intent to the claims and appeals process will homemaker and home health aides, suggest that a single or combined 70 impact the administration of this home based primary care, veteran percent service-connected disability requirement, and urged VA to establish directed care, and adult day care health rating establishes or suggests a need for an expedited VBA claims and appeals care to name a few. We appreciate the personal care services from a Family process for veterans submitting a joint commenters’ concerns; however, we are Caregiver. On the contrary, many application for PCAFC. not making any changes based on these veterans with disability ratings of 70 VA agrees with the commenters and comments. percent or higher are fully independent acknowledges that this requirement may One commenter expressed concern and able to function in the absence of result in some delays in adjudicating that many veterans from earlier eras of support from a caregiver. Instead, a PCAFC eligibility; however, we do not military service were not treated right single or combined service-connected believe these concerns outweigh the by this country and the government, so disability rating of 70 percent or more advantages of this approach that are they have not had interactions with VA serves as an objective standard to outlined above and in VA’s proposed and do not have a VA disability rating. determine whether an eligible veteran rule. Furthermore, compensation claims We agree that veterans from earlier eras has a ‘‘serious injury . . . incurred or processing time has continued to of military service have encountered aggravated in the line of duty in the decrease over the years. Specifically, the challenging experiences with our active, military, naval, or air service’’ average number of days to process a government and VA. We believe and thereby demonstrates that a claim, as of , 2020, was 78.5 expansion of PCAFC to eligible veterans veteran’s or servicemember’s disability who served before September 11, 2001 or disabilities rise to the level of serious. days, compared to 91.8 days on October Other criteria in part 71 will establish a 1, 2018. We acknowledge that, as of July is one step to help remedy the veteran’s or servicemember’s need for 4, 2020, the average number of days to challenges veterans from those eras have personal care services (i.e., whether the process a claim has increased to 114.4 faced. Other changes to the definition of veteran or servicemember is ‘‘in need of days. This increase was due to the serious injury were designed to ensure personal care services . . . based on [a]n COVID–19 national emergency and the PCAFC is inclusive of veterans from all inability to perform an activity of daily inability to conduct in-person medical eras by including all service-connected living; or . . . [a] need for supervision, exams. However, we note that in-person disabilities, regardless of whether they protection, or instruction’’). We note medical exams have begun again. In resulted from an injury, illness or that approximately 98 percent of the addition, VA currently prioritizes disease, and removing the link between current PCAFC population across all certain compensation claims from any the serious injury and the individual’s three tiers have a 70 percent or higher claimant who is: Experiencing extreme need for personal care services. We service-connected disability rating, and financial hardship; homeless; terminally encourage veterans who do not yet have would meet this definition of serious ill; a former prisoner of war; more than an existing relationship with VA to injury. VA agrees that applicants should 85 years old; became very seriously ill contact VA, through www.va.gov, your be looked at holistically by clinicians or injured/seriously ill or injured during local VA location using the Find a VA considering PCAFC eligibility, and will service as determined by the Location on www.va.gov, or 844–698– work to ensure that practitioners Department of Defense; diagnosed with 2311, to find out about the services and determining PCAFC eligibility are ALS or Lou Gehrig’s Disease; or in benefits that may be available to them, trained to understand that ‘‘serious receipt of a Purple Heart or Medal of including VA disability compensation, injury’’ is only one component of the Honor. In addition, VA has modernized pension, and health care benefits. This PCAFC eligibility criteria. We are not its appeals process since , is especially important for veterans and making any changes based on these 2019 to create different claims lanes servicemembers seeking to qualify for comments. (higher level reviews, supplemental PCAFC because in addition to requiring Several commenters expressed claims, and appeals to the Board of that an eligible veteran have a single or concerns about the ability of veterans Veterans’ Appeals) that help ensure that combined service-connected disability and servicemembers without VA claimants receive a timely decision on rating of 70 percent or more, the PCAFC disability ratings or with VA disability review when they disagree with a VA eligibility criteria under § 71.20 also ratings less than 70 percent to obtain an claims adjudication. We note that VA require the eligible veteran to receive expedited review of their claims and currently does not provide priority ongoing care from a primary care team, appeals in order to qualify for PCAFC. processing of disability compensation which includes a VA primary care Several commenters were particularly benefits for aid and attendance and provider, or to do so if VA approves and concerned about how delays in other ancillary benefits such as a designates a Family Caregiver. Thus, processing claims and appeals will housebound benefit. As to whether veterans and servicemembers would impact veterans applying for PCAFC, claims can be expedited for PCAFC need to establish a relationship with VA and how this rating requirement will program applicants, VA does not have (by obtaining a service-connected impact the processing of claims and an already available method for disability rating and receiving ongoing appeals, particularly in light of backlogs collecting data on veterans to know care from a primary care team) to and delays in processing such claims whether or not they are also applying qualify for PCAFC. We appreciate the and appeals. One such commenter for PCAFC. Therefore, VA cannot commenter’s concern; however, we are

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not making any changes based on this servicemember’s injuries rise to the disorientation; neglect of personal comment. level of serious, at least for purposes of appearance and hygiene; difficulty in Other commenters raised concerns establishing eligibility for PCAFC. adapting to stressful circumstances about use of the 70 percent service- While we understand that lower ratings (including work or a worklike setting); connected disability threshold are used to determine eligibility for inability to establish and maintain specifically, as being either too high or various other VA services (i.e., Priority effective relationships. 38 CFR 4.130 DC too low, or suggested alternative bases Group 1 eligibility for VA health care), 9411. We believe that veterans who for establishing whether an eligible we reiterate that PCAFC is one of many have symptomology that manifest to veteran has a serious injury. services offered to veterans and that level should not be denied Numerous commenters were servicemembers, as applicable, that are admittance to the program on the basis concerned that using a singular or complementary but are not required to that their injury or disease would not be combined service-connected disability be identical in terms of eligibility considered ‘‘serious,’’ which would rating of 70 percent was too high and requirements. VA considered applying a result if we used a service-connected arbitrary, and those with lower ratings minimum service-connection rating disability rating higher than 70 percent. may need assistance. Several lower than 70 percent, such as 50 Furthermore, applying a 100 percent commenters suggested VA lower the percent or 60 percent, but determined, rating would result in approximately 40 minimum rating requirement to 50 based on reviewing the rating criteria in percent of the current participants no percent for consistency with the 38 CFR part 4, that not every 50 or 60 longer being eligible because they requirements for priority group one percent rating may be indicative of a would not meet that higher threshold. eligibility for purposes of enrollment in serious injury. Additionally, for the VA elected not to apply different VA health care. One commenter reasons set forth in the proposed rule criteria to veterans and servicemembers asserted that Congress believed these and this final rule, we believe the depending on the date their serious veterans were of highest concern by threshold of 70 percent is a reasonable injury was incurred or aggravated in the assigning them to priority group one, and appropriate interpretation of the line of duty because this would be and utilizing a threshold of 50 percent ‘‘serious injury’’ requirement in 38 inequitable and would lead to treating or more would allow more veterans U.S.C. 1720G(a)(2)(B). Moreover, eligible veterans differently based on with sustained serious service- their era of service. We are not making connected disabilities to have access to [a]s the Supreme Court has noted, ‘‘[t]he ‘task any changes based on these comments. of classifying persons for . . . benefits . . . PCAFC. A few commenters suggested inevitably requires that some persons who Another commenter noted that 70 revising the criterion to include any have an almost equally strong claim to percent is the rating required for nursing disabled veteran with a 50 percent or favored treatment be placed on different home care, but asserted that Congress more service-connected disability rating sides of the line.’’’ United States R.R. considered and rejected limiting PCAFC that served prior to 1975. Relatedly, one Retirement Bd. v. Fritz, 449 U.S. 166, 179 to only those who would otherwise commenter suggested using a rating of (1980) (quoting Mathews v. Diaz, 426 U.S. 67, require nursing home care. We would 60 percent based on the commenter’s 83–84 (1976)). Provided there is a legitimate like to clarify that although having a belief that this is the threshold for basis for the general classification established single or combined service-connection by Congress or the agency, it is not arbitrary qualifying for no cost VA medical care or capricious simply because it may be rating of 70 percent or more is one basis and VA disability pension. overinclusive or underinclusive on some upon which eligibility can be Other commenters asserted that using applications. See Weinberger v. Salfi, 422 established for VA nursing home care a 70 percent rating would expand the U.S. 749, 776 (1975) (‘‘[g]eneral rules are under 38 U.S.C. 1710A, we are not program beyond what Congress essential if a fund of this magnitude is to be suggesting that the eligibility criteria for intended. Likewise, another commenter administered with a modicum of efficiency, PCAFC and nursing home care are noted that a 70 percent rating is not even though such rules inevitably produce identical. As we noted in the proposed difficult to achieve, and the need for a seemingly arbitrary consequences in some rule, there may be instances when caregiver is not hard to prove, as these individual cases’’). nursing home care would be more are normally granted because they are Brief for Respondent-Appellant at 15– appropriate for a veteran or subjective. 16, Haas v. Peake, 525 F.3d 1168 (2008) servicemember than PCAFC. 85 FR In determining how to revise the (No. 2007–7037), 2007 U.S. Fed. Cir. 13369 (March 6, 2020). We are requiring definition of serious injury, VA Briefs LEXIS 1048, at 21–22. a 70 percent or more service-connected considered other service-connected VA also considered applying a disability rating because of the reasons disability rating levels to establish minimum service-connected rating stated in the proposed rule and whether an eligible veteran has a serious higher than 70 percent, such as 100 additionally outlined above and note injury, but found a single or combined percent, but determined that would be that it is the minimum threshold that rating of 70 percent or more to be the too narrow and restrictive. For instance, must be met for PCAFC eligibility. As best approach, as approximately 98 a 70 percent rating for PTSD would explained in the proposed rule and percent of current participants meet this require: Occupational and social reiterated in this final rule, additional requirement. Similarly, we note that one impairment, with deficiencies in most criteria must also be met before an commenter that represents a veterans areas, such as work, school, family individual is determined to be eligible service organization conducted a survey relations, judgment, thinking, or mood, for PCAFC. We are not making any of their ‘‘warriors’’ (i.e., veteran due to such symptoms as: Suicidal changes based on this comment. members) and concluded that ‘‘over 96 ideation; obsessional rituals which Several commenters raised concerns percent—2,333 out of 2,410 applicable interfere with routine activities; speech about potential abuse of the program by warriors—of survey respondents intermittently illogical, obscure, or individuals who may not really need it enrolled in the PCAFC reported a irrelevant; near-continuous panic or but qualify, nonetheless. Similarly, one service-connected disability rating of 70 depression affecting the ability to commenter asserted that the amount of percent or higher.’’ function independently, appropriately service connection should not be We believe that a single or combined and effectively; impaired impulse considered because there are veterans rating of 70 percent or more would control (such as unprovoked irritability with 100 percent service-connection demonstrate that a veteran’s or with periods of violence); spatial ratings but do not need a caregiver. A

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separate commenter who asserted that a reassessments. We are not making any establishes the requirement for 70 percent rating is not difficult to changes based on these comments. reassessments of eligible veterans and achieve, also indicated that the need for One commenter was concerned about Family Caregivers to determine their a caregiver is not hard to prove, and how VA would fund this program as a continued eligibility for participation in because eligibility determinations are result of using this criterion, suggesting PCAFC under part 71. The reassessment subjective, benefits are normally there must be millions of veterans with includes consideration of the PCAFC granted. However, this commenter also a 70 percent service-connected rating, eligibility criteria, including whether raised concerns about how staff may and believed this funding could be PCAFC participation is in the best review these determinations later and better spent elsewhere (e.g., on aging interest of the veteran or decide to remove participants from families affected by the COVID–19 servicemember. As proposed and PCAFC. national emergency). This same explained previously in this commenter was concerned that this rulemaking, ‘‘in the best interest’’ is a First, we note that many of the criterion is excessive and would create clinical determination that includes changes we are making in this final rule dependency on VA. Thus, this consideration of whether PCAFC are aimed at improving standardization commenter suggested limiting this participation supports the veteran’s or and reducing subjectivity in PCAFC program to 12 months per one’s lifetime servicemember’s potential progress in eligibility determinations. We agree that or conditioning PCAFC participation on rehabilitation, if such potential exists, an eligible veteran’s service-connection the veteran subsequently participating and increases the veteran’s or rating does not establish a need for in one of the other VA in-home care servicemember’s potential personal care services from a Family programs. independence, if such potential exists, Caregiver, and it was not VA’s intent to We thank the commenter for their among other factors. We believe that suggest that it does. As indicated above, concerns and refer them to the this reassessment process, which will a single or combined 70 percent or more regulatory impact analysis occur annually (unless a determination service-connected rating is just one accompanying this rulemaking for a is made and documented by VA that component of the PCAFC eligibility detailed analysis of the estimated costs more of less frequent reassessment is determination. Separate eligibility for this program. As noted previously, appropriate), will reduce the risk of criteria in § 71.20 would establish the serious injury requirement is only dependency in instances where the whether a veteran or servicemember is one criterion that must be met under eligible veteran may have the potential in need of personal care services (based § 71.20 for a veteran or servicemember for improvement. We are not making on an inability to perform an activity of to qualify for PCAFC. To the extent that any changes based on this comment. daily living or a need for supervision, this commenter is concerned that the criteria set forth in § 71.20 are too broad, One commenter was supportive of protection, or instruction) and whether including consideration of any service- participation in PCAFC is in the we disagree. VA has tailored the eligibility criteria to target veterans and connected disability and VA no longer veteran’s or servicemember’s best requiring a connection between the interest, among other criteria. Therefore, servicemembers with moderate and severe needs through new definitions need for personal care services and the a veteran or servicemember would not qualifying serious injury, but be eligible for PCAFC solely for having for the terms ‘‘in need of personal care services,’’ ‘‘inability to perform an recommended VA consider including in a service-connected disability rating. the definition of serious injury service- Instead, the definition of serious injury activity of daily living,’’ and ‘‘need for supervision, protection, or instruction,’’ connected veterans in receipt of will provide a transparent and objective in particular. PCAFC is a clinical individual unemployability (IU), which standard for determining whether a program that addresses the unique the commenter described as a benefit veteran’s or servicemember’s injury is needs of each eligible veteran and his or reserved for veterans whose service- serious. Also, as indicated in the her caregiver which may change over connected condition(s) is so severe as to proposed rule, any changes to a time. Also, the potential for render them unable to obtain and veteran’s or servicemember’s service- rehabilitation or independence among maintain ‘‘substantially gainful’’ connected rating that results in a rating PCAFC eligible veterans will likely employment. Section 4.16(a) of 38 CFR, less than 70 percent for a single or decrease as the program expands to establishes the requirements for IU combined service-connected disability veterans and servicemembers from (referred therein as schedular IU), which will result in the veteran or earlier eras of military service who have includes that the veteran have at least servicemember no longer being eligible more progressive illness and injuries, one service-connected disability rated at for PCAFC. In such instance, the veteran such as dementia or Parkinson’s disease. least 60 percent disabling, or have two or servicemember would be discharged Therefore, we do not believe limiting or more service-connected disabilities, in accordance with § 71.45(b)(1)(i)(A) this program to a specific time period or with at least one rated at least 40 for no longer meeting the requirements mandating the use of other VA in-home percent disabling and a combined rating of § 71.20 because of improvement in care programs is appropriate. of at least 70 percent. According to the the eligible veteran’s condition or Furthermore, PCAFC is one of many in- commenter, ‘‘[t]here are numerous otherwise (e.g., no longer meeting the home services that are complementary disabilities warranting IU that would definition of serious injury). To the but not necessarily exclusive to one require a [F]amily [C]aregiver to provide extent that commenters raised concerns another. As a result, an eligible veteran personal services to maintain the about how staff may review these and his or her caregiver may also veteran’s independence in his or her determinations later and decide to participate in other home-based VA community.’’ IU allows VA to pay remove participants from PCAFC, we programs, such as home based primary certain veterans compensation at the note that we will provide training to VA care, respite care, and adult day health 100 percent rate, even though VA has staff who are making eligibility care, as applicable. not rated his or her service-connected determinations to ensure that the same To the extent that this commenter is disabilities at that level. To qualify, a criteria that are used to determine concerned that the criteria will create veteran must, in addition to meeting the eligibility at the time of application are dependency, we note that we proposed, service-connection rating requirements the same as those used during and make final, § 71.30 which identified by the commenter, be unable

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to secure or follow a substantially criteria, and the serious injury will no basis of which the covered veteran has gainful occupation as a result of service- longer be tied to the veteran’s or been enrolled in PCAFC. connected disabilities. We note that servicemember’s need for personal care FMLA entitles eligible employees of veterans who are unemployable by services. Therefore, we respectfully covered employers to take unpaid, job- reason of service-connected disabilities decline to include a specific list of protected leave for specified family and but who fail to meet the requirements of injuries, disabilities, awards, or medical reasons with continuation of § 4.16(a), may still qualify for IU based compensations that may suggest a need group health insurance coverage under on additional consideration under of personal care services. Moreover, the same terms and conditions as if the § 4.16(b). Simply put, a veteran can be because VA is expanding the definition employee had not taken leave. The in receipt of an IU rating irrespective of of serious injury to include any singular section and definition referenced by this a specific service-connected rating. or combined service-connected commenter relate specifically to when a We do not find it appropriate to use disability rated 70 percent or higher, military caregiver may use FMLA leave IU as a substitute for the single or regardless of whether it resulted from an to care for a covered servicemember combined 70 percent rating as not all injury, illness, or disease, it is not with a serious injury or illness. We note veterans and servicemembers applying necessary to provide examples of that FMLA is entirely different from for or participating in PCAFC will have potentially qualifying conditions. Doing PCAFC as FMLA protects workers when been evaluated by VA for such ratings, so could cause unnecessary confusion they need to take leave to care for and if VA were to create an exception by suggesting that listed conditions are certain family and medical reasons, to the ‘‘serious injury’’ requirement for somehow more applicable. while PCAFC is a clinical program that individuals with an IU rating, VA would Additionally, we believe limiting provides benefits to Family Caregivers. also need to consider whether other PCAFC eligibility to recipients of the While DOL’s definition of serious injury exceptions (based on disability rating Military Order of the Purple Heart or illness includes veterans criteria or otherwise) should also satisfy would be too restrictive as it is participating in PCAFC, we do not the ‘‘serious injury’’ requirement. In associated only with combat injuries, believe that requires us to adopt DOL’s addition, IU has proven to be a very such awards have historically definition for purposes of defining difficult concept to apply consistently discriminated against minorities and serious injury in PCAFC. We note that in the context of disability women, and recordkeeping on these the authorizing statutes (i.e., 38 U.S.C. compensation and has been the source awards has been inconsistent. Further, 1720G and 29 U.S.C. 2611) vary in how of considerable dissatisfaction with VA as indicated in the proposed rule, we they define serious injury and serious adjudications and of litigation. considered the TSGLI definition of injury or illness, respectively. We make Consequently, we choose not to import ‘‘traumatic injury’’ in defining serious no changes based on this comment. One commenter recommended that in this rather subjective standard and its injury; however, we determined it order to remain consistent with the potential for inconsistency into the would be too restrictive and result in definition of serious injury, VA must PCAFC program. As stated above, we additional inequities, and noted the improve its education and believe the requirement that a veteran or inherit differences between the two communication about two of the most servicemember have a single or programs—TSGLI is modeled after common conditions affecting veterans, combined service-connected disability Accidental Death and Dismemberment specifically mild traumatic brain injury rating of 70 percent or more is a insurance coverage, whereas PCAFC is a (mTBI or concussion) and PTSD. This reasonable and appropriate clinical benefit program designed to interpretation of the ‘‘serious injury’’ commenter noted that a service- provide assistance to Family Caregivers requirement in 38 U.S.C. 1720G(a)(2)(B). connected rating for a mTBI will not that provide personal care services to See Brief for Respondent-Appellant at automatically confer a need for eligible veterans. We are not making any 15–16, Haas, 525 F.3d 1168 (2008) (No. supervision, and that PTSD symptoms changes based on these comments. 2007–7037) (citing Fritz, 449 U.S. at 179 can be managed and even resolved (concerning regulatory line drawing); One commenter recommended VA completely; and explained that family Weinberger, 422 U.S. at 776). consider defining serious injury care is a complement to, not a substitute One commenter recommended that consistent with the definition of serious for professional treatment and expertise. VA add specific injuries and disabilities injury or illness contained in 29 CFR The commenter asserted that while a to the list of requirements for PCAFC 825.127(c). We note this commenter is spouse can help a veteran work toward which is similarly done for Special referring to the Department of Labor’s his or her mental health goals, and may Home Adaptation (SHA) or Specially (DOL) regulations for the Family and be involved in treatment planning, Adapted Housing (SAH) grants (e.g., Medical Leave Act (FMLA). This relying on a spouse to manage a loss or loss of use of more than one definition is defined, in part, to mean: veteran’s mental health symptoms is limb, blindness, severe burns, loss or a physical or mental condition for clinically inappropriate and cannot be loss of use of certain extremities). The which the covered veteran has received the basis for acceptance into PCAFC. commenter further opined that a clear a U.S. Department of Veterans Affairs First, we would like to clarify that requirement could be that a veteran Service-Related Disability Rating participation in PCAFC is not meant to have a Purple Heart, an award of combat (VASRD) of 50 percent or greater, and replace medical or mental health related special compensation, such VASRD rating is based, in whole treatment and agree with the commenter concurrent retirement and disability or in part, on the condition precipitating that a Family Caregiver is not expected pay, a medical retirement/discharge, be the need for military caregiver leave; or to provide such treatment, but rather a TSGLI recipient, or have a line of duty a physical or mental condition that required personal care services, for investigation for the injury. Relatedly, substantially impairs the covered mTBI or PTSD. Further, part of the one commenter requested VA tie veteran’s ability to secure or follow a eligibility criteria for the program eligibility to award of the Purple Heart, substantially gainful occupation by require the eligible veteran to receive as there are other programs available to reason of a disability or disabilities ongoing care from a primary care team, veterans. As previously explained, related to military service, or would do which will help ensure the eligible having a serious injury is only one so absent treatment; or an injury, veteran is engaged in appropriate care component of the PCAFC eligibility including a psychological injury, on the based on his or her clinical needs.

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Second, as discussed above, the immediately, irrespective of their Procedures Manual, M21–1, to include veteran’s or servicemember’s serious service date, while another commenter parts regarding eligibility injury does not need to be related to his suggested that immediate eligibility for determinations for pension, or her need of personal care services, PCAFC should be viewed on a case-by- consideration of presumptive service- which is separately considered (i.e., case basis instead of service dates. connection based on active duty for whether the veteran or servicemember is In response to the above comments, training and inactive duty for training, ‘‘in need of personal care services for a the initial eligibility distinction between and jurisdiction of Camp Lejeune minimum of six continuous months pre- and post-9/11 veterans and claims. based on . . . [a]n inability to perform servicemembers in the current program As previously explained, the an activity of daily living; or . . . [a] was mandated by Congress by the authorizing statute, 38 U.S.C. 1720G, as need for supervision, protection, or Caregivers Act, as established by 38 amended by section 161 of the VA instruction’’). Finally, we agree with the U.S.C. 1720G. Furthermore, as MISSION Act of 2018, bases eligibility commenter that education and training previously stated, the VA MISSION Act for PCAFC, in part, on the date the is important for staff, eligible veterans of 2018 further modified section 1720G and their Family Caregivers, and we by expanding eligibility for PCAFC to serious injury was incurred or note that we currently provide such Family Caregivers of eligible veterans aggravated in the line of duty in the training on many conditions, such as who incurred or aggravated a serious active military, naval, or air service. 38 TBI, PTSD, and dementia. We will injury in the line of duty before U.S.C. 1720G(a)(2)(B). In this regard, continue to provide a robust training September 11, 2001. However, Congress eligibility is not based only on the dates plan for staff and PCAFC participants. mandated that this expansion occur in of active military, naval, or air service. Specifically, we will ensure that two phases. The first phase of expansion Instead, it is focused on when the training on conditions, such as TBI, will include eligible veterans who have veteran or servicemember incurred or PTSD, and dementia will continue to be a serious injury (including traumatic aggravated a serious injury in the line of provided. We make no changes based on brain injury, psychological trauma, or duty while in the active military, naval, this comment. other mental disorder) incurred or or air service. Currently, only those aggravated in the line of duty in the whose serious injury was incurred or Unable To Self-Sustain in the active military, naval, or air service on aggravated in the line of duty in the Community or before May 7, 1975, and will begin on active military, naval or air service on Several commenters expressed the date the Secretary submits a or after September 11, 2001, are eligible confusion and concern about this certification to Congress that VA has for PCAFC. 38 U.S.C. 1720G(a)(2)(B)(i). definition and how it will be used to fully implemented a required IT system In the first phase of expansion (that will determine whether a Primary Family that fully supports PCAFC and allows begin on the date the Secretary submits Caregiver will receive the lower- or for data assessment and comprehensive to Congress certification that VA has higher-level stipend. We note that this monitoring of PCAFC. The second phase fully implemented the required IT definition will only be used in the will occur two years after the date the system), those veterans and context of § 71.40(c), Primary Family Secretary submits certification to servicemembers will continue to be Caregiver benefits, and refer to the Congress that VA has fully implemented eligible for PCAFC, and additionally, discussion of that section below the required IT system, and will expand those veterans and servicemembers who regarding unable to self-sustain in the PCAFC to all eligible veterans who have incurred or aggravated a serious injury community. a serious injury (including traumatic in the line of duty in the active military, brain injury, psychological trauma, or naval or air service on or before May 7, § 71.20 Eligible veterans and other mental disorder) incurred or servicemembers 1975 will also become eligible (subject aggravated in the line of duty in the to the other applicable eligibility Two-Phase Eligibility Expansion active military, naval, or air service, criteria). 38 U.S.C. 1720G(a)(2)(B)(ii). regardless of the period of service in Two years after the date the Secretary Multiple commenters disagreed with which the serious injury was incurred submits to Congress certification that the phased eligibility expansion. They or aggravated in the line of duty in the VA has fully implemented the required also opined that this phased eligibility active military, naval, or air service. IT system, all veterans and expansion discriminated against pre-9/ Therefore, we lack authority to 11 veterans, that pre-9/11 veterans eliminate the two-phase eligibility servicemembers, that otherwise meet should not be treated differently than expansion and make the changes eligibility criteria, including those who post-9/11 veterans, that veterans from suggested by these comments. See 38 have a serious injury incurred or all eras require assistance from U.S.C 1720G(a)(2)(B). aggravated in the line of duty in the caregivers, and that PCAFC expansion Multiple commenters also expressed active military, naval, or air service after for all pre-9/11 veterans should not be confusion as to when Vietnam veterans May 7, 1975 but before September 11, delayed and should be immediate to would be eligible for PCAFC and asked 2001, will be eligible for PCAFC (i.e., veterans from all eras. Many for clarification. Other commenters , 1975 to , 2001). See commenters expressed that they felt that expressed confusion about when other 38 U.S.C. 1720G(a)(2)(B)(iii). We also veterans who served between May 8, pre-9/11 era veterans would be eligible note that because eligibility under 38 1975 and September 10, 2001 should for PCAFC and asked for clarification. U.S.C. 1720G(a)(2)(B) is based on the not have to wait another two years to be One commenter asked if VA will use date the serious injury was incurred or part of the PCAFC expansion. One ‘‘the same standard as the [Veterans aggravated, and not merely on the dates commenter asked if there was any way Benefits Administration (VBA)] of of a veteran’s or servicemember’s the two-year time frame for this group having to serve at least one day during service, we would not, nor would there of veterans could be changed to a year the time period.’’ While the commenter be a need, to apply language that the or less. Also, commenters expressed that did not provide any further detail as to veteran or servicemember serve ‘‘at least they would like to see veterans with a this standard, we note that in the VBA one day’’ during the time periods terminal illness or 100 percent disability context, similar language is found in outlined above for eligibility for the first rating be eligible for PCAFC various parts of VA’s Adjudication phase of the PCAFC expansion. We

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make no changes based on these This means a veteran with a service- manner. Commenters urged that the comments. connected disability incurred or expansion be sped up, especially before Multiple commenters asked how VA aggravated in the line of duty before most pre-9/11 veterans pass away. will determine eligibility for veterans May 7, 1975, would qualify for the first Multiple commenters asserted that VA with service dates that overlap the time phase of expansion so long as the has missed its statutory deadline to periods set forth in 38 U.S.C. veteran’s service-connected disability is expand. In this regard, commenters 1720G(a)(2)(B)(i)–(iii), and specifically, rated at 70 percent or more by VA or is explained that the VA MISSION Act of those who served both before and after combined with any other service- 2018 required VA to certify May 7, 1975; and commenters asked connected disability or disabilities, and implementation of the required IT how VA will determine eligibility for a combined rating of 70 percent or more system no later than , 2019, veterans who have presumptions of is assigned by VA, and the veteran and as such, VA was required to service-connection for conditions that meets all the other PCAFC eligibility implement phase one by October 1, are not diagnosed until years after their criteria. If a veteran has a serious injury, 2019 and phase two by October 1, 2021. service. Commenters provided specific as defined in this rulemaking, that was Accordingly, one commenter requested scenarios and asked under which phase incurred or aggravated after May 7, VA implement phase one no later than of expansion veterans would qualify for 1975, but before September 11, 2001, September 2020. Another commenter PCAFC. One commenter asked if a and meets all other eligibility criteria for asked VA to clarify why an additional veteran with a 100 percent service rating PCAFC, then he or she would be eligible two years is needed for evaluating phase who served from 1974 to 1994 could be for PCAFC in the second phase of two applicants and recommended that eligible for PCAFC in the first phase of expansion. VA commit to a shorter timeline for expansion or in the second phase of Additionally, there may be instances phase two expansion. Other expansion. Another commenter asked in which a veteran’s or servicemember’s commenters asserted that VA must which phase of expansion would apply condition is not diagnosed until years implement phase two by October 1, for a veteran with active military service after they served and years after the 2021, to be consistent with from 1972 to 1992, who has a combined condition was actually incurred or Congressional intent. Furthermore, one rating from several service-connected aggravated, such that it may be difficult commenter specifically asked, given the disabilities of 70 percent or greater with to identify when the serious injury was delays to the IT system, that VA publish one disability at 30 percent due to incurred or aggravated. We note that monthly updates on the progress service in Vietnam and the other there may be a lack of documentation towards implementation of the required disabilities incurred in active service identifying the date on which an IT system and on the progress towards during the Lebanon conflict and the applicant’s serious injury was incurred publishing a final rule. Persian Gulf War. Another commenter or aggravated. For example, a veteran We acknowledge that the full asked which phase of expansion would may have served before and after May implementation of the new IT system apply for a veteran who served from 7, 1975, and been diagnosed with ALS has been delayed. This is due to VA’s prior to May 7, 1975, until 30, several years after the veteran was pivot from developing a home grown IT 1980, developed ALS and was awarded discharged from active military, naval, system to configuration of a commercial presumptive service connection for ALS or air service. If that veteran has platform (Salesforce) which, among last year. A different commenter asked received a presumption of service- other things, has required migration of whether a veteran would be included connection for ALS, but the rating data from the legacy web-based under phase one of expansion if the decision does not specify the dates of application to the new Salesforce veteran served in Vietnam prior to May service to which the ALS is attributable, platform, development of new 7, 1975, was exposed to Agent Orange, VA would determine on a case-by-case functionality to automate monthly left the military in 1975, was basis whether the veteran could qualify stipend calculations, as well as diagnosed with ALS several years later, for PCAFC under the first or second integration with other VA systems. is service-connected at 100 percent, and phase of expansion. The dates of However, as required by law, the phases meets all additional eligibility criteria. service, along with other documentation of expansion are explicitly tied to the As previously explained in this such as rating decisions, service date VA submits to Congress a section, the authorizing statute, 38 treatment records, VBA claims files, and certification that the Department has U.S.C. 1720G, as amended by section review of medical records will help fully implemented the required IT 161 of the VA MISSION Act of 2018, inform VA of when the serious injury system, and VA has not yet submitted bases eligibility for PCAFC, in part, on was incurred or aggravated. It is to Congress that certification. The the date the serious injury was incurred important to note that such issues phases of expansion are not tied to the or aggravated in the line of duty in the regarding the date the serious injury was October 1, 2019 due date for such active military, naval, or air service. incurred or aggravated will arise only certification in section 162(d)(3)(A) of Thus, while there may be veterans and during the first phase of expansion, only the VA MISSION Act of 2018. See 38 servicemembers who have service dates when the veteran has dates of service U.S.C. 1720G(a)(2)(B). Accordingly, the that cover more than one of the time before and after May 7, 1975, and only first phase of expansion will begin when periods set forth in 38 U.S.C. in instances in which the date of the VA submits to Congress certification 1720G(a)(2)(B)(i)–(iii), their eligibility serious injury is not documented. We that it has fully implemented the under section 1720G(a)(2)(B) is make no changes based on these required IT system, and the second dependent on the date the serious injury comments. phase will begin two years after the date was incurred or aggravated. In this VA submits that certification to rulemaking, the term ‘‘serious injury’’ Implementation Delay Congress. Therefore, we are unable to means ‘‘any service-connected disability Commenters asked why it is taking so expand immediately or expedite the that: (1) Is rated at 70 percent or more long to get the eligibility expansion second phase of expansion once VA by VA; or (2) Is combined with any started, to include implementation of an submits its certification to Congress. other service-connected disability or IT system, and expressed dissatisfaction Further, we will not provide the disabilities, and a combined rating of 70 that the expansion was not being requested monthly updates on the percent or more is assigned by VA.’’ implemented now or in a more timely progress towards implementation of the

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required IT system and on the progress transition compared to the five-month protect the interest of severely disabled of the final rule, as these are actions we transition, we believe that the transition veterans and their Family Caregivers typically do not take, and it would period proposed by VA is appropriate that are current PCAFC participants. divert our energy and resources in and not a misuse of taxpayer dollars. Similarly, many commenters expressed making progress towards fully The five-month period referenced by the concern about the negative impact of implementing the required IT system commenter consists of a 60-day losing the PCAFC benefits that they and the final rule. We note that we will advanced notice followed by a 90-day have come to rely on. Additionally, provide the public with notification extension of benefits for discharge based other commenters suggested that legacy upon certification of the required IT on the legacy participant or legacy participants should not be reassessed. In system and the publication of the final applicant no longer qualifying for particular, two commenters referred to rule. We make no changes based on PCAFC as set forth in § 71.45(b)(1). The the often-long-term nature of veterans’ these comments. 60-day advanced notice requirement disabilities, including veterans whose provides an opportunity for PCAFC clinical conditions are not expected to Legacy Participants participants to contest VA’s findings improve over time. Another commenter VA received multiple comments before a stipend decrease takes effect, suggested that instead of reassessments, concerning eligibility for legacy and in certain instances of revocation or VA should review the initial application participants, as that term will be defined discharge which we believe would of current PCAFC participants to in § 71.15. We will address the benefit both VA and eligible veterans determine if the participants meet the comments below. and Family Caregivers. 85 FR 13394 new criteria, especially given the One commenter inquired into the (March 6, 2020). The 90-day extension challenges of seeking medical care reasons VA was providing a transition of benefits pursuant to § 71.45(b)(1)(iii) during the COVID–19 national period for legacy participants who the would permit the eligible veteran and emergency. commenter believes will not be his or her Family Caregiver a reasonable As indicated in the proposed rule, we reassessed for a year and will receive an adjustment time to adapt and plan for are shifting the focus of PCAFC to additional five months to transition out discharge from PCAFC. Further, while eligible veterans with moderate and of PCAFC even though they may no continuing benefits for 90 days after severe needs and making other changes longer be eligible for PCAFC. The discharge is not contemplated under the that will allow PCAFC to better address commenter suggested this is a misuse of authorizing statute, we believe it is an the needs of veterans of all eras and taxpayer dollars and recommended appropriate and compassionate way to improve and standardize the program. current PCAFC participants be interpret and enforce our authorizing However, we are mindful of the reassessed immediately to determine statute. See 85 FR 13399 (March 6, potential impact these changes may their continued eligibility, and if found 2020). have on legacy participants and legacy ineligible, only be allowed two to three VA believes that the transition period applicants, as those terms are defined in months to transition out of PCAFC. is both fair and reasonable and also an § 71.15, and appreciate the commenters We believe the transition period set appropriate use of taxpayer dollars. As recommendations. Specifically, we forth in the proposed rule for legacy indicated in the proposed rule, the considered whether VA could continue participants and legacy applicants who Primary Family Caregivers of legacy applying the current criteria to legacy do not meet the requirements of participants, in particular, may have participants and legacy applicants, and § 71.20(a), and their Family Caregivers come to rely on the benefits of PCAFC, apply the new criteria in § 71.20(a) only is a fair and reasonable amount of time. to include the monthly stipend to new applicants, but decided against To clarify, VA will not wait one year payments based on the combined rate it. Doing so would require VA to run after the effective date of the rule to authorized under current § 71.40(c)(4). two separate PCAFC programs, which evaluate the eligibility of legacy Our proposed transition period would would be administratively prohibitive; participants and legacy applicants. VA allow time for VA to communicate would lead to confusion among will begin the reassessments of such potential changes to affected individuals veterans, caregivers, and staff; and individuals when this final rule and assist them in preparing for any would result in inequities between becomes effective, but VA estimates that potential discharge from PCAFC or similarly situated veterans and it will need a full year to ensure all such reduction in their stipend payment caregivers. Instead, VA proposes to reassessments are completed. The one- before such changes take effect. We are reassess legacy participants and legacy year period beginning on the effective not making any changes based on this applicants under the new eligibility date of the rule (set forth in § 71.20(b) comment. criteria in § 71.20(a) within the one-year and (c)) will allow VA to conduct Several commenters suggested VA period following the effective date of reassessments of legacy participants and ‘‘grandfather’’ in current PCAFC this final rule. As explained above, VA legacy applicants, while also participants, such that they not be is providing a transition period that adjudicating an influx of applications as subject to the new requirements in consists of one year for VA to complete a result of the first phase of expansion. § 71.20(a). Two commenters suggested reassessments, followed by a period of VA would allow legacy participants and that the new criteria in § 71.20(a) should 60-day advanced notice, and 90-day legacy applicants to remain in the only apply to new applicants and VA extension of benefits. The purpose of program for a full year after the effective establish a separate program for these this transition period is to reduce any date of the final rule so that they all individuals. Relatedly, one commenter negative impact these changes may have have the same transition period, suggested that if current participants are on current PCAFC participants. To the regardless of when during the one-year only subjected to existing criteria, the extent the commenters believe PCAFC transition period the reassessment is proposed sections on legacy participants should be a permanent program, we completed. As VA cannot assess all will not be needed. Another commenter discuss similar comments further below. legacy participants at the same time, stated that VA should retain the current As to the specific concerns about this ensures equitable treatment for standard for legacy participants and use reassessments, consistent with other everyone. the new standard for new applicants. changes VA is making to improve As to the commenter’s suggestion that This commenter noted that this would PCAFC discussed above, we believe it is there only be a two- or three-month be permissible under law and would reasonable to reassess legacy

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participants and legacy applicants to percent or more and would therefore discussed further above. We are not determine their continued eligibility meet the definition of ‘‘serious injury.’’ making any changes based on these under § 71.20(a). We understand that As explained above, VA will provide a comments. reassessments may cause anxiety for transition period for those who would Unclear Eligibility Requirements some individuals, but we are adding not qualify under the new PCAFC reassessment requirements to improve eligibility criteria, including those who Several commenters suggested VA consistency and transparency in the do not have a single or combined better clarify eligibility by having clear program. We note that reassessments are service-connected disability rating of 70 and defined standards, and by providing not just for current participants but will percent or more. Furthermore, PCAFC is examples of qualifying conditions, such be an ongoing part of PCAFC under just one of many services offered to as spinal cord injury and paralysis. § 71.30. Moreover, as the personal care veterans and servicemembers, as VA Commenters stated the eligibility needs for current participants and their offers a menu of supports and services requirements were confusing, vague, Family Caregiver(s) continue to evolve, that supports caregivers caring for and contained discrepancies. we believe it is prudent to reassess veterans such as PGCSS, homemaker Commenters also stated that there is too legacy participants and legacy and home health aides, home based much subjectivity and inconsistency applicants, as opposed to only primary care, Veteran-Directed care, and across VA and asserted that who does reviewing the initial application for adult day care health care to name a the eligibility determination varies, as PCAFC, for continued eligibility as well few. We will assist legacy participants does what they consider. One as to identify changes in their condition and legacy applicants who are commenter raised concerns that the that may impact the monthly stipend transitioning out of PCAFC by proposed eligibility criteria was more payment amount. We note that the identifying and making referrals to general than the current criteria which initial application includes basic additional supports and services, as would turn PCAFC into a ‘‘free for all.’’ information, primarily demographic in applicable. We are not making any Similarly, another commenter indicated nature and does not capture clinical changes based on these comments. fraud is prevalent in the program and information related to the needs of the recommended VA ensure the One commenter asked why the requirements are clear. VA recognizes veteran or servicemember. Additionally, proposed rule did not provide equitable eligibility determinations are complex, that improvements to PCAFC are relief to current participants who will be and we are establishing consistent required and this recognition was the adversely affected by the changes to processes and practices which include catalyst for the changes in the proposed eligibility. Similarly, another the CEATs to review evaluations rule to improve consistency and commenter recommended VA provide conducted at the local medical centers transparency in how the program is equitable relief for current PCAFC and make eligibility determinations administered. As indicated in the participants whose eligibility would be under § 71.20(a). For the foregoing proposed rule, we are standardizing adversely affected by the new definition reasons, we believe it is necessary for PCAFC to focus on veterans and of serious injury. The Secretary of legacy participants and legacy servicemembers with moderate and Veterans Affairs is authorized to grant applicants to participate in severe needs while at the same time reassessments to determine their equitable relief when the Secretary revising the eligibility criteria to continued eligibility under § 71.20(a). determines that: (a) Benefits encompass the care needs for veterans We are not making any changes based administered by VA have not been and servicemembers of all eras rather on these comments. provided by reason of administrative than only post-9/11 veterans and One commenter opposed requiring error; or (b) a person has suffered loss servicemembers. Also, it is VA’s intent legacy participants to reapply for as a consequence of reliance upon a to broaden the current criteria so as not PCAFC based on the assertion that determination by VA of eligibility or to limit eligibility to a predetermined recipients of VA disability entitlements to benefits, without list of injuries or impairments. Thus, compensation and social security knowledge that it was erroneously changes to the eligibility criteria include benefits do not have to reapply for those made. See 38 U.S.C. 503. It is unlikely revising definitions such as serious programs after they have been approved. the Secretary would consider VA’s injury, in the best interest, and inability As indicated in the proposed rule and lawful implementation of new to complete an ADL; creating a new reiterated above, VA will not require regulatory requirements in 38 CFR part definition for in need of personal care legacy participants or legacy applicants 71 to constitute an administrative error services and need for supervision, to reapply to PCAFC, rather they will be on the part of VA or application of new protection, or instruction; and reassessed within the one-year regulatory criteria to constitute establishing a transition period for transition period beginning on the erroneous eligibility determinations. legacy participants and legacy effective date of the final rule to Therefore, equitable relief would likely applicants who no longer qualify or determine continued eligibility under not be appropriate as recommended by whose stipends would be reduced by the new eligibility criteria in § 71.20(a). the commenters because the changes to these regulatory changes. VA will We are not making any changes based PCAFC eligibility would not be the further address subjectivity and on this comment. result of an error but rather a deliberate inconsistency across VA by creating a Several commenters raised concerns decision to change the eligibility centralized infrastructure for eligibility that a number of current PCAFC requirements for this program. determinations, standardizing eligibility participants would not meet the Furthermore, we note that the determinations and appeals processes, definition of serious injury specifically regulations provide a period of and implementing uniform and national and would be deemed ineligible for the transition for legacy participants and outcome-based measures to identify program. VA assessed the service- legacy applicants, as those terms are successes, best practices, and connected disability rating of eligible defined in § 71.15, who may no longer opportunities for improvement. veterans currently participating in be eligible or whose Primary Family Furthermore, in addition to PCAFC and found that approximately Caregivers will have their monthly standardizing the eligibility 98 percent have a single or combined stipends decreased as a result of determination process, VA is revising service-connected disability rating of 70 changes to PCAFC in this rulemaking, as the criteria for revocation to hold an

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eligible veteran and his or her Family are distinct as they are intended to offer such as H/HHA and VD–HCBS Caregiver(s) accountable for instances of provide different services to different than with PCAFC. Thus, because fraud or abuse under §§ 71.45(a) and groups. For example, PCAFC provides PCAFC and HCBS are distinct programs 71.47, as applicable. We thank these benefits directly to Family Caregivers with different requirements and commenters for their input; however, whereas H/HHA and VD–HCBS provide services, we make no changes based on we are not making any changes based on services directly to veterans. this comment. these comments. Additionally, as described above, these This commenter also referenced One commenter described PCAFC as benefits and services differ, as PCAFC CMS’s Self-Directed Personal Assistance an alternative to the Homemaker and provides such benefits as a monthly Services program, which falls under the Home Health Aide (H/HHA) program, stipend to Primary Family Caregivers larger umbrella of CMS’s HCBS H/HHA as an alternative to nursing and access to healthcare benefits program. We note that this is a self- home care, and PCAFC as VHA’s through the CHAMPVA for those who directed Medicaid services program that version of two Center for Medicare and otherwise are eligible. permits participants, or their Medicaid (CMS) programs: Home and As further described below, H/HHA representatives if applicable, to have Community-Based Services (HCBS) and and VD–HCBS are more aligned with decision-making authority over certain Self-Directed Personal Assistance CMS’s HCBS and Self-Directed Personal services and take direct responsibility to Services. To the extent that this Assistance Services programs, and vice manage their services with the commenter believes that PCAFC should versa, than with PCAFC. assistance of a system of available operate similar to VA’s H/HHA CMS’ HCBS programs provide supports, instead of relying on state program, and CMS’s Home and opportunities for Medicaid beneficiaries agencies to provide these services. Community-Based Services and Self- to receive services in their own home or Services covered include those personal Directed Personal Assistance Services, community rather than institutions or care and related services provided we note that these are programs distinct other isolated settings. These programs under the state’s Medicaid plan and/or from PCAFC, as explained directly serve a variety of targeted populations, related waivers a state already has in below. such as people with intellectual or place, and participants are afforded the VA’s H/HHA program provides developmental disabilities, physical decision-making authority to recruit, community-based services through disabilities, and/or mental illnesses. hire, train and supervise the individuals public and private agencies under a While HCBS programs can address the who furnish their services. As is the system of case management by VA staff. needs of individuals who need case with the overall HCBS program, H/HHA services enable frail or assistance with ADLs (similar to certain eligibility and the services covered functionally impaired persons to remain eligible veterans in PCAFC), HCBS under the Self-Directed Personal in the home. An H/HHA is a trained programs are intended to cover a Assistance Services program vary by person who can come to a veteran’s broader population as they serve state. We note that the Self-Directed home and help the veteran take care of Medicaid beneficiaries and target a Personal Assistance Services program themselves and their daily activities. variety of populations groups, such as operates similarly to VD–HCBS, in The H/HHA program is for veterans who people with intellectual or providing individuals with more need assistance with activities of daily developmental disabilities, physical autonomy over community-based living, and who meet other criteria such disabilities, and/or mental illnesses. We services they receive. Because PCAFC as those who live alone. note that HCBS eligibility varies by and Self-Directed Personal Assistance The Veteran-Directed Home and state, as these programs are part of a Services are distinct programs with Community Based Services (VD–HCBS) state’s Medicaid program. Additionally, different requirements and services, we is a type of H/HHA that provides the health care and human services that make no changes based on this veterans of all ages the opportunity to may be provided to beneficiaries can comment. receive home and community-based vary based on each state, and may Because this commenter provided no services in lieu of nursing home care include such services as skilled nursing additional context or arguments related and continue to live in their homes and care; occupational, speech, and physical to this specific comment, which is communities. In VD–HCBS, the veteran therapies; dietary management; otherwise unclear, we are unable to and veteran’s caregiver will: Manage a caregiver and client training; pharmacy; further respond. We are not making any flexible budget; decide for themselves durable medical equipment; case changes based on this comment. what mix of services will best meet their management; hospice care; adult day Negative Impact on Post-9/11 Veterans personal care needs; hire their own care; home-delivered meals; personal personal care aides, including family or care; information and referral services; Many commenters supported neighbors; and purchase items or financial services; and legal services. expansion of PCAFC to include veterans services to live independently in the The services are provided by lead of all eras of military service, and community. VD–HCBS is offered as a agencies and other service providers ensuring that those with the greatest special component to the and are much broader than those that need are eligible for PCAFC, regardless Administration for Community Living’s we are authorized to provide pursuant of era served. We thank them for their (ACL) Community Living Program to 38 U.S.C. 1720G for purposes of comments. On the other hand, several (CLP). The ACL–VA joint partnership PCAFC. Whereas PCAFC provides commenters opposed the proposed combines the expertise of ACL’s benefits to the Family Caregiver of the eligibility criteria because they believe it national network of aging and disability eligible veteran (in support of the focuses on pre-9/11 and geriatric service providers with the resources of wellbeing of the eligible veteran), HCBS veterans at the expense of post-9/11 and VA to provide veterans and their provides health care and human younger veterans. Commenters stated caregivers with more access, choices services directly to the Medicaid that this is unfair, punitive, and and control over their long-term services beneficiary (who is more similar to the inconsistent with Congressional intent, and supports. eligible veteran than the Family and would result in current participants While there may be some veterans Caregiver in terms of their needs). As being ineligible for PCAFC. Some that are eligible for PCAFC as well as H/ explained previously, we consider commenters specifically asserted that HHA and/or VD–HCBS, these programs HCBS to be more like other programs we the VA MISSION Act of 2018 only

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expanded PCAFC eligibility, and that the necessary funds for expansion. The a single or combined service-connected making changes that restrict eligibility 2020 President’s Budget included disability rating of 70 percent or more. are not in line with Congress’s intent in estimated funding to meet the caregiver This level of service-connected enacting the VA MISSION Act of 2018. population expansion from the disability means that a veteran is in One of the commenters also noted that MISSION Act. The Further Consolidated receipt of VA disability compensation. the proposed changes to the regulations Appropriations Act, 2020 (Pub. L. 116– Thus, we do not find it appropriate to have affected their own health. One 94) included sufficient funding to meet exclude those in receipt of other VA commenter opposed the new criteria the Caregiver Program cost estimates. benefits since that would exclude the and asserted that it would result in The 2021 President’s Budget included a population of eligible veterans on which current participants who receive funding request for the Caregiver we are focusing PCAFC. We are not stipends at tier one no longer being Program based on the same updated making any changes based on this eligible for PCAFC, which they allege projection model as used to formulate comment. was VA’s intention. This commenter the regulatory impact analysis budget Another commenter requested VA asserts that because Congress did not impact for this rulemaking. Future elaborate on the number of post-9/11 provide the necessary funds for President’s Budget requests will veterans who will still be eligible for expansion, VA found it necessary to incorporate new data and updated cost PCAFC under the new requirements. We revise the eligibility criteria, and this projections as they become available. note that the regulatory impact analysis commenter requests VA be transparent For a detailed analysis of the costs of for the final rule includes information about that rationale. Relatedly, one this program, please refer to the on current participants who may no commenter requested additional regulatory impact analysis longer be eligible for PCAFC, based on funding be provided to support accompanying this rulemaking. specific assumptions we have made. We expansion of the program. We are not making any changes based make no changes based on this We acknowledge the commenters’ on these comments. comment. concerns and thank veterans and One commenter suggested that if Physical Disabilities Versus Mental caregivers for sharing their personal budgetary concerns are the basis for the Health and Cognitive Disabilities stories and experiences with PCAFC. changes in eligibility requirements, then We also note that commenters raised VA should start by excluding those Multiple commenters expressed concerns about their mental health. We veterans who can work and still get VA concern that the eligibility requirements encourage such veterans and caregivers benefits, salary, and caregiver benefits. focus more on physical disabilities to seek assistance through their health As stated above, budgetary concerns did rather than mental health and cognitive care provider. If you are a veteran in not form the basis for changing the disabilities, and requested the eligibility crisis or you are concerned about one, eligibility criteria; rather, VA’s proposed criteria account for non-physical free and confidential support is changes recognized and addressed disabilities (including mental, available 24/7 by calling the Veterans opportunities for improvement and the emotional, and cognitive disabilities), Crisis Line at 1–800–273–8255 and need to make PCAFC more inclusive to such as TBI, PTSD, and other mental Press 1 or by sending a text message to veterans and servicemembers of all eras. health conditions, as the commenters 838255. Further, we note that the authorizing asserted that veterans with these As indicated in the proposed rule, VA statute does not condition eligibility for conditions often need as much, if not recognizes that improvements to PCAFC PCAFC on whether a veteran or more, caregiver assistance as those with are needed to improve consistency and servicemember cannot work or is not in physical disabilities. Other commenters transparency in decision making. We receipt of other VA benefits; instead, it opposed removal of the phrase note that many of the changes we is based on specific criteria such as ‘‘including traumatic brain injury, proposed were made in response to whether the veteran or servicemember psychological trauma, or other mental complaints that VA has received about has a serious injury and is in need of disorder’’ from current § 71.20 because the administration of the program and personal care services. Thus, we do not they believe doing so would be contrary these changes are designed to ensure believe that it is reasonable to regulate to the authorizing statute and improvement in the program for all PCAFC eligibility based on employment Congressional intent. One commenter eligible veterans—to include current status, individual financial situations, or raised concerns that veterans may not be and future participants, from all eras of eligibility for other programs; but rather eligible for PCAFC despite being 100 service. Further, we are standardizing PCAFC eligibility focuses on the need percent disabled for conditions such as PCAFC to focus on veterans and for personal care services, among other PTSD, particularly as ADLs do not take servicemembers with moderate and factors, consistent with 38 U.S.C. into account flash backs, dissociation, severe needs while at the same time 1720G. panic attacks, or other PTSD-related revising the eligibility criteria to To the extent this commenter believes issues. One commenter opined that encompass the care needs for veterans that veterans who can work should not veterans with mental health conditions and servicemembers of all eras rather be eligible for PCAFC, we refer the should not have to show they are than only post-9/11 veterans and commenter to the section on the physically unable to do something servicemembers. definition of ‘‘in need of personal care particularly if they do not mentally We note that we are not expanding services’’ in which we discuss know how to do so. However, one PCAFC to pre-9/11 veterans at the employment of eligibility veterans and commenter noted that if VA wants to expense of post-9/11 veterans and Family Caregivers. elaborate on the specific injuries that servicemembers; rather, the changes to We also do not believe PCAFC would qualify for PCAFC, that would be PCAFC’s eligibility criteria are intended eligibility should be conditioned on appropriate. to ensure that PCAFC is inclusive of whether a veteran or servicemember is We are not seeking to restrict PCAFC veterans and servicemembers of all eras, not in receipt of other VA benefits as to veterans and servicemembers with consistent with the VA MISSION Act of eligibility for PCAFC is, in part, only physical disabilities. Section 2018. conditioned upon the veteran or 1720G(a)(2)(B) of title 38, U.S.C. is clear Additionally, we disagree with the servicemember having a serious injury, that the term ‘‘serious injury’’ includes assertion that Congress did not provide which we define in this rulemaking as TBI, psychological trauma, and other

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mental disorders for purposes of protection, or instruction,’’ it was VA’s care services. We make no changes PCAFC. Consistent with the statutory intent to broaden the current criteria so based on this comment. authority, the current and new PCAFC as not to limit eligibility to veterans and One commenter noted that PTSD is regulations are inclusive of the servicemembers with a predetermined often accompanied by other health caregiving needs of veterans with list of impairments. Id. Instead of conditions that can exacerbate the cognitive, neurological and mental focusing on specific injuries, symptoms, underlying health condition (for health disabilities, including those who or diagnoses, this term allows us to example, PTSD with blindness, hearing suffer from PTSD and TBI. While we are consider all functional impairments that problems, and diabetes), and suggested removing the phrase ‘‘including may impact the veteran’s or that we ‘‘raise the percentage for traumatic brain injury, psychological servicemember’s ability to maintain his additional handicaps compounded by trauma, or other mental disorder’’ from or her personal safety on a daily basis, PTSD.’’ To the extent that this § 71.20, we are doing so because such among other applicable eligibility commenter is stating that veterans and conditions would be captured by our criteria. We are not making any changes servicemembers may have comorbid proposed definition of serious injury based on these comments. conditions that exacerbate one another (i.e., requiring a single or combined One commenter viewed the program and that such individuals may be in percent service-connected disability as intended for older veterans, and felt need of a caregiver, we agree. We rating of 70 percent or more). Under the that because the commenter is younger, encourage these individuals and their new regulations, we will still consider he or she is viewed as being able to do caregivers to contact their local VA treatment team and/or the local CSC to cognitive, neurological, and mental things themselves when that is not the learn more about supports and services health disabilities as part of the case. The commenter questioned how a available to provide assistance, definition of serious injury, and veteran can have a 100 percent service- including PCAFC. If this commenter is veterans who have such disabilities will connected disability rating, but ‘‘barely requesting an increase to VA disability still be eligible to apply for PCAFC. We qualify’’ for PCAFC. This commenter ratings for purposes of other VA benefit further note that mental health care is suggested the eligibility determinations programs, such comment is outside the among VA’s top priorities in providing should consider a list of diagnoses, scope of this rulemaking. We make no health care to veterans. including those listed in the DSM–5, changes based on this comment. Additionally, VA’s regulations, as instead of blanket questions that do not One commenter noted that VA should revised through this rule, make clear apply to each diagnosis. As previously have better training and tools to assess that a veteran or servicemember can be discussed, we are standardizing the dementia. To the extent the commenter deemed to be in need of personal care program to focus on veterans and believes VA should provide better services based on either: (1) An inability servicemembers with moderate and training and tools to VA providers who to perform an ADL, or (2) a need for severe needs based on their need for assess dementia in general, unrelated to supervision, protection, or instruction. personal care services, not on their PCAFC, we believe this comment is The term ‘‘need for supervision, specific diagnoses. Further, as explained beyond the scope of this rulemaking. To protection, or instruction’’ means the in the preceding paragraph, the the extent the commenter believes such individual has a functional impairment definition need for supervision, training and tools are necessary for that impacts the individual’s ability to protection, or instruction, allows VA to purposes of determining PCAFC maintain his or her personal safety on focus on the veteran’s level of eligibility, we note that the PCAFC a daily basis. This term ‘‘would impairment and functional status as eligibility criteria do not focus on represent and combine two of the opposed to specific injuries, symptoms, veterans’ or servicemembers’ specific statutory bases upon which a veteran or or diagnoses, which could be too diagnoses, but we believe an individual servicemember can be deemed in need restrictive and limiting, and fail to focus with dementia could qualify for PCAFC of personal care services—‘a need for on the specific needs of the eligible if the individual is determined to be in supervision or protection based on veteran. For example, two veterans have need of personal care services based on symptoms or residuals of neurological similar service-connected disability a need for supervision, protection, or or other impairment or injury,’ and ‘a ratings for PTSD. One veteran has been instruction, for example, among other need for regular or extensive instruction engaged in treatment, has progressed in applicable eligibility criteria. or supervision without which the ability his or her level of independence such Additionally, as we explain throughout of the veteran to function in daily life that he or she no longer requires a this discussion, eligibility would be seriously impaired.’ See 38 Family Caregiver, and thus is not in determinations for PCAFC will be based U.S.C. 1720G(a)(2)(C)(ii) and (iii), as need of personal care services at this upon evaluations of both the veteran amended by Public Law 115–182, time. The other veteran has recently and caregiver applicant(s) conducted by section 161(a)(2).’’ 85 FR 13363 (March been diagnosed with PTSD, with clinical staff at the local VA medical 6, 2020). We believe these two bases of symptoms that negatively impact his or center based upon input from the eligibility are inclusive of the personal her cognitive function such that primary care team to the maximum care service needs of veterans and personal care services are needed to extent practicable. These evaluations servicemembers with a cognitive, maintain his or her safety on a daily include assessments of the veteran’s neurological, or mental health basis. In this example, two veterans functional status and the caregiver’s impairment, to include TBI or PTSD. have similar service-connected ability to perform personal care services. Furthermore, we do not believe disability ratings and diagnoses; Additional specialty assessments may elaborating or listing specific injuries however, they have vastly different also be included based on the that would qualify a veteran or levels of independence and needs for individual needs of the veteran or servicemember for PCAFC would serve personal care services. Thus, we do not servicemember. When all evaluations to broaden the bases upon which an believe considering a list of specific are completed, the CEAT will review individual may meet criteria for PCAFC, diagnoses that would qualify a veteran the evaluations and pertinent medical as doing so could suggest that PCAFC is or servicemember for PCAFC would be records, in order to render a limited to only those listed conditions. appropriate, as it would not account for determination. We note that we will In defining ‘‘need for supervision, the eligible veteran’s need for personal provide in depth training and education

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to clinical staff at local VA medical will provide a transition period for may be 100 percent service-connected centers and CEATs to perform PCAFC those who do not meet the new for PTSD however through consistent, assessments and evaluations, and eligibility criteria under § 71.20(a). ongoing treatments, has developed the eligibility determinations, including Additionally, we are standardizing tools to effectively manage symptoms whether the veteran is determined to be eligibility determinations and appeals to associated with PTSD to the level of not unable to self-sustain in the community include the use of a CEAT to reduce the requiring personal care services from for the purposes of PCAFC, respectively. possibility of errors in PCAFC eligibility another individual. Furthermore, the We make no changes based on this determinations, revocations, and stipend rate for Primary Family comment. discharges. Caregivers is based upon the amount Finally, this criterion has never been Removal of Current § 71.20(c)(4) and degree of personal care services a requirement under 38 U.S.C. 1720G, provided. See 38 U.S.C. Several commenters expressed rather it is authorized by 38 U.S.C. 1720G(a)(3)(C)(i). Therefore, it would concern over the removal of current 1720G(a)(2)(C)(iv) as a possible basis not be appropriate for VA to pay a § 71.20(c)(4) (i.e., a veteran rated 100 upon which an individual can be caregiver using the service-connected percent disabled for a serious injury and deemed in need of personal care disability rating percentage as the awarded SMC that includes an aid and services. As explained above and in percentage of the monthly stipend rate. attendance (A&A) allowance) as an VA’s proposed rule, the Part 3 In addition, we have separately eligibility criterion. Specifically, regulatory criteria governing award of addressed the commenter’s commenters were concerned that these SMC fail to provide the level of recommendation for the stipend amount veterans would be wrongly removed objectivity VA seeks in order to ensure in the section discussing the monthly from PCAFC by CSP staff at medical that PCAFC is administered in a fair and stipend rate and 38 CFR 71.40(c)(4). We centers or at the VISNs, and one consistent manner for all participants, are not making any changes based on commenter questioned why VA would and, we no longer believe this criterion this comment. not keep this as a criterion that meets is necessary or appropriate. We are not One commenter suggested veterans eligibility and asserted that it serves as making any changes based on these and servicemembers should apply on a a safety net for those at most risk. Also, comments. case-by-case basis. Every application is commenters asserted that an A&A reviewed individually; however, we Alternative Eligibility Requirements allowance is paid to the veteran while believe standard eligibility criteria are the monthly stipend is paid to the One commenter suggested that all necessary to increase transparency and caregiver so it would not be a veterans have caregivers so all should ensure consistency nationwide. We are duplication of benefits. Additionally, qualify and be paid based on the not making any changes based on this commenters incorrectly asserted that percentage of their service-connected comment. this criterion is a statutory requirement. disability rating such that a caregiver for We agree that an A&A allowance and a veteran with a 10 percent service- Permanent Program the monthly stipend rate would not be connected rating would receive 10 Multiple commenters suggested that a duplication of benefits; however, to percent of the monthly stipend rate. VA this should be a permanent program and ensure that PCAFC is implemented in a disability compensation provides requested we add language to the standardized and uniform manner monthly benefits to veterans in regulation to automatically determine across VHA, we believe each veteran or recognition of the effects of disabilities, those who are permanently and totally servicemember must be evaluated based disease, or injuries incurred or disabled as eligible for PCAFC. One on whether he or she has an inability to aggravated during active military service commenter favored a permanent perform an ADL or a need for and the eligibility criteria are specific to eligibility designation but inquired what supervision, protection, or instruction determining a disability compensation. that would be, while several others pursuant to § 71.20(a)(3)(i) and (ii). As This is different from a clinical suggested that those with 100 percent discussed above regarding the definition evaluation for determining whether a permanent and total (P&T) disability for an inability to perform an ADL, VA veteran or servicemember is eligible for ratings should receive automatic and/or will utilize standardized assessments to PCAFC. PCAFC is a clinical program permanent eligibility for PCAFC and evaluate both the veteran or that requires a veteran or servicemember that PCAFC eligibility should be treated servicemember and his or her identified to have a serious injury and be in need similar to disability compensation caregiver when determining eligibility of personal care services based on an ratings in which VA provides payment for PCAFC. It is our goal to provide a inability to perform an ADL or a need but otherwise leaves veterans alone, program that has clear and transparent for supervision, protection, or such that they are not further eligibility criteria that is applied to each instruction. A veteran with a service- monitored, evaluated, or reassessed. and every applicant, and not all connected disability rating may or may Relatedly, one commenter suggested veterans and servicemembers applying not have a serious injury and be in need that those with 100 percent P&T for or participating in PCAFC will have of personal care services from a disability rating, in addition to being been evaluated by VA for the ratings caregiver for purposes of PCAFC. While enrolled in PCAFC for more than five described in current § 71.20(c)(4). Thus, a service-connected disability rating is years, should be permanently admitted while we believe any veteran or part of the definition of serious injury, to PCAFC. A 100 percent P&T disability servicemember who would qualify for it is not used to determine a veteran’s rating applies to disabilities that are PCAFC based on current § 71.20(c)(4) or servicemember’s need for personal total (i.e., any impairment of mind or would likely be eligible under the other care services for purposes of PCAFC body which is sufficient to render it criteria in § 71.20(a)(3)(i) and (ii) (see 85 eligibility. Instead, we assess the impossible for the average person to FR 13372 (March 6, 2020)), VA will still clinical needs of the individual to follow a substantially gainful require a reassessment pursuant to determine whether he or she is in need occupation) and permanent (i.e., § 71.30 to determine continued for personal care services. Service- impairment is reasonably certain to eligibility under § 71.20(a).-Also, as connected disability ratings are not continue throughout the life of the explained above regarding legacy commensurate with a need for personal disabled person). See 38 CFR 3.340. participants and legacy applicants, VA care services. For example, a veteran However, we reiterate that PCAFC is a

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clinical program that requires a veteran eligible veteran, among other criteria, to replace an eligible veteran’s ongoing or servicemember to have a serious and not based on whether a caregiver engagement with his or her treatment injury incurred or aggravated in the line has given up their career to care for the team. We are not making any changes of duty, and be in need of personal care eligible veteran. We are not making any based on these comments. changes based on this comment. services based on an inability to perform PCAFC Should Operate Similar to an ADL or a need for supervision, Paying People To Not Get Better Welfare Type Programs protection, or instruction, and is designed to support the health and well- Commenters raised concerns that One commenter suggested that being of such veterans, enhance their PCAFC incentivizes veterans to not ‘‘get PCAFC operate similar to welfare type ability to live safely in a home setting, better’’ and remain sick and debilitated, programs, in which individuals are and support their potential progress in when it should focus instead on required to apply every time they have rehabilitation, if such potential exists. improving health. Commenters were a need and have a responsibility to See 85 FR 13367 (March 6, 2020). Thus, concerned that PCAFC benefits, such as check-in with the agency. As indicated PCAFC is intended to be a program the stipend, are too generous, cause in the proposed rule, we will require under which the eligible veteran’s dependency and discourage participants both the eligible veteran and Family eligibility may shift depending on the from working or contributing to society, Caregiver(s) to participate in periodic changing needs of the eligible veteran. resulting in depression and low self- reassessments for continued eligibility We do acknowledge that while some esteem. We note that PCAFC is a as well as to participate in wellness eligible veterans may improve over clinical program and as such, the safety, contacts, which focus on supporting the time, others may not, and PCAFC and health and wellbeing of those served by health and wellbeing of eligible veterans other VHA services are available to the program is a core objective. The and his or her Family Caregivers. We ensure the needs of those veterans potential for rehabilitation or increased note that failure to participate in either continue to be met. We note that independency occurs on a spectrum. may lead to revocation from the participation in PCAFC may not always While some eligible veterans have the program under § 71.45 Revocation and be appropriate to meet the needs of a ability to rehabilitate or gain Discharge of Family Caregivers. We veteran who has a 100 P&T disability independence from his or her caregiver, believe these requirements are sufficient rating. We conduct ongoing wellness which we do support if there is such to ensure continued eligibility and contacts and reassessments to ensure potential, we recognize that some maintain open communication with VA. eligible veterans may remain eligible for the needs of the eligible veteran and We are not making any changes based PCAFC on a long-term basis. This is Family Caregiver are met over time, and on this comment. particularly true as we expand to other care needs may be addressed veterans and servicemembers of earlier Technical Question through referrals to other VA and non- eras. Thus, while we understand the One commenter was confused about VA services, as appropriate. For commenters’ concerns, we must be our reference to proposed § 71.20(a)(4) example, over time, personal care cognizant of the reality that not all when explaining in the best interest services from a Family Caregiver at eligible veterans will improve to the under current § 71.20(d), and asserted home may not be appropriate because point of no longer being in need of that there is no § 71.20(a)(3) which nursing home care or other institutional personal care services. We note that our would make (a)(4) impossible. As placement may be more appropriate. definition of in the best interest requires indicated in the proposed rule, we are Furthermore, it is also important to note a consideration of whether participation restructuring current § 71.20 to that 38 U.S.C. 1720G(c)(2)(B) clearly in the program supports the veteran’s or accommodate temporary eligibility for articulates that the assistance or support servicemember’s potential progress in legacy participants (§ 71.20(b)) and provided under PCAFC and PGCSS do rehabilitation or potential legacy applicants (§ 71.20(c)). As such, not create any entitlements. We are not independence, if such potential exists. the current eligibility criteria under making any changes based on these Therefore, we will continue to evaluate current § 71.20 have been revised and comments. whether PCAFC is in the best interest of redesignated under § 71.20(a). Thus, Another commenter supported having eligible veterans and support those who current § 71.20(a) has been redesignated a permanent designation for PCAFC as have the potential for improvement, as § 71.20(a)(1); current § 71.20(b) has caregivers often give up their careers to when such potential exists. Further, been revised and redesignated as care for a veteran. As explained above, eligible veterans and Family Caregivers § 71.20(a)(2); § 71.20(c) has been revised PCAFC is a clinical program that participating in PCAFC will engage in and redesignated as § 71.20(a)(3); and requires a veteran or servicemember to wellness contacts, which focus on current § 71.20(d) has been revised as be in need of personal care services supporting the health and wellbeing of redesignated as § 71.20(a)(4). We make based on an inability to perform an ADL both the eligible veteran and his or her no changes based on this comment. or a need for supervision, protection, or Family Caregivers. During wellness instruction. Furthermore, the monthly contacts, VA clinical staff will engage § 71.25 Approval and Designation of stipend payment provided under with eligible veterans and their Family Primary and Secondary Family PCAFC is meant to be an Caregivers to identify any current needs. Caregivers acknowledgement of the sacrifices that For example, during a wellness contact, Several commenters questioned how Primary Family Caregivers make to care a clinician may recognize an eligible VA will conduct eligibility assessments, for eligible veterans. 76 FR 26155 (May veteran struggling with depression or including who will conduct these 5, 2011). Thus, PCAFC is not intended low self-esteem and intervene assessments and requested additional to replace or supplement a caregiver’s accordingly. Such intervention may information. Specifically, commenters loss of income by giving up their include referrals to support groups or asserted VA needs to identify who will careers. While we understand that some other services to address the specific conduct eligibility assessments and veterans and servicemembers may needs of the eligible veteran. We also have limitations on who this may be. remain in PCAFC indefinitely, note that PCAFC is just one way VA One commenter questioned how VA eligibility for PCAFC is based on the supports eligible veterans and Family will ensure standardization for level of personal care needs of the Caregivers and that PCAFC is not meant eligibility assessments and

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reassessments. One commenter opined remove the language in current wellbeing and we appreciate the that VA has no consistent protocols for § 71.25(a)(3) referencing that an comment. Another commenter evaluating PCAFC applicants. Another application may be put on hold for no questioned how VA will determine the commenter asked how VA will hold more than 90 days. Additionally, while competence of a caregiver to provide employees accountable for errors and we already have the authority in personal care services. The same asserted the need for independent § 71.40(d)(1) to extend the designation commenter questioned whether VA will reviews. We address these comments timeline for up to 90 days, we remove assess competence by demonstration below. the 45-day designation timeline in and whether it will be a verbal or Eligibility determinations for PCAFC current paragraph (d)(1) and add the 90- physical demonstration of the required will be based upon evaluations of both day designation timeline in personal care services. The the veteran and caregiver applicant(s) § 71.25(a)(2)(ii), as we proposed and determination that a caregiver is conducted by clinical staff at the local now make final. We are not making any competent to provide personal care VA medical center. These evaluations changes based on this comment. services is a clinical judgement which include assessments of the veteran’s or Several commenters took issue with may include verbal or physical servicemember’s functional status and the use of the word ‘‘may’’ in proposed demonstration as necessary based on the the caregiver’s ability to perform § 71.25(a)(2)(ii). Specifically, one individual circumstances of the veteran personal care services. Additional commenter stated it is clearly arbitrary or servicemember and his or her specialty assessments may also be to allow VA to reserve the right to deny caregiver. We make no changes based on included based on the individual needs an application even where the failure to this comment. of the veteran or servicemember. When meet the 90-day timeline is due to VA’s One commenter suggested we revise all evaluations are completed, the CEAT own fault. Another commenter asserted the regulation text to allow VA the will review the evaluations and it contradicts the preamble which states flexibility to sub-contract a provider or pertinent medical records, in order to VA would not penalize an applicant if providers to complete the initial home- render a determination on eligibility for he or she cannot meet the 90-day care assessment to ensure that the 90- PCAFC, including whether the veteran timeline as a result of VA’s delay in day period for application review is met is determined to be unable to self- completing eligibility evaluations. by stating, ‘‘VA, or designee, will visit sustain in the community for the While we would not penalize an the eligible veteran’s home . . .’’ in purposes of PCAFC. applicant if he or she cannot meet the § 71.25(e). The same commenter further The CEATs are comprised of a 90-day timeline as a result of VA’s delay noted that the designee language can standardized group of inter- in completing eligibility evaluations, also be added to the reassessments and professional, licensed practitioners with providing necessary education and the wellness contacts sections. As specific expertise and training in the training, or conducting the initial home- previously discussed, VA does not eligibility requirements for PCAFC. care assessment, we believe it is prudent believe the use of contracted services Furthermore, we will provide in depth to make this determination on a case-by- would provide standardized care for training and education to clinical staff at case basis. For example, we do not participants and would hinder VA’s local VA medical centers and CEATs, believe an applicant who is non- ability to provide appropriate oversight and conduct vigorous oversight to responsive to repeated attempts to and monitoring. We make no changes ensure consistency across VA in conduct an initial in-home assessment based on this comment. implementing this regulation including through day 89 and then responds to VA conducting regular audits of eligibility on day 90 that he or she is available One commenter disagreed with the determinations. We make no changes should receive an extension. However, language ‘‘the Family Caregiver(s) based on these comments. an applicant who is responsive and providing the personal care services One commenter incorrectly asserted agrees to an initial in-home assessment required by the eligible veteran’’ in that neither the Caregivers Act nor VA’s but VA cancels or reschedules the initial § 71.25(f). Specifically, this commenter current regulations impose a time limit in-home assessment beyond the 90-day noted that insufficient justification was for completion by the Family Caregiver timeline, would receive an extension. provided for this requirement, and it of such instruction, preparation, and We are not making any changes based would be impossible based on the training. Current § 71.40(d) provides a on these comments. ‘‘continuous’’ requirement in the 45-day timeline to ‘‘complete all One commenter expressed definition of unable to self-sustain in necessary education, instruction, and disappointment by the lack of the community. This commenter training so that VA can complete the description on the process by which asserted that there are numerous designation process no later than 45 current participants will be evaluated. situations where excellent care is days after the date that the joint We direct the commenter to our provided to the veteran where the application was submitted.’’ previous description of the eligibility designated ‘‘caregiver’’ acts like a Furthermore, VA may provide an process in this section. As indicated in caregiving manager by monitoring the extension for up to 90 days after the the proposed rule, legacy participants quality of the care given by third parties date the joint application was and legacy applicants will be reassessed with whom the designated caregiver submitted. Additionally, current under § 71.30(e) for continued eligibility may contract and pay for using the § 71.25(a)(3) permits an application to under § 71.20(a) within the one-year stipend provided. The same commenter be put on hold for no more than 90 period beginning on the effective date of further opined that nothing in days, from the date the application was this rule. Further, § 71.40(c) provides a Congressional deliberations and the received, for a veteran or servicemember transition plan for Primary Family proposed rule included a discussion of seeking to qualify through a GAF test Caregivers who may experience a how caregivers who manage and score of 30 or less but who does not reduction in the monthly stipend or monitor caregiving provided by others have a continuous GAF score available. discharge from PCAFC as a result of the have been providing inadequate quality As indicated in the proposed rule, we eligibility criteria in § 71.20(a). We make of care. Further, the same commenter are proposing to eliminate use of the no changes based on this comment. stated that VA has been unable to GAF score as a basis for eligibility under One commenter applauded VA for provide a response to this issue during current § 71.20(c)(3). Therefore, we including assessment of the caregiver’s various meetings and follow-up requests

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for information. We respond to this the time as long as they are available to Caregiver be a member of the eligible comment below. provide the required personal care veteran’s family (i.e., spouse, son, As indicated in the proposed rule, services. Furthermore, respite care is a daughter, parent, step-family member, part of the eligibility requirements for benefit provided to Family Caregivers; or extended family member), or if not a veterans and servicemembers is that thus, we would not penalize a Family family member, live with the eligible they are in need of personal care Caregiver for the use of respite care. To veteran, or will do so if designated as a services; thus, we believe it is the extent this commenter had concerns Family Caregiver, are set forth in 38 reasonable to require that a Family about the use of ‘‘continuous’’ in the U.S.C. 1720G(d)(3). We make no Caregiver actually provides personal definition of ‘‘unable to self-sustain in changes based on these comments. care services to an eligible veteran. 85 the community,’’ we further refer the One commenter expressed concern FR 13378 (March 6, 2020). Further, commenter to the related discussions in that there are no rules regarding how current § 71.20(e), which we are the section on the definitions of ‘‘need many veterans a caregiver can care for redesignating as § 71.20(a)(5), requires for supervision, protection, or and that seems to be more of a business that personal care services that would instruction,’’ and ‘‘unable to self-sustain model versus a family caregiving model be provided by the Family Caregiver in the community.’’ We are not making as the caregiver will be at high risk for will not be simultaneously and regularly any changes based on these comments. burn out. The commenter is correct that provided by or through another We received several comments that we do not have restrictions in place for individual or entity. This requirement is the proposed rule did not provide how many eligible veterans a Family to ensure that the designation of a enough information to provide informed Caregiver may be assigned to as the Primary Family Caregiver is authorized comments on the eligibility individual circumstances for each for those who do not simultaneously determination process and the initial eligible veteran and his or her Family and regularly use other means to obtain assessment, and the lack of this Caregiver are unique. However, we personal care services. 76 FR 26151 information has forced commenters to believe that the criteria in part 71 to (May 5, 2011). Additionally, 38 U.S.C. accept a fundamentally flawed include a determination of in the best 1720G(a)(3)(A)(ii) specifically uses the regulation because of the inability of VA interest, wellness contacts, and phrase ‘‘the primary provider of to meet the legislative deadlines for revocation based on a Family personal care services for an eligible PCAFC expansion. One commenter Caregiver’s neglect, abuse, or veteran . . .’’ Further, it is our intent to specifically stated that after the exploitation of the eligible veteran, ensure that a Family Caregiver is not proposed rule was published, they establish safeguards to protect both the dependent on VA or another agency to requested additional information from eligible veteran and his or her Family provide personal care services that the VA about how the proposed eligibility Caregiver in circumstances where the Family Caregiver is expected to provide. evaluation/reassessment process will Family Caregiver provides personal care 76 FR 26151 (May 5, 2011). If there is work, including any assessment services to more than one eligible a desire by a veteran or servicemember instruments that VA staff will use. The veteran. We make no changes based on and his or her caregiver to manage same commenter stated that because VA this comment. personal care services provided through did not adequately explain how the One commenter emphasized the need other services, such as H/HHA, then we process will work, they still had for continued training for Family will refer applicants to other VA or non- questions and concerns about it and Caregivers, beyond the initial eligibility VA services available to them. We make believe that VA should publish a requirements. Another commenter no changes based on this comment. supplemental notice of proposed asserted VA should partner with the One commenter stated that it makes rulemaking (NPRM) or an interim final National Alliance for Mental Illness sense to require that the Primary rule (IFR) with this process explained to (NAMI) to provide mandatory training Caregiver provide the personal care provide an opportunity for public to an eligible veteran’s care team and services to the veteran, but was comment. Additionally, commenters Family Caregiver. Although we do not concerned about the inclusion of the expressed concern that PCAFC has been have an explicit requirement for language that the Family Caregiver only marked by deep systemic structural continued education, we do provide be absent for ‘‘brief’’ periods of time. defects which can only be resolved by continuing instruction, preparation, This commenter requested VA remove placing these procedures into regulation training and technical support to language that the Family Caregiver only as opposed to policy. We believe we caregivers; this includes training outside be absent for ‘‘brief’’ periods of time or provided sufficient information within of the core curriculum. Also, we are clearly define ‘‘continuous’’ and ‘‘brief the proposed rule and disagree with the establishing an explicit requirement for absences’’ to ensure caregivers are not assertion that VA should publish a both the eligible veteran and his or her penalized for seeking employment or supplemental NPRM or an IFR. Family Caregiver to participate in respite care. This commenter asserted Additionally, VA has the ability to reassessments and wellness contacts, that caregiving takes a significant toll on determine certain aspects of PCAFC pursuant to § 71.30 and § 71.40(b)(2) caregivers. Commenters also expressed through policy and we believe it is respectively. Additionally, these concerns about whether VA expects the necessary to have the flexibility to reassessments and wellness contacts caregiver to always be present, modify processes to address the will allow VA to assess whether a including those who work. We clarify changing needs of the program, which Family Caregiver requires any that it is not our intent to prevent we are able to do more quickly through additional training to provide the caregivers from working as we are policy change than through rulemaking. personal care services required by the cognizant that the monthly stipend is an We are not making any changes based eligible veteran. We appreciate the acknowledgement of the sacrifices made on these comments. suggestion to partner with NAMI and by caregivers but may fall short of the Several commenters asserted that a will consider it. We make no changes income a caregiver could receive if they Family Caregiver should live with the based on these comments. were employed. The situation for each eligible veteran regardless of whether Multiple commenters expressed veteran or servicemember and his or they are a family member. We concern over the vetting process for caregiver is unique, and we understand appreciate the commenters’ concerns; Family Caregivers and one suggested that caregivers may not be present all of however, the restrictions that a Family that VA verify the identity of a Family

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Caregiver and conduct background the initial assessment determination, of the designated Family Caregiver(s).’’ checks (e.g., criminal, financial, legal). particularly as an eligible veteran’s and 85 FR 13378 (March 6, 2020). As part of VA Form 10–10CG, Family Caregiver’s continued eligibility Additionally, 38 U.S.C. 1720G(c)(2)(A) Application for the Program of for the program can evolve.’’ The same clearly articulates that the assistance or Comprehensive Assistance, veterans commenter asserted the closest the law support provided under PCAFC and and Family Caregivers are required to comes to identifying any such PGCSS do not create any entitlements; provide identifying information requirement is 38 U.S.C. 1720G(a)(9) thus, VA may conduct reassessments for including name, and date of birth. which only says ‘‘The Secretary shall PCAFC to determine continued Further, applicants are required to monitor the well-being of each eligible eligibility under § 71.20(a). Further, we certify the information provided is true veteran . . .’’ and ‘‘Visiting an eligible believe the VA MISSION Act of 2018 and sign the form. While we do not veteran in the eligible veteran’s home to clearly articulated Congress’s intent to require a Social Security Number (SSN) review directly the quality of personal ensure continued engagement between or Tax Identification Number (TIN) for care services provided . . .’’ The same VA and PCAFC participants by the application, an SSN or TIN is commenter further stated that nowhere requiring VA to ‘‘periodically evaluate required in order for a stipend payment does it say there has to be any type of the needs of the eligible veteran and the to be issued. These commenters were reevaluation or review, let alone of any skills of the [F]amily [C]aregiver of such also concerned about the potential for particular periodicity. We address these veteran to determine if additional abuse of the eligible veteran and comments below. instruction, preparation, training, or asserted VA should do its due diligence PCAFC is a clinical program, and technical support . . . is necessary.’’ 38 prior to providing a stipend to Family similar to any other clinical program, a U.S.C. 1720G(a)(3)(D), as amended by Caregivers. We believe a veteran or their reassessment is appropriate to assess Public Law 115–182, section 161(a)(5). surrogate has the right to designate a both the condition and needs of the For these reasons, we believe VA has caregiver of their choosing and that as eligible veteran and the Family the statutory authority to require long as we do not determine there is Caregiver. This is particularly true given reassessments for all PCAFC neglect, abuse, or exploitation of the the unique circumstances for each participants regardless of the condition eligible veteran, we will approve the eligible veteran and his or her Family of the eligible veteran. We are not caregiver the eligible veteran designates, Caregiver as we expand to include making any changes based on these if all other eligibility requirements are veterans and servicemembers from all comments. met. As part of PCAFC, we have eras. For example, an eligible veteran Several commenters stated that a mechanisms in place, and regulated in may be admitted into PCAFC at the yearly reassessment would be too part 71, to ensure that there is no fraud, lower-level stipend (i.e., 62.5 percent of burdensome, specifically for veterans or neglect, abuse, or exploitation. For the monthly stipend rate) and servicemembers who have a 100 percent example, when determining eligibility eventually be determined to be unable P&T disability rating, and one for PCAFC, a determination of no abuse to self-sustain in the community and commenter stated it would be insulting or neglect is part of the clinical thus his or her Primary Family to require periodic assessments, even if evaluation. Additionally, pursuant to annually. Another commenter stated § 71.45, we can revoke or discharge an Caregiver would be eligible to receive eligible veteran or Family Caregiver in the higher-level stipend (i.e., 100 that it would not be a good use of instances of fraud, or neglect, abuse, or percent of the monthly stipend rate). taxpayer resources or the precious time exploitation. We note that background Also, an eligible veteran’s condition of caregivers and veterans to require checks are typically conducted for may deteriorate to the point where it is those with certain conditions (e.g., ALS, purposes of determining suitability for no longer safe to maintain the eligible MS) to be reassessed annually or even employment and we note that veteran in the home because he or she on a less frequent basis and that VA participation in PCAFC is specifically requires hospitalization or a higher level should develop a list of these serious not considered an employment of care. Additionally, the condition of injuries that do not warrant continued relationship. We make no changes based an eligible veteran who is initially reassessment for purposes of eligibility. on these comments. determined to be unable to self-sustain As explained above, VA believes it is in the community may improve to the necessary to conduct reassessments for § 71.30 Reassessment of Eligible point where he or she no longer meets all PCAFC participants regardless of the Veterans and Family Caregivers this definition but is still in need of condition of the eligible veteran, and Several commenters expressed personal care services and thus his or this same principle applies regardless of general disagreement with VA’s her Primary Family Caregiver would whether he or she has a 100 percent proposal to conduct reassessments and receive a lower-level stipend (i.e., 62.5 P&T disability rating or a specific health asserted that once a veteran or percent of the monthly stipend rate). condition. However, as indicated in the servicemember is admitted into the Furthermore, an eligible veteran’s proposed rule, we recognize that an program, it should be permanent with condition may improve such that he or annual reassessment may not be no annual reassessments. Specifically, she is no longer in need of personal care required for each eligible veteran (e.g., one commenter asserted VA is making services and thus his or her Family an eligible veteran whose condition is the false comparison to the most Caregiver would be discharged from the expected to remain unchanged long- severely and catastrophically disabled program. Although we agree that some term because he or she is bed-bound veterans, to whom the commenter eligible veterans may not have the and ventilator dependent, and requires asserts we believes this permanent opportunity for improvement due to the a Family Caregiver to perform designation should apply, and the entire nature of their condition/disease tracheotomy care to ensure population of veterans. Another progression, we do not agree that VA uninterrupted ventilator support). commenter asserted that they do not has no obligation to continue to reassess Therefore, § 71.30(b) states that accept the Department’s contention that the eligible veteran and Family reassessments may occur on a less than ‘‘we do not believe that Congress Caregiver ‘‘as eligible veterans’ needs for annual basis if a determination is made intended for PCAFC participants’ personal care services may change over by VA that an annual reassessment is eligibility to never be reassessed after time as may the needs and capabilities unnecessary. We note, that even if VA

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is conducting a reassessment less to staff’s subjective opinions. Another believe these comments are equally frequently than annually, VA would commenter encouraged VA to develop applicable to a reassessment, the results continue to conduct ongoing wellness specific guidelines around which of which will determine an eligible contacts pursuant to § 71.40(b)(2). We veterans would not require an annual veteran’s continued eligibility for are not making any changes based on reassessment as their status will not participation in PCAFC and whether an these comments. change in the future. Also, one eligible veteran is unable to self-sustain One commenter asserted that VA commenter suggested VA limit in the community for purposes of the should re-evaluate more often and assessments to not more than annually monthly stipend rate under increase stipends accordingly should since more frequent assessments would § 71.40(c)(4)(i)(A). Thus, we believe it is the eligible veteran’s personal care otherwise be left to local providers to necessary to collaborate with the needs justify such an increase. As determine. While we appreciate and primary care team during reassessments indicated in the proposed rule, VA will understand the commenter’s concerns in addition to the initial evaluation of conduct annual reassessments, however with regard to establishing objective and PCAFC applicants to the maximum such reassessments may occur more specific guidelines, PCAFC is a clinical extent possible. For these reasons, we frequently if a determination is made program and as a result, we will not be are revising § 71.30(a) and (e) by and documented by VA that a more able to eliminate all subjectivity. replacing the phrase ‘‘the eligible frequent reassessment is appropriate. However, we will standardize the veteran and Family Caregiver will be Examples that may necessitate a more process as much as possible to include reassessed by VA’’ with ‘‘the eligible frequent assessment include treatment the use of standardized assessments for veteran and Family Caregiver will be or clinical intervention that reduces an both the eligible veteran and the Family reassessed by VA (in collaboration with eligible veteran’s level of dependency Caregiver. Reassessments will be the primary care team to the maximum on his or her Family Caregiver, or conducted by trained and licensed extent practicable)’’. We make no other instances in which there is a significant clinical providers. Additionally, changes based on these comments. increase in the personal care needs of reassessment determinations will be One commenter stated that the lack of the eligible veteran due to a rapidly determined by the CEATs, that are specificity in the proposed rule for deteriorating condition or an specifically trained in the eligibility extending that periodicity is very likely intervening medical event, such as a criteria for PCAFC. As previously to introduce huge variance into stroke, that results in further clinical explained, VA will conduct annual assessment and re-eligibility decisions. impairment. Additionally, VA would reassessments, but these reassessments Specifically, it could even introduce continue to conduct ongoing wellness may occur more or less frequently than corruption if caregiver eligibility contacts pursuant to § 71.40(b)(2) which annually as determined and assessment officials decided they could may result in a reassessment. We are not documented by VA based on the exact benefits from veterans or making any changes based on these individual circumstances of the eligible caregivers in exchange for longer comments. veteran and the Family Caregiver(s). periods between reassessments. To the One commenter questioned why an VA’s determination of the need for extent the commenter is concerned annual reassessment would ever be reassessment more or less frequently about the determination of how found unnecessary when this program may stem from information gleaned frequently reassessments will occur, we was designed to be a rehabilitative during a routine medical appointment, refer to the previous paragraphs that program. As previously explained, VA provide examples for when a through a planned or unplanned recognizes that not all eligible veterans reassessment may be conducted more or interaction with a CSC, or even at the have the potential for rehabilitation or less frequently than on an annual basis. request of the eligible veteran or Family independence, and this is particularly Also, PCAFC will refer all suspected Caregiver, if appropriate. As mentioned true as we expand to veterans and fraudulent or illegal activities, including below, through policy we would require servicemembers of all eras. Therefore, such situations that may involve VA documentation of the clinical factors we believe it is necessary to allow some employees, to VA’s OIG and actively relied upon in concluding that a less flexibility in conducting reassessments participate in VA OIG cases. We are not than or more frequent reassessment is to address the individual circumstances making any changes based on this needed. As stated above more or less for each eligible veteran and his or her comment. Family Caregiver(s). We are not making frequent annual reassessments can be One commenter suggested that VA any changes based on this comment. conducted due to the changing needs of have a well-defined process to monitor Another commenter stated it was not the eligible veteran in order to provide the documented changes by all entities clear how many staff visits will be done the necessary support and services. We who monitor the eligible veterans’ and when. As previously explained, VA are not making any changes based on health conditions to warrant a will conduct annual reassessments that these comments. reassessment. VA is responsible for may include a home visit, but We received multiple comments determining and documenting the reassessments may occur more or less regarding the inclusion of the primary frequency requirements for assessments frequently than annually as determined care team during reassessments. that deviate from the annual schedule. and documented by VA based on the Specifically, one commenter stated that Additionally, through policy we would individual circumstances of the eligible collaboration among providers, which require documentation of the clinical veteran and the Family Caregiver(s). We include clinical staff conducting home factors relied upon in concluding that a are not making any changes based on visits, is a desirable characteristic of less than or more frequent reassessment this comment. primary care. Another commenter is needed. Furthermore, clinical Several commenters opined about requested VA preserve the role of the providers are subject to chart and peer how reassessments will be conducted, veteran’s or servicemember’s treating reviews to ensure proper documentation including suggestions to include clinician in the eligibility and in VA’s electronic health care record. specific guidelines about the process. reassessment process. While we note We are not making any changes based Specifically, one commenter asserted these comments were primarily focused on this comment. that there needs to be a quantitative on the use of primary care teams during One commenter asked if the caregiver assessment and that decisions not be left the initial eligibility assessment, we can be with the veteran when they are

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reassessed since the caregiver has a § 71.35 General Caregivers § 71.40 Caregiver Benefits better view of what the veteran needs Wellness Contacts and what the veteran can and cannot do. One commenter opined that PGCSS is Relatedly, one commenter asserted that good but should only be contained to One commenter suggested VA include VA should pay attention to feedback veterans enrolled in VA care and not language in the final rule to state that a from caregivers and their concerns. VA any caregiver that exists because that is wellness visit cannot result in does and will continue to accept and what community programs are for. reassessment of a veteran, unless it consider feedback from Family PGCSS is only provided to a general would result in being assigned to a Caregivers. Specifically, Family caregiver providing personal care higher tier. It is VA’s intent that the Caregiver(s) are required to participate services to a covered veteran (i.e., a purpose of wellness contacts is to in reassessments and wellness contacts veteran who is enrolled in the VA review both the eligible veteran’s and pursuant to §§ 71.30 and 71.40(b)(2), health care system). 38 U.S.C. Family Caregiver’s wellbeing, and the respectively. VA will also incorporate 1720G(b)(1) and 38 CFR 71.30(b). adequacy of care and supervision being the Family Caregiver(s) feedback both Additionally, we did not propose any provided to the eligible veteran by the Family Caregiver. During a wellness during the initial assessment and annual changes to this section other than to reassessment. We are not making any contact, the clinical staff member redesignate current § 71.30 as new conducting such contact may identify a changes based on these comments. § 71.35. We are not making any changes Another commenter asserted that the change in the eligible veteran’s rule is missing 38 U.S.C. based on this comment. condition or other such change in 1720G(a)(3)(C)(iii)(I), i.e., assessment by Another commenter suggested that circumstances whereby a need for a the Family Caregiver of the needs and VA should not be overly restrictive with reassessment may be deemed necessary limitations of the veteran; and requested the eligibility requirements of PGCSS and arranged accordingly pursuant to that VA should strike down the rule and provide training and education, § 71.30. We note that wellness contacts because VA ignored this requirement. selfcare courses, peer support, and the and reassessments are distinct and First, we note that it is not a legal Caregiver Support Line to caregivers of separate processes. As explained above requirement to explicitly regulate the covered veterans. The same commenter in the discussion on § 71.30, a requirement of section also asserted that there is no statutory or reassessment may occur more or less 1720G(a)(3)(C)(iii)(I) in 38 CFR part 71; regulatory requirement that a general frequently than on an annual basis however, VA does have a legal duty to caregiver must provide personal care based on the individual care needs of the eligible veteran. Furthermore, 38 meet this requirement. Second, as services in person. Further, the same indicated in the proposed rule, a U.S.C. 1720G(c)(2)(A) clearly articulates commenter suggested VA consider ‘‘reassessment would provide another that the assistance or support provided allowing an enrolled veteran to opportunity for Family Caregivers and under PCAFC and PGCSS do not create eligible veterans to give feedback to VA participate in PGCSS if he or she is a any entitlements; thus, the monthly about the health status and care needs caregiver to a non-veteran spouse, stipend rate may be decreased based on of the eligible veteran. Such information partner, friend, or relative and that this a reassessment and the determination of is utilized by VA to provide additional would increase the veteran’s wellbeing whether an eligible veteran is unable to services and support, as needed, as well and health. We appreciate the self-sustain in the community or no as to ensure the appropriate stipend commenter’s suggestions and note that longer meets the eligibility requirements level is assigned.’’ 85 FR 13379 (March the definition for personal care services under § 71.20(a). Therefore, we disagree 6, 2020). We also note that we would as used by PGCSS does not require a with the commenter’s suggestion that a take the information from the caregiver general caregiver to provide in person wellness visit cannot result in a into account when determining whether personal care services. As indicated in reassessment, unless it would result in a veteran or servicemember is unable to the proposed rule, we believe the being assigned a higher tier. We make self-sustain in the community (as definition for ‘‘personal care services’’ is no changes based on this comment. defined in § 71.15). We are not making still appropriate for purposes of 38 Several commenters opposed the any changes based on this comment. U.S.C. 1720G(b) with respect to PGCSS change from 90 days to 180 days for One commenter requested and a new definition of ‘‘in need of monitoring (i.e., wellness contacts) and encouraged VA to continue the 90-day clarification on the impact a personal care services’’ has been added requirement to ensure veterans and their reassessment will have on a legacy to delineate whether such services must participant. Specifically, the commenter caregivers needs are met. Specifically, be provided in person for purposes of asked if a legacy participant will no commenters asserted that maintaining longer be eligible for PCAFC and PCAFC. the 90-day monitoring requirement will revoked if a reassessment determines Additionally, as explained above, provide effective oversight to ensure the that he or she does not meet the new PGCSS is only provided to a general well-being and safety of the eligible eligibility requirements under caregiver providing personal care veteran and Family Caregiver, especially § 71.20(a). As indicated in the proposed services to a covered veteran (i.e., a those veterans who are most vulnerable rule, all legacy participants and legacy veteran who is enrolled in the VA and susceptible to abuse. Relatedly, we applicants will be reassessed within one health care system). 38 U.S.C. note that one commenter stated that year of the effective date of the final rule 1720G(b)(1) and 38 CFR 71.30(b). Thus, they do not find the 90-day requirement to determine continued eligibility in we do not have the authority to provide to be burdensome and do not wish for PCAFC. Upon the completion of the PGCSS to veterans providing personal the visits to change because the one-year period, legacy participants and care services to a non-covered veteran. commenter relies on the visits for legacy applicants who are no longer Furthermore, we did not propose any support. The same commenter noted eligible pursuant to § 71.20(a) will be changes to § 71.30 other than to that prior to being part of PCAFC, they provided a discharge notice of not less struggled with not being able to obtain redesignate current § 71.30 as new than 60 days and will receive a 90-day caregiver support. Commenters also § 71.35. We are not making any changes extension of benefits. We are not making asserted that VA has provided no any changes based on this comment. based on this comment. medically sound justification for this

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change, and they believe it is an light of VA OIG’s findings that VA has community nursing home, which inadequate time period for monitoring not consistently monitored current requires that a registered nurse or social veterans who are seriously ill or injured, veterans in PCAFC. As explained above, worker from the contracting VA facility especially those who are in the aging the purpose of a wellness contact is to conduct follow-up visits on all patients population with increased and evolving review both the eligible veteran’s and at least every 30 days except in certain needs. These commenters note that Family Caregiver’s wellbeing, the situations. As explained above, we are more frequent wellness checks would adequacy of care and supervision being revising the frequency of contacts from ensure PCAFC participants have the provided to the eligible veteran by the 180 days to 120 days. Additionally, 120 support and resources needed to remain Family Caregiver, and provide the days establishes a minimum baseline for safe in their home setting. Commenters opportunity to offer additional support, the frequency of wellness contacts, and further noted that VA should retain the services, or referrals for services needed these contacts (including home visits) current 90-day monitoring requirements by the eligible veteran or Family may occur more frequently, if needed, to as this would be consistent with Caregiver. Additionally, as explained address the individual needs of the acceptable industry standards, above, reassessments may occur on a eligible veteran and his or her Family including HHS and CMS, whereas the more or less frequent basis than Caregiver. Furthermore, PCAFC is a proposed wellness contacts of once annually and a wellness contact may distinct program that provides benefits every 180 days would not. We address result in a reassessment pursuant to to Family Caregiver(s) for the provision these comments below. § 71.30, as necessary, which would of personal care services to an eligible We appreciate the comments received include a determination of whether the veteran in his or her home; thus, we do and agree with the commenters that eligible veteran is unable to self-sustain increasing the frequency of these visits in the community for purposes of the not believe the frequency of wellness from 90 days to 180 days may not monthly stipend rate. We are not contacts must align with VHA policy for provide adequate monitoring of an making any changes based on this patients residing in a community eligible veteran and his or her caregiver, comment. nursing home, with which we contract. especially as we expand to an aging Commenters also opined that We are not making any changes based population. Therefore, we have revised requiring a minimum of one annual in on this comment. the regulation to state that wellness home/in person wellness contact is Commenters identified there has been contacts ‘‘will occur, in general, at a substandard for purposes of monitoring a lack of monitoring and accountability minimum of once every 120 days,’’ as and evaluating the eligible veteran and with the administration of PCAFC, we believe this is reasonable. We note Family Caregiver, and suggested VA resulting in fraud, waste, and abuse that 120 days establishes a minimum provide the same level of staff (which has been documented by VA baseline for the frequency of wellness monitoring as would be expected if VA OIG), however, they opined that the contacts and that these contacts may needed to hire a professional home wellness contacts will do little to occur more frequently, if needed, to health aide for a veteran. Additional address these issues, as VA has failed to address the individual needs of the commenters noted that CSP does not effectively run PCAFC by not eligible veteran and his or her Family know whether and to what extent establishing a governance system to Caregiver. Additionally, we have added personal care services are being promote accountability. Some the phrase ‘‘in general’’ to provide provided, and thus it is impossible to commenters noted that the program has scheduling flexibility for both VA and assess the well-being of the eligible become too large as a result of this lack the eligible veteran and his or her veteran and Family Caregiver without of accountability, which they believe caregiver. As indicated in the proposed direct observation by a qualified led to participants being kicked out of rule, eligible veterans and his or her medical professional. Commenters also PCAFC in 2015. As indicated in the Family Caregiver are required to asserted that VA will be unable to proposed rule, we acknowledge that we participate in wellness contacts. properly monitor veteran’s and have experienced difficulty conducting Furthermore, we believe a 120-day caregiver’s well-being or determine monitoring due to limited resources. 85 frequency will accommodate those whether personal care services are being FR 13380 (March 6, 2020). Transitioning eligible veterans whose conditions are provided appropriately if VA is the frequency of wellness contacts to generally unchanged and would conducting wellness contacts semi- generally every 120 days as well as experience a significant disruption in annually via phone. Commenters noted the daily routine when having to make that CMS requires onsite visits, by a increased staffing for the program is scheduling changes to accommodate a registered nurse or other appropriate expected to mitigate resource wellness contact. We make no skilled professional, ranging from 14 limitations. In addition, we have additional changes based on these days to 60 days in instances when home developed an improved infrastructure at comments. health aide services are provided to a the VISN and medical center level to Another commenter encouraged VA patient. We appreciate the commenters’ better oversee the delivery of PCAFC. to require wellness contacts on at least concerns; however, we note that the Further, as explained previously in this a quarterly basis, to ensure that wellness regulation establishes a minimum rulemaking, we will provide robust contacts include a full assessment of a baseline for how many visits must occur training and education to our staff, veteran’s health needs based on the in the eligible veteran’s home on an implement an audit process to review input of the primary care team annual basis and that additional or all eligibility determinations, and conduct providing treatment to the veteran, and of the these contacts may occur in the vigorous oversight to ensure consistency adjust the eligible veteran’s and eligible veteran’s home, if needed, to across VA in implementing this caregiver’s benefits without having to address the individual needs of the regulation. We also anticipate that the wait for an annual reassessment if eligible veterans and his or her Family regulations and additional training will warranted based on the wellness Caregiver. We are not making any create more consistency and contact. This commenter believes that changes based on these comments. standardization across VA, which these changes would be consistent with Commenters stated that these believe will reduce any fraud, waste, the overall intent of PCAFC and will wellness contacts would contradict and abuse within PCAFC. We thank the better serve the veteran, especially in VHA policy for patients residing in a commenters for their concerns;

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however, we make no changes based on eligible veteran’s and Family Caregiver’s by phone or other telehealth modalities, these comments. eligibility, including the Family we believe that at least one wellness One commenter implied that the Caregiver’s continued eligibility to contact should occur in the eligible proposed rule stated that OIG found perform the required personal care veteran’s home to provide direct monitoring is resource intensive and services, and whether the eligible observation of the personal care services burdensome. We correct this veteran is unable to self-sustain in the provided and assess the wellbeing of the commenter’s misunderstanding by community for purposes of the monthly veteran and Family Caregiver. We are stating that OIG did not determine that stipend. As indicated in the proposed not making any changes based on these monitoring was resource intensive or rule, we believe the combination of comments. burdensome, rather the proposed rule wellness contacts and reassessments Several commenters requested acknowledged that we have failed to meet the periodic evaluation clarification on frequency of contacts meet the 90-day requirement due to requirement in 38 U.S.C. 1720G(a)(3)(D), and one commenter suggested that the limited resources, and we note that as we would determine whether any frequency of these contacts be adjusted some PCAFC participants have additional instruction, preparation, to accommodate individual informed VA that they find the 90-day training, and technical support is circumstances for eligible veterans and requirement to be burdensome. As needed in order for the eligible veteran’s Family Caregivers. As previously explained above, we will be conducting needs to be met by the Family Caregiver. explained, 120 days establishes a wellness contacts every 120 days, which We further note that to the extent that minimum baseline for the frequency of we believe is a reasonable frequency for we would need to take corrective action wellness contacts and these contacts wellness contacts. We make no changes pursuant to section 1720G(a)(9), we may may occur more frequently if needed, to based on this comment. revoke or discharge a caregiver or address the individual needs of the One commenter opined that these veteran from PCAFC pursuant to 38 CFR eligible veteran and Family Caregiver. proposed wellness contacts do not meet 71.45, as appropriate. We are not We are not making any changes based the requirements in 38 U.S.C. 1720G(a), making any changes based on this on these comments. as VA is required to monitor the well- comment. One commenter stated that using the being of eligible veterans by directly A commenter incorrectly stated that term ‘‘wellness contact’’ is inconsistent reviewing the quality of the personal VA has never met the statutory with the provision of Home and care services in the veteran’s homes and requirement to complete monitoring Community Based Services and taking corrective action. This assessments no less than every 90 days; standard medical terminology, commenter also asserted that however, that is not a requirement specifically the annual wellness visit reassessments of veteran eligibility for established in the statute, but rather in which is a yearly appointment with a PCAFC and monitoring the well-being regulation by VA. We are not making primary care provider to create or of the eligible veteran are simply not any changes based on this comment. update a personalized prevention plan. analogous. First, 38 U.S.C. 1720G does Several commenters stated that the The commenter asserts that when all not require VA conduct monitoring of proposed 180-day requirement is too members of the healthcare team use the the eligible veteran’s wellbeing in the much and that these visits can be easily same terminology, they can understand home or take related corrective action; conducted by the phone rather than in what is on the patient’s chart and instead, section 1720G(a)(9) requires VA person. Additionally, commenters provide them with the best possible establish procedures to ensure asserted that these visits be waived for care. As indicated in the proposed rule, appropriate follow-up, which may eligible veterans who have a 100 percent we believe changing the terminology include monitoring the wellbeing of the P&T service-connected disability rating from ‘‘monitoring’’ to ‘‘wellness eligible veteran in the home and taking or receive other VBA or SSA disability contacts’’ is a more accurate description corrective action, including suspending benefits. As previously explained, the of the purpose of these visits as it or revoking the approval of a Family purpose of wellness contacts is to includes a review of the wellbeing for Caregiver. We note these latter review both the eligible veteran’s and both the eligible veteran and Family provisions are discretionary. Second, we Family Caregiver’s wellbeing, and the Caregiver. Additionally, we have found note that we currently perform periodic adequacy of care and supervision being that people find the term ‘‘monitoring’’ monitoring pursuant to 38 CFR provided to the eligible veteran by the to be punitive. We are not making any 71.40(b)(2) and consistent with 38 Family Caregiver. Also, while we changes based on this comment. U.S.C. 1720G(a)(9)(A). Section 161(a)(5) understand that the condition of some of the VA MISSION Act of 2018 eligible veterans will remain Monthly Stipend Rate amended 38 U.S.C. 1720G(a)(3)(D) to unchanged, VA has a statutory VA proposed several changes to the additionally require VA to periodically requirement to periodically evaluate the methodology and calculation of evaluate the needs of the eligible needs of the eligible veteran and the monthly stipend payments for Primary veteran and the skills of the Family skills of the Family Caregiver to Family Caregivers. In particular, we Caregiver to determine if additional determine if additional instruction, proposed to use the OPM’s GS Annual instruction, preparation, training, and preparation, training, or technical Rate for grade 4, step 1, based on the technical support is necessary. support is necessary. See 38 U.S.C. locality pay area in which the eligible Consistent with section 1720G, the 1720G(a)(3)(D). Additionally, as veteran resides, divided by 12. We purpose of wellness contacts is to explained above, we are revising the further proposed to discontinue the use review both the eligible veteran’s and requirement from 180 days to 120 days, of the combined rate, which is based on Family Caregiver’s wellbeing, and the which we believe will accommodate the Bureau of Labor Statistics (BLS) adequacy of care and supervision being those eligible veterans whose condition hourly wage rate for home health aides provided to the eligible veteran by the is generally unchanged and would at the 75th percentile in the eligible Family Caregiver. We note that we experience a significant disruption in veteran’s geographic area of residence, would require at least one wellness the daily routine when having to make multiplied by the Consumer Price Index contact occur in the eligible veteran’s scheduling changes to accommodate a for All Urban Consumers (CPI–U). home on an annual basis. Reassessments wellness contact. Further, while we One commenter supported the use of will be conducted to evaluate the agree that some visits can be conducted the OPM GS Annual Rate for grade 4,

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step 1, and stated that it will lend structures that most federal employees GS Annual Rate for grade 4, step 1, significant standardization and greatly are paid through). Such retrospective based on the locality pay area in which increase the ease of program payments would increase the risk of the eligible veteran resides, divided by administration. Another commenter improper payments, be administratively 12) instead of the combined rate using similarly supported this change and impracticable for VA, and would be the BLS rate does not change our view. described the GS rate as more accurate anticipated to only represent a few The stipend payment is not intended to and standardized. We appreciate these percentage points’ change in compensate Family Caregivers as if they comments and do not make any changes retrospective pay over a relatively short were government employees, but rather based upon them. period of time. Thus, VA will not make acknowledge the sacrifices these Family Some commenters were concerned retroactive stipend payments resulting Caregivers have made to care for eligible with VA using GS instead of BLS. In from retrospective changes to GS wage veterans. The benefits of using the GS particular, commenters stated that the rates by OPM and accordingly amends Annual Rate, as explained in the transition from BLS to GS is wholly the regulation text to indicate that proposed rule and further described inadequate, unreasonable, illogical, adjustments under § 71.40(c)(4)(ii)(A) herein, outweigh any potential concerns arbitrary, inconsistent with law, and an take effect ‘‘prospectively following the that use of this rate could result in effort to reduce the amount of stipends date the update to such rate is made caregivers being treated like government that will be paid. Other commenters effective by OPM.’’ This change only employees. Additionally, we expressly opposed transitioning from the applies to § 71.40(c)(4)(ii)(A) and would state in 38 CFR 71.40(c)(4)(iii), as made combined rate (using BLS rates) to the not impact the retroactive adjustments final within this rule, that nothing in monthly stipend rate (using GS rates), in § 71.40(c)(4)(ii)(C)(2)(i) as a result of this section shall be construed to create and one commenter urged VA to keep a reassessment conducted by VA under an employment relationship between the current rate. Another commenter § 71.30. VA and a Family Caregiver. We make no expressed concern that using the GS rate In addition, we analyzed the GS and further changes based on these would treat caregivers like government BLS wage rates to determine whether comments. employees. the GS wage rates tracked the private Other commenters were concerned We disagree with the commenters sector wages for home health aides, and that the monthly stipend rate would be above and find that the use of the GS we found that these closely tracked in too low. In particular, commenters were scale is not only reasonable and the past both at a national level and for concerned that the rate will not properly consistent with the law but will also GS adjusted localities. Id. As we compensate Primary Family Caregivers result in an equal or increased payment explained in the proposed rule, we for the care they provide, does not for the majority of participants. As we determined the appropriate GS grade reflect the actual rates of home health explained in the proposed rule, we and step for stipend payments by aides, and is less than the proposed believe it is reasonable to use the GS comparing against BLS wage rates for minimum wage of $15 per hour. rate instead of the combined rate commercial home health aides, and Another commenter found the GS rate because of challenges we had using the found that for 2020, the BLS national to be inadequate because the USA BLS rate. 85 FR 13382 (March 6, 2020). median wage for home health aides National Average for cost of in-home We tried to identify other publicly (adjusted for inflation) is equivalent to care is $52,624 as reported in the AARP available rates that we could use for the base GS rate at grade 3, step 3 Genworth Study. Others emphasized calculating the monthly stipend that (without a locality pay adjustment). Id. sacrifices made by caregivers to take would meet the statutory requirements We also found that in most U.S. care of loved ones, including lost in 38 U.S.C. 1720G(a)(3)(C)(ii) and (iv), geographic areas for 2020, the GS rate at employment wages. but were unable to locate any. We found grade 3, step 3 would be equal to or We reiterate from the proposed rule that the GS wage rates address some of higher than the BLS median wage for that the stipend rate is consistent with the challenges we have had using the home health aides in the same the statutory requirements of 38 U.S.C. BLS rate. Id. We further found that the geographic areas. Id. at 13383. We 1720G(a)(3)(C)(ii) and (iv), which GS wage rates meet our needs for considered using a unique GS grade and requires that to the extent practicable, administering the stipend payment, as it step based on the median home health the stipend rate be not less than the is publicly available, easy to locate, is aide wage rate in each of the geographic monthly amount a commercial home developed entirely outside of VA with areas where the 2020 GS rate at grade 3, health care entity would pay an a defined process for updating the rates, step 3 was less, but determined that individual to provide equivalent and provides geographic variation. would not be appropriate or practicable personal care services in the eligible However, after publication of the for the reasons previously explained in veteran’s geographic area or geographic proposed rule and in considering public the proposed rule. Id. As a result, we area with similar costs of living. See 85 comments such as the reference to proposed to use the slightly higher GS FR 13382–13383 (March 6, 2020). caregivers being treated like federal rate at grade 4, step 1 for all localities, In response to the commenters who employees, VA examined the challenges which is consistent with the shared their personal stories and associated with making retrospective requirements of section expressed concern that the stipend rate pay corrections in instances when OPM 1720G(a)(3)(C)(ii), (iv) (i.e., that to the is too low, we understand and announces retrospective changes to the extent practicable, the stipend rate is appreciate the many sacrifices these GS scale tables later in the year. Such not less than the monthly amount a caregivers make on a daily basis to care adjustments would complicate VA’s commercial home health care entity for our nation’s veterans. We are goal, as stated in the proposed rule, of would pay an individual to provide incredibly grateful for the care and adopting the GS wage rates to ‘‘ensure equivalent personal care services in the valuable service they provide. These more consistent, transparent, and eligible veteran’s geographic area or caregivers greatly impact veterans’ predictable stipend payments,’’ (85 FR geographic area with similar costs of ability to remain safely in their homes 13382 (March 6, 2020)) and our living). for as long as possible. We note that proposal to pay stipends monthly by We note that we do not view Family PCAFC is just one of the ways in which dividing the annual rate by 12 (rather Caregivers as government employees, VA is able to recognize and thank these than using the same pay period and use of the monthly stipend rate (i.e., caregivers for their service and sacrifice.

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In particular, the monthly stipend is an less than the monthly amount a Family Caregiver rather than pay for acknowledgement for the sacrifice commercial home health care entity mortgages and similar expenses. Family Caregivers make to care for would pay an individual. While the Consistent with our explanation in eligible veterans. See 76 FR 26155 (May Primary Family Caregiver and the the proposed rule and as explained 5, 2011). It was never intended to services he or she provides complement directly above, we believe the monthly compensate Primary Family Caregivers the clinical care provided by stipend rate will not result in stipend for their services or lost wages. commercial home health care entities to rates that are too high because the In response to the commenter who eligible veterans, the Primary Family monthly stipend rate is consistent with was concerned that the monthly stipend Caregiver is not intended to be a the statutory requirements of 38 U.S.C. rate may be less than the proposed replacement or substitute for such care. 1720G(a)(3)(C)(ii) and (iv), by being not minimum wage of $15 per hour, we note We also note that the Primary Family less than the monthly amount a that the stipend payment, to the extent Caregiver does not necessarily have the commercial home health care entity practicable, must be no less than the same specialized training and education would pay an individual to provide annual salary paid to home health aides as those providing clinical care, and that equivalent personal care services in the in the commercial sector. 38 U.S.C. the cost of care billed by a licensed eligible veteran’s geographic area or 1720(G)(3)(C)(ii), (iv). Thus, by law, we agency may include multiple caregivers. geographic area with similar costs of are required to look at the national Thus, we do not believe it would be living. See 85 FR 13382 (March 6, 2020). median for home health aides. We reasonable or consistent with the statute Additionally, as explained in the reviewed 2018 data of the national to pay Primary Family Caregivers the proposed rule and in this section, we median for home health aides (adjusted cost of care billed by licensed agencies. determined that the monthly stipend for inflation to 2020), and found that the We make no changes based on these rate tracks with the national median national median was $12.60 per hour. comments. wage for home health aides. Id. The higher monthly stipend rate of 100 One commenter noted that the To the extent that commenters were percent of the GS Annual Rate at grade reduction in the stipend amount may concerned that monthly stipend 4, step 1 would receive $14.95 per hour result in the caregiver working outside payments can be higher than the in 2020. We note that that is the hourly the home which can hurt the veteran disability compensation that veterans rate for the Rest of the United States, who cannot survive without the receive, we recognize that this may and that Primary Family Caregivers may caregiver. While we recognize that some possibly occur. However, it is important receive more based on their locality current participants may have a reduced to note that disability compensation and since the Rest of the United States stipend amount based on changes we PCAFC are two distinct and separate would be the lowest rate possible for are making to the stipend methodology, programs with different purposes. In purposes of calculating the stipend rate the transition from BLS to GS should deciding the monthly stipend based on locality. However, Primary result in the majority of current methodology, we considered whether Family Caregivers may receive a lower participants receiving an increase in disability compensation payments stipend payment if they receive the their stipend amount. As we explained would be less than Primary Family lower stipend rate (i.e., 62.5 percent of in the proposed rule and reiterate Caregiver monthly stipend payment, but the GS Annual Rate at grade 4, step 1.) within this final rule, we will provide determined that the advantages of using It is also important to further note that a period of transition for legacy the GS rate to calculate the monthly the monthly stipend payment is a participants to minimize any negative stipend payment outweigh any concerns nontaxable benefit. We recognize that impact. We further note that as part of with respect to the veteran’s disability some Primary Family Caregivers will this rulemaking, we are providing compensation payment compared to the receive less than $15 an hour however, financial planning services as an monthly stipend payment. we believe that the stipend rate meets additional benefit available to Primary To the extent that commenters the statutory requirement for payment Family Caregivers. This new benefit can asserted that the monthly stipend and is appropriate given the intent of assist these Family Caregivers with encourages individuals not to work, we the benefit. As previously explained, the managing their finances. To the extent respectfully disagree. We are aware that monthly stipend is intended to an eligible veteran requires more care many Primary Family Caregivers have acknowledge the sacrifices Family than the Primary Family Caregiver is already given up employment so that Caregivers make and was never able to provide, PCAFC is one of many they can care for eligible veterans. For intended to compensate for their programs that may be available to meet those who are unable to afford to care services. the needs of eligible veterans. In such for an eligible veteran without working, In response to AARP Genworth Study, instances, we recommend speaking with we recognize that this monthly stipend we note that this study reflects the cost VA about other care options that may be may provide Primary Family Caregivers of contracted in-home care (as the rate available, such as home based primary with the flexibility to care for the listed is the rage charged by a non- care, and Veteran-Directed care. We eligible veteran. The monthly stipend is Medicare certified, licensed agency), make no changes based on this one of many benefits available to and is not reflective of the actual wages comment. Primary Family Caregivers as a way to of the home health aides who provide Other commenters asserted that VA’s acknowledge their sacrifices in caring care. The cost of contracted in-home proposed changes will result in stipend for eligible veterans and their valuable care also includes both overhead and amounts that are too high. In particular, contributions to society. We also note profits for the agency, which are not one commenter expressed concern that that since the monthly stipend for passed on to home health aides. Second, the stipend payments are in some cases Primary Family Caregivers is a benefit we acknowledge that the cost of higher than disability compensation that payment, and not based on an institutional or in-home care is more veterans receive. Other commenters employment relationship, it does not than the monthly stipend. Pursuant to believe the stipend payments can result involve employer contributions to old- 38 U.S.C. 1720G(a)(3)(C)(ii),(iv), we are in the veteran or caregiver mismanaging age, survivors, and disability Insurance required to look at the wages of home the stipend, encourage individuals not (commonly known as ‘‘Social Security’’) health aides to determine the stipend to work, and are inconsistent with the or participation in a defined- rate, and the stipend rate must be no purpose of the stipend to assist the contribution or defined-benefit

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retirement program. Given this and the rating percentage, and further suggested of $24,060) to a live-in home health care fact that the stipend is nontaxable (and that caregivers provide care full time worker (which can average $4,800 per thus is not taxed at a higher tax bracket and should be recognized more like a month for 40 hours per week of in-home if there is other taxable income from social worker or nurse. care costs). Section 1720G(a)(3)(C)(ii) is employment or other sources), we do We reiterate that the monthly stipend clear that the stipend be no less than the not believe there is an incentive for is an acknowledgement for the sacrifices salary paid to a home health aide, not Primary Family Caregivers who would Family Caregivers make to care for a live-in home health care worker. Thus, otherwise work outside of the caregiving eligible veterans. See 76 FR 26155 (May we used home health aide wages for role to leave the labor market because of 5, 2011). While we recognize that some determining the rate to use for the their participation in PCAFC. individuals may give up their jobs to monthly stipend. To the extent that commenters believe become a Family Caregiver, the monthly To the extent that a commenter the stipend payment will lead to stipend is not meant to be suggested that we base the stipend on mismanagement and it can be used to commensurate with the income a enlisted active duty, we are unclear as pay a mortgage or other similar Family Caregiver received from to this commenter’s specific suggestion expenses, we do not impose any previous employment (including as a since they did not provide any requirements or limitations on how a healthcare provider) or with their additional information, and their Primary Family Caregiver spends the education. It is also not meant to comment was in the context of monthly stipend he or she receives, and transfer any savings VA may receive by providing caregivers benefits similar to we decline to establish such not paying for a skilled nursing home or veterans. We note that active duty requirements or limitations. However, other institutionalization or inpatient enlisted pay is based on military rank we do note that as part of the care of the veteran to the Family (i.e., E–1 to E–9) and years of service. As improvements we are making to part 71 Caregiver. The monthly stipend is also the commenter did not suggest the level as part of this rulemaking, Primary not meant to replace or substitute of active duty enlisted pay we should Family Caregivers will be eligible to clinical care that eligible veterans consider using for the stipend rate (or receive financial planning services, receive. The care that Family Caregivers whether to include non-wage forms of which can assist the Primary Family provide to eligible veterans is in compensation received by active duty Caregiver with managing the stipend addition to and supportive of the enlisted personnel), we cannot further payment. increased quality of life or maintenance address their comment. Additionally, Other commenters recommended of such. We note that services that we did not consider the pay of active alternative approaches to determine the Family Caregivers provide is not meant duty enlisted because the statute monthly stipend amount. Specifically, to replace institutional or inpatient care, requires us to determine the stipend rate one commenter requested that the and that, in addition to PCAFC, eligible based on the salary paid to a home stipend be the rate of the salary the veterans may be eligible for additional health aide. caregiver earned in their past VHA services such as skilled nursing With regards to the commenter that occupation and commensurate with the home care, home based primary care, suggested we use the GS Annual Rate at caregiver’s education, because many and Veteran-Directed care. We grade 4, step 10 for the stipend payment caregivers leave their jobs to become a acknowledge that there are commenters for Primary Family Caregivers who care caregiver, and many are healthcare that believe their contributions exceed for eligible veterans with extreme providers providing high level of care that of a home health aide. However, the disabilities that require 24/7, 365 days that a home health aid is not trained or reason that we use the wages of a home of care, we decline to do so as those permitted to perform. This commenter health aide for determining the stipend with the highest level of need, which we also noted that this would be cost rate is based on the requirement in 38 believe would likely include an efficient for VA since they would not U.S.C. 1720G(a)(3)(C)(ii), (iv) (to the individual who needs around-the-clock have to put the veteran in a skilled extent practicable, the stipend is not care, would fall under the higher nursing home at VA’s expense. Another less than the ‘‘amount a commercial stipend level (i.e., 100 percent of the commenter recommended the stipend home health care entity would pay an monthly stipend rate) under 38 CFR more closely align to the pay of a VA individual in the geographic area of the 71.40(c)(4)(i)(A)(2). The intent of having registered nurse. This same commenter eligible veteran [or similar area]’’). higher and lower stipend levels was to urged VA to compare the salary of a Additionally, as indicated in the distinguish between those who are home health care worker (with a median proposed rule and reiterated in this determined to be unable to self-sustain pay in 2018 of $24,060) to a live-in section, we believe the GS rate for grade in the community and those who are home health care worker (which can 4, step 1 is, to the extent practicable, not not, as these are different levels of need. average $4,800 per month for 40 hours less than the annual salary paid to home We decided not to use multiple GS per week of in-home care costs). health aides in the commercial sector, grades and steps as we wanted to ensure Additionally, one commenter particularly after considering that the we had standardization and recommended that VA assign the GS–4, monthly personal caregiver stipend is a transparency about the rate that we were Step 10 rate to those with extreme nontaxable benefit. 85 FR 13383 (March using. More levels of pay would result disabilities that require 24/7, 365 care. 6, 2020). in more subjectivity in the assignment Another commenter suggested To the extent that commenters of rates. To the extent that this caregivers should be paid as if enlisted suggested VA base the stipend on other commenter believes that 24/7 care is in active duty. One commenter occupations, such as nurses (including required, we note that this is not the recommended the stipend be calculated registered nurses) and social workers, level of care we expect to be provided. by what it would cost to the government we decline to do so as 38 U.S.C. We believe it is likely that an individual for institutionalization or inpatient care 1720G(a)(3)(C)(ii) is clear that the who needs 24/7 care would need of the eligible veteran reduced by 10–20 stipend be no less than the salary paid additional clinical care from a skilled percent. Finally, another commenter to a home health aide. Similarly, we health care provider. We also note that suggested the percentage of the GS rate decline to adopt the suggestion that we this level of care would be beyond the at grade 4, step 1, be based on the compare the salary of a home health scope of the level of personal care veteran’s service-connected disability care worker (with a median pay in 2018 services that is intended under PCAFC,

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particularly as that is not the level of outliers in the May 2019 Survey.’’ We and pre-9/11 veterans who are similarly training we provide to Family address these comments below. situated in all respects receiving Caregivers for the purpose of PCAFC. If We recognize that BLS data has been different stipend amounts, which would an individual needs 24/7 care, we are adjusted to account for outliers. continue the inequity between different willing to provide referrals to other However, as explained previously in eras of service. It would also be VHA services that may be appropriate. this discussion on the monthly stipend administratively prohibitive to utilize Lastly, in response to the commenter rate, we have determined that OPM’s GS two different stipend payment that suggested the percentage of the GS rate will better address the needs of methodologies as we expand PCAFC to rate at grade 4, step 1, be based on the PCAFC. We note that the current pre-9/11 veterans. As mentioned further veteran’s service-connected disability combined rate uses the most recent data above, the majority of Primary Family rating percentage, we decline to do so. from the BLS on hourly wage rates for Caregivers of legacy participants will We note that as part of this final rule, home health aides as well as the most receive increases in the amount of their and explained previously in this recent CPI–U, unless using this most stipend as a result of the transition from rulemaking, we are defining serious recent data for a geographic area would BLS to GS. However, some may injury to mean any service-connected result in an overall BLS and CPI–U experience a decrease in their stipend disability that (1) is rated at 70 percent combined rate that is lower than that amount, which is why we provide a or more by VA; or (2) is combined with applied in the previous year for the period of transition (i.e., to minimize any other service-connected disability same geographic area, in which case the the negative impact of changes to the or disabilities, and a combined rating of BLS hourly wage rate and CPI–U that stipend methodology). We note that the 70 percent or more is assigned by VA. was applied in the previous year for that stipend amount for the Primary Family If we adopted this suggestion, only geographic area will be utilized to Caregivers of legacy participants will Primary Family Caregivers of those calculate the Primary Family Caregiver generally remain unchanged during the veterans with a 70 percent or higher stipend. See 80 FR 1397 (January 9, one-year period beginning on the service-connected disability rating 2015). This was put in place to ensure effective date of this rule, unless it is to would be eligible for the stipend rate so that Primary Family Caregivers would their benefit, and so long as the legacy veterans that do not meet the definition not unexpectedly lose monetary participant does not relocate to a new of serious injury would not qualify for assistance upon which they had come to address. We are not making any changes PCAFC. We note that while service- rely. Id. In contrast to the BLS rate, based on this comment. connected disability rating is part of the OPM’s GS scale provides a more stable data set from year to year, drastically Another commenter indicated that definition of serious injury, it is not VA’s changes will result in a decrease used to determine a veteran’s or reducing the probability of geographic regions experiencing inflated stipend in the commenter’s stipend amount. The servicemember’s need for personal care rates. A more detailed explanation is commenter indicated an understanding services for purposes of PCAFC provided within the regulatory impact of the transition period outlined in the eligibility. Instead, we assess the analysis. proposed rule, but asked whether there clinical needs of individuals to We make no changes based on these will be a cost of living increase for those determine whether he or she has a need comments. who ‘‘already make to [sic] much’’ for personal care services. Service- under the previous stipend payment connected disability rating is not Consequences of Potential Decrease in methodology. On the effective date of commensurate with a need for personal Stipend this rule, part 71 will no longer refer to care services, and to use the disability One commenter asked that Primary the combined rate, and as explained in rating for that purpose would not be Family Caregivers of legacy participants VA’s proposed rule, VA will no longer appropriate. We also note that we will continue to be paid based on the BLS make annual adjustments to the have two levels for the stipend payment, rate (i.e., combined rate) while in the combined rate (85 FR 13358 (March 6, with the higher level (i.e., 100 percent) program. The commenter believes BLS 2020)), including for Primary Family based on whether the eligible veteran is to be more comprehensive in calculating Caregivers of legacy participants who unable to self-sustain in the community. living wages and indicated that the continue (for one year after the effective All other Primary Family Caregivers transition to the monthly stipend rate date) to receive the same stipend will receive the stipend payment at the will cut their stipend in half and they amount they were eligible to receive the lower rate (i.e., 62.5 percent). These use their current stipend to cover in day before the effective date of the final stipend levels are not based on service- home treatments and other treatments rule pursuant to the special rule in connected disability rating, but rather out-of-state that would otherwise be § 71.40(c)(4)(i)(D). To the extent the whether the veteran is unable to self- unavailable to them. commenter is asking about adjustments sustain in the community. Having two Initially, we note that PCAFC is to stipend payments under the new levels for the stipend rate will ensure complementary to other VHA health stipend payment methodology (based on that those Primary Family Caregivers of care services and we encourage PCAFC the monthly stipend rate) that result eligible veterans with severe needs participants to learn about other health from OPM’s updates to the GS scale, receive the higher stipend rate. care benefits that may help meet the this is addressed in § 71.40(c)(4)(ii)(B). We make no changes to the regulation needs of the eligible veteran. Similar to As explained in VA’s proposed rule, the based on these comments. our earlier discussion about GS pay schedule is usually adjusted Multiple commenters took issue with grandfathering in PCAFC participants, annually each January based on VA’s statement that reliance on the we believe it would be inequitable to nationwide changes in the cost of wages combined rate has resulted in stipend allow the Primary Family Caregivers of and salaries of private industry workers. rates well above the average hourly rate legacy participants to receive their 85 FR 13388 (March 6, 2020). Any of a home health aide in certain previous stipend rate indefinitely while adjustment to stipend payments that geographic areas, including one applying the monthly stipend rate for result from OPM’s updates to the GS commenter who suggested that this has legacy applicants and new participants. Annual Rate for grade 4, step 1 for the been ‘‘solved by the current BLS.gov/oes Doing so would result in Primary locality pay area in which the eligible contracting process which eliminated Family Caregivers of post-9/11 veterans veteran resides, will take effect

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prospectively following the date the requirements may still be left to from a Family Caregiver of an eligible update to such rate is made effective by interpretation. While the commenter did veteran who does not meet this OPM. See § 71.40(c)(4)(ii)(A). We are not not specify which definitions were threshold. For example, an eligible making any changes based on this easier to understand, we believe the veteran that qualifies for PCAFC under comment. commenter to be referring to unable to the definition of ‘‘inability to perform an self-sustain in the community, as the ADL’’ would meet the definition of Periodic Assessments comment also referred to the new ‘‘unable to self-sustain in the One commenter requested VA include stipend levels. Another commenter community’’ if he or she requires a statement in the final rule that VA will stated that the proposed rule lacked personal care services each time he or post the findings of its assessments of adequate information on what being she completes three or more ADLs, and the monthly stipend rates on a public unable to self-sustain in the community is fully dependent on a caregiver to website so that stakeholders are able to means although it is a determining complete such ADLs. This is distinct easily evaluate the impact of this change factor for which level a veteran is from the definition of ‘‘inability to on Family Caregivers in the program. assigned. Relatedly, an additional perform an ADL’’ which only requires We proposed to add § 71.40(c)(4)(iv) commenter raised concerns about the assistance with at least one ADL each which states that in consultation with definition of ‘‘unable to self-sustain in time the ADL is completed. This other appropriate agencies of the the community’’ as being meaningless distinction between the definitions Federal government, VA shall and flawed, in part because there are no allows us to differentiate between those periodically assess whether the monthly objective criteria for need for who have moderate needs versus those stipend rate meets the requirements of supervision, protection, or instruction. who have a higher level of need for 38 U.S.C. 1720G(a)(3)(ii) and (iv). We Another commenter, seeking purposes of determining the appropriate will consider making findings of these clarification of the definition, said that monthly stipend level, as we are assessments publicly available in an ‘‘VA’s failure to provide an objective required by 38 U.S.C. 1720G(a)(3)(C)(i) effort to be as transparent as possible. operational definition of supervision, to base the stipend rate on the amount We are not making any changes based protection or instruction . . . seems and degree of personal care services on this comment. quite contradictory based on the provided. Unable To Self-Sustain in the examples offered,’’ and asked if VA has Additionally, an eligible veteran that Community an objective clinical reference for this qualifies for PCAFC under the definition definition. One commenter noted that of ‘‘need for supervision, protection, or VA proposed to add a new definition this definition is problematic because it instruction’’ would meet the definition for the phrase ‘‘unable to self-sustain in is based on the definition of the ‘‘need of ‘‘unable to self-sustain in the the community,’’ for purposes of for supervision, protection, or community’’ if they have a need for determining the monthly stipend level instruction’’ of which they believe there supervision, protection, or instruction under § 71.40(c)(4)(i)(A). Unable to self- are no objective criteria. Lastly, one on a continuous basis. This is distinct sustain in the community was proposed commenter also expressed concern that from the definition of ‘‘need for as the sole criterion to establish without clear protocols and definitions supervision, protection, or instruction’’ eligibility for the higher level stipend for determining whether a veteran or as such definition does not require the and would mean that an eligible veteran servicemember is unable to self-sustain same frequency of personal care services (1) requires personal care services each in the community, inconsistency would needed. As previously discussed, the time he or she completes three or more persist across VA. terms daily and continuous relate to the of the seven activities of daily living We appreciate the commenters’ frequency of intervention required in (ADL) listed in the definition of an concerns, but note that this definition is order to maintain an individual’s inability to perform an activity of daily intended to distinguish between the personal safety that is directly impacted living in § 71.15, and is fully dependent level and amount of personal care by his or her functional impairment at on a caregiver to complete such ADLs; services that an eligible veteran needs the lower and higher stipend levels, or (2) has a need for supervision, for purposes of determining the respectively. Veterans and protection, or instruction on a appropriate stipend level. We note that servicemembers who are eligible for continuous basis. Commenters raised at least one commenter stated that they PCAFC based on a need for supervision, numerous concerns with the definition, found the definition of ‘‘unable to self- protection, or instruction may only including but not limited to the sustain in the community’’ to be clear. require intervention at specific and definition lacking clarity and We believe the definition of ‘‘unable scheduled times during the day to objectivity, use of a double negative in to self-sustain in the community’’ maintain their personal safety on a daily the proposed rule discussion, that few contains objective, clear, and basis. In contrast, a veteran or veterans will be eligible for the higher standardized requirements that can be servicemember who is unable to self- stipend level and that it will promote consistently implemented across sustain in the community, has a need total reliance on caregiver, that it is PCAFC. We believe it is specific enough for supervision, protection, or arbitrary and too strict, and that it is to allow us to make objective instruction on a continuous basis. economically unfair. Commenters also determinations about whether a veteran Distinguishing a daily versus a provided suggested edits to parts of the or servicemember has a higher level of continuous need for supervision, definition and requested we continue to need such that he or she meets the protection, or instruction is a clinical use the current three tiers instead of two definition of unable to self-sustain in decision, based upon an evaluation of levels for purposes of the monthly the community. The definition provides the individual’s specific needs. This stipend rate. While we make no changes the frequency with which personal care distinction is discussed in more detail to the regulation based on these services need to be provided by a above in the discussion of the definition comments, we address them in the Family Caregiver of an eligible veteran of need for supervision, protection, or discussion below. who is determined to be ‘‘unable to self- instruction in § 71.15. One commenter stated that the new sustain in the community,’’ and can be As we explained in the proposed rule, definitions seem to be easier to distinguished, for purposes of in determining whether an eligible understand, but is concerned the determining the monthly stipend level, veteran is in need of supervision,

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protection or instruction on a regulation and the FAQs posted on VA’s Some commenters raised concerns continuous basis, VA would consider website about the proposed rule because about using ‘‘continuous’’ in the the extent to which the eligible veteran this commenter asserts that in the FAQs definition of unable to self-sustain in can function safely and independently we use a double negative for explaining the community. One commenter in the absence of such personal care when someone meets the lower stipend recommended using ‘‘frequent’’ instead services, and the amount of time level, and the examples we provided are of ‘‘continuous’’ based on the assertion required for the Family Caregiver to not consistent with our goal of focusing that continuous creates a presumption provide such services to the eligible PCAFC on eligible veterans with that conditions must have continuous veteran consistent with 38 U.S.C. moderate and severe needs and symptomatology in order to qualify for 1720G(a)(3)(C)(iii)(II) and (III), as providing more objective criteria for the higher level stipend. The same amended by section 161(a)(4)(B) of the clinicians evaluating PCAFC eligibility. commenter asserted that a continuous VA MISSION Act of 2018. Id. For We are unclear which examples the requirement would create an unrealistic example, an individual with dementia commenter is referring to but note that standard that few, if any, veterans would have a need for supervision, we provide examples throughout the would be able to meet; and the term protection, or instruction on a proposed rule in order to help explain frequent is more aligned with how continuous basis if such individual how certain criteria may be applied. symptoms of impairments actually requires daily instruction for dressing, Relatedly, another commenter raised occur. One commenter raised concerns wanders outside the home when left similar concerns about the language, about what ‘‘continuous’’ means in the unattended for more than a few hours, ‘‘not determined to be unable to self- context of this definition, and asserted and has a demonstrated pattern of sustain in the community’’ because they that a veteran who needs 24/7 care is in turning on the stove each time the assert this definition is circular. crisis and would need higher level care individual enters the kitchen due to To the extent that the commenter or hospitalization. This commenter disorientation; however, an individual asserts that the examples we provided recommended that VA better define this with dementia who only requires step- for purposes of this definition are higher tier for veterans requiring a by-step instruction with dressing daily inconsistent with our intent to focus on severe level of supervision, protection, which includes some physical veterans with moderate and severe or instruction. Relatedly, one demonstration of the tasks, would not needs and to provide more objective commenter noted that use of have a need for supervision, protection, criteria for PCAFC, we respectfully ‘‘continuous’’ sets an untenable or instruction on a continuous basis. standard when the only alternative is We also note that we will provide disagree, and note that we are unable to further respond since this commenter ‘‘daily’’ for purposes of consistently robust training and education to our administering a national program. The staff, implement an audit process to did not identify the examples to which they are referring. In response to the commenter also asserted that ‘‘varying review eligibility determinations, and types of functional impairment that can conduct vigorous oversight to ensure commenters’ concerns that we used a double negative for explaining the lower give rise to a need for supervision, consistency across VA in implementing protection, or instruction do not lend this regulation, to include this stipend, we acknowledge that we did state that an individual would meet the themselves to clear distinctions when definition. attempting to distinguish between daily To the extent commenters raised lower stipend level if they are and continuous needs’’ and that the specific concerns about the definition of determined not to be unable to self- ‘‘definition would fail to provide ‘‘unable to self-sustain in the sustain in the community. While we intended improvements to PCAFC community’’ based on concerns they understand that this use of ‘‘determined consistency and transparency.’’ Another had with the underlying definitions of not to be unable to self-sustain in the commenter alleged that the definition of inability to perform an ADL or need for community’’ can be confusing and unable to self-sustain in the community supervision, protection, or instruction, appear circular, we used this language may require continuous supervision, we refer the commenters to those to clearly distinguish between those which they allege is contrary to prior specific sections that discuss the who are determined to be ‘‘unable to regulatory statements VA has made definitions of inability to perform an self-sustain in the community,’’ and about considering and rejecting requests ADL and need for supervision, those who are not, for purposes of to increase the amount of caregiving to protection, or instruction. determining the stipend level. Those We make no changes based on these eligible veterans who meet the more than 40 hours per week. comments. definition of ‘‘unable to self-sustain in We appreciate the commenters’ While we are not entirely certain, it the community’’ are those with severe concerns and suggestions; however, as appeared that one commenter, in the needs while those eligible veterans who indicated in the proposed rule, context of their comment concerning the do not meet this definition would be ‘‘continuous’’ is used to address the lower-level stipend, suggested that the those with moderate needs. We frequency with which an eligible definition of ‘‘need for supervision, intentionally did not use the phrase veteran is in need of supervision, protection, or instruction’’ focuses on ‘‘able to self-sustain in the community’’ protection, or instruction, rather than supervision and safety necessary due to in reference to those veterans eligible at the frequency of symptomatology of a cognitive or mental health issues. As the lower stipend level. We note that the specific condition. For example, an discussed above in the context of ability to self-sustain is considered on a individual with a diagnosis of moderate ‘‘inability to perform an activity of daily continuum with unable to self-sustain at to severe dementia may require living,’’ a need for supervision, one end. If an eligible veteran does not instruction with dressing daily and due protection, or instruction is inclusive of meet the definition of unable to self- to a demonstrated pattern of wandering a veteran or servicemember with sustain in the community, that does not during the day, may meet the criteria for cognitive, neurological, or mental health mean that he or she is able to self- the higher level due to a ‘‘continuous’’ issues. We are not making any changes sustain in the community, as he or she need for active intervention to ensure based on this comment. may fall somewhere in between on the his or her daily safety is maintained. Another commenter was confused continuum. We are not making any That does not mean the individual about this definition in the proposed changes based on these comments. would be required to actually wander

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on a constant basis in order to be One commenter appeared to confuse medication management from another determined as unable to self-sustain in the different levels of the monthly individual due to the paranoid thoughts the community. We find the use of stipend rate and questioned how a that prevent the individual from continuous to be sufficient for purposes veteran with a serious cognitive independently taking the medication of distinguishing between the higher impairment who is unable to self- (that is, he or she may think the and lower levels of stipend when a sustain in the community would not medication is harmful), and thus may be veteran has a need for supervision, require a caregiver to be physically determined to have a need for protection, or instruction. As we present the remainder of the day. First, supervision, protection, or instruction to explained in the proposed rule and we clarify that the definition of need for maintain his or her personal safety on reiterated in this discussion, the supervision, protection, or instruction a daily basis. If such veteran or distinction of ‘‘continuous’’ in this does not require such supervision, servicemember also responds to the definition in contrast to ‘‘daily’’ in the protection, or instruction be provided delusions or hallucinations in a manner definition of ‘‘need for supervision, on a continuous basis, but in order to such as engaging in violent or self-harm protection, or instruction’’ allows us to qualify for the higher stipend level, an behaviors at various and unpredictable differentiate between those who have individual would be required to have a times during the day, the individual moderate needs versus those who have need for supervision, protection, or may be determined to have a need for a higher level of need for purposes of instruction on a continuous basis. To supervision, protection, or instruction determining the appropriate monthly the extent the commenter is referring to on a continuous basis. We are not stipend level. 85 FR 13384 (March 6, a veteran or servicemember who meets making any changes based on this 2020). We believe that the discussion the definition of unable of self-sustain comment. One commenter stated that the above regarding ‘‘need for supervision, in the community due to a need for definition does not meet the intended or protection, or instruction’’ under § 71.15 supervision, protection, or instruction accepted health care industry standards, provides clarification to explain how on a continuous basis, we agree with the including those related to safely VA will distinguish between veterans commenter that such individual may remaining in the home or community. and servicemembers who have a need require a caregiver to be physically We are unclear as to what intended or for supervision, protection, or present the remainder of the day. For accepted health care industry standards instruction (i.e., whose functional example, an eligible veteran with the commenter is referring. However, impairment directly impacts the dementia who needs step-by-step individual’s ability to maintain his or we note that PCAFC is a program instruction in dressing each morning unique to VA, and the statute requires her personal safety on a daily basis) and has a demonstrated pattern of versus those who meet the definition of us base the stipend payment on ‘‘the wandering outside the home at various amount and degree of personal care unable to self-sustain in the community times throughout the day may meet this (i.e., those who have a need for services provided.’’ 38 U.S.C. definition. Because of the demonstrated 1720G(a)(3)(C)(i). The intent of this supervision, protection, or instruction pattern of wandering outside the home on a continuous basis). definition of ‘‘unable to self-sustain in at various times, the veteran cannot the community’’ is to meet this statutory We note that ‘‘continuous’’ does not function safely and independently in requirement by distinguishing between mean constant or 24/7 supervision, the absence of a caregiver, and the two levels of care. This definition is protection, or instruction, and it is not Family Caregiver would actively intended to cover those eligible veterans our intent for PCAFC to require 24/7 intervene through verbal and physical with severe needs, consistent with care from a Family Caregiver. The redirection multiple times throughout PCAFC’s focus on veterans with definition is not meant to imply that an the day. This veteran would have a moderate and severe needs. individual requires hospitalization or continuous need for an active One commenter appeared to allege nursing home care; rather, eligible intervention to ensure his or her daily that the lower stipend level for ADLs veterans meeting this definition will safety is maintained. In discussing the was too low of a bar and, thus this qualify for the higher-level stipend definition of need for supervision, definition would be inconsistent with based on a higher level of personal care protection, or instruction above, we also current VA Case Mix Tools for needs. Need for supervision, protection, provided an example of a veteran or Homemaker and/or H/HHA service or instruction on a continuous basis servicemember with TBI who has authorizations. To the extent that this could be demonstrated by a regular, cognitive impairment resulting in commenter is referring to the purchased consistent, and prevalent need. We note difficulty initiating and completing HCBS Case-Mix and Budget Tool, that that services provided by Family complex tasks, such as a grooming tool is an instrument that provides a Caregivers are meant to supplement or routine, who may require step-by-step uniformed and standard way of complement clinical services provided instruction in order to maintain his or allocating Purchased HCBS to veterans to eligible veterans. As part of PCAFC, her personal safety on a daily basis. If based on functional need that allows we do not require Family Caregivers such veteran or servicemember also them to remain independently in their provide 24/7 care to eligible veterans. experiences daily seizures because of an homes and communities. Completion of PCAFC is one of many in-home VA uncontrolled seizure disorder due to the the tool results in a case-mix score or services that are complementary but not TBI, such that seizures occur at level that correspond to a monthly necessarily exclusive to each other. As unpredictable times during the day, the dollar amount; inclusive of costs for a result, an eligible veteran and his or individual may be determined to be in selected Purchased HCBS programs. The her caregiver may participate in more need of supervision, protection, or Purchased HCBS programs covered by than one in-home care program, as instruction on a continuous basis. In the Purchased HCBS Case-Mix and applicable and based on set another example, a veteran or Budget Tool includes H/HHA, requirements, and we can refer such servicemember who has a diagnosis of Community Adult Day Health Care individuals to other VA services and schizophrenia who experiences active (CADHC), In-Home Respite and Veteran- programs as needed. delusions or hallucinations and requires Directed Home and Community Base We make no changes based on these daily medications for those symptoms Services (VD–HCBS). We note that the comments. may require daily support with intent and use of this tool is distinct

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from PCAFC as the tool is used to ‘‘self-sustain’’ in the community and ‘‘fully dependent’’ on a caregiver to determine hours of care for services urged VA to define eligibility to ensure complete at least three ADLs, is not other than PCAFC. that veterans and Family Caregivers not required to be met in order to be eligible To the extent the commenter is only self-sustain but thrive in the for PCAFC; it is solely used for purposes referring to H/HHA eligibility community. First, we note that the of determining the stipend level. The requirements under VHA Handbook definition of unable to self-sustain in definition of inability to perform an 1140.6 Purchased Home Health Care the community is focused on the ADL, which is one basis upon which a Services Procedures, we respectfully eligible veteran; not the Family veteran or servicemember may be disagree with the commenter’s Caregiver. Second, we note that ‘‘self- deemed in need of personal care assertion. Eligibility determinations for sustain’’ is meant to describe the eligible services, requires that the veteran or H/HHA under VHA Handbook 1140.6, veteran’s clinical condition, while servicemember need assistance each target the population of eligible veterans thriving in the community may be open time that he or she completes at least who are most in need of H/HHA to various interpretations and is not a one ADL; it does not require the eligible services as an alternative to nursing recognized or specific clinical term. veteran be ‘‘fully dependent’’ on a home care. An interdisciplinary ‘‘Unable to self-sustain in the caregiver to complete at least three assessment is used to determine community’’ is used only for the ADLs. Thus, an eligible veteran who whether a veteran has specific clinical purposes of defining eligibility for the does not require personal care services conditions to include three or more ADL higher level stipend and is not intended each time he or she completes three or dependencies, or significant cognitive to describe clinical objectives or long- more ADLs, could still be eligible for impairment. Also, in the instance a term treatment goals. We do not think veteran only has two ADL it would be appropriate to add the PCAFC; however, the Primary Family dependencies, an additional two language ‘‘thrive in the community’’ to Caregiver would receive the lower-level conditions are considered including a the definition since not all veterans and stipend (i.e., 62.5 percent of the dependency in three or more IADLs or servicemembers who qualify for PCAFC monthly stipend rate). if the veteran is seventy-five years old, will be able to ‘‘thrive’’ in the This recommendation to remove the or older. We believe the definition of community. We also note that it may ‘‘fully dependent’’ language relates to unable to self-sustain in the community also not be their goal. We are not the first part of the definition of unable is not a departure from the clinical making any changes based on this to self-sustain in the community that conditions listed with respect to H/HHA comment. refers to the eligible veteran requiring services in VHA Handbook 1140.6, as it Another commenter stated that the personal care services each time he or similarly includes certain eligible inequity in the two stipend levels would she completes three or more of the veterans that require assistance with be economically unfair to Primary seven ADLs listed in the definition of an three or more ADLs or have a need for Family Caregivers of eligible veterans inability to perform an ADL, and is fully supervision, protection, or instruction who are determined to be unable to self- dependent on a caregiver to complete on a continuous basis which is similar sustain in the community. We refer this such ADLs. We decline to make this to having a significant cognitive commenter to the related discussions in change to the definition to remove the impairment. Additionally, we note that this section on the monthly stipend rate ‘‘fully dependent’’ language because we the definition for ‘‘unable to self-sustain and on the specific number of caregiver believe this language is necessary. We in the community’’ is used to determine hours or tasks. clarify in this rulemaking that fully the higher level stipend (i.e., 100 Another commenter noted that VA dependent is the degree of need should reconsider this requirement percent of the monthly stipend rate) for required for this prong of the definition. because few veterans will be eligible for the Primary Family Caregiver. A To be fully dependent means the the higher-level stipend, and the Primary Family Caregiver would receive eligible veteran requires the assistance definition will work against VA’s efforts the stipend at the lower-level if the of another to perform each step or task eligible veteran does not meet the to foster independence among veterans related to completing the ADL. We definition of unable to self-sustain in and will promote total reliance on a acknowledge this may be a high the community but is still in need of caregiver. The commenter standard to meet, but it will target those personal care services for a minimum of recommended that VA remove the eligible veterans with severe needs. We six continuous months based on either requirement for ‘‘full dependence.’’ an inability to perform an ADL, which Similarly, another commenter opined note that ‘‘fully dependent’’ is means the eligible veteran requires that the fully dependent language was consistent with the clinical term, personal care services each time he or too strict, but appeared to confuse the dependence, which is used to define she completes one or more of the seven requirement of ‘‘fully dependent’’ for and assess a higher level of care needed listed ADLs in § 71.15, or a need for three ADLs in the definition of unable by a veteran, and ensures that the public supervision, protection or instruction, to self-sustain in the community with understands this term. While which means the individual has a the definition of inability to perform an dependence is considered along a functional impairment that directly ADL. spectrum, fully dependent is at the top impacts the individual’s ability to First, we note that the definition of of the spectrum. Thus, the fully maintain his or her personal safety on ‘‘unable to self-sustain in the dependent language is intended to cover a daily basis. Further, PCAFC is one of community’’ requires that an eligible those eligible veterans with severe many clinical programs available to veteran need personal care services each needs for purposes of determining the veterans and servicemembers, as time he or she completes three or more higher stipend level. While we support applicable, that are complementary but ADLs listed in the definition of inability each eligible veteran’s ability to be as are not required to be identical in terms to perform an ADL in § 71.15, and is functional and independent as possible, of eligibility requirements. We are not fully dependent on a caregiver to we acknowledge that we do not making any changes based on this complete such ADLs; or has a need for anticipate that many eligible veterans comment. supervision, protection, or instruction who qualify under this definition will One commenter was not supportive of on a continuous basis. This definition, have much independence, as these definitions to ensure that veterans can and in particular the requirement to be would be those eligible veterans with

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the highest needs. We do not make any such ADLs; or has a need for issues would be exacerbated by the changes based on these comments. supervision, protection, or instruction addition of more tiers or levels, and that One commenter disagrees with the on a continuous basis. This definition is using only two levels will allow VA to requirements of this definition and not required to be met in order to be better focus on supporting the health requests that VA retain the clinical eligible for PCAFC; it is solely used for and wellness of eligible veterans and ratings for determining stipend tiers in purposes of determining the stipend their Family Caregivers. We believe that the current regulations. The same level and is intended to cover those two levels will provide the clearest commenter asserts that this change from eligible veterans with severe needs. The delineation between the amount and the current regulations unnecessarily definition of inability to perform an degree of personal care services and arbitrarily limits the flexibility of ADL, which is one basis upon which a provided by the Family Caregiver. VA to consider all relevant factors in veteran or servicemember may be As we explained in the proposed rule, determining how much help an eligible deemed in need of personal care while the changes we proposed to the veteran needs. The commenter further services, requires that the veteran or PCAFC stipend methodology and levels asserts that VA’s proposed approach servicemember need assistance each would result in an increase in stipend impedes VA’s ability to consider the time that he or she completes at least payments for many Primary Family factors in 38 U.S.C. 1720G(a)(3)(C)(iii) one ADL. Thus, an eligible veteran who Caregivers of legacy participants, for by allowing VA to ignore a Family does not require personal care services others, these changes may result in a Caregiver’s input and based on their each time he or she completes three or reduction in the stipend amount that assertion that the amount of time more ADLs and may only need they were eligible to receive before the required to provide supervision, assistance with two, could still be effective date of the rule. 85 FR 13385 protection, and instruction would be eligible for PCAFC; however, the (March 6, 2020). We acknowledge that irrelevant. One commenter stated that Primary Family Caregiver would receive some legacy participants that are the language suggests that in order to be the lower-level stipend (i.e., 62.5 currently receiving stipend payment at considered for the higher tier, a veteran percent of the monthly stipend). tier three may not meet this definition would likely need to be in or nearing We note that the higher level is not of unable to self-sustain in the the geriatric based population, a intended to cover only those eligible community for purposes of the stipend requirement that would omit many of veterans who are geriatric or nearing payment and may receive the stipend the program’s current participants from geriatric, and age is not a determining payment at the lower level. To help being eligible or qualifying for the factor for purposes of the definition of minimize the impact of such changes, higher tier. Similarly, another unable to self-sustain in the community. we would make accommodations for commenter was concerned that this Instead, the higher level is based on Primary Family Caregivers of eligible change for determining stipend levels whether the eligible veteran meets the veterans who meet the requirements of and the definition of unable to self- definition of unable to self-sustain in proposed § 71.20(b) and (c) (i.e., legacy sustain in the community will the community, which considers the participants and legacy applicants) to arbitrarily and adversely impact amount and degree of need for personal ensure their stipend is not reduced for veterans PCAFC is intended to help, care services. This definition is meant to one year beginning on the effective date contrary to Congressional intent, as it address those eligible veterans that have of the rule, except in cases where the will be harder for Family Caregivers to severe needs, regardless of age, and this reduction is the result of the eligible qualify for the higher stipend level definition of unable to self-sustain in veteran relocating to a new address. Id. which will reduce the benefit they the community provides a way for us to We do not agree that the changes to the receive and result in family members distinguish between those who have stipend levels will deter family being less likely to serve as a Family severe needs and those who have members from caring for eligible Caregiver. This commenter asserted that moderate needs for purposes of the veterans, who may have been providing an eligible veteran may be fully stipend level. care to the eligible veteran even before dependent on a Family Caregiver for This definition will be used to approval and designation as a Family assistance with performing only two determine the higher- and lower-level Caregiver under PCAFC. Additionally, ADLs or need supervision for 18 hours stipend payments, and VA believes it is the stipend is not intended to a day, but would not qualify under the necessary to establish a clear incentivize family members to be definition of unable to self-sustain in delineation between the amount and caregivers, but rather an the community, even though they need degree of personal care services acknowledgment of the sacrifices a caregiver for 40 hours per week. provided to eligible veterans, as caregivers make to care for eligible Another commenter stated that the required by 38 U.S.C. 1720G(a)(3)(C)(i). veterans. 76 FR 26155 (May 5, 2011). higher level was too stringent, and We believe two levels will allow us to Further, the determination of whether appeared to confuse the definitions of better focus on supporting the health an eligible veteran is unable to self- ‘‘inability to perform an ADL’’ and and wellness of eligible veterans and sustain in the community will occur ‘‘unable to self-sustain in the their Family Caregivers, and will during the initial assessment of community,’’ such that they believed address the challenges we identified in eligibility and during reassessments, the requirements related to ADLs under using three levels. As we explained in both of which will provide the Family the definition of ‘‘unable to self-sustain the proposed rule and reiterate here, the Caregiver with the opportunity to in the community’’ must be met in order utilization of three tiers has resulted in provide input on the needs and to qualify for PCAFC. inconsistent assignment of ‘‘amount and limitations of the eligible veteran, and First, we note that the definition of degree of personal care services consider the assistance the Family ‘‘unable to self-sustain in the provided,’’ and a lack of clear Caregiver provides, including both community’’ requires that an eligible thresholds that are easily understood assistance with ADLs and supervision, veteran need personal care services each and consistently applied has protection, and instruction. time he or she completes three or more contributed to an emphasis on For all of these reasons as explained ADLs listed in the definition of inability reassessment to ensure appropriate above, we believe this definition fulfills to perform an ADL in 71.15, and is fully stipend tier assignment. 85 FR 13383 VA’s statutory requirement, and allows dependent on a caregiver to complete (March 6, 2020). We believe that such for VA consideration of those factors in

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38 U.S.C. 1720G(a)(3)(C)(iii). We are not an ADL or a need for supervision, them for the higher stipend level, would making any changes based on these protection, or instruction. We make no require more frequent and possibly comments. changes based on this comment. more intensive care and the Family One commenter noted that Family One commenter raised concerns about Caregiver would thus provide a greater Caregivers do not have the skills or language in the proposed rule, in which amount and degree of personal care extensive training to assist veterans in we explained the difference between the services to the eligible veteran. 85 FR need of assistance with 3 ADLs, and that need for supervision, protection, or 13384 (March 6, 2020). We refer the veterans that qualify for these services instruction on a daily basis versus commenter to the discussion of ‘‘need should receive care from in-home care continuous basis by stating that ‘‘. . . an for supervision, protection, or providers. We note that PCAFC provides individual with dementia who only instruction’’ above where we additional options to eligible veterans experiences changes in memory or distinguish the terms ‘‘daily’’ and and their Family Caregivers who may behavior at certain times of the day, ‘‘continuous.’’ wish to remain in the home. Family such as individuals who experience We make no changes based on this Caregivers receive training and sundowning or sleep disturbances, may comment. education to help them support the not be determined to have a need for Two Stipend Levels eligible veteran’s care needs. We do not supervision, protection, or instruction expect Family Caregivers to replace the on a continuous basis.’’ See 85 FR 13384 VA proposed to establish two levels need for medical professionals that (March 6, 2020). This commenter for the stipend payments versus the provide specialized medical care that further stated that ‘‘[t]he standard three tiers that are set forth in current requires advanced skill and training. should was, in the veteran were not care § 71.40(c)(4)(iv)(A) through (C). Whether PCAFC is one of many options available for by a caregiver, would the VA or a a Primary Family Caregiver qualifies for for veterans who wish to remain in the Social Service division have to provide a stipend at the higher level will depend home. Other programs available include some type of regular aid.’’ We are on whether the eligible veteran is Veteran-Directed care, home based unable to determine whether this determined to be ‘‘unable to self-sustain primary care services, and adult day commenter thinks this ‘‘standard’’ in the community’’ (as that term will be health care. As necessary and should be for PCAFC eligibility or for defined in § 71.15). The lower stipend appropriate, we will make referrals to the higher stipend level, but note that level will apply to all other Primary other VA programs and services. We the commenter’s examples repeat Family Caregivers of eligible veterans make no changes based on this examples VA provided in the context of such that the eligibility criteria under comment. explaining ‘‘unable to self-sustain in the proposed § 71.20(a) will establish One commenter disagreed with the community.’’ eligibility at the lower level. VA definition of ‘‘unable to self-sustain in First, we note that the definition of received multiple comments about the the community,’’ based on the ‘‘unable to self-sustain in the two stipend levels that are addressed experience of one of their fellows who community’’ requires that an eligible below. is the Family Caregiver of a paraplegic, veteran need personal care services each We received several comments that who has suffered significant muscle time he or she completes three or more indicate confusion about the two levels damage in his lower extremities. They ADLs listed in the definition of inability for stipend payments. In particular, noted that while this individual can to perform an ADL in 71.15, and is fully some commenters believed that the complete most ADLs independently, he dependent on a caregiver to complete eligible veteran’s type of disability, has shoulder damage resulting from such ADLs; or has a need for whether it be physical or related to overuse, and the Family Caregiver supervision, protection, or instruction cognition, neurological or mental provides support and assistance on most on a continuous basis. This definition is health, will be a determinative factor in days. They further noted that without not required to be met in order to be the stipend level. One commenter stated the Family Caregiver’s support on eligible for PCAFC; it is solely used for the higher- level leans too heavily on completing less than three ADLs, this purposes of determining the stipend physical disabilities and believes that individual would not be able to remain level. The definition of need for the lower level was for eligible veterans in the community. As we explained in supervision, protection, or instruction, with needs related to supervision and the proposed rule and reiterated in this which is one basis upon which a safety. The commenter noted how discussion, the definition of unable to veteran or servicemember may be difficult it is to perform the tasks self-sustain in the community is deemed in need of personal care associated with supervision and intended to provide a distinction for services, requires that the veteran or protection. The commenter further purposes of the higher- and lower-level servicemember have a functional inquired as to how VA will address stipend rate; it is not used for impairment that directly impacts the veterans who are eligible for both levels. determining whether an individual is individual’s ability to maintain his or The commenter was also concerned that eligible for PCAFC. It is our intent that her personal safety on a daily basis; it by assuming that physical disabilities those eligible veterans with severe does not require the eligible veteran to are greater than invisible injuries, VA needs would meet the definition of need supervision, protection, or would not be helping the suicide unable to self-sustain in the community instruction on a continuous basis. Thus, problem. Relatedly, another commenter and qualify for the higher-level stipend. an eligible veteran who does not require believed that the higher level focused on As we explained above, if an eligible need for supervision, protection, or ADLs. Another commenter also veteran does not meet the definition of instruction on a continuous basis could expressed general confusion about the unable to self-sustain in the community, still be eligible for PCAFC; however, the lower stipend level. that does not mean they are ineligible Primary Family Caregiver would receive To clarify, all eligible veterans who for PCAFC. To determine eligibility for the lower-level stipend (i.e., 62.5 qualify for PCAFC will meet the criteria PCAFC, VA would assess the veteran or percent of the monthly stipend rate). for the lower-level stipend. However, a servicemember’s eligibility under 38 As we explained in the proposed rule, Primary Family Caregiver will receive CFR 71.20(a), including whether the an eligible veteran who has a need for the higher-level monthly stipend rate if individual is in need of personal care supervision, protection, or instruction the eligible veteran is determined to be services based on an inability to perform on a continuous basis, thus qualifying unable to self-sustain in the

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community.as defined in § 71.15. The variation between the amount and these disability ratings and awards definition of ‘‘unable to self-sustain in degree of personal care services referenced by the commenters may seem the community’’ covers both ‘‘inability provided. Accordingly, we believe the similar, we note these are not to perform an ADL’’ and ‘‘need for statute requires VA to establish at least synonymous with VA’s definition of supervision, protection and instruction’’ two PCAFC stipend levels; thus, we are ‘‘unable to self-sustain in the and this accounts for both physical unable to pay every Primary Family community,’’ and we do not believe the disabilities and cognitive, neurological, Caregiver the same monthly stipend. We criteria for those benefits are a substitute and mental health disabilities. Thus, are not making any changes based on for a clinical evaluation of whether a eligible veterans can meet the these comments. veteran or servicemember is unable to requirements of unable to self-sustain in One commenter was concerned that self-sustain in the community. We the community because of physical because the veteran the commenter believe that in order to ensure that disabilities leading to impairments or cares for suffers from PTSD, TBI, PCAFC is implemented in a disabilities leading to cognitive, depression, and pain-related issues, standardized and uniform manner neurological or mental health they may no longer qualify for the across VHA, each veteran or impairment. Therefore, we do not program and requested more tiers, not servicemember must be evaluated based believe that the higher stipend level is less. We wish to clarify that the on the same criteria, including the primarily for or focused on veterans assignment of tiers (in the current criteria to qualify for the higher-level with physical disabilities. To the extent regulations) or levels (as the regulations stipend. To that end, VA will utilize a commenter raised concerns that VA are revised by this rulemaking) is used standardized assessments to evaluate would not be helping the suicide to determine the amount of the monthly both the veteran or servicemember and problem, we refer the commenter to the stipend payment issued to the his or her identified caregiver when discussion on veteran suicide in the designated and approved Primary determining eligibility for PCAFC and miscellaneous comments section. We Family Caregiver and is not used to the applicable stipend level, as are not making any changes based on determine eligibility. To the extent that applicable. It is our goal to provide a these comments. the commenter is requesting that we add program that has clear and transparent Several commenters expressed additional stipend tiers or levels for eligibility criteria that is applied to each concern with VA’s proposal to have additional stipend rates, we decline to and every applicant. more than one level of stipend payment. make those changes. As VA explained Additionally, we do not believe it Multiple commenters disagreed with in the proposed rule, the utilization of would be appropriate to consider placing percentages on how much help three tiers has resulted in inconsistent certain disability ratings as a substitute a veteran can receive. One commenter assignment of ‘‘amount and degree of for a clinical evaluation of whether a asserted that everyone should be paid personal care services provided,’’ and a veteran or servicemember is unable to equally. Another commenter lack of clear thresholds that are easily self-sustain in the community, as not all recommended there be one level, and understood and consistently applied has veterans and servicemembers applying that having two will present challenges, contributed to an emphasis on for or participating in PCAFC will have appeals, and confusion. The reassessment to ensure appropriate been evaluated by VA for such ratings, determination of whether a Primary stipend tier assignment. 85 FR 13383 and because VA has not considered Family Caregiver receives the lower- (March 6, 2020). We believe that such whether additional VA disability ratings level stipend (i.e., 62.5 percent of the issues would be exacerbated by the or other benefits determinations other monthly stipend rate) or the high level addition of more tiers or levels, and that than those recommended by the stipend (i.e., 100 percent of the monthly using only two levels will allow VA to commenters may be appropriate for stipend rate) is based on whether the better focus on supporting the health establishing that a veteran or eligible veteran is unable to self-sustain and wellness of eligible veterans and servicemember is unable to self-sustain in the community. The percentages are their Family Caregivers. We believe that in the community for purposes of assigned only for the purposes of two levels will provide the clearest PCAFC. Finally, it should be noted in calculating stipend payments. While we delineation between the amount and that VA disability ratings under VA’s believe the percentages are consistent degree of personal care services schedule for rating disabilities are with the time and level of personal care provided by the Family Caregiver. We intended to evaluate the average services required by an eligible veteran also note that the eligibility criteria for impairment in earning capacity in civil from a Family Caregiver at each level PCAFC and the higher stipend level occupations resulting from various (85 FR 13384 (March 6, 2020)), the account for veterans and disabilities or combinations of percentages are not intended to equate servicemembers with personal care disabilities. 38 U.S.C. 1155. They are to a specific amount of care related to needs related to cognitive, neurological, not designed to take into account the the personal care services being and mental health conditions are amount and degree of personal care received by the eligible veteran. considered under the definition of services provided the eligible veteran. While we understand the serious injury, and further refer the Thus, they would provide a very commenters’ concern that having commenter to our discussion of the imprecise guide to determining stipend multiple levels could present eligibility criteria in § 71.20(a) and in rates. We are not making any changes challenges, appeals, or confusion, the discussion of the term unable to self- based on these comments. section 1720G of title 38, U.S.C., sustain in the community. We make no Several commenters raised concerns requires that the amount of the monthly changes based on this comment. about the hours or responsibilities personal caregiver stipend be Several commenters suggested that associated with the stipend levels. determined in accordance with a certain VA disability ratings, including Multiple commenters provided their schedule established by VA that a 100 percent permanent and total personal stories about caring for a specifies stipends based on upon the service-connected disability rating and veteran in the current program and amount and degree of personal care certain aid and attendance awards, believed that the current hours were not services provided. See 38 U.S.C. should automatically qualify an eligible indicative of the how long the caregiver 1720G(a)(3)(C)(i). We interpret this to veteran for the highest stipend rate. actually spends taking care of the mean that the schedule must account for While the eligibility requirements for eligible veteran or expressed concerns

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that the new stipend level would be VA will provide oversight and pertinent medical records, in order to insufficient for the number of hours monitoring of the adequacy of care and render a determination regarding required. Some stated that the 10-hour supervision being provided by the eligibility, including whether the category was insufficient, another Family Caregiver. We are making no veteran is determined to be unable to shared that the tasks required 14 hours changes based on these comments. self-sustain in the community for the a day, every day and that the new One commenter expressed concern purposes of PCAFC. The CEATs are program would not adequately over how VA plans to adjust for bias comprised of a standardized group of compensate for the required hours, towards those with higher ratings in the inter-professional, licensed practitioners another commenter explained that the new two-level system. This commenter with specific expertise and training in care required was 24/7 and requested asked whether the individual the eligibility requirements for PCAFC that VA require caregivers to provide a conducting the assessment would have and the criteria for the higher-level log of the activities that they perform, access to the veteran’s rating decision stipend. and another stated that the current and be persuaded to place the veteran While primary care teams will not system was insufficient and the in the more financially beneficial collaborate directly with the CEATs on regulations do not account for the category if the veteran has a higher determining eligibility, documentation amount of time required. Another rating than 70 percent, and asserted that of their input in the local staff commenter questioned whether that this factor and others must be evaluation of PCAFC applicants will be there will be an expectation for addressed. We thank the commenter for available in the medical record for caregivers to provide 24/7 care. One their concern and clarify that a 70 review. This documentation will be commenter was concerned that most of percent single or combined service- used by the CEATs to help inform the current caregivers receiving stipends connected disability rating is used to eligibility determinations, including at tier three will be excluded because determine whether an eligible veteran whether the veteran is determined to be the higher stipend level will require 24/ has a serious injury; however, an unable to self-sustain in the community 7 care. eligible veteran’s service-connected for the purposes of PCAFC. We are not disability rating has no bearing on the making any changes based on this Foremost, we thank the caregivers determination of whether an eligible comment. who are providing personal care veteran is in need of personal care One commenter commended VA for services to their family members and the services or whether he or she is unable proposing a more streamlined approach sacrifices that they make. Further, it has to self-sustain in the community for to determining the monthly stipend, and never been VA’s intent that the monthly purposes of the monthly stipend. we appreciate the comment. However, stipend directly correlates with a Determinations of whether an eligible multiple commenters believed that VA specific number of caregiving hours. See veteran is unable to self-sustain in the did not provide sufficient rationale for 80 FR 1369 (January 9, 2015). We note community are made by CEATs, which going from three tiers to two levels. One that to the extent commenters are are informed by evaluations and commenter asserted that little dissatisfied with the current criteria, we assessments of the veteran’s functional information and rationale was provided understand and have removed the needs for which the specific service- on why it is necessary to move from references to numbers of hours, and connected rating has no bearing. three tiers to two levels, and that this instead will rely on a percentage of the Through training, VA will ensure this is change will disadvantage veterans and GS rate when determining the monthly clear to those rendering determinations their caregivers. Similarly, one stipend. While we know that some of whether an eligible veteran is unable commenter stated that the two levels Family Caregivers provide in excess of to self-sustain in the community. We are should be better defined to ensure the 40 hours or more of caregiving a week, not making any changes based on this program is consistently implemented we reiterate that the stipend payment comment. across VHA. One commenter stated that does not represent a direct correlation to One commenter recommended that VA provided no explanation on why the the number of hours a Family Caregiver assessment of the stipend level be current evaluation and scoring is no provides. Additionally, eligible veterans completed ‘‘with the Primary doctor and longer sufficient. Another commenter who require 24/7 care may be eligible Primary Caregiver,’’ and potentially a disagreed with the change to two levels for additional support services, such as licensed occupational therapist, but and asked for the theoretical or homemaker or home health aide, to disagreed with allowing others such as conceptual basis for this change. Two supplement the personal care services a nurse, social worker, physical commenters expressed concern that provided by the Family Caregiver. In therapist, or kinesiologist to complete there are no specific criteria defining the addition, we note that the reference in such assessments as that can lead to two levels and asserted that VA the definition of ‘‘unable to self-sustain inconsistencies. As stated above, provided no explanation as to why the in the community’’ to an eligible veteran eligibility determinations for PCAFC current clinical scoring is no longer who has a need for supervision, will be based upon evaluations of both sufficient. protection, or instruction on a the veteran and caregiver applicant(s) As indicated in the proposed rule, VA ‘‘continuous basis,’’ was not intended to conducted by clinical staff at the local has found that the utilization of the mean that the eligible veteran requires VA medical center, with input from the current three tiers has resulted in or that the Family Caregiver provides primary care team, including the inconsistent assignment of the ‘‘amount 24/7 or nursing home level care. This is veteran’s primary care provider, to the and degree of personal care services not VA’s intent or expectation of Family maximum extent practicable. These provided.’’ See 85 FR 13383 (March 6, Caregivers. Further, VA does not believe evaluations include assessments of the 2020). Further, there can often be little it is necessary to require caregivers to veteran’s functional status and the variance in the personal care services provide a log of the activities they caregiver’s ability to perform personal provided by Primary Family Caregivers perform. Participation in PCAFC is care services. Additional specialty between assigned tier levels (e.g., conditioned, in part, upon the Family assessments may also be included based between tier 1 and tier 2, and between Caregiver providing personal care on the individual needs of the veteran. tier 2 and tier 3) which has led to a lack services to the eligible veteran. Through When all evaluations are completed, the of clear thresholds. Id. These tier wellness contacts and reassessments, CEAT will review the evaluations and assignments were based on criteria and

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a subsequent score that were subjective of these programs. Another commenter planning services, as that term is in nature due to the lack of clear urged VA to rethink the adjustment defined in § 71.15. These services may delineations between the amount and from three tiers to two levels, and be helpful to those who will be degree of required personal care services asserted that VA needs to ensure eligible adjusting to a lower stipend amount. based on the veteran’s or veterans and their caregivers do not fall Family Caregivers also have access to servicemember’s inability to perform an through the cracks and jeopardize their mental health services that can provided ADL or need for supervision and financial stability, specifically current support as needed. We are not making protection based on symptoms or PCAFC participants. Another any changes based on these comments. residuals of neurological or other commenter believed that, although the Several commenters disagreed with impairment or injury. For example, role is not changing, VA was changing the change in the tiers, especially the providers surmised the difference the acknowledgement of the validity of elimination of current PCAFC between the level of assistance needed the role and indicating that it is not participants who qualify at the lowest to complete a task or activity when worth as much. The commenter further tier (tier one). Another commenter noted assigning a ‘‘score.’’ Additionally, the stated that by removing the necessary that VA presumes the lowest tier does sum of all ratings lacked clear funding the access to the program will not include veterans with moderate to delineation between tiers. For example, be greatly diminished. severe needs for personal care services, the difference between a rating of 12 While we are making no changes and asserted that VA provided no data, and 13 was the difference between tier based on these comments, we literature, or study to support this one and tier two. This subjectivity has emphasize that we do not believe that presumption. This commenter disagrees led to lack of clear threshold and thus the sacrifices made by caregivers are not with this presumption and asserted that confusion and frustration for both worthwhile. Family Caregivers play a VA must provide data and analysis to PCAFC participants and VA staff. significant role in the lives of veterans support it. To further clarify, VA’s Assessing the needs and functional and servicemembers, and we thank assumption that the current tier one impairments of a veteran is complex them for their service. We wish to participants will be removed from and we believe transitioning from a emphasize that PCAFC is one way VA PCAFC as a result of eligibility changes subjective rating which attempts to supports eligible veterans and the in part 71 was used for estimating the delineate degrees of need in specific Family Caregivers. For those who may potential impact of the regulation on ADLs and impairments, to an no longer qualify, CSCs are available to VA’s budget. VA made this assumption assessment of the veteran’s overall level assist in identifying the needs of the because per the current rating criteria, of impairment will simplify the veterans and their caregivers, and Tier 1 is indicative of a low amount of determination, which will in turn result making referrals and connections to need. As VA expands PCAFC to include in consistency and standardization alternative services as appropriate. VA eligible veterans of all eras and makes throughout PCAFC in determining the offers a menu of supports and services other changes to focus on veterans with appropriate level for stipend payments. that supports caregivers caring for moderate and severe needs it is possible Additionally, as previously explained, veterans such as homemaker and home that the current tier one participants we are standardizing PCAFC to focus on health aides, home based primary care, may not meet the eligibility criteria in veterans and servicemembers with Veteran-Directed care, and adult day § 71.20(a). VA will not automatically moderate and severe needs. Therefore, care health care to name a few. In discharge current PCAFC participants VA believes it is necessary to base addition, VA offers supports and whose Primary Family Caregivers stipend payments on only two levels of services provided directly to caregivers receive stipends at tier one. Instead, VA need that establish a clear delineation of covered veterans through PGCSS will conduct reassessments for all between the amount and degree of including access to CSCs located at legacy participants and legacy personal care services provided to every VA medical center, a caregiver applicants, regardless of assigned tier to eligible veterans. Id. We are not making website, training and education offered determine continued eligibility in any changes based on these comments. online and in person on topics such as PCAFC, and for those who are eligible, self-care, peer support, and telephone the applicable stipend rate. We are not Concern for Current Legacy support by licensed social workers making any changes based on these Participants, Including Those Receiving through VA’s Caregiver Support Line. comments. Lowest Tier Stipend While offering assurance of funding Several commenters expressed and availability of specific services in Specific Number of Caregiver Hours or concern for current participants who specific areas is outside the scope of this Tasks may no longer be eligible for PCAFC or rulemaking, we note that VA is actively One commenter appreciated the idea whose stipends may be reduced. In improving and expanding PGCSS, of moving into different tiers but was recognizing the focus on eligible including the establishment of General not sure if this was the appropriate veterans with moderate and severe Caregiver Support staff to ensure direction, especially as it is difficult to needs, one commenter recommended nationwide support at each medical calculate time providing care. Other that VA identify other services and center. commenters raised concerns about being supports available to current In addition, as explained in the placed in the lowest tier level when participants who may be impacted by proposed rule, we understand that they provide more than 10 hours of this change and verify that these other Primary Family Caregivers may have caregiving per week. Some commenters programs are available consistency their stipend amount impacted by noted that the stipend is based on 40 across the country and effective in changes to the stipend payment hours of care per week, when they may delivering support. The commenter calculation. We take this opportunity to be providing more than that and specifically mentioned Veteran-Directed highlight that the VA MISSION Act of otherwise the veteran would have to be care, home based primary care, respite 2018 expanded benefits available to institutionalized. This new pay scale care, and homemaker and home health Primary Family Caregivers, which would not cover those situations, and aide services, and asserted that they are includes Primary Family Caregivers of one commenter recommended basing often underfunded by VA, and urged legacy participants and legacy the stipend amount on the actual VA to ensure the success and viability applicants, to include financial number of hours of care provided.

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Relatedly, one commenter stated that veteran’s home is delayed. In this flights, retirement options, dental care, VA should consider the daily, weekly, instance, the veteran’s home remains long-term care benefits, assistance with monthly tasks caregivers perform when their intended permanent address. mortgage, survivor benefits) because determining the level of stipend. One Additionally, we are aware of cases in these benefits are not authorized under commenter asserted that the two levels which a veteran may have a ‘summer’ 38 U.S.C. 1720G(a)(3)(A). Furthermore, is economically unfair to caregivers of residence and a ‘winter residence.’ In to the extent one commenter believes eligible veterans who are unable to self- these cases, VA would expect VA should provide dental care to sustain in the community. We respond notification of the veteran’s address veterans who have less than 100 percent to these comments below. change, not only for the purposes of service-connected disability rating, we As indicated in the proposed rule, it calculating the stipend payment but also believe this is beyond the scope of this has never been VA’s intent that the to allow VA to conduct the required rulemaking. We make no changes based monthly stipend directly correlates with wellness contact, which is required on these comments. a specific number of caregiving hours. generally every 120 days. Such cases One commenter requested that See 80 FR 1369 (January 9, 2015). would be reviewed on a case by case Secondary Family Caregivers be allowed Further, VA recognizes that the basis. VA will develop written guidance to obtain CHAMPVA benefits. reference to a number of hours in the to guide consistent determinations of Additionally, one commenter requested current regulation has caused confusion; these circumstances. that CHAMPVA include coverage for therefore, we are seeking to change the pre-existing conditions due to natural stipend calculation to use a percentage Change to Heading in § 71.40(c)(4)(i)(D) disasters after suffering dental injury of the monthly stipend rate based on the In the proposed rule, we included a from a hurricane. 38 U.S.C. 1720G(3)(A) eligible veteran’s level of care need. See heading for new § 71.40(c)(4)(i)(D) delineates between benefits provided to 85 FR 13384 (March 6, 2020). Similarly, which establishes a special rule for ‘‘family caregivers of an eligible as we standardize PCAFC to focus on Primary Family Caregivers of legacy veteran’’ and ‘‘family caregivers veterans and servicemembers with participants subject to decrease as a designated as the primary provider of moderate and severe needs, we do not result of VA’s transition from the personal care services for an eligible believe it is necessary to consider the combined rate to the new monthly veteran.’’ Under section number of tasks a Family Caregiver stipend rate. As part of this final rule, 1720G(a)(3)(A)(ii)(IV), VA must provide performs as we believe a determination we are removing the heading, ‘‘Special certain Primary Family Caregivers with on the level of care need (i.e., whether rule for Primary Family Caregivers medical care under 38 U.S.C. 1781 and an eligible veteran is unable to self- subject to decrease because of monthly VA administers section 1781 authority sustain in the community) is stipend rate’’ as this heading is through the CHAMPVA program and its appropriate for determining the monthly unnecessary. We make no other changes implementing regulations. See 76 FR stipend amount that is commensurate to this paragraph. 26154 (May 5, 2011). Therefore, VA with the needs of the veteran. We are Additional Benefits lacks the statutory authority required to not making any changes based on these provide CHAMPVA benefits to comments. Several commenters requested VA Secondary Family Caregivers as they are provide additional benefits for Primary not designated as the primary provider Multiple Residences Family Caregivers to include, Military of personal care services. To the extent One commenter asked for clarification Airlift Command flights, retirement the commenter believes CHAMPVA that families who live at more than one options, dental care (for both an eligible should provide coverage for pre-existing address during the year are eligible for veteran who is rated below 100 percent conditions, there is currently no PCFAC and for the calculation method service-connected disability and his or restriction in the services provided that would be used to determine their her caregiver), long-term care benefits, under CHAMPVA based on pre-existing stipend rate. Living in multiple assistance with mortgage and survivor conditions. To the extent commenters locations during the year does not benefits. We address these comments further suggest or request that VA disqualify an otherwise eligible below. should revise the CHAMPVA participant from participation in Section 71.40(b) and (c) of 38 CFR regulations, those comments are beyond PCFAC. The address on record with implement the benefits provided to the scope of this rulemaking. We are not PCAFC determines the geographic Secondary Family Caregivers and making any changes based on these location for purposes of calculating the Primary Family Caregivers, respectively, comments. monthly stipend rate. It is presumed under 38 U.S.C. 1720G(a)(3)(A). One commenter requested more that the address on record is where the Secondary Family Caregivers are access to caregiver support groups. eligible veteran consistently spends the generally eligible for all of the benefits Another commenter asserted that in majority of his or her time and where authorized for General Caregivers, based addition to offering financial services, they receive VA care. Therefore, a on our interpretation and application of VA should include increased vocational temporary move or vacation would not section 1720G(a)(3)(A) and (B), in rehabilitation services to those who are affect the monthly stipend rate. addition to benefits specific to the no longer eligible for the monthly However, we note that we require Secondary Family Caregiver provided in stipend to help them find meaningful notification of a relocation within 30 § 71.40(b)(1)–(6). See 76 FR 26153 (May employment. While we are making no days from the date of relocation and will 5, 2011). Similarly, Primary Family changes based on these comments, we seek to recover overpayments of benefits Caregivers are authorized by section note that as part of PGCSS, we offer peer if VA does not receive timeline 1720G(a)(3)(A)(ii)(I) to receive all of the support mentoring, local caregiver notification of a relocation. We benefits that VA provides to Secondary support groups, education and skills recognize that in some cases, a Family Caregivers in addition to a training for caregivers, REACH temporary move to an out-of-town higher level of benefits authorized only (Resources for enhancing All Caregivers relative may be planned as respite for a for Primary Family Caregivers provided Health) VA Telephone support groups short period, say one month, but in § 71.40(c)(2)–(6). Id. VA is unable to and Spanish-Speaking telephone perhaps unforeseen circumstances provide additional benefits as suggested support groups. We are ensuring that a could arise, whereby the return to the above (e.g., Military Airlift Command consistent menu of these services is

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available across all VA facilities to any to local VA and community resources. with OIG to the fullest extent to identify caregiver providing personal care We make no changes based on this and address instances of fraud within services to an enrolled veteran. We also comment. PCAFC. We make no changes based on note that VA has a toll-free Caregiver One commenter requested that VA these comments. ensure both eligible veterans and Family Support Line, staffed by licensed social Revocation Due to VA Error workers to provide information about Caregivers are aware and comprehend services that are available to caregivers. the revocation and discharge procedures One commenter did not oppose Social workers assess caregiver’s as part of the initial PCAFC training. We revocation of the Family Caregiver due psychosocial needs, and provide agree with this commenter and will to VA error if the error was designating counseling, education, and advocacy to provide information on revocation and a Family Caregiver who is not actually problem solve stressors associated with discharge procedures as part of the a family member and who does not live caregiving. The Caregiver Support Line roles, responsibilities, and requirements with the veteran. However, this can also connect caregivers with CSCs at that are discussed with Family commenter asked what if VA erred in local VA medical facilities and with Caregivers and eligible veterans when determining the veteran’s eligibility for other VA and community resources. approved for PCAFC. However, we PCAFC. This commenter expanded would not make any changes to the upon this question by further asking § 71.45 Revocation and Discharge of regulation based on this comment, as what action VA would take if VA made Family Caregivers training information would be more an administrative error in the veteran’s General appropriate for internal VA policy and eligibility and later determined the training materials. We make no changes veteran was not eligible, and would VA One commenter asserted that it is based on this comment. discharge the veteran and his or her extremely difficult to discharge a One commenter asserted that the caregiver from the program. While we veteran or caregiver in PCAFC but did changes we are making to part 71 will note that the reasons for VA error may not provide any additional information provide VA avenues to remove veterans vary based on individual cases, if VA regarding that assertion. The changes to from the existing program. We note that erred in determining a veteran eligibility 38 CFR 71.45 that we proposed and now we have had the ability to revoke the for PCAFC, we would revoke the Family make final are intended to clarify for Family Caregiver from PCAFC pursuant Caregiver’s designation from PCAFC eligible veterans, Family Caregivers, and to 38 CFR 71.45 in multiple instances, pursuant to § 71.45(a)(1)(iii). For staff the various reasons for which a including when an eligible veteran or example, we would revoke their status Family Caregiver may be subject to Family Caregiver no longer meets the if VA erred in finding a veteran eligible discharge and revocation from PCAFC, requirements of part 71. We make no for PCAFC despite the veteran not and will allow VA to take any changes based on this comment. meeting the minimum service- appropriate action that is necessary connected disability rating. We make no Revocation for Cause when those situations described in changes based on this comment. § 71.45 occur. We make no changes One commenter recommended One commenter appeared to suggest based on this comment. discharge be swifter, as fraud is fraud. that VA should fully recoup benefits One commenter asked what veterans We believe this commenter was provided in instances in which VA and caregivers can expect from VA in referring to revocation, as we proposed erred in determining a veteran or terms of being discharged from PCAFC, using fraud as a basis for revoking the servicemember and his or her Family as VA has strict guidelines for clinical Family Caregiver’s designation. Another Caregiver eligibility for PCAFC when discharge planning, and how VA plans commenter was concerned about they never met the requirements of part to smoothly transition veterans and numerous instances they are aware of in 71, and suggested VA error include Family Caregivers after PCAFC benefits, which individuals are abusing PCAFC legacy participants who never met the supports, and services are terminated to and committing fraud, and generally requirements of part 71. As we ensure that the veteran’s need for suggested VA do more to address fraud. explained in the proposed rule, personal care services are met. As As explained in the proposed rule, we eligibility under new § 71.20 (b) or (c) explained in the proposed rule, we would revoke Family Caregiver would not exempt the Family Caregiver would establish a transition plan for designation when fraud has been of a legacy participant or legacy legacy participants and legacy committed, discontinue benefits on the applicant from being revoked or applicants who may or may not meet date the fraud began (or if VA cannot discharged pursuant to proposed § 71.45 the new eligibility criteria and whose identify when the fraud began, the for reasons other than not meeting the Primary Family Caregivers may have earliest date that the fraud is known by eligibility criteria in proposed § 71.20(a) their stipend amount impacted by VA to have been committed, and no in the one-year period beginning on the changes to the stipend payment later than the date on which VA effective date of the rule. For example, calculation. We also described in identifies that fraud was committed), the Family Caregiver could be revoked proposed § 71.45 instances when VA and would seek to recover overpayment for cause, non-compliance, or VA error, would provide 60 days advanced notice of benefits (benefits provided after the or discharged due to death or of discharge and when benefits would fraud commenced). We believe that the institutionalization of the eligible continue for a period of time, as we revocation date in cases of fraud in the veteran or the Family Caregiver, as believe both advanced notice of proposed rule is swift, and that any discussed in the context of § 71.45 discharge and extended benefits would earlier date would be premature. Also, below. 85 FR 13373 (March 6, 2020). assist with the adjustment of being we do not tolerate fraud in PCAFC, and We assume this commenter was discharged from PCAFC. We also note believe that this is reflected in the suggesting recoupment of overpayments that Family Caregivers can transition to revocation actions outlined in the of all benefits received; not just those as PGCSS, which provides a robust array of proposed rule. However, we also of the date of the error. As explained services such as training, education, acknowledge that PCAFC is a clinical further in the proposed rule, the date of peer support, and ability to connect program and PCAFC staff are not revocation would be the date of the with VA Caregiver Program staff, who investigators; thus, we refer instances of error, and if VA cannot identify when can refer Family Caregivers and veterans potential fraud to VA’s OIG and work the error was made, the date of

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revocation would be the earliest date necessary. As we proposed, 38 CFR Discharge Due to Incarceration that the error is known by VA to have 71.45(a)(1)(ii) describes all the reasons occurred, and no later than the date on for revocation from PCAFC due to Several commenters suggested VA which the error is identified. This is our noncompliance. In paragraph (a)(1)(ii), discharge veterans from PCAFC, current practice, which we would we further describe the areas of without extended benefits, when the continue, unless the error is due to noncompliance under part 71 that eligible veteran has been incarcerated fraud which is separately addressed in would lead to revocation, which for 60 or more days. Commenters the regulation and in which case, we included a catch-all category in opposed VA providing eligible veterans could make revocation effective paragraph (a)(1)(ii)(E). Paragraphs and Family Caregivers who are retroactively and recoup overpayments (a)(1)(ii)(A) through (D) of § 71.45 are incarcerated with extended benefits of benefits provided after the fraud the most common reasons for because they indicated that it was commenced. We believe this is noncompliance that we have identified, inappropriate and contradicted 38 CFR reasonable to prevent VA from which is why they are specifically 17.38, and similarly opposed VA’s providing any more benefits to a Family enumerated here. However, there may inclusion of jail and prison in the Caregiver and veteran, including legacy be other instances of noncompliance proposed definition of participants, who are not eligible for that may arise, and as such, a catch-all institutionalization. Other commenters PCAFC. We note that we would not category would be appropriate as such opposed the inclusion of jail or prison recoup all overpayments of benefits other instances may not be as frequent, in the definition of institutionalization received as that could result in hardship and to list all the requirements of Part because it conflicts with the common to the Family Caregiver and veteran, and 71 under paragraph (a)(1) would be use of the term by health care providers as a matter of fairness, as the error was overly lengthy. This catch-all category and other federal programs. on the part of VA, and the Family would allow us to have a clear basis for Additionally, commenters asserted that Caregiver and/or veteran may not have revocation if the eligible veteran or VHA does not have independent access been aware of the error. We do not make Family Caregiver(s) are not in to city, county, state, or Federal prison any changes based on this comment. compliance with part 71 outside of databases and questioned whether Revocation for Noncompliance those that are enumerated in PCAFC can leverage existing Federal § 71.45(a)(1)(ii)(A) through (D). databases or agreements, similar to One commenter expressed concern Moreover, we do intend to monitor the VBA, to obtain veteran incarceration with ‘‘noncompliance,’’ stating that it usage of paragraph (a)(1)(ii)(E). As we data. would become VA’s new ‘‘in the best noted in the preamble to the proposed interest of’’ and requesting VA provide We disagree with the comments rule, if we find that this basis for a detailed set of data for dismissals, and indicating that providing extended revocation is frequently relied upon, we that noncompliance particularly be benefits to Family Caregivers who are would consider proposing additional scrutinized. While it is not entirely clear discharged due to the Family Caregiver specific criteria for revocation under what aspect of § 71.45(a)(1)(ii) the or veteran being in jail or prison this section in a future rulemaking. We commenter’s concern is directed contradicts § 17.38, since the authorities make no changes based on these towards, we assume this commenter is for the provision of VA health care and comments. expressing concern over the language in PCAFC differ. Promulgated pursuant to § 71.45(a)(1)(ii)(E). We believe that this Discharge Due to no Longer in the Best 38 U.S.C. 1710, 38 CFR 17.38 describes commenter is requesting that this Interest the medical care and services (i.e., the language be further defined, so that all medical benefits package) for which the reasons for revocation based on One commenter opposed VA eligible veterans under §§ 17.36 and noncompliance be included in this determining that the caregiver 17.37 may receive, and excludes the section. Another commenter generally relationship is not in the veteran’s ‘‘best provision of hospital and outpatient opposed any catch-all language in the interest,’’ particularly if both care for a veteran who is either a patient proposed rule. As such, we believe that individuals are consenting adults with or inmate in an institution of another the commenter was expressing objection capacity to make informed decisions, government agency if that agency has a to the language in § 71.45(a)(1)(ii)(E), and that the best interest standard is duty to give the care or services. which amounts to a catch-all provision, only applicable in situations in which Paragraph (h) of 38 U.S.C. 1710 as we explained in the preamble for the the veteran lacks decision-making explicitly authorizes such exclusion of proposed rule. This commenter seemed capacity. As discussed above, the providing care to veterans, such as those to indicate that such language is definition for ‘‘in the best interest’’ here who are incarcerated, when another problematic because it gives VA too is not focused on the relationship and agency of Federal, State, or local much discretion to do what they want quality of a veteran’s or government has a duty under law to or cover circumstances as they see fit. servicemember’s relationship with their provide care to the veteran in an We disagree that this language gives Family Caregiver, rather it is focused on institution of such government. We note VA too much discretion, as this whether it is in the best interest of the that PCAFC is governed by section language is consistent with VA’s eligible veteran to participate in PCAFC, 1720G, which does not contain any authority to revoke the Family Caregiver and this is a clinical decision guided by similar language to section 1710 under 38 U.S.C. 1720G(a)(7)(D)(i) and the judgement of a VA health authorizing exclusion of the provision (a)(9)(C)(ii)(II). In addition, this language professional on what care will best of PCAFC benefits in the instance of is meant to ensure that PCAFC is support the health and well-being of the incarceration. It is also important to available only to eligible veterans and veteran or servicemember. Moreover, 38 note that PCAFC is a program unique to Family Caregivers who meet the U.S.C. 1720G(a)(1)(B) provides that VA, and that no other Federal, State, or requirements of part 71. Also, to the support under PCAFC will only be local government agencies have a duty extent that the commenter indicated provided if VA determines it is in the under law to provide these same that all the reasons for revocation based best interest of the eligible veteran to do benefits. Thus, we find the authorizing on noncompliance be included in this so. We make no changes based on this statutes, 38 U.S.C. 1710 and 1720G, to section, we do not believe that this is comment. be distinguishable.

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We acknowledge that inquired as to the required burdens of can work with the eligible veteran to institutionalization in the health care proof for caregivers who allege abuse to determine whether their needs may be context, including in other federal receive extended benefits. Additionally, met by other VA programs or health care programs, usually refers to this commenter asked about the community resources, and can further long-term health care and treatment; not measures that will be taken to ensure refer, as appropriate. We note that when jail or prison. However, we include jail veterans receive continuity of care so requesting discharge, benefits continue and prison in the definition of that a veteran who is being abused/ for a period of time so that the eligible institutionalization, as referenced for exploited can discharge the caregiver veteran has time to adjust to the purposes of continuation of benefits in without fear of being left without discharge. cases of discharge from PCAFC, because assistance with necessary Activities of To the extent that the commenters it provides Family Caregivers time to Daily Living. This same commenter also raised concerns about protecting transition and minimizes the negative opined that there are inherent risks veterans’ health information from impact that may result from their associated with providing a spouse with Primary Family Caregivers, we consider discharge from PCAFC due to an eligible the veteran’s health information and such comments out of the scope of this veteran being placed in jail or prison, asked how VA will protect the veteran’s rulemaking. We note that being a which may often happen unexpectedly. health information from unauthorized Primary Family Caregiver does not We note that PCAFC is intended to use or disclosure for non-medical necessarily mean such individuals have support the Family Caregiver, and we purposes. access to the health records of the believe continuation of benefits in such While Primary Family Caregiver veteran, as generally the veteran would an instance would be consistent with allegations of abuse could result in need to consent to such access by the that intent. Also, we include jail and discharge from PCAFC with extended Primary Family Caregiver, although prison in the definition of benefits, we disagree that that creates an there may be exceptions to this, such as institutionalization, as referenced for incentive to make false allegations as instances in which the Primary Family purposes of continuation of benefits in Family Caregiver designation will still Caregiver is the legal guardian. We do cases of discharge from PCAFC, because be discharged, which will ultimately not provide information on the eligible it provides a period of transition for the lead to discontinuation of benefits. It is veteran to the Primary Family Caregiver veteran to replace the Primary Family also important to note that we require solely on their status as the Primary Caregiver due to the Family Caregiver certain documentation to be provided if Family Caregiver, and VA has being placed in jail or prison, which the Family Caregiver requests discharge procedures in place for authorizing may also often happen unexpectedly. due to domestic violence or intimate release of records in compliance with We also note that it is partner violence, such as police reports Federal laws. It is also important to note administratively difficult to treat or records of arrest, protective orders, or that we cannot protect against all risks institutionalization due to jail or prison disclosures to a treating provider, which that may exist when an eligible differently from other reasons for we believe further acts as a disincentive veteran’s caregiver is their spouse and institutionalization (e.g., nursing home, for making false allegations. See 85 FR the parties enter into divorce assisted living facility). Further, the 13356, at 13410–13411 (March 6, 2020). proceedings, in which the eligible eligible veteran or Family Caregiver In order to protect eligible veterans veteran’s information may be used being placed in jail or prison is a very from abuse and exploitation, we would against them. We make no changes rare occurrence. conduct wellness contacts and based on these comments. While we understand the support and reassessments (including in home visits) One commenter suggested VA allow rationale for the position that those who in which we would be able to identify other reasonable standards of proof to are incarcerated should not be potential vulnerabilities for the eligible substantiate claims of intimate partner discharged from PCAFC with extended veteran. If we determine there is abuse violence for purposes of extended benefits, we are not making any changes occurring, participation in PCAFC may benefits, as the proposed standard of to 38 CFR 71.45 or the definition of be revoked under 38 CFR proof differs from those accepted for the institutionalization based on these 71.45(a)(1)(i)(B). Current 38 CFR arrest of a perpetrator (i.e., witness comments, as we would need to spend 71.45(c) addresses actions we may take statements, videos, taped 911 calls, more time collecting and reviewing data if we suspect that the safety of the photographs of injuries or destroyed to better understand this issue and eligible veteran is at risk. In order to property, medical treatment records), determine whether benefits should not better describe the appropriate protocol and differs from those required for be extended and whether we should and response to be taken in such receipt of benefits for conditions related revise the definition of situations, we proposed revising this to physical assault, such as military institutionalization. Based on this paragraph to state that VA may suspend sexual trauma. We decline to make any review, we would then consider the caregiver’s responsibilities, and changes based on this comment, as it proposing changes to the definition of facilitate appropriate referrals to would put us in an awkward position of institutionalization and the revocation protective agencies or emergency assessing and evaluating the and discharge section in a future services is needed, to ensure the welfare authenticity and legitimacy of rulemaking. of the eligible veteran, prior to discharge statements, videos, and 911 calls; and We are not making changes based on or revocation. See 85 FR 13411 (March could lead to further confusion about these comments. 6, 2020). Measures that VA may take to what documentation would be ensure eligible veterans continue to sufficient. However, if the Primary Discharge Due to Family Caregiver receive care when a Primary Family Family Caregiver presented such Request Caregiver is discharged may include information to VA to request discharge One commenter asserted that the assisting the eligible veteran, or and establish an extension of benefits, proposed rule provides incentive to surrogate, in identifying another but they did not have the documents caregivers to make false allegations of individual to perform the required required under § 71.45, we would refer abuse and does not adequately protect personal care services, or assist with the them to the intimate partner violence/ eligible veterans from abuse and designation of a new Primary Family domestic violence (IPV/DV) office and/ exploitation. This same commenter Caregiver. Additionally, local VA staff or to a therapist or counselor to assess

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his or her safety and provide assistance One commenter commended VA for noncompliant with each such in obtaining any required extending services and support to requirement; the identity of all documentation. caregivers dealing with IPV/DV, but personnel involved in the decision to This same commenter opposed requested VA add shelter coordinators reduce the benefit or revoke the treating family caregivers who are and safe home coordinators to the list of veteran’s participation in PCAFC; all dismissed ‘‘for cause’’ better than those those designated to provide information and copies of all who relinquish caregiving duties due to documentation to VA to allow for a documentation relied upon by VA in unsubstantiated IPV. This commenter more inclusive list of professionals who making its determination to reduce the noted that those dismissed for cause work with those who have experienced benefit or in making its determination of must receive notice of revocation from IPV/DV. We make no changes based on noncompliance. This commenter also VA within 60 days and may receive 90 this comment, as the regulation lists VA recommended VA allow the veteran to days of continued services. This clinical professionals that may directly respond to any such notice and provide commenter also noted that when a treat individuals experiencing IPV/DV information or explanations for why the veteran dies, is institutionalized or and those that frequently work with reduction in benefits or revocation whose condition improves to the extent individuals experiencing IPV/DV and should not be implemented; and such that services are no longer necessary, have necessary and important expertise response should generally be due within the Primary Family Caregiver is in this area to be able to assess and 60 days of receipt of the notice, but the provided 60 days to notify VA of the address these issues. While this list of veteran should be permitted to request change followed by 90 days of professionals is not intended to be an an extension of 60 days to provide the continued benefits. This commenter exhaustive list, we note that shelter response, which should be granted in thus suggested providing Primary coordinators and safe home the absence of any determination that Family Caregivers a minimum of 60 coordinators are not treating providers, such request is being made in bad faith. days to notify VA of their request for as they generally are not required to This commenter added that if a veteran discharge when it is due to abuse. hold licenses like those professionals requests a 60-day extension, VA should Under § 71.45(b)(3)(i), a Primary Family listed in the regulation. not be permitted to implement the Caregiver who requests discharge due to Advanced Notice reduction in benefits or revocation until at least 30 days after such extension. unsubstantiated IPV can provide the One commenter supported VA’s present or future date of discharge. If This commenter also recommended that proposal to provide advanced notice of VA give good-faith consideration to any they do not, VA will contact the Primary decisions, which would also provide response provided by the veteran, and Family Caregiver to request a date. As veterans and family caregivers the to consider additional input from the a result, the Primary Family Caregiver is opportunity to voice disagreement with veteran’s primary care team. Lastly, this able to set the date of discharge, after VA’s findings before benefits are commenter recommended VA be which they will receive 30 days of reduced or terminated. We thank this required to provide a written decision, continued benefits. We do not agree that commenter for their support. a Primary Family Caregiver whose Another commenter suggested VA after considering the veteran’s response; designation is revoked for cause will provide 90 days’ notice to an eligible and if VA still determines to reduce the receive more favorable treatment than a veteran before reducing any PCAFC veteran’s benefits or revoke the veteran’s Primary Family Caregiver discharged benefit or revoking their participation in participation in PCAFC, such action due to unsubstantiated IPV, as a Primary PCAFC, particularly in cases of non- should not be effective until at least 30 Family Caregiver who is revoked for compliance. As explained in the days after VA provides its written cause will not receive an advanced proposed rule, we believe 60 days is a decision to the veteran. notice of findings and would not receive sufficient and appropriate period of The commenter mentioned above who continued benefits per § 71.45(a)(2) and time to give notice that the stipend is supported VA’s proposal to provide (3). Also, as previously mentioned, a being decreased or that a Family advanced notice of decisions also urged Primary Family Caregiver who requests Caregiver is revoked or discharged since VA to propose a standard format discharge due to unsubstantiated IPV this would balance the desire to provide containing a minimum set of can select a future date to be discharged. sufficient opportunity for eligible information required in these notices, Additionally, as explained in the veterans and Family Caregivers to such as those elements described under response to the preceding comment, if a dispute VA’s findings while ensuring 38 U.S.C. 5104(b) (identification of the Primary Family Caregiver does not have benefits are not provided beyond a issues adjudicated; a summary of the the documents required under reasonable time to participants who are evidence considered by the Secretary; a § 71.45(b)(3)(iii)(B) to substantiate IPV/ determined to be eligible at a lower summary of the applicable laws and DV, we would refer them to the IPV/DV stipend rate or no longer eligible for regulations; identification of findings office and/or to a therapist or counselor PCAFC. Consistent with that rationale, favorable to the claimant; in the case of to assess his or her safety and provide we believe that 90 days is too long, and a denial, identification of elements not assistance in obtaining any required we make no changes based on this satisfied leading to the denial; an documentation. Also, we would like to comment. explanation of how to obtain or access clarify that, contrary to the commenter’s This commenter also recommended evidence used in making the decision; statement concerning improvement in that such notice should include the and if applicable, identification of the the veteran’s condition, death, and following information, to the extent criteria that must be satisfied to grant institutionalization, the minimum of 60 applicable: The specific reduction in service connection or the next higher day notice that is provided for discharge benefit, if any; a detailed explanation of level of compensation). We appreciate due to improvement in the veteran’s the basis for the determination to reduce both commenters’ feedback, and will condition is provided by VA and not the the benefit; each specific eligibility consider this when developing any Primary Family Caregiver, and there is requirement with respect to which VA future changes to the appeals process no minimum of 60 day advanced notice claims the veteran or caregiver is and related policies. We note that this from VA for discharge due to death or noncompliant; a detailed explanation would be in policy rather than institutionalization. for how the veteran or caregiver is regulation to be consistent with how we

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handle clinical appeals within VHA. payment of moneys to any person overpayment from the date VA erred Because PCAFC decisions are medical equitably entitled thereto. Additionally, (i.e., the date the determination of determinations, we provide PCAFC VA has the authority to waive debts that eligibility for PCAFC was made). participants with the opportunity to are incurred from participation in a However, we note that this may vary for dispute decisions made under PCAFC benefit program, including PCAFC, legacy participants depending on the through the VHA clinical appeals administered under any law by VA circumstances. For example, if a legacy process, which is already established in when it is determined by a regional participant is reassessed under the new VHA Directive 1041, Appeal of VHA office Committee on Waivers and eligibility criteria, and is determined to Clinical Decisions. Also, as explained in Compromises that collection would be be ineligible under the new criteria, the proposed rule and reiterated in this against equity and good conscience. See they will be discharged from PCAFC final rule, we will issue advanced 38 CFR 1.962. In evaluating whether and we will not recoup any benefits notices before stipend payment collection is against equity and good previously received based on the fact decreases and certain revocations and conscience, these local committees that they are ineligible under the new discharges. We make no changes based consider the following elements: The criteria. If a legacy participant is on these comments. fault of the debtor, balancing of faults, reassessed under the new criteria and undue hardship, defeat the purpose, we erred in our initial determination § 71.47 Collection of Overpayment unjust enrichment, changing position to that the participant was eligible for Several commenters disagreed with one’s detriment. See 38 CFR 1.965. PCAFC when they were not, and they VA’s definition of overpayment as it While we anticipate that we should do not qualify for PCAFC under the new would allow VA to collect any not have errors in PCAFC that would eligibility criteria, we would discharge overpayments due to VA errors, such as result in overpayment, especially in them from PCAFC. We would not erroneous determinations of eligibility. light of the changes we are making as recoup any benefits received as a matter These commenters opined that VA part of this rulemaking, we acknowledge of fairness and because we believe that should not collect in such that errors can occur. In the instance would result in hardship to the circumstances as it would be contrary to that VA has erred resulting in participant. VA’s authority to provide equitable overpayment, an individual can still We further note that waiver of the relief pursuant to 38 U.S.C. 503(b) and seek equitable relief or waiver of the debt and equitable relief may be 38 CFR 2.7. One commenter noted that debt to avoid collection by VA. available to eliminate the debt that VA if VA sought collection of However, there is no guarantee that is trying to collect. However, we cannot overpayments, caregivers would file either of these will be granted, as the guarantee that either debt waiver or requests for equitable relief, which individual facts of such requests will equitable relief would be granted since would cost VA time and resources to need to be reviewed and determined on these will need to be evaluated on a case process and would not be in VA’s or the a case by case basis. We make no by case basis. taxpayers’ best interest. That same changes based on these comments. We make no changes based on these commenter noted that collecting One commenter requested VA clarify comments. overpayments when it was VA’s error that it will not initiate collections of One commenter opined that PCAFC is creates financial hardship for the overpayments to legacy participants a program susceptible to significant caregiver, the veteran, and their family. when it is determined they do not meet improper payments; and the Office of While we understand the concerns eligibility requirements, including Management and Budget (OMB) should the commenters raise, VA is required to situations when they were initially identify PCAFC as such and put in place create a debt even in instances when approved in error. Another commenter measures to determine the amount and overpayments are due to VA error, and agreed with collecting overpayments causes of improper payments, which may collect on such overpayment. due to VA error to ensure VA is being will allow PCAFC to focus on corrective Collection of overpayments is not a good financial steward of the action plans to address these issues. We unique to PCAFC, and does occur in taxpayers’ dollar, and that VA should consider this comment outside the other VA programs, such as similarly collect overpayments from scope of this rulemaking and note that compensation and pension, as well as legacy participants who have never met we cannot direct OMB to take any with employees who incur debts as a the requirements of part 71. This action. We make no changes based on result of overpayment in salary and commenter asserted that VA has a duty this comment. benefits. Individuals who incur a debt to recover overpayments due to Another commenter requested that that VA attempts to collect can seek erroneous determinations by VA, as all VA provide eligible veterans and Family equitable relief from VA as well as improper payments degrade the Caregivers with information during the waiver of the debt. As one of the integrity of government programs and initial training to fully understand commenters noted, VA’s authority to compromise trust in the government. collection of overpayments. We make no grant equitable relief is found at 38 We agree that we should collect changes to the regulation based on this U.S.C. 503(b) and 38 CFR 2.7. VA may overpayments pursuant to 31 U.S.C. comment. We would not provide this provide equitable relief due to 3711 and in accordance with the information during initial training, but administrative errors made by VA. Federal Claims Collection Standards, we will provide this information in fact Section 2.7 specifically states that if the and 38 U.S.C. 5302 and 5314. In sheets which will be available to eligible Secretary determines that any. . . instances of VA error, we would go back veterans and Family Caregivers upon person, has suffered loss, as a to the earliest date possible to collect approval for PCAFC. consequence of reliance upon a improper payments that we made to One commenter noted that there are determination by the Department of individuals. This determination will multiple instances of catch-all within Veterans Affairs of eligibility or vary based on the facts of each the proposed regulations (e.g., in the entitlement to benefits, without individual case. For example, if a preamble discussion of proposed knowledge that it was erroneously Family Caregiver is determined eligible § 71.47) of which they have concerns made, the Secretary is authorized to for PCAFC under the new criteria and that this will allow VA to do what it provide such relief as the Secretary VA erred in making that determination, wants, which the commenter considers determines equitable, including the VA would need to collect that a ‘‘red flag.’’ We responded to this

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comment in the discussion on medical review of cases for BVA, VA reasons, regardless of whether or not revocation and discharge, above, and should be able to utilize BVA in PCAFC determinations are more similar refer the commenter to that response. reviewing its cases of PCAFC clinical to other VHA determinations that BVA We make no changes based on this appeals decisions. Additionally, some has jurisdiction over and despite the comment. commenters asserted that by expanding extent to which VHA provides expert medical review of cases for BVA, Miscellaneous Comments the definition of serious injury to include a service-connected disability PCAFC determinations cannot be We received many comments that did that is 70 percent or more, or a appealed to BVA. Accordingly, we not directly relate to any regulatory combined rating of 70 percent or more, disagree with commenters asserting that sections from the proposed rule, but that VA should expand the ability to appeal BVA should have jurisdiction over expressed concerns with VA’s PCAFC decisions to BVA since PCAFC PCAFC determinations on these administration of PCAFC and PGCSS. would be using VBA criteria and grounds. Although we do not make changes to decisions to influence VHA clinical We also disagree with the assertion the proposed rule based on these determinations. Commenters also that 38 CFR 20.104(b) as applied to comments because they are beyond the expressed that the current appeals PCAFC determinations is contrary to 38 scope of the proposed rule or address process for PCAFC determinations, the U.S.C. 7104(a) and 511(a), thus issues that would be best addressed VHA clinical appeals process, was requiring that PCAFC appeals be through policy, we summarize the unfair and inconsistent; and some reviewed by BVA. In addition, we comments below by topic. commenters recommended that PCAFC disagree with the assertion that 38 Appeals establish its own unique appeals U.S.C. 1720G does not consider all process. Some commenters also We received many comments related decisions under the PCAFC to be to VA’s appeals process with regard to recommended setting forth the appeals medical determinations (e.g., procedural PCAFC, which primarily argued that process for PCAFC determinations in and factual questions, such as whether PCAFC determinations should be regulation, in order to provide clarity, an applicant has furnished all required subject to the jurisdiction of the Board consistency, and an opportunity for information, whether VA has of Veterans’ Appeals (BVA) and public comment. We address these contributed to a delay in an applicant expressed concerns with the current comments below. caregiver completing his or her training PCAFC appeals process. Commenters First, we note that while 38 U.S.C. and education requirements in a timely asserted that PCAFC services are 1720G confers benefits, which would manner, whether a veteran’s serious benefits that should be subject to BVA typically be subject to 38 U.S.C. 7104(a) injury was incurred or aggravated in the review to ensure consistency and and 511(a) and confer BVA jurisdiction, line of duty, when a serious injury was fairness across PCAFC. Specifically, Congress specifically intended to further incurred or aggravated, or whether an some commenters suggested that the limit review of PCAFC determinations applicant’s disability rating meets or first sentence in 38 CFR 20.104(b) with the language set forth by section exceeds 70 percent). As mentioned allows for PCAFC determinations to be 1720G(c)(1), which states that ‘‘[a] above, while 38 U.S.C. 1720G confers appealed to BVA. One commenter decision by the Secretary under this benefits, which would typically be specifically suggested it is contrary to 38 section affecting the furnishing of subject to 38 U.S.C. 7104(a) and 511(a), U.S.C. 7104 and 511(a) to restrict assistance or support shall be Congress specifically intended to further PCAFC determinations from the considered a medical determination.’’ limit review of PCAFC determinations jurisdiction of BVA, and that VA should Medical determinations are not subject by designating such determinations as amend or waive 38 CFR 20.104(b) to to BVA’s jurisdiction under 38 CFR ‘‘medical determinations.’’ Congress allow PCAFC determinations to be 20.104(b) which describes BVA’s also specifically intended that all appealed to BVA (we note that although appellate jurisdiction over VHA decisions under PCAFC be considered the commenter referred to both 38 CFR determinations. The first sentence in medical determinations by stating 20.10(b) and 20.101(b), based on the § 20.104(b) states that BVA’s appellate broadly that decisions ‘‘affecting the content of the comment, we believe that jurisdiction extends to questions of furnishing of assistance or support’’ the intended reference was § 20.104(b) eligibility for hospitalization, outpatient under section 1720G would be as § 20.10(b) does not exist and treatment, and nursing home and considered a medical determination. § 20.101(b) was redesignated as domiciliary care; for devices such as PCAFC benefits under section 1720G § 20.104(b) (84 FR at 177 (, prostheses, canes, wheelchairs, back consist of assistance and support 2019)). Several commenters asserted braces, orthopedic shoes, and similar services, and as such, any decision that applicants are deprived of due appliances; and for other benefits under the PCAFC would affect the process if they cannot further appeal administered by VHA. However, the furnishing of assistance or support PCAFC determinations to BVA. One second sentence of § 20.104(b) clarifies under this section, including the commenter opined that the authorizing that medical determinations, such as examples relating to PCAFC eligibility statute, 38 U.S.C. 1720G, does not determinations of the need for and provided by the commenter. As consider all decisions under PCAFC to appropriateness of specific types of explained in the final rule be medical determinations; only those medical care and treatment for an implementing PCAFC and PGCSS, ‘‘affecting the furnishing of assistance or individual, are not adjudicative matters ‘‘[t]he plain language of section support,’’ thus those non-medical and are beyond BVA’s jurisdiction. Id. 1720G(c)(1) removes any doubt that determinations should be appealable to Therefore, because 38 U.S.C. 1720G Congress intended to insulate even BVA. Other commenters suggested that establishes that PCAFC decisions are decisions of eligibility from appellate BVA should have jurisdiction over medical determinations, such decisions review under [PCAFC], and VA’s PCAFC determinations because they are are not appealable to BVA. Accordingly, regulation at § 20.10[4](b) cannot more similar to other VHA we disagree with the assertion that the circumvent a statutory requirement. ‘If determinations over which BVA has first sentence in 38 CFR 20.104(b) the intent of Congress is clear, that is the jurisdiction. One commenter asserted allows for PCAFC determinations to be end of the matter; for the court, as well that because VHA provides expert appealed to BVA. For these same as the agency, must give effect to the

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unambiguously expressed intent of states that the statute does not create understanding of VA’s decision-making Congress.’ Chevron, U.S.A., Inc. v. any entitlement to any assistance or process. Id. Natural Res. Def. Council, Inc., 467 U.S. support provided under PCAFC. To the extent that commenters 837, 842–43 (1984). Further, Congress is Notwithstanding this explicit language, recommended that the appeals process presumed to know what laws and the commenter contends that this for PCAFC determinations be set forth regulations exist when it enacts new provision is not dispositive of whether in regulation and that PCAFC have its legislation, and it is reasonable to infer otherwise nondiscretionary, statutorily own unique appeals process, as we that Congress knew that medical mandated benefits create an entitlement explained above, all decisions under determinations were not appealable protected by the constitution. However, PCAFC are considered medical under § 20.10[4], and subsequently used these benefits are not nondiscretionary; determinations pursuant to 38 U.S.C. that precise phrase in the statute to limit they are discretionary, as they can be 1720G; and disputes of medical appeals of decisions in the [PCAFC]. See granted or denied within VA’s determinations (i.e., clinical disputes) California Indus. Products, Inc. v. discretion. In this regard, 38 U.S.C. are subject to the VHA clinical appeals process per VHA Directive 1041, Appeal United States, 436 F.3d 1341, 1354 (Fed. 1720G(a)(1)(B) specifically states, ‘‘[t]he of VHA Clinical Decisions. We note that Cir. 2006) (‘These regulations are Secretary shall only provide support while we generally follow the VHA appropriately considered in the under the program required by construction of [this particular statute] clinical appeals process outlined in subparagraph (A) to a family caregiver because Congress is presumed to be VHA Directive 1041 for appeals of of an eligible veteran if the Secretary aware of pertinent existing law.’).’’ 80 PCAFC decisions, there are some determines it is in the best interest of FR at 1366 (January 9, 2015). processes unique to PCAFC, which will We further note that, to the extent the eligible veteran to do so.’’ Therefore, be addressed in an appendix to VHA commenters contend that the exclusion we disagree with the commenter’s Directive 1041. The updated directive of medical determinations from the assertion that PCAFC benefits create a with that appendix will be published at jurisdiction of BVA is invalid and that constitutional due process right to a future date on VHA’s publication VA should amend or waive 38 CFR further appeal such determinations to website. Thus, because the clinical 20.104(b), we believe that this is beyond BVA. See Cushman v. Shinseki, 576 appeals process is already established in the scope of this rulemaking. As F.3d 1290, 1297 (2009) (‘‘A benefit is VHA Directive 1041, we do not find it previously explained, § 20.104(b) not a protected entitlement if necessary to establish an entirely restricts medical determinations from government officials may grant or deny separate appeals process for PCAFC BVA’s appellate jurisdiction. However, it in their discretion.’’). However, we decisions or set forth in regulation the we did not propose changes to this further note that despite this, VA appeals process for PCAFC decisions. regulation as part of this rulemaking; nonetheless provides applicants with For these reasons, at this time, we therefore, any requests to amend or due process through the VHA clinical decline to establish an entirely separate waive § 20.104(b) is beyond the scope of appeals process. Under the VHA clinical appeals process for PCAFC decisions or this rulemaking. appeals process, veterans and Family set forth in regulation the appeals Additionally, we believe that Caregivers have access to a fair and process for PCAFC decisions. expanding the definition of serious impartial review of disputes regarding A commenter also encouraged VA to injury to include a 70 percent service- clinical decisions. Thus, because the utilize mediation and online dispute connected disability rating, or a process for appealing clinical decisions, resolutions for clinical appeals pursuant combined rating of 70 percent or more, such as PCAFC determinations, is set VHA Directive 1041, Appeal of VHA does not change the jurisdictional forth in policy rather than regulation, Clinical Decisions. Commenters also limitations of BVA concerning PCAFC we would make no changes to the opined that the VHA clinical appeals determinations discussed above. A regulations to include appeals of PCAFC process is not fair as there is no neutral determination under PCAFC that a decisions. Moreover, VA has provided a party to impartially adjudicate appeals veteran or servicemember does not have new advanced notice provision in the and inconsistent as clinical review a serious injury because he or she has could vary from provider to provider, PCAFC regulations where VA must a service-connected disability rating, or VAMC to VAMC, and VISN to VISN. We provide no less than 60-days advanced a combined rating, below 70 percent, is do not address these as these comments notice prior to a decrease in the monthly still a PCAFC determination and would are outside the scope of this rulemaking stipend payment, revocation, or therefore still be deemed a medical and apply to all of VHA clinical determination and not subject to BVA’s discharge (as applicable) from PCAFC. appeals, not just PCAFC. However, we jurisdiction. However, if a veteran or This 60-day period will provide an will take these under consideration for servicemember believes that his or her opportunity to contest VA’s findings future changes to VHA Directive 1041, service-connection rating is incorrect, before a stipend decrease, revocation, or or subsequent directive. he or she may seek correction of their discharge (as applicable) become Electronic Communications service-connection rating from VBA or effective. We believe providing appeal their rating to BVA, if advanced notice and opportunity to One commenter opined that it is appealable. contest VA’s findings before benefits are necessary to include the ability of Commenters asserted that applicants reduced or terminated would benefit caregivers to electronically be in touch are deprived of due process if they both VA and eligible veterans and with the ones they are giving care to. cannot further appeal PCAFC Family Caregivers. 85 FR 13394 (March The same commenter asserted that being determinations to BVA. In particular, 6, 2020)). By adding a requirement for unable to see or speak to the person you one commenter suggested that PCAFC advanced notice before stipend payment have been taking care of for years puts creates an entitlement, such that decreases and certain revocations and stress on the caregiver and the client. applicants have a constitutional right to discharges, it is our hope that Further, the commenter stated that the due process to further appeal PCAFC communication between VA and recreation group in a nursing home can determinations. However, we note that eligible veterans and their Family accommodate the use social media PCAFC is not an entitlement. Section Caregivers would improve, and that platforms. We do not understand the 1720G(c)(2)(B) of 38 U.S.C. specifically PCAFC participants would have a better exact concerns of this commenter and

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encourage anyone encountering these Budget included estimated funding to provide 24/7 care. PCAFC was intended issues to contact their local CSC. meet the caregiver population to provide supportive services, and expansion from the MISSION Act. The education and training to Family Contracting Further Consolidated Appropriations Caregivers of injured veterans. Services One commenter stated they have not Act, 2020 (Pub. L. 116–94) included provided by Family Caregivers are received any patients from VA despite sufficient funding to meet the Caregiver meant to supplement or complement having a contract for over three years Program cost estimates. The 2021 clinical services provided to eligible and questioned what they should do. President’s Budget included a funding veterans. As part of PCAFC, we do not We consider this comment outside the request for the Caregiver Program based require Family Caregivers provide 24/7 scope of this rulemaking and would on the same updated projection model care to eligible veterans. The changes recommend this commenter reach out to as used to formulate the regulatory we previously proposed and now make the contracting officer for the contract. impact analysis budget impact. Future final do not alter that intent. However, Current Execution of PCAFC President’s Budget requests will we note that the changes we are making incorporate new data and updated cost to PCAFC are necessary as a result of the Several commenters did not suggest projections as they become available. VA MISSION Act of 2018 which specific changes to the proposed rule For a detailed analysis of the costs of requires PCAFC to be expanded to but rather expressed frustration with the this program, please refer to the veterans of all eras. Thus, because current execution and management of regulatory impact analysis veterans of different eras have different PCAFC, to include inconsistent accompanying this rulemaking. We needs, we need to adapt PCAFC to meet application of program requirements, make no changes based on these the needs of these veterans and are problematic eligibility determinations, comments. doing so by making such changes as inappropriate discharges, and a general Another comment requested VA decoupling serious injury and the need lack of knowledge and accountability by explain the discrepancy between the for personal care services. We believe CSCs. Other commenters provided economically significant description of these changes are consistent with the general information about their the proposed rule and the regulatory original intent of PCAFC. circumstances. We make no changes impact analysis that states 2022 is not We respectfully disagree with the based on these comments; however, we economically significant. The commenter’s assertion that PCAFC will note that we are implementing commenter further opined that after enable veterans and their caregivers, processes to standardize and improve unloading all of the post-9/11 veterans, causing negative impacts on veteran and PCAFC eligibility determinations to the costs of all previous era veterans caregiver mental health. We reiterate include a robust staff education and equal out so that this rule is not that PCAFC is meant to provide certain training plan, centralized eligibility, and economically significant. First, with assistance to Family Caregivers and enhanced oversight. Additionally, as we regards to the commenter’s statement recognize the sacrifices caregivers make shift eligibility determinations to the that the regulatory impact analysis to care for veterans. It is intended to CEATs, we will shift the role of the states that 2022 is not economically help veterans and servicemembers CSCs to providing care and advocacy for significant, we are unclear as to what achieve their highest level of health, the eligible veteran and his or her this commenter is referring by ‘‘2022.’’ quality of life, and independence. 85 FR caregiver. Also, eligible veterans and his As the regulatory impact analysis states, 13360 (March 6, 2020). While we or her caregivers who believe they have we determined that this regulatory understand and recognize that being a been inappropriately discharged from action is economically significant. Family Caregiver can be challenging, the program may contact their local Further, as previously discussed, we are Family Caregivers can receive respite facility patient advocate as well as not expanding to pre-9/11 eligible care and counseling, including appeal PCAFC determinations through veterans at the expense of post-9/11 individual and group therapy, and peer the VHA clinical appeals process. veterans and servicemembers, rather we support groups, under PCAFC. Primary Furthermore, individuals interested in are building one program to encompass Family Caregivers may also receive applying to PCAFC may contact their veterans and servicemembers of all eras. health care and services through CHAMPVA. Additionally, eligible local VA medical facility CSC or refer to Intent of Program https://www.caregiver.va.gov/ for veterans would be enrolled in VA additional information about the One commenter requested VA ‘‘get healthcare and would be able to seek program and the application process. back’’ to the original intent of the mental health care through VA. We program, which the commenter stated is make no changes based on this Denial of Aide and Attendance Benefit for home bound veterans from military comment. One commenter stated that they have service injury, and that most veterans Interaction With Other Programs submitted VA Form 21–2680 three times with qualifying issues do not require a and have been denied by VA. We note caregiver for 24/7 care and thus will not Multiple commenters requested that PCAFC is a VHA clinical program be eligible. This commenter also clarification on how PCAFC interacts that is separate from a VBA aide and asserted that PCAFC may enable with other VA and federal programs attendance allowance. For questions veterans and their caregivers, causing (e.g., VHA Homemaker and Home regarding eligibility please contact your negative impacts on veteran/caregiver Health Aide, VHA Home Based Primary nearest VBA regional office. mental health. Care, VHA Veteran-Directed Care, VBA First, we note that the intent of Aid and Attendance, programs Funding for PCAFC and Regulatory PCAFC has always been to provide administered by the Social Security Impact Analysis comprehensive assistance to Family Administration (SSA)). Additionally, Multiple commenters questioned how Caregivers of eligible veterans who have one commenter requested information VA will pay for the expansion of a serious injury incurred or aggravated about services available to them to use PCAFC. One commenter raised concerns in the line of duty on or after September now until they are eligible for PCAFC as that the program has too many holes it 11, 2001. It was never intended to be a result of expansion. PCAFC is one of in and may likely be financially solely for ‘‘home bound veterans’’ nor many in-home VA services that are unsustainable. The 2020 President’s was it intended to require caregivers complementary but not necessarily

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exclusive to one another. As a result, an docket. We make no changes based on should be administered by VBA. eligible veteran and his or her caregiver this comment. Commenters further expounded that may participant in more than one in- VHA has shown it is unable to Electronic Medical Record and Health home care program, as applicable. consistently administer the program and Insurance Portability and Furthermore, older veterans or that VHA medical facility staff should Accountability Act (HIPAA) servicemembers awaiting expansion for not be involved with decisions that have his or her service era, may be eligible for One commenter asserted that access financial implications to veterans and other VA programs and benefits (e.g., to a patient’s medical record, including his or her caregiver. While we agree that PGCSS, Homemaker and Home Health the ability to insert a document into a PCAFC does provide benefits to the Aide, Veteran-Directed Care, home patient’s medical record should be Family Caregivers of eligible veterans, based primary care, SMC). As we have limited to only the medical provider(s) PCAFC is a clinical program that noted throughout this rule, VA offers a who treat the veteran or servicemember. provides assistance to Family Caregivers menu of supports and services that The same commenter further opined of eligible veterans who have a serious supports caregivers caring for veterans that introducing this security method to injury incurred or aggravated in the line such as PGCSS, homemaker and home the Computerized Patient Record of duty, and is designed to support the health aides, home based primary care, System (CPRS) would help eliminate health and well-being of such veterans, Veteran-Directed care, and adult day HIPAA violations and cross provider enhance their ability to live safely in a care health care to name a few. We note communication that crowds up the home setting, and support their that the definition of serious injury medical record. The commenter also potential progress in rehabilitation, if requires a single or combined service- asserted that the medical records should such potential exists. See 85 FR 13356, connected disability rating of 70 only consist of the patient’s medical at 13367 (March 6, 2020). Thus, PCAFC percent, which is the minimum information. We consider this comment is intended to be a program under threshold we will use for determining outside the rulemaking, but note that which assistance may shift depending eligibility for PCAFC. As explained VA has implemented security on the changing needs of the eligible previously, other criteria, including that mechanisms, including access and audit veteran. We do acknowledge that while the individual be in need of personal controls, within VA’s Veterans Health some eligible veterans may improve care services and that PCAFC be in the Information System Technology over time, others may not, and PCAFC best interest of the veteran, must be Architecture (VistA)/CPRS that comply and other VHA services are available to further met to be eligible for PCAFC. with the HIPAA Security Rule. All staff ensure the needs of those veterans Eligibility for SSA benefits does not with access to patient information are continue to be met. Given the placement impact eligibility for PCAFC. It is also required, in the performance of their of authority for the PCAFC program in important to note that stipend payments duties, to know their responsibilities in Chapter 17 of title 38, U.S. Code— received under PCAFC do not earn maintaining the confidentiality of VA Hospital, Nursing Home, Domiciliary, credits toward Social Security sensitive information, especially patient and Medical Care, VHA has the retirement as stipend payments are non- information, by completing the annual exclusive authority to carry out the taxable. We further note that all income Cyber Security and Privacy training. We PCAFC program. See 38 U.S.C. 7301. counts against eligibility for note that the health record consists of Any relocation of the program to VBA Supplemental Security Income, but not the patient’s medical information, would require statutory change. Further, against eligibility for Social Security including the individual’s health section 1720G does not create any Disability Income or Social Security history, examinations, tests, treatments, entitlement to any assistance or support retirements. Because we do not and outcomes. It also includes an provided under PCAFC and PGCSS. See administer SSA benefits, we would administrative component that is an 38 U.S.C. 1720G(c)(2)(B). In further refer commenters to SSA’s official record pertaining to the administering PCAFC pursuant to website (at https://www.ssa.gov/) for administrative aspects involved in the VHA’s statutory authority in section more information on eligibility for SSA care of a patient, including: 1720G, as explained in the proposed benefits. We will also consider these Demographics, eligibility, billing, rule, we have recognized that comments in determining requirements correspondence, and other business- improvements to PCAFC were needed to in contracts for personal financial related aspects. Such information is improve consistency and transparency services. We are not making any necessary, particularly, as individuals within the PCAFC. See 85 FR 13356 changes to the regulation based on these other than a treating provider utilize the (March 6, 2020). We believe the changes comments. information contained in the VHA that we are making in this rule will health record on a daily basis for improve PCAFC, especially with regards Meeting Notes eligibility determinations and other to eligibility determinations. We also One commenter requested VA provide health care functions, such as coding note that we are implementing the meetings notes from a current and billing; thus, we cannot limit access processes to standardize and improve employee from , 2019. If the to the medical record to only the PCAFC eligibility determinations to commenter is referring to the February treating providers. We make no changes include a robust staff education and 25, 2019 meeting notes identified in the based on this comment. training plan, centralized eligibility, and proposed rule, the meeting notes titled One commenter stated this is enhanced oversight. ‘‘Meeting Notes 02.25.19’’ is posted in ludicrous and a clear HIPAA violation Most In Need the docket folder for this rulemaking for said caregiver. As the commenter did (i.e., AQ48—Proposed Rule—Program of not provide further information, we Several commenters expressed Comprehensive Assistance for Family cannot address this comment. We make concern over the phrase ‘‘most in need.’’ Caregivers Improvements and no changes based on this comment. In particular, one commenter asserted Amendments under the VA MISSION that the purpose and application of this Act of 2018) at https:// Move PCAFC to VBA phrase ‘‘eliminates participation www.regulations.gov. The commenter Several commenters asserted that because the word ‘most’ [implies] not all may need to select ‘‘View All’’ beside PCAFC is a permanent benefits program who are eligible.’’ We note that, the Primary Documents heading in the and questioned whether the program although the comment used the word

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‘‘entitles,’’ based on the content of the would be eligible for PCAFC under the servicemembers of all eras. comment, we believe that the intended previous eligibility criteria but will not Furthermore, we will continue to word was ‘‘implies.’’ This commenter be eligible under the new eligibility provide robust training and education to further asserted that it is unlawful for criteria. However, for the reasons our staff, implement an audit process to VA to deny or revoke eligibility to focus described in this paragraph, we believe review assessments at medical centers on those who are most in need. We do these changes are necessary. as well as centralized eligibility not have unlimited resources to provide We make no changes based on this determinations, and conduct vigorous PCAFC to all caregivers of veterans, and comment. oversight to ensure consistency across note that the purpose and intent of Veteran Suicide VA in implementing this regulation. We PCAFC is to provide benefits to Family make no changes based on these Caregivers who make sacrifices to care Commenters expressed concern that comments. for veterans, who would otherwise not the proposed changes will result in an be able to manage without that increase in veteran suicides. One PCAFC Is Not a VBA Nonmedical caregiver’s assistance. We note that the commenter also requested that VA Benefit phrase ‘‘most in need’’ was only used in refrain from proposing another rule the proposed rule in reference to a change before addressing why veterans One commenter urged VA to stop Federal Register Notice published on are committing suicide on VA hospital modeling PCAFC as though it is a VBA , 2018, requesting information property. While we consider these nonmedical benefit, and cited to Tapia and comments from the public on how comments out of scope and make no v. United States, 146 Fed. Cl. 114 to improve PCAFC. We note that the changes based on these comments, it is (2016), in which the United State Court changes we are making through this important to note that PCAFC is focused of Federal Claims affirmed that PCAFC rulemaking are intended to better on providing support and services to determinations are clinical and thus address the needs of veterans of all eras caregivers of veterans, and does not subject to VHA’s clinical appeals and standardize the program to focus on replace appropriate clinical services process. We do not understand this eligible veterans with moderate and from which a veteran may benefit. We comment, and to the extent that this severe needs. 84 FR 13356 (March 6, also note that suicide prevention is VA’s commenter is asserting that PCAFC is a 2020). We also further refer the top clinical priority. More information clinical program operated by VHA, we commenter to the discussion directly on VA’s suicide prevention efforts can agree. To the extent that this commenter above addressing that PCAFC is not an be found at: https:// is asserting that PCAFC determinations entitlement program. www.mentalhealth.va.gov/ are subject to the clinical appeals We do not make any changes based on MENTALHEALTH/suicide_prevention/ process and are not within BVA’s these comments. index.asp. If you are a veteran in crisis jurisdiction, we also agree. We make no or you are concerned about one, free changes based on this comment. Not Veteran-Centric and confidential support is available 24/ One commenter asserted that the 7 by calling the Veterans Crisis Line at PCAFC Staffing proposed rule is VA-centric versus 1–800–273–8255 and Press 1 or by Several commenters expressed veteran centric. Specifically, this sending a text message to 838255. We concern that VA does not have the staff commenter asserted that the changes make no changes based on these to handle the wave of applications that will lead to veterans not receiving the comments. will come once expansion occurs. quality care they deserve, and deny Overhaul of Existing Program Specifically, commenters noted that VA eligibility to other veterans under staff are already overwhelmed serving expansion who would be previously Multiple commenters expressed current PCAFC participants. We thank eligible. frustration that this rulemaking is a As we explained in the proposed rule, complete overhaul rather than fixing the commenters for their concerns and we are making changes to the current issues with the current program. note that we are actively increasing regulations in part 71 to improve the Specifically, commenters noted that the PCAFC staff nationwide in anticipation PCAFC to ensure consistency and proposed rule does nothing to address of expansion. We make no changes transparency in decision making within non-compliance and inconsistency in based on these comments. the program, to update the regulations the implementation and management of Plain Writing Act and FAQs to comply with amendments made to 38 the current program and questioned the U.S.C. 1720G by the VA MISSION Act purpose of the moratorium on tier Two commenters requested VA better of 2018, and to allow PCAFC to better reductions and discharges based on explain PCAFC by using plain language address the needs of veterans of all eras clinical determinations. As indicated in consistent with the Plain Writing Act of and standardize PCAFC to focus on the proposed rule, VA has recognized 2010. A separate comment indicated VA eligible veterans with moderate and the need to improve consistency and should follow the plain language severe needs. These efforts to transparency since the implementation guidelines of Plain Writing. Two standardize PCAFC will ensure that of PCAFC in 2011 and the current commenters indicated that the rule was eligible veterans and Family Caregivers moratorium was put in place to prevent difficult to understand and one of those will receive a high level of care through discharges and tier reductions while commenter’s requests FAQs. We are PCAFC. Thus, we disagree that the PCAFC focused on education, guidance aware of the complexity of the proposed proposed rule is VA centric. We do not and conducted audits. We note that this changes; however, we conformed the believe this will lead to veterans not moratorium is still in place, and will be regulation to the Office of Federal receiving the quality of care they lifted once this regulation is final and Register guidelines which where were deserve, as veterans who are not eligible effective. Additionally, the current developed to help agencies produce for PCAFC may be eligible for other regulations are focused on post-9/11 clear, enforceable regulation documents. VHA care and services, such as home veterans and servicemembers and as Additionally, we have and will continue based primary care, Veteran-Directed, discussed above we believe the to provide FAQs on various aspects of and adult day health care. Similarly, we eligibility requirements must be revised the program. We are not making any acknowledge there may be veterans who to be inclusive of veterans and changes based on this comment.

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Pilot Program this regulation. We are not making any year approximately 200,000 changes based on this comment. servicemembers, who are preparing to One commenter requested that VA transition to civilian life, receive Special Compensation for Assistance pilot the proposed changes before information, resources, and tools to help With Activities of Daily Living implementing the changes. The same prepare for this transition. VA’s portion (SCAADL) commenter asserted that veterans of all of this program includes an in-person eras should join under the current Several commenters asserted that course called VA Benefits and Services, regulations. As amended by section 163 DoD’s SCAADL program was intended which helps servicemembers of the VA MISSION Act of 2018, 38 to be a part of a servicemembers’ understand how to navigate VA and the U.S.C. 1720G requires VA expand seamless transition to PCAFC. One benefits and services they have earned eligibility for PCAFC to all veterans in commenter provided SCAADL through their military careers. This two phases. We would not pilot the performance metrics and stated that includes information on PCAFC. It is proposed changes before implementing there has been little coordination with important to note that if a them as that would not be appropriate SCAADL by PCAFC or the Recovery servicemember has been discharged in this instance. Pilot programs are Coordination Program despite a from the military or has a date of conducted to determine whether an Memorandum of Understanding medical discharge, he or she is eligible approach may work and whether such between VA and DoD for interagency to apply for PCAFC. We note that CSP an approach is the correct one to use. complex care coordination requirements partners with VA’s Transition and Care However, the changes we have proposed for servicemembers and veterans. The Management through their partnership and are making final as part of this commenter further asserted that the with the Federal Recovery Program and rulemaking are based on challenges and Congressional intent of PCAFC was very DoD Medical Treatment Facilities. We issues we have seen and identified over clear following the passage of three make no changes based on these the years since PCAFC was first crucial laws: Caregivers Act, section 603 comments. implemented. We have conducted of the National Defense Authorization These same commenters also thorough analysis to determine what Act for Fiscal Year 2010 (Pub. L. 111– recommended that PCAFC be more changes to make and to support those 84), and the Veterans’ Benefits Act of aligned with SCAADL, including changes. In addition, running two 2010 (Pub. L. 111–275). definitions, application timelines, and separate and distinct programs for While we consider these comments eligibility determinations. As explained different groups of veterans will lead to outside the scope of the proposed rule, in response to the comments directly confusion for caregivers, veterans, and we will briefly explain SCAADL and above, there are differences between the staff. We do not make any changes PCAFC, and the coordination between two programs based on the authorizing based on this comment but will VA and DoD to meet the needs of statutes. Thus, the definitions and continue to review and analyze PCAFC servicemembers and veterans. eligibility determinations for these and make any changes we deem Authorized by section 603 of the programs are necessarily different. necessary. National Defense Authorization Act for Additionally, the application timelines Fiscal Year 2010 (Pub. L. 111–84) and differ as a result of differences between Requirement To Reapply After Moving codified at 37 U.S.C. 439, SCAADL is the programs’ processes. For example, taxable financial compensation that DoD One commenter opposed the current initial eligibility for SCAADL is certified provides to eligible permanent practice and requirement for by a DoD- or VA-licensed physician, catastrophically injured or ill participants to reapply for the program after which time, DoD recommends that servicemembers who require caregiver because they have moved, as this has all responsible parties complete the support for assistance with activities of resulted in denial of PCAFC benefits. SCAADL application form within 30 daily living or for constant supervision We wish to clarify that an eligible days. In contrast, PCAFC does not and protection, without which they veteran and the Family Caregiver are not provide a recommended a timeline for would require hospitalization or required to submit a new joint completing the PCAFC application residential institutional care. It is application if or when they relocate; form. Because we view these as distinct important to note that PCAFC and that is, move to another address. programs with different requirements, SCAADL are distinct programs, as the However, we will require a wellness we make no changes based on these statutory authorities set forth different comments. contact be conducted in the eligible requirements and benefits for each veteran’s home to determine if the new program. For example, unlike PCAFC, Staff Training on Eligibility environment meets the care needs of the SCAADL does not provide benefits Determinations eligible veteran. During the wellness directly to the Family Caregiver nor Several commenters asserted that contact, the clinical staff member does it provide benefits other than current PCAFC staff are unable to make conducting such contact may identify a financial compensation. accurate eligibility determinations change in the eligible veteran’s These commenters also refer to the because they have been improperly condition or other such change in Recovery Coordination Program, and we trained. Specifically, one commenter circumstances whereby a need for a assume they are referring to the joint asserted that training provided was not reassessment may be deemed necessary DoD/VA Federal Recovery Coordination properly vetted by VA’s Chief Education and arranged accordingly pursuant to Program, which is a joint effort between Officer to ensure the training meets the § 71.30 if necessary. We note that the Departments to coordinate the standards of the Caregiver Omnibus Act wellness contacts and reassessments are clinical and nonclinical services needed of 2010. We are preparing multi-day distinct and separate processes. by severely wounded, ill, and injured trainings to be provided to staff that will Further, as explained above, we will servicemembers and veterans. be making eligibility determinations. provide robust training and education to DoD and VA continue to take efforts These trainings will be approved by our staff, implement an audit process to to support a smooth transition as VA’s Employee Education Service review eligibility determinations, and servicemembers leave active duty and (EES), and will be tailored to the various conduct vigorous oversight to ensure become veterans. Through the disciplines of the staff that will be consistency across VA in implementing Transition Assistance Program, every determining eligibility for PCAFC.

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These trainings will be accredited by revised to ensure standardization and used to make the determinations will EES as these will be considered yield consistency, and further suggested vary on a case by case basis depending continuing education credits for staff that the current assessment instrument on the veteran’s situation. After the licenses, as applicable. We currently be independently validated, subject to regulation is published, we will publish provide in VA’s employee training public scrutiny, which should prove the related policies that will describe the system, the Talent Management System, instrument’s reliability, validity, assessment process, including any standardized trainings on many portions responsiveness as an outcome measure, assessment instruments VA staff may of PCAFC, including caregiver support and interpretability. This commenter use when PCAFC applicants are and eligibility. These standardized also asked VA to provide justification to evaluated for the program. We will trainings have been approved by EES. prove the current assessment instrument ensure VA staff utilizing the any We are also developing trainings on was so fatally flawed and beyond repair assessment instruments are properly how to use assessment instruments. We such that any necessary improvements trained. We further note that we will will ensure that quality assurance and would cause greater burden than continue to monitor to ensure that any peer reviews are conducted to ensure deploying a new assessment instrument instruments used to assist in assessing that eligibility determinations are made or undue burden on the public and the a veteran’s needs for purposes of PCAFC appropriately and consistently. Where government. This commenter also noted are reliable and valid. We make no we determine improvement is needed, that VA has not provided the public changes based on these comments. we will remediate and provide re- with any valid and reliable data or Several comments copied and pasted training of staff. We make no changes research to prove that the new veteran SMAG committee minutes, with no based on these comments. functional assessment instrument has further explanation or discussion. We equivalent interrater reliability and concur that these are the minutes from VA Should Pay all Veterans Before the SMAG Committee meetings. Caregivers validity as the three assessment instruments on which it is based. However, because no further context to One commenter asserted that there Another commenter opined that the these comments were provided, we should be some type of compensation current assessment tool used for cannot address them further. We make for all veterans who served regardless of evaluating the level of assistance no changes based on these comments. whether they have a service-connected required by a veteran to complete ADLs Other disability prior to providing a stipend or to determine a veteran’s need for Several commenters posted comments and health care services to Family supervision or protection is a good Caregivers. The same commenter further that did not provide additional instrument and asked what assessment/ opined that veterans with a certain information beyond what appears to be evaluation guidelines will be put in percentage of service-connected a news release from Senator Patty place now. Additionally, one of the disability are free to schedule multiple Murray on , 2019 regarding commenters referenced our current use VA medical appointments and PCAFC and minutes from the 1999 of the Katz Basic Activities of Daily questioned why able-bodied veterans Archives of the U.S. Senate Taskforce Living Scale; the UK Functional are not compensated nor able to use VA on Hispanic Affairs, Veteran Advisory Independence Measure and Functional for medical care. To the extent the Committee. Another commenter posted Assessment Measure; and the commenter requests VA to revise how their interpretation of the major Neuropsychiatric Inventory for veterans are compensated and priority takeaways for the proposed rule. One designation for access to VA medical conducting assessments of veterans. commenter posted information on an care, this is beyond the scope of this One commenter raised concerns about herbal formula that can be used for ALS. rulemaking. We make no changes based using a new tool as VA staff is not using One commenter posted what appears to on this comment. the current tool properly. Two be excerpts from VA OIG reports. As no commenters requested VA provide a further explanation or discussion was Veteran Functional Assessment detailed list of requirements and the provided by the commenters, we cannot Instrument scoring methodology to determine further address. We make no changes One commenter specifically stated eligibility. based on these comments. that after the proposed rule was We consider these comments to be published, they requested additional outside the scope of the rule and do not Technical Edits information from VA about how the make any changes based on these We would make a technical edit to proposed eligibility evaluation and comments nor will we publish a §§ 71.10 through 71.40, and 71.50. We reassessment process will work, supplemental notice of proposed would remove the statutory authority including any assessment instruments rulemaking or an interim final rule; citations at the end of each of these that VA staff will use. This commenter however, we provide additional sections and amend the introductory recommended that because VA did not information as follows. The exact ‘‘Authority’’ section of part 71 to adequately explain how the process will processes and instruments that will be include the statutory citations listed in work, VA should publish a used to assess eligible veterans and these sections that are not already supplemental notice of proposed Family Caregivers for PCAFC would provided in the ‘‘Authority’’ section of rulemaking or an interim final rule to best be handled through policy. While part 71 to conform with publishing explain this process, upon which to we note that commenters specifically guidelines established by the Office of provide the public the opportunity to inquired, or raised concerns about the the Federal Register. We note that comment. One commenter veteran functional assessment current §§ 71.20 and 71.30 include a recommended VA use an interrater instrument, we note that it is one of citation to 38 U.S.C. 1720G(a)(2) and reliability measure to determine the several factors that may be used by staff 1720G(b)(1), (2), respectively. However, level of standardization of the veteran to inform determinations for PCAFC we would reference 38 U.S.C. 1720G, functional assessment instrument that eligibility. There will be no scoring not specific subsections and paragraphs. VA staff may use to inform eligibility methodology for determining eligibility. We would also add a reference to 31 determinations, recommended the Because these determinations are U.S.C. 3711, which pertains to current assessment instrument be clinical, the indicators and information collections; 38 U.S.C. 5302, which

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pertains to waiver of benefits environmental, public health and safety Brooks D. Tucker, Acting Chief of Staff, overpayments; and 38 U.S.C. 5314, effects, and other advantages; Department of Veterans Affairs, which pertains to the offset of benefits distributive impacts; and equity). approved this document on , overpayments. These references would Executive Order 13563 (Improving 2020, for publication. be added for purposes of proposed Regulation and Regulatory Review) Consuela Benjamin, § 71.47, Collection of overpayment. emphasizes the importance of quantifying both costs and benefits, Regulations Development Coordinator, Office Paperwork Reduction Act of Regulation Policy & Management, Office reducing costs, harmonizing rules, and This final rule contains provisions of the Secretary, Department of Veterans promoting flexibility. The Office of Affairs. that would constitute a revised Information and Regulatory Affairs has collection of information under 38 CFR determined that this rule is an For the reasons stated in the 71.25, which is currently approved economically significant regulatory preamble, the Department of Veterans under Office of Management and Budget action under Executive Order 12866. Affairs amends 38 CFR part 71 as (OMB) Control #2900–0768. This rule VA’s impact analysis can be found as a follows: also contains provisions that constitute supporting document at http:// PART 71—CAREGIVERS BENEFITS a new collection of information under www.regulations.gov, usually within 48 AND CERTAIN MEDICAL BENEFITS 38 CFR 71.40, which will be added hours after the rulemaking document is OFFERED TO FAMILY MEMBERS OF under OMB Control #2900–0768. As published. Additionally, a copy of the VETERANS required by 44 U.S.C. 3507(d), VA will rulemaking and its impact analysis are submit, under a separate document, the available on VA’s website at http:// ■ 1. The authority citation for part 71 is revised collection of information www.va.gov/orpm/, by following the revised to read as follows: associated with §§ 71.25 and 71.40 to link for ‘‘VA Regulations Published.’’ OMB for its review and approval. Notice This rulemaking is considered an E.O. Authority: 38 U.S.C. 501, 1720G, unless of OMB approval for this revised otherwise noted. 13771 regulatory action. VA has Section 71.40 also issued under 38 U.S.C. collection of information will be determined that the net costs are $483.4 111(e), 1720B, 1782. published in a future Federal Register million over a five-year period and Section 71.47 also issued under 31 U.S.C. document. $70.5 million per year on an ongoing 3711; 38 U.S.C. 5302, 5314. Regulatory Flexibility Act basis discounted at 7 percent relative to Section 71.50 also issued under 38 U.S.C. year 2016, over a perpetual time 1782. The Secretary hereby certifies that horizon. Details on the estimated costs this final rule will not have a significant ■ 2. Amend § 71.10 by revising of this final rule can be found in the paragraph (b) and removing the economic impact on a substantial rule’s economic analysis. number of small entities as they are authority citation at the end of the defined in the Regulatory Flexibility Act Unfunded Mandates section. (RFA), 5 U.S.C. 601–612. We note that The Unfunded Mandates Reform Act The revision reads as follows: caregivers are not small entities. of 1995 requires, at 2 U.S.C. 1532, that § 71.10 Purpose and scope. However, this final rule may directly agencies prepare an assessment of * * * * * affect small entities that we would anticipated costs and benefits before (b) Scope. This part regulates the contract with to provide financial issuing any rule that may result in the provision of benefits under the Program planning services and legal services to expenditure by State, local, and tribal of Comprehensive Assistance for Family Primary Family Caregivers; however, governments, in the aggregate, or by the Caregivers and the Program of General matters relating to contracts are exempt private sector, of $100 million or more Caregiver Support Services authorized from the RFA requirements. Any effects (adjusted annually for inflation) in any by 38 U.S.C. 1720G. Persons eligible for on small entities would be indirect. one year. This final rule would have no such benefits may be eligible for other Therefore, pursuant to 5 U.S.C. 605(b), such effect on State, local, and tribal VA benefits based on other laws or other the initial and final regulatory flexibility governments, or on the private sector. parts of this title. These benefits are analysis requirements of 5 U.S.C. 603 provided only to those individuals and 604 do not apply. Catalog of Federal Domestic Assistance residing in a State as that term is The Catalog of Federal Domestic Congressional Review Act defined in 38 U.S.C. 101(20). Assistance numbers and titles for the This regulatory action is a major rule programs affected by this document are ■ 3. Amend § 71.15 by: under the Congressional Review Act, 5 64.009, Veterans Medical Care Benefits. ■ a. Removing the definition of U.S.C. 801–808, because it may result in ‘‘Combined rate’’; an annual effect on the economy of $100 List of Subjects in 38 CFR Part 71 ■ b. Adding in alphabetical order million or more. In accordance with 5 Administrative practice and definitions for ‘‘Domestic violence U.S.C. 801(a)(1), VA will submit to the procedure, Caregivers program, Claims, (DV)’’, ‘‘Financial planning services’’, Comptroller General and to Congress a Health care, Health facilities, Health and ‘‘In need of personal care services’’; copy of this regulatory action and VA’s professions, Mental health programs, ■ c. Redesignating in proper Regulatory Impact Analysis. Travel and transportation expenses, alphabetical order the definition of ‘‘In Veterans. the best interest’’ and revising it; Executive Order 12866, 13563, and ■ d. Revising the definition of ‘‘Inability 13771 Signing Authority to perform an activity of daily living Executive Orders 12866 and 13563 The Secretary of Veterans Affairs, or (ADL)’’; direct agencies to assess the costs and designee, approved this document and ■ e. Adding in alphabetical order benefits of available regulatory authorized the undersigned to sign and definitions for ‘‘Institutionalization’’, alternatives and, when regulation is submit the document to the Office of the ‘‘Intimate partner violence (IPV)’’, ‘‘Joint necessary, to select regulatory Federal Register for publication application’’, ‘‘Legacy applicant’’, approaches that maximize net benefits electronically as an official document of ‘‘Legacy participant’’, ‘‘Legal services’’, (including potential economic, the Department of Veterans Affairs. and ‘‘Monthly stipend rate’’;

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■ f. Removing the definition of ‘‘Need independence, if such potential exists, on or after October 1, 2020 so long as for supervision or protection based on and creates an environment that the Primary Family Caregiver approved symptoms or residuals of neurological supports the health and well-being of and designated for the veteran or or other impairment or injury’’; the veteran or servicemember. servicemember on or after October 1, ■ g. Adding in alphabetical order Inability to perform an activity of 2020 pursuant to such joint application definitions for ‘‘Need for supervision, daily living (ADL) means a veteran or (as applicable) continues to be approved protection, or instruction’’ and servicemember requires personal care and designated as such. If a new joint ‘‘Overpayment’’; services each time he or she completes application is received by VA on or after ■ h. Revising the definitions of one or more of the following: October 1, 2020 that results in approval ‘‘Primary care team’’ and ‘‘Serious (1) Dressing or undressing oneself; and designation of the same or a new injury’’; (2) Bathing; Primary Family Caregiver, the veteran or ■ i. Adding in alphabetical order a (3) Grooming oneself in order to keep servicemember would no longer be definition of ‘‘Unable to self-sustain in oneself clean and presentable; considered a legacy applicant. the community’’; and (4) Adjusting any special prosthetic or Legacy participant means an eligible ■ j. Removing the authority citation at orthopedic appliance, that by reason of veteran whose Family Caregiver(s) was the end of the section. the particular disability, cannot be done approved and designated by VA under The revisions and additions read as without assistance (this does not this part as of the day before October 1, follows: include the adjustment of appliances 2020 so long as the Primary Family that nondisabled persons would be Caregiver approved and designated for § 71.15 Definitions. unable to adjust without aid, such as the eligible veteran as of the day before * * * * * supports, belts, lacing at the back, etc.); October 1, 2020 (as applicable) Domestic violence (DV) refers to any (5) Toileting or attending to toileting; continues to be approved and (6) Feeding oneself due to loss of violence or abuse that occurs within the designated as such. If a new joint coordination of upper extremities, domestic sphere or at home, and may application is received by VA on or after extreme weakness, inability to swallow, include child abuse, elder abuse, and October 1, 2020 that results in approval or the need for a non-oral means of other types of interpersonal violence. and designation of the same or a new nutrition; or * * * * * (7) Mobility (walking, going up stairs, Primary Family Caregiver, the veteran or Financial planning services means transferring from bed to chair, etc.). servicemember would no longer be services focused on increasing financial Institutionalization refers to being considered a legacy participant. capability and assisting the Primary institutionalized in a setting outside the Legal services means assistance with Family Caregiver in developing a plan home residence to include a hospital, advanced directives, power of attorney, to manage the personal finances of the rehabilitation facility, jail, prison, simple wills, and guardianship; Primary Family Caregiver and the assisted living facility, medical foster educational opportunities on legal eligible veteran, as applicable, to home, nursing home, or other similar topics relevant to caregiving; and include household budget planning, setting. referrals to community resources and debt management, retirement planning Intimate partner violence (IPV) refers attorneys for legal assistance or review and education, and insurance to any violent behavior including, but representation in other legal matters. review and education. not limited to, physical or sexual These services would be provided only * * * * * violence, stalking, or psychological in relation to the personal legal needs of In need of personal care services aggression (including coercive acts or the eligible veteran and the Primary means that the eligible veteran requires economic harm) by a current or former Family Caregiver. This definition in-person personal care services from intimate partner that occurs on a excludes assistance with matters in another person, and without such continuum of frequency and severity which the eligible veteran or Primary personal care services, alternative in- which ranges from one episode that Family Caregiver is taking or has taken person caregiving arrangements might or might not have lasting impact any adversarial legal action against the (including respite care or assistance of to chronic and severe episodes over a United States government, and disputes an alternative caregiver) would be period of years. IPV can occur in between the eligible veteran and required to support the eligible veteran’s heterosexual or same-sex relationships Primary Family Caregiver. safety. and does not require sexual intimacy or Monthly stipend rate means the Office In the best interest means, for the cohabitation. of Personnel Management (OPM) purpose of determining whether it is in Joint application means an General Schedule (GS) Annual Rate for the best interest of the veteran or application that has all fields within the grade 4, step 1, based on the locality pay servicemember to participate in the application completed, including area in which the eligible veteran Program of Comprehensive Assistance signature and date by all applicants, resides, divided by 12. for Family Caregivers under 38 U.S.C. with the following exceptions: social Need for supervision, protection, or 1720G(a), a clinical determination that security number or tax identification instruction means an individual has a participation in such program is likely number, middle name, sex, email, functional impairment that directly to be beneficial to the veteran or alternate telephone number, and name impacts the individual’s ability to servicemember. Such determination of facility where the veteran last maintain his or her personal safety on will include consideration, by a received medical treatment, or any other a daily basis. clinician, of whether participation in field specifically indicated as optional. Overpayment means a payment made the program significantly enhances the Legacy applicant means a veteran or by VA pursuant to this part to an veteran’s or servicemember’s ability to servicemember who submits a joint individual in excess of the amount due, live safely in a home setting, supports application for the Program of to which the individual was not eligible, the veteran’s or servicemember’s Comprehensive Assistance for Family or otherwise made in error. An potential progress in rehabilitation, if Caregivers that is received by VA before overpayment is subject to collection such potential exists, increases the October 1, 2020 and for whom a Family action. veteran’s or servicemember’s potential Caregiver(s) is approved and designated * * * * *

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Primary care team means one or more (i) An inability to perform an activity Caregiver for an eligible veteran who medical professionals who care for a of daily living; or has a designated Primary Family patient based on the clinical needs of (ii) A need for supervision, protection, Caregiver. the patient. Primary care teams must or instruction. (ii) Individuals who apply to be include a VA primary care provider who (4) It is in the best interest of the Family Caregivers must complete all is a physician, advanced practice nurse, individual to participate in the program. necessary eligibility evaluations (along or a physician assistant. (5) Personal care services that would with the veteran or servicemember), * * * * * be provided by the Family Caregiver education and training, and the initial Serious injury means any service- will not be simultaneously and regularly home-care assessment (along with the connected disability that: provided by or through another veteran or servicemember) so that VA (1) Is rated at 70 percent or more by individual or entity. may complete the designation process VA; or (6) The individual receives care at no later than 90 days after the date the (2) Is combined with any other home or will do so if VA designates a joint application was received by VA. If service-connected disability or Family Caregiver. such requirements are not complete disabilities, and a combined rating of 70 (7) The individual receives ongoing within 90 days from the date the joint percent or more is assigned by VA. care from a primary care team or will do application is received by VA, the joint Unable to self-sustain in the so if VA designates a Family Caregiver. application will be denied, and a new (b) For one year beginning on October community means that an eligible joint application will be required. VA 1, 2020, a veteran or servicemember is veteran: may extend the 90-day period based on eligible for a Primary or Secondary (1) Requires personal care services VA’s inability to complete the eligibility Family Caregiver under this part if he or each time he or she completes three or evaluations, provide necessary she is a legacy participant. more of the seven activities of daily education and training, or conduct the (c) For one year beginning on October living (ADL) listed in the definition of initial home-care assessment, when 1, 2020, a veteran or servicemember is such inability is solely due to VA’s an inability to perform an activity of eligible for a Primary or Secondary action. daily living in this section, and is fully Family Caregiver under this part if he or (3)(i) Except as provided in this dependent on a caregiver to complete she is a legacy applicant. paragraph, joint applications received such ADLs; or ■ by VA before October 1, 2020 will be (2) Has a need for supervision, 5. Amend § 71.25: ■ evaluated by VA based on 38 CFR 71.15, protection, or instruction on a a. By revising paragraph (a); ■ 71.20, and 71.25 (2019). continuous basis. b. In paragraph (c)(1) introductory text, by removing the phrase ‘‘a VA Notwithstanding the previous sentence, * * * * * primary care team’’ and adding in its the term ‘‘joint application’’ as defined ■ 4. Revise § 71.20 to read as follows: place ‘‘VA’’; and in § 71.15 applies to applications ■ c. By revising paragraphs (c)(1)(i) and described in this paragraph. § 71.20 Eligible veterans and (ii) Joint applications received by VA servicemembers. (ii), (c)(2), (e), and (f); and ■ d. By removing the authority citation on or after October 1, 2020 will be A veteran or servicemember is eligible at the end of the section. evaluated by VA based on the for a Family Caregiver under this part if The revisions read as follows: provisions of this part in effect on or he or she meets the criteria in paragraph after October 1, 2020. (a), (b), or (c) of this section, subject to § 71.25 Approval and designation of (A) VA will deny any joint the limitations set forth in such Primary and Secondary Family Caregivers. application of an individual described paragraphs. (a) Application requirement. (1) in § 71.20(a)(2)(ii), if such joint (a) A veteran or servicemember is Individuals who wish to be considered application is received by VA before the eligible for a Primary or Secondary for designation by VA as Primary or date published in a future Federal Family Caregiver under this part if he or Secondary Family Caregivers must Register document that is specified in she meets all of the following submit a joint application, along with such section. A veteran or requirements: the veteran or servicemember. servicemember seeking to qualify for the (1) The individual is either: Individuals interested in serving as Program of Comprehensive Assistance (i) A veteran; or Family Caregivers must be identified as for Family Caregivers pursuant to (ii) A member of the Armed Forces such on the joint application, and no § 71.20(a)(2)(ii) should submit a joint undergoing a medical discharge from more than three individuals may serve application that is received by VA on or the Armed Forces. as Family Caregivers at one time for an after the date published in a future (2) The individual has a serious injury eligible veteran, with no more than one Federal Register document that is incurred or aggravated in the line of serving as the Primary Family Caregiver specified in § 71.20(a)(2)(ii). duty in the active military, naval, or air and no more than two serving as (B) VA will deny any joint application service: Secondary Family Caregivers. of an individual described in (i) On or after September 11, 2001; (2)(i) Upon receiving such § 71.20(a)(2)(iii), if such joint (ii) Effective on the date specified in application, VA (in collaboration with application is received by VA before the a future Federal Register document, on the primary care team to the maximum date that is two years after the date or before May 7, 1975; or extent practicable) will perform the published in a future Federal Register (iii) Effective two years after the date evaluations required to determine the document that is specified in specified in a future Federal Register eligibility of the applicants under this § 71.20(a)(2)(ii). A veteran or document as described in paragraph part, and if eligible, determine the servicemember seeking to qualify for the (a)(2)(ii) of this section, after May 7, applicable monthly stipend amount Program of Comprehensive Assistance 1975 and before September 11, 2001. under § 71.40(c)(4). Notwithstanding the for Family Caregivers pursuant to (3) The individual is in need of first sentence, VA will not evaluate a § 71.20(a)(2)(iii) should submit a joint personal care services for a minimum of veteran’s or servicemember’s eligibility application that is received by VA on or six continuous months based on any under § 71.20 when a joint application after the date that is two years after the one of the following: is received to add a Secondary Family date published in a future Federal

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Register document that is specified in the primary care team to the maximum (b) * * * § 71.20(a)(2)(ii). extent practicable) on an annual basis to (2) Wellness contacts to review the * * * * * determine their continued eligibility for eligible veteran’s well-being, adequacy (c) * * * participation in PCAFC under this part. of personal care services being provided (1) * * * Reassessments will include by the Family Caregiver(s), and the well- (i) Whether the applicant can consideration of whether the eligible being of the Family Caregiver(s). This communicate and understand the veteran is unable to self-sustain in the wellness contact will occur, in general, required personal care services and any community for purposes of the monthly at a minimum of once every 120 days, specific instructions related to the care stipend rate under § 71.40(c)(4)(i)(A). and at least one visit must occur in the of the eligible veteran (accommodation Reassessment may include a visit to the eligible veteran’s home on an annual for language or hearing impairment will eligible veteran’s home. basis. Failure of the eligible veteran and be made to the extent possible and as (b) Reassessments may occur more Family Caregiver to participate in any appropriate); and frequently than annually if a wellness contacts pursuant to this (ii) Whether the applicant will be determination is made and documented paragraph will result in revocation capable of performing the required by VA that more frequent reassessment pursuant to § 71.45, Revocation and personal care services without is appropriate. Discharge of Family Caregivers. supervision, in adherence with the (c) Reassessments may occur on a less * * * * * eligible veteran’s treatment plan in than annual basis if a determination is (c) Primary Family Caregiver benefits. support of the needs of the eligible made and documented by VA that an VA will provide to Primary Family veteran. annual reassessment is unnecessary. Caregivers all of the benefits listed in (d) Failure of the eligible veteran or (2) Complete caregiver training and paragraphs (c)(1) through (6) of this Family Caregiver to participate in any demonstrate the ability to carry out the section. reassessment pursuant to this section specific personal care services, core * * * * * will result in revocation pursuant to competencies, and additional care (4) Primary Family Caregivers will § 71.45, Revocation and Discharge of requirements. receive a monthly stipend for each Family Caregivers. month’s participation as a Primary * * * * * (e)(1) If the eligible veteran meets the (e) Initial home-care assessment. VA Family Caregiver. requirements of § 71.20(b) or (c) (i.e., is (i) Stipend amount. (A) Except as will visit the eligible veteran’s home to a legacy participant or a legacy provided in paragraph (c)(4)(i)(C) of this assess the eligible veteran’s well-being applicant), the eligible veteran and section, if the eligible veteran meets the and the well-being of the caregiver, as Family Caregiver will be reassessed by requirements of § 71.20(a), the Primary well as the caregiver’s competence to VA (in collaboration with the primary Family Caregiver’s monthly stipend is provide personal care services at the care team to the maximum extent the amount set forth in paragraph eligible veteran’s home. practicable) within the one-year period (c)(4)(i)(A)(1) or (2) of this section. (f) Approval and designation. VA will beginning on October 1, 2020 to (1) The Primary Family Caregiver’s approve the joint application and determine whether the eligible veteran monthly stipend is calculated by designate Primary and/or Secondary meets the requirements of § 71.20(a). multiplying the monthly stipend rate by Family Caregivers, as appropriate, if the This reassessment may include a visit to 0.625. applicable requirements of this part are the eligible veteran’s home. If the (2) If VA determines that the eligible met. Approval and designation is eligible veteran meets the requirements veteran is unable to self-sustain in the conditioned on the eligible veteran and of § 71.20(a), the reassessment will community, the Primary Family designated Family Caregiver(s) consider whether the eligible veteran is Caregiver’s monthly stipend is remaining eligible for Family Caregiver unable to self-sustain in the community calculated by multiplying the monthly benefits under this part, the Family for purposes of the monthly stipend rate stipend rate by 1.00. Caregiver(s) providing the personal care under § 71.40(c)(4)(i)(A). (B) Except as provided in paragraph services required by the eligible veteran, (2) Notwithstanding paragraph (e)(1) (c)(4)(i)(C) of this section, for one year and the eligible veteran and designated of this section, a reassessment will not beginning on October 1, 2020, if the Family Caregiver(s) complying with all be completed under paragraph (e)(1) if eligible veteran meets the requirements applicable requirements of this part, at some point before a reassessment is of § 71.20(b) or (c), (i.e., is a legacy including participating in reassessments completed during the one-year period participant or a legacy applicant), the pursuant to § 71.30 and wellness beginning on October 1, 2020 the Primary Family Caregiver’s monthly contacts pursuant to § 71.40(b)(2). individual no longer meets the stipend is calculated based on the Refusal to comply with any applicable requirements of § 71.20(b) or (c). clinical rating in 38 CFR 71.40(c)(4)(i) requirements of this part will result in through (iii) (2019) and the definitions revocation from the program pursuant to § 71.35 [Amended] applicable to such paragraphs under 38 § 71.45, Revocation and Discharge of ■ 8. In newly redesignated § 71.35, CFR 71.15 (2019). If the sum of all of the Family Caregivers. remove the authority citation at the end ratings assigned is: of the section. (1) 21 or higher, then the Primary § 71.30 [Redesignated as § 71.35] ■ 9. Amend § 71.40 by revising Family Caregiver’s monthly stipend is ■ 6. Redesignate § 71.30 as § 71.35. paragraphs (b)(2), (c) introductory text, calculated by multiplying the monthly ■ 7. Add a new § 71.30 to read as and (c)(4), adding paragraphs (c)(5) and stipend rate by 1.00. follows: (6), revising paragraph (d), and (2) 13 to 20, then the Primary Family removing the authority citation at the Caregiver’s monthly stipend is § 71.30 Reassessment of Eligible Veterans end of the section. calculated by multiplying the monthly and Family Caregivers. The revisions and additions read as stipend rate by 0.625. (a) Except as provided in paragraphs follows: (3) 1 to 12, then the Primary Family (b) and (c) of this section, the eligible Caregiver’s monthly stipend is veteran and Family Caregiver will be § 71.40 Caregiver benefits. calculated by multiplying the monthly reassessed by VA (in collaboration with * * * * * stipend rate by 0.25.

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(C) For one year beginning on October (1) If the eligible veteran meets the that is one year after October 1, 2020, 1, 2020, if the eligible veteran meets the requirements of § 71.20(a) only (and VA will provide advanced notice of its requirements of § 71.20(a) and (b) or (c), does not meet the requirements of findings to the eligible veteran and the Primary Family Caregiver’s monthly § 71.20(b) or (c)), the Primary Family Primary Family Caregiver. stipend is the amount the Primary Caregiver’s monthly stipend is adjusted Note to paragraph (c)(4)(ii)(C)(2): If an Family Caregiver is eligible to receive as follows: eligible veteran who meets the under paragraph (c)(4)(i)(A) or (B) of (i) In the case of a reassessment that requirements of § 71.20(b) or (c) is this section, whichever is higher. If the results in an increase in the monthly determined, pursuant to a reassessment higher monthly stipend rate is the stipend payment, the increase takes conducted by VA under § 71.30, to not amount the Primary Family Caregiver is effect as of the date of the reassessment. meet the requirements of § 71.20(a), the eligible to receive under paragraph (ii) In the case of a reassessment that monthly stipend payment will not be (c)(4)(i)(A) of this section, the stipend results in a decrease in the monthly increased under paragraph rate will be adjusted and paid in stipend payment, the decrease takes (c)(4)(ii)(C)(2)(i) of this section or accordance with paragraph effect as of the effective date provided decreased under paragraph (c)(4)(ii)(C)(2)(i) of this section. in VA’s final notice of such decrease to (c)(4)(ii)(C)(2)(ii) of this section. Unless (D) Notwithstanding paragraphs the eligible veteran and Primary Family the Family Caregiver is revoked or (c)(4)(i)(A) through (C) of this section, Caregiver. The effective date of the discharged under § 71.45 before the date for one year beginning on October 1, decrease will be no earlier than 60 days that is 60 days after the date that is one 2020, if the eligible veteran meets the after VA provides advanced notice of its year after October 1, 2020, the effective requirements of § 71.20(b), the Primary findings to the eligible veteran and date for discharge of the Family Family Caregiver’s monthly stipend is Primary Family Caregiver. Caregiver of a legacy participant or not less than the amount the Primary (2) If the eligible veteran meets the legacy applicant under § 71.45(b)(1)(ii) Family Caregiver was eligible to receive requirements of § 71.20(b) or (c), the will be no earlier than 60 days after the as of the day before October 1, 2020 Primary Family Caregiver’s monthly date that is one year after October 1, (based on the eligible veteran’s address stipend may be adjusted as follows: 2020. On the date that is one year after on record with the Program of (i) In the case of a reassessment that October 1, 2020, VA will provide Comprehensive Assistance for Family results in an increase in the monthly advanced notice of its findings to the Caregivers on such date) so long as the stipend payment, the increase takes eligible veteran and Family Caregiver. eligible veteran resides at the same effect as of the date of the reassessment. (D) Adjustments to stipend payments address on record with the Program of The Primary Family Caregiver will also for the first month will take effect on the Comprehensive Assistance for Family be paid the difference between the date specified in paragraph (d) of this Caregivers as of the day before October amount under paragraph (c)(4)(i)(A) of section. Stipend payments for the last 1, 2020. If the eligible veteran relocates this section that the Primary Family month will end on the date specified in to a different address, the stipend Caregiver is eligible to receive and the § 71.45. amount thereafter is determined amount the Primary Family Caregiver (iii) No employment relationship. pursuant to paragraph (c)(4)(i)(A), (B), or was eligible to receive under paragraph Nothing in this section shall be (C) of this section and adjusted in (c)(4)(i)(B) or (D) of this section, construed to create an employment accordance with paragraph (c)(4)(ii)(B) whichever the Primary Family Caregiver relationship between the Secretary and of this section. received for the time period beginning an individual in receipt of assistance or (ii) Adjustments to stipend payments. on October 1, 2020 up to the date of the support under this part. (A) Adjustments to stipend payments reassessment, based on the eligible (iv) Periodic assessment. In that result from OPM’s updates to the veteran’s address on record with the consultation with other appropriate General Schedule (GS) Annual Rate for Program of Comprehensive Assistance agencies of the Federal government, VA grade 4, step 1 for the locality pay area for Family Caregivers on the date of the shall periodically assess whether the in which the eligible veteran resides reassessment and the monthly stipend monthly stipend rate meets the take effect prospectively following the rate on such date. If there is more than requirements of 38 U.S.C. date the update to such rate is made one reassessment for an eligible veteran 1720G(a)(3)(C)(ii) and (iv). If VA effective by OPM. during the one-year period beginning on determines that adjustments to the (B) Adjustments to stipend payments October 1, 2020, the retroactive payment monthly stipend rate are necessary, VA that result from the eligible veteran described in the previous sentence shall make such adjustments through relocating to a new address are effective applies only if the first reassessment future rulemaking. the first of the month following the during the one-year period beginning on (5) Primary Family Caregivers are month in which VA is notified that the October 1, 2020 results in an increase in eligible for financial planning services eligible veteran has relocated to a new the monthly stipend payment, and only as that term is defined in § 71.15. Such address. VA must receive notification as the result of the first reassessment services will be provided by entities within 30 days from the date of during the one-year period. authorized pursuant to any contract relocation. If VA does not receive (ii) In the case of a reassessment that entered into between VA and such notification within 30 days from the results in a decrease in the monthly entities. date of relocation, VA will seek to stipend payment and the eligible (6) Primary Family Caregivers are recover overpayments of benefits under veteran meets the requirements of eligible for legal services as that term is this paragraph (c)(4) back to the latest § 71.20(a), the new stipend amount defined in § 71.15. Such services will be date on which the adjustment would under paragraph (c)(4)(i)(A) of this provided by entities authorized have been effective if VA had been section takes effect as of the effective pursuant to any contract entered into notified within 30 days from the date of date provided in VA’s final notice of between VA and such entities. relocation, as provided in § 71.47. such decrease to the eligible veteran and (d) Effective date of benefits under the (C) The Primary Family Caregiver’s Primary Family Caregiver. The effective Program of Comprehensive Assistance monthly stipend may be adjusted date of the decrease will be no earlier for Family Caregivers. Except for pursuant to the reassessment conducted than 60 days after the date that is one paragraphs (b)(6) and (c)(3) and (4) of by VA under § 71.30. year after October 1, 2020. On the date this section, caregiver benefits under

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paragraphs (b) and (c) of this section are Family Caregiver’s temporary absence or be the date the error was made. If VA effective upon approval and designation incapacitation, fails to ensure (if able to) cannot identify when the error was under § 71.25(f). Caregiver benefits the provision of personal care services made, the date of revocation will be the under paragraphs (b)(6) and (c)(3) and to the eligible veteran. earliest date that the error is known by (4) are effective on the latest of the (ii) Noncompliance. Except as VA to have occurred, and no later than following dates: provided in paragraph (f) of this section, the date on which VA identifies that the (1) The date the joint application that VA will revoke the designation of a error occurred. resulted in approval and designation of Family Caregiver when the Family the Family Caregiver is received by VA. Caregiver or eligible veteran is (3) Continuation of benefits. In the (2) The date the eligible veteran noncompliant with the requirements of case of revocation based on VA error begins receiving care at home. this part. Noncompliance means: under paragraph (a)(1)(iii) of this (3) The date the Family Caregiver (A) The eligible veteran does not meet section, caregiver benefits will continue begins providing personal care services the requirements of § 71.20(a)(5), (6), or for 60 days after the date of revocation to the eligible veteran at home. (7); unless the Family Caregiver opts out of (4) In the case of a new Family (B) The Family Caregiver does not receiving such benefits. Continuation of Caregiver applying to be the Primary meet the requirements of § 71.25(b)(2); benefits under this paragraph will be Family Caregiver for an eligible veteran, (C) Failure of the eligible veteran or considered an overpayment and VA will the day after the effective date of Family Caregiver to participate in any seek to recover overpayment of such revocation or discharge of the previous reassessment pursuant to § 71.30; benefits as provided in § 71.47. Primary Family Caregiver for the (D) Failure of the eligible veteran or (b) Discharge of the Family eligible veteran (such that there is only Family Caregiver to participate in any one Primary Family Caregiver wellness contact pursuant to Caregiver—(1) Discharge due to the designated for an eligible veteran at one § 71.40(b)(2); or eligible veteran—(i) Bases for discharge. time). (E) Failure to meet any other Except as provided in paragraph (f) of (5) In the case of a new Family requirement of this part except as this section, the Family Caregiver will Caregiver applying to be a Secondary provided in paragraph (b)(1) or (2) of be discharged from the Program of Family Caregiver for an eligible veteran this section. Comprehensive Assistance for Family who already has two Secondary Family (iii) VA error. Except as provided in Caregivers when VA determines any of Caregivers approved and designated by § 71.45(f), VA will revoke the the following: VA, the day after the effective date of designation of a Family Caregiver if the (A) Except as provided in paragraphs Family Caregiver’s approval and revocation or discharge of a previous (a)(1)(ii)(A) and (b)(1)(i)(B) of this designation under this part was Secondary Family Caregiver for the section, the eligible veteran does not authorized as a result of an erroneous eligible veteran (such that there are no meet the requirements of § 71.20 more than two Secondary Family eligibility determination by VA. (2) Revocation date. All caregiver because of improvement in the eligible Caregivers designated for an eligible veteran’s condition or otherwise; or veteran at one time). benefits will continue to be provided to (6) In the case of a current or previous the Family Caregiver until the date of (B) Death or institutionalization of the Family Caregiver reapplying with the revocation. eligible veteran. Note: VA must receive same eligible veteran, the day after the (i) In the case of revocation based on notification of death or date of revocation or discharge under fraud committed by the Family institutionalization of the eligible § 71.45, or in the case of extended Caregiver or eligible veteran under veteran as soon as possible but not later benefits under § 71.45(b)(1)(iii), paragraph (a)(1)(i)(A) of this section, the than 30 days from the date of death or (b)(2)(iii), (b)(3)(iii)(A) or (B), and date of revocation will be the date the institutionalization. Notification of (b)(4)(iv), the day after the last date on fraud began. If VA cannot identify when institutionalization must indicate which such Family Caregiver received the fraud began, the date of revocation whether the eligible veteran is expected caregiver benefits. will be the earliest date that the fraud to be institutionalized for 90 or more (7) The day after the date a joint is known by VA to have been days from the onset of application is denied. committed, and no later than the date institutionalization. ■ 10. Revise § 71.45 to read as follows: on which VA identifies that fraud was committed. (ii) Discharge date. (A) In the case of § 71.45 Revocation and discharge of (ii) In the case of revocation based on discharge based on paragraph Family Caregivers. paragraphs (a)(1)(i)(B) through (D) of (b)(1)(i)(A) of this section, the discharge (a) Revocation of the Family this section, the date of revocation will takes effect as of the effective date Caregiver—(1) Bases for revocation of be the date VA determines the criteria provided in VA’s final notice of such the Family Caregiver—(i) For cause. VA in any such paragraph has been met. discharge to the eligible veteran and will revoke the designation of a Family (iii) In the case of revocation based on Family Caregiver. The effective date of Caregiver for cause when VA noncompliance under paragraph discharge will be no earlier than 60 days determines any of the following: (a)(1)(ii) of this section, revocation takes after VA provides advanced notice of its (A) The Family Caregiver or eligible effect as of the effective date provided findings to the eligible veteran and veteran committed fraud under this in VA’s final notice of such revocation Family Caregiver that the eligible part; to the eligible veteran and Family veteran does not meet the requirements (B) The Family Caregiver neglected, Caregiver. The effective date of of § 71.20. abused, or exploited the eligible veteran; revocation will be no earlier than 60 (B) For discharge based on paragraph (C) Personal safety issues exist for the days after VA provides advanced notice (b)(1)(i)(B) of this section, the date of eligible veteran that the Family of its findings to the eligible veteran and Caregiver is unwilling to mitigate; Family Caregiver. discharge will be the earliest of the (D) The Family Caregiver is unwilling (iv) In the case of revocation based on following dates, as applicable: to provide personal care services to the VA error under paragraph (a)(1)(iii) of (1) Date of death of the eligible eligible veteran or, in the case of the this section, the date of revocation will veteran.

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(2) Date that institutionalization Caregiver does not provide a date. If the veteran or eligible veteran’s surrogate to begins, if it is determined that the request does not include an identified provide one. If unable to successfully eligible veteran is expected to be date of discharge, VA will contact the obtain this date, discharge will be institutionalized for a period of 90 days Family Caregiver to request a date. If effective as of the date of the request. or more. unable to successfully obtain this date, (iii) Rescission. VA will allow the (3) Date of the 90th day of discharge will be effective as of the date eligible veteran or eligible veteran’s institutionalization. of the request. surrogate to rescind the discharge (iii) Continuation of benefits. (iii) Continuation of benefits. (A) request and have the Family Caregiver Caregiver benefits will continue for 90 Except as provided in paragraph reinstated if the rescission is made days after the date of discharge. (b)(3)(iii)(B) of this section, caregiver within 30 days of the date of discharge. (2) Discharge due to the Family benefits will continue for 30 days after If the eligible veteran or eligible Caregiver—(i) Bases for discharge. the date of discharge. veteran’s surrogate expresses a desire to (B) If the Family Caregiver requests Except as provided in paragraph (f) of reinstate the Family Caregiver more discharge due to domestic violence (DV) this section, the Family Caregiver will than 30 days from the date of discharge, or intimate partner violence (IPV) be discharged from the Program of a new joint application is required. Comprehensive Assistance for Family perpetrated by the eligible veteran Caregivers due to the death or against the Family Caregiver, caregiver (iv) Continuation of benefits. institutionalization of the Family benefits will continue for 90 days after Caregiver benefits will continue for 30 Caregiver. Note: VA must receive the date of discharge when any of the days after the date of discharge. notification of death or following can be established: (c) Safety and welfare. If VA suspects institutionalization of the Family (1) The issuance of a protective order, that the safety of the eligible veteran is Caregiver as soon as possible but not to include interim, temporary and/or at risk, then VA may suspend the later than 30 days from the date of death final protective orders, to protect the caregiver’s responsibilities, and or institutionalization. Notification of Family Caregiver from DV or IPV facilitate appropriate referrals to institutionalization must indicate perpetrated by the eligible veteran. protective agencies or emergency whether Family Caregiver is expected to (2) A police report indicating DV or services if needed, to ensure the welfare be institutionalized for 90 or more days IPV perpetrated by the eligible veteran of the eligible veteran, prior to discharge from the onset of institutionalization. against the Family Caregiver or a record or revocation. (ii) Discharge date. The date of of an arrest related to DV or IPV (d) Overpayments. VA will seek to discharge will be the earliest of the perpetrated by the eligible veteran recover overpayments of benefits following dates, as applicable: against the Family Caregiver; or provided under this section as provided (A) Date of death of the Family (3) Documentation of disclosure of DV in § 71.47. or IPV perpetrated by the eligible Caregiver. (e) Transition and bereavement (B) Date that the institutionalization veteran against the Family Caregiver to counseling. VA will, if requested and begins, if it is determined that the a treating provider (e.g., physician, applicable, assist the Family Caregiver Family Caregiver is expected to be dentist, psychologist, rehabilitation in transitioning to alternative health institutionalized for a period of 90 days therapist) of the eligible veteran or care coverage and mental health or more. Family Caregiver, Intimate Partner services. In addition, in cases of death (C) Date of the 90th day of Violence Assistance Program (IPVAP) of the eligible veteran, bereavement institutionalization. Coordinator, therapist or counselor. (iii) Continuation of benefits. (4) Discharge of the Family Caregiver counseling may be available under 38 Caregiver benefits will continue for 90 by request of the eligible veteran or U.S.C. 1783. days after date of discharge in paragraph eligible veteran’s surrogate—(i) Request (f) Multiple bases for revocation or (b)(2)(ii)(B) or (C) of this section. for discharge. Except as provided in discharge. In the instance that a Family (3) Discharge of the Family Caregiver paragraph (f) of this section, the Family Caregiver may be both discharged by request of the Family Caregiver—(i) Caregiver will be discharged from the pursuant to any of the criteria in Request for discharge. Except as Program of Comprehensive Assistance paragraph (b) of this section and have provided in paragraph (f) of this section, for Caregivers if an eligible veteran or his or her designation revoked pursuant the Family Caregiver will be discharged the eligible veteran’s surrogate requests to any of the criteria in paragraph (a) of from the Program of Comprehensive discharge of the Family Caregiver. The this section, the Family Caregiver’s Assistance for Family Caregivers if a discharge request may be made verbally designation will be revoked pursuant to Family Caregiver requests discharge of or in writing and must express an intent paragraph (a). In the instance that the his or her caregiver designation. The to remove the Family Caregiver’s designation of a Family Caregiver may request may be made verbally or in approval and designation. If the be revoked under paragraph (a)(1)(i) and writing and must provide the present or discharge request is received verbally, paragraph (a)(1)(ii) or (iii) of this future date of discharge. If the discharge VA will provide the eligible veteran section, the designation of the Family request is received verbally, VA will written confirmation of receipt of the Caregiver will be revoked pursuant to provide the Family Caregiver written verbal discharge request and effective paragraph (a)(1)(i). In the instance that confirmation of receipt of the verbal date of discharge. VA will notify the the designation of a Family Caregiver discharge request and the effective date Family Caregiver verbally and in writing may be revoked under paragraphs of discharge. VA will notify the eligible of the request for discharge and effective (a)(1)(ii) and (iii) of this section, the veteran verbally and in writing of the date of discharge. designation of the Family Caregiver will request for discharge and the effective (ii) Discharge date. The date of be revoked pursuant to paragraph date of discharge. discharge will be the present or future (a)(1)(iii). In the instance that a Family (ii) Discharge date. The date of date of discharge provided by the Caregiver may be discharged under discharge will be the present or future eligible veteran or eligible veteran’s paragraph (b)(1), (2), (3), or (4) of this date provided by the Family Caregiver surrogate. If the request does not section, the Family Caregiver will be or the date of the Family Caregiver’s provide a present or future date of discharged pursuant to the paragraph request for discharge if the Family discharge, VA will ask the eligible most favorable to the Family Caregiver.

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■ 11. Add § 71.47 to read as follows: § 71.47 Collection of overpayment. § 71.50 [Amended] VA will collect overpayments as ■ 12. Amend § 71.50 by removing the defined in § 71.15 pursuant to the statutory authority citation at the end of Federal Claims Collection Standards. the section. [FR Doc. 2020–15931 Filed 7–30–20; 8:45 am] BILLING CODE 8320–01–P

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